United States District Court, N.D. Illinois, Eastern Division
August 8, 2005.
RICHARD BIEDRZYCKI Plaintiff,
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
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")  (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")  (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  (Pl.'s Mot. for HIPPA
Qualified Protective Order at 1). Finally, plaintiff moves to
compel production of select ambulance reports by defendant Metro
 (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.
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.
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
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.
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 objection, and within their
allotted time. This Court rejects defendants' undue burden
objections, and will instead review each of the remaining
portions of the subpoena rider called into question by
c. Timeliness of Objections
Plaintiff served his subpoena on Loyola on March 2, 2005 with a
return date of March 15, 2005. (Pl.'s Mem. in Opp'n at 2.) Loyola
raised no objections and complied with production on time.
Defendant paramedics moved to quash plaintiff's subpoena, in part
on grounds of privilege, on March 28, 2005, and then defendant
Metro moved to quash on March 30, 2005, roughly two weeks after
the window for Loyola to comply or object closed. Plaintiff
contends defendants' motions to quash are thereby untimely and
should be denied on that basis. Federal Rule of Civil Procedure 26(b)(1) limits the scope of
discovery to "any matter, not privileged, which is relevant to
the subject matter involved in the pending action." This limit
"is not self-executing." Ritacca v. Abbott Laboratories,
203 F.R.D. 332, 334-35 (N.D. Ill. 2001) (citations omitted); Applied
Systems, Inc. v. Northern Insurance Co. of New York, 1997 WL
639235 at *1 (N.D. Ill. 1997) (citation omitted). Instead, a
party objecting to a discovery request on grounds of privilege
must present the objection in a timely and proper manner as
defined by the Federal Rules of Civil Procedure or risk waiver of
the objection entirely. See Hobley v. Burge, 226 F.R.D. 312,
319-20 (N.D. Ill. 2005) (citing Ritacca, 203 F.R.D. at 335);
Applied Systems, Inc., 1997 WL 639235 at *1. Federal Rule of
Civil Procedure 45(c)(2)(B) dictates what is "a timely and proper
manner" for one to object to a discovery subpoena: within 14 days
The "waiver of privilege" sanction is a fact-specific inquiry
and has been reserved to extreme cases. See Ritacca,
203 F.R.D. at 335 (citation omitted) (noting foot-dragging in responding to
discovery as grounds to impose a waiver sanction); Applied
Systems, Inc., 1997 WL 639235 at *2 (noting sanction is
"reserved for cases of unjustified delay, inexcusable conduct,
bad faith, or other flagrant violations"). "Minor procedural
violations, good faith attempts at compliance, and . . .
mitigating circumstances militate against finding waiver."
Ritacca, 203 F.R.D. at 335 (citation omitted). Plaintiff would
have this Court believe that defendants' actions rise to level of
foot-dragging. However, this court respectfully declines
plaintiff's invitation to shuffle down that path.
Plaintiff argues that defendants' delay caused him prejudice,
"by making it impossible to resolve the motions before the . . .
depositions of Geiger and Winkler" (Pl.'s Mem. in Opp'n at 3) and that defendants have engaged in a "pattern" of disobeying
discovery dates (Pl.'s Reply Mem in Supp. of Mot. to Compel
Produc. at 1). Defendants offer that there was no prejudice to
the plaintiff as deposition dates were continued. (Metro's Reply
at 3; Def. Geiger & Winkler's Reply at 1.) As plaintiff has not
responded to this factual statement, the Court is left to assume
any prejudice, if any, caused by defendants' untimeliness was
cured by the deposition continuances. The Court finds that the
plaintiff did not suffer any prejudice from the defendants'
untimely objections. Moreover, the misleading notice affixed to
the Loyola subpoena serves as another mitigating factor arguing
against a finding of waiver. For these reasons, plaintiff's
objection to defendants' motions to quash the Rule 45 subpoena
for untimeliness is denied.
This Court next addresses the remaining portions of the
subpoena rider that defendants allege run counter to Federal Rule
of Civil Procedure 45(c)(3)(A)(iii) (disclosure of privilege).
d. Disclosure of Privilege
A review of defendants' pleadings, in light of the mooted
claims, reveals a substantial similarity in defendants'
objections to rider ¶¶ 1.c and 1.d, so this Court addresses them
together. Rider ¶ 1.c asks for "[a]ll documents relating to EMS
services provided by EMT Anthony Geiger on July 7, 2003." (Defs.
