Cody et al v. City of St. Louis

Filing 63

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that non-party Corizon Health, Inc.s Motion to Partially Quash Subpoena Duces Tecum (ECF No. 33 ) is GRANTED in part and DENIED in part. Exhibit A: Documents to be Produced of the Subpoena served by Pla intiffs on Corizon requiring production of documents on August 3, 2018 at 11:00 a.m. (ECF No. 33-1) is modified as follows: (1) Relevant Period as defined in paragraph 10 of the Definitions section is now defined as May 1, 2017 to October 31, 2017 ; (2) paragraph 20 under Documents Requested is struck and Corizon need not produce documents in response to this paragraph; and (3) all document requests in the subpoena are limited to documents from the City of St. Louis Medium Security Institution. Corizon Health, Inc. shall produce documents responsive to the subpoena as modified above by November 23, 2018.. Signed by District Judge Audrey G. Fleissig on 10/31/2018. (KCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JAMES CODY, et al.,
Plaintiffs,
vs.
CITY OF ST. LOUIS,
Defendant.

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Case No. 4:17-CV-2707-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of non-party Movant Corizon
Health, Inc. (“Corizon”) to partially quash the subpoena duces tecum served by Plaintiffs
seeking production of certain documents. ECF No. 33. For the reasons set forth below,
the motion will be denied in part and granted in part.
BACKGROUND
Plaintiffs filed this action on behalf of themselves and all others similarly situated
against the City of St. Louis, Missouri alleging various dangerous, unsanitary, and
inhumane conditions inside the St. Louis City Medium Security Institution (“MSI”).
Plaintiffs, who were all held at MSI at various times in 2017, claim that detainees at MSI
are subjected to insufficient ventilation and extreme heat; unsanitary and unhealthy
conditions including rodent and insect infestation, overflowing sewage, and black mold;
inadequate medical care; and overcrowding, inadequate staffing, violence, and retaliation
from staff.

Plaintiffs served Corizon, the contracted medical care and treatment provider for
City of St. Louis detainees confined to the MSI, with a subpoena seeking various
documents relating to medical care and treatment at MSI. ECF No. 33-1. Corizon
opposes the production of documents as requested in certain paragraphs of the subpoena.
According to Corizon, the documents sought by Plaintiffs in the following paragraphs
seek disclosure of medical information of inmates other than that of Plaintiffs, which is
confidential and protected information pursuant to regulations under the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”):
8.
For the relevant period, a list of appointments, meaning a
scheduled time for inmates to be seen by medical staff. The list should be
formatted by day and include notes from each appointment. If available,
the information should contain each inmate’s name, housing location,
inmate number, date of birth, reason for service, diagnosis, date scheduled
and date completed or reason for no show.
9.
All Infirmary tracking logs during the Relevant Period. The
information should include each inmate’s name, inmate number, DOB, date
of admission, reason for admission, and date of discharge.
10.
Tracking logs or list of patients sent to the emergency
department/hospitalized during the Relevant Period. The information
should include inmate name, inmate number, DOB, reason for visit or
hospitalization, date of admission and date of discharge.
11.
A current caseload list of all inmates on the male and female
transitional units and acute care units listed by name, inmate number and
DOB.
12.
For the Relevant Period, the sick call request logs, triage lists,
and/or other records documenting all requests for medical care by inmates,
including but not limited to “Health Services Request Forms.”
13.
For the Relevant Period, any documents showing or related to
complaints that incarcerated people made about general building conditions
or conditions impacting health (e.g., mold, rats, temperature, food, insects)
including documents placed in what may be colloquial be known as the
“sick box.”
14.
For the Relevant Period, a list of all inmates by name and
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inmate number, who were hospitalized outside of MSI, including the date
of hospitalization, date of discharge, and the reason for hospitalization.
15.
For the Relevant Period, a log of each of the following
conditions and/or symptoms reported by inmates or correctional staff:
a.
Ear/Nose/Throat irritation;
b.
Neurasthenic symptoms (headaches, dizziness, fatigue,
and nausea);
c.
