Ehrlich v. Union Pacific Railroad Co.
Filing
68
MEMORANDUM AND ORDER granting in part and denying in part 36 Plaintiff's Motion to Compel. Defendant shall produce all train crew members' medical files responsive to Plaintiff's First Request for Production No. 3, but limited to the time period five (5) years preceding the date of the incident at issue in this case. Signed by Magistrate Judge Teresa J. James on 10/9/2014. (byk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MANDY EHRLICH,
Plaintiff,
vs.
UNION PACIFIC RAILROAD
COMPANY,
Defendant.
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Case No. 13-2142-JTM-TJJ
MEMORANDUM AND ORDER
In this wrongful death action, Plaintiff seeks to recover damages arising from an incident
in which her minor son was struck and killed by a Union Pacific train traveling through Russell,
Kansas, on March 22, 2012. Currently pending before the Court is Plaintiff’s Motion to Compel
(ECF No. 36). Plaintiff requests an order, pursuant to Fed. R. Civ. P. 37, compelling Defendant
Union Pacific Railroad Company to produce the medical files of the three train crew employees
operating the train. As set forth below, the motion is granted in part and denied in part.
I.
Procedural History
Plaintiff filed her Motion to Compel on May 7, 2014. She sought an order compelling
Defendant to produce documents and tangible things responsive to several requests for
production and finding that Defendant waived any claim of attorney-client privilege or work
product by failing to produce a privilege log. In response, Defendant filed its Motion to Strike
Plaintiff’s Motion to Compel or, in the Alternative, Motion to Stay Deadline to Respond to that
Motion (ECF No. 39). Defendant requested that the Court strike Plaintiff’s Motion to Compel on
the grounds that Plaintiff failed to confer concerning the matter in dispute prior to filing her
motion as required by D. Kan. Rule 37.2, and because the motion was untimely under D. Kan.
Rule 37.1(b). On June 19, 2014, the Court denied Defendant’s motion to strike, but gave the
parties additional time to confer about the issues raised in Plaintiff’s motion to compel and
extended Defendant’s deadline for responding to the motion. 1
Defendant filed its response (ECF No. 57) on July 21, 2014. Plaintiff filed her reply
(ECF No. 61) on August 11, 2014. The Court is now ready to rule on the remaining disputes at
issue in Plaintiff’s motion to compel.
II.
Remaining Discovery Issue
Plaintiff states in her reply that she withdraws the portion of her motion to compel
regarding waiver of attorney-client privilege, noting that Defendant produced a privilege log on
July 15, 2014. She acknowledges the sole remaining issue before the Court is whether Defendant
must produce the train crew’s medical files in Defendant’s custody and control that it maintains
on the employees allegedly responsible for the train collision, as sought in Plaintiff’s First
Request for Production No. 3.
On February 2, 2014, Plaintiff served her First Request for Production No. 3 requesting
that Defendant produce the following:
All documents which record, reflect, or otherwise evidence, in whole or in part,
the medical file of the train crew kept by the Defendant and the Defendant’s chief
medical officer or surgeon in the ordinary course of the Defendant’s business,
relating to train crew’s health and physical condition during their tenure of
employment with the Defendant.2
On March 21, 2014, Defendant served its response objecting to Request No. 3 on the
grounds that it is facially overly broad and unduly burdensome, seeks private and confidential
1
See June 19, 2014 Mem. & Order (ECF No. 50).
2
Ex. B to Pl.’s Mot. to Compel (ECF No. 36-2) at 2.
2
information concerning Defendant’s employees, seeks documents protected by the
attorney/client and work product privileges, and seeks documents that are irrelevant and not
reasonably calculated to lead to the discovery of admissible evidence.3 Defendant further
objected to the extent the Request requires Defendant to violate the Health Portability and
Accountability Act (“HIPAA”) or other medical privacy laws.
A.
