Adele v. Dunn, Jr. et al

Filing 36

ORDER Denying 29 Defendants' Emergency Motion to Compel. A Status and Dispute Resolution Conference is set for 12/4/2012 09:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. Parties shall submit a joint status report by 12:00 pm, 12/3/2012. Signed by Magistrate Judge Peggy A. Leen on 11/26/2012. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CLIFFORD ADELE,

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Plaintiff,
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vs.
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LYLE JACOB DUNN, JR., et al.,
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Defendants. )
__________________________________________)

Case No. 2:12-cv-00597-LDG-PAL
ORDER
(Emg. Mot for Court Ord - Dkt. #29)

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Before the court is Defendants’ Emergency Motion for Court Order Compelling the Southern

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Nevada VA Healthcare System to Produce Plaintiff’s Complete Medical File (Dkt. #29). The court has

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considered the Motion and Plaintiff’s Opposition (Dkt. #34).

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The motion seeks an order compelling a non-party, the Southern Nevada VA Healthcare

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System, to provide Plaintiff’s complete medical file. Counsel for the VA sent a letter to counsel for

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Defendants on October 19, 2012, denying the Freedom of Information Act (“FOIA”) request for a copy

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of the Plaintiff’s medical records. The letter advised counsel for Defendants that, pursuant to VA

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regulations, a subpoena was not sufficient to authorize disclosure of an individual’s health information

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unless a subpoena is signed by a judge or accompanied by a written authorization of the individual

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whose records are the subject of the subpoena. The motion asserts that Plaintiff refused to provide a

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medical consent and that there is no mechanism to obtain a judge-signed subpoena.

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Plaintiff opposes the motion arguing the court should exercise its authority under Rule

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26(b)(2)(C) to limit discovery of his entire VA medical file because of his privacy interest in his

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healthcare information. Plaintiff maintains that he has only waived the patient-physician privilege in

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this case to the extent of medical records reasonably related to the injuries involved in this lawsuit.

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Defendants’ request for the complete medical file is overly broad in seeking all of Plaintiff’s VA

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records for all types of medical care both related and unrelated to the injuries involved in this case.

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Plaintiff represents that the Southern Nevada VA Healthcare System does not provide orthopaedic care

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and that Plaintiff has identified all of the physicians who treated in him for the injuries he suffered in

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the accident involved in this case. Plaintiff has also assisted the Defendants in obtaining the medical

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records for these providers. Plaintiff contends that under these circumstances, Defendants have had a

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full and fair opportunity to conduct discovery regarding Plaintiff’s injury claims, and the court should

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deny the Defendants’ motion to compel Plaintiff’s complete medical file from the Southern Nevada VA

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Clinic. If the court is not inclined to deny the motion, Plaintiff requests that the court permit Plaintiff’s

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counsel to obtain the records and disclose only what is pertinent or that the court review Plaintiff’s

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records in camera.

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The subpoena duces tecum served on the custodian of records for the Southern Nevada VA

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Healthcare System asks for the complete medical file regarding any and all treatment and care rendered

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to the Plaintiff including, but not limited to, patient intake sheets, questionnaires, records, films,

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billings, etc. The court finds the subpoena is patently overbroad in that it contains no temporal or scope

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limitations. The court will, however, grant Defendants leave to apply for a more narrowly tailored

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judicially entered subpoena. The court will also direct counsel for the parties to forthwith meet and

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confer to develop a mutually acceptable narrowed subpoena or HIPAA compliant medical authorization

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release for medical records relevant to Plaintiff’s injury claims, including any preexisting conditions

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that may be relevant to Plaintiff’s injury claims in this case. The court will set a dispute resolution

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hearing in the event the parties are unable to agree on a mutually agreeable form of release or subpoena.

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Counsel for both sides are warned that the court will consider sanctions for an unreasonable failure to

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reach an agreement on such a routine matter. Accordingly,

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IT IS ORDERED;

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1.

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Defendants’ Emergency Motion for Court Order Compelling the Southern Nevada VA
Healthcare System to Produce Plaintiff’s Complete Medical File (Dkt. #29) is DENIED.

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A status and dispute resolution conference is set for December 4, 2012, at 9:00 a.m. in
courtroom 3B.
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Counsel for the parties shall submit a joint status report no later than 12:00 p.m.,

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December 3, 2012, advising the court of whether they have resolved their dispute about

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the scope of medical records to be obtained from the VA. If the parties have resolved

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their dispute the hearing will be automatically vacated.

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If the parties have been unable to resolve their dispute the joint status report shall state

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their respective positions with sufficient specificity to enable the court to resolve the

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matter without further formal briefing.

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Dated this 26th day of November, 2012.

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______________________________________
Peggy A. Leen
United States Magistrate Judge

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