Opinion
No. CV 00-037 52 12 S
March 14, 2005
MEMORANDUM OF DECISION
Before the court is the plaintiff Amy McGuire's motion for order of discovery in this bill of discovery action, and, if granted, whether the court should grant defendant's Rawlings and Unicare's motion for protective order. On June 16, 2000, Amy McGuire filed a one-count complaint against the Rawlings Company, L.L.C. (Rawlings) and Unicare Life Health Insurance Company (Unicare). McGuire is seeking to have a bill of discovery order granted to uncover evidence of a pattern of unfair acts and practices by Rawlings and Unicare against herself and other individuals who are recipients of medical cost benefits. She claims that the information sought is necessary to prove her claims in a related action which she has filed against the defendants.
McGuire alleges that on February 15, 1999, she was injured in an automobile collision in which she incurred medical bills for the treatment of her injuries. Her medical bills were paid by Unicare pursuant to a health insurance contract. McGuire instituted an action against the tortfeasor seeking monetary damages for her injuries. On July 15, 1999, Rawlings on behalf of Unicare asserted a lien against proceeds recoverable in McGuire's action against the tortfeasor. Rawlings' agent, Amy D. Lashley wrote to McGuire and represented that Unicare has a claim for reimbursement for the paid benefits because they had paid her medical expenses pursuant to an Employee Retirement Income Security Act of 1974 (ERISA) qualified plan.
McGuire's health insurance contract with Unicare was issued through her husband Walter McGuire and his employer, Bear Stearns Co., Inc.
Unicare represented that Rawlings was asked to assist them with its "health plan cost saving program."
By letter dated July 21, 1999, McGuire advised both Unicare and Rawlings that the law of the state of Connecticut prohibits reimbursement by any insurer providing collateral source benefits, and that accordingly Unicare had no right to reimbursement. By letter dated July 21, 1999, Unicare and Rawlings reasserted that the benefits were paid under an ERISA qualified plan which preempts state law. After investigating the matter, McGuire advised both Unicare and Rawlings, by letter dated November 29, 1999, that the medical benefit expenses paid to McGuire by Unicare were not paid pursuant to an ERISA qualified plan. On December 7, 1999, Rawlings withdrew its claimed lien and advised McGuire that it would no longer pursue reimbursement. McGuire alleges that as a result of this wrongful assertion of a lien, disbursement of the settlement proceeds was delayed, causing her losses and damages for the deprivation of the use of those funds. On January 10, 2001, McGuire filed a separate action against Unicare and Rawlings on the grounds that their unfair trade practices violated General Statutes § 38a-815 et seq., the Connecticut Unfair Insurance Practices Act, (CUIPA), and General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA).
See General Statutes § 52-225c.
See McGuire v. The Rawlings Company, L.L.C., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0380182. This action was consolidated with the current matter on April 9, 2001.
Both defendants moved to strike the complaint in this action in its entirety. On November 7, 2003, the court, Doherty, J, denied both motions. On November 20, 2003, McGuire filed a motion for order of discovery based upon the court's denial of the motions to strike. On December 22, 2003, the court granted McGuire's motion for order of discovery. On January 13, 2004, Unicare and Rawlings jointly filed a motion for reconsideration of McGuire's motion for order of discovery. On the same day, they also filed a motion for protective order barring McGuire from seeking any privileged or personal information concerning any of Unicare's insureds in Connecticut. On November 15, 2004, this court granted the motion for reconsideration.
In its memorandum of decision the court ordered, "[t]he scope and the nature of discovery to which the plaintiff may be entitled, if any, will be determined when and if the plaintiff moves this court for such orders."
The order for discovery was later vacated by the court, Wolven, J., on May 10, 2004.
Before the court is McGuire's motion for order of discovery, motion #152, as well as the motion for protective order filed by both Unicare and Rawlings, motion #160.
