United States District Court, D. New Hampshire
A. DiClerico, Jr., United States District Judge
Rutledge brings claims against her former employer, Elliot
Health System and Elliot Hospital, for age discrimination and
wrongful termination. She filed a motion for an expedited
order to compel the defendants to produce “(a) relevant
discovery related to the Elliot Hospital Exceptional
Beginnings program, and (b) the complete chart of the patient
whose care at the Elliot Hospital on May 22, 2014, was the
basis for the explanation by the Hospital of the reason for
terminating Ms. Rutledge's [sic].” The defendants
support, Rutledge states that Elliot Hospital “has
produced some documents related to both categories of the
documents” that she seeks to compel, but not all of the
documents she needs. In her motion, Rutledge did not identify
the specific request for production and the defendants'
response that were the subject of her motion to compel. LR
37.1. In their objection, the defendants represent that their
responses to Rutledge's third set of requests for
production were not yet due when Rutledge filed her motion to
compel and that Rutledge's counsel did not confer in good
faith with the defendants' counsel before filing the
motion to compel.
states in her reply that she is seeking to compel responses
to two requests that were sent in her first set of requests
for production of documents. The defendants provided their
responses to those requests on November 7, 2017. Rutledge did
not move to compel until December 28, 2017, and then sought
an expedited order in order to accommodate her deposition
schedule. Had Rutledge's counsel addressed these
issues in a more prompt fashion, her current scheduling
problems might have been avoided.
states that she asked for the following documents in Request
The investigation into the events of May 22, 2014, and the
decision to terminate the employment of Lonnie Rutledge,
including but not limited to the investigation and meeting
associated with the EB Quality Board.
response quoted by Rutledge is: “‘Elliot objects
to Request No. 3 on the basis of RSA 151:13-a.'”
151:13-a “protects the activities of any hospital
committee . . . ‘organized to evaluate matters relating
to the care and treatment of patients or to reduce morbidity
and mortality.'” Newland v. N. Country
Healthcare, Inc., 2017 WL 6397723, at *2 (D.N.H. Dec.
14, 2017) (quoting In re K, 132 N.H. 4, 12-13
(1989)). Rutledge relies generally on Smith v. Alice Peck
Day Mem. Hosp., 148 F.R.D. 51 (D.N.H. 1993), without
analysis. In Smith, the court interpreted the application of
the protection provided by RSA 151:13-a and the exception
provided by RSA 151:13-a, II(a) for proceedings to revoke
physician's hospital privileges. The court concluded that
the protection provided under RSA 151:13-a did not bar
discovery in federal court for physician revocation cases.
Id. 148 F.R.D. at 54-56.
Request Number 8, Rutledge asked for the following:
“‘All records relating to care provided to the
patient involved in the May 22, 2014, incident (reference
Wellde testimony, at page 80).'” The response was:
“‘Elliott objects to providing any records
related to the care of the patient as this is protected
health information under HIPPA
[sic].'” Rutledge states in her reply that while
she “appreciates HIPAA regulatory concerns about
confidentiality of patient information, . . . redaction of
the patient's identity from the records should satisfy
those concerns.” In support, Rutledge cites 45 C.F.R.
§§ 160.103 and 164.512(e), along with cases
applying those regulations.
protects the confidentiality of patients' health-related
information. Sneed v. Pan Am. Hosp., 370 Fed.Appx.
47, 50 (11th Cir. 2010); Rodriguez v. City of
Brunswick, 2017 WL 5598217, at *4 (D.N.J. Nov. 21,
2017). Applicable regulations, however, allow disclosures of
otherwise protected information in certain circumstances.
Northwestern Mem. Hosp. v. Ashcroft, 362 F.3d 923,
924-25 (7th Cir. 2004 (discussing § 164.512(e)). Section
164.512(e) “create[s] a procedure for obtaining
authority to use medical records in litigation.”
Id. at 926. While patient consent is one means for
allowing disclosure, health care providers may also disclose
patient health information in response to a discovery request
or a court order. § 164.512(e)(1).
far from clear that RSA 151:13-a would protect the records
requested in Request Number 3. Under § 164.512(e), the
complete patient chart requested in Request Number 8 may be
disclosed when certain procedures are satisfied. Because
Rutledge failed to comply with Rule 37(a)(1), however, these
matters are not properly before the court.
foregoing reasons, the plaintiff's motion to compel
(document no. 22) is denied without prejudice.
are ordered to confer to determine whether and how the
documents in Request Number 3 and Request Number 8 can be
produced. The court expects counsel to engage in good faith
efforts to resolve these matters without further involvement
of the court. In the event counsel should determine that a
court order is required for disclosure of any of the
requested documents, an appropriate motion or ...