Plaintiff’s Burden with Regard to Defendant’s Objections
As an initial matter, Defendant argues that Plaintiff has failed to bring “into play”
Defendant’s objections—that the discovery requests are overly broad, unduly burdensome, and
not reasonably calculated to lead to admissible evidence—by Plaintiff’s failure to specifically
address each objection in her motion to compel. Plaintiff stated in her motion that because
Defendant asserted the same boilerplate objection to most of her thirty-five requests for
production, she was unsure of Defendant’s position on a number of them. In her motion, she
asked the Court to overrule the objections unless Defendant provided substantive responses to
support these boilerplate objections. Plaintiff further stated in her motion that “because
Defendant cannot rely solely on boilerplate objections and Defendant has not bothered to
respond or confer with Plaintiff about this dispute, [she] will not waste the Court’s time by
responding to Defendant’s ‘overbroad, unduly burdensome, not reasonably calculated to lead to
admissible evidence’ type objections here.”4
Defendant argues that Plaintiff’s failure to specifically or adequately address the actual
substance or merit of each of the objections that Defendant lodged to Plaintiff’s discovery
requests in her motion to compel means that she has failed to bring these objections “into play.”
3
Id.
4
Pl.’s Mot. to Compel (ECF No. 36) at 3.
3
Thus, according to Defendant, its objections are not ripe for consideration and should stand.
Defendant relies upon a footnote in the 2004 opinion, Sonnino v. University of Kansas Hospital
Authority.5 In Sonnino, the court, disagreeing with Cotracom Commodity Trading Co. v.
Seaboard Corp.,6 set out that “the party filing the motion to compel has the initial burden of
addressing each boilerplate objection in its motion to compel” and that failure to address the
objection in the motion to compel relieves the objecting party from having to reassert it and the
objection stands.7 In Sonnino, Magistrate Judge Waxse commented:
The Court wishes to emphasize that the party filing the motion to compel has the
initial burden of addressing each boilerplate objection in its motion to compel. By
doing so, that brings the objection “into play” and places the burden on the
objecting party to support its objections. If the moving party fails to address an
objection in its motion to compel, the objecting party need not raise it, and the
objection will stand. To the extent Cotracom may be construed to relieve the
moving party of the obligation to raise the objection in the motion to compel, the
Court respectfully disagrees with Cotracom.8
Shortly after Sonnino was decided, Magistrate Judge Waxse denied a motion to compel in
another case, based upon the Sonnino holding that the party filing a motion to compel has the
initial burden to address each and every objection asserted by the objecting party—including
5
221 F.R.D. 661, 671 n.37 (D. Kan. 2004).
6
189 F.R.D. 655, 662 (D. Kan. 1999).
7
Sonnino, 221 F.R.D. at 671 n.37. In the text preceding footnote 37, the Sonnino court describes
the objecting party’s burden once the party filing the motion to compel initially brings the objections
“into play.” “[W]hen a party files a motion to compel and asks the Court to overrule certain objections,
the objecting party must specifically show in its response to the motion to compel, despite the broad and
liberal construction afforded by the federal discovery rules, how each request for production or
interrogatory is objectionable. By failing to address these types of objections in response to a motion to
compel, a party fails to meet its burden to support its objections. The Court is then left without any basis
to determine whether the objections are valid and applicable in light of the particular circumstances of the
case.” Id. at 670–71. The Court here agrees with Sonnino’s description of the objecting party’s burden,
but, as discussed, supra, not with Sonnino’s description of the moving party’s initial burden.
8
Id.
4
boilerplate objections. In DIRECTV, Inc. v. Puccinelli,9 neither the party filing the motions to
compel discovery, nor the party objecting to the discovery addressed the objections to the
discovery requests at issue in the motions. In denying the motions to compel, Magistrate Judge
Waxse rationalized that because the party moving to compel the discovery failed to address the
objections in its motions to compel, the party objecting to the discovery requests was under no
obligation to reassert the objections or to discuss them in its response to the motions, and the
objections therefore would stand.10
The rule announced in the Sonnino and DIRECTV decisions placing on the party filing
the motion to compel the initial burden to address each and every boilerplate objection to the
discovery request, however, has since been criticized.11 In Williams v. Sprint/United
Management Co., Judge Lungstrum directly rejected such a per se rule as unworkable. As Judge
Lungstrum explained in Williams:12
This court’s own research has not uncovered any other cases—from the Tenth
Circuit, this district, or any other court—in which a court has placed the “initial
burden” on the moving party to address each and every objection lodged by the
party resisting discovery. In fact, courts have long held that the burden is on the
objecting party to show why an interrogatory is improper and while the burden is
on the moving party to seek court action, the burden of persuasion remains at all
times with the objecting party.13
9
224 F.R.D. 677, 691 (D. Kan. 2004).
10
Id. at 691.
