Equal Employment Opportunity Commission v. Midwest Regional Medical Center LLC

Filing 36

ORDER granting in part and denying in part 14 Plaintiff's Motion for Protective Order and to Quash Subpoenas Issued by Defendant for Medical Records of the Charging Party (as more fully set out in order). Signed by Honorable Vicki Miles-LaGrange on 4/30/2014. (ks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
MIDWEST REGIONAL MEDICAL
CENTER, LLC.,
Defendant.

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Case No. CIV-13-789-M

ORDER
Before the Court is plaintiff’s Motion for Protective Order and to Quash Subpoenas
Issued by Defendant for Medical Records of the Charging Party and Brief in Support (“Motion
for Protective Order and to Quash Subpoenas”), filed January 02, 2014. On January 20, 2014,
defendant filed its response, and on January 24, 2014, plaintiff filed its reply. Based on the
parties’ submissions, the Court makes its determination.
I.

Background
Between the dates of December 26 and 27, 2013, defendant served subpoenas duces

tecum on the following medical providers: Skin Cancer Treatment Center, R.J. Langerman, Jr.
D.O., Jeffery M. Thompson, M.D., and Eric West, M.D. Each of the subpoenas commanded the
production of the following:
A complete copy of any/all medical records in your possession for
Janice Withers1 (a/k/a Janice Buck) . . . including but not limited to
all physician reports, progress notes, intake materials, patient
statements and information, nursing home notes, diagnostic tests
results, radiology, laboratory records, correspondence, photographs
and all other materials contained within the complete medical file.
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Janice Withers, is the charging party and the individual for whom the plaintiff seeks
relief in this case.

Notice of Subpoena Duces Tecum, attached as Exhibit 3 to Plaintiff’s Motion for Protective
Order and to Quash Subpoenas. Plaintiff was served notice of the subpoenas electronically on
December 24, 2014.
II.

Discussion
Plaintiff now moves the Court for a protective order and to quash the four (4) subpoenas

duces tecum. Plaintiff asserts that the subpoenas should be quashed because (1) they were issued
without requisite notice; (2) the subpoenas are overbroad as to temporal scope and subject
matter; and (3) the subpoenas do not comply with the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”).
A.

Notice

Plaintiff asserts that defendant violated Federal Rule of Civil Procedure 45(b)(1) when it
provided plaintiff notice of the subpoenas at the same time it mailed the subpoenas to the
medical providers. Plaintiff’s Motion for Protective Order and to Quash Subpoenas at 11. Rule
45(b)(1) provides, in pertinent part:
If the subpoena commands the production of documents,
electronically stored information, or tangible things or the
inspection of premises before trial, then before it is served, a notice
must be served on each party.
Fed. R. Civ. P. 45(b)(1). “[T]he 1991 Advisory Committee Notes to Rule 45 indicate that the
purpose of the notice requirement is to provide opposing parties an opportunity to object to the
subpoena.” Butler v. Biocore Med. Techs., Inc., 348 F.3d 1163, 1173 (10th Cir. 2003).
Defendant provided notice to plaintiff electronically on December 24, 2013, the same day
it mailed the subpoenas. The medical providers were served between December 26 and 27, 2013.
Plaintiff filed this motion to quash on January 02, 2014 objecting to the subpoenas. Because the

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purpose of Rule 45(b)(1)’s notice requirement fully has been met in this case, the Court finds the
subpoenas should not be quashed on the basis of lack of notice.
B.