Geiger & Winkler's Mot. to Quash at Exhibit B.) Rider ¶ 1.d
requests the same but with regard to Geiger's co-defendant,
Winkler: "All documents relating to EMS services provided by EMT
Joseph Winkler on July 7, 2003." (Defs. Geiger & Winkler's Mot.
to Quash at Exhibit B.)
Defendant paramedics and defendant Metro raise two sources of
applicable privilege: (1) HIPAA and (2) state law. First,
defendants both construe the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") to ground a cognizable
federal physician-patient or medical record privilege. (Defs.
Geiger & Wikler's Mot. to Quash at 2-3; Def. Metro's Mot. to
Quash at 2-3.) Second, defendants also raises a violation of "the
more stringent provisions of Illinois state law governing patient
privacy records" (Def. Metro Mot. to Quash at 2; Defs. Geiger &
Winkler's Reply at 1), in other words "the physician-patient
privilege under Illinois state law" or state medical records
privilege (Def. Metro Mot. to Quash at 3; Defs. Geiger &
Winkler's Reply at 1). The Court addresses each in turn.
i. HIPAA as Source of Applicable Privilege
Defendants' pleadings fashioning a violation of HIPAA's
regulations, specifically 45 C.F.R. § 164.512(e), are off the
mark. Whether or not HIPAA was violated in this case*fn3
does little to help defendants clear the threshold inquiry
whether HIPAA provides an applicable federal privilege for
quashing a subpoena request under Federal Rule of Civil Procedure
45(c)(3)(a)(iii). The Seventh Circuit has recently provided a
clear answer: HIPAA regulations' procedure for obtaining
authority to use medical records in litigation,
45 C.F.R. § 164.512(e), is purely procedural in nature and does not create a
federal physician-patient or hospital-patient privilege. Northwestern Mem'l Hosp. v. Aschroft, 362 F.3d 923,
925-26 (7th Cir. 2004). Thus, defendants' reliance on HIPAA as a
source of privilege is unfounded.
ii. State Law as Source of Applicable Privilege
Defendants rely, in the alternative, on state
physician-patient/medical records privilege as the source of the
applicable privilege on which they frame their motions to quash.
(Def. Metro's Mot. to Quash at 3; Defs. Geiger & Winkler's Reply
at 1.) According to defendant Metro, any response to the
subpoena's ambulance records request would necessarily disclose
medical information of the patients treated by defendant
paramedics. (Def. Metro's Resp. to Mot. for Protective Order at
2.) Under defendants' argument, state law governs privilege in
this matter and removes from discovery the ambulance records that
Loyola turned over. (Def. Metro's Mot. to Quash at 3; Defs.
Geiger & Winkler's Reply at 1.)
Plaintiff, on the other hand, argues that state law is wholly
inapplicable, (Pl.'s Mem. in Opp'n at 7-8), and that the
ambulance records are relevant to both the federal and state
claims paving the way for the application of the federal
privilege standard over a state standard (Pl.'s Mem. in Opp'n at
12-13). While Illinois does recognize the privilege, "federal
common law does not recognize a physician-patient privilege."
Patterson v. Caterpillar, Inc., 70 F.3d 503, 506-07 (7th Cir.
1995) (citing Whalen v. Roe, 429 U.S. 589, 602 n. 28 (1977)).
Although the mere pendency of litigation in federal court does
not justify applying federal privilege law at the expense of
state privilege law, Rule 501 of the Federal Rules of Evidence
guides the determination on whether material sought in discovery
is privileged and by which standard. See Mem'l Hosp. for McHenry County v. Shadur,
664 F.2d 1058, 1061 (7th Cir. 1981) (per curiam). Rule 501 reads:
Except as otherwise required by the Constitution of
the United States or provided by Act of Congress or
in rules prescribed by the Supreme Court pursuant to
statutory authority, . . . privilege . . . shall be
governed by the principles of common law as they may
be interpreted by the courts of the United States in
light of reason and experience. However, in civil
actions and proceedings, with respect to an element
of a claim or defense as to which State law supplies
the rule of decision, the privilege . . . shall be
determined in accordance with State law.
FED. R. EVID. 501.