11
Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWL, 2005 WL 731070, at *3–5 (D. Kan.
Mar. 30, 2005); Ice Corp. v. Hamilton Sundstrand Corp., No. 05-4135-JAR, 2007 WL 1364984, at *6
(D. Kan. May 9, 2007); C.T. v. Liberal Sch. Dist., No. 06-2093-JWL, 2008 WL 394217, at *1 n.2 (D.
Kan. Feb. 11, 2008).
12
2005 WL 731070, at *3–4 (D. Kan. Mar. 30, 2005).
13
Id. at *3.
5
The court rejected the rule placing the initial burden on the moving party, explaining that
in some instances, the moving party will simply not have the requisite knowledge to address the
objection in a meaningful way.14 For example, if a party resists discovery on the grounds that
providing the information would be too burdensome, the moving party often has no knowledge
as to how the information sought is maintained by the responding party in the ordinary course of
business.15 “Clearly, the nonmoving party in that case is better able to address the objection in
the first instance.”16 Judge Lungstrum then stated he would:
[C]ontinue to require the nonmoving party to bear the burden of showing
specifically why the . . . discovery request is improper. In most cases, the moving
party need only file its motion to compel and draw the court’s attention to the
relief the party seeks. At that point, the burden is on the nonmoving party to
support its objections with specificity and, where appropriate, with reference to
affidavits and other evidence.17
Subsequent cases have reiterated the point.18 This Court agrees with these post-Soninno
cases rejecting the placement of the “initial burden” on the party filing a motion to compel
discovery to address each and every objection lodged by the party resisting the discovery sought
in the motion.
In this case, the Court holds that to the extent footnote 37 in Sonnino19 places the initial
burden on the party filing the motion to compel to substantively address each and every
boilerplate objection asserted by the party resisting discovery, it is contrary to well-established
14
Id. at *4.
15
Id.
16
Id.
17
Id.
18
Ice Corp., 2007 WL 1364984, at *6; Liberal Sch. Dist., 2008 WL 394217, at *1 n.2.
19
221 F.R.D. at 671 n.37.
6
law. The Court will thus apply the rule set forth by Judge Lungstrum in Williams20 wherein
Plaintiff need only file her motion to compel and draw the Court’s attention to the relief she
seeks. In this case, Plaintiff identified the particular requests for production at issue in her
motion, specifically identified the objections Defendant lodged to those discovery requests as
boilerplate-style objections, and asked the Court to overrule these objections. Plaintiff even cited
a case supporting her argument that Defendant cannot rely on these boilerplate objections alone,
but instead must provide specific support for them. Plaintiff has thus more than adequately
drawn the Court’s attention to the relief she seeks in her motion to compel.21 Defendant’s
argument that Plaintiff failed to bring into play Defendant’s objections is therefore rejected. The
burden is on Defendant to reassert and support any objections initially asserted in response to
Plaintiff’s Request No. 3.
B.
Defendant’s Objections to Request No. 3
Defendant asserts several arguments in support of its objections to Plaintiff’s Request for
Defendant’s medical files for the train crew members who were operating the train at the time of
the incident. First, it argues that Request No. 3 is facially overbroad, unduly burdensome, and
fails to identify the documents and information sought with reasonable particularity. Second,
Defendant claims that Request No. 3 is facially overbroad as it lacks any temporal limitation.
Defendant’s third argument is that Plaintiff has failed to carry her burden of demonstrating the
relevance of documents where the relevance is not readily apparent. Finally, Defendant argues
20
2005 WL 731070, at *3–4.
21
Even if the Court were to apply the arguably tougher standard Sonnino would initially impose
on the moving party, which this Court has rejected, the Court would find that Plaintiff provided enough
information in her motion to compel to meet her initial burden to bring Defendant’s objections “into
play.”
7
that it should not be compelled to produce its employees’ private, privileged medical information
and HIPAA-protected documents.
1.