DISCUSSION I MOTION FOR ORDER OF DISCOVERY
"The bill of discovery is an independent action in equity for discovery, and is designed to obtain evidence for use in an action other than the one in which discovery is sought . . . As a power to enforce discovery, the bill is within the inherent power of a court of equity that has been a procedural tool in use for centuries . . . The bill is well recognized and may be entertained notwithstanding the statutes and rules of court relative to discovery . . . Furthermore, because a pure bill of discovery is favored in equity, it should be granted unless there is some well founded objection against the exercise of the court's discretion." (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 680-81, 804 A.2d 823 (2002). "To sustain the bill, the petitioner must demonstrate that what [she] seeks to discover is material and necessary for proof of, or is needed to aid in proof of or in defense of, another action already brought or about to be brought . . . Although the petitioner must also show that [she] has no other adequate means of enforcing discovery of the desired material, [t]he availability of other remedies . . . for obtaining information [does] not require the denial of the equitable relief . . . sought . . . This is because a remedy is adequate only if it is one which is specific and adapted to securing the relief sought conveniently, effectively and completely . . . The remedy is designed to give facility to proof." (Internal quotation marks omitted.) Id., 681.
"Discovery is confined to facts material to the plaintiff's cause of action and does not afford an open invitation to delve into the defendant's affairs . . . A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to [her] action . . . A plaintiff should describe with such details as may be reasonably available the material [she] seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to [her] case . . . What is reasonably necessary and what the terms of the judgment require call for the exercise of the trial court's discretion." (Internal quotation marks omitted.) Id.
"The plaintiff who brings a bill of discovery must demonstrate by detailed facts that there is probable cause to bring a potential cause of action. Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action . . . Its existence or nonexistence is determined by the court on the facts found . . . Moreover, the plaintiff who seeks discovery in equity must demonstrate more than a mere suspicion; [she] must also show that there is some describable sense of wrong." (Internal quotation marks omitted.) Id., 681-82.
This is the applicable standard because in denying Rawlings and Unicare's motion to strike, the court, Doherty, J., found that this action has been brought as a pure bill of discovery. The relief sought in McGuire's second revised complaint purports to seek information and documents only.
McGuire moves this court for an order requiring Unicare and Rawlings to produce addresses, information and policy numbers of individuals who were sought by Rawlings for reimbursement of medical benefits. She contends that the information contained is material to her proceeding in her second action against Rawlings and Unicare. McGuire argues that the information and addresses are necessary and material in order to prove that the reimbursement practices were a general business practice and, therefore, Rawlings and McGuire are in violation of CUTPA and CUIPA.
McGuire requests the following discovery;
1.) Interrogatories or other discovery as to both Unicare and Rawlings seeking the identity of persons against whom liens or rights of reimbursement were claimed in relation to payments for medical treatment for injuries sustained by persons claiming recovery for personal injuries for the years 1996 though the present within Connecticut. The names and addresses of the insured against whom payment or reimbursement was sought is also requested, as well as names and addresses of all counsel representing those individuals and the production of all relevant documents. McGuire also requests the amounts of reimbursement requested by Rawlings or Unicare, the amount paid and the amount received by Unicare and Rawlings.
2.) The names, addresses and relevant policy numbers of all individuals, and their counsel, against whom a lien or right of reimbursement for medical expenses was claimed from 1996 to present in Connecticut, either through Rawlings or Unicare which was refused or questioned by the individuals from whom repayment was sought. Also requested is a production of all documents and relevant communications between or on behalf of Unicare and Rawlings.
3.) Identification and production of all correspondence, contracts, memoranda and other documents by and between Unicare and Rawlings concerning the hiring of Rawlings as the agent in reimbursement or repayment proceedings from individuals who have had any type of personal injury action pending within Connecticut for the years 1996 through the present. Included are all handwritten notes and electronic documents such as e-mails and computer notes.
4.) The identification of all individuals who were or are involved in the decision making process of Unicare to utilize Rawlings in seeking reimbursement from individuals whom medical expenses were paid from 1996 to the present. An identification of those individuals who were or are involved in the decision making process and those individuals involved in how to respond to any questions raised by those individuals from whom repayment was sought and if applicable, such individual's legal counsel.
Rawlings and Unicare argue that McGuire should not be allowed the requested discovery because the information sought concerns other Unicare customers. For example, they contend that the information sought is based upon the allegation contained in paragraph 17 of McGuire's second revised complaint. They argue that the allegation is not repeated in the separate unfair trade practices action and is not supported by any specific factual allegations of wrongdoing to other Unicare customers.
Paragraph 17 of McGuire's second revised complaint states; "Upon information and belief, the defendant Rawlings has, in numerous other instances, made misrepresentations to plaintiffs or claimants in personal injury actions of the purported rights of insurance companies, including the defendant Unicare, to assert a lien against proceeds when in fact defendant Rawlings knew that no such right existed in favor of the insurance companies on whose behalf defendant Rawlings was acting."