From the express language of the above Rule, two conclusions
are clear. First, when a plaintiff asserts only federal claims,
federal privilege law governs. See Northwestern Mem'l Hosp.,
362 F.3d 923, 926 (7th Cir. 2004) (noting federal common law the
source of privilege in federal-question suits). Second, when the
case is before a federal court under diversity jurisdiction,
state privilege law applies. Fed.R. Evid. 501. What is unclear
under Rule 501, however, is the proper resolution of a case like
this, where the plaintiff asserts commingled federal and state
claims and relevant evidence may be privileged under one but not
the other. See Jaffee v. Redmond, 518 U.S. 1, 17 n. 15 (1996)
(noting the lack of clarity but finding resolution unnecessary to
decide that case); Wright, Miller & Marcus, Federal Practice and
Procedure: Civil 2d § 5434 at 861-64 (1980 ed. & Supp. 2005)
(noting uncertain legislative history on point).
The Seventh Circuit follows the "usual solution by the courts"
in cases where federal and state privilege law collide "a
preference for federal privilege law when it conflicts with state
privilege law." 3 Jack B. Weinstein & Margaret A. Berger,
Weinstein's Federal Evidence § 501.02[c] at 501-14 (2d ed.
2005 & Supp. Feb. 2005) (noting at least seven federal circuits courts, including the Seventh Circuit, opt for the application of
a federal privilege over a competing state privilege when
evidence is relevant to both federal and state claims).
The appellate and trial courts of the Seventh Circuit have
sided with this majority trend. See Northwestern Mem'l Hosp. v.
Aschroft, 363 F.3d 923, 925 (7th Cir. 2004) ("The enforcement of
federal law might be hamstrung if state-law privileges more
stringent than any federal privilege regarding medical records
were applicable to all federal cases."); Equal Employment
Opportunity Comm'n v. Illinois Dep't of Employment Sec.,
995 F.2d 106, 107 (7th Cir. 1993) ("When state and federal statues
clash, the Supremacy Clause of the Constitution gives the federal
statute controlling force. Rule 501 of the Federal Rules of
Evidence reinforces this message in the domain of evidentiary
privileges."); Mem'l Hosp. for McHenry County, 664 F.2d at 1061
n. 3 (7th Cir. 1981) (per curiam) (applying federal privilege law
in a federal action notwithstanding the presence of a
supplemental state claim); Hugley v. The Art Inst. of Chicago,
981 F. Supp. 1123, 1126 (N.D. Ill. 1997) (court is not required
to recognize state-law privilege in a case with "[t]he principle
claims" being federal despite one supplemental state claim).
While the state standards for privilege are most often not
followed in a case with mixed federal and state claims, they are
not completely disregarded either. See Mem'l Hosp. for McHenry
County, 664 F.2d at 1061. "A strong policy of comity between
state and federal sovereignties impels federal courts to
recognize state privileges where this can be accomplished at no
substantial cost to federal substantive and procedural policy."
Id. (citation omitted) (emphasis added). One occasion where a
state privilege standard can apply in a mixed federal question
with a supplemental state law claim case is when the contested
evidence is only relevant to the state claim. See Freeman v. Fairman, 917 F. Supp. 586,
588 (N.D. Ill. 1981). Yet, the contested documents in this matter
are not only relevant to the state claims.
Plaintiff alleges that the ambulance reports are relevant to
his establishing the elements of Count IV (§ 1983 malicious
prosecution) and Count V (§ 1983 conspiracy), as well as serving
possible impeachment purposes or evidence to prove motive,
intent, and/or modus operdani. (Pl.'s Reply Mem in Supp. of
Protective Order at 8 n. 6, 12-14.) We need not resolve the
admissibility of ambulance reports for such purposes at such an
early stage in the litigation. However, relevance in discovery is
a far broader concept than under the Federal Rules of Evidence.