Overbreath and Unduly Burdensome Objections
Defendant reasserts its objections that Request No. 3 is facially overbroad, unduly
burdensome, and fails to identify the documents or information sought with reasonable
particularity. According to Defendant, a chief problem with the Request is that Plaintiff uses
words or phrases that render it facially overbroad. It argues that certain omnibus words or
phrases render Request No. 3 overly broad on its face and excuse Defendant from further
explaining any burden in responding to the request. Specifically, Defendant objects that the
Request’s language “[a]ll documents which record, reflect, or otherwise evidence, in whole or in
part,” and “relating to train crew’s health and physical condition during their tenure of
employment with the Defendant” renders it facially overbroad. The Court disagrees and finds
Request No. 3’s usage of this particular language does not render it facially overbroad. Any
omnibus words or phrases are appropriately qualified by other language limiting the request to
the train crew’s “medical file[s]” kept by Defendant reflecting the “train crew’s health and
physical condition.” The train crew consists of only three individuals. The Court further finds
that Request No. 3 sufficiently describes the documents or category of documents with
reasonable particularity, as required by Fed. R. Civ. P. 34(b)(1)(A).
Defendant next argues that the lack of a temporal limitation in Request No. 3 renders it
facially overly broad and unduly burdensome. Request No. 3 asks for the train crew’s medical
files “during their tenure of employment,” which for one of the crew members is 30 years of
records and more than 10 years for another. Defendant claims that it should not be compelled to
8
produce medical files spanning such a lengthy time period for individuals who have not placed
their medical condition in issue.
The Court agrees that the lack of any temporal limitation in Request No. 3 would
presumptively make it overly broad. In Union Pacific Railway Co. v. Grede Foundries, Inc., 22
the court found document requests with no temporal or geographic limitations and that would
have encompassed virtually any documents relating to the defendant’s tracks, repairs, and/or
maintenance at any time and in any location “most certainly, would have been deemed
objectionable.”23 Request No. 3, however, actually contains a temporal limitation on the medical
files to be produced, consisting of the respective tenure of each train crew member’s
employment with Defendant.
Even though Request No. 3 is limited to the employment tenure of each crew member,
the Court agrees with Defendant that the respective tenure of two train crew members would
require Defendant to produce 10 years and 30 years, respectively, of medical files for these crew
members. Defendant has convinced the Court that requiring Defendant to produce medical files
dating back 10 years or more prior to the accident at issue would render the Request overly
broad. The Court fails to see how such medical files could be relevant to the claims in this case.
The Court therefore sustains Defendant’s objection to Plaintiff’s temporal limitation based upon
Defendant’s long-tenured crew members’ employment duration. However, rather than deny the
motion as to the Request, the Court imposes a temporal restriction on Request No. 3 limiting it to
the train crew’s medical files beginning five years before the date of the incident.
22
No. 07-1279-MLB-DWB, 2008 WL 4148591, at *3 n.2 (D. Kan. Sept. 3, 2008).
23
Id.
9
Defendant also argues that it would be unduly burdensome to produce documents
responsive to Request No. 3. It states generically, without specific reference to the three
crewmembers at issue or their actual medical files, that the request, “sweeps every piece of
medical information [Defendant] has for its crew members within its grasp, which . . . can be a
significant amount of medical information.”24 Defendant further states that these medical files
include all medical information it has received regarding that employee from his health care
providers.
A party asserting an unduly burdensome objection to a discovery request has “the burden
to show facts justifying [its] objection by demonstrating that the time or expense involved in
responding to requested discovery is unduly burdensome.” 25 Additionally, the objecting party
must show “not only undue burden or expense, but that the burden or expense is unreasonable in
light of the benefits to be secured from the discovery.”26 This imposes an obligation “to provide
sufficient detail in terms of time, money and procedure required to produce the requested
documents.”27 Any objections that discovery is unduly burdensome must contain a factual basis
for the claim, and the objecting party must usually provide an “affidavit or other evidentiary
proof of the time or expense involved’ in responding to the discovery request.”28
Defendant has failed to meet its burden of showing facts justifying its unduly
burdensome objection to Request No. 3. It has not offered an affidavit or any evidentiary proof
24
ECF No. 57 at p. 10 (emphasis added).
25
Shoemake v. McCormick, Summers & Talarico II, LLC, No. 10-2514-RDR, 2011 WL 5553652,
at *3 (D. Kan. Nov. 15, 2011).
26
Id.
27
Id.
28
Id.
