Blaze, Jr. v. McMoRan Oil & Gas L L C et al

Filing 146

MEMORANDUM RULING: Considering the evidence, the law, and the arguments of the parties, and for the reasons fully explained below, the 76 Motion to Compel is GRANTED IN PART. The 76 Motion for Attorney Fees is denied. Signed by Magistrate Judge Patrick J Hanna on 5/2/2018. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
LEROY J. BLAZE, JR.

CIVIL ACTION NO. 6:16-cv-01552

VERSUS

JUDGE JAMES

McMORAN OIL & GAS, LLC, ET AL.

MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Currently pending is the plaintiff’s motion to compel Dr. Douglas A. Bernard,
a nonparty to the suit, to produce records and documents pursuant to a records
subpoena. (Rec. Doc. 76). The motion is opposed. Considering the evidence, the
law, and the arguments of the parties, and for the reasons fully explained below, the
motion is GRANTED IN PART.
Since the filing of the motion to compel, the plaintiff has significantly
narrowed his requests and is now seeking to have Dr. Bernard produce “[c]opies of
all independent medical-examination (“IME”) reports, redacted to protect the
examinee’s or person’s names, whom you interviewed and/or examined and/or
tested during 2017 to date as part of your legal and/or workers’ compensation cases.”
(Rec. Doc. 92 at 2). Dr. Bernard objected to the plaintiff’s original requests on the
basis that they were overly broad and unduly burdensome and on the basis that
production of the requested documents would violate HIPAA.

This Court finds that the requested information is relevant and that production
of the requested documents is proportional to the needs of the case, as is required by
Fed. R. Civ. P. 26. Particularly as revised, the request for the production of
documents now at issue is reasonable and compliance with the request will not
impose on Dr. Bernard an unduly onerous or burdensome task. This Court has
viewed unredacted records produced by Dr. Bernard in an unrelated case and is
convinced that redacting the requested documents will not be such an arduous
process as Dr. Bernard suggests.
As to the suggestion of HIPAA violations, all that is required is that the
records be copied and that each person’s personal identifiers, i.e., name, Social
Security Number, birthdate, telephone number and patient identification number be
removed. Therefore, this Court finds that no HIPAA violation will occur once the
documents are properly redacted to remove the personal identifier information noted
above since Dr. Bernard was not those persons’ treating physician but merely
provided a second or independent opinion regarding their medical conditions.
Therefore, Dr. Bernard shall produce the requested records not more than thirty days
after the date of this ruling.
As to the claim of being over burdensome because of the costs involved, this
Court finds that it would be inequitable to require the plaintiff to bear the entire cost
for the production of the documents requested of Dr. Bernard; to the contrary, equity
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requires that Dr. Bernard bear at least some part of the cost of preparing and
producing the requested documents. In supplements to the record it turns out there
are 159 reports that total 538 pages. Dr. Bernard contends that the copying costs are
$0.17 per page which totals $91.46. This is a cost appropriately born by a
professional such as Dr. Bernard who routinely provides independent medical
examinations and second opinions in cases being litigated.

Dr. Bernard is

compensated for those services and he should anticipate that he will be asked to
produce the records requested in this case.
As to the cost to Dr. Bernard in lost time and productivity associated with the
redaction process, Dr. Bernard contends it will take someone who charges over
$40.00 per hour nearly 90 hours to do the redactions which will then have to be
verified as compliant with redaction standards. That cost is over $22,000.00. The
plaintiff contends that it would only take about 18 hours to do the same thing and it
could be done by a person being paid minimum wage. The Court finds neither
argument completely persuasive.
This Court will not require Dr. Bernard to hire additional staff, with all that
is attendant to that endeavor, for the sole purpose of answering a discovery request.
Nor will this Court visit upon the plaintiff the entire amount of the costs requested.
Therefore, the Court will impose on the plaintiff the obligation to reimburse Dr.
Bernard the sum of $800.00, representing 20 hours work at $40.00 per hour (or put
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another way, 89 hours at $9.00 per hour), which this Court finds to be a reasonable
amount to compensate Dr. Bernard for his office staff’s work in producing and
redacting the records for the individuals that he has seen only for IME purposes
associated with litigation in 2017. This sum shall be paid to Dr. Bernard (or his
counsel if he deems it appropriate) when he delivers the requested documents to the
plaintiff’s counsel.
Fed. R. Civ. P. 37 states that when a motion to compel is granted, the court
must require the person whose conduct led to the motion to pay the mover’s
reasonable expenses and attorneys’ fees incurred with regard to preparing and filing
the motion. However, although this part of the motion was granted, it was only
granted in part as were other aspects of the motion and this Court therefore has
discretion. In this case, the parties have not submitted documentation of time or costs
incurred and this Court will not entertain the submission of any such documentation
as the request for attorney’s fees and costs is denied.
Therefore, IT IS ORDERED that the motion to compel is granted in the
following respects:
(1) Dr. Bernard is to produce the 179 reports he identified as responsive to the
plaintiffs’ request within 30 days of this Order;
(2) Dr. Bernard is to bear the entirety of the copying costs and a portion of the
redaction costs;
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(3) The plaintiff is to reimburse Dr. Bernard $800.00 upon receipt of the
requested records; and
(4) The claim for attorney’s fees is denied.
Signed at Lafayette, Louisiana, this 2nd day of May 2018.

____________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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