It is well settled that relevance for discovery purposes, is to
be interpreted broadly. See Goldman v. Checker Taxi Co.,
325 F.2d 853, 855 (7th Cir. 1963) (citing Hickman v. Taylor,
329 U.S. 495 (1947)). And, relevant material for discovery purposes
may encompass any matter that bears on, or that reasonably could
lead to other matters that could bear on, any issue that is or
may be in the case. Minch v. City of Chicago, 213 F.R.D. 526,
527 (N.D. Ill. 2003) (internal quotations omitted) (citing
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
Plaintiff's assertion that the Loyola-disclosed material is
relevant to his federal claims seems reasonable, as it may prove
to bear directly on or lead to other matters that may bear on his
causes of action rooted in federal law. The above, taken
together, supports the application of the federal law on
privilege regarding physician-patient and medical record
privilege over the corresponding state standards. There being no
such privilege under federal law, the disputed documents are discoverable. Defendants' motions to quash the
subpoena to Loyola with respect to rider ¶¶ 1.c and 1.d are
iii. Applicability of State Law Privilege to Metro Alone
Defendant Metro invites this Court to apply the state law
privilege standards to it alone. (Def. Metro's Mot. to Quash at
5-6.) Defendant Metro argues "[i]t is sued . . . only on state
law claims, and it cannot be disputed that state law privileges
apply to state law claims." (Def. Metro's Reply at 6). Simply
put, defendant Metro has misread the applicable case law in this
area. Defendant Metro cites Freeman v. Fairman,
917 F. Supp. 586 (N.D. Ill. 1996), in support of a blanket application of
state law privilege standards to all state claims. However, the
proper application of Freeman is not that broad. In Freeman,
the Court's allowance of a state standard on privilege was
limited to situations where the discoverable item in question is
only relevant to the state claim(s). Freeman,
917 F. Supp. at 588. "[S]tate law privileges do not automatically bind federal
courts in federal cases." United States v. Wilson, 960 F.2d 48,
50 (7th Cir. 1992). Unlike the scenario laid out in Freeman,
here the discovery sought by plaintiff appears to be relevant to
both his state supplemental claims and his federal claims. The
distinction proposed by defendant Metro applying a competing state privilege to one
defendant finds no support in case law.
Moreover, common sense seems to foreclose this possibility as
well. If federal courts are reluctant to apply two different
privilege standards to different claims before the same trier of
fact, why would a court add an extra layer of complexity
limiting instructions on whether certain items can be used as to
certain defendants and not the others on only certain claims.
See, e.g., WM. T. Thompson Co. v. General Nutrition Corp.,
Inc., 671 F.2d 100, 103-04 (3d Cir. 1982) ("Obviously applying
two separate disclosure rules with respect to different claims
tried to the same jury would be unworkable. . . . One rule or the
other must govern."). Defendant Metro's request to apply a state
privilege to itself alone, for the above stated reasons, is
B. Production Request Served on Defendant Cicero
On February 18, 2005, plaintiff served identical Rule 34
production requests on defendant Metro and defendant Cicero.
(Pl.'s Mem. in Opp'n at 10.) Neither defendant Metro nor
defendant Cicero have complied, instead each has filed
objections. (Pl.'s Mem. in Opp'n at 10.) Interestingly,
defendants Metro, Geiger, and Winkler move to "quash" the
production request on Cicero and not the one served on Metro.
(Def. Metro's Mot. to Quash at 6; Defs. Geiger & Winkler's Reply
at 1; Pl's Mem. in Opp'n at 10.) This Court also believes
defendants' motion to "quash" the production request propounded
to Cicero is best construed as an objection to discovery and
proceeds accordingly. At the heart of the objection are three months of ambulance
reports prepared by defendant paramedics. The February 18 request
calls for the production of:
All ambulance reports, incident reports, run reports
and other writings prepared or signed by defendant
Winkler or defendant Geiger regarding EMS calls to
which one or both of them responded and/or medical
services one or both of them provided between April
7, 2003 and July 7, 2003.
(Pl.'s Mem. in Opp'n at Exhibit C-D.)*fn5
that the ambulance reports sought impose an undue burden on
defendant Cicero and that the ambulance reports are privileged,
and thereby not discoverable.*fn6
1. Timeliness of Objections
Plaintiff filed his document request on defendant Cicero on
February 18, 2005. Cicero responded with their objections on
April 1, 2005, well after the time allowed under the Federal
Rules of Civil Procedure. Rule 34(b) requires "[t]he party upon
whom the request is served shall serve a written response within
30 days after the service of the request." Defendants fail to
address defendant Cicero's untimely response. (Def. Metro's Reply
at 7 (no mention of untimeliness); Def. Geiger & Winkler's Reply
at 1.) "The failure to object to a discovery request in a timely
fashion may constitute a waiver of the objection, including
objections based on privilege." Applied Systems, Inc., 1997 WL
639235 at *2 (N.D. Ill. 1997) (citations omitted). However, the rules of discovery do not automatically require
waiver in such a situation. Id. "Rather, waiver . . . is a
serious sanction reserved for cases of unjustified delay,
inexcusable conduct, bad faith, or other flagrant violations."
