Bagley et al v. The New York State Department of Health
MEMORANDUM AND ORDER re 70 - 72 - 73 - 78 . As explained in the attached Opinion, the Court orders the defendants to produce relevant ESI without redaction, but subject to a carefully tailored, HIPAA-qualified protective order that protects the pri vacy interests of putative class members and other non-parties. The protective order shall provide that: (1) access to and dissemination of any information produced is limited to the parties' attorneys only; (2) the parties are prohibited fro m using or disclosing protected health information outside of this litigation or for a purpose other than that for which it was requested in this litigation; and (3) any information provided in response to or subject to the protective order must be returned to the provider or destroyed at the end of this litigation. See 45 C.F.R. § 164.512(e)(v). The parties are DIRECTED to meet and confer to draft the terms of a proposed protective order and to submit their proposal to the Court by 12/18/2017. If the parties cannot agree on a particular issue, they shall include a brief letter explaining the dispute when they submit the proposed order, and the Court will resolve any disputes regarding the terms of the confidentiality order at the conference scheduled for 12/19/2017. So Ordered by Magistrate Judge Cheryl L. Pollak on 12/7/2017. (Blase, Brendan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHELLE BAGLEY et al.,
MEMORANDUM AND ORDER
15 CV 4845 (FB) (CLP)
-againstTHE NEW YORK STATE DEPARTMENT
OF HEALTH et al.,
POLLAK, United States Magistrate Judge:
Named plaintiffs Michelle Bagley, Gary Milline, Hamilton Smith, and Marcella Urban
(collectively, “plaintiffs”) filed this putative class action on August 18, 2015 against the New
York State Department of Health, the Commissioner of the New York State Department of
Health, and Visiting Nurse Association Health Care Services, Inc., d/b/a VNA of Staten Island
(collectively, “defendants”). The plaintiffs challenge the design and administration of the
Nursing Home Transition and Diversion (“NHTD”) waiver program, and allege that “[b]ut for
[d]efendants’ failure to design and administer New York’s Medicaid Plan in accordance with
federal law and regulations, [plaintiffs] would be able to maintain their dignity and independence
by safely receiving the care that they need through home- and community-based Medicaid
services.” (Compl. ¶ 2, Aug. 18, 2015, ECF No. 1). The plaintiffs seek declaratory and
injunctive relief, as well as attorneys’ fees and costs.
Presently before the Court is the parties’ dispute regarding whether and under what
conditions electronically stored information (“ESI”) relating to plaintiffs’ claims should be
produced. Specifically, the parties disagree about whether the ESI should be redacted prior to
production and, if redaction is appropriate, how much information should be redacted.
Defendants’ submissions establish that requiring redactions will add several weeks, if not
months, to the timeline for production of ESI, and plaintiffs have established that they would
face an undue burden in seeking to certify a class if they are not allowed to discover information
regarding putative class members that contains sufficient detail to render it useable. The Court
thus concludes that requiring redactions as proposed by the defendants would result in undue
burden and delay, which militates strongly in favor of requiring production without redactions.
Furthermore, the privacy interests of putative class members in the information sought,
which is indispensable to the class certification inquiry, can be adequately addressed through a
comprehensive protective order. See, e.g., Babbitt v. Albertson’s, Inc., No. 92 CV 1883, 1992
WL 605652, at *5 (N.D. Cal. Nov. 30, 1992); see also Federal Judicial Center, Manual for
Complex Litigation § 21.14 (4th ed. 2004). Courts examine precertification discovery requests
that would reveal contact information of putative class members with significant circumspection,
lest precertification discovery facilitate an attorney’s improper attempts to acquire more
individual clients instead of furthering resolution of the putative class actions. This concern has
significantly less force in this context, however, where plaintiffs seek only injunctive relief.
On the other hand, the Court recognizes the sensitive nature of the information contained
in these files, some of which may include information protected by the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104–191, 110 Stat. 1936
(1996), and its implementing regulations. See, e.g., 42 U.S.C. § 1320d(4) (defining “health
information”); id. § 1320d(6) (defining “individually identifiable health information”); 45 C.F.R.
§ 160.103 (providing that “[p]rotected health information means individually identifiable health
information [subject to certain exceptions]”). However, HIPAA does not place medical records
outside the reach of discovery:
The regulations promulgated to implement [HIPAA] explicitly
contemplate that both state and federal courts will issue protective
orders in the form of a “HIPAA-Qualified Protective Order” to
allow covered health providers to disclose a patient’s medical
information. See 45 C.F.R. §§ 164.512(e)(i)-(ii). To enable a
covered entity to release such information, the protective order must
specifically provide that: (1) the parties are prohibited from using
or disclosing protected health information for a purpose other than
that for which it was requested, and (2) any information provided in
response to such an order must be returned to the provider or
destroyed at the end of the litigation. See 45 C.F.R.
Johnson v. Federal Bureau of Prisons, No. 16 CV 3919, 2017 WL 5197143, at *2 (E.D.N.Y.
Nov. 9, 2017). “Thus, federal courts routinely issue protective orders to ensure the
confidentiality of medical records,” as the nature of the information sought and the protection
and procedure provided by HIPAA and related regulations constitute a showing of “good cause”
within the meaning of Rule 26(c)(1) of the Federal Rules of Civil Procedure. Id.
After a review of the information sought, and based on its familiarity with the case gained
through two years of pretrial supervision, the Court is confident that the instant discovery is
sought entirely for proper purposes and is indispensable to the issue of class certification. To the
extent that the information sought also relates to the merits of the claims, this case presents
circumstances in which it is appropriate to allow some merits discovery prior to certification.
See Manual for Complex Litigation § 21.14 (explaining that “[a]llowing some merits discovery
during the precertification period is generally more appropriate for cases that are large and likely
to continue even if not certified”).
The Court therefore orders the defendants to produce relevant ESI without redactions, but
subject to a carefully-tailored protective order in order to protect the privacy interests of putative
class members and other non-parties. The protective order shall provide that: (1) access to and
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