Lopez v. Cardenas Markets, Inc.

Filing 23

ORDER Denying 8 Motion to Compel and 10 Counter Motion for Sanctions. Signed by Magistrate Judge Carl W. Hoffman on 10/5/2011. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARIA DE LOURDES LOPEZ and
FLORENTINO VIEYRA,

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Plaintiffs,
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vs.
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CARDENAS MARKETS, INC., et al.,
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Defendants.
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__________________________________________)

Case No. 2:11-cv-00323-ECR-CWH
ORDER

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This matter was referred to the undersigned Magistrate Judge on Defendant’s Motion to

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Compel Plaintiff to Sign Authorization Forms (#8), filed June 7, 2011; Plaintiffs’ Opposition to

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Defendant’s Motion to Compel (#9), filed June 23, 2011; Plaintiffs’ Counter Motion for Sanctions

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(#10), filed June 23, 2011; and Defendant’s Reply (#11), filed June 30, 2011.

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BACKGROUND
This case was removed from the Eighth Judicial District Court of the State of Nevada on

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March 1, 2011. See Notice of Removal (#1). Plaintiffs are seeking damages for injuries allegedly

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sustained from a slip and fall incident that occurred on Defendant’s premises. Id. Defendant filed

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its answer on the date of removal. Id. Shortly after the case was removed, Defendant filed its

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Motion to Compel Plaintiff to Sign Authorization Forms (#8). After the motion had been fully

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briefed, the Court conducted a hearing on the issues raised in Defendant’s motion (#8) and

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Plaintiffs’ counter motion (#9).

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By way of its motion, Defendant seeks to compel Plaintiffs to sign medical authorization

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forms pursuant to a request for production propounded under Federal Rule of Civil Procedure 34.

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In response, Plaintiffs agreed that relevant releases would be provided for “provider specific

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authorizations.” See Ex. B attached to Def.’s Mot. (#8). On May 31, 2011, Defendant’s counsel
sent a letter requesting that Plaintiff execute the medical authorizations attached to the original

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requests for production. See Ex. D. Plaintiffs’ counsel responded that his clients would only sign

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provider specific authorizations. See Ex. E. Consequently, on June 7, 2011, Defendant filed this

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motion (#8) arguing that Plaintiffs failure to fill out, sign and return the medical authorizations

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attached to the requests for production constituted a refusal “to cooperate.” See Def.’s Mot. (#8) at

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5:16-17. Defendant contends that “Plaintiffs are in a far better position than Defendant to list the

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specific providers on the medical authorization[s]” and should be compelled to do so. Id. at 5:5-7.

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Defendant also contends that Plaintiffs should have signed an authorization directed toward the

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Controlled Substance Task Force in conjunction with the other medical authorizations. Id. at 5:7-9.

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In response, Plaintiffs note that they had signed the specific authorization relating to

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worker’s compensation but continued to refuse to sign the medical authorization forms because

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“the discovery rules do not require the Plaintiff to sign medical authorizations. Plaintiff merely

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needs to identify her medical providers in response to certain discovery requests. Plaintiff has done

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this properly.” See Pls’ Opp’n (#9) at 2:23-26. Plaintiff further argues that requesting a plaintiff to

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sign medical authorizations in order to obtain records via Rule 34 requests for production is

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inappropriate as it requires the responding party to “create a new document that did not already

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exist.” Id. at 3:9-14. Ultimately, Plaintiff contends there is “no obligation to prepare documents

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for the Defendant and there is no rule that requires the Plaintiff to fill out documents for the

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Defendant.” Id. at 3:18-21.

