The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is (a) plaintiff's motion to compel defendants to produce third-party prison inmates' medical records believed to be currently in defendants' possession (Docket No. 60), and (b) defendants' motion for extension of time to complete discovery by six months (Docket No. 64; see Docket No. 65, Def. Atty. Decl. ¶ 19). The parties consented to proceed before the undersigned as Magistrate Judge on June 20, 2003 (Docket No. 20).
This case is a job discrimination action by Dr. Cole-Hoover, alleging that defendant New York State Department of Correctional Services ("DOCS") terminated her because of her race, naming other defendants as alleged conspirators in her wrongful termination (see Docket No. 63, Defs. Atty. Decl. ¶¶ 6-7). According to defendants, plaintiff was served with a Notice of Discipline in February 2002 charging her with twelve forms of misconduct for her treatment of sixty inmates at the Albion Correctional Facility (id. ¶ 9) and negligent clinical practice (see id. ¶ 44).
Plaintiff commenced this federal action on November 21, 2002 (Docket No. 1). Meanwhile, plaintiff started an arbitration contesting her termination. During that arbitration, redacted medical records from prison inmates under plaintiff's care were produced by defendants (see Docket No. 63, Defs. Atty. Decl. ¶¶ 12-13). Plaintiff's attorney in the arbitration requested and received the unredacted version of these medical records, some 12,000 pages of documents for approximately sixty inmates, on the condition that they be kept in confidence and not used for any purpose outside of the arbitration (id. ¶¶ 14-15; Docket No. 60, Pl. Atty. Affirm. ¶ 6). The confidentiality stipulation in the arbitration does not provide defendants or plaintiff's state proceeding attorney with any authorization to disclose these records (Docket No. 63, Defs. Atty. Decl. ¶ 19).
Under the latest Amended Scheduling Order in the federal action (Docket No. 57), discovery was to be completed by July 31, 2006, without further extensions. Apparently to keep this schedule and while in the midst of deposing plaintiff (see Docket No. 59), she sought production of the unredacted medical records believed to be in defendants' possession, offering whatever confidentiality terms the Court would set in ordering their production (Docket No. 60), and submitting a proposed confidentiality Order. According to defense counsel, the unredacted records still remain with plaintiff's state proceeding attorney, Richard Cole, and have not yet been turned over to defense counsel (Docket No. 63, Defs. Atty. Decl. ¶ 18).
After plaintiff filed her motion (Docket No. 60) and sent a proposed Order, the Court issued a briefing schedule. The Order setting forth this schedule specifically asked counsel to address three issues, "(a) the basis for defendants to produce third parties' medical records that are presently in defense counsel's possession, (b) the effect of the Health Insurance Portability and Accountability Act [HIPAA, 42 U.S.C. §§ 1320d-1320d-8*fn1 ] on the disclosure sought by plaintiff here and the ability of this Court to order such disclosure by defendants of third parties' records, (c) the conditions for production to the defense counsel in the parallel state arbitration proceeding of the medical records sought in this action." (Docket No. 61.) Responses, particularly on these issues, were due by July 11, 2006, replies (if any) were due by July 17, 2006, and the motion was deemed submitted as of July 17, 2006 (Docket Nos. 61, 62).
Defendants argue that redaction of the inmates' identifying information from these records would take an enormous amount of time as would an effort to locate and obtain authorizations from the inmates (and, in some cases, former inmates) to release their records (Docket No. 63, Def. Atty. Decl. ¶¶ 27-30, 25-26). Under HIPAA and its regulations, one exception from the general ban on unauthorized disclosure of medical records is release pursuant to a court Order during the course of a judicial proceeding, 45 C.F.R. § 164.512(e)(1)(I) (id. ¶ 32). Another possible exception is if plaintiff has given notice of the request to the inmates involved or made reasonable efforts to secure a qualified protective order (id. ¶¶ 33-35)*fn2 .
Defendants conclude that, while they do not object to plaintiff's motion, they require a Court Order to disclose these records (id. ¶ 49).
Now defendants move for extension of the discovery deadline by six months because they have not completed scheduled depositions (including plaintiff's), that those who have been examined identified additional witnesses and documents that have yet to be produced (Docket No. 65, Defs. Atty. Decl. ¶¶ 4-7, 11-17). Defense counsel has not yet made defense demands upon plaintiff (id. ¶ 18). One defendant, Dr. Marc Stern, now resides in Washington and a planned telephonic deposition proved impossible and he will have to come east for a deposition, upon adequate notice (id. ¶¶ 8-9), and Dr. Stern's deposition would require review of the 12,000 pages of medical records at issue with plaintiff's motion (id. ¶ 10).
Plaintiff filed a single sentence reply that concurs in the defense declaration and in their motion for extension of time (Docket No. 66).
I. Production of Third Parties' Medical Records
At issue here is production of thousands of pages of third parties' medical records in this employment discrimination action by the treating physician. Federal Rule of Civil Procedure 26(b)(1) entitles the requesting party to production of non-privileged materials and, in particular, Rule 34 provides for production of what documents and other materials a party has in its possession, custody, or control, Fed. R. Civ. P. 34(a)(1). How a discharged doctor treated her patients would be relevant if she was discharged for cause. Plaintiff alleges that she identified five inmates who received inadequate care from other providers, as a result (just prior to her suspension) two defendants checked the ...