The court finds that McGuire has demonstrated that the information sought supports a good faith basis for its production. She has met the applicable standard that she "should describe with such details as may be reasonably available the material [s]he seeks . . . and should not be allowed to indulge a hope that a thorough ransacking of any information and material which the defendant may possess would turn up evidence helpful to [her] case." (Internal quotation marks omitted.) Berger v. Cuomo, 230 Conn. 1, 7, 644 A.2d 333 (1994). McGuire limited her requested discovery to specific information concerning possible similar circumstances involving reimbursement claims. "What is reasonably necessary [for discovery] and what the terms of the judgment require call for the exercise of the trial court's discretion." Id.
Contrary to Rawlings and Unicare's argument, the requested information in the motion for order of discovery, coupled with the allegations raised in the complaint and the submissions made, demonstrate probable cause. McGuire does not have to demonstrate that she will prevail in a trial on the merits. She only has to show probable cause of an actionable claim. "Whether particular facts constitute probable cause is a question of law." McMahon v. Florio, 147 Conn. 704, 707, 166 A.2d 204 (1960). "[T]here is a distinction between a would-be plaintiff having to demonstrate the need for the information to determine whether a particular cause of action is worthy of being pursued and a plaintiff having to prove definitively that [s]he has a cause of action and that [s]he will probably prevail ultimately at the trial on the merits." Berger v. Cuomo, supra, 230 Conn. 9. McGuire does not have to prove that she will prevail on the merits of her claim. The information sought in the motion for order of discovery is necessary to establish the CUIPA and CUTPA claims alleged in her second action.
There are no other means by which McGuire can attain the requested information. Unicare is in sole possession of all customer information and reimbursement claims. The contractual relationship and correspondence between Rawlings and Unicare are in their sole possession and control. McGuire seeks this information not to delve into their collective records for a slim possibility of finding useful information, but to obtain information necessary for her CUIPA and CUTPA claims. "[A] remedy [for discovery] is adequate only if it is one which is specific and adapted to securing the relief sought conveniently, effectively and completely . . . The remedy is designed to give facility to proof." (Citations omitted, internal quotation marks omitted.) Id., 6.
Therefore, McGuire's motion for order of discovery should be granted. The extent of the discovery and any limitations thereon should be determined in the context of the motion for protective order filed by Rawlings and Unicare.
II MOTION FOR PROTECTIVE ORDER
Practice Book § 13-5 provides in pertinent part, "[u]pon motion by a party from whom discovery is sought, and for good cause shown, the [court] may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery be had only on specific terms and conditions, including a designation of time and place . . .; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters . . ." "Practice Book § 13-5 requires a showing of good cause for the issuance of protective orders. A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements." (Internal quotation marks omitted.) Sarfaty v. PNN Enterprises, Inc., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 02 0280255 (April 19, 2004, Tanzer, J.). "The extent of discovery and the use of protective orders is clearly within the discretion of the trial judge . . . The court's discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power . . ." (Citation omitted; internal quotation marks omitted.) Rodman v. Trans Union, LLC., Superior Court, judicial district of Windham at Putnam, Docket No. CV 02 0069386 (March 18, 2004, Foley, J.) ( 36 Conn. L. Rptr. 713).
Unicare and Rawlings move the court to deny or limit McGuire's request for discovery. They argue that they are barred by state and federal privacy laws from disclosing privileged and personal customer information. It is argued that the information regarding Unicare's insureds would cause Unicare and Rawlings harm because it would put them in a position of violating federal and state privacy laws.
A The Gramm-Leach-Bliley Act
Rawlings and Unicare argue that the Gramm-Leach-Bliley Act (GLBA), 15 U.S.C. § 6801 et seq., preempts the issuance of the order sought by McGuire. Section 6801(a) provides that, "[i]t is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information." Unicare and Rawlings argue that the GLBA prevents Unicare from disclosing the requested personal information concerning its Connecticut customers. Section 6802(a) states that, "[e]xcept as otherwise provided in this subchapter, a financial institution may not, directly or through any affiliate, disclose to a nonaffliated third party any nonpublic personal information, unless such financial institution provides or has provided to the consumer a notice . . ." Nonpublic personal information is defined under the GLBA as personally identifiable financial information that is provided by a consumer to the financial institution, resulting from any transaction between the consumer and the financial institution or otherwise obtained by the financial institution. See 15 U.S.C. § 6809(4)(A). Rawlings and Unicare argue that as a nonaffliated party, McGuire is prevented by the act from discovering any customer name, address or account information because it is nonpublic personal information.