Scope of subpoenas

Plaintiff contends that defendant’s subpoenas should be quashed because they are
overbroad as to temporal scope and subject matter, and defendant is already in possession of all
medical records relating to Janice Withers’ 2011 skin cancer diagnosis and treatment. Federal
Rule of Civil Procedure 26(b)(1) provides, in pertinent part:
Unless otherwise limited by court order, the scope of discovery is
as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense – including the existence, description, nature, custody,
condition, and location of any documents or other tangible things
and the identity and location of persons who know of any
discoverable matter. For good cause, the court may order
discovery of any matter relevant to the subject matter involved in
the action. 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). Further, in disability cases, “ADA plaintiffs like plaintiffs in an action
for medical malpractice, waive all privileges and privacy interest related to their claim by virtue
of filing the complaint.” Buttler v. Burroughs Wellcome, Inc., 920 F. Supp. 90, 92 (E.D. N.C.
1996).
Defendant asserts that since this is an ADA disability claim, the medical records
requested are relevant to the issues of disability, causation, and damages, and that defendant “is
entitled to Ms. Withers’ medical records to challenge the credibility of Ms. Withers’ initial
Complaint, determine other medical issues [of] Ms. Withers that may or may not have impacted
her employment, what reasonable accommodation may or may not apply, etc.” Def.’s Resp. to
Plt.’s Motion for Protective Order and to Quash Subpoenas at 7. Defendant further asserts that
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the subpoenaed medical records are relevant since plaintiff/Ms.Withers has requested the
“garden variety” emotional damages, “specifically asking for damages for ‘emotional pain,
suffering, inconvenience, loss of enjoyment of life, embarrassment, and humiliation.’” Id. (citing
plaintiff’s Complaint at 7 ¶ D). Plaintiff contends that based on the standard used by federal
district courts in Oklahoma2, defendant has failed to meet the burden of proving the requested
medical records of Ms. Withers are relevant to her disability claim at issue in this case.
Having carefully reviewed the parties’ submissions, the Court finds that defendant’s
subpoenas of Ms. Withers’ medical records are overbroad in temporal scope and subject matter
and should be limited to a discovery period of one year prior to and one year subsequent to Ms.
Withers’ employment with defendant. Specifically, the Court finds that medical records prior to
a year before and after a year subsequent to Ms. Withers’ employment with defendant are
irrelevant to the disability claim at issue in this case. The Court further finds that although the
scope of the subpoenas has been limited, defendant should be able to adequately discover any
potential evidence that may impact plaintiff’s claim for pecuniary damages for out-of-pocket pay
for Ms. Withers. Accordingly, the Court finds that defendant’s subpoenas regarding Ms.
Withers’ medical records should be limited to one year prior and one year subsequent to Ms.
Withers’ employment with defendant.

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In EEOC v. Citgo Petroleum Corp., No. 03-1363-R (W.D. Okla. 2004) [docket no. 19],
the Court found that defendant failed to show how plaintiff’s medical records not related to the
condition at issue were relevant to any claim or defense, or might lead to discovery of admissible
evidence. Plt.’s Reply to Def.’s Resp. to Plt.’s Motion for Protective Order and to Quash
Subpoenas at 4. Further the Court found that “although medical records pertaining to any
consultation or treatment [the] [charging party] received for emotional distress or a mental or
psychological condition would be relevant to the EEOC’s claim for emotional distress, such
discovery is improper where no such records exist on account that no such treatment was
received.” Id. (citing Citgo Petroleum Corp., at 2-3).
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C.

HIPAA Compliance

Plaintiff asserts that defendant’s subpoenas should be quashed because they are not
HIPAA compliant. Plaintiff contends that defendant has failed to show one of the following:
(i) “satisfactory assurance” that the “individual who is the subject
of the protected health information that has been requested has
been given notice of the request” as set forth at 48 C.F.R. Part
164.512(e)(1)(ii)(A) and (iii), or … (ii) “satisfactory assurance” …
“that reasonable efforts have been made by [the requesting party]
to secure a qualified protective order that meets the requirements
of [HIPAA] . . . .
Plt.’s Motion for Protective Order and to Quash Subpoenas at 13. On February 11, 2014, the
Court entered an Agreed Protective Order in this case that states in part:
The Court ORDERS the following:
1. This Order shall govern confidential documents and other
materials produced and information disclosed, during the
course of discovery or pretrial procedures, by any party to this
action.
2. For the purposes of this Order, the following information may
be designated as confidential:
(A)
Health records or other Protected Health
Information of Charging Party;
(B)
Financial records of any party, including financial
statements, income tax returns and/or pay stubs;
(C)
Additional narrowly defined categories of sensitive
discoverable information properly disclosed in the lawsuit,
and identified as such by either party, which may include
personnel records from employment.
The above documents and information shall be referred to herein as “Confidential
Information.”
Docket No.18. As a result of the Court’s February 11, 2014 Order, plaintiff’s claim that
defendant’s subpoenas should be quashed for not being HIPPA compliant is now moot.

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III.

Conclusion
Accordingly, for the reasons set forth above, the Court DENIES IN PART and GRANTS

IN PART Plaintiff’s Motion for Protective Order and to Quash Subpoenas Issued by Defendant
for Medical Records of the Charging Party and Brief in Support [docket no. 14]. Defendant’s
four (4) Subopenas Dues Tecum, requesting medical records from Ms. Withers’ medical
providers, are limited to a period of one year prior and one year subsequent to Ms. Withers’
employment with defendant.
IT SO ORDERED this 30th day of April, 2014.

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