Holmes v. North Texas Health Care Laundry Cooperative Association
Filing
66
MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part Defendant's Motion to Compel Compliance with Subpoena Duces Tecum for Plaintiffs Records from Gary Kindley, LPC [Dkt. No. 57 ]. The parties must, by October 28, 2016, s ubmit to Horan_Orders@txnd.uscourts.gov a proposed protective order to cover these patient records produced pursuant to the subpoena to Gary Kindley, LPC that complies with the requirements for a qualified protective order under 45 C.F.R. 7; 164.512(e). Gary Kindley, LPC is ordered to re-produce the documents pursuant to the instructions laid out in this order, and subject to this protective order to be signed and entered by the Court, by November 1, 2016. (Ordered by Magistrate Judge David L Horan on 10/25/2016) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTINA HOLMES,
Plaintiff,
V.
NORTH TEXAS HEALTH CARE
LAUNDRY COOPERATIVE
ASSOCIATION d/b/a NORTH TEXAS
HEALTH CARE LAUNDRY,
Defendant.
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No. 3:15-cv-2117-L
MEMORANDUM OPINION AND ORDER
Defendant North Texas Health Care Laundry Cooperative Association d/b/a
North Texas Health Care Laundry (“NTHCL” or “Defendant”) has filed a Motion to
Compel Compliance with the Subpoena Duces Tecum for Plaintiff’s Records from Gary
Kindley, LPC. See Dkt. No. 57 (the “MTC”).
United States District Judge Sam A. Lindsay referred the motion to the
undersigned United States magistrate judge for determination. See Dkt. No. 59.
Plaintiff Christina Holmes (“Holmes” or “Plaintiff”) filed a response, see Dkt. No.
63, and NTHCL filed a reply, see Dkt. No. 64. Third-party Gary Kindley, LPC, the
target of the Federal Rule of Civil Procedure 45 subpoena at issue, has not appeared
or responded.
The Court heard oral argument on the MTC on October 17, 2016. See Dkt. No.
65.
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For the reasons explained below, the Court GRANTS in part and DENIES in
part NTHCL’s MTC [Dkt. No. 57].
Background
Plaintiff Christina Holmes sued her former employer, Defendant North Texas
Health Care Laundry, for workplace sexual harassment and sex discrimination as well
as several state law causes of action, including intentional infliction of mental distress,
and seeks recovery of various types of damages, including mental anguish and
emotional distress. See Dkt. No. 1.
In the MTC, NTHCL explains that, “[i]n her initial disclosures, Holmes
identified [Dr.] Gary Kindley, LPC as her treating healthcare provider who is likely to
have discoverable information that she may use to support her claims in this case” and
that “NTHCL engaged Records Deposition Service of Texas [] to secure from [Dr.]
Kindley the production of all records pertaining to Holmes.” Dkt. No. 57 at 2. NTHCL
reports that, “[o]n April 15, 2016, NTHCL received 31 pages of records from [Dr.]
Kindley” but that “10 of the 31 pages contain redactions.” Id. (footnotes omitted).
NTHCL further explains:
[Dr.] Kindley has provided counseling services to Holmes since May 2014,
shortly after the conclusion of the affair that Holmes would now claim
was non-consensual. NTHCL properly served on [Dr.] Kindley a subpoena
and an authorization to release Holmes’ complete file kept by him. On
April 12, 2016, [Dr.] Kindley executed an affidavit testifying that the
records that he was providing “are kept in the regular course of business”
and the records “are the originals or exact copies of the originals and
nothing has been removed from the original file before making these true
and correct copies.” However, [Dr.] Kindley’s records contain numerous
redactions of information that relate to Holmes’ relationship with Gary
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Dutchover, who Holmes conveniently now claims was her common-law
husband at the time.
Id. at 3-4 (footnotes omitted). And, NTHCL explains, “Holmes also executed an
authorization to disclose protected health information in compliance with the Health
Insurance Portability and Accountability Act (‘HIPAA’).” Id. at 3 n.3.
NTHCL asserts that “[Dr.] Kindley’s complete file is relevant to the claims that
Holmes has put at issue in this lawsuit and NTHCL’s ability to investigate and
prepare its defense” and that “NTHCL would enter into a protective order to alleviate
any concerns that records produced pursuant to the subpoena at issue remain
confidential and referenced only in this litigation.” Id. at 2. According to NTHCL, “[n]ot
only is NTHCL entitled to the complete file under the subpoena and authorization; but
also, the complete file is highly relevant to the claims that Holmes has placed at issue
in this lawsuit. In fact, [Dr.] Kindley has provided two separate Assessment
Summaries to Holmes’ counsel regarding her emotional trauma and need for extensive
counseling.” Id. at 4.