Skin irritation or infections;
d.
and/or hypersensitivity reactions (allergy-like or
asthma-like symptoms); and
e.
Sensory issues (unpleasant odors and/or tastes).
…
17.
Please provide any documentation related to suicide
monitoring during the Relevant Period, including but not limited to any
policies or written procedures and directives.
18.
The log for requests for mental health services or “Mental
Health Referral” forms during the Relevant Period with inmate name,
inmate number, the date of the request, and whether services were provided
as a result of the request.
…
20.
For the Relevant Period, all Medication Administration
records and/or Practitioner’s Orders listing the prescriptions issued and
medication administered to inmates in the Medium Security Institute.
ECF No. 33-1.
Corizon contends that this information should be quashed based on Rule 45(d)(3)(A)(iii),
Fed. R. Civ. P., which requires quashing or modifying a subpoena when it seeks
disclosure of privileged or other protected matter, if no exception or waiver applies.
Corizon also opposes the production of certain documents as being unduly
burdensome and too expensive for it to comply with the subpoena under Rule
45(d)(3)(A)(iv), Fed. R. Civ. P. These are documents are sought in paragraphs 8, 10-14,
and 20 above, but also those requested in:
1.
A complete copy of all policy manuals, procedures, protocols,
guidelines, and any other materials in any form concerning the providing of
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medical care at the Medium Security Institution. This request should
include instructional memoranda or documents issued to Corizon by other
companies or organizations to assist with treating medical hazards found in
the Medium Security Institution.
ECF No. 33-1.
DISCUSSION
Federal Rule of Civil Procedure 26 provides that: “Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake in
the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery outweighs its likely benefit.”
Fed. R. Civ. P. 26(b)(1). Although the federal rules permit liberal discovery, it “is
provided for the sole purpose of assisting in the preparation and trial, or the settlement, of
litigated disputes.” Miscellaneous Docket Matter No. 1 v. Miscellaneous Docket Matter
No. 2, 197 F.3d 922, 925 (8th Cir. 1999) (quoting Seattle Times Co. v. Rhinehart, 467
U.S. 20, 34 (1984)). Relevant information “need not be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1). “The rule vests the district court with discretion
to limit discovery if it determines, inter alia, the burden or expense of the proposed
discovery outweighs its likely benefit.” Roberts v. Shawnee Mission Ford, Inc., 352 F.3d
358, 361 (8th Cir. 2003).
Rule 45 provides the rules governing subpoenas directed at non-parties, and
authorizes a district court to quash or modify a subpoena when the subpoena requires
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disclosure of privileged or other protected matter, or when it subjects a person to undue
burden. Fed. R. Civ. P. 45(d)(3)(A) (iii)-(iv). The court has wide latitude in deciding
whether to quash a subpoena issued to a non-party. Swann v. Calahan, No.
4:11CV00369(JCH), 2011 WL 3608056, at *1 (E.D. Mo. Aug. 15, 2011). A “party
seeking to quash a subpoena bears the burden to demonstrate that compliance would be
unreasonable or oppressive.” Enviropak Corp. v. Zenfinity Capital, LLC, No.
4:14CV00754 ERW, 2014 WL 4715384, at *3 (E.D. Mo. Sept. 22, 2014). If the party
seeking the information can easily obtain the same information without burdening the
non-party, the court will quash the subpoena. See In re Cantrell v. U.S. Bioservices
Corp., No. 09-mc-0158-CV-W-GAF, 2009 WL 1066011 (W.D. Mo. Apr. 21, 2009).
First, Corizon contends that the information requested in paragraphs 8-15, 17, 18,
and 20 should be quashed for seeking disclosure of confidential, privileged, or other
protected matter under HIPAA, based on Rule 45(d)(3)(A)(iii), Fed. R. Civ. P. Corizon
admits that HIPAA allows for disclosure when a Protective Order is in place, as it is here
(ECF No. 29). However, Corizon argues that the Court should use its discretion to bar
the release of these records of a “very sensitive nature.” ECF No. 34 at 6. Corizon also
argues that the mental health information requested should require an increased level of
privacy and confidentiality, and that the release of this information should be barred by
psychotherapist-patient privilege. See Jaffee v. Redmond, 518 U.S. 1, 15 (1996)
(recognizing a federal common law psychotherapist-patient privilege and holding that
confidential communications between a licensed psychotherapist and her patients are
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protected from compelled disclosure under Rule 501 of the Federal Rules of Evidence).
