June Medical Services LLC et al v. Gee et al

Filing 329

ORDER denying 235 Motion to Stay Discovery. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 02/28/2020. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JUNE MEDICAL SERVICES, LLC, d/b/a HOPE
MEDICAL GROUP FOR WOMEN, on behalf of
its patients, physicians, and staff, ET AL.

CIVIL ACTION

NO. 16-444-BAJ-RLB
VERSUS
REBEKAH GEE, in her official capacity as
Secretary of the Louisiana Department of Health,
ET AL.
ORDER
Before the Court is Plaintiffs’ Motion to Stay Discovery (R. Doc. 235) filed on May 24,
2019. Defendants filed their Opposition (R. Doc. 249) on June 17, 2019, and Plaintiffs filed a
Reply (R. Doc. 255) on July 7, 2019. Defendants also filed a Supplemental Declaration in
Opposition (R. Doc. 283) on October 2, 2019, and Plaintiffs also filed a Notice of Supplemental
Authority (R. Doc. 291) on October 8, 2019.
I.

Background
Plaintiffs initiated this litigation with the filing of their Complaint (R. Doc. 1) on July 1,

2016. They filed a First Amended Complaint for Declaratory and Injunctive Relief (R. Doc. 22)
on December 16, 2016, and a Second Amended Complaint for Declaratory and Injunctive Relief
(R. Doc. 88) on December 8, 2017. Defendants filed their Answer (R. Doc. 90) to Plaintiff’s
Second Amended Complaint on December 22, 2017.
Plaintiffs seek declaratory and injunctive relief, challenging the constitutionality of six
bills passed by the Louisiana Legislature during its 2016 Regular Session, as well as two
emergency regulations. (R. Doc. 1 at 2). Plaintiffs are comprised of three medical doctors,
appearing on behalf of themselves and their patients, as well as June Medical Services, LLC,

d/b/a Hope Medical Group for Women (“Hope”), a women’s reproductive health clinic in
Shreveport, Louisiana. (R. Doc. 88 at 5).
Plaintiffs assert that the six bills passed and two emergency regulations impose
unconstitutional requirements on women seeking abortions, women’s ability to obtain—and
doctors’ ability to provide—certain types of abortions at particular points past the last menstrual
period, and the availability of abortion services in Louisiana. Plaintiffs also assert that these bills
and regulations violate their due process and equal protection rights guaranteed by the
Fourteenth Amendment to the U.S. Constitution. (R. Doc. 88 at 34-39).
II.

Law and Analysis
A.

Legal Standard

Upon a motion by a party and for good cause shown, a district court can limit discovery
and “make any order which justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c). “A federal court
has discretion to stay discovery ‘for good cause shown.’” Griffin v. American Zurich Insurance
Company, 2015 WL 11019132, at *2 (N.D. Tex. Mar. 18, 2015) (citing Von Drake v. National
Broadcasting Co., 2004 WL 1144142, at *1 (N.D. Tex. May 20, 2004)).
B.

Analysis

Plaintiffs request the Court stay discovery in this litigation under two theories, to be
addressed in the reverse order presented. First, Plaintiffs argue that they cannot proceed with
discovery given the Defendants’ alleged refusal to comply with the confidentiality protections in
place in this litigation. Second, Plaintiffs suggest that discovery should be stayed in this litigation
pending resolution by the Supreme Court of the Admitting Privileges Case, June Med. Servs.,
L.L.C. v. Gee, 905 F.3d 787 (5th Cir. 2018), cert. granted, 140 S.Ct. 35, 204 L.Ed. 2d 1193

