Lovecchio v. Wash. Metro. Area Transit Auth.

319 F. Supp. 3d 262
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 30, 2018
DocketCivil Action No. 16-2374 (CKK)
StatusPublished
Cited by1 cases

This text of 319 F. Supp. 3d 262 (Lovecchio v. Wash. Metro. Area Transit Auth.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lovecchio v. Wash. Metro. Area Transit Auth., 319 F. Supp. 3d 262 (D.C. Cir. 2018).

Opinion

COLLEEN KOLLAR-KOTELLY, United States District Judge

In the parties' [30] Joint Status Report on Discovery Plan, Defendant discussed certain efforts to ascertain the relevance of thirty-one of Plaintiff's treating medical providers. That number has since increased to thirty-five, and may swell further as discovery continues.1 Joint Status Report on Discovery Plan, ECF No. 36, at 7 & n.2. Rather than depose each provider-which would exhaust and exceed the Court's current limit of ten fact witnesses, assuming relatively few will be designated as experts-Defendant sought to conduct ex parte interviews, to which Plaintiff objected.

The Court held a teleconference on the record with the parties on June 12, 2018, in order to address this and other discovery issues. With the Court's permission, the parties submitted further briefing "regarding the legal basis for prohibiting Defendant from conducting ex parte interviews of [Plaintiff's] medical providers subject to an appropriate protective order." Min. Order of June 13, 2018. Upon consideration of the briefing,2 the relevant *264legal authorities, and the record as a whole, the Court GRANTS Defendant's request to conduct ex parte interviews of Plaintiff's treating medical providers, subject to the Protective Order that this Court shall issue.

The issue is somewhat more nuanced than the parties' briefing elucidates. There is no dispute that informal interviews can be an appropriate means of reducing the number of depositions, particularly where many witnesses may be involved. The parties effectively dispute whether Defendant's interviews must include Plaintiff's counsel or Plaintiff himself.

The District of Columbia Court of Appeals has found that ex parte interviews can be an acceptable way of obtaining certain information from treating medical providers. See Street v. Hedgepath , 607 A.2d 1238, 1245-48 (D.C. 1992). By filing a lawsuit concerning his or her medical conditions, a plaintiff puts them in issue and thereby waives the statutory physician-patient privilege as to "medical information relevant to the ... claim[s]." Street , 607 A.2d at 1246, 1248 (citing D.C. Code § 14-307 ).

Privacy protections available under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") leave this precedent undisturbed. As Plaintiff concedes, federal regulations implementing HIPAA expressly provide for court-authorized disclosure of protected medical information within the scope of that authorization:

1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order ....

45 C.F.R. § 164.512(e)(1)(i) ; see Pl.'s Reply at 1-2. This Court is unaware of any controlling authority in this jurisdiction since HIPAA, as amended, that prohibits ex parte interviews of medical providers. Often lower courts considering whether to permit ex parte interviews continue to cite Street as the law in the District of Columbia. See, e.g., Leonard v. Wash. Hosp. Ctr. Corp. , Case No. 2014 CA 3734 B, 2014 WL 9910173, at *1, 2014 D.C. Super. LEXIS 21, at *2 (D.C. Super. Ct. Sept. 9, 2014) ; Order at 1-2, Corley v. Thomas , Case No. 2012 CA 8261 M (D.C. Super. Ct. Jan. 8, 2014). The Court finds that no authority prohibits Plaintiff's medical providers from disclosing Plaintiff's protected health information during ex parte interviews if this Court permits Defendant to conduct such interviews and issues a protective order delineating the scope of such disclosure.

The Court must now decide whether to permit ex parte interviews in this case. As Plaintiff observes, that is not a foregone conclusion. See Reply at 1-2. The Court is unaware of any case law or HIPAA provision establishing that Defendant is entitled to conduct ex parte interviews. Many of the courts in this jurisdiction that have permitted or denied them have issued orders completely devoid of reasoning, or containing only boilerplate references, for example, to Street and HIPAA. See, e.g. , *265Order at 1, Perkins v. Lucy Webb Hayes Nat'l Training Sch. for Deaconesses and Missionaries , Case No. 2008 CA 006416 M (D.C. Super. Ct. July 23, 2009) (permitting ex parte interviews on the basis of Street and HIPAA). Those courts that furnish more extensive reasoning for or against ex parte interviews have articulated a variety of standards. E.g., Mbony v. Wash. Hosp. Ctr. , Case No. 13 CA 1769, 2014 D.C. Super. LEXIS 11, at *2 (granting request for ex parte interviews based on the Court's "discretion"); Min. Order, Bigelow v. Wash. Hosp. Ctr. , No. 10-cv-1471 (D.D.C. Jan. 17, 2012) (citing Mem. Op., Jeffares v. Kheiri , Civil No. L-07-1923 (D.Md. Nov. 19, 2008), ECF No. 23 ("[D]efendants have failed to demonstrate good cause for why traditional discovery methods are unworkable." (emphasis added) ) ); see also Lynch v. SSC Glen Burnie Operating Co., LLC , Civil No. JKB-17-1328, 2017 WL 6508980, at *3 (D.Md. Dec. 20, 2017) (indicating that movant "must demonstrate some reason that ordinary discovery procedures are not sufficient"). Street , the one controlling authority-albeit pre-HIPAA-does not expressly articulate a standard. The "good cause" standard for a discovery protective order under Federal Rule of Civil Procedure 26(c) may be most analogous to this circumstance. See also Pl.'s Reply at 2 (urging application of "good cause" standard).

Regardless of the standard's labeling, the Court expects Defendant to articulate sufficient reason for the Court to authorize ex parte interviews of Plaintiff's treating medical providers. Based on Defendant's arguments and the parties' briefing, the Court finds ample reason to grant such authorization, subject to an appropriate Protective Order.

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Bluebook (online)
319 F. Supp. 3d 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lovecchio-v-wash-metro-area-transit-auth-cadc-2018.