McEvoy et al v. Hillsborough County et al

Filing 41

ORDER granting in part and denying in part 28 Motion to Compel Discovery; mooting requests re: 39 Stipulation. So Ordered by Magistrate Judge Landya B. McCafferty. (jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Richard McEvoy, Shelagh McEvoy,
Co-administrators of the Estate
of Kevin McEvoy
v.

Civ. No. 09-cv-431-SM

Hillsborough County et al.
O R D E R
In this civil rights and negligence action, Richard and
Sheila McEvoy (“plaintiffs”), as co-administrators of the estate
of their son, Kevin McEvoy (“Kevin”), assert claims against
Hillsborough County, and numerous employees of the Hillsborough
County House of Corrections (“HCHC” or “jail”), for allegedly
violating Kevin‟s constitutional rights and committing acts of
medical negligence that led to Kevin‟s August 25, 2008, death
while he was in custody at the HCHC.

Before the court is

plaintiffs‟ motion to compel (doc. no. 28) and defendants‟
objection thereto (doc. no. 31).
heard oral argument on the motion.

On April 14, 2011, the court
For the reasons explained

below, the motion to compel is granted in part and denied in
part.

Background1
On August 21, 2008, Kevin was arrested for receiving stolen
property, could not post bail, and was detained at the HCHC.
During the four days following Kevin‟s admission to the HCHC, he
experienced heroin detoxification and withdrawal, which caused
him to dehydrate.
pronounced dead.

On the evening of August 25, Kevin was
The medical examiner determined the cause of

death to be “cardiovascular collapse due to severe dehydration
with acute renal failure due to protracted vomiting and
inadequate volume replacement.”

Doc. No. 32 at pp. 7-8.

During the booking process, it was plain to those handling
Kevin that he was a heroin user.

Kevin had needle marks on his

arm and admitted that he was a heroin user.

On the day of his

admission, the jail deemed Kevin a suicide risk.

A nurse

notified the jail physician, defendant Charles L. Ward, Jr.,
M.D., that Kevin was a heroin user who had recently been
hospitalized for a seizure and panic disorder.
From August 21 through 25, Kevin could not keep food or
fluids down.
period.

He was observed vomiting throughout that time

Despite his protracted vomiting and insufficient fluid

intake, Kevin was not seen by a physician while at HCHC.
seen by jail nurses on five separate occasions.
1

He was

Medical notes

The factual background is drawn from plaintiffs‟ amended
complaint.
2

reveal he was provided with Tylenol, Kaopectate and Maalox
during his detention.
On August 25, Kevin was found in his cell, non-responsive and
covered in vomit.

Attempts to revive him were unsuccessful.

Kevin was transported to Elliot Hospital where he was pronounced
dead on arrival.
Plaintiffs‟ complaint contains four counts alleging that
defendants violated Kevin‟s civil rights by acting with
deliberate indifference to his serious medical needs, and two
counts alleging medical negligence.2

In a seventh count,

plaintiffs state the amount they seek in damages.
Discussion
I.

Discovery Standard Generally
“Unless otherwise limited by court order, the scope of

discovery . . . [extends to] any nonprivileged matter that is
relevant to any party‟s claim or defense -- including the
existence, description, nature, custody, condition, and location
2

Count I alleges municipal liability for deliberate
indifference to Kevin‟s serious medical needs; Counts II and
III allege individual and supervisory liability for deliberately
indifferent treatment of Kevin against HCHC Superintendent James
O‟Mara, Jr., HCHC Assistant Superintendent David Dionne, and Dr.
Charles Ward, physician and medical director at HCHC; Count IV
alleges deliberate indifference against seven corrections
officers and six nurses (although a voluntary nonsuit has been
entered against one nurse); Count V alleges medical negligence
under N.H. Rev. Stat. Ann. 507-E; and Count VI alleges
negligence against all named defendants.
3

of any documents . . ..

Relevant information need not be

admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence."
Fed. R. Civ. P. 26(b)(1).
"The purpose of pretrial discovery is to make trial less a
game of blindman's bluff and more a fair contest with the basic
issues and facts disclosed to the fullest practicable extent."
Wamala v. City of Nashua, No. 09-cv-304-JD, 2010 WL 3746008, at
*1 (D.N.H. Sept. 20, 2010) (internal quotation marks omitted).
In this court, the party moving to compel discovery over an
adversary's objection bears the burden of showing that the
information he seeks is relevant and not privileged.