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(2019), and cert. granted, 140 S.Ct. 35, 204 L.Ed. 1193 (2019). (R. Doc. 235-1 at 4). In support
of this argument, Plaintiffs note that the Fifth Circuit has held its review of an appeal in abeyance
pending the Supreme Court’s resolution of the Admitting Privileges Case in Whole Woman’s
Health v. Paxton, 280 F.Supp. 3d 938 (W.D. Tex. 2017), appeal docketed, No. 17-51060 (5th
Cir. Jan. 16, 2018), held in abeyance by Doc. 514871170 (5th Cir. Mar. 13, 2019). Plaintiffs
argue that Whole Woman’s Health challenges the constitutionality of Texas’s ban on dilation and
evacuation procedure, which Plaintiffs suggest is “functionally identical to HB 1081.” (R. Doc.
235-1 at 4).
While the Court recognizes that the Supreme Court’s resolution may have a substantive
effect on the outcome of this litigation, the Court finds a stay to be unwarranted in this instance.
As Plaintiffs note, H.B. 1081 is only “one of the laws challenged in this case.” (R. Doc. 235-1 at
4). Plaintiffs also challenge the constitutionality of H.B. 1019, H.B. 815, S.B. 33, H.B. 386, and
H.B. 488, but have not suggested that the Supreme Court’s finding would have an effect on the
outcome of this litigation as to those provisions, nor has any party suggested bifurcation of the
issues. (R. Doc. 88 at 11-23).1
Accordingly, the Court will not stay discovery on the basis of any other pending
litigation. To do so does not promote the goals of judicial efficiency in this instance, especially
considering that this litigation challenges the constitutionality of other legislative enactments that
no party alleges would be directly affected by rulings in other cases.
Plaintiffs also argue that discovery should be stayed because they “cannot proceed with
discovery and expose additional confidential information without a firm understanding that it
will be protected.” (R. Doc. 235-1 at 1). In support of this, Plaintiffs suggest that Defendants

Plaintiffs’ challenge to the constitutionality of H.B. 606 was dismissed based on Joint Stipulation of the Parties. (R.
Docs. 193, 204, 206).
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sought to elicit information subject to the Court’s confidentiality orders through deposition
inquiry and testimony. (R. Doc. 12; R. Doc. 96). Defendants respond that they are “obeying the
Protective Order, insisting that Plaintiffs do too, and doing what the Protective Order and the law
expressly permit cannot be good cause for an additional protective order staying discovery.” (R.
Doc. 249 at 15).
The Court agrees that a stay of discovery is not warranted under the arguments presented
by the parties herein. While Plaintiffs suggest that they are unable to continue to participate in
discovery due to Defendants’ purported refusal to cooperate with the confidentiality orders in
place, the Court does not agree that Plaintiffs’ concerns are best resolved with a stay of
discovery.
The Court will, however, remind the parties of the orders and procedures currently in
place in this litigation, in order to advise the parties of the framework established to address
issues surrounding confidential information.
First, the Court issued a Protective Order (R. Doc. 12) (the “Pseudonym Order”) on July
12, 2016, which permitted the three named physician-plaintiffs to proceed in this litigation under
pseudonyms. Pursuant to the Pseudonym Order (R. Doc. 12), the district judge has previously
admonished Defendants for the “careless nature in which Defendants identified physicians in the
exhibits to their motions, as filed in the open record.” (R. Doc. 203 at 1). The Pseudonym Order
contemplates that the identity of a particular physician as a plaintiff in this action is to remain
confidential throughout the course of this litigation or until further order of the Court.
On February 22, 2018, the Court issued a second Protective Order (R. Doc. 96) (the
“General Protective Order”) based on Joint Motion of the parties, which governs confidentiality
in this litigation in general. The General Protective Order contemplates that any information

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produced by any party or non-party may be designated as Confidential. (R. Doc. 96 at 1-2).
Paragraphs 5 and 6 govern the definition of what information may be deemed or designated
confidential in this litigation, and the Court refers the parties to those paragraphs. (R. Doc. 96 at
3).
Defendants may challenge the validity of any confidential designation asserted by
Plaintiffs. Defendants correctly note that “the Protective Order provides that the parties may ask
the Court to resolve confidentiality disputes.” (R. Doc. 249 at 2 (citing R. Doc. 96 at 9)). The
Pseudonym Order provides that the real names of the plaintiff doctors cannot be disclosed to
certain third parties or entities “without leave of Court.” (R. Doc. 12 at 2). By their very terms,
each of these contemplate a party challenging, and the Court deciding, whether certain
information should remain shielded from disclosure. Staying discovery is not justified in this
instance as the protective orders currently in place provide adequate protections for the
designation of confidential information and relief therefrom while the parties actively participate
in the discovery process in good faith. The parties shall proceed with discovery and make every
effort to comply with the provisions of those protective orders, and confer with each other in
good faith prior to seeking further relief from the Court.
Based on the foregoing,
IT IS ORDERED that Plaintiffs’ Motion to Stay Discovery (R. Doc. 235) filed on May
24, 2019 is DENIED.
Signed in Baton Rouge, Louisiana, on February 28, 2020.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

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