Courts have reserved the waiver sanction to extreme cases. See
Ritacca, 203 F.R.D. at 335 (noting unjustified delay in
responding to discovery as grounds to impose a waiver sanction).
On more than one occasion, defendants fail to justify their
untimely response to the February 18, 2005 requests, including
those served on defendant Cicero and defendant Metro. Moreover,
defendant Metro fails to respond to plaintiff's timeliness
objection in their written reply. Accordingly, this Court
believes Cicero's late response and defendants' non-responsive
pleadings constitute the type of occasion whereby Rule 34(b)'s 30
day requirement should be strictly construed. Defendant Metro's
and defendant paramedics' motions to "quash" plaintiff's
production request propounded to defendant Cicero is hereby
C. Plaintiff's Motion for a Protective Order
Plaintiff files a motion for the entry of a HIPAA qualified
protective order that would serve to restrict the handling of and
order the destruction of ambulance reports and a number of
limited documents related to finances disclosed or to be
disclosed in discovery. (Pl.'s Mot. for Prot. Order at 1.) The
plaintiff's proposed order would cover, in part, the documents
plaintiff requested from Loyola and defendant Cicero. (Def.
Metro's Resp at 1-2). A plain meaning review of the plaintiff's
proposed order indicates it would also cover the ambulance
reports plaintiff seeks from defendant Metro. Defendant Metro
opposes the entry of the protective order on grounds of
privilege, again citing to state law privileges. For the reasons
set out above, state law of privileges do not govern the privilege determination in
the matter at hand. As the federal privilege standard applies,
there is no applicable physician-patient or medical records
privilege that removes the ambulance reports from the reach of
Defendant Metro, arguing in the alternative, asserts that HIPAA
mandates "very stringent standards for the de-identification of
medical records," which Metro asserts would be violated should
records be turned over in compliance with plaintiff's protective
order, as proposed. (Def. Metro's Resp. at 3-4). Metro's read on
HIPAA's de-identification standards is misguided. HIPAA does not
mandate de-identification, instead it offers multiple standards
and means to guide covered entities in properly disclosing
protected health information. Compare 45 C.F.R. § 164.514
(standard for de-identification) with §§ 164.512(a) (standard
for disclosure required by law); 164.512(b) (standard for
disclosure for public health activities); 164.512(e) (standard
for disclosures for judicial and administrative proceedings);
164.512(f) (standard for disclosure for law enforcement
purposes); 164.512(j) (standard for disclosure to avert serious
threat to health or safety). As HIPAA's de-identification
regulations are but one means of compliance, the Court denies
defendant Metro's request that the protective order be denied for
failure to comply with HIPAA's de-identification option.
Moreover, entry of plaintiff's proposed order would also obviate
the need for HIPAA de-identification.
Next, the Court turns to plaintiff's proposed order. The
Seventh Circuit concluded in Northwestern Memorial Hospital
that HIPAA's standards for disclosure of protected health
information in judicial proceedings, 45 C.F.R. § 164.512(e),
"should [only] be understood . . . to create a procedure for
obtaining authority to use medical records in litigation."
362 F.3d at 925-26. Plaintiff seeks a protective order that meets
HIPAA's "qualified protective order" standard. For purposes of HIPAA's standards for disclosure in judicial
proceedings, a "qualified protective order" means, with respect
to protected health information, an order of a court that "(A)
[p]rohibits the parties from using or disclosing the protected
health information for any purpose other than the litigation . . .
for which such information was requested; and (B) [r]equires
the return to the covered entity or destruction of protected
health information (including all copies made) at the end of the
litigation. . . ." 45 C.F.R. § 164.512(e)(1)(v). Review of
plaintiff's proposed protective order reveals it would limit the
parties to use of ambulance reports to the litigation at hand and
order their destruction at the conclusion of all trial and
appellate proceedings. (Pl.'s Proposed Protective Order at 1-2.)
The Court finds the plaintiff's protective order meets HIPAA's
two-prong definition of a "qualified protective order." Moreover,
there are no arguments before this Court that defendants object
to the non-HIPAA provisions of the plaintiff's proposed order.
