United States District Court, D. New Mexico
ORDER GRANTING CITY DEFENDANTS' MOTION TO COMPEL
PRODUCTION OF VALID RELEASES
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on City Defendants' Motion
to Compel the Production of Valid Releases Pursuant to the
Health Insurance Portability and Accountability Act
(“HIPAA”). Doc. 132. Defendants move the Court to
order Plaintiffs Artis, Ellis, and Robinson to provide
updated HIPAA releases, as their previously completed
releases have now expired. Having reviewed the motion and
attendant briefing (docs. 132, 135, 136), the Court will
GRANT Defendants' Motion to Compel.
subject of the current Motion to Compel is not a new
discovery request per se. Rather, Defendants request
the extension of an answer to a previous discovery request.
In June and July of 2018, pursuant to Defendants'
discovery requests, Plaintiffs each signed two releases under
HIPAA. Doc. 132-8, -9, -10,
Exhibits H-J. These forms authorized the release of records
for treatment dates between December 2011 and January 2019.
Id. However, each authorization expires one year
from its date of execution, see id., meaning that
the six signed releases expire in either June or July of
2019. Defendants will no longer be able to access
Plaintiffs' records after that time.
about the time these HIPAA releases were signed, the
discovery deadline was extended from July 30, 2018 (doc.
26) to October 1, 2018 (doc. 36). Therefore,
neither Plaintiffs nor Defendants had any reason to believe
that the one-year expiration period would prove insufficient.
However, the deadline for termination of discovery was
subsequently extended to June 14, 2019 (doc. 116)
and then to September 12, 2019 by stipulated motion of the
parties (doc. 133). Consequently, as of the present
date, discovery is ongoing in this case, but Plaintiffs'
HIPAA authorizations are set to expire several months before
the September 12, 2019 discovery deadline.
Current Release Requests
their current motion, filed on May 10, 2019, Defendants
request the Court to compel production of valid, updated
HIPAA releases for the period of December 2011 to May
2019. See doc. 132 at 9-10. Plaintiffs
responded in opposition on May 24, 2019. Doc. 135. Defendants
replied on June 4, 2019, additionally requesting
attorney's fees incurred in the litigation of the motion.
their Second Set of Requests for Production, Defendants
requested updated releases from Plaintiffs Artis, Ellis, and
Robinson (“Request for Production No. 1”). See,
e.g., doc. 132-11 at 2. Defendants initially requested
releases for a time period of 2007 through 2017. See doc. 132
at 7; doc. 135 at 2. Each Plaintiff objected to Request for
Production No. 1 as “overbroad and unduly burdensome,
” and offered instead to sign a release with a date
range of January 1, 2019 through June 14, 2019. Docs. 132-11,
132-12, 132-13. In an attempt to resolve the dispute,
Defendants offered to adjust the release dates to December
2011 through May 2019-the original period of the expired
releases, plus five additional months. See doc. 132 at 8;
doc. 132-14. Plaintiffs, however, remain firm in their
refusal to provide the requested releases. See generally doc.
order to evaluate the validity of Plaintiffs' objections,
it is necessary to separate the issue of the expiration
date of the releases from the issue of the date
ranges covered by the releases. Plaintiffs appear to
have no objection to the date ranges covered by the requested
releases. The currently requested range is December 2011
through May 2019. See doc. 132 at 8. The period of December
2011 through January 2019 was covered by Plaintiffs'
prior authorizations without objection. See docs. doc. 132-8,
-9, -10, Exhibits H-J. Indeed, Plaintiffs acknowledge that
the present request is “duplicative” of Request
for Production No. 10, from Defendants' first set of
requests, at least with respect to the original time frame.
See doc. 135 at 2. The only new date range is from January
2019 through May 2019. However, Plaintiffs have explicitly
stated that they are willing to sign a release covering this
new period of time. See doc. 135 at 2 (“Plaintiffs
submitted an alternative medical release date range for the
relevant time frame of January 2019 through the then close of
discovery, June 14, 2019.”). The Court therefore
concludes that Plaintiffs take no exception to the requested
date range of December 2011 through January
Plaintiffs do appear to object to the updated expiration
date of the newly requested releases. That is, they
object to providing updated HIPAA releases for the same date
ranges already provided, precisely because the new releases
would be “duplicative of the previously provided
medical releases.” Doc. 135 at 2. The only material
difference would be the non-expired status of the new
releases. Plaintiffs characterize Defendants' request for
updated releases as a “second bite at the apple”
and claim that they have had “ample access to
Plaintiffs' medical records, ” id., apparently
believing that Defendants ought to have acquired and fully
reviewed the relevant medical records before the initial
discovery is still ongoing in this case, a fact that was not
anticipated at the time Plaintiffs signed the standard HIPAA
forms including a one-year expiration date. Defendants were
not obliged to access the requested information at any
particular time, or to use it for any one particular purpose.
Plaintiffs have established that they do not object to
Defendants' having “access to current information
on Plaintiff's injuries, ” doc. 135 at 1. All that
Defendants now request is continued access to past
information (Plaintiffs' records from prior to January
2019) that was already previously available.
Rule 26(e), a party who has responded to a request for
production “must supplement its disclosure or
response…in a timely manner if the party learns that
in some material respect the disclosure or response is
incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other
parties during the discovery process or in writing[.]”
Fed.R.Civ.P. 26(e)(1). In this case, the Court finds that
Plaintiffs' response became effectively incomplete when
Plaintiffs' HIPAA authorizations expired before the close
of discovery, terminating Defendants' access to the
information. Even assuming, arguendo, that
Plaintiffs had no duty to update their disclosures under Rule
26(e)(1), they provide no adequate or persuasive argument for
their refusal to comply with Defendants' new requests. At
worst, Defendants will waste their time examining information
that was already examined previously, which does not appear
to burden or prejudice Plaintiffs in any meaningful way.
Plaintiffs argue that Defendants' motion should be denied
based on Defendants' failure to confer in good faith
before filing. See doc. 135 at 3-4. Indeed, Local
Rule 7.1 provides that all motions must include a
“recitation of a good-faith request for concurrence,
” except where the opposing party is a pro se
inmate. D.N.M.LR-Civ. 7.1(a). The advisory committee notes of
Federal Rule of Civil Procedure 26 further provide that
parties must confer before filing a motion to compel.
See Rule 26 Notes of Advisory Committee on 2006
the exact contours of Defendants' duty to confer and to
seek concurrence, the Court finds that Defendants have
fulfilled it beyond question. Defendants' Motion to
Compel includes a detailed recitation of their attempts to
communicate with Plaintiffs' counsel, and an attached
letter to Plaintiffs' counsel regarding the HIPAA
releases. See doc. 132 at 8 (describing “City
Defendants' May 3, 2019 letter and multiple calls to
Plaintiff's counsel to determine their position on City
Defendants' letter”); doc. 132-14, Exhibit N
(letter to Plaintiffs' counsel dated May 3, 2019). In
fact, Defendants allege-and Plaintiffs do not
dispute-that Plaintiffs' counsel failed to
respond to Defendants' letter or calls. See doc. 132 at