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BIEDRZYCKI v. TOWN OF CICERO

August 8, 2005.

RICHARD BIEDRZYCKI Plaintiff,
v.
TOWN OF CICERO, JASON STROUD; RICHARD RAMIREZ; JAMES KOSENESKY; RHONDA GROSS; METRO PARAMEDIC SERVICES, INC.; ANTHONY GEIGER; JOSEPH WINKLER; AND JOHN/JANE DOES 1-10 Defendants.



The opinion of the court was delivered by: MARIA VALDEZ, Magistrate Judge

MEMORANDUM OPINION AND ORDER

This matter is now before the court for ruling on four discrete but interrelated discovery motions. The four motions are intertwined to the extent they all deal with the discovery of ambulance reports and other documents, many of which likely disclose non-party medical information and treatment histories.*fn1

The four motions before this Court are as follows. First, defendant paramedics, Anthony Geiger and Joseph Winkler ("Geiger and Winkler"), move to quash plaintiff's subpoena to non-party Loyola Medical Services ("Loyola") [45] (Defs. Geiger & Winkler's Mot. to Quash at 1), a regional medical resource center with supervisory powers and authority over defendant paramedics and their employer Metro Paramedic Services, Inc. ("Metro"). Similarly, defendant Metro, the town's contracted provider of ambulance/paramedic services, moves to quash plaintiff's subpoena to Loyola and to quash plaintiff's production request of the defendant Town of Cicero ("Cicero") [48] (Def. Metro's Mot. to Quash at 1). Third, plaintiff moves for the entry of a protective order for the handling and disposition of ambulance reports and financial information sought in discovery [52] (Pl.'s Mot. for HIPPA Qualified Protective Order at 1). Finally, plaintiff moves to compel production of select ambulance reports by defendant Metro [54] (Pl.'s Mot. to Compel Produc. at 1).

  For the reasons the Court sets out below, the defendants' motions to quash are DENIED, the plaintiff's motion for the entry of a protective order is GRANTED, and the plaintiff's motion to compel production is GRANTED IN PART and DENIED IN PART.

  BACKGROUND

  This lawsuit arises from a July 7, 2003 incident in which defendant paramedics and police responded to a 911 call from the apartment of the plaintiff, Richard Biedrzycki. Plaintiff alleges, in part, that the paramedics failed to provide appropriate medical care and that the officers and paramedics battered him. Plaintiff also alleges that the defendants, exclusive of defendant Metro, engaged in a conspiracy to deprive him of his constitutional rights and engaged in a malicious prosecution. Plaintiff brings this action under 42 U.S.C. § 1983, 42 U.S.C. § 12132, 29 U.S.C. § 794(a), and state law. (Compl. at 2.) There are mixed federal and state claims pending against four named police officers, Cicero, and paramedics Geiger and Winkler. Metro is the only defendant the plaintiff sues solely under state law.

  DISCUSSION

  A. Defendants' Motions to Quash

  On March 2, 2005, plaintiff issued a subpoena duces tecum, pursuant to Federal Rule of Civil Procedure 45 ("Rule 45 subpoena"), to the keeper of records for Loyola seeking a number of ambulance reports and other documents with a return date of March 15, 2005. Thereafter plaintiff served document requests, pursuant to Federal Rule of Civil Procedure 34 ("Rule 34 production request"), on Cicero and Metro for a number of similar documents.

  On March 28, 2005, well after the standing return date for Loyola, defendant paramedics moved to quash the Rule 45 subpoena served on Loyola on two grounds: (1) that the discovery requested would disclose privileged medical information and (2) that the discovery requested would result in an undue burden on Loyola. (Defs. Geiger & Winkler's Mot. to Quash at 1.) Two days later, defendant Metro moved to quash on the same grounds, plus it objected to the Rule 34 production request served on Cicero on grounds of undue burden and privilege. (Def. Metro's Mot. to Quash at 1.) On April 26, 2005, defendant paramedics joined defendant Metro's effort to oppose the Rule 34 production request served on defendant Cicero. (Defs. Geiger & Winkler's Reply at 1.) 1. Subpoena Served on Non-Party Loyola

  Loyola, the subject of the Rule 45 subpoena, complied and produced documents to plaintiff before defendants filed either motion to quash. Today, plaintiff has most of the Loyola-disclosed records, and defendants have declined receipt of these documents until the time that this Court rules on pending motions. (Pl.'s Mem. in Opp'n at 2, 9.)