(Pl.'s Reply Mem. in Support of Protective Order at 10.)
Finally, defendant Metro asks for additional language in the
proposed protective order should it be granted. (Def. Metro's
Resp. to Protective Order at 4.) Defendant Metro seeks a clear
statement that the proposed protective order would not govern
admissibility for any information produced pursuant to the order.
As plaintiff does not object to defendant Metro's clarifying
language (Pl.'s Reply Mem. in Support of Protective Order at 10),
the Court grants Metro's request for modification. Accordingly,
the Court grants the plaintiff's motion for a HIPAA qualified
protective order provided that parties meet and confer to craft a
new proposed order that is consistent with this opinion within
five business days.
D. Plaintiff's Motion to Compel Production of Documents by
Defendant Metro On February 25, 2005, through his third document request to
defendant Metro, plaintiff sought all documents, including
ambulance reports, related to two particular addresses in which
defendants Geiger and/or Winkler were involved prior to the date
plaintiff alleges he was battered and provided substandard
medical services. (Pl.'s Mot. to Compel at 1.) On March 29, 2005,
defendant Metro responded to the plaintiff's document request by
raising objections on four grounds. (Pl.'s Mot. to Compel at
Exhibit A.) Defendant Metro argues that the request is (1) "not
calculated to lead to admissible evidence," (2) unduly
burdensome, (3) overbroad, and (4) in violation of HIPAA. (Pl.'s
Mot. to Compel at Exhibit A.)
In April 2005, plaintiff filed a motion to compel the
production of aforementioned documents by defendant Metro. (Pl.'s
Mot. to Compel at 1.) In addition to countering each of the four
grounds of objection that defendant Metro raises, plaintiff
argues that Metro is time bared from raising their objection. The
Court begins with the procedural argument.
1. Timeliness of Objections
Plaintiff argues that defendant Metro's objection to production
is outside of the time allowed by Federal Rule of Civil Procedure
34(b). (Pl.'s Mot. to Compel at 1-2.) Defendant Metro cites "an
inadvertent clerical error" that accounted for the untimely
service of their response to the plaintiff's production request
and argues no prejudice to the plaintiff resulted. (Def's Resp.
to Mot. to Compel at 2.)
In the absence of a court order or party agreement, Rule 34(b)
allows only 30 days for a party upon whom a request for
production is served to serve their written response. The Court
notes that Rule 34(b) is cast in the mandatory. As such, the
clear import of the Rule cannot be easily escaped. The Court also notes the delayed response time by
defendant Metro appears to be a recurrent pattern. Plaintiff
asserts that not only was defendant Metro late in responding to
the plaintiff's motion to compel, they were late in filing their
motion to quash and responding to plaintiff's first discovery
request. (Pl.'s Reply Mem. at 1.) Metro has not contested this
assertion. Moreover, whereas the Court credited the clerical
error of the plaintiff's agent to the advantage of defendant
Metro in their motion to quash, the defendant's own "inadvertent
clerical error" here will be credited to the advantage of the
opposing party. Taken together, these three factors lead the
Court to conclude that Metro's failure to serve their objection
to the production request in a timely manner is fatal. As such,
the Court grants plaintiff's motion to compel.
Even if this Court were to agree with defendant Metro on the
timeliness of service, the Court would still grant plaintiff's
motion to compel on the independent bases articulated below.
Defendant Metro's first basis for objection to the plaintiff's
request is relevance. Defendant Metro asserts that the
plaintiff's request is "not calculated to lead to admissible
evidence." (Pl.'s Mot. to Compel at Exhibit A.) Plaintiff seeks
documents relating to any earlier visit by Metro's employees,
co-defendants paramedics, to the apartment where plaintiff lives
and/or the adjoining three-flat. (Pl.'s Mot. to Compel at 2; Pl's
Reply at 2 n. 1.) Federal Rule of Civil Procedure 26(b)(1)
permits discovery "regarding any matter, not privileged, that is
relevant to the claim or defense of any party." Discoverable
information is not limited to that which would be admissible at
trial. Information is relevant under Rule 26(b)(1) "if the
discovery appears reasonably calculated to lead to the discovery
of admissible evidence." Relevant material, for discovery purposes, may encompass any matter that
bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case. Minch,
213 F.R.D. at 527.
Plaintiff argues that the ambulance reports sought through his
third discovery request are likely relevant to his establishing
motive (Pl.'s Mot. to Compel at 2) and to impeach defendants'
denial of prior runs to the addresses (Pl.'s Reply Mem. at 2).
