Opinion
Civil Action 1:23-CV-00020
01-31-2024
CLARA M. MANN, Plaintiff, v. TRAILS CAROLINA, LLC, Defendant.
QUALIFIED PROTECTIVE ORDER PURSUANT TO 45 C.F.R. § 164-512(E)
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and 45 C.F.R. § 164.512(e)(1), the Court finds good cause for the issuance of a qualified protective order and hereby ORDERS as follows:
1. In the course of discovery in this case, both parties are seeking records that contain “protected health information” about the Plaintiff and other individuals treated by Trails Carolina, LLC. The undersigned finds that the Parties and their attorneys are hereby authorized to receive, subpoena and transmit “protected health information” pertaining to Plaintiff and certain third-party individuals to the extent and subject to the conditions outlined herein.
2. Definition of PHI. For the purposes of this qualified protective order, “protected health information” shall have the same scope and definition as set forth in 45 C.F.R. § 160.103 and 164.501. Protected health information includes, but is not limited to, health information, including demographic information, relating to either: (a) the past, present, or future physical or mental condition of an individual, (b) the provision of care to an individual, or (c) the payment for care provided to an individual, which identifies the individual or which reasonably could be expected to identify the individual.
3. Filing under Seal. This Order does not authorize either party to seal court filings or court proceedings. The Court will make a good cause determination for filing under seal if and when the parties seek to file Plaintiff's protected health information under seal.
Plaintiff's Personal Health Information
4. Purpose for Order. Defendant is seeking protected health information from the Plaintiff for use in discovery. The court finds that the Defendant's discovery of Plaintiff's PHI is appropriate as provided herein below, as 45 C.F.R. § 164.512(a) and (e) allow for production by a covered entity of protected health information in the course of a judicial proceeding.
5. Production of Plaintiff's Records and Information by Covered Entities. All “covered entities” (as defined by 45 C.F.R. § 160.13) are hereby authorized to disclose protected health information pertaining to Plaintiff to those attorneys representing either the Plaintiff and Defendant in the above-captioned litigation. Upon receipt of such records by the Plaintiff or the Defendant, the records containing protected health information shall be marked “Protected PHI” in a manner that does not prevent any of the contents of the record from being read or viewed.
6. Limited use of Plaintiff's PHI. The parties and their attorneys shall be permitted to use or disclose the protected health information of Plaintiff for solely for the purposes of prosecuting or defending this action, including any appeals of this case. The parties' attorneys shall be permitted to disclose the protected health information to court personnel and court reporters. The parties' attorneys shall also be permitted to disclose the protected health information to the parties' experts, consultants, court personnel, court reporters, copy services, and trial consultants so long as, prior to doing so, counsel has informed each such person that Plaintiff's protected health information may not be used or disclosed for any purpose other than this litigation. Counsel shall take all other reasonable steps to ensure that persons receiving Plaintiff's protected health information do not use or disclose such information for any purpose other than this litigation.
7. Return or Destruction of Plaintiff's PHI. Within 35 days after the conclusion of the litigation including appeals, the parties, their attorneys, and any person or entity in possession of protected health information received from counsel pursuant to paragraph four of this Order, shall return Plaintiff's protected health information to the covered entity or destroy any and all copies of protected health information pertaining to Plaintiff, except that counsel are not required to secure the return or destruction of protected health information submitted to the court.
8. Scope of Order. Nothing in this Order authorizes counsel for the Defendant to obtain Plaintiff's medical records or information through means other than formal discovery requests, subpoenas, depositions, pursuant to a patient authorization, or other lawful process.
Third Party Personal Health Information
9. Purpose for Order. Plaintiff has sought information that may contain “protected health information” regarding other Trails Students treated by Trails Carolina, LLC, which contends it is a “covered entity” as defined by 45 C.F.R. § 160.13. The Court finds that the discovery of the PHI of other Trails Students treated by Trails Carolina, LLC, is appropriate under 45 C.F.R. § 164.512(a) and (e) and may be disclosed if otherwise discoverable under Fed.R.Civ.P. Rule 26.
10. De-Identified Records and Information. Trails Carolina, LLC, is hereby authorized to disclose through discovery documents and information that contain protected health information pertaining to other Trails Students as provided herein below. The HIPAA Privacy Rule does not restrict the production of de-identified records. Therefore, Defendant is permitted to present any documents or information sought by Plaintiff or her attorneys in discovery so long as the documents are first de-identified, meaning that all specific identifiable information has been redacted to protect the identity of the individual. “Specific identifiable information” includes names, parent or other household names, social security numbers, passport numbers, drivers license numbers, photos, biometric data, or any information that can be traced to one individual.
11. Use of Aliases for De-Identified Information. Trails Carolina shall provide Plaintiff a list of aliases using the moniker “Trails Student” followed by identifying letter starting with “A” to refer to the documents and records of each de-identified individual, and it shall indicate to Plaintiff by reference to bates label or otherwise what documents or other information provided pursuant to this order pertains to the individual that has been de-identified so that the parties can communicate about the documents and other information through use of the assigned aliases.
12. Disclosure of protected health information. If Plaintiff, upon receipt and review of the de-identified information, requests that the documents or information containing PHI be produced in a non-redacted manner, then Defendant is hereby permitted to disclose, and the Plaintiff and her attorneys shall be permitted to use or disclose the protected health information of other Trails Students for solely for the purposes of prosecuting or defending this action, including any appeals of this case. Prior to such production, Defendant shall mark such records or information containing individually identifiable and protected health information as “Protected PHI” in a manner that does not prevent any of the contents of the record from being read or viewed.
13. Limited use of Other Trails Student's PHI. The parties' attorneys shall be permitted to disclose the protected health information to court personnel and court reporters. The parties' attorneys shall also be permitted to disclose the protected health information to the parties' experts, consultants, court personnel, court reporters, copy services, and trial consultants so long as, prior to doing so, counsel has informed each such person that the other Trails Student's protected health information may not be used or disclosed for any purpose other than this litigation. Counsel shall take all other reasonable steps to ensure that persons receiving the other Trails Student's protected health information do not use or disclose such information for any purpose other than this litigation.
14. Return or Destruction of Other Trails Students' PHI. Within 35 days after the conclusion of the litigation including appeals, the parties, their attorneys, and any person or entity in possession of protected health information received from counsel pursuant to paragraph four of this Order, shall return any Other Trails Student's protected health information to the covered entity or destroy any and all copies of protected health information pertaining to Other Trails Students, except that counsel are not required to secure the return or destruction of protected health information submitted to the court.
15. Scope of Order. Nothing in this Order authorizes counsel for the Plaintiff to obtain the Other Trails Students' medical records or information through means other than formal discovery requests, subpoenas, depositions, pursuant to a patient authorization, or other lawful process.
16. Order Subject to Modification. This Order shall be subject to modification on motion of any party or any other person who may show an adequate interest in the matter to intervene for purposes of addressing the scope and terms of this Order. The Order shall not, however, be modified until the parties shall have been given notice and an opportunity to be heard on the proposed modification.
IT IS SO ORDERED.