Jackson, et al v. Fort Stanton Hosp, et al
Filing
2240
MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen following 2233 Discovery Hearing and letter briefs. Defendants may produce the databases in an anonymized format as long as they include a reliable indication of disability level for each individual. (Attachments: # 1 Supplement Costanzo Letter of August 28, 2018, # 2 Supplement Grubel Letter of August 30, 2018) (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WALTER STEPHEN JACKSON, et al.,
Plaintiffs,
vs.
CIV 87-0839 JP/KBM
LOS LUNAS CENTER FOR PERSONS with
DEVELOPMENTAL DISABILITIES, et al.,
Defendants,
and
ARC of NEW MEXICO,
Intervenors,
and
MARY TERRAZAS, et al.,
Intervenors pro se.
MEMORANDUM OPINION AND ORDER
REGARDING DATABASE DISCOVERY DISPUTE
I previously summarized the history of this case in my July 26, 2018 Memorandum
Opinion and Order (Doc. 2223), and I will repeat here only what I find necessary to explain the
instant discovery dispute. In that opinion, I found that Plaintiffs are entitled to limited discovery
regarding DDSD waiver participants who are not Jackson class members. This limited discovery
arises from the Tenth Circuit’s remand of this case to Judge Parker with instructions that “the
court should consider the broader question of whether the State is meeting the requirements of
the Fourteenth Amendment and the Rehabilitation Act by means other than those stated in the
consent decrees.” Jackson v. Los Lunas Cmty. Program, 880 F.3d 1176, 1206 (10th Cir. 2018).
In doing so, the court is to “make up-to-date findings” and if no violations of federal or
constitutional law are found, “assess the durability of that compliance.” Id. at 1207.
Thus, I found that in the area of supported employment, Plaintiffs may need some
information about non-class members to demonstrate a continuing violation of Section 504 under
the theory that the State’s policies and practices discriminate against the more severely disabled
while accommodating the needs of the less severely disabled. Specifically, certain databases
were identified that could include relevant information to enable a comparison of the delivery of
supported employment services to varying disability levels. I requested that the parties confer
and obtain the necessary expertise to permit efficient disclosure of that information in a
meaningful manner.
Plaintiffs seek each complete database to enable the tracking of data for each identified
individual. They contend that disclosure pursuant to a qualified protective order will adequately
guard the protected health information of the non-Jackson class members. Defendants disagree
and point to HIPAA’s directive that “[w]hen using or disclosing protected health information . . .
[it] must make reasonable efforts to limit protected health information to the minimum necessary
to accomplish the intended purpose of the use, disclosure, or request.” 45 C.F.R. § 164.502.
Given this requirement, Defendants propose providing the databases without names or other
unique identifiers to meet their HIPAA obligations. Plaintiffs call this proposal “unworkable,
because plaintiffs need to be able to track unique individuals across multiple defendant agency
databases. . . .” Costanzo Letter of August 28, 2018 at 1.
The relevance of the non-class member data, however, lies in its comparison of groups,
not individuals. The SIS score of each individual or the DVR “Significance of Disability Code”
score provide an adequate assessment of disability level to enable grouping for meaningful
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comparisons of the delivery of services. Plaintiffs fail to demonstrate “why the anonymized data
would not allow for them to draw conclusions as to access” between the severely disabled group
and less disabled group. In the absence of such a showing, I agree with Defendants that “specific
data that can be tied to individuals [constitutes] an improper and unnecessary intrusion into the
privacy rights of third parties and on balance the privacy rights of third parties should prevail
over Plaintiffs[’] speculative request for information not necessary to support their claims.”
Grubel Letter of August 30, 2018 at 3.
Wherefore,
IT IS HEREBY ORDERED that Defendants may produce the databases in an
anonymized format as long as they include a reliable indication of disability level for each
individual.
UNITED STATES MAGISTRATE JUDGE
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