United States District Court, District of Columbia
KEVIN M. LOVECCHIO, Plaintiff,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
parties'  Joint Status Report on Discovery Plan,
Defendant discussed certain efforts to ascertain the
relevance of thirty-one of Plaintiff's treating medical
providers. That number has since increased to thirty-five,
and may swell further as discovery continues. Joint Status
Report on Discovery Plan, ECF No. 36, at 7 & n.2. Rather
than depose each provider- which would exhaust and exceed the
Court's current limit of ten fact witnesses, assuming
relatively few will be designated as experts-Defendant sought
to conduct ex parte interviews, to which Plaintiff
Court held a teleconference on the record with the parties on
June 12, 2018, in order to address this and other discovery
issues. With the Court's permission, the parties
submitted further briefing “regarding the legal basis
for prohibiting Defendant from conducting ex parte
interviews of [Plaintiff's] medical providers subject to
an appropriate protective order.” Min. Order of June
13, 2018. Upon consideration of the briefing,  the relevant
legal authorities, and the record as a whole, the Court
GRANTS Defendant's request to conduct
ex parte interviews of Plaintiff's treating
medical providers, subject to the Protective Order that this
Court shall issue.
issue is somewhat more nuanced than the parties' briefing
elucidates. There is no dispute that informal interviews can
be an appropriate means of reducing the number of
depositions, particularly where many witnesses may be
involved. The parties effectively dispute whether
Defendant's interviews must include Plaintiff's
counsel or Plaintiff himself.
District of Columbia Court of Appeals has found that ex
parte interviews can be an acceptable way of obtaining
certain information from treating medical providers. See
Street v. Hedgepath, 607 A.2d 1238, 1245-48 (D.C. 1992).
By filing a lawsuit concerning his or her medical conditions,
a plaintiff puts them in issue and thereby waives the
statutory physician-patient privilege as to “medical
information relevant to the . . . claim[s].”
Street, 607 A.2d at 1246, 1248 (citing D.C. Code
protections available under the Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”) leave
this precedent undisturbed. As Plaintiff concedes, federal
regulations implementing HIPAA expressly provide for
court-authorized disclosure of protected medical information
within the scope of that authorization:
1) Permitted disclosures. A covered entity may disclose
protected health information in the course of any judicial or
(i) In response to an order of a court or administrative
tribunal, provided that the covered entity discloses only the
protected health information expressly authorized by such
order . . . .
45 C.F.R. § 164.512(e)(1)(i); see Pl.'s
Reply at 1-2. This Court is unaware of any controlling
authority in this jurisdiction since HIPAA, as amended, that
prohibits ex parte interviews of medical providers.
Often lower courts considering whether to permit ex
parte interviews continue to cite Street as the
law in the District of Columbia. See, e.g.,
Leonard v. Wash. Hosp. Ctr. Corp., No. 2014 CA 3734
B, 2014 D.C. Super. LEXIS 21, at *2 (D.C. Super. Ct. Sept. 9,
2014); Order at 1-2, Corley v. Thomas, No. 2012 CA
8261 M (D.C. Super. Ct. Jan. 8, 2014). The Court finds that
no authority prohibits Plaintiff's medical providers from
disclosing Plaintiff's protected health information
during ex parte interviews if this Court
permits Defendant to conduct such interviews and issues a
protective order delineating the scope of such disclosure.
Court must now decide whether to permit ex parte
interviews in this case. As Plaintiff observes, that is not a
foregone conclusion. See Reply at 1-2. The Court is
unaware of any case law or HIPAA provision establishing that
Defendant is entitled to conduct ex parte
interviews. Many of the courts in this jurisdiction that have
permitted or denied them have issued orders completely devoid
of reasoning, or containing only boilerplate references, for
example, to Street and HIPAA. See, e.g.,
Order at 1, Perkins v. Lucy Webb Hayes Nat'l Training
Sch. for Deaconesses and Missionaries, No. 2008
CA 006416 M (D.C. Super. Ct. July 23, 2009) (permitting
ex parte interviews on the basis of Street
and HIPAA). Those courts that furnish more extensive
reasoning for or against ex parte interviews have
articulated a variety of standards. E.g., Mbony
v. Wash. Hosp. Ctr., No. 13 CA 1769, 2014 D.C. Super.