Defendant, on the other hand, resorts to the fishing expedition
defense and argues that given the limited weight such ambulance
reports would have in establishing motive, the motion should be
denied. (Def's Response to Mot. to Compel at 3.)
Defendant Metro's arguments lack substance. First, arguments as
to the sufficiency or weight of such evidence are premature at
this stage. Relevant matters for discovery purposes only need to
be "reasonably calculated" to lead to discovery of admissible
evidence. Thus, the Court finds that the request for documents
related to the neighboring address is reasonably calculated to
lead plaintiff to admissible evidence about ambulance visits to
the plaintiff's home. Finally, with regard to defendant Metro's
claim of fishing expedition, the Court notes that the Supreme
Court, in a famous passages, has spoken of the proper scope of
discovery rules, inclusive of Rule 26. It said, "We agree, of
course, that the deposition-discovery rules are to be accorded a
broad and liberal treatment. No longer can the time-honored cry
of `fishing expedition' serve to preclude a party from inquiring
into the facts underlying his opponent's case." Hickman v.
Taylor, 329 U.S. 495, 507-08 (1947). Defendant Metro has failed
to establish that the discovery requested is irrelevant to any
claim. 3. Burden of Production
Defendant Metro's second objection to the plaintiff's request
is that it is unduly burdensome. (Pl.'s Mot. to Compel at Exhibit
A.) Plaintiff asserts defendant Metro's grounds for making this
claim is unsubstantiated and "made without factual inquiry."
(Pl.'s Mot. to Compel at 3.) Counsel for plaintiff reports a
"meet-and-confer" conversation with counsel for defendant Metro
as to the nature of the burden wherein Metro acknowledged that
they had no information as to the number of documents responsive
to plaintiff's request or how they were organized. (Pl.'s Reply
Mem. at 3.) Defendant Metro has not offered any contrary fact on
this point. The Court finds Metro's objection of "undue burden"
simply lacking in support.
4. Overbreadth of Request
Defendant Metro's third ground for objecting to plaintiff's
request is that it is overly broad. (Pl.'s Mot. to Compel at
Exhibit A.) Specifically, defendant Metro points to the limitless
time frame of plaintiff's request. (Def.'s Resp. to Mot. to
Compel at 6.) However, this argument is disingenuous. Defendant
Metro's assertion belies logic and reasoning. Plaintiff draws the
Court's attention to a concession he made before Magistrate Judge
Nolan on April 12, 2005. In open court, plaintiff "agreed to
limit the request to documents to a period of several months."
(Pl.'s Reply Mem. at 3). Defendant fails to articulate why a time
factor of several months is overly broad. Accordingly,
defendant's objection rooted in overbreadth is denied.
5. HIPAA De-Identification Standards Violation Defendant Metro's final basis for objection is that the
plaintiff's request violates HIPAA's de-identification procedure.
(Pl.'s Mot. to Compel at Exhibit A). The Court, however, agrees
with plaintiff's construction of HIPAA. HIPAA does not shield
documents in discovery, it only minimizes the disclosure of
certain "protected health information" in judicial proceedings.
Nor does HIPAA mandate de-identification. Absent court order,
parties may comply with HIPAA by either de-identifying or
submitting records with "protected health information" to a
Defendant Metro's objections are without proper support.
Plaintiff's motion to compel is hereby granted in part and denied
in part. The plaintiff's motion to compel is denied to the extent
it seeks records beyond the "several months" concession that
plaintiff agreed to in open court. This Court construes the
"several months" concession to be five months. Thus, the Court
orders defendant Metro to comply with the plaintiff's February
25, 2005 production request related to documents generated by
either defendant paramedic covering the two addresses in question
from February 7, 2003 through July 7, 2003.
Based on the foregoing, this Court DENIES the defendants'
motions to quash, GRANTS the plaintiff's motion for a protective
order, and GRANTS IN PART and DENIES IN PART the plaintiff's
motion to compel production. Parties must comply by submitting a
revised protective order to this Court within five business days
of the entry of this order. Defendants must comply with the motion to compel within 14 days of the entry of this
order. Finally, plaintiff is ordered to disclose all records
Loyola produced under subpoena that are not in defendants'