10
to support its objection that producing the three train crew member’s medical files responsive to
Request 3 would be unduly burdensome. Nor has Defendant offered any detail as to the time,
money and procedure that would be required to produce the train crew’s medical records that are
the subject of Plaintiff’s Request No. 3. With the temporal limitation imposed herein, the
disputed discovery request is limited to the medical files of only three of Defendant’s crew
members over only a five year period. Defendant’s objection that Request No. 3 is unduly
burdensome is overruled.
2.
Relevance Objection
Defendant argues that the relevance of the information sought by Request No. 3—the
train crew members’ entire medical history—is not readily apparent, and therefore Plaintiff has
the burden to show the relevancy of the request. Defendant claims that Plaintiff has failed to
demonstrate the relevance of the documents sought by Request No. 3 and that she has not
demonstrated any potential relevance of information to be derived from Plaintiff’s extremely
broadly worded request, nor has she agreed to any specific limitations as to the medical or health
care records sought for these crewmembers. Defendant further argues that Plaintiff has not
identified any evidence of impairment or health problems on the part of any member of the nonparty train crew involved in this incident. Defendant also anticipates that Plaintiff will argue
that crewmember Miguel Morales’s testimony about having “blurry vision” makes such records
relevant. It argues that Mr. Morales testified he had a hard time reading things “close up,” that
his issue of reading “close up” was what caused him to get his eyes checked, and that he had that
vision issue for about a year before he got his eyes checked. Defendant contends there is no
evidence that Mr. Morales had any trouble seeing on the date of accident, nor any evidence that
Mr. Morales’ distance vision was blurry at or around the time of accident.
11
Plaintiff argues that the medical files Defendant maintains on its personnel to ensure that
its train crews are medically fit to operate a train are relevant to show Defendant knew or should
have known that a crew member was medically unfit to operate a locomotive. She also argues
that the Federal Railroad Administration requires Defendant to certify, among other things, that
crew members have adequate hearing and vision and to maintain a record for each certified
engineer that contains the information relied upon to make the determination.
Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense—including the existence, description, nature,
custody, condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of admissible
evidence.
Relevancy is broadly construed at the discovery stage of litigation, and the discovery
sought should ordinarily be allowed “unless it is clear that the information sought can have no
possible bearing” on the claim or defense of a party.29 Furthermore, “the touchstone of the
relevancy of documents and information requested is not whether the discovery will result in
evidence that is, or even may be, admissible at trial, but rather whether the discovery is
‘reasonably calculated to lead to the discovery of admissible evidence.’”30 “For good cause, the
court may order discovery of any matter relevant to the subject matter involved in the action.”31
29
McBride v. Medicalodges, Inc., 250 F.R.D. 581, 586 (D. Kan. 2008).
30
Id. (quoting Fed. R. Civ. P. 26(b)(1)).
31
Fed. R. Civ. P. 26(b)(1).
12
When the discovery sought appears relevant on its face, the party resisting discovery has
the burden to establish the lack of relevancy by demonstrating that the requested discovery (1)
does not come within the scope of relevancy as defined under Fed. R. Civ. P. 26(b)(1), or (2) is
of such marginal relevancy that the potential harm occasioned by discovery would outweigh the
ordinary presumption in favor of broad disclosure.32 Conversely, when the relevancy of the
discovery request is not readily apparent on its face, the party seeking the discovery has the
burden to show the request’s relevancy.33 Relevancy determinations are generally made on a
case-by-case basis.34
The relevance of the medical records of Defendant’s train crew members to the claims
asserted in this case is apparent on the face of the request. This Court has recently addressed a
relevancy objection to a similar discovery request seeking physicals, eye tests, hearing tests, and
any other health-type test, and the results of same, performed on the train crew members
involved in the incident in question from each member’s initial date of employment to present.35
In Stonebarger v. Union Pacific Corp.,36 this Court found the train crew’s health information
sought by the request was “clearly relevant.”37 The Court noted that the health records were
relevant to determine whether any members of the crew might have had physical or mental
32
Gen. Elec. Cap. Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003).
33
McBride, 250 F.R.D. at 586.
34
Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate, No. 09-cv-2516-JAR, 2011 WL
765882, at *3 (D. Kan. Feb. 25, 2011).
35
See Stonebarger v. Union Pac. Corp., No. 13-CV-2137-JAR-TJJ, 2014 WL 3579374, at *5 (D.
Kan. July 21, 2014).
