Ellis et al v. Hobbs Police Department et al
ORDER by Magistrate Judge Gregory B. Wormuth granting 132 Motion to Compel. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BRANDON ELLIS, et al.,
Civ. No. 17‐1011 WJ/GBW
HOBBS POLICE DEPARTMENT, et al.,
ORDER GRANTING CITY DEFENDANTS’ MOTION TO COMPEL
PRODUCTION OF VALID RELEASES
THIS MATTER comes before the Court on City Defendants’ Motion to Compel
the Production of Valid Releases Pursuant to the Health Insurance Portability and
Accountability Act (“HIPAA”). Doc. 132. Defendants move the Court to order
Plaintiffs Artis, Ellis, and Robinson to provide updated HIPAA releases, as their
previously completed releases have now expired. Having reviewed the motion and
attendant briefing (docs. 132, 135, 136), the Court will GRANT Defendants’ Motion to
The subject of the current Motion to Compel is not a new discovery request per
se. Rather, Defendants request the extension of an answer to a previous discovery
request. In June and July of 2018, pursuant to Defendants’ discovery requests,1
Plaintiffs each signed two releases under HIPAA. Doc. 132‐8, ‐9, ‐10, Exhibits H–J.
These forms authorized the release of records for treatment dates between December
2011 and January 2019. Id. However, each authorization expires one year from its date
of execution, see id., meaning that the six signed releases expire in either June or July of
2019. Defendants will no longer be able to access Plaintiffs’ records after that time.
At about the time these HIPAA releases were signed, the discovery deadline was
extended from July 30, 2018 (doc. 26) to October 1, 2018 (doc. 36). Therefore, neither
Plaintiffs nor Defendants had any reason to believe that the one‐year expiration period
would prove insufficient. However, the deadline for termination of discovery was
subsequently extended to June 14, 2019 (doc. 116) and then to September 12, 2019 by
stipulated motion of the parties (doc. 133). Consequently, as of the present date,
discovery is ongoing in this case, but Plaintiffs’ HIPAA authorizations are set to expire
several months before the September 12, 2019 discovery deadline.
As Defendants correctly note, Local Rule 26.3(d) requires that “[i]n all cases in which the physical or
mental medical condition of a party is an issue, the party whose condition is an issue must make a good
faith effort to produce…for each healthcare provider, a signed authorization to release medical records
form, as set forth in Appendix ‘A.’” D.N.M.LR‐Civ. 26.3(d)(3). It is therefore at least arguable that
Plaintiffs were required to produce the HIPAA releases independent of Defendants’ request. However,
Defendants elected to use their discovery requests at that juncture instead of objecting, so the Court
neither reaches nor determines the Rule 26.3(d) issue.
CURRENT RELEASE REQUESTS
In their current motion, filed on May 10, 2019, Defendants request the Court to
compel production of valid, updated HIPAA releases for the period of December 2011
to May 2019.2 See doc. 132 at 9–10. Plaintiffs responded in opposition on May 24, 2019.
Doc. 135. Defendants replied on June 4, 2019, additionally requesting attorney’s fees
incurred in the litigation of the motion. Doc. 136.
In their Second Set of Requests for Production, Defendants requested updated
releases from Plaintiffs Artis, Ellis, and Robinson (“Request for Production No. 1”). See,
e.g., doc. 132‐11 at 2. Defendants initially requested releases for a time period of 2007
through 2017. See doc. 132 at 7; doc. 135 at 2. Each Plaintiff objected to Request for
Production No. 1 as “overbroad and unduly burdensome,” and offered instead to sign a
release with a date range of January 1, 2019 through June 14, 2019.3 Docs. 132‐11, 132‐12,
132‐13. In an attempt to resolve the dispute, Defendants offered to adjust the release
dates to December 2011 through May 2019—the original period of the expired releases,
plus five additional months. See doc. 132 at 8; doc. 132‐14. Plaintiffs, however, remain
firm in their refusal to provide the requested releases. See generally doc. 135.
Plaintiffs characterize Defendants as “now…want[ing] a second bite at the apple for the time frame of
2007 through December 11, 2011 and up to 2017.” Doc. 135 at 2 (emphasis in original). However,
Defendants have been quite clear that, at this time, they request releases covering the dates of December
2011 through May 2019. See doc. 132 at 9.
3 As of April 19, 2019, the date Plaintiffs responded to Request for Production No. 1, June 14, 2019 was the
deadline for termination of discovery. See doc. 116.
In order to evaluate the validity of Plaintiffs’ objections, it is necessary to
separate the issue of the expiration date of the releases from the issue of the date ranges
covered by the releases. Plaintiffs appear to have no objection to the date ranges covered
by the requested releases. The currently requested range is December 2011 through
May 2019. See doc. 132 at 8. The period of December 2011 through January 2019 was
covered by Plaintiffs’ prior authorizations without objection. See docs. doc. 132‐8, ‐9, ‐10,
Exhibits H–J. Indeed, Plaintiffs acknowledge that the present request is “duplicative” of
Request for Production No. 10, from Defendants’ first set of requests, at least with
respect to the original time frame. See doc. 135 at 2. The only new date range is from
January 2019 through May 2019. However, Plaintiffs have explicitly stated that they are
willing to sign a release covering this new period of time. See doc. 135 at 2 (“Plaintiffs
submitted an alternative medical release date range for the relevant time frame of
January 2019 through the then close of discovery, June 14, 2019.”). The Court therefore
concludes that Plaintiffs take no exception to the requested date range of December
2011 through January 2019.4
Conversely, Plaintiffs do appear to object to the updated expiration date of the
newly requested releases. That is, they object to providing updated HIPAA releases for
the same date ranges already provided, precisely because the new releases would be
Plaintiffs did indicate that they objected to the time frame of 2007 to December 2011 as “not calculated to
lead to discoverable evidence.” Doc. 135 at 2. Because Defendants no longer request releases covering
this time frame, the Court does not consider the question.