NTHCL notes that “Holmes alleges that NTHCL is liable for intentional
infliction of mental distress and seeks significant damages for mental anguish” and
that “Holmes also places the alleged damage caused to her relationship with Mr.
Dutchover at the center of her complaint.” Id. As such, “[i]nformation from [Dr.]
Kindley pertaining to Holmes’ relationship with Mr. Dutchover directly relates to the
facts at issue and the damages alleged by Holmes against NTHCL.” Id.
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Accordingly, NTHCL asks the Court to order Dr. Kindley to produce unaltered
copies of his entire file pertaining to Holmes. See id.
Holmes responds that Dr. Kindley “is a licensed professional counselor in the
State of Texas identified by Plaintiff as a non-retained expert who provided
professional counseling services to Plaintiff” and that, “[a]s a licensed professional
counselor, Kindley is obligated to protect mental health records and confidential
information.” Dkt. No. 63 at 1. Holmes submits an affidavit from Dr. Kindley “to the
effect that he produced all records pertaining to Christina Holmes with the exception
of portions of the records which identify other persons such as family members from
whom Gary Kindley does not have a medical authorization or other consent to
identify.” Id. at 1-2.
Specifically, Dr. Kindley’s affidavit states that, “[a]s the professional counselor
for Christina Holmes, I responded to a subpoena duces tecum served by Defendant by
providing all of the records I had on Ms. Homes with redactions of family members’
names and information. The redactions were necessary in my opinion because I did not
have authorization or consent to identify or release such protected information about
the family members. Based upon my training and experience, and in concurrence with
subsequent consultation of an attorney specializing in Texas and Federal counseling
law, I believe the identity and information disclosed to me of these family members
contained within Ms. Holmes’ privileged mental health records are protected by the
law and that my disclosure of their identities and information would be a violation of
applicable law.” Id. at 5-6.
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According to Holmes, “Kindley's concern is that disclosure of the identities and
information of other persons mentioned in the records of Christina Holmes may violate
Section 181.151 and/or Section 611.005 of the Texas Health and Safety Code and/or
[HIPAA], 42 USC § 1320d-5”; “[p]enalties for violation of the Texas law include fines,
probation or suspension of the violator’s license to practice”; “Kindley’s concern is
therefore legitimate”; and “Defendant has not shown a need substantial enough to
invade the statutory protections afforded such confidential mental health records.” Id.
at 2. Holmes explains that “Defendant has in fact already deposed the only two family
members identified by Plaintiff as persons with knowledge of relevant facts.” Id.
Holmes asks the Court to “uphold the protections provided by statute for
confidential mental health records” and deny the MTC and that, “if the Court is
inclined to grant the [MTC], the Court conduct an in camera review of the materials
before any dissemination to Defendant.” Id.
In reply, NTHCL contends that, “[a]lthough she previously signed an
authorization to allow NTHCL to obtain all of her records from her healthcare
providers,[Holmes] now argues that her counselor, Gary Kindley, LPC, who she had
seen for treatment for the alleged conditions she claims were caused by NTHCL, was
justified in redacting portions of those records.” Dkt. No. 64 at 1. NTHCL explains that
it “does not know, and could not know, what information [Dr.] Kindley has chosen to
redact in the records” but “Holmes contends that those portions redacted by [Dr.]
Kindley ‘identify other persons such as family members’ from whom her counselor does
not have a medical authorization or other consent to identify.” Id. at 1-2.
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According to NTHCL, “portions of [Dr.] Kindley’s records that he did not redact
already identify and provide information about other persons,” and, “if Holmes and
[Dr.] Kindley are allowed to hide relevant information under the guise of protecting
non-parties, NTHCL would be at a distinct disadvantage, as Holmes and her counselor
both seemingly know exactly what information has been redacted from the records at
issue.” Id. at 2. NTHCL asserts that “[t]he entirety of Holmes’ mental health records
– especially what she told [Dr.] Kindley about her relationships with her boyfriend
(Gary Dutchover) and other non-parties – are crucial to NTHCL’s defense of this
matter,” where “Holmes asserts claims of sexual harassment, retaliation, and
negligence against NTHCL, and seeks mental anguish damages from NTHCL, based
on her affair with David Hernandez, the former general manager of NTHCL’s facility,”
and “also claims that NTHCL’s actions caused damage to her relationship with Mr.