Id. at *2;

Saalfrank v. Town of Alton, No. 08-cv-46-JL, 2009 WL 3578459, at
*3 (D.N.H. Oct. 27, 2009).
A party seeking broader discovery of "any matter relevant to
the subject matter involved in the action," is required, under
the rule, to show "good cause" to obtain that matter.

Fed. R.

Civ. P. 26(b)(1); see also In re Subpoena to Witzel, 531 F.3d
113, 118 (1st Cir. 2008).

The court "must limit the frequency

or extent of discovery otherwise allowed" where it determines
that:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less expensive;

4

(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit . . . .
Fed. R. Civ. P. 26(b)(2)(C).
II. Scope of Discovery Dispute
In their complaint, plaintiffs allege municipal liability
against the county for a policy and custom of tolerating
inadequate medical care at the jail.

Plaintiffs also allege

supervisory liability claims against defendants O‟Mara, Dionne,
and Ward for tolerating constitutionally deficient practices and
policies regarding healthcare at the jail, and for inadequate
training and supervision of the personnel at the jail regarding
drug detoxification, and the symptoms of withdrawal and
dehydration that flow from detoxification.

Plaintiffs further

allege that individual defendants, who are or were employees of
the jail, were deliberately indifferent to Kevin‟s serious
medical needs.

To assist in proof of these claims, plaintiffs

seek the following items in discovery:
(1) a diagram of a particular cell (cell 1D) in which Kevin
was housed while in custody;
(2) the personnel records of every named defendant;

5

(3) the identity of and records relating to any and all
inmates who underwent detoxification at the jail during the year
prior to Kevin‟s death (August 2007 through August 2008);
(4) a list of all lawsuits and/or claims filed against HCHC
since January 1, 1995, alleging bodily injury or death,
including claimant‟s name, claimant‟s counsel, the date and
forum in which the claim was filed, and the claim‟s outcome; and
(5) records pertaining to the jail‟s certification by the
National Commission on Correctional Healthcare and the American
Corrections Association, and documents pertaining to jail‟s own
internal investigation following Kevin‟s death.
Plaintiffs contend that the information sought is necessary,
or will lead to the discovery of information that is necessary,
for plaintiffs to prove their deliberate indifference claims
against the county and the supervisory officials (O‟Mara,
Dionne, and Ward), as well as their claims against the
individuals.

To the extent that the parties have not agreed on

the disposition of the plaintiffs‟ discovery requests,
defendants object (doc. no. 31).
A.

Agreement of the Parties as to Requests 1, 2, 4 and 5

At oral argument on plaintiffs‟ motion, the parties announced
that they had reached agreement on each category of discovery
listed above, except the third.

According to counsel,

6

categories 1 and 4 have been satisfied and are now moot.
Defendants have agreed to comply with plaintiffs‟ requests for
the information sought in categories 2 and 5 within a time frame
of several weeks.

The parties have filed a stipulation (doc.

no. 39) memorializing their agreement as to plaintiffs‟ second
request, having to do with defendants‟ personnel records.

Thus,

the court need only address category 3, plaintiffs‟ request for
non-party inmate medical records.
B.

Request 3: Nonparty Inmate Medical Records

Plaintiffs originally asked for the medical records of
inmates who underwent drug or alcohol detoxification or
withdrawal during the three-year period before Kevin‟s death
(2006 through 2008).

Defendants objected, arguing that the

request was overly burdensome and that disclosure would violate
confidentiality protections under both federal and state law.
To address confidentiality concerns, plaintiffs proposed a
protective order limiting the use of the records to this lawsuit
and requiring that at the close of the litigation, all records
will be either returned to the defendants or destroyed.

In

response to defendants‟ undue burden argument, plaintiffs
narrowed the request to the one-year period preceding Kevin‟s
death (August 25, 2007 – August 25, 2008).

7

Defendants maintain their objections.

They argue that the

proposed protective order is insufficient to protect
confidentiality.

Further, defendants argue that even with the

narrowed time frame, the jail will be required to manually
review paper medical records of approximately 5,500 inmates, as
the jail has no electronically searchable database of inmate
records.
Further complicating the review, according to defendants, is
the fact that, prior to Kevin‟s death, the jail did not maintain
any sort of index or documentation protocol (such as a “watch
sheet”), to track an inmate‟s opiate withdrawal.

