Ruiz-Bueno, III et al v. Scott et al

Filing 140

OPINION AND ORDER granting 116 Defendants' request to withdraw 95 Motion to Compel. Plaintiff's request for attorneys' fees, not filed as a separate motion but contained within Doc. 117 , is denied. Signed by Magistrate Judge Terence P Kemp on 11/21/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John C. Ruiz-Bueno, III, et al.,:
Case No. 2:12-cv-0809
Plaintiffs,

:
JUDGE GREGORY L. FROST

v.

:
Magistrate Judge Kemp

Zach Scott, et al.,

:

Defendants.

:
OPINION AND ORDER

This wrongful death case is before the Court to resolve
three additional discovery-related motions not addressed in the
Court’s Opinion and Order dated November 14, 2013 (Doc. 139).
They are: (1) defendants’ motion to compel production of medical
records, filed on August 14, 2013 (Doc. 95); (2) defendants’
motion to withdraw that motion due to production of those records
(filed as a notice of withdrawal of the motion)(Doc. 116); and
(3) plaintiffs’ objection to the withdrawal, coupled with
(although not as a separately-filed motion) a request for
attorneys’ fees (Doc. 117).

For the reasons which follow,

defendants will be permitted to withdraw their motion to compel
without being sanctioned.
I.

Introduction

A brief description of the procedural history of the case is
required in order to place these three matters in their proper
context.
According to the motion to compel, defendants served
plaintiffs with interrogatories and document requests asking for
information about the decedent, Edward Peterson.

The motion

asserted that “Plaintiffs have failed to respond, without
justification, to Defendants’ interrogatories and requests for

production ....”

(Doc. 95, at 2).

It then notes that plaintiffs

actually agreed to produce such information, but only if
defendants agreed to a protective order governing its use and
disclosure.

Defendants’ motion took the position that the

protective order proposed by plaintiffs “imposes an entirely
unnecessary and superfluous framework of rules and oversight as
to routine discovery,” id. at 3, but defendants did not propose
an alternative order.

Rather, they stated that “Plaintiffs

cannot condition ... release [of medical information] on
submission to additional rules and protections” because
plaintiffs conceded that the information was relevant and because
the filing of the case waived any applicable physician-patient
privilege.

Although defendants appeared to acknowledge that

medical records can contain sensitive or embarrassing personal
and private information, they claimed in their motion that such
information is sufficiently protected by “[t]he rules of civil
procedure, ethical rules, and general tenets of professionalism”
and that “[n]o other protection is necessary.”

Id. at 6.

The Court conferred with counsel about this motion on August
23, 2013.

At the conference, the Court suggested that a standard

stipulated protective order might be appropriate and directed the
parties to confer concerning such an order.
had been fully briefed.

By then, the motion

Although the Court was initially advised

that the parties were unable to reach an agreement on the
fundamental issue of whether a protective order was appropriate defendants argued that a simple confidentiality agreement would
suffice - the parties eventually submitted an agreed protective
order (Doc. 113) and defendants then attempted to withdraw their
motion to compel.

Plaintiffs contend that the motion never

should have been filed and that they should be awarded attorneys’
fees for having had to brief the motion.

They argue that to

allow a party to file a meritless discovery motion and then to
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withdraw it after briefing but before the Court rules is an abuse
of the judicial process, calling for sanctions.
II.

Discussion

The Court chooses to resolve this matter in relatively brief
fashion.

Rather than determine, in this situation, if sanctions

are available either under Fed.R.Civ.P. 26(c)(3) (which
incorporates the standard for awarding fees found in Rule
37(a)(5)) or under the Court’s inherent power, the Court will
simply assume that it has the power to sanction defendants for
their conduct.

The question then becomes whether such sanctions

should be imposed.
This is not an easy question.

The premise of defendants’

motion to compel - that relevant, discoverable and nonprivileged
information must be produced without any additional conditions
attached to its disclosure - represents a serious misreading of
Fed.R.Civ.P. 26(c).

Some types of protective orders may be

granted on grounds that information being sought by an opposing
party is simply not discoverable.

That (among other reasons)

might justify an order of the type referred to in Rule
26(c)(1)(A) “forbidding the disclosure or discovery....”
However, most of the orders described in Rule 26(c) deal with the
discovery of relevant, discoverable and nonprivileged information
upon specified conditions.

Thus, the Rule allows the Court to

“issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense” such as an
order “specifying terms ... for the disclosure or discovery” language which makes no sense except in cases where the
disclosure or discovery is relevant.

Thus, to say flatly that

neither a party nor the Court may attach conditions to the
production of otherwise relevant and nonprivileged information is
simply wrong.

See also Seattle Times Co. V. Rhinehart, 467 U.S.

20, 35-36 (1984), where the Supreme Court recognized that
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“discovery ... may seriously implicate privacy interests of
litigants” and that “Rule 26(c) confers broad discretion on the
trial court to decide when a protective order is appropriate and
what degree of protection is required.”
If defendants’ motion did not move beyond that point, a good
case could be made for the imposition of sanctions on grounds
that defendants’ position was not “substantially justified” as
required by Rule 37(a)(5)(A)(ii).

