Opinion

Ledford v. Bryson City Police Department

Court
District Court, W.D. North Carolina
Filed
Sep 12, 2022
Cited by
0 cases

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:20 CV 168 MR WCM

APRIL LEDFORD )

)

Plaintiff, )

)

v. ) ORDER

)

BRYSON CITY POLICE DEPARTMENT; )

CHRIS DUDLEY; )

TOWN OF BRYSON CITY; )

)

Defendants. )

_________________________________ _____ )

This matter is before the Court on Defendants' Combined Motion and

Memorandum to Amend the Scheduling Order and to Compel Production of

Medical Records (the “Second Motion to Compel” Doc. 76), as well as an oral

Motion to Compel by defense counsel, as described below.

I. Relevant Background

On June 30, 2020, Plaintiff April Ledford (“Plaintiff”), who is appearing

, filed her complaint in this matter. Doc. 1.

Following extensive motions practice, on June 21, 2021, certain parties

and claims were dismissed, leaving the Bryson City Police Department, the

Town of Bryson City, and Chris Dudley as the remaining Defendants. Doc. 45.

Subsequently, Plaintiff advised that she wished to participate in this

Court’s Pro Se Settlement Assistance Program. However, the Clerk was unable

to secure an attorney to represent Plaintiff in the Program and the case was

withdrawn from the Program. Doc. 48.

October 14, 2021, a Pretrial Order and Case Management Plan (“Pretrial

Order”) was entered. Doc. 57. Among other things, the Pretrial Order set a

deadline of July 8, 2022 for the completion of court-enforceable discovery and

a deadline of August 9, 2022 for the filing of dispositive motions.

On March 18, 2022, Defendants filed a motion to compel (the “First

Motion to Compel,” Doc. 71), by which they sought, in relevant part, an Order

a) compelling Plaintiff to execute certain “Patient Authorization(s) for Release

of Protected Health Information” (the “Authorizations”) for Defendants to use

in obtaining Plaintiff’s medical records or, b) alternatively, authorizing

Defendants to issue subpoenas directly to Plaintiff’s providers for the records.

The undersigned conducted a hearing on the First Motion to Compel on

April 8, 2022, and a written Order denying the First Motion to Compel was

entered on April 13, 2022. Doc. 73.

On August 1, 2022, Defendants filed the Second Motion to Compel. Doc.

76.

A hearing on the Second Motion to Compel was held on August 12, 2022.

During the hearing, and in response to the Court’s inquiries as to the precise

relief Defendants were seeking, defense counsel made an oral motion

(discussed in greater detail below), in the alternative, for an Order directing

Plaintiff to supplement her discovery responses.

At the conclusion of that proceeding, the undersigned took the matter

under advisement. This Order now follows.

II. Discussion

A. Timeliness of the Motions

The materials before the Court indicate that, on November 15, 2021,

Defendants served Dudley’s First Set of Interrogatories, Request for

Production of Documents, and Requests for Admission on Plaintiff. Document

Request #9 directed Plaintiff to execute, date, and return certain

Authorizations. Doc. 71-3; Doc. 76-1.

The following day, November 16, 2021, Defendants sent subpoenas to

seven (7) of Plaintiff’s healthcare providers. Doc. 76-3.

In November and December 2021, some of those providers responded to

defense counsel and objected to producing copies of Plaintiff’s records pursuant

to the subpoenas.1

1 The record includes objections from four (4) of the providers. Doc. 76-4. The Second

Motion to Compel indicates that a fifth provider also objected, though that objection

has not been submitted. See Doc. 76 at 5-6. The record does not indicate that any

objections were received from the remaining two (2) providers.

On December 14, 2021, Plaintiff responded to Defendants’ written

discovery requests and objected to executing the Authorizations. Doc. 76-2.

On January 28, 2022, defense counsel sent a letter to Plaintiff attaching

revised Authorizations for six (6) of the providers and asking Plaintiff to sign

and return them by February 7, 2022. Doc. 71-5. These forms limited the period

covered by the records to five years before the first incident alleged in

Plaintiff’s complaint.

On February 7, 2022, Plaintiff responded by email, saying generally that

she did not object to producing relevant records but making other objections.

Doc. 71-6.

On March 18, 2022, Defendants filed the First Motion to Compel. Doc.

