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withdrawn from the Program.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