Johnson v. Blake et al

Filing 104

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Compel Production of Documents 100 is GRANTED. IT IS FURTHER ORDERED that Defendants' objections to Request Nos. 5 and 12 of Plaintiffs Fourth Set of Requests for Pro duction are OVERRULED. IT IS FINALLY ORDERED that, within seven (7) days of the date of the Order, Defendants shall produce all documents responsive to Plaintiffs Fifth and Twelfth Request in his Fourth Set of Requests for Production. Signed by District Judge John A. Ross on 2/17/15. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JOSEPH M. JOHNSON,
Plaintiff,
v.
ALAN BLAKE,
Defendants.

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No. 4:12-CV-510-JAR

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff’s Motion to Compel Production of
Documents. (Doc. No. 100) The motion is fully briefed and ready for disposition.
Plaintiff, a civil detainee at the Sex Offender Rehabilitation and Treatment Services
(“SORTS”) in Farmington, Missouri, brings this action under 42 U.S.C. § 1983. Plaintiff alleges
that Defendants failed to protect him from another SORTS resident, LuJuan Tucker, who
sexually assaulted him multiple times in 2009 and 2012.
On November 25, 2014, Plaintiff served his Fourth Set of Requests for Production of
Documents seeking documents relating to the behavior and conduct of Tucker during his time at
SORTS. (Doc. No. 101-1) Defendants objected to Plaintiff’s requests on the grounds that each
request sought materials protected under the confidentiality provisions of the Health Insurance
Portability and Affordability Act (“HIPAA”), 42 U.S.C. §§ 1320d-1320-8. (Doc. No. 101-2)
Following the Court’s entry of the parties’ Stipulated Protective Order on January 5, 2015 (Doc.

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No. 99), Defendants agreed to produce many of the documents requested by Plaintiff. (Doc. No.
101-3) However, Defendants continue to maintain an objection to the following two requests:
Request 5: Any and all Treatment Progress Notes and Behavioral Treatment Service
Progress Notes of LuJuan Tucker (4079235) made, reported, or authored from March 10,
2008, to present.
Request 12: Any and all minutes, memoranda, or notes from any Treatment Team
Meeting referencing LuJuan Tucker (4079235) from March 10, 2008, to the present.
Defendants argue these requested documents relate to psychotherapy notes that cannot be
disseminated without authorization or a court order. (Doc. No. 102 at 3)
Plaintiff replies that HIPAA allows for the production he has requested. Specifically, 45
C.F.R. § 164.512(e)(1)(ii) permits for disclosure of certain health information, including
psychotherapy notes, in response to a “subpoena, discovery request, or other lawful process, that
is not accompanied by an order of a court … if [t]he covered entity receives satisfactory
assurance … from the party seeking the information that reasonable efforts have been made by
such party to secure a qualified protective order that meets the requirements of paragraph
(e)(1)(v) of this section.” (Doc. No. 103 at 1-2) In addition, judges in this District have ruled that
HIPAA does not preclude production of the documents requested. See Matthew J. King v.
William Barton, et al., 4:10-CV-2141 (E.D. Mo. Feb. 13, 2013) at Doc. No. 113 (granting
motion to compel identical documents concerning Tucker over virtually identical objections and
holding that while 45 C.F.R. § 164.508 prohibits the production of psychotherapy notes absent
an authorization from the patient involved, § 164.512 provides an exception for the production of
such documents under a protective order); Timothy Nelson v. Dorn Shuffman, et al., 4:06-CV-

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674 (E.D. Mo. Nov. 18, 2008) at Doc. No. 154 (ordering production of assailant’s treatment
records and notes pursuant to protective order). (Doc. No. 101 at 8-9)
Here, the stipulated Protective Order entered in this case meets the requirements of §
164.512(e)(1)(v). Therefore, the Court will overrule Defendants’ objections to Request Nos. 5
and 12 of Plaintiff’s Fourth Set of Requests for Production and order that the documents
responsive to those requests be produced.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel Production of Documents
[100] is GRANTED.
IT IS FURTHER ORDERED that Defendants’ objections to Request Nos. 5 and 12 of
Plaintiff’s Fourth Set of Requests for Production are OVERRULED.
IT IS FINALLY ORDERED that, within seven (7) days of the date of the Order,
Defendants shall produce all documents responsive to Plaintiff’s Fifth and Twelfth Request in his
Fourth Set of Requests for Production.

Dated this 17th day of February, 2015.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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