Ford et al v. United States of America et al

Filing 65

MEMORANDUM and ORDER DENYING 58 Defendants' motion for protective order and DENYING 60 Defendants' motion to compel production of documents. Signed by Chief Judge Deborah K. Chasanow on 7/25/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANGELA FORD, et al.
:
v.

:

Civil Action No. DKC 11-3039

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION AND ORDER
Discovery in this case is scheduled to be completed by
August

5,

2013.

Two

disputes

arose

near

the

end

of

the

discovery period, prompting the filing of (1) a motion for a
protective
Emergency

order

by

Medicine

Defendants
Associates,

Matthew
P.A.,

Christianson,

and

Calvert

M.D.,

Memorial

Hospital (ECF No. 58), and (2) a motion to compel production of
documents by the government (ECF No. 60).

For the reasons that

follow, both motions will be denied.
In

the

authorization
providers

motion
to

outside

for

protective

communicate
the

Plaintiffs’ counsel.

presence

with
of,

order,

Defendants

Plaintiffs’
and

without

health
notice

seek
care
to,

Judge Gallagher recently denied a similar

motion in Piehl v. Saheta, Civ. No. CCB-13-254, 2013 WL 2470128,
at *2 (D.Md. June 5, 2013), finding, inter alia, that “HIPAA’s
restrictions on ex parte communications do not create as uneven
a playing field as [the defendant] contends, as, under HIPAA,

defendants can still have access to information through formal
discovery

requests”

defendant’s

ability

and
to

it

“does

obtain

not

actually

protected

information

formal discovery is still readily available.”

limit

a

because

Moreover, there

are “significant public policy reasons for keeping a plaintiff’s
sensitive medical information restricted,” which HIPAA protects
by allowing disclosure of only “expressly authorized, limited,
and

specifically

identified

protected

rather than unlimited communications.

health

information,”

Piehl, 2013 WL 2470128,

at *2.
Defendants’ motion will be denied for essentially the same
reasons.
health

Discovery is nearly complete in this case; some of the
care

providers

have

already

been

deposed;

deadline for designating experts has passed.

and

the

No showing has

been made as to why the information Defendants would seek from
Plaintiffs’ health care providers may not be obtained through
the ordinary course of discovery.
The
produce

government
“any

seeks

documents[,]

an

order

postings,

compelling

Plaintiffs

to

pictures,

messages[,]

or

entries of any kind on social media within the covered period
relating to [c]laims by Plaintiffs or their [e]xperts.”
No. 60-5, at 5).

(ECF

The covered period is defined as September 27,

2009, to the present, and “social media” extends to “the various
online technology tools that enable people to communicate easily
2

via the internet to share information and resources,” including
“locations like Facebook, Twitter, Linkedin, MySpace, YouTube,
etc.”

(Id. at 4).

“Claims by Plaintiffs and their [e]xperts”

is defined as:
[A]ny factual allegation made by Plaintiff,
Plaintiff’s husband[,] or any hired or
treating expert in either their report or
deposition.
These include, but are not
limited to: a lack of fluency; inability to
initiate conversation; headaches; seizures;
general malaise; pain; memory loss; loss of
ability to work; loss of ability to continue
education; inability to express thoughts or
feelings;
inability
to
name
or
label
pictorial
items;
general
inability
to
communicate;
difficulty
with
semantic
expression or usage; difficulty describing
events in the past; inability to organize
thoughts; inability to do more than one task
[at] a time; depression; marital discord or
relationships; inability to do activities
outside of the house; inability to do
activities
with
kids;
inability
to
go
places; inability to interact with friends
or family.
(Id.).
Plaintiffs have objected on the ground that the request is
invasive, overbroad, and not calculated to lead to the discovery
of

admissible

information,

citing

Tompkins

v.

Detroit

Metropolitan Airport, 278 F.R.D. 387 (E.D.Mich. 2012).

In that

case, the court denied a motion to compel the production of the
plaintiff’s “entire Facebook account, including those sections
she ha[d] designated as private[.]”
388.

Other

courts

have

approved
3

Tompkins, 278 F.R.D. at
an

approach

requiring

plaintiffs

to

produce

information

from

postings

on

social

networking sites in response to more narrowly tailored requests,
such as those relating to events alleged in the complaint.

See

Giacchetto

---

v.

Patchogue-Medford

Union

Free

School

Dist.,

F.R.D. ----, 2013 WL 2897054, at *4 (E.D.N.Y. 2013).
As the government points out, other, more pointed, document
requests

have

obligated

to

already
produce

been

propounded

material

that

is

and

Plaintiffs

responsive

requests, including postings on the Internet.

to

are
those

Moreover, despite

its argument to the contrary, the government’s present request
is not narrowly tailored.

It does not describe the categories

of material sought; rather, it relies on Plaintiffs to determine
what might be relevant.

Thus, it is overbroad and vague.

Accordingly, it is this 25th
United

States

District

Court

day of July, 2013, by the

for

the

District

of

Maryland,

ORDERED that:
1.

Defendants’ motion for protective order (ECF No. 58)

and to compel production of documents (ECF No. 60) BE, and the
same hereby ARE, DENIED; and
2.

The

clerk

is

directed

to

transmit

copies

of

this

Memorandum Opinion and Order to counsel for the parties.

_________/s/________________
DEBORAH K. CHASANOW
United States District Judge
4