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Johnson v. Federal Bureau of Prisons

United States District Court, E.D. New York

November 9, 2017

LAYNE W. JOHNSON, Plaintiff,



         Plaintiff Layne W. Johnson (“plaintiff”) filed this action pro se on April 23, 2015 against the Federal Bureau of Prisons (“BOP” or “defendant”). He brings his claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-80, to recover for injuries he sustained by virtue of alleged negligent medical treatment he received from October 2012 through January 2014 while he was incarcerated in the Metropolitan Detention Center (“MDC”) in Brooklyn. Plaintiff proceeded pro se until February 2, 2017, at which time he became represented by pro bono counsel.

         On October 18, 2017, the Court held a status conference to discuss the progress of this case and to address plaintiff's outstanding motions.


         A. Plaintiff's Motion for Protective Order Regarding Confidential Records

         1. The Parties' Positions

         On July 13, 2017, plaintiff, now represented by counsel, filed a motion seeking a protective order to ensure that any confidential and sensitive information shared during the course of the litigation, such as his medical records, will be treated confidentially. (Pl.'s MPO, July 13, 2017, ECF No. 47).

         In opposition, the defendant argues that the motion for protective order should be denied because the plaintiff “waived any privilege pertaining to these records” by bringing suit, and because plaintiff, while proceeding pro se, already signed releases for the production of his medical records absent a protective order. (See Def.'s Opp'n at 1-2, July 20, 2017, ECF No. 48). Defendant argues that requiring the defendant to file confidential medical records under seal would be “prejudicial to the defendant and against sound public policy favoring public access to the claims and defenses set forth by the parties.” (See id. at 2).

         Plaintiff offers three arguments in reply. (See Pl.'s Reply, July 24, 2017, ECF No. 49). Plaintiff first argues that defendant confuses privilege with privacy. (Id. at 1). He is not withholding any records from the defendant, but instead seeks to guard such records against public dissemination. (Id.) Second, plaintiff explains that a protective order does not govern what will end up being sealed if used in connection with the proceedings, but instead “sets forth a procedure to help the parties identify what documents or information may be subject to a sealing request.” (Id. at 2). Finally, plaintiff argues that “[w]hen Mr. Johnson signed releases for the production of his medical records, he was pro se and not aware of the need for a protective order to guard his privacy interests. Given his pro se status at the time, his failure to request a protective order should not serve as an ‘inadvertent forfeiture' of his right to privacy in his medical records.” (Id. at 3). That is particularly so, he argues, in light of the “special solicitude” afforded to pro se litigants. (Id.)

         At the status conference, defendant's counsel from the United States Attorney's Office (“USAO”) presented additional arguments in opposition to the issuance of a protective order. Specifically, the defendant argued that the USAO has never entered into a protective order regarding a plaintiff's medical records in a personal injury or medical negligence case such as this. According to counsel, such an order is unnecessary given the USAO's promise not to misuse the records. Counsel also raised concerns that plaintiff, who is now represented by a firm that defendant contends is “highly litigious, ” would use the protective order as the basis for a motion to hold the defendant and its counsel in contempt. In response, plaintiff explains that he seeks only to ensure prospectively that his confidential information is not shared outside of this litigation to the extent possible in light of the time that has passed without a protective order in place. Plaintiff further argues that a protective order should be unobjectionable given that the defendant has already pledged to keep the medical records confidential.

         2. Good Cause for Protective Order

         Rule 26 of the Federal Rules of Civil Procedure empowers the Court to issue a protective order upon a showing of “good cause” to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). The regulations promulgated to implement the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936 (1996), explicitly contemplate that both state and federal courts will issue protective orders in the form of a “HIPAA-Qualified Protective Order” to allow covered health providers to disclose a patient's medical information. See 45 C.F.R. §§ 164.512(e)(i)-(ii). To enable a covered entity to release such information, the protective order must specifically provide that: (1) the parties are prohibited from using or disclosing protected health information for a purpose other than that for which it was requested, and (2) any information provided in response to such an order must be returned to the provider or destroyed at the end of the litigation. See 45 C.F.R. § 164.512(e)(v)(A)-(B).

         Thus, federal courts routinely issue protective orders to ensure the confidentiality of medical records. That is so even in proceedings such as this, where the plaintiff has put his medical condition at issue. The Court has carefully reviewed each of the cases cited by the defendant and concludes that plaintiff is correct: each of the cases cited by the defendant arose when a party sought a protective order to prevent the other party from obtaining discovery of certain medical records-sometimes even when a confidentiality order was already in place. These cases are entirely different from the situation before this Court, where the plaintiff is not resisting disclosure of the records to the defendant, but seeks only to limit how such confidential medical records may be used. See, e.g., Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627, 635 (E.D.N.Y. 1997) (explaining that plaintiff sought to place medical records “outside the reach of discovery” altogether); see also Romano v. SLS Residential Inc., 298 F.R.D. 103, 112-14 (S.D.N.Y. 2014) (explaining that individuals who did not opt out of a class action suit were “deemed to have waived any privilege” in their medical records, thereby ensuring that defendants are “given the right to access pertinent documents in order to defend themselves” by way of a HIPAA-qualified protective order); Floyd v. SunTrust Banks, Inc., 878 F.Supp.2d 1316, 1327 (N.D.Ga. 2012) (observing that medical records become subject to discovery “when a litigant alleges matters that put her medical status at issue). (See Def.'s Opp'n at 1).

         The most recent case defendant relies on, Romano v. SLS Residential, Inc., recognizes that although a plaintiff waives his privilege in medical records by putting his medical condition at issue, such a waiver simply subjects the records to disclosure in discovery but does not deprive the records of all protection. See Romano v. SLS Residential Inc., 298 F.R.D. at 113. (See Def.'s Opp'n at 1-2). Indeed, as the Romano court observed, notwithstanding the waiver subjecting the records to discovery, “it is plainly appropriate to shield [the plaintiff's] identit[y] and course of treatment from the public by requiring that these documents be treated on an ‘attorney's eyes only' basis-that is, limited in their disclosure to counsel, designated ...

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