Plaintiffs oppose a partial quash of the subpoena, arguing that the Protective Order
in place in this case adequately protects HIPAA information from public release.
Plaintiffs also point out that Corizon does not argue that the Protective Order is
inadequate, nor does it cite any case law in support of its “sensitive nature” argument.
Second, Corizon contends that the information requested in paragraphs 1, 8, 1014, and 20 should be quashed because compliance with the subpoena would create an
undue burden and expense for Corizon, based on Rule 45(d)(3)(A)(iv), Fed. R. Civ. P.
According to Corizon, providing the requested information would involve conducting a
manual search of each patient chart during the twelve-month time period at issue and the
time and expense of such a search would be unduly burdensome. Corizon relies on In re
Cantrell v. U.S. Bioservices Corp. where the court found a subpoena served on a nonparty physician was unduly burdensome, in part because the requested documents could
first be sought from the party defendants. 1 No. 09-mc-0158-CV-W-GAF, 2009 WL
1066011, at *2 (W.D. Mo. Apr. 21, 2009).
In response, Plaintiffs argue that they have already limited the scope of their
subpoena to just one year of medical records (May 2017 to April 2018), even though their

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As part of Corizon’s undue burden objection, it also argues that some of the document
requests are not limited to MSI but also require the production of documents related to
inmates confined at the St. Louis City Justice Center (where Corizon also provides
contracted medical care and treatment). However, this is a nonissue since “[p]laintiffs
concede that they only seek information limited to the City of St. Louis’s Medium
Security Institute.” ECF No. 36 at 5 n.1.
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purported class of Plaintiffs would include MSI detainees for over a five-year period.
This limitation was an attempt to minimize the burden and expense on Corizon.
Regardless, Plaintiffs contend that Corizon has failed to provide any evidence to meet its
burden to demonstrate that compliance with the subpoena would be unreasonable or
oppressive. Plaintiffs state that these documents are necessary to their case, and it is
Corizon that regularly maintains and possesses them.
The Court granted Corizon leave to file a reply brief in support of its motion out of
time. In that reply, Corizon argues, for the first time, that the information requested by
Plaintiffs is not relevant to their complaint and that they are required to make a
compelling show of relevance. Because this argument was only raised in reply, Plaintiffs
did not have an opportunity to respond directly. However, Plaintiffs’ opposition brief
does state that “[b]ecause Plaintiffs allege Defendant City operates [MSI] with certain
policies and hazardous conditions affecting the overall health and wellbeing of those
caged within, Plaintiffs sought certain medical records related to those purported health
hazards from the City’s contract healthcare provider, non-party Corizon.” ECF No. 36 at
1. It is undisputed that the basis of Plaintiffs’ complaint is that the conditions of MSI are
unhealthy and unsanitary, thereby causing health problems. Undoubtedly, medical care
and treatment records are relevant to proving this claim.
Corizon, as the party seeking to quash the subpoena, bears the burden of
demonstrating that compliance would be unreasonable or oppressive. As Corizon
concedes, HIPAA allows disclosure of confidential medical information under a Court’s
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protective order. See Cantrell, 2009 WL 1066011, at *1. Corizon makes no argument,
nor does the Court have reason to believe, that the Agreed Stipulated Protective Order
(ECF No. 29) in place in this case is inadequate to protect the confidential records
subpoenaed by Plaintiffs. Nor is the Court persuaded by Corizon’s argument for a bar
based on psychotherapist-patient privilege under Jaffee v. Redmond, 518 U.S. 1 (1996).