71. That motion did not report that Defendants had served the subpoenas on

Plaintiff’s providers and neither copies of the subpoenas nor the providers’

objections were attached to that filing. In addition, during the April 8 hearing,

defense counsel did not disclose that subpoenas had been served but

represented that Defendants were seeking the Court’s advance permission to

serve subpoenas, in order to avoid potential objections that the providers might

raise to the production of Plaintiff’s records.

In the April 13, 2022 ruling denying the First Motion to Compel, the

Court stated:

. . .assuming that courts may, in the appropriate

circumstance, order a party to execute an

authorization for the release of medical records, the

undersigned is not persuaded that such authority

should be exercised in this case. Defendants have not

propounded a document request seeking the

production of Plaintiff’s medical records themselves,

nor have they issued third-party subpoenas to

Plaintiff’s providers for those records. Further, though

Plaintiff has indicated she objects to the production of

all of her records, it does not appear that Plaintiff has

been particularly uncooperative regarding discovery to

date, and the deadline to complete court-enforceable

discovery is not imminent.

With respect to Defendants’ alternative request for an

Order authorizing Defendants to serve Plaintiff’s

medical providers with third-party subpoenas, during

the hearing defense counsel explained that

Defendants hope that such authorization would avoid

potential objections that the providers may raise to the

production of Plaintiff’s records. However, defense

counsel also conceded that Defendants are not

required to obtain such pre-authorization, and the

undersigned is not persuaded that it should be

provided here. The issuance of third-party subpoenas,

in the usual course, to Plaintiff’s providers will give

both the providers and Plaintiff the opportunity to

raise appropriate objections, if any, to the production

of Plaintiff’s records.

Doc. 73 at 4-5.

On August 1, 2022, Defendants filed the Second Motion to Compel, which

stated that Defendants were again seeking an Order compelling Plaintiff to

“produce executed HIPAA releases” or, alternatively, “authorizing Defendants

to obtain same by subpoena.” Doc. 76 at 1.

During the hearing on the Second Motion to Compel, defense counsel

modified Defendants’ request (from that stated in the written motion) and

explained that Defendants wished to obtain Plaintiff’s medical records by

means of: a) an Order compelling Plaintiff to execute a “general” Authorization

(i.e., an authorization not directed to any particular provider) or b) an Order

stating that Plaintiff’s records are relevant and discoverable, and expressly

authorizing Defendants to obtain the records from Plaintiff’s providers

(including providers that have not yet been identified but that could be

identified as Plaintiff’s records are reviewed).

Additionally, defense counsel advised that Defendants had sent a new

set of discovery requests to Plaintiff on June 29, 2022 requesting that Plaintiff

produce the records. As an alternative to the relief sought through the Second

Motion to Compel (as modified during the hearing), defense counsel made an

oral motion for an Order requiring Plaintiff to supplement her responses to the

recent discovery requests and directing her to produce the records herself.

Defendants, however, did not provide a copy of those requests or Plaintiff’s

responses.

The Second Motion to Compel was filed on August 1, 2022, which was

approximately three weeks after the close of court-enforceable discovery. That

Motion and the related oral motion represent the continuation of a dispute over

the process by which Defendants may obtain Plaintiff’s medical records that

has been ongoing since the end of 2021; Defendants knew in November and

December that Plaintiff objected to providing the Authorizations and that

Plaintiff’s providers (or at least some of them) objected to producing Plaintiff’s

medical records in response to the subpoenas.

Defendants filed the First Motion to Compel on March 18, 2022, and a

written Order denying that Motion was issued on April 13, 2022. Docs. 71, 73.

However, Defendants waited an additional three months—and until after the

discovery deadline had passed—to file the Second Motion to Compel and it does

not appear that Defendants made further efforts to obtain the records between

the entry of the April 13 Order and the end of June 2022 when Defendants

issued their more recent written document requests to Plaintiff.2

In addition, document requests served on June 29, 2022 would have been

tardy in light of the discovery deadline of July 8 set by the Pretrial Order. See

Doc. 57 at 4 (requiring counsel to “to initiate discovery requests…sufficiently

in advance of the discovery completion deadline so as to comply with this

Order” and providing that requests seeking responses after the court-

2 The Court also notes that, though its ruling on the First Motion to Compel was

clearly based on the understanding that Defendants had not issued the subpoenas to

Plaintiff’s providers at the time of the hearing on that motion, the information

provided in the Second Motion to Compel and during the August 12 hearing reveals

that Defendants had issued subpoenas to Plaintiff’s providers at the end of last year

but did not advise that this information was incorrect until the Second Motion to

Compel was filed.

enforceable discovery deadline “are not enforceable except by order of the Court

for good cause shown”).