Defendants

state that requiring them to comply with plaintiffs‟ request
would cost the jail an amount that “cannot be calculated.”
III. Plaintiffs' Need for the Discovery
As explained above, the sole dispute before the court
concerns plaintiffs' entitlement to discover the nonparty inmate
medical records for the year preceding Kevin‟s death.

The court

first assesses plaintiffs' need for the discovery by addressing
the relevant substantive law.

The court then considers each of

defendants‟ objections to disclosure.
As plaintiffs seek this discovery to prove their deliberate
indifference and municipal liability claims, a discussion of the
relevant law follows.

8

A.

Deliberate Indifference

Medical treatment in prison, to offend the constitution, must
involve “acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.”
Rullan, 485 F.3d 150, 156 (1st Cir. 2007).

Ruiz-Rosa v.

A pretrial

detainee‟s interest in not being subjected to unconstitutional
conditions of confinement is protected by the Fourteenth
Amendment, and the parameters of such an interest are
coextensive with the Eighth Amendment‟s protection of a
convicted inmate from cruel and unusual punishment.
Surprenant v. Rivas, 424 F.3d 5, 18 (1st Cir. 2007).

See
A prisoner

claiming a violation of his Eighth Amendment right to adequate
medical care during his incarceration must prove that the
defendants‟ actions amounted to “deliberate indifference” to the
inmate‟s “serious medical need.”

Braga v. Hodgson, 605 F.3d 58,

61 (1st Cir. 2010); see Surprenant, 424 F.3d at 18-19 (pretrial
detainee must show defendant was deliberately indifferent to his
health and safety to allege a constitutional violation).
“Deliberate indifference” requires more than a showing of
medical negligence, instead, requiring proof of an intention
“wantonly to inflict pain.”

Braga, 605 F.3d at 61; see

Surprenant, 424 F.3d at 19 (deliberate indifference mental state
akin to criminal recklessness).

9

Kevin was a pretrial detainee at the HCHC when he died.
Accordingly, Kevin‟s interest in constitutionally adequate
medical care was protected by the Fourteenth Amendment.
Surprenant, 424 F.3d at 18.

See

To prove a violation of that right,

plaintiffs must demonstrate that defendants, with deliberate
indifference, denied Kevin access to medical care adequate to
treat his serious medical need.

See Braga, 605 F.3d at 61;

Surprenant, 424 F.3d at 18.
B.

Municipal Liability

A municipality or other local government may be
liable under [42 U.S.C. § 1983] if the governmental
body itself subjects a person to a deprivation of
rights or causes a person to be subjected to such
deprivation. But, under § 1983, local governments
are responsible only for their own illegal acts.
They are not vicariously liable under § 1983 for
their employees‟ actions. Plaintiffs who seek to
impose liability on local governments under § 1983
must prove that “action pursuant to official
municipal policy” caused their injury. Official
municipal policy includes the decisions of a
government‟s lawmaker, the acts of its policymaking
officials, and practices so persistent and
widespread as to practically have the force of law.
These are actions for which the municipality is
actually responsible.
Connick v. Thompson, ___ U.S. ___, 131 S. Ct. 1350, 1359 (2011)
(emphasis in original) (quoting Monell v. N.Y.C. Dep‟t of Soc.
Servs., 436 U.S. 658, 691 (1978)) (other internal citations and
quotation marks omitted).

In certain circumstances, “a local

government‟s decision not to train certain employees about their

10

legal duty to avoid violating citizens‟ rights may rise to the
level of an official government policy for purposes of § 1983.”
Connick, 131 S. Ct. at 1359 (describing municipality‟s
culpability for a deprivation of rights as “at its most tenuous
where a claim turns on a failure to train.”).

A municipality or

local government may be found to be deliberately indifferent to
the violation of a person‟s rights when policymakers choose to
retain a program of which they have “actual or constructive
notice that a particular omission in their training program
causes [municipal] employees to violate citizens‟ constitutional
rights.”

Id. at 1360 (citing Bd. of Comm‟rs of Bryan Cnty. v.

Brown, 520 U.S. 397, 407 (1997)).
Thus, to prove municipal liability, plaintiffs must show that
the defendant HCHC officials were aware of and tolerated the
medical defendants‟ provision of constitutionally inadequate
medical care to inmates going through detoxification from drugs
or experiencing dehydration.

