United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE.
The GEO Group, Inc. has filed a motion for a protective order
to conduct ex parte interviews of Plaintiff Kenneth Darnell
Smith's treating physicians and to obtain protected
health information from those interviews. Doc. 92. Smith has
objected to the motion. Doc. 93. For the following reasons,
GEO's motion (Doc. 92) is DENIED.
2016, Smith brought medical malpractice claims under Georgia
law against GEO in this Court based on diversity. Doc. 1.
With discovery having been closed for nearly a year, GEO has
moved for a protective order to conduct ex parte interviews
with more than twenty of Smith's non-party physicians,
who will likely serve as fact witnesses at trial, to prepare
them for its defense. Docs. 46; 92; 92-1 at 2-3; 94.
Specifically, GEO seeks to “ask about the following
information relating to Mr. Smith's medical conditions:
(1) Mr. Smith's cervical disc disease, including any
ongoing complaints; (2) The care and treatment rendered to
Mr. Smith regarding his cervical disc disease; (3) Any
opinions regarding the cause of any ongoing symptoms and
complaints which may be related to his cervical disc disease;
(4) Mr. Smith's lumbar disc disease, including any
ongoing complaints; (5) care and treatment rendered to Mr.
Smith regarding his lumbar disc disease; (6) opinions
regarding the cause of any ongoing symptoms and complaints
which may be related to his lumbar disc disease; (7) opinions
regarding Mr. Smith's prognosis for his cervical and
lumbar disc disease.” Docs. 92-1 at 3. Smith does not
consent to the ex parte interviews. Doc. 93.
Health Insurance Portability and Accountability Act preempts
Georgia law with regard to ex parte communications between
defense counsel and a plaintiff's physicians.
Moreland v. Austin, 284 Ga. 730, 733, 670 S.E.2d 68,
71 (2008). To conduct ex parte interviews with a
plaintiff's physicians in compliance with HIPAA, GEO must
obtain a valid patient authorization, a court order, or must
“otherwise comply with the provisions of 45 C.F.R.
§ 164.512(e).” Id. at 734, 670 S.E.2d at
72 (citation omitted). To comply with § 164.512(e), GEO
must give the physicians assurance that it has requested a
qualified protective order that “(A) [p]rohibits the
parties from using or disclosing the protected health
information for any purpose other than the litigation or
proceeding for which such information was requested; and (B)
[r]equires the return to the covered entity or destruction of
the protected health information (including all copies made)
at the end of the litigation or proceeding.” Because
Smith does not consent to ex parte interviews, GEO has moved
for a protective order. Doc. 92.
protective order is “[a] court order prohibiting or
restricting a party from engaging in conduct (esp. a legal
procedure such as discovery) that unduly annoys or burdens
the opposing party or a third-party witness.”
Black's Law Dictionary 1343 (9th ed. 2009). A court may
enter a protective order on a party's motion “for
good cause shown.” Fed.R.Civ.P. 26(c). To demonstrate
good cause, “[t]he party requesting a protective order
must make a specific demonstration of facts in support of the
request as opposed to conclusory or speculative statements
about the need for a protective order and the harm which will
be suffered without one.” Dunford v. Rolly Marine
Serv. Co., 223 F.R.D. 635, 636 (S.D. Fla. 2005)
(citations omitted). GEO argues that it has met its burden of
showing good cause simply because “[m]edical records or
a deposition [that were previously provided to GEO] do not
afford GEO with the opportunity to meet with and actually
prepare its medical fact witnesses for their trial
testimony.” Doc. 94 at 3-4. But this is exactly what
courts are cautioned of when entering a protective order due
to “the potential for defense counsel to influence the
health care provider's testimony, unwittingly or
otherwise, by encouraging solidarity with or arousing
sympathy for a defendant health care provider.”
Baker v. Wellstar Health Sys. Inc., 288 Ga. 336,
339, 703 S.E.2d 601, 604 (2010).
argues that he would be unable to object “or even be
aware of objectionable inquiries” if GEO were allowed
to conduct ex parte interviews, and that GEO “cannot
point to any meaningful benefits-other than an unfair
strategic advantage-that would outweigh these considerable
negative consequences of ex parte meetings.” Doc. 93 at
5, 12. The Court agrees. GEO has failed to “make a
specific demonstration of facts in support of the request as
opposed to conclusory or speculative statements about the
need for a protective order and the harm which will be
suffered without one, ” and has thus failed to show
court considers allowing ex parte interviews, then the court
must also consider whether circumstances warrant requiring
defense counsel to give the plaintiff prior notice of any
scheduled interviews and the opportunity to attend.
Baker, 288 Ga. at 340, 703 S.E.2d at 605. GEO argues
that allowing Smith to be present during ex parte interviews
“would violate Defendant's work product/trial
preparation.” Doc. 94 at 6. However, when determining
whether a protective order should be issued under Federal
Rule of Civil Procedure 26(c), “[t]he standard is
whether the movant has shown good cause for such an
order”-which GEO has not done-not whether a privilege
exists. Farnsworth v. Procter & Gamble Co., 101
F.R.D. 355, 357 (N.D.Ga. 1984). Furthermore, even if the
Court were to consider allowing ex parte interviews with the
condition that GEO give Smith “prior notice of any
scheduled interviews and the opportunity to attend”-or
otherwise depose these witnesses, some who have already been
deposed-the discovery period ended on June 10, 2018. Doc. 46.
Accordingly, a protective order is not warranted.
Smith's rights under HIPAA and, more importantly,
Smith's right to a fair trial against GEO's need for
individual access to these physicians for trial preparation,
the Court finds, easily, that the interests of Smith prevail.
Accordingly, GEO's motion for a protective order (Doc.
92) is DENIED.