Dutchover.” Id. at 3. “NTHCL intends to show that Holmes voluntarily engaged in a
physical relationship with Mr. Hernandez, in whole or in part based on the tenuous
relationship between herself and Mr. Dutchover, and that any mental anguish from
which Holmes has suffered has been caused by Mr. Dutchover – not NTHCL or Mr.
Hernandez.” Id.
NTHCL contends that “Holmes would use [Dr.] Kindley’s records of their
counseling sessions to support her claims; however, she now also attempts to shield the
details underlying those summaries by redacting information regarding her
relationships with other people under the guise that it would reveal their identities.”
Id. NTHCL argues that, “[o]nce Holmes makes a claim for mental anguish, then she
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puts her mental state – before and after her affair with Mr. Hernandez – in play” and
that “NTHCL is entitled to explore Holmes’ previous and current relationships –
romantic or otherwise – in its defense, and [Dr.] Kindley’s records are directly relevant
to those issues.” Id. at 3-4.
And, NTHCL asserts, “none of the laws Holmes cites overcomes the fact that she
has already authorized the full disclosure of her records with [Dr.] Kindley, which is
expressly permitted under Chapter 611 of the Texas Health and Safety Code, as well
as [HIPAA], 45 C.F.R. § 164.508. In fact, the Texas Health and Safety Code repeatedly
reinforces the idea that a patient’s records may be fully disclosed with no provisions
regarding the redaction of non-patients’ identities” since “[t]he Code’s main focus is the
protection of the patient’s information.” Id. (emphasis removed).
Legal Standards
“Federal Rule of Civil Procedure 45 ‘explicitly contemplates the use of subpoenas
in relation to non-parties’ and governs subpoenas served on a third party, such as Gary
Kindley, PLC], as well as motions to quash or modify or to compel compliance with
such a subpoena.” Am. Fed’n of Musicians of the United States & Canada v. Skodam
Films, LLC, 313 F.R.D. 39, 42 (N.D. Tex. 2015) (quoting Isenberg v. Chase Bank USA,
N.A., 661 F. Supp. 2d 627, 629 (N.D. Tex. 2009)).
Under Rule 45, “[a] subpoena may command: (A) production of documents,
electronically stored information, or tangible things at a place within 100 miles of
where the person resides, is employed, or regularly transacts business in person.” FED.
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R. CIV. P. 45(c)(2)(A); see also FED. R. CIV. P. 45(a)(1)(C) (“A command to produce
documents, electronically stored information, or tangible things or to permit the
inspection of premises ... may be set out in a separate subpoena.”). Rule 45(a)(1)(C)
further provides that “[a] subpoena may specify the form or forms in which
electronically stored information is to be produced.” FED. R. CIV. P. 45(a)(1)(C).
Rule 45(d)(2)(B) requires that “[a] person commanded to produce documents or
tangible things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing or sampling any or
all of the materials or to inspecting the premises – or to producing electronically stored
information in the form or forms requested” – and that “[t]he objection must be served
before the earlier of the time specified for compliance or 14 days after the subpoena is
served.” FED. R. CIV. P. 45(d)(2)(B). “If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move the
court for the district where compliance is required for an order compelling production
or inspection. (ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from significant
expense resulting from compliance.” FED. R. CIV. P. 45(d)(2)(B).
NTHCL properly filed its motion to compel in this Court, which, as required by
Rule 45(d)(2), is the court in the district where compliance with the subpoena is
required. See Dkt. No. 58 at APP8.
“When a subpoena is issued as a discovery device, relevance for purposes of the
undue burden test is measured according to the standard of [Federal Rule of Civil
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Procedure] 26(b)(1).” Williams v. City of Dallas, 178 F.R.D. 103, 110 (N.D. Tex. 1998).
Rule 26(b)(1) has been amended, effective December 1, 2015, to provide that, “[u]nless
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 and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the discovery
in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.” FED. R. CIV. P. 26(b)(1).
As amended effective December 1, 2015, Federal Rule of Civil Procedure 26(c)(1)
authorizes protective orders, for good cause shown, “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense, including one or
more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms,
including time and place or allocation of expenses, for the disclosure or discovery; (C)
prescribing a discovery method other than the one selected by the party seeking
discovery; (D) forbidding inquiry into certain matters, or limiting the scope of
disclosure or discovery to certain matters; (E) designating the persons who may be
present while the discovery is conducted; (F) requiring that a deposition be sealed and
opened only on court order; (G) requiring that a trade secret or other confidential
research, development, or commercial information not be revealed or be revealed only
in a specified way; and (H) requiring that the parties simultaneously file specified
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documents or information in sealed envelopes, to be opened as the court directs.” FED.
