United States District Court, D. Kansas
MEMORANDUM AND ORDER AND FOURTH AMENDED SCHEDULING
J. James U.S. Magistrate Judge.
8, 2017, the Court conducted an in-person Status Conference
to discuss and consider four outstanding motions.
Relator/Plaintiff Megen Duffy appeared through counsel, Sarah A. Brown,
Robert K. Collins, Anthony E. LaCroix and Theodore J.
Lickteig. Defendant Lawrence Memorial Hospital appeared
through counsel, David R. Frye and Elizabeth D. Hatting.
Prior to the conference, however, the Court issued a written
order ruling on one of the four.This order memorializes the oral
rulings the undersigned Magistrate Judge made on
Plaintiff's Motion to Modify Third Amended Scheduling
Order (ECF No. 160), Defendant/Counterclaimant Lawrence
Memorial Hospital's Motion for Extension of Time to
Respond to Requests 59 and 61 and Request for Cost Shifting
(ECF No. 163), and Relator's Motion for Partial
Reconsideration of Redaction Component of Protective Order
(ECF No. 169).
seeks an extension of time from April 13 to May 26, 2017 to respond
to Plaintiff's RFP Nos. 59 and 61, and to shift or divide
the costs of redacting the responsive documents. The Court
advised the parties that in ruling on Plaintiff's motion
to compel Defendant to respond to those requests for
the Court had not intended to impose any protection on
protected health information (“PHI”) beyond that
which HIPAA requires. The Court inquired of Defendant whether
an order directing Defendant to produce the documents without
redacting the information Defendant identifies as
cause Defendant to violate its HIPAA obligations. Defendant
replied that such an order would not violate HIPAA, but
Defendant would maintain concern for patient privacy.
response, Plaintiff cited the applicable HIPAA regulation
which allows a covered entity to disclose PHI without the
patient's written permission pursuant to court order or
when a qualified protective order is in place. Defendant's counsel
acknowledged the regulation would allow Defendant to produce
documents to Plaintiff without redacting PHI, and made clear
that Defendant's only ground for redaction is concern for
patient privacy. Plaintiff's counsel indicated a
willingness to narrow the protective order provisions in
consideration of Defendant's concern. In response to
questioning by the Court, Plaintiff confirmed her primary
intended use of the documents at issue is by her expert
Court determined the existing protective order contains the
provisions necessary under HIPAA to allow Defendant to
produce the documents at issue without redaction.
Accordingly, the Court granted in part and denied in part
Defendant/Counterclaimant Lawrence Memorial Hospital's
Motion for Extension of Time to Respond to Requests 59 and 61
and Request for Cost Shifting (ECF No. 163). Defendant is
granted an extension of time until May 26, 2017 to produce
documents responsive to Request Nos. 59 and 61. If Defendant
feels it needs the protection of redaction, it may redact the
documents before producing them by the deadline. The Court
denies Defendant's motion insofar as it seeks an order
for Plaintiff to bear or share in the cost of redaction. If
Defendant decides not to redact (either within the confines
of the current protective order or any narrowing of the order
as agreed to by the parties), the Court encourages Defendant
to produce the documents ahead of the deadline.
asks the Court to modify its order allowing Defendant to
respond to certain document requests by producing a random
sampling of patient records. Plaintiff acknowledges Defendant has made
the production contemplated by the Court's order and
Plaintiff has reviewed most of those records. According to
Plaintiff, because Defendant uses a different computer system
to report information to CMS than it uses for its underlying
patient records, Plaintiff is unable to compare the records
because Defendant has redacted all patient names, dates of
birth, and medical records numbers from the latter group.
Plaintiff asks the Court to direct Defendant to reveal, in
the random sample, the patient's date of birth and
medical record number. Plaintiff asserts those identifiers
will allow for an accurate match of the records from the two
systems and provide adequate protection of patient privacy.
also requests an extension of time to file a motion to compel
with regard to Defendant's production. Plaintiff is not
challenging the Court's decision to allow sampling, but
has questions about the population from which Defendant chose
the patient records.
takes no position on the redaction issue but asks that if the
Court grants the motion, it order only that Defendant
unredact the medical record number and date of birth in one
location in each of the patient records. Defendant does not
oppose the extension of time Plaintiff requests.
Court granted Relator's Motion for Partial
Reconsideration of Redaction Component of Protective Order
(ECF No. 169) and directed Defendant to unredact the medical
record number and date of birth the first time each such
identifier appears in the patient records. The Court also
extended until May 26, 2017 Plaintiff's deadline to file
a motion to compel related to the production. The Court
further directed counsel to discuss the issue immediately
following the conference.
seeks to modify the Third Amended Scheduling Order by
extending the remaining deadlines by approximately four
months. These deadlines include both parties' expert
witness designations, rebuttal expert designations, close of
discovery, proposed Pretrial Order and Pretrial Conference,
and dispositive motions deadline. Defendant opposes the
hearing counsel's arguments and considering the status of
discovery, the Court granted the motion in part. The Court
extended the remaining deadlines by only approximately two
months. The Court strongly encouraged counsel to confer and
resolve their pending discovery disputes in the hope that
further extensions will be unnecessary. For good cause shown,
the Court granted Plaintiff's Motion to Modify Third