“duplicative of the previously provided medical releases.” Doc. 135 at 2. The only
material difference would be the non‐expired status of the new releases. Plaintiffs
characterize Defendants’ request for updated releases as a “second bite at the apple”
and claim that they have had “ample access to Plaintiffs’ medical records,” id.,
apparently believing that Defendants ought to have acquired and fully reviewed the
relevant medical records before the initial expiration date.
However, discovery is still ongoing in this case, a fact that was not anticipated at
the time Plaintiffs signed the standard HIPAA forms including a one‐year expiration
date. Defendants were not obliged to access the requested information at any particular
time, or to use it for any one particular purpose. Plaintiffs have established that they do
not object to Defendants’ having “access to current information on Plaintiff’s injuries,”
doc. 135 at 1. All that Defendants now request is continued access to past information
(Plaintiffs’ records from prior to January 2019) that was already previously available.
Under Rule 26(e), a party who has responded to a request for production “must
supplement its disclosure or response…in a timely manner if the party learns that in
some material respect the disclosure or response is incomplete or incorrect, and if the
additional or corrective information has not otherwise been made known to the other
parties during the discovery process or in writing[.]” Fed. R. Civ. P. 26(e)(1). In this
case, the Court finds that Plaintiffs’ response became effectively incomplete when
Plaintiffs’ HIPAA authorizations expired before the close of discovery, terminating
Defendants’ access to the information. Even assuming, arguendo, that Plaintiffs had no
duty to update their disclosures under Rule 26(e)(1), they provide no adequate or
persuasive argument for their refusal to comply with Defendants’ new requests. At
worst, Defendants will waste their time examining information that was already
examined previously, which does not appear to burden or prejudice Plaintiffs in any
Finally, Plaintiffs argue that Defendants’ motion should be denied based on
Defendants’ failure to confer in good faith before filing. See doc. 135 at 3–4. Indeed,
Local Rule 7.1 provides that all motions must include a “recitation of a good‐faith
request for concurrence,” except where the opposing party is a pro se inmate.
D.N.M.LR‐Civ. 7.1(a). The advisory committee notes of Federal Rule of Civil Procedure
26 further provide that parties must confer before filing a motion to compel. See Rule 26
Notes of Advisory Committee on 2006 amendment.
Whatever the exact contours of Defendants’ duty to confer and to seek
concurrence, the Court finds that Defendants have fulfilled it beyond question.
Defendants’ Motion to Compel includes a detailed recitation of their attempts to
communicate with Plaintiffs’ counsel, and an attached letter to Plaintiffs’ counsel
regarding the HIPAA releases. See doc. 132 at 8 (describing “City Defendants’ May 3,
2019 letter and multiple calls to Plaintiff’s counsel to determine their position on City
Defendants’ letter”); doc. 132‐14, Exhibit N (letter to Plaintiffs’ counsel dated May 3,
2019). In fact, Defendants allege—and Plaintiffs do not dispute5—that Plaintiffs’
counsel failed to respond to Defendants’ letter or calls. See doc. 132 at 8; doc. 135.
Therefore, the Court finds that Plaintiffs’ argument is utterly without basis. Under the
circumstances, Defendants made a good faith effort to confer and to seek concurrence as
to their Motion to Compel.
In their reply, Defendants also request an award of their attorney’s fees incurred
in litigating this matter. See doc. 136 at 6–7. Defendants argue that they are entitled to
such award “[b]ased on Plaintiffs’ failure to confer,” as Plaintiffs failed to respond to
their letter and phone calls regarding the instant motion. Id. at 6. Defendants cite no
legal authority in support of their entitlement. Moreover, because this request was
raised for the first time in Defendants’ reply, Plaintiffs have had no chance to respond.
Generally, new issues raised for the first time in a reply brief will not be
considered. See, e.g., Plotner v. AT&T Corp., 224 F.3d 1161, 1175 (10th Cir. 2000) (citing
Tenth Circuit’s “general rule that we do not consider issues raised for the first time in a
reply brief”); Lopez v. New Mexico, 2016 WL 9776568, at *4 (D.N.M. Oct. 11, 2016)
(declining to grant attorney’s fees requested for the first time in reply). The Court sees
Plaintiffs attached several exhibits to their response showing email exchanges between Plaintiffs’
counsel and defense counsel. See docs. 135‐1, 135‐2, 135‐3. However, these emails are dated March and
April 2019, and there is no evidence of a response to Defendants’ attempted communications in May.
no reason to make an exception here. Consequently, the Court will deny Defendants’
request for attorney’s fees.
For the foregoing reasons, Defendants’ Motion to Compel (doc. 132) is
GRANTED. Defendants’ request for an award of attorney’s fees, raised for the first time
in their reply (doc. 136), is DENIED.
IT IS THEREFORE ORDERED that Plaintiffs Artis, Ellis, and Robinson shall
produce two (2) current, signed medical and mental health HIPAA releases with a date
range from December 2011 to May 2019, authorizing medical and mental health
providers to release information to counsel for City Defendants and Dr. William Foote.
IT IS SO ORDERED.
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
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