Under these circumstances, the Second Motion to Compel, as well as

Defendants’ oral motion, will be denied as untimely. Wiener v. AXA Equitable

Life Ins. Co., 481 F. Supp. 3d 551, 561 (W.D.N.C. 2020) (“[I]t is well established

in this district that ‘a party must generally move to compel a party to comply

with a discovery request prior to the close of discovery or the motion is

untimely’”) (quoting Willis v. Cleveland Cty., No. 1:18-cv-292, 2020 WL

398508, at *3 (W.D.N.C. Jan. 23, 2020) (denying motion to compel filed after

the discovery deadline as untimely), aff'd, 2020 WL 1061680 (W.D.N.C. Mar.

4, 2020)).

Defendants’ request to extend the July 8 deadline to complete court-

enforceable discovery will similarly be denied. The parties, however, remain

free to engage in voluntary discovery consistent with the terms of the Pretrial

Order.

B. Substantive Issues with Defendants’ Request

Beyond the timing issues discussed above, the Second Motion to Compel

suffers from other infirmities.

The undersigned previously noted that Plaintiff has placed her physical

and mental health at issue. See Doc 73 at 2-3. Further, the undersigned agrees

with Defendants that Plaintiff alone cannot determine which of her records are

relevant and therefore must be produced; a defendant is entitled to discover

relevant information, with the Court (not the plaintiff) resolving disputes as to

relevance.

Here, though, it is not necessary for the Court to determine which of

Plaintiff’s medical records may be relevant to this litigation since Defendants

have not demonstrated that the relief they seek is authorized. That is, the

Court is not persuaded that Defendants are entitled to the entry of an Order

either compelling Plaintiff to execute a “general” Authorization or stating that

Plaintiff’s records are relevant and discoverable, and expressly authorizing

Defendants to obtain the records from Plaintiff’s providers (including providers

who have not yet been identified).3

A defendant wishing to obtain a plaintiff’s relevant medical records has

a number of alternatives. For example, the defendant may seek the records

from the plaintiff herself via a document request pursuant to Rule 34.4

3 During the August 12 hearing, Defendants mentioned a “qualified protective order.”

Such orders may be issued under the Health Insurance Portability and Accountability

Act (“HIPAA”). See e.g., 45 CFR § 164.512(e) (setting out the standards for disclosure

of protected health information for judicial and administrative proceedings). Here,

though, Defendants have not moved for the entry of a protective order pursuant to

HIPAA and otherwise have not explained how such an Order would be appropriate

when Defendants have not also asked that Plaintiff’s providers be compelled to

produce Plaintiff’s records in response to the subpoenas.

4 The undersigned has not been provided with Defendants’ June 29 written discovery

requests but presumes they fall into this category (though they were not made

sufficiently in advance of the close of discovery).

Alternatively, the defendant may use the subpoena process to seek the

medical records directly from the plaintiff’s healthcare providers.5

Additionally, parties may obtain medical records cooperatively, typically

with the plaintiff authorizing her providers to release her records directly to

defense counsel.6

However, Defendants have not produced any authorities indicating that

the Federal Rules of Civil Procedure permit Defendants to obtain Plaintiff’s

records using the mechanisms described by Defendants during the hearing on

the Second Motion to Compel.

5 Defendants in this case also attempted to use this option and issued subpoenas to

some of Plaintiff’s healthcare providers. However, when the providers objected (or

failed to respond), Defendants did not seek an Order compelling the providers to

respond. Further, it does not appear that the providers were given notice of the

Second Motion to Compel, and no attorney or other representatives of the providers

appeared at the hearing.

6 Both sides may find this process to be helpful; the plaintiff does not have to expend

the effort to obtain the records herself and produce them to the defendant, while the

defendant may prefer to obtain the files directly from the providers. As the Court has

previously noted, though, courts have reached different conclusions as to whether a

party may be compelled to execute medical authorizations. Doc. 73 at 3.

Accordingly, Defendants' Combined Motion and Memorandum to Amend

the Scheduling Order and to Compel Production of Medical Records (Doc. 76)

and Defendants’ oral Motion to Compel are denied.

It is so ordered.

Signed: September 12, 2022

od

W. Carleton Metcalf / ey,

United States Magistrate Judge alls 7

11

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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