Davis v. Deleon et al
Filing
27
ORDER granting 7 Motion for Protective Order. - Signed by Magistrate Judge Mona K. Majzoub. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BENJAMIN R. DAVIS,
Plaintiff,
CIVIL ACTION NO. 2:13-cv-15056
v.
HON. PATRICK J. DUGGAN
CRAIG DELEON,
MAGISTRATE JUDGE MONA K. MAJZOUB
LEGACY RIM, a/k/a
REHABILITATION INSTITUTE
OF MICHIGAN, a Michigan corporation, and
LEGACY DMC, a/k/a DETROIT MEDICAL CENTER,
A Michigan corporation,
Jointly and Severally,
Defendants.
_____________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR PROTECTIVE ORDER [7]
This matter comes before the Court on Defendants’ Motion for Protective Order. (Docket
no. 7.) Plaintiff responded to Defendants’ motion (docket no. 10), and Defendants replied to
Plaintiff’s response (docket no. 11). The motion has been referred to the undersigned for
consideration. (Docket no. 8.) The parties have fully briefed the motion; the Court has reviewed
the pleadings and dispenses with oral argument pursuant to E.D. Mich. LR 7.1(f)(2). The Court is
now ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I.
Background
Plaintiff, Benjamin R. Davis, alleges in his Complaint that, on March 11, 2013, he was
wrongfully terminated by Defendants, Craig Deleon, Legacy RIM, and Legacy DMC, because of
his sex, race, disability, and veteran status in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, and the Elliott-Larsen Civil Rights Act, MCL § 37.2101. (See docket no. 1 at
5-8.) Plaintiff’s termination allegedly resulted from his failure to properly notify the front desk
when he was to be off work, his failure to properly and adequately document his work, and for
referring a client to a competitor. (Id. ¶¶ 13-14.)
Prior to his deposition, which took place on April 1, 2014, Plaintiff requested a copy of his
personnel file and Defendants produced the file. (Docket no. 10 at 8; docket no. 7 at 8.) The
personnel file contained a “Letter of Disappointment,” which referred to one of Plaintiff’s patients
by name and stated the patient’s general medical problems. (Docket no. 7 at 8.) The parties agreed
that a protective order should be entered regarding the letter as well as other documents within the
file that contain client information. (Id.)
Defendants drafted a proposed protective order, which provides that Plaintiff can only use
the specified documents for purposes of the litigation and requires that all specified documents be
destroyed at the conclusion of the litigation. (Id.) Plaintiff refuses to sign Defendants’ proposed
protective order, believing that the protective order should specifically state that the information
is protected by the Health Insurance Portability and Accountability Act (HIPAA) and that
Defendants should also be subject to the protective order. (Docket no. 10 at 11.) Plaintiff alleges
that Defendants want to avoid being bound by the protective order because signing it would be an
admission that a HIPAA violation has occurred and has not been properly reported. (Id.) Plaintiff
urges the Court to adopt and enter Plaintiff’s own proposed protective order. (Id. at 13, 38-39.)
Defendants insist that Plaintiff’s allegations are misplaced. Specifically, Defendants argue
that the documents in question are employment records, not patient records, and, therefore, HIPAA
protections do not apply. (Docket no. 7 at 9.) Accordingly, Defendants believe that Plaintiff’s
proposed protective order should be rejected because it refers to “HIPAA-protected documents
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produced by Defendants” and because it would apply to both parties. (Docket no. 11 at 3.)
Defendants’ Motion for Protective Order and the parties’ proposed protective orders are currently
pending before the Court.
II.
Law and Analysis
Federal Rule of Civil Procedure 26(c) allows the Court to issue a protective order for good
cause shown to protect a party from annoyance, embarrassment, oppression, or undue burden or
expense. The parties agree that a protective order is needed; however, they are disputing the terms
of the protective order.
Generally, the HIPAA Privacy Rule prevents a covered entity from using or disclosing
protected health information.1 45 C.F.R. § 164.502(a). “Protected health information” is all
individually identifiable health information held or transmitted by a covered entity in any form or
media, whether electronic, paper, or oral. 45 C.F.R. § 160.103. “Individually identifiable health
information,” is defined as information that is created or received by a health care provider that
relates to the physical or mental health or condition of an individual, or the provision of health care
to an individual, which identifies, or provides a reasonable basis to identify, the individual. (Id.)
Protected health information excludes individually identifiable health information: (1) in education
records covered by the Family Educational Rights and Privacy Act; (2) in employment records held
by a covered entity in its role as employer; and (3) relating to an individual who has been deceased
for more than 50 years. (Id.)
In this case, the documents at issue specifically identify Defendants’ patients by name and
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The parties do not dispute that Defendants Legacy RIM and Legacy DMC fall within the
definition of a covered entity.
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generally state their medical problems.
Therefore, the documents do contain individually
identifiable health information. Nevertheless, Defendants maintained the documents as a part of
Plaintiff’s employment records. Thus, the documents do not contain protected health information
and are not subject to the HIPAA Privacy Rule prohibiting the wrongful disclosure of protected
health information. Because the documents are not HIPAA-protected documents, Plaintiff’s
proposed protective order is not appropriate.
Plaintiff’s proposed protective order is also
inappropriate because it would be nonsensical to restrict Defendants’ use of their own business
records to only for the purposes of this litigation; to prohibit Defendants’ use of the documents for
any other purpose or proceeding would be over inclusive and unduly burdensome.
Although the documents in question meet an exception to the general HIPAA regulations,
the Court recognizes the confidential and sensitive nature of the information contained within the
documents. To protect this information, the Court will order Defendants to amend their proposed
protective order to include the following language: “Any reference to the individually identifiable
health information of Defendants’ clients will be redacted from any responsive documents prior to
production.”
IT IS THEREFORE ORDERED that Defendants’ Motion for Protective Order [7] is
GRANTED. Defendants will add the following language to their proposed protective order: “Any
reference to the individually identifiable health information of Defendants’ clients will be redacted
from any responsive documents prior to production.” Defendants will submit the amended
protective order to the Court for entry on the docket within 21 days of this Opinion and Order.
NOTICE TO THE PARTIES
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Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen days
from the date of this Order within which to file any written appeal to the District Judge as may be
permissible under 28 U.S.C. § 636(b)(1).
Dated: October 10, 2014
s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE
PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Counsel of Record on this date.
Dated: October 10, 2014
s/ Lisa C. Bartlett
Case Manager
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