15 U.S.C. § 6807(a) provides: "This subchapter and the amendments made to this subchapter shall not be construed as superceding, altering, or affecting any statute, regulation, order or interpretation in effect in any State, except to the extent that such statute, regulation, order or interpretation is inconsistent with the provisions of this subchapter, and then only to the extent of the inconsistency."
A financial institution is defined as, "any institution the business of which is engaging in financial activities as described in section 1843(k) of Title 12." 15 U.S.C. § 6809(3)(A). Issuing insurance is listed in the definition of financial activity found in 12 U.S.C. § 1843(k)(4)(B). Unicare, therefore, qualifies as a financial institution under the statute.
McGuire contends that the GLBA provides an exception for the disclosure of such nonpublic personal information in judicial discovery actions. In pertinent part, section 6802(e)(8) states that nonpublic personal information possessed by financial institutions can be disclosed, "to comply with Federal, State or local laws, rules, and other applicable legal requirements; to comply with a properly authorized civil, criminal, or regulatory investigation or subpoena or summons by Federal, State, or local authorities; or to respond to judicial process or government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes as authorized by law." (Emphasis added.) McGuire argues that this provision provides an exception for judicially ordered discovery of relevant information. McGuire maintains that only the first two of her four requested discovery items involve material covered under the GLBA and there are exceptions for both.
McGuire argues that the first request is relevant, because it seeks names and addresses of persons against whom liens or rights of reimbursements for medical payments were claimed by Unicare through Rawlings from the years 1996 to present. She also argues that the second request is relevant because it seeks names and relevant insurance policy information of all persons against whom a lien or right of reimbursement for medical expenses was claimed by Unicare through Rawlings from 1996 to present and who paid Unicare less than the amount claimed.
This court must decide whether it can order Unicare to disclose nonpublic personal customer information during civil discovery pursuant to an exception to the GLBA. There is no authority in Connecticut dealing with this particular issue. As a case of first impression, the court should look to other jurisdictions who have interpreted the GLBA and its exceptions.
Federal district courts and other state supreme courts have addressed the issue of whether a court discovery order qualifies as an exception to the GLBA. Those courts are split as to whether the exception applies to civil discovery orders. Some courts have not ordered disclosure, holding that the GLBA prevents discovery of nonpublic personal information. In Union Planters Bank, N.A. v. Gavel, Civil Action No. 02-1224 (E.D.La., March 11, 2003), vacated on other grounds, Union Planters National Bank Ass'n. v. Salih, 369 F.3d 457 (5th Cir. 2004), a financial institution sought a permanent injunction to enjoin a former employee from complying with a subpoena by disclosing the nonpublic personal financial information of its customers. The court granted the permanent injunction on the grounds that, "[t]he GLBA is written with the protection of the customers of the financial institutions in mind. This protection continues in all aspects of the GLBA. Such protection can be seen when financial institutions are allowed to provide nonpublic personal information to nonaffliated third parties, whereupon the nonaffliliated third party must maintain confidentiality." Id.
The Supreme Court of Mississippi also did not recognize the judicial process exception to the GLBA. Citing United Planters Bank, N.A. v. Gavel, the court held that the GLBA preempted the disclosure by an insurance company of a list of names and addresses of every policyholder in the state of Mississippi. "[T]o permit a court to order disclosure of private information to a private plaintiff would eviscerate the protections the GLBA establishes." Equitable Life Assurance Society v. Irving, 2002-IA-00513-SCT (Mississippi, September 11, 2003).
Other courts have, however, ordered disclosure based on the "judicial process" exception to nondisclosure under the GLBA. In Marks v. Global Mortgage Group, Inc., 218 F.R.D. 492 (S.D.W.Va., November 21, 2003), the court examined an appeal of a court order compelling discovery of nonpublic personal information of bank customers. The order was granted by a magistrate judge on the grounds that it met the exception under the GLBA, "to comply with Federal State, or local laws, rules, and other applicable legal requirements." (Internal quotation marks omitted.) Id. The District Court affirmed the trial court's order on different grounds, holding that the term "judicial process," contained in § 6802(e)(8) permits discovery requests of nonpublic personal information. The court held that, "15 U.S.C. § 6802(e)(8) permits a financial institution to disclose the non-public personal financial information of its customers to comply with a discovery request." Id. The court examined the legislative history of the GLBA and determined that, "the legislative history indicates that the House Bill, which added the privacy protections to the GLBA, envisaged an independent judicial process exception." Id. "When a party must disclose information pursuant to a discovery request, the party is responding to judicial process. Thus under the judicial process exception, the defendant may disclose its customers' nonpublic personal information in response to the plaintiffs' discovery request." Id.