36
2014 WL 3579374, at *5.
37
Id.
13
problems which could have affected their ability to safely operate the train or to see the vehicle
in time to take evasive action.38
Lest there be any doubt, Plaintiff succinctly states: “A major issue in this case is the
performance of the train crew . . . and any impairments they may have had.”39 Plaintiff also
explains that the Federal Railroad Administration requires railroads to certify that their crew
members are not substance abusers and that they have adequate hearing and vision. As Plaintiff
points out, Defendant’s medical records of the crewmembers involved in this case are relevant
and may lead to the discovery of admissible evidence insofar as they relate to substance abuse,
hearing or vision problems, or any other cognitive impairments.40 Plaintiff alleges that all three
of the crew members wear glasses and all three testified that they could only make out a “figure”
on the tracks, rather than knowing it was a child. Plaintiff also asserts that the deposition
testimony of crewmember Mr. Morales supports the relevancy of Request No. 3 because Mr.
Morales testified that his distance vision was blurry and he had been having trouble with his
vision for probably about a year.41
The Court finds that the train crew’s medical files kept by Defendant appear relevant on
their face and, in any event, Plaintiff has shown the relevance of the train crew’s medical files.
Defendant’s relevancy objection to Request No. 3 is overruled.
38
Id.
39
ECF No. 36 at 6.
40
ECF No. 61 at 6.
41
The parties have conflicting views of the Morales deposition testimony. Based upon the
limited deposition testimony quoted to the Court, the Morales testimony appears ambiguous as to whether
he may have had vision issues close up and/or far away. The Morales medical files may contain pertinent
information on this issue.
14
3.
Objection Based Upon Privacy Concerns and HIPAA
Defendant objects to producing the train crew’s medical histories, arguing that it is
prohibited from disclosing that information pursuant to HIPAA, 42 U.S.C.A. §§ 1320(d)1320(d)8. Defendant asserts that it has no obligation to seek a HIPAA waiver from its own
employees, nor must it subject itself to HIPAA penalties merely to satisfy Plaintiff’s curiosity.
This Court also recently overruled similar HIPAA-based objections in Stonebarger.42
The Court held there that the employer of the individuals whose health information the plaintiffs
sought was not subject to HIPAA. “There are no federal statutes generally prohibiting the
release of medical records by an employer. . . . The privacy rule of [HIPAA] does not directly
regulate employers or other plan sponsors that are not HIPAA covered entities.”43 The Court
held that for an employer to be subject to HIPAA, it must be: “(1) a health plan; (2) a health care
clearinghouse; or (3) a health care provider who transmits any health information in electronic
form in connection with a transaction covered by HIPAA.”44 Presumably the medical files at
issue here have already been released to Defendant by the crew members’ healthcare providers.
Defendant has no standing or basis to object to production of the documents based upon HIPAA.
And even if Defendant, as an employer, was a covered entity under HIPAA, it would be
permitted to disclose its employees’ health information in response to discovery requests where a
qualifying protective order is in place.45
42
2014 WL 3579374, at *6.
43
Id. (citing Harris v. Vescom Corp., No. CV 406-291, 2007 WL 1810159, at *2 (S.D. Ga. July
10, 2007)).
44
45 C.F.R. § 160.103.
45
See 45 C.F.R § 164.512(e)(1)(ii)(B); (e)(1)(v).
15
As in the Stonebarger case, the Court finds Defendant is not a HIPAA covered entity and
therefore cannot assert an objection based upon HIPAA to producing the train crew’s medical
files. And even if Defendant was subject to HIPAA, it would be permitted to disclose protected
health information of its employees in response to Plaintiff’s Request No. 3, pursuant to the
Protective Order (ECF No. 11) already entered in this case or a supplemental qualified protective
order. Accordingly, Defendant’s objection to Request No. 3 on the basis that the requested
information is protected by HIPAA is overruled.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Compel (ECF No. 36) is
GRANTED IN PART AND DENIED IN PART. Defendant shall produce all train crew
members’ medical files responsive to Plaintiff’s First Request for Production No. 3, but limited
to the time period five (5) years preceding the date of the incident at issue in this case.
IT IS FURTHER ORDERED THAT each party bear their own costs related to the
motion.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 9th day of October 2014.
s/ Teresa J. James
Teresa J. James
United States Magistrate Judge
16
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