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In reply, Defendant states that “Mrs. Lopez [Plaintiff] has placed a significant amount of her

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body at issue with the claims that she has presented in this matter.” See Def.’s Reply (#11) at 2:25-

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26. As such, Defendant argues that it is entitled to discovery regarding Plaintiff’s current and prior

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medical treatment to the claimed body parts and that “[w]ithout the authorizations, it will be

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exceedingly difficult to obtain all the necessary records.” Id. at 3:2-5. Defendant rebuts the notion

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that the Court’s subpoena power is sufficient because medical providers routinely resist providing

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medical records, even in the face of a subpoena, as a result “of the strong HIPPA requirements

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faced by medical providers.” Id. At 3:6-13. Defendant also reiterates its position that records from

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the Controlled Substances Task Force are relevant and compelling Plaintiff’s signature on a records

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release authorization form is appropriate.
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On September 22, 2011, the Court conducted a hearing in this matter. Between the close of

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briefing on the motions and date of hearing, Defendant had substituted counsel twice and Plaintiffs

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had substituted counsel as well. Thus, at the hearing, arguments were presented by counsel for the

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respective parties who did not participate in the briefing of the issues or underlying

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communications prior to the filing of the motion to compel. Nevertheless, counsel for the

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respective parties presented their arguments on the merits of the pending motions.

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DISCUSSION
Federal Rule of Civil Procedure 34 governs requests for production. The rule permits a
party to “serve on any other party” a request to produce or allow inspection of documents or

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tangible items that are “in the responding party’s possession, custody, or control.” Fed. R. Civ. P.

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34(a)(1). Rule 34 requests must fall within the scope of discovery as defined in Rule 26(b). Clark

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v. Vega Wholesale, Inc., 181 F.R.D. 470, 471 (D. Nev. 1998) (citation omitted).

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The parties agree that Plaintiff’s medical records are relevant. Plaintiff did not object to the

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request for controlled substance records in a timely manner and, therefore, has waived that

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objection. See Sweeney v. The UNLV Research Foundation, 2010 WL 1756875 (D. Nev.) (citing

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Senat v. City of New York, 255 F.R.D. 338, 339 (E.D.N.Y. 2009) (“there is consistent authority that

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a failure to serve timely responses to interrogatories and document requests serves as a waiver of

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objections.”); see also Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409-10 (C.D. Cal. 2005).

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The parties agree further that Plaintiff does not have actual possession or control of the medical

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records, thus, the issue turns on whether Plaintiff has “control” of the medical records for purposes

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of Rule 34.

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“Documents that are in the actual possession of a third person are deemed to be in the

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responding party’s control if [the responding party] has the legal right to obtain them.” Sweeney,

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2010 WL 1756875 *4 (citations omitted). Although “a party need not have actual possession of

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documents to be deemed in control of them,” Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D.

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Nev. 1991), the responding party must have a legal right to obtain the requested documents before

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it can be deemed to have control the documents for purposes of production under Rule 34. Id.

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“The relationship between the party and the person or entity having actual possession is central in
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each case.” Id. The requisite relationship exists when the responding party is able to command

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release of the requested documents and is usually the result of statute, affiliation, or employment.

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Vega Wholesale, 181 F.R.D. at 472.

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The question of whether the relationship between a plaintiff and her doctor is sufficient to

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establish control for purposes of compelling a response to a Rule 34 request has been answered in

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this district. The court in Clark v. Vega Wholesale, 181 F.R.D. 470 (D. Nev. 1998) held that a

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party cannot be compelled to execute an authorization for release of medical records from the

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party’s medical providers. While noting that some courts have concluded otherwise for purposes of

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the expeditious and efficient procurement of information, the court in Vega Wholesale concluded,

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as does the Court here, that Defendant can secure copies of medical records from the custodian of

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records pursuant to a Rule 45 subpoena duces tecum just as readily as Plaintiff. Id; see also Powell

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v. Texvans, Inc., 2010 WL 4791507 (D.Nev.).

