Simms v. LeBlanc et al

Filing 41

HEARING REPORT AND ORDER 33 Motion to Compel is DENIED AS MOOT. ORDERED that the Court will enter the parties agreed-upon Protective Order as revised, which will protect all documents produced in this matter that are marked confidential. Signed by Magistrate Judge Erin Wilder-Doomes on 08/14/2018. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
PERRY SIMMS

CIVIL ACTION

VERSUS

17-202-JWD-EWD

JAMES LEBLANC, ET AL
HEARING REPORT AND ORDER
Plaintiff Perry Simms (“Plaintiff’”) is a current inmate at the Louisiana State Penitentiary
at Angola (“Angola”) who suffered a heart attack on or about May 25, 2016 and who filed the
instant suit on April 2, 2017.1 On July 26, 2018, Plaintiff filed his Motion to Compel Production
of Heart Attack Records (the “Motion”) and seeks his costs and fees associated with the Motion.2
In the Motion, Plaintiff alleges that he served discovery requests on October 7, 2017 on Defendants
James LeBlanc, Raman Singh, Darryl Vannoy, Stephanie Lamartiniere, Lt. J. Butler, and the
Department of Public Safety and Corrections (collectively, “Defendants”).3 Plaintiff alleges
Defendants have refused to produce the information sought in Requests for Documents 18-19 and
Interrogatories 1-3, all of which seek information regarding other Angola inmates who suffered or
died from heart attacks (“the heart attack requests”).4 According to Plaintiff, Defendants have
refused to produce the requested information on several grounds, including that the records can
only be produced pursuant to signed HIPAA waivers from the inmates whose records are sought,
the requests are irrelevant, and that Defendants do not keep responsive information and/or have no
way to assemble it.5

1

R. Doc. 1.
R. Doc. 33 and p. 5.
3
R. Doc. 33-1, p. 2.
4
Id. at pp. 2-3 and, e.g., R. Doc. 40.
5
R. Doc. 33-1, p. 2.
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CV38aT0:20

Plaintiff claims that the requested information is related to his Hinojosa6 claim, which is
that Defendants were aware of a discrete group of susceptible inmates suffering from acute crisis,
i.e., inmates suffering from heart attacks,7 that Defendants have produced similarly requested nonparty medical information before, and that the information can be produced pursuant to a protective
order, which Plaintiff proffered to Defendants and which has been approved by this Court in other
cases in which defense counsel has participated.8 Plaintiff alleges that he has engaged in written
and verbal communications with defense counsel pursuant to Fed. R. Civ. P. 37 to obtain the
requested information to no avail.
In their Opposition, Defendants aver that they have produced over 3,800 pages of
documents, submitted numerous written discovery responses, and object to the requests on several
grounds.9 First, they contend that the requests are overly broad and irrelevant, and Hinojosa is
factually distinguishable and does not support Plaintiff’s requests for the medical records.10
Second, they contend that while Defendants have produced non-party medical records under a
protective order in the past, production herein would violate HIPAA because Plaintiff violates
protective orders when Plaintiff uses or refers to protected information that has been produced in
other cases.11 Defendants specifically point to Plaintiff’s reference (in prior correspondence to
Defendants) to a spreadsheet of inmates and their medical conditions that was produced in the
Varnado v. LeBlanc matter.12 Third, Defendants contend that the requested discovery is not
proportional to the needs of the case. In order to comply with the requests, Defendants would
have to review all medical records of all inmates (alive and deceased) at Angola and determine

6

Hinojosa v. Livingston, 807 F.3d 657, 667 (5th Cir. 2015).
R. Doc. 33-1, p. 3.
8
R. Doc. 33-1, p. 4, R. Doc. 40, and R. Doc. 33-7.
9
R. Doc. 35, p. 2.
10
Id. at pp. 2-3.
11
Id. at p. 4.
12
No. 13-cv-348 (M.D. La.).
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which have suffered heart attacks over the last eight years.

Defendants do not have this

information centrally stored and it is not readily accessible. The required review would pose a
burden and expense on Defendants that far outweighs any benefit to Plaintiff.13
On July 30, 2018, this Court issued an Order setting a telephone conference with the parties
for August 9, 2018 to discuss the issues raised by Plaintiff’s Motion.14
On August 9, 2018, the previously scheduled telephone conference was converted to a
telephone hearing on the Motion and was held before Magistrate Judge Erin Wilder-Doomes with
the following participants:
PRESENT:

William Most
Counsel for Plaintiff,
Perry Simms

Andrew Blanchfield
Counsel for Defendants,
James LeBlanc, et al

The Court inquired whether the parties had been able to resolve the Motion. Counsel for
the parties advised that they have had discussions but have been unable to resolve the issues raised
in the Motion. Defendants stated that, in order to respond to the heart attack requests, a physical
review of every inmate record, alive and deceased, would have be to be conducted in order to
determine if they have had heart attacks. This would involve a review of thousands of medical
records because they are kept as paper files. The Court advised that this did not appear proportional
to the needs of the case, to which Plaintiff agreed it was likely not proportional. The Court inquired
as to whether Defendants could produce a spreadsheet of inmates who have had heart attacks,
similar to the one Defendants produced to Plaintiff in the Varnado matter. Defense counsel stated
that Defendants have produced electronically stored information (“ESI”) already and he is not
aware that a spreadsheet exists for heart conditions. Plaintiff’s counsel stated that the referenced
Varnado spreadsheet provides information about some inmates with heart conditions and some

13
14

Id. at pp. 4-6.
R. Doc. 34.

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medical information is kept electronically, including a master spreadsheet of inmate medical
concerns. Plaintiff proposed that Defendants search all electronic files and records using agreedupon keywords. Defendants advised that they have already conducted searches of ESI according
to search terms, but agreed to confer with Plaintiff regarding additional terms and/or keywords.
The Court confirmed that the parties agree that they will confer regarding the ESI searches that
have already been conducted and additional keywords and ESI searches that are necessary in light
of the ones already conducted. Once an agreement has been reached as to additional keywords,
Defendants will only search ESI using those keywords and produce responsive documents to
Plaintiff.
The Court advised the parties that it reviewed Plaintiff’s proffered protective order, and it
appears compliant with the applicable Code of Federal Regulations (i.e., 45 C.F.R. § 164.512) with
respect to disclosure of protected health information in response to discovery requests, with the
exception of the phrase “except as specified below” in paragraph 10, which is unnecessary.15 In
light of the parties’ agreement as to the protective order, the Court will revise the protective order
to delete that phrase and will enter it on the record. Documents marked “confidential” will be
subject to the protective order.
Accordingly, in light of the agreement by the parties:
IT IS HEREBY ORDERED that Plaintiff Perry Simms’ Motion to Compel Production
of Heart Attack Records, and for reasonable expenses and fees, is DENIED AS MOOT.
IT IS FURTHER ORDERED that the parties hereto will confer regarding the searches
of electronically stored information (“ESI”) that Defendants have already conducted to determine
if responsive ESI has already been produced to Plaintiff. The parties will also confer regarding

15

R. Doc. 33-7.

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whether additional searches for ESI are warranted, and if so, will confer to come to a mutual
agreement of keywords that Defendants will use to conduct further ESI searches. Once an
agreement has been reached as to additional keywords, Defendants will search ESI using those
keywords and produce responsive documents to Plaintiff.
IT IS FURTHER ORDERED that the Court will enter the parties’ agreed-upon Protective
Order as revised, which will protect all documents produced in this matter that are marked
“confidential.”
Signed in Baton Rouge, Louisiana on August 14, 2018.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE

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