Other state appellate courts that have examined this issue have agreed. In Ex Parte National Western Life Ins. Co., Civil Action No. 1030867 (Alabama, October 8, 2004), the Alabama Supreme Court affirmed a trial court discovery order compelling the disclosure of nonpublic personal information of nonaffiliated insurance customers. The court agreed with the Marks court analysis that "the phrase judicial process in § 6802(e)(8) encompasses a court order." (Internal quotation marks omitted.) Id. Therefore, the court held that, "[b]ecause the trial court's order compelling the production of the information here is certainly judicial process under § 6802(e)(8), the [insurance companies] are not prohibited by the GLBA from [responding] to [that] judicial process and disclosing the requested information." (Internal quotation marks omitted.) Id.
On the same day, the Alabama Supreme Court affirmed a trial court decision ordering an insurance company to produce to the plaintiff customer insurance applications as well as records of complaints alleging fraud or misrepresentation made to an insurance company within the state for a ten-year period. See Ex Parte Mutual Savings Life Ins. Co., Civil Action No. 1031021 (Alabama, October 8, 2004). Again, the court held that the interpretation of the GLBA in Marks was reasonable. "We hold that by incorporating the phrase `to respond to judicial process,' [in] 15 U.S.C. § 6802(e)(8), Congress created an exception applicable to situations in which the trial court orders the disclosure of a customer's nonpublic personal information during discovery in a civil action." Id. The court did order, as it did in National Western Life, a comprehensive protective order to guard against customers' privacy whose information is irrelevant to the action. Id.
The court stated that, ". . . the privacy obligation imposed upon financial institutions extends to those who receive customers' nonpublic personal information when a financial institution, pursuant to a court order, releases the information to a nonaffiliated third party. Therefore, a court, when exercising its broad discovery discretion by ordering the discovery of customer's nonpublic personal information, should also issue a comprehensive protective order to guard the customers' privacy." Ex Parte Mutual Savings Life Ins. Co., supra, Civil Action No. 1031021 (Alabama, October 8, 2004).
The court provided an example of a comprehensive protective order. "[A] comprehensive protective order could provide that any information not relevant to the pending litigation be redacted to protect the privacy of individuals, i.e., any and all unnecessary names, financial information, medical information, etc., contained in the documents produced pursuant to the discovery order." Ex Parte Mutual Savings Life Insurance Company, Civil Action No. 1031021, n. 1 (Alabama, October 8, 2004).
The Supreme Court of Appeals of West Virginia has also recognized the judicial process exception to the GLBA. The court held that the exceptions of the GLBA, when tempered by judicial involvement such as protective orders restricting irrelevant material, allow the disclosure by an insurance company to a third-party civil plaintiff of nonpublic personal information obtained from an insured. Marks v. Barnett, 215 W.Va. 123, 131, 595 S.E.2d 65 (2004).
This court adopts the holdings of the federal and state courts that have allowed insurance companies to disclose nonpublic personal information pursuant to the judicial process exception of the GLBA. See 15 U.S.C. 6802(e)(8). The bill of discovery action granted in McGuire's favor qualifies as an order of judicial process. Although judicial process "is sometimes used to refer to initial service of process as opposed to other things issued by a court . . . such as orders, notices, or other requirements . . . the term is generally used to refer to the broader definition." Ex Parte National Western Life Insurance Company, supra, Civil Action No. 1030867, n. 2 (Alabama, October 8, 2004). "[E]ven if the GLBA included no exception for civil discovery, the mere fact that a statute generally prohibits the disclosure of certain information does not give parties to a civil dispute the right to circumvent the discovery process." Marks v. Global Mortgage Group, Inc., supra, 218 F.R.D. 492.
Accordingly this court holds that the GLBA does not prevent disclosure of the requested information.