Plaintiffs must demonstrate not

only that the practices and medical protocol employed, such as
they were, were pervasive enough to be considered “custom or
policy,” but must also prove that the municipal defendants were
aware of that policy and, by allowing it to continue, were
deliberately indifferent to the constitutional rights of the

11

inmates receiving that care.

See Connick, 131 S. Ct. at 1359-

60.
To accomplish this, plaintiffs must demonstrate that there
were other inmates in medical situations comparable to Kevin‟s,
i.e., going through drug detoxification and withdrawal and/or
experiencing dehydration, for whom the medical care provided was
constitutionally inadequate.

Plaintiffs must show that these

prior incidents gave the municipality actual or constructive
notice of the unconstitutionality of the medical care provided
in those situations, and that the municipality participated in
the harmful act or acts by promulgating and/or tolerating the
custom or policy of providing such care.

See id.

The court finds plaintiffs have demonstrated a need for
access to the medical records, for the one-year period prior to
Kevin‟s death, of any inmate who received any medical treatment
for detoxification or withdrawal from any drug, excepting
alcohol, and/or who received any medical treatment for
dehydration, beyond the initial HCHC intake interview.3

3

The

The court understands that the HCHC handled alcohol
withdrawal entirely differently than detoxification and
withdrawal from other drugs. As there is no dispute as to that
difference, and the HCHC protocol for dealing with alcohol
withdrawal has been provided to plaintiffs, the specific medical
records of inmates who experienced alcohol, but not drug,
detoxification and withdrawal at the HCHC are unlikely to be
relevant to any issue in dispute in this matter, and plaintiffs
12

court now weighs this need against defendants‟ objections on
grounds of confidentiality and undue burden.
IV. Defendants‟ Objections
A.

Confidentiality
1.

Choice of Law

Assertions of privilege in federal court in cases dealing
with federal questions are governed by federal law.
Evid. 501.

See Fed. R.

State statutes, while binding on state courts

determining privilege, do not bind federal courts deciding
federal questions.

See Green v. Fulton, 157 F.R.D. 136, 139 (D.

Me. 1994) (citing In re Hampers, 651 F.2d 19, 21-24 (1st Cir.
1981)).

Federal privilege law applies to state law claims

litigated in federal court pursuant to the federal court‟s
supplemental jurisdiction, rather than under the court‟s
diversity jurisdiction.

See Krolikowski v. Univ. of Mass., 150

F. Supp. 2d 246, 248 (D. Mass. 2001); Fed. R. Evid. 501 advisory
committee‟s note (citing D‟Oench, Duhme & Co. v. FDIC, 315 U.S.
447, 471 (1942) (Jackson, J. concurring)).
Even where federal courts are not required to apply state
evidentiary privileges, however, federal courts may, and in some
cases should, recognize state evidentiary privileges where to do

have failed to demonstrate sufficient facts to establish a need
for the disclosure of those records.
13

so would not come at substantial cost to federal procedures and
substantive policies.

See Green, 157 F.R.D. at 139; see also

Hampers, 651 F.2d at 22 (discussing factors to be balanced by
federal court in weighing whether or not to recognize a state
statutory privilege).
The specific issue before this court, whether or not the
requested records are discoverable to help plaintiffs prove
municipal liability under § 1983, is a federal question before a
federal court.

Accordingly, Fed. R. Ev. 501 applies, and the

court, in making its determination, must decide questions of
privilege based on federal law.

See Krolikowski, 150 F. Supp.

2d at 248; see also N.O. v. Callahan, 110 F.R.D. 637, 640 (D.
Mass. 1986) (evidentiary privileges in federal courts governed
by Fed. R. Evid. 501 which also applies to pretrial discovery
disputes).

The court also finds, however, that its ruling is

consistent with state privilege law.
2.

Privacy Interests

Defendants object to the disclosure of private information of
nonparty inmates, based in part on the privacy rights of those
inmates and in part on state and federal statutes limiting
disclosure of private medical information.

The court, in

deciding whether or not to allow discovery of certain
information, balances Fed. R. Civ. P. 26(b)(1), “which allows

14

discovery relating to any relevant, non-privileged information,”
and broader discovery upon a showing of “good cause,” against
the privacy interests of nonparties to the dispute.

See O‟Neil

v. Q.L.C.R.I., Inc., 750 F. Supp. 551, 556 (D.R.I. 1990).
The Fourteenth Amendment, serving as a foundation for an
individual right of privacy, protects an individual‟s right to
avoid disclosure of his personal and private matters.

