Opinion
CASE NO. 16-23444
12-20-2017
IN THE MATTER OF: ILIANA NEUROSPINE INSTITUTE, LLC Debtor
NOT FOR PUBLICATION
DECISION AND ORDER DENYING MOTION FOR AGREED PROTECTIVE ORDER
On December 20, 2017.
The debtor has filed a motion asking the court to approve an agreed protective order between it and the FDIC relating to the discovery of information they believe is protected by the Health Insurance Portability and Accountability Act (HIPAA). Not only is the court asked to approve the agreement, but, given the deadline by which the debtor must comply with the FDIC's discovery requests, the motion also insists the court must act promptly or that it must extend the deadline. We will act promptly. As with other discovery related matters, whether the court approves the protective order is a matter committed to its discretion. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 37, 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17 (1984); Thomas v. International Business Machines, 48 F.3d 478, 482 (10th Cir.1995); Felling v. Knight, 211 F.R.D. 552, 554 (S.D. Ind. 2003).
The court notes that the motion has not been accompanied by a brief in support thereof as required by the local rules of this court. See, N.D. Ind. L.B.R. B-7007-1(a). See also, In re King, 2006 WL 1994679, 2006 Bankr. LEXIS 1416 (Bankr. N.D. Ind. 2006). --------
To begin with, the motion is unnecessary. The discovery rules themselves are designed to encourage litigants to confer and agree upon discovery related issues without involving the court. Although the motion references Rule 26(c)(1) as the basis for the court's authority to enter a protective order, it overlooks two things. First, Rule 26(c) is based upon the proposition that the parties have a dispute about discovery which they were unable "to resolve . . . without court action." Fed. R. Civ. P. Rule 26(c)(1). Here, there is no dispute and, therefore, no need to involve the court. That latter point - the need for a dispute before involving the court in discovery matters - is made explicit by the second thing the motion overlooks: Rule 29 of the Federal Rules of Civil Procedure. Rule 29(b) authorizes parties to stipulate to procedures governing or limiting discovery, and their stipulations do not require court approval unless they would interfere with the court's schedule for the litigation. Fed. R. Civ. P. Rule 29(b). Where parties are able to resolve discovery concerns by entering into an agreement between themselves, "[t]here would appear to be no need for court approval or intervention at all." Frupac Intern. Corp. v. M/V "CHUCABUCO", 1994 WL 269271 at *1 (E.D. Pa. 1994); Taffinger v. Bethlehem Steel Corp., 2001 WL 1287625 at *3 (E.D. Pa. 2001); Smith v. City of Chicago, 2005 WL 3215572 *3 (N.D. Ill. 2005); In re DFI Proceeds, Inc., 441 B.R. 914, 916-17 (Bankr. N.D. Ind. 2001). See also, 45 C.F.R. § 164.512(e)(v) (stipulation by the parties satisfies the requirements of a qualified protective order).
The court is also concerned that the agreed order may be overly broad because it purports to impose obligations upon more than just the parties to the litigation and their agents or other representatives. It also extends to court personnel, court reporters, jurors and venire members, as well as "other entities involved in the litigation process," and requires all of them to destroy any and all copies of the documents in question at the conclusion of the litigation. The court has no problem with the parties imposing such an obligation upon themselves and their privies, and such an agreement would be enforceable even without court approval, DFI Proceeds, Inc., 441 B.R. at 917, but to impose such an obligation upon unknown third parties, without their knowledge, notice, or consent is troubling, and the court has been given nothing to allay those fears.
The motion to approve the parties' agreed qualified protective order is DENIED.
/s/ Robert E . Grant
Chief Judge, United States Bankruptcy Court