R. CIV. P. 26(c)(1).
“[T]he burden is upon [the party seeking the protective order] to show the
necessity of its issuance, which contemplates a particular and specific demonstration
of fact as distinguished from stereotyped and conclusory statements.” In re Terra Int’l,
134 F.3d 302, 306 (5th Cir. 1998) (citation omitted). A protective order is warranted in
those instances in which the party seeking it demonstrates good cause and a specific
need for protection. See Landry v. Air Line Pilots Ass’n, 901 F.2d 404, 435 (5th Cir.
1990). And the United States Court of Appeals for the Fifth Circuit recently explained
that “[t]he federal courts have superimposed a somewhat demanding balancing of
interests approach to the Rule. Under the balancing standard, the district judge must
compare the hardship to the party against whom discovery is sought against the
probative value of the information to the other party. Courts also weigh relevant public
interests in this analysis.” Cazorla v. Koch Foods of Mississippi, L.L.C., ___ F.3d ___,
No. 15-60562, 2016 WL 5400401, at *10 (5th Cir. Sept. 27, 2016) (footnotes and
internal quotation marks omitted); see also id. at *18 (“Rule 26(d) gives [the] court wide
discretion to craft flexible and nuanced terms of discovery.” (footnote omitted)).
The Court has broad discretion in determining whether to grant a motion for a
protective order. See Harris v. Amoco Prod. Co., 768 F.2d 669, 684 (5th Cir. 1985). “The
trial court is in the best position to weigh fairly the competing needs and interests of
parties affected by discovery.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
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Federal Rule of Civil Procedure 26(c)(3) provides that, in connection with a
motion under Rule 26(c) for a protective order, Federal Rule of Civil Procedure “37(a)(5)
applies to the award of expenses.” FED. R. CIV. P. 26(c)(3).
Analysis
Dr. Kindley did not object to the subpoena – he simply redacted information that
he states that he believes that he was required to protect by law. Neither Dr. Kindley
nor Holmes seek to quash or modify the subpoena, and Holmes does not quarrel with
production under the subpoena of her own patient records, for which she has provided
an authorization. Holmes’ response to the MTC could be read as seeking a Rule 26(c)(1)
protective order, although she does not expressly ask for one other than to request that
the Court deny the MTC and “uphold the protections provided by statute for
confidential mental health records.” Dkt. No. 63, at 2.
The MTC turns entirely on whether the redactions were necessary and proper
or whether unredacted copies could be produced under an appropriate confidentiality
order, a proposed version of which NTHCL has submitted. NTHCL admits that “[t]he
only section [of the Texas Health and Safety Code] possibly relevant to Holmes’
argument states that a professional shall delete ‘confidential information’ about
another person who has not consented to the release,” but NTHCL argues that “Holmes
has already drawn her argument outside of this section, as she fails to argue that the
redactions cover ‘confidential information,’ and only the identities and information of
other persons.” Dkt. No. 64 at 4 (quoting TEX. HEALTH & SAFETY C. § 611.045(g)).
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Texas Health and Safety Code § 611.045(a) provides that, “[e]xcept as otherwise
provided by this section, a patient is entitled to have access to the content of a
confidential record made about the patient,” and Section 611.045(g) provides that “[a]
professional shall delete confidential information about another person who has not
consented to the release, but may not delete information relating to the patient that
another person has provided, the identity of the person responsible for that
information, or the identity of any person who provided information that resulted in
the patient's commitment.” TEX. HEALTH & SAFETY C. §§ 611.045(a), (g).