See

United States v. Mazzola, 217 F.R.D. 84, 88 (D. Mass. 2003)
(citing Whalen v. Roe, 429 U.S. 589, 599-600 & n. 23 & 24
(1977)).

“At best, however, the Constitution „provides

qualified protection for medical records.‟”
at 88 (emphasis in original).

Mazzola, 217 F.R.D.

Both the individual right to

privacy in avoiding disclosure of private medical information,
and a federal policy protecting medical records, must be
balanced against the interest of the plaintiffs here in
examining private medical records.

See id. at 88-89 (citing

United States v. Polan, 970 F.2d 1280, 1285 (3d Cir. 1992)
(“individual‟s privacy interest in medical records must be
balanced against the legitimate need of others in obtaining
disclosure”)).

15

3.

Statutory Privileges
a.

HIPAA

The Health Insurance Portability and Accountability Act of
1996, 42 U.S.C. §§ 1320d, et seq., (“HIPAA”) “governs the
confidentiality of medical records and regulates how and under
what circumstances covered entities may use or disclose
protected health information about an individual.”

Cora-Reyes

v. P.R. Aqueduct & Sewer Auth., No. 08-1239 (CVR), 2010 WL
2670872, at *5 (D.P.R. 2010) (citing HIPAA) (internal quotations
omitted).

“‟Protected health information‟” includes all

individually identifiable health information maintained or
transmitted in any form.”

Id.

HIPAA generally prohibits the

use or disclosure of an individual‟s “protected health
information” without the individual‟s authorization.

Id.

“Protected health information” may, however, be disclosed, “[i]n
response to an order of a court” provided that only the
protected health information expressly authorized by such order
is disclosed.

45 C.F.R. § 164.512(e)(1)(i).4

4

As required by HIPAA, if the court, at any time, orders any
personal identifying information disclosed, such an order will
include an appropriate protective order prohibiting the parties
from using or disclosing any protected health information for
any purpose other than as required by this litigation. The
protective order would further direct the return or destruction
of the protected health information at the end of the
litigation. See 45 C.F.R. § 164.512(e)(1)(v).
16

HIPAA itself does not create a private right of action.

See

Miller v. Nichols, 586 F.3d 53, 59 (1st Cir. 2009).
Accordingly, any interest in nondisclosure of individual medical
records held by a nonparty inmate is not enforceable through
HIPAA, and the court will not create a cause of action under
HIPAA where the statute has not done so.

See id. at 60.

While

violation of HIPAA would not be actionable as to the individual
inmate whose private information was disclosed, that statute
still demonstrates a “strong federal policy” of protecting
medical records.

See Mazzola, 217 F.R.D. at 88 (quoting United

States v. Sutherland, 143 F. Supp. 2d 09, 612 (W.D. Va. 2001)).
b.

PHSA

The Public Health Service Act, 42 U.S.C. § 290dd-2 (“PHSA”),
mandates that:
(a) Records of the identity, diagnosis, prognosis,
or treatment of any patient which are maintained in
connection with the performance of any program or
activity relating to substance abuse education,
prevention, training, treatment, rehabilitation, or
research, which is conducted, regulated, or directly or
indirectly assisted by any department or agency of the
United States shall, except as provided in subsection
(e) of this section, be confidential and be disclosed
only for the purposes and under the circumstances
expressly authorized under subsection (b) of this
section.
. . .
(b)(2) Whether or not the patient, with respect to
whom any given record referred to in subsection (a) of

17

this section is maintained, gives written consent, the
content of such record may be disclosed. . . [i]f
authorized by an appropriate order of a court of
competent jurisdiction granted after application showing
good cause therefore, including the need to avert a
substantial risk of death or serious bodily harm. In
assessing good cause the court shall weigh the public
interest and the need for disclosure against the injury
to the patient, to the physician-patient relationship,
and to the treatment services. Upon granting of such
order, the court, in determining the extent to which any
disclosure of all or any part of any record is necessary,
shall impose appropriate safeguards against unauthorized
disclosure.
42 U.S.C. § 290dd-2 (emphasis added).

Defendants have argued

that the statute applies to the inmate medical records held at
the HCHC, to the extent those records may be related to
substance abuse.

The court will presume for purposes of this

order that the HCHC is an agency subject to the mandates of the
PHSA and that the content of the records would fall within the
reach of PHSA.