  Plaintiff's original subpoena to Loyola sought production in 10 areas, specified in an attached rider. Defendants assert that they do not raise arguments against production "regarding emergency medical services provided to the Plaintiff." (Def. Metro's Reply at 3; Defs. Geiger & Winkler's Reply at 1 (consisting of rider ¶¶ 1.a, 1.b, and 2).) Defendants, moreover, state that they have no objections to Loyola's compliance with rider ¶¶ 9 and 10 and portions of ¶ 3. (Def. Metro's Reply at 3, 7; Defs. Geiger & Winkler's Reply at 1 (no objection as to rider ¶¶ 9, 10 and the "EMT licenses and continuing education transcripts" requested under rider ¶ 3).) Plaintiff states that Loyola has no documents responsive to rider ¶¶ 1.e, 1.g, 4, 5, 6, 7, and 8, thereby making moot certain of defendants' joint objections. (Pl.'s Mem. in Opp'n at 6, 8.) In sum, only defendants' objections to rider ¶¶ 1.c, 1.d, and 1.f and the remaining portion of ¶ 3 remain for this Court to address.

  a. Local Rule 37.2

  Plaintiff draws the Court's attention to the fact that defendants' motions fail to comply with Rule 37.2 of the Local Rules of the Northern District of Illinois ("Local Rule 37.2"). (Pl.'s Mem. in Opp'n at 2.) In pertinent part, Local Rule 37.2 provides that: [the] court shall hereafter refuse to hear any and all motions for discovery and production of documents under Rule 26 through 37 of the Federal Rules of Civil Procedure, unless a motion includes a statement (1) that after consultation in person or by telephone and good faith attempts to resolve differences they are unable to reach an accord, or (2) counsel's attempts to engage in such consultation were unsuccessful due to no fault of counsel's.

 Local Rule 37.2 (emphasis added).

  Local Rule 37.2's consultation requirement encourages resolution of discovery disputes without judicial involvement. Yet, defendants concede that they did not comply and, in fact, attempt to minimize the importance of the meet-and-confer requirement by chastising plaintiff for his "insistence on a conference that would have been fruitless. . . ." (Def. Metro's Reply at 2-3; Defs. Geiger & Winkler's Reply at 1.) Local Rule 37.2 is not a suggestion to the parties, rather it is a mandate. Defendants Metro, Geiger, and Winkler do not get to make a unilateral decision to disregard a Local Rule because they find the subject matter to be "a distraction from the real issues." (Def. Metro's Reply at 2; Defs. Geiger & Winkler's Reply at 1.) Defendants flippantly ask this Court to "not allow plaintiff's reliance on a technicality" to overshadow their arguments. (Def. Metro's Reply at 3; Defs. Geiger & Winkler's Reply at 1.) However, "[f]ailure to comply with the local rules is not merely a `harmless technicality,' but can be a `fatal' mistake." Ridge Chrysler Jeep L.L.C. v. Daimler Chrysler Servs. N. Am., L.L.C., 2004 WL 3021842 at *4 (N.D. Ill. 2004).

  Given the apparent mandatory language of Local Rule 37.2, this Court could strictly enforce the import of the rule and deny the motions to quash in their entirety as plaintiff requests. See, e.g., Sondker v. Philips Elecs. N. Am., 2004 WL 1687016 at *2 (N.D. Ill. 2004) (striking moving party's motion for failure to comply with Local Rule 37.2's consultation statement requirement). However, out of deference to the important issues of physician-patient and medical record privilege defendants raise, this Court will not exercise its discretion to deny the motions to quash for failure to abide by Local Rule 37.2. Plaintiff's request to deny the motions on this basis, while well-grounded, is denied.

  b. Standing

  Plaintiff asserts that defendants lack of standing to challenge the subpoena to non-party Loyola. "Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action unless the party claims some personal right or privilege with regard to the documents sought." Kessel v. Cook County, 2002 WL 398506 at *2 (N.D. Ill. 2002) (citation omitted). However, "[a] party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests." United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982) (emphasis added), cert. denied, 459 U.S. 1035 (1982). See also United States v. Segal, 276 F. Supp. 2d 896, 900 (N.D. Ill. 2003). "Legitimate interests" have included claims of privilege. See United States v. Bodkins, 2004 WL 2491615 at *3 (W.D. Va. 2004). As such, plaintiff's request for the denial of the defendants' motions to quash for lack of standing is denied in part. The Court finds defendants have a legitimate interest in protecting the physician-patient and medical record privileges held by non-parties, which secures their standing to raise such claims.

  However, defendants do not have standing to argue against Loyola's compliance on grounds of undue burden. Defendants urge an "undue burden" argument on behalf of third-party Loyola — which did not raise this objection and has already produced documents on time. See Kessel, 2002 WL 398506 at *2 (N.D. Ill. 2002) ("Given that subpoenaed parties have produced documents, they obviously have not asserted that the requested production was burdensome or inconvenient, or that the subpoenas sought documents so far removed from relevant issues in the case that the non-parties should be put to the task of producing them.") Like Kessel, this Court declines to find the burden of production a "legitimate interest" to support standing for movants to quash discovery subpoenas of another where the third-party fully complied with production, without ...


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