“Notwithstanding Section 159.002, Occupations Code, this section applies to the
release of a confidential record created or maintained by a professional, including a
physician, that relates to the diagnosis, evaluation, or treatment of a mental or
emotional condition or disorder, including alcoholism or drug addiction.” Id. §
611.045(j). A “‘[p]atient’ means a person who consults or is interviewed by a
professional for diagnosis, evaluation, or treatment of any mental or emotional
condition or disorder, including alcoholism or drug addiction.” Id. § 611.001(1). Texas
Health and Safety Code § 611.002(a)-(b) provides that “[c]ommunications between a
patient and a professional, and records of the identity, diagnosis, evaluation, or
treatment of a patient that are created or maintained by a professional, are
confidential” and that “[c]onfidential communications or records may not be disclosed
except as provided by Section 611.004 or 611.0045.” Id. §§ 611.002(a)-(b). And “[t]he
privilege of confidentiality may be claimed by: (1) the patient; (2) a person listed in
Section 611.004(a)(4) or (a)(5) who is acting on the patient’s behalf; or (3) the
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professional, but only on behalf of the patient.” Id. § 611.003(a). Under Texas Health
and Safety Code § 611.004(a)(4), “[a] professional may disclose confidential information
only: ... to a person who has the written consent of the patient.” Id. § 611.004(a)(4). And
“[a] person who receives information from confidential communications or records may
not disclose the information except to the extent that disclosure is consistent with the
authorized purposes for which the person first obtained the information,” but “[t]his
subsection does not apply to a person listed in Subsection (a)(4) or (a)(5) who is acting
on the patient’s behalf.” Id. § 611.004(d). Finally, “[a] professional may disclose
confidential information in: ... a judicial or administrative proceeding in which the
patient waives the patient's right in writing to the privilege of confidentiality of
information.” Id. § 611.006(a)(3).
This Court “must interpret Texas’ statutes the way [the Court] believe[s] the
Texas Supreme Court would. When the highest state court is silent on an issue [the
Court] must make an Erie guess, using the sources of law that the state’s highest court
would look to.” Weiser-Brown Operating Co. v. St. Paul Surplus Lines Ins. Co., 801 F.3d
512, 518 (5th Cir. 2015) (citations and internal quotation marks omitted). The Fifth
Circuit has explained the rules for interpreting Texas statutes:
When interpreting a Texas statute, we follow the same rules of
construction that a Texas court would apply – and under Texas law the
starting point of our analysis is the plain language of the statute. Texas
courts aim to determine and give effect to the Legislature’s intent when
construing a statute. When a statute is clear and unambiguous, Texas
courts apply its words according to their common meaning in a way that
gives effect to every word, clause, and sentence. If a statute’s words are
unambiguous and yield a single inescapable interpretation, the judge’s
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inquiry is at an end. When a statute defines a term, the court is bound to
construe that term by its statutory definition only. Further, the court
should consider a provision in the context of the broader statute because
[o]nly in the context of the remainder of the statute can the true meaning
of a single provision be made clear.
Health Care Serv. Corp. v. Methodist Hosps. of Dallas, 814 F.3d 242, 248-49 (5th Cir.
2016) (footnotes and internal quotation marks omitted); see also Hoffman v. L & M
Arts, No. 3:10-cv-953-D, 2015 WL 1000838, at *4-*5 (N.D. Tex. Mar. 6, 2015) (“When
construing a statute, Texas courts attempt to determine and give effect to the
Legislature’s intent, looking first to the plain and common meaning of the statute’s
words. If a statute’s meaning is unambiguous, Texas courts generally interpret the
statute according to its plain meaning. This is because it is a fair assumption that the
Legislature tries to say what it means, and therefore the words it chooses should be the
surest guide to legislative intent. Also, ordinary citizens should be able to rely on the
plain language of a statute to mean what it says. .... To make this determination, the
court must give these terms their ordinary meaning.” (citations and internal quotation
marks omitted)), aff’d, ___ F.3d ___, No. 15-10046, 2016 WL 5431818 (5th Cir. Sept. 28,
2016).
The statute does not appear to define the scope or meaning of “confidential
information about another person who has not consented to the release.” Section
611.045(g) covers a mental health professional turning over to the patient her own
records. It is hard to understand the provision, then, as requiring redaction of the
names or identities of other persons provided by that patient to the provider, as
opposed to redacting communications between that other person (as a patient) and a
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professional or records of the diagnosis, evaluation, or treatment of that other person
(as a patient) that are created or maintained by a professional. See, e.g., Thapar v.
Zezulka, 994 S.W.2d 635, 638 (Tex. 1999) (“The statute classifies communications
between mental-health ‘professional[s]’ and their ‘patient[s]/client[s]’ as confidential
and prohibits mental-health professionals from disclosing them to third parties unless
an exception applies.” (footnote omitted)).
The Court concludes that Section 611.045(g)’s redaction requirement covers
communications between that other person (as a patient) and a professional or records
of the diagnosis, evaluation, or treatment of that other person (as a patient) that are
created or maintained by a professional.
Holmes also cites Texas Health and Safety Code § 181.151, which provides that
“[a] person may not reidentify or attempt to reidentify an individual who is the subject
of any protected health information without obtaining the individual’s consent or
authorization if required under this chapter or other state or federal law.” TEX. HEALTH
& SAFETY C. § 181.151. This section, by its own terms, does not itself require the
consent of another person identified in a patient’s records.