As is true under HIPAA, disclosure of the

requested information under PHSA is permissible if made pursuant
to an order of this court.
c.

RSA 329:26

N.H. Rev. Stat. Ann. (“RSA”) 329:26 is the state law that
protects the confidentiality of communications between doctors
and their patients and protects doctors from being required to
disclose their patients‟ private medical records.

In order for

a court to “abrogate [a patient‟s] statutory privileges and
compel discovery of his medical records, it ha[s] to find that

18

the records [are] essential to the plaintiffs‟ case. . . .

This

means that the records must not only be relevant, but also
unavailable from any other source.”

Petition of Haines, 148

N.H. 380, 381, 808 A.2d 72, 74 (2002) (internal quotations and
citations omitted).
B.

Undue Burden

In addition to confidentiality, defendants object to
disclosure on grounds of "undue burden."

Defendants argue that,

even if the request for medical records is limited to one year
prior to Kevin‟s death, they will be significantly burdened
because the review will require a manual review of approximately
5,500 paper medical records.

The HCHC does not maintain

computerized or electronically searchable records.
The federal rules of civil procedure allow the court to limit
or prohibit discovery as required “to protect a party or person
from annoyance, embarrassment, oppression, or undue expense.”
See Crawford-El v. Britton, 523 U.S. 574, 599 (1998) (citing
Fed. R. Civ. P. 26(c)); see also Wells Real Estate Inv. Trust
II, Inc. v. Chardon/Hato Rey P‟ship, S.E., 615 F.3d 45, 58 (1st
Cir. 2010) (trial court enjoys broad discretion in ruling on
pre-trial management matters, including requests to compel
discovery); Braga, 605 F.3d at 59 (same).

Under Rule 26(c), the

trial court must balance the burden to the nonmovant in allowing

19

the requested discovery against the likely benefit of the
discovery to the movant.

See Gill v. Gulfstream Park Racing

Ass‟n, Inc., 399 F.3d 391, 400 (1st Cir. 2005).
V.

Legal Analysis
Having weighed defendants' objections, the court concludes

that disclosure of the nonparty inmate medical records, subject
to redactions to remove identifying information, is warranted.
First, with respect to defendant's "undue burden" objection,
the court is cognizant of the burden imposed on defendants in
conducting this review and is aware of the amount of time,
effort, and cost that will be expended by the review of these
records.

While the court recognizes the burden, the court

finds, under the circumstances, that the burden is not “undue.”
Plaintiffs have asserted a clear need for the records
requested in order to prove their municipal liability claim.
Plaintiffs have no means of obtaining the information sought on
their own as the records are exclusively in the defendants‟
possession.

Plaintiffs have already narrowed the scope of their

request to one-third of their original time frame.

The court

further limits its order to records of inmates who received some
medical treatment, beyond an intake interview, for drug
detoxification and withdrawal and/or dehydration, excluding

20

alcohol detoxification unless it also was accompanied by
dehydration.
While 5,500 inmates may have passed through the HCHC during
the relevant one-year time frame, it is likely that a large
number of those inmates received no medical care at all.
Accordingly, the review of a large number of the records, even
by hand, would need to be only cursory – inmates who received no
medical treatment, for example, would require almost none of
defendants‟ time.

Further, records of inmates who received

minimal medical care for issues other than those relevant here,
and who therefore did not generate a significant medical record,
would be quickly identifiable, and would not take an inordinate
amount of time to review.5
For these reasons, the court finds that the burden on
defendants to produce the redacted records of all inmates who
received medical treatment, beyond an intake interview, for drug
(and not alcohol) detoxification or withdrawal, and/or
dehydration, while significant, is not undue under the
circumstances presented by the case.
5

While the fact that the records in question must be
manually reviewed does present a burden to defendants, the court
notes that to relieve defendants of discovery obligations on
this basis alone would, in effect, reward defendants for
inefficient record-keeping by allowing them to provide less
information to plaintiffs here than the court would award a
plaintiff who brought suit against a defendant that utilized
modern and efficient record-keeping systems.
21

Second, with respect to defendants' objection on grounds of
confidentiality, the court orders the disclosure of records to
occur, at least in the first instance, in such a way to avoid
statutory or common law privilege issues.

HIPAA, the PHSA, and

RSA 329:26 govern the disclosure of private medical information
that can be identified with a particular patient.

Medical

records that do not contain references that would identify an
individual patient are not protected from disclosure by those
statutes.

