United States District Court, D. New Mexico
ORDER GRANTING DEFENDANTS' MOTION TO COMPEL ZIA
CONSULTING, INC., TO PRODUCE PLAINTIFFS' RECORDS
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Defendants' Motion to
Compel Zia Consulting, Inc. to Produce Plaintiffs'
Records. Doc. 177. Defendants' motion was filed
on November 7, 2019, and Plaintiffs' response was due no
later than November 21, 2019. At the time of this Order's
filing, Plaintiffs have not responded. Local Rule 7.1
The failure of a party to file and serve a response in
opposition to a motion within the time prescribed for doing
so constitutes consent to grant the motion. The failure to
file and serve a reply in support of a motion within the time
prescribed for doing so constitutes consent that briefing on
the motion is complete.
D.N.M.LR-Civ. 7.1(b). The Court therefore finds that
Plaintiffs have consented to the granting of Defendants'
motion. Upon consideration, the Court further
finds no reason that the motion should not be granted.
and August of 2019, Plaintiffs Ellis, Artis, and Robinson
each completed and signed HIPAA (Health Insurance Portability
and Accountability Act) releases authorizing disclosure of
their medical and mental health records by Zia Consulting,
Inc., to both Robles, Rael & Anaya P.C. (counsel for
Defendants) and William E. Foote, Ph.D. (Defendants'
expert witness). See docs. 177-7 to
-18. These releases authorized Zia Consulting,
Inc., to disclose a “complete copy of medical
records” and test results relevant to Plaintiffs'
mental health records, as well as “all medical records
and billing records … without limitation, ” to
the named recipients. See id. Signed HIPAA releases
notwithstanding, Zia Consulting, Inc., indicated that it
would not comply with Defendants' subpoena until both
parties signed its proposed confidentiality order. Doc.
177 at 2. Pursuant to a chain of events that is neither
entirely clear to the Court nor particularly germane to the
instant motion, Plaintiffs have not agreed to file the
Stipulated Confidentiality Order provided by Zia Consulting,
Inc., and the subpoenaed records consequently have not been
information sought by Defendants is less broad than that
covered by the signed releases. Defendants have limited their
request to specific test results, and the corresponding notes
and recordings, from particular time periods. See doc.
177-6 at 2-4. In addition, Defendants have already
agreed to the terms of Zia Consulting, Inc.'s Stipulated
Confidentiality Order, see doc. 177-20, and request
that those terms be incorporated into this Court's Order,
see doc. 177 at 14. It is difficult to imagine any
objection by Plaintiffs to Defendants' requests, given
their completed HIPAA releases and prior agreement to the
terms of the Stipulated Confidentiality Order, see doc.
177-20 at 7. There appears to be no substantive
disagreement among the parties, and Plaintiffs'
non-response indicates their consent to the motion.
Motion to Compel Zia Consulting, Inc. to Produce
Plaintiffs' Records (doc. 177) is therefore
GRANTED, and IT IS ORDERED as follows:
(1) Zia Consulting, Inc., shall produce without further delay
all information set forth in Exhibit A to Defendants'
subpoena (doc. 177-6 at 2-4), including but not
limited to all test data, raw and scaled scores,
client/patient responses to test questions or stimuli, and
psychologist's and test proctor's notes and
(2) Zia Consulting, Inc., shall produce the responsive
records directly to counsel for Defendants and to Dr. William
(3) Defendants and Dr. Foote shall follow the terms of the
Stipulated Confidentiality Order proposed by Zia Consulting
(see, e.g., docs. 177-19 at 5, 177-20 at
6-7), to the extent that the Stipulated
Confidentiality Order accords with this Order.
IS SO ORDERED.
 The Local Rules also require the
moving party to “determine whether a motion is opposed,
” and state that “a motion that omits recitation
of a good-faith request for concurrence may be summarily
denied.” DNM.LR-Civ. 7.1(a). Defendants' motion is
in compliance with the letter of the rule-it includes a
recitation of request for concurrence from Zia Consulting,
Inc.'s counsel Michelle Lally Blake, see doc.
177 at 2 n.1-though perhaps not the spirit, as it
references no request for concurrence from
Plaintiffs' counsel. In any event, even assuming