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Defendant also argues that it is difficult, if not impossible, to obtain medical records with a

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Rule 45 subpoena because medical providers require a release signature from the person to whom

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the records pertain. Essentially, Defendant argues that the requested medical authorization release

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forms are necessary because medical providers fear potential repercussions stemming from

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violation of the Health Insurance Portability and Accountability Act (“HIPAA”) more than they

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fear any repercussions stemming from violating a court order. A Rule 45 subpoena is a court order

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and “[t]he issuing court may hold in contempt a person who, having been served, fails without

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adequate excuse to obey the subpoena.” Se Fed. R. Civ. P. 45(e).

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The court in Powell addressed the question of whether the Rule 45 procedure should be

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followed when requesting medical records from medical providers in light of HIPAA restrictions.

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The court held that “[t]he HIPAA regulations provide a satisfactory means for obtaining relevant

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medical records for purpose of litigation without the requirement for a signed authorization by the

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party.” Powell, 2010 WL 4791507 at *2. Indeed, HIPAA regulations provide that “[a] covered

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entity may disclose protected health information in the course of any judicial or administrative

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proceeding.” 45 C.F.R. § 164.512(e)(1). The covered entity may only disclose the “protected

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health information expresly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(i). Production
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should only occur if the information is made subject to a “qualified protective order” which is

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defined as”

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[a]n order of a court of an administrative tribunal or a stipulation by the parties
to the litigation or administrative proceeding that: (A) Prohibits the parties
from using or disclosing the protected health information for any purpose
other than the litigation or proceeding for which such information was
requested; and (B) Requires the return to the covered entity or destruction of
the protected health information (including all copies made) at the end of the
litigation or proceeding.

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45 C.F.R. § 164.512(e)(1)(v). It is clear that the statutory and regulatory framework of the HIPAA

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requirements are not mutually exclusive with the requirements of Rule 45. Medical providers can,

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and must, comply with their obligations under both in situations such as those currently before the

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Court. The appropriate remedy when a medical provider refuses to comply with a valid Rule 45

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subpoena is request for a contempt hearing under Rule 45(e).

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The Court agrees that it can be more efficient and expeditious for a responding party to

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provide written authorization for release of relevant medical records. Parties are not precluded

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from agreeing to such a framework. In fact, such cooperation is encouraged. Nevertheless, a party

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cannot be compelled to execute an authorization for release of medical records from the party’s

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medical providers under Rule 34.

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Despite this finding, the Court was encouraged by the parties’ attempts at cooperation here.

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In her response to the original request for medical authorizations, Plaintiff agreed that relevant

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releases would be provided for “provider specific authorizations.” See Ex. B attached to Def.’s

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Mot. (#8). During the hearing on this matter, the parties represented that many of the medical

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authorizations had already been provided and the remainder would be provided. Thus, although it

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will not compel the authorizations under Rule 34, the Court will hold the parties to the

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representations made in their correspondence and representations to the court.

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Plaintiff also seeks sanctions. See Pl.’s Opp’n and Counter Motion for Sanctions (#9). If a

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motion to compel is denied, a court may issue any necessary protective order under Rule 26(c) and

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must require the moving party to pay the “reasonable expenses incurred in opposing the motion”

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unless the motion was “substantially justified.” See Fed. R. Civ. P. 37(a)(5)(B). A request for

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discovery is “substantially justified” under Rule 37 if reasonable people could differ on whether a
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party was bound to comply with a discovery rule. See Pierce v. Underwood, 487 U.S. 552, 565

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(1988) (citing 8B Wright & Miller, Fed. Prac. & Proc. § 2288 (3d ed.)). Although the motion to

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compel in this matter was denied, the Court finds it was substantially justified in light of Plaintiff’s

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counsel’s continuing representation, including in response to the discovery request itself, that

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Plaintiff would sign relevant releases for provider specific authorizations. Accordingly,

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IT IS HEREBY ORDERED that Defendant’s Motion to Compel Plaintiff to Sign
Authorization Forms (#8) is denied.
IT IS FURTHER ORDERED that Plaintiffs’ Counter Motion for Sanctions (#10) is
denied.
DATED this 5th day of October, 2011.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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