Further, HIPAA contains explicit authorization for the release of patient medical
records under 45 C.F.R. § 164.512(e), under which the Court may order that the parties
are prohibited from using or disclosing Holmes’ protected health information for any
purpose other than this litigation for which such information was requested and that
Defendants shall then return to the covered entity for destruction of the protected
health information (including all copies made) at the end of the litigation or
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proceeding. The Court concludes that Section 611.045(g)’s redaction requirement covers
communications between that other person (as a patient) and a professional or records
of the diagnosis, evaluation, or treatment of that other person (as a patient) that are
created or maintained by a professional.
Understanding the aforementioned statutes as discussed above, the Court
conducted an in camera review to determine whether the redacted documents contain
confidential third party information that must be deleted or whether unredacted copies
could be produced under a HIPAA-complaint protective order.
The Court first finds that Dr. Kindley correctly redacted or withheld confidential
information about third parties within Holmes’ medical records that Dr. Kindley
elicited to treat those parties. This specifically includes the information that he
redacted from Holmes’ medical records on Pgs. 1, 3, 4, 5, 7, 8, 12, 13, 14, 18, and 19 as
well as the second redaction on Pg. 9 and the accompanying attachment to Pg. 18. The
redacted information on these pages contains highly sensitive information about the
third parties that are intermingled with Holmes’ records only because of the parties’
relationship with her. This includes information concerning their actual and potential
diagnoses, family histories, intimate thoughts, and treatment plans. In other words,
the redactions contain the precise information that Dr. Kindley is obligated to protect
under the aforementioned statutes. The records appear to show that the third party
personally met with Dr. Kindley, received counseling from him, and in some cases
received actual treatment plans. In short, these third parties were Dr. Kindley’s
patients. See TEX. HEALTH & SAFETY C. § 611.001(1) (defining a patient as “a person
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who consults or is interviewed by a professional for diagnosis, evaluation or treatment
of any mental or emotional condition or disorder”). They were thus entitled to the same
protections afforded to Holmes or any other patient. See id. § 611.004(a)(4) (providing
that “[a] professional may disclose confidential information only: ... to a person who has
the written consent of the patient”). Moreover, even if they were not Dr. Kindley’s
patients, Holmes cannot consent to the release of medical records that also implicate
a third party’s medical history. See id. § 611.045(g) (requiring that providers “delete
confidential information about another person who has not consented to the release”
of the records). Accordingly, if NTHCL still wishes these unredacted records, it must
provide Dr. Kindley with authorizations confirming that the third party consents to the
release of this information.
But the Court finds that Dr. Kindley must remove the remaining redactions –
namely the redactions on Pg. 6 and the first redaction on Pg. 9. The records appear to
show that these redactions do not relate to a patient that Dr. Kindley is treating. Nor
do they include diagnoses, treatment plans, evaluations, or other types of confidential
information protected by Section 164.512(e). While these records contain other
information that is sensitive, even if not protected by Section 164.512(e), a protective
order, as NTHCL proposes, will assure that the information remains confidential and
used only in this litigation.
The Court will order counsel for Holmes and counsel for NTHCL to negotiate
and submit for the undersigned’s signature a protective order to cover these patient
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records produced pursuant to the subpoena to Gary Kindley, LPC that complies with
the requirements for a qualified protective order under 45 C.F.R. § 164.512(e).
Requests for Award of Expenses
Under Rules 26(c)(3) and 37(a)(5), the Court determines that, under all of the
circumstances presented here, Holmes and NTHCL should bear their own expenses,
including attorneys’ fees, in connection with NTHCL’s MTC.
Conclusion
For the reasons and to the extent explained above, the Court GRANTS in part
and DENIES in part Defendant’s Motion to Compel Compliance with Subpoena Duces
Tecum for Plaintiff’s Records from Gary Kindley, LPC [Dkt. No. 57]. The parties must,
by October 28, 2016, submit to Horan_Orders@txnd.uscourts.gov a proposed
protective order to cover these patient records produced pursuant to the subpoena to
Gary Kindley, LPC that complies with the requirements for a qualified protective order
under 45 C.F.R. § 164.512(e). Gary Kindley, LPC is ordered to re-produce the
documents pursuant to the instructions laid out in this order, and subject to this
protective order to be signed and entered by the Court, by November 1, 2016.
SO ORDERED.
DATED: October 25, 2016
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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