No testimony is being compelled against privilege and Corizon has stated that medical
records will be redacted to insure patient privacy. Corizon’s motion to quash as to
paragraphs 8-15, 17, 18, and 20 under Rule 45(d)(3)(A)(iii), Fed. R. Civ. P., will be
denied.
As for Corizon’s undue burden argument, Plaintiffs state that they have tried to
minimize the burden on Corizon by limiting the time period for requested documents to
one year. According to numbers provided by Plaintiffs in their complaint, MSI averaged
around 710 detainees a month over a four-month period in 2017. ECF No. 22 ¶ 117.
Corizon argues that since the medical records of every detainee will be subject to
HIPAA, it will have to go through each page of the records to redact information that is
not responsive to the Plaintiffs’ request and to insure the privacy of the patients treated.
Although not all detainees are seen regularly for medical care, Corizon states that every
person who enters MSI receives two initial assessments by medical professionals. ECF
No. 38-1 at 4. At an average of 710 detainees a month, over a twelve-month period, such
record review could require a significant time and expense for non-party Corizon. On the
other hand, Corizon is the only entity that can provide these necessary, relevant
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documents to Plaintiffs. Corizon is the City of St. Louis’s retained medical services
provider and part of those services includes maintaining medical records in the regular
course of business. Plaintiffs cannot obtain this information without burdening non-party
Corizon.
To protect a non-party from undue burden or expense, the Court can modify a
subpoena’s scope. Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure, § 2459 (3d ed. 2008). Such a modification is generally preferred to outright
quashing. Linder v. Nat’l Sec. Agency, 94 F.3d 693, 698 (D.C. Cir. 1996). As this Court
has wide latitude and discretion in deciding whether to quash or modify a subpoena to a
non-party, the Court will attempt to balance Corizon’s burden with Plaintiffs’ need for
this relevant information by limiting the subpoena at issue. See Bonutti v. Lehman Bros.,
No. 05 C 4409, 2005 WL 2848441, at *3 (N.D. Ill. Oct. 27, 2005) (modified scope of
subpoena’s time frame for requested documents from fourteen years to two years).
The seven named Plaintiffs were detainees at MSI at varying time periods during
the nine-month period of January 3, 2017, to October 3, 2017. In their subpoena,
Plaintiffs request documents from Corizon for the one-year period of May 1, 2017,
through April 30, 2018. The six-month time period of May 1, 2017 to October 31, 2017
is approximately the overlapping time period between the named Plaintiffs’ detentions at
MSI and the subpoena’s time period. Corizon shall produce the requested documents for
this narrower time period to Plaintiffs, except as to documents requested in paragraph 20
as discussed below. If the documents produced from this time period demonstrate that
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additional materials beyond this period are discoverable and necessary, Plaintiffs can
move for production of such documents.
As for Plaintiffs’ paragraph 20 document request, seeking “all Medication
Administration records and/or Practitioner’s Orders listing the prescriptions issued and
medication administered,” the Court finds this request unduly burdensome for Corizon.
This overbroad request will require the production of many medication records and
prescriptions that are not relevant to the issues of this case. If Plaintiffs can sufficiently
tailor this request to be proportional to the needs of this case after production of the other
requested documents by Corizon, Plaintiffs can seek production of such documents at
that time.
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that non-party Corizon Health, Inc.’s Motion to
Partially Quash Subpoena Duces Tecum (ECF No. 33) is GRANTED in part and
DENIED in part. “Exhibit A: Documents to be Produced” of the Subpoena served by
Plaintiffs on Corizon requiring production of documents on August 3, 2018 at 11:00
a.m. (ECF No. 33-1) is modified as follows: (1) “Relevant Period” as defined in
paragraph 10 of the ‘Definitions’ section is now defined as May 1, 2017 to October 31,
2017; (2) paragraph 20 under ‘Documents Requested’ is struck and Corizon need not
produce documents in response to this paragraph; and (3) all document requests in the
subpoena are limited to documents from the City of St. Louis Medium Security
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Institution. Corizon Health, Inc. shall produce documents responsive to the subpoena
as modified above by November 23, 2018.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 31st day of October, 2018.

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