For reasons explained in this order, any records

ordered disclosed shall be redacted to obscure any information
that might identify any individual as the person to whom the
record applies.
Accordingly, defendants are directed to number each record
produced to plaintiffs in accordance with this order so that the
records can be specifically identified and referenced without a
patient name.

The record shall be referred to by that number in

all documents and argument unless and until the court authorizes
any further disclosure of identifying information of the inmate
patient.

Where, as here, no identifying information has been

ordered disclosed, no privilege or privacy right is implicated
under any of the sources of privilege proffered by defendants in
their objection to the disclosure of the nonparty inmate records
in plaintiffs‟ third discovery request.

22

Should plaintiffs, after reviewing the redacted records, seek
disclosure of any identifying information of any of the inmates
to whom the records pertain, the plaintiffs must so petition the
court.

Plaintiffs will have to demonstrate that they have a

“legitimate need” for the identifying information.
970 F.2d at 1285.

See Polan,

Specifically, plaintiffs will have to

demonstrate, with particularity, as to each inmate individually
about whom identifying information is sought, that plaintiffs
need information that is not contained within the redacted
record and that could reasonably be expected to be obtained by
identifying the individual associated with the record.
It will be insufficient for plaintiffs to assert a general
desire to interview any former inmate who was treated for drug
detoxification or withdrawal, and/or dehydration at the HCHC.
It is unlikely that defendants will dispute the accuracy of the
contents of the HCHC‟s medical records.

Evidence of the

information in the medical record, to the extent it is
admissible, is available through the HCHC defendants who
prepared the records.

Plaintiffs, to secure identifying

information, must demonstrate what information they hope to
procure through identification of the inmate patients that will
assist in proving their case, and that that information is not
available to plaintiffs without the identification of the

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nonparty inmate.

Plaintiffs will also have to demonstrate that

their need for identifying information is sufficient to overcome
any statutory privilege prohibiting or limiting the disclosure
of private medical information.

Further, if plaintiffs seek

identifying information for any individual nonparty inmate,
plaintiffs will be required to demonstrate not only why the
identifying information of the inmate is necessary for the
successful prosecution of this action, but also why that
necessity outweighs the privacy interests of the nonparty
inmates in nondisclosure.

See Mazzola, 217 F.R.D. at 88-89.

In sum, the balance of interests weighs in favor of granting
plaintiffs‟ request, subject to the above-described limitations
as to what records are to be disclosed, and the disclosure of
identifying information in those records.
Conclusion
With respect to requests 1, 2, 4 and 5 in plaintiffs‟ motion
to compel (doc. no. 28), the motion is DENIED.

Because the

parties entered into an agreement at oral argument, as partially
documented in a stipulation (doc. no. 39), those requests as
moot.
As to request 3, plaintiffs‟ motion is GRANTED subject to the
following limitations:

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1.

Defendant HCHC is to produce to plaintiffs copies of HCHC

inmate medical records for the year prior to Kevin‟s death, in
which the inmate who is the subject of the record was treated at
the HCHC for either: (1) drug detoxification and withdrawal
(excluding those inmates who experienced only alcohol
detoxification and withdrawal without dehydration), and/or (2)
dehydration.
2.

Defendant HCHC, prior to production of the records, is to

redact any information in the records that would tend to
identify the inmate to whom the record pertains.

Each inmate

for whom a record is provided is to be identified by a number
assigned by defendant prior to production.
3.

The requested records are to be provided to plaintiffs

within twenty-one days of the date of this Order.
4.

To obtain identifying information for any inmate for whom

a redacted record has been produced, plaintiffs must first
petition the court for an order to release the identifying
information.

Such petition shall show good cause why the

identification will contain or lead to essential evidence beyond
what is contained in the redacted records.

Upon good cause

shown, with specificity, for a particular inmate‟s record, the
court will consider whether disclosure of that inmate‟s identity
is warranted under applicable law.

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To the extent plaintiffs‟ motion seeks additional information
in discovery not agreed to by defendants at oral argument, or
specifically allowed here, the motion is DENIED.
SO ORDERED.

_______________________________
Landya B. McCafferty
United States Magistrate Judge
Date:

May 5, 2011

cc:

John A. Curran, Esq.
Jonathan A. Lax, Esq.
Joseph F. McDowell, III, Esq.
Jeffrey B. Osburn, Esq.

LBM:jba

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