B Connecticut Insurance Information and Privacy Act
Rawlings and Unicare also argue that General Statutes § 38a-975 et seq., the Connecticut Insurance Information and Privacy Protection Act (CIPA), bars them from disclosing the requested information regarding Unicare's insureds to McGuire. In particular, they argue that § 38a-988 bars such disclosures. The section provides in pertinent part, that "[a]n insurance institution, agent or insurance-support organization shall not disclose any personal or privileged information concerning an individual collected or received in connection with a insurance transaction . . ." Rawlings and Unicare, therefore, argue that a protective order should be issued barring disclosure of the information. The statute, however, lists nineteen exceptions to the prohibition on insurance companies from disclosing personal and privileged information of their customers.
Personal information is defined under Section 38a-976(t) . . . which provides in pertinent part that it ". . . includes an individual's name and address . . ."
Privileged information means any individually identifiable information that relates to a claim for insurance benefits. General Statutes § 38a-976(w).
One exception is similar to the "judicial process" exception contained in the GLBA. Section 38a-988(8), provides that disclosure is allowed if it is "[i]n response to a facially valid administrative or judicial order . . ." The bill of discovery order, as a facially valid judicial order, qualifies as an exception to the statutory prohibition. "[Courts] are bound to interpret legislative intent by referring to what the legislative text contains, not by what it might have contained." (Internal quotation marks omitted.) Winchester v. Northwest Associates, 255 Conn. 379, 388, 767 A.2d 687 (2001). Section 38a-988 allows an exception for judicial orders similar to the bill of discovery order sought by McGuire.
Accordingly this court concludes that the bill of discovery order is also not barred by the Connecticut Insurance Information Privacy Act.
C Health Insurance Portability and Accountability Act
Rawlings and Unicare argue that the regulations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq., bar disclosure of the customer information. They cite to United States v. Sutherland, 143 F.Sup.2d 609 (W.D.Va. 2001) in which the United States District Court for the Western District of Virginia examined the HIPAA regulations. The court stated that, "Congress directed the Secretary of Health and Human Services to promulgate final regulations setting privacy standards for medical records. Pursuant to this directive, the Secretary has recently issued Standards for Privacy of Individually Identifiable Health Information . . . The rules restrict and define the ability of health plans, health care clearinghouses, and most health care providers to divulge patient medical records." (Internal quotation marks omitted.) Id., 612.
The regulations provide, "[e]xcept as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section." 45 C.F.R. § 164.508(a)(1). "A covered entity may use or disclose protected health information without the written authorization of the individual, as described in § 164.508 . . . in the situations covered by this section, subject to the applicable requirements of this section." 45 C.F.R. § 164.512. Similar to the exception cited in the previously quoted statutory enactments, an exception is provided for judicial orders of discovery. Section 164.512(e)(1)(i) provides that disclosure can occur, "in the course of any judicial or administrative proceeding . . . [i]n 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 . . ."
Based on the above the court finds that the regulations of HIPAA also do not bar disclosure of information in this case. The regulations do suggest the congressional intent to limit full disclosure of medical information. Therefore disclosure should be limited to relevant information that McGuire has requested.
III CONCLUSION
McGuire is entitled to a bill of discovery order by the court. Her requests for discovery are narrow in scope and are pertinent to the merits of her CUTPA and CUIPA claims against Rawlings and Unicare.
The various state and federal statutes examined above, however, all involve a legislative concern about the disclosure of insured information. They express "a strong interest in protecting the privacy of consumers' financial information. For that reason, it is appropriate for a court to exercise its broad discretion to fashion protective orders." Marks v. Global Mortgage Group, Inc., supra, 218 F.R.D. 492. Therefore partial protective order should be issued so those concerns are recognized. McGuire's requests for discovery should be limited from the time of the alleged activity in 1996 to the time of the beginning of the action in 2000. Limiting the time period of discovery protects McGuire's interest for disclosure as well as the privacy interests of Unicare's customers. The information disclosed should also be limited to information relevant to McGuire's CUTPA and CUIPA claims based upon her requests for discovery.
Further, the court orders that the requested information be submitted to the court under seal. The defendants should comply with any notice requirements provided under the aforementioned acts. The court can, thereafter, conduct an in camera inspection and only allow disclosure of the material relevant to McGuire's pending CUTPA and CUIPA actions.
The court will also consider redacting personal information, such as names and addresses of insureds. Any material ordered disclosed by the court should remain under seal in the court's file and both parties are ordered not to disclose the information orally or in writing or to use the information for any purpose other than the pending action. The ultimate decision on how the disclosed material will be used will be determined at the time of trial.
SKOLNICK, J.