Curry v. Blue Cross Blue Shield of SC

Filing 56

ORDER directing plaintiff to contact counsel for defendant during normal working hours on or before 11/22/2010 regarding information protected by the Health Information Portability and Accountability Act of 1996 and notifying plaintiff that failure to do so could result in the Court holding her in contempt. Signed by Honorable Joseph F Anderson, Jr on 11/17/2010. (bshr, )

C u r r y v. Blue Cross Blue Shield of SC

D o c . 56

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION V a n e s s a Wimberly Curry, P l a in tif f , v. B lu e C ro s s BlueShield of South Carolina, D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) C .A . No. 3:09-2718-JFA

ORDER

O n October 14, 2010, the Court entered a Confidentiality Order (ECF No. 44), based o n the defendant's concerns about the pro se plaintiff's possession of documents containing S o c i a l Security numbers, patient names (i.e., names of employees of the defendant's c u sto m e rs who are insured through the defendant), and other information protected from u n a u th o riz e d disclosure pursuant to the Health Information Portability and Accountability A c t of 1996 ("HIPAA") and the Health Information Technology for Economic and Clinical H ea lth Act (part of the American Recovery and Reinvestment Act of 2009) ("HITECH"). T h e plaintiff had previously filed some such documents with the Court in response to the defendant's motion for summary judgment. While the plaintiff ultimately submitted redacted d o c u m e n ts that the Court substituted for her initial filings, the initial filings were in the p u b l ic domain for several days. Those public filings, and the plaintiff's continued

p o s s e s s io n of protected information, have created obligations for the defendant. The d e f e n d a n t has been required by HIPAA and HITECH to report the plaintiff's actions and to ta k e appropriate actions to remedy the plaintiff's unauthorized possession and disclosure of

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s u c h information and to prevent further unauthorized possession and disclosure. A cc o rdin g ly, the defendant filed a motion for a Confidentiality Order, which the Court g ra n te d October 14, 2010. O n October 31, 2010, the defendant filed a motion to enforce the terms of the C o n f id e n tia lity Order, particularly paragraph 4 which requires that the pro se Plaintiff return to the defendant all hard-copy documents containing information about the defendant's b u s in e s s , and "double delete" or otherwise confirm elimination of all such information in e le c tro n ic form. In the motion, the defendant's counsel represented that she had made re p e a ted efforts to communicate with the plaintiff about compliance with the Confidentiality O r d e r, but the plaintiff had failed or refused to respond to such communications. On November 2, 2010, the undersigned entered an Order requiring the plaintiff to a p p e a r before this court at 11:00 a.m. on Wednesday, November 17, 2010, to show cause, if any the plaintiff may have, why she should not be held in contempt for violation of the C o n f id e n tia lity Order. The Order warned that, if the plaintiff failed to appear at the hearing, th e court would consider a motion having her held in contempt of court. T h e plaintiff failed to appear for the hearing on November 17, 2010, although proper n o tic e was sent to her by the clerk of court. Further, counsel for the defendant represented th a t the plaintiff was aware of the scheduled hearing through written correspondence and v o ic e mail exchanges that the plaintiff has acknowledged. At the hearing on November 17, 2010, counsel for the defendant reported voice mail e x c h an g e s with the plaintiff and some indication that the plaintiff is willing to cooperate.

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T h e defendant has several concerns for which it asks the court's assistance. C o u n s e l for the defendant has made numerous telephone calls to the plaintiff, but the p la in tif f has not answered. Thus, counsel has left voice messages for the plaintiff. Counsel f o r the defendant has provided the plaintiff with her office telephone number as well as her p e rso n a l cellular telephone number. The plaintiff has called counsel's office in the middle o f the night, when counsel is not likely to answer, and left several voice messages. To date, th e plaintiff and counsel have yet to communicate person-to-person by telephone, which has h in d e re d effective communications. Accordingly, the plaintiff is ordered to call Ms. Thomas d u rin g normal work hours at [phone] for a person-to-person telephone conference. If Ms. Thomas is unavailable, the plaintiff must leave a message specifying the date, time, a n d telephone number by which Ms. Thomas may reach the plaintiff for a person-to-person te le p h o n e conference. This conference must take place on or before Monday, November 22, 2 0 1 0 . The plaintiff must cooperate with any follow-up conferences and actions that the d e f en d a n t may deem necessary in order to fully satisfy the defendant's concerns by N o v e m b e r 30, 2010. T h ro u g h o u t the required conferences, the plaintiff must be forthcoming with in f o r m a tio n the defendant needs to determine compliance with applicable statutes, re g u la tio n s , and rulings. For instance, the plaintiff must identify the computers that have b e e n used to store information at issue, including where the computers are located and to w h o m they belong, what electronic and paper documents have been created, where in f o rm a tio n is located, and any means by which, and to whom, information has been

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d issem inated . The plaintiff must fully comply with all efforts the defendant deems necessary to recover information and to address its legal obligations under applicable statutes, re g u latio n s, and rulings. Accordingly, the plaintiff may be required to arrange for and permit in s p e c tio n s of computers and electronic media, and to cooperate in arrangements for personal d e liv e ry of documents and other physical data. The plaintiff must fully comply by November 30, 2010 with the defendant's efforts to satisfy its statutory obligations resulting from the plaintiff's post-employment possession an d filing of defendant's sensitive information. If the defendant has concerns that the court's c o n tin u e d assistance is necessary, the court will entertain an appropriate motion from the d e f en d a n t, and will consider holding the plaintiff in contempt. The plaintiff is warned that h e r continued disregard of court orders will have very serious consequences. IT IS SO ORDERED.

N o v em b er 17, 2010 C o lu m b ia , South Carolina

J o s e p h F. Anderson, Jr. U n ite d States District Judge

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