However, in their reply

memorandum, defendants tempered their position to some extent,
arguing that plaintiffs’ privacy concerns could be addressed
through a confidentiality agreement rather than a protective
order.

Defendants also suggested, in their motion, that in the

experience of their counsel, protective orders were not routinely
put in place to cover the disclosure of medical information.
Perhaps a more thorough review of federal case law would
have permitted counsel to determine that, in fact, such
protective orders are routinely agreed to or imposed by federal
courts in cases where sensitive medical information is at issue.
The typical way for parties to handle the production of any type
of sensitive information - personal or commercial - is through
what many courts have described as a “blanket” protective order.
“Blanket protective orders routinely are approved by courts in
civil cases, frequently on the stipulated request of the
parties.”

Gillard v. Boulder Valley School Dist. Re.-2, 196

F.R.D. 382, 386 (D. Colo. 2000).

Such orders place the burden on

the producing party to act in good faith in designating
information as confidential, and allow for disputes over the
propriety of that designation to be resolved by the Court if the
parties cannot agree.

The most important feature of such orders,

however, is that they permit discovery to move forward without
unnecessary delay.

In more complex cases, such orders have been

described as “essential to the functioning of civil discovery.”
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Bayer AG and Miles, Inc. v. Barr Laboratories, Inc., 162 F.R.D.
456, 465 (S.D.N.Y. 1995).
Such protective orders are agreed to, or issued, in a wide
variety of cases.

Although both Gillard and Bayer were decided

in the commercial context, courts have issued protective orders
for personnel files which contain medical information, see Duling
v. Gristede’s Operating Corp., 266 F.R.D. 66 (S.D.N.Y. 2010), and
in medical products litigation where “a substantial amount of
sensitive material, including medical records and trade and
proprietary information, has been produced for discovery
purposes.”

In re Zyprexa Injunction, 474 F.Supp. 2d 385, 421

(E.D.N.Y. 2007).

The order in that case was described as

“essential to protecting litigants from the embarrassment and
oppression that would result from unnecessary pretrial public
disclosure of their private information.”

Id; see also Haas v.

Golding Transport, Inc., 2010 WL 1257990, *8 (M.D.N.C. March 26,
2010)(concluding that “blanket protective orders constitute an
appropriate means for dealing with privacy and related concerns”
and approving such an order to cover, among other things,
“medical and financial information,” areas which “implicate
privacy and other interests of the sort Rule 26(c) exists to
protect”).

The bottom line is, as the Court in United States v.

Carriles, 654 F.Supp. 2d 557, 568 (W.D. Tex. 2009) observed, that
“[t]he use of protective orders to prevent disclosure of private
medical information is ... clearly established.”
generally followed that practice.

This Court has

See, e.g., Hawkins v.

Anheuser-Busch, Inc., 2006 WL 2422596 (S.D. Ohio Aug. 22,
2006)(ordering production of plaintiff’s medical records subject
to restrictions on their use and dissemination).
Defendants argue, however, that some of the medical
information about Mr. Peterson is already contained in public
records.

To the extent that is so, a protective order as to that
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information, or similar information, would seem to be of little
value because any privacy interests in keeping such information
from the public may already have been compromised.

That does not

seem to be the main thrust of defendants’ motion, though.

It is

mostly premised on what the Court perceives as a narrow view of
the use and scope of protective orders in litigation involving
medical issues.

The fact that most states provide a privilege

for such information by statute, and that the Supreme Court has
acknowledged a constitutional dimension to “the individual
interest in avoiding disclosure of personal matters,” see Whalen
v. Roe, 429 U.S. 589, 599 (1977), suggests that the privacy
interest in personal medical information should not be taken
lightly even when disclosure of medical information is, as here,
vital to an opposing party’s defense of a medical claim.
Nevertheless, the Court declines to sanction defendants for
advancing, in apparent good faith, an argument that a protective
order in this situation represents a type of “overkill” which
could be avoided through lesser, but still effective, ways of
protecting whatever privacy interests might be implicated by
revelation of the information in question.

Defendants will

therefore be permitted to withdraw their motion without facing
sanctions.
III.

Order

Based on the foregoing, defendants’ request (Doc. 116) to
withdraw their motion for a protective order (Doc. 95) is granted
and both motions shall be removed from the Court’s pending
motions list.

Plaintiffs’ request for attorneys’ fees, not filed

as a separate motion but contained within Doc. 117, is denied.
IV.

Motion for Reconsideration

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.
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28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.
I., F., 5.

The motion must specifically designate the order or

part in question and the basis for any objection.

Responses to

objections are due fourteen days after objections are filed and
replies by the objecting party are due seven days thereafter.
The District Judge, upon consideration of the motion, shall set
aside any part of this Order found to be clearly erroneous or
contrary to law.
This order is in full force and effect, notwithstanding the
filing of any objections, unless stayed by the Magistrate Judge
or District Judge.

S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge

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