United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
King, Magistrate Judge
parties consented, pursuant to 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73, to have the undersigned Magistrate Judge
determine all dispositive and non-dispositive matters in this
case, with any appeal lying before the Sixth Circuit Court of
Appeals. (Docket # 14).
Spring View Physician Practices, LLC, (“Spring
View”) filed a Motion to Quash and Motion for
Protective Order regarding Plaintiff Stumph's subpoena
compelling the deposition of, a non-party, Mr. Jeffrey Baker
and Defendant Kriegler's subpoena for Mr. Baker's
medical records. (Docket # 26). Plaintiff Stumph responded
(Docket # 29), as has Defendant Kriegler. (Docket # 31).
Defendant Spring View replied to both responses (Docket #
33). This matter is now fully briefed and ripe for
reasons discussed below, Spring View's Motion to Quash
and Motion for Protective Order (Docket # 26) is
DENIED IN PART AND RESERVED IN PART. The
Motion's request to quash the subpoena of Mr. Baker is
DENIED. The Motion's request to quash
the subpoena of Mr. Baker's medical records is
RESERVED at this time. This Court will hear
oral argument solely on the issue of whether to quash the
subpoena for Mr. Baker's medical records. The deposition
of Mr. Baker shall be held in abeyance until this Court
issues its ruling on the subpoena for Mr. Baker's medical
matter arises from two alleged incidents of sexual misconduct
by Defendant Samuel Kriegler, M.D., an employee of Spring
View Urology, at Spring View's offices. Plaintiff Nicole
Stumph alleges that she was the victim of unwanted sexual
touching from Defendant Kriegler during her patient visits
with Defendant Kriegler. (Docket #1-2 at 2). Plaintiff
alleges that Defendant Kriegler “touched the private
areas, buttocks, and breasts of the Plaintiff” during
her patient visits on January 18, 2018, and January 24, 2018,
and that “such touching was offensive and
unwarranted.” (Id.). Plaintiff also asserts
claims against Defendant Spring View for negligent selection,
retention, supervision, and training of Defendant Kriegler,
resulting in Defendant Kriegler's actions while
functioning as its agent/employee. (Id. at 3).
Plaintiff brings claims of battery (Counts I & II),
outrage (Count III), negligence (Count IV), and for punitive
damages (Count V) against Defendant Kriegler. (Id.).
On January 18, 2019, Defendant Kriegler removed the case from
the Marion Circuit Court. (Docket # 1).
September 18, 2019, Plaintiff issued a subpoena to Mr.
Jeffrey Baker, a non-party to this litigation, seeking to
take his deposition on October 10, 2019. (Docket # 29 at 1).
Defendant Kriegler then issued a subpoena to Spring View
Urology and Spring View Hospital for Mr. Baker's medical
records. (Id.; Docket # 26 at 2-3). Mr. Baker is a
non-party to this litigation, who, according to Plaintiff,
contacted Plaintiff's counsel and offered to testify
against the Defendants. (Docket # 29 at 2). Plaintiff
represents that Mr. Baker has a similar account of
“appalling, unwanted sexual touching by Defendant
Kriegler at the time Defendant Kriegler was an employee of
Spring View.” (Id.).
Federal Rules of Civil Procedure give parties the right to
“obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense.”
Fed.R.Civ.P. 26(b)(1). Relevance for discovery purposes is
broad. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389,
402 (6th Cir. 1998). However, “district courts have
discretion to limit the scope of discovery where the
information sought is overly broad or would prove unduly
burdensome to produce.” Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir.
2007). The determination of “the scope of discovery is
within the sound discretion of the trial court.”
Cooper v. Bower, No. 5:15-CV-249-TBR, 2018 WL 663002
at *1 (W.D. Ky. Jan. 29, 2018), reconsideration
denied, 2018 WL 1456940 (W.D. Ky. Mar. 22, 2018)
(quoting Chrysler Corp. v. Fedders Corp., 643 F.2d
1229, 1240 (6th Cir. 1981)).
Rule of Civil Procedure 45 allows parties to command a
nonparty to, inter alia, appear at a certain time
and place to testify or produce documents. Fed.R.Civ.P.
45(a)(1)(A)(iii). Rule 45 further provides that the issuing
court “must quash or modify a subpoena that: . . .
requires disclosure of privileged or other protected matter,
if no exception or waiver applies; or subjects a person to
undue burden.” Fed.R.Civ.P. 45(d)(3)(A)(iii), (iv).
Although irrelevance or overbreadth are not specifically
listed under Rule 45 as a basis for quashing a subpoena,
courts “have held that the scope of discovery under a
subpoena is the same as the scope of discovery under Rule
26.” Hendricks v. Total Quality Logistics, 275
F.R.D. 251, 253 (S.D. Ohio 2011).
striking the balance between a party's need for discovery
and a non-party's interest in protecting confidential
information, courts apply a three-pronged test. First, the
Court considers whether the entity seeking protection has
shown that the information sought is proprietary and that its
disclosure might be harmful. If the answer to these questions
is yes, the second prong asks whether the party seeking the
discovery has established that the information is relevant
and necessary to the underlying action. Medical Ctr. at
Elizabeth Place, LLC v. Premier Health Partners, 294
F.R.D. 87, 92 (S.D. Ohio 2013) (citing Spartanburg Reg.
Healthcare Sys. V. Hillenbrand Indus., No. 1:05mc107,
2005 WL 2045818, at *4 (W.D. Mich. Aug. 24, 2005). If the
answer to these two questions is yes, the third prong asks
the Court to balance the need for discovery of the
information with the harm that would result from disclosure.
“Where, as here, discovery is sought from a non-party,
the Court should be particularly sensitive to weighing the
probative value of the information sought against the burden
of production on the non-party.” Id.
(citing Universal Delaware v. Comidata Network, No.
3:10mc104, 2011 WL 1085180, at *2-3 (M.D. Tenn. Mar. 21,
Spring View asserts two main arguments in its Motion to quash
the subpoenas for Mr. Baker's deposition and for Mr.
Baker's medical records. First, Spring View argues that
Mr. Baker would not possess any information relevant to
Plaintiff's interactions with Defendant Kriegler. (Docket
# 26 at 4-5). Second, Spring View argues that Mr. Baker's
medical information and records are protected from disclosure
by HIPAA. (Id. at 5). Absent any waiver of
HIPAA's privilege protections by Mr. Baker, Spring View
argues it is statutorily prohibited from releasing Mr.
Baker's medical records.
Kriegler joins Spring View's Motion to the extent it
requests this Court quash the subpoena seeking Mr.
Baker's deposition. (Docket # 31 at 1). If the Court
allows Mr. Baker's deposition to proceed, Defendant
Kriegler then asserts that Defendant Spring View's Motion
to quash Defendant Kriegler's subpoena for Mr.
Baker's medical records should be denied. (Id.
at 2). Defendant Kriegler argues that Mr. Baker's medical
records are not privileged under HIPAA and should be produced
because Defendant Kriegler, through counsel, followed
HIPAA's proscribed procedure for obtaining Mr.
Baker's records through subpoena as set forth in 45
C.F.R. § 164.512 and Mr. Baker did not object to said
subpoena. (Id. at 2-3). Alternatively, Defendant