LEXIS 11, at *2 (granting request for ex parte
interviews based on the Court's
“discretion”); Min. Order, Bigelow v. Wash.
Hosp. Ctr., No. 10-cv-1471 (D.D.C. Jan. 17, 2012)
(citing Mem. Op., Jeffares v. Kheiri, Civil No.
L-07-1923 (D.Md. Nov. 19, 2008), ECF No. 23
(“[D]efendants have failed to demonstrate good
cause for why traditional discovery methods are
unworkable.” (emphasis added))); see also Lynch v.
SSC Glen Burnie Operating Co., LLC, Civil No.
JKB-17-1328, 2017 WL 6508980, at *3 (D.Md. Dec. 20, 2017)
(indicating that movant “must demonstrate some
reason that ordinary discovery procedures are not
sufficient”). Street, the one controlling
authority-albeit pre-HIPAA-does not expressly articulate a
standard. The “good cause” standard for a
discovery protective order under Federal Rule of Civil
Procedure 26(c) may be most analogous to this circumstance.
See also Pl.'s Reply at 2 (urging application of
“good cause” standard).
of the standard's labeling, the Court expects Defendant
to articulate sufficient reason for the Court to authorize
ex parte interviews of Plaintiff's treating
medical providers. Based on Defendant's arguments and the
parties' briefing, the Court finds ample reason to grant
such authorization, subject to an appropriate Protective
Plaintiff has been treated by a very large number of medical
providers who evidently have some conceivable connection to
this case. Defendant's admission of negligence allows
Defendant to focus its further discovery on causation and
damages associated with Plaintiff's injuries.
See Joint Status Report on Discovery Plan, ECF No.
36, at 4. The Court agrees with Defendant that informal
interviews-whether or not ex parte-are much more
efficient and cost-effective (for both parties) than
depositions for distinguishing which of the thirty-five
listed providers (and perhaps more) would provide testimony
relevant to disputed issues in this case. See
Def.'s Opp'n at 9-10 (citing, e.g., Order at 5,
Maybin v. George Washington Univ., No. 03ca583 (D.C.
Super. Ct. Sept. 15, 2004)). Moreover, courts in this
jurisdiction have permitted ex parte interviews even
where the movant sought to interview far fewer medical
providers. See, e.g., Order at 1,
Corley, No. 2012 CA 8261 M (permitting ex
parte interview of three treating providers). The
efficiency gains of ex parte interviews in this case
are much more substantial.
to the ex parte aspect, Defendant expresses fears
that Plaintiff's counsel would “interfere”
with interviews at which they are present, “intimidate[
]” the medical providers, and “have access to
[Defendant's counsel's] mental thoughts and
opinions.” Def.'s Opp'n at 5-6. While fears of
intimidation, per se, seem little more than
speculation, Plaintiff's briefing does suggest that he
contemplates an active role at such interviews, akin to an
informal deposition in which Plaintiff's counsel could
raise objections. See Pl.'s Reply at 3
(indicating that the presence of Plaintiff or his counsel
“would . . . ensure that only relevant information is
disclosed”). But these interviews will not be on the
record; consequently, there is no reason for Plaintiff's
counsel to feel the need to preserve objections. Such
objections can be raised if a given medical provider is
deposed or, at the latest, takes the stand at trial.
Court finds that Defendant's desire to test its legal
theories through ex parte interviews is a legitimate
reason for permitting that manner of proceeding. Defendant is
seeking access to these providers that is equal to that
enjoyed by Plaintiff himself. Def.'s Opp'n at 5-6.
“As a general proposition, . . . no party to litigation
has anything resembling a proprietary right to any
witness's evidence.” Street, 607 A.2d at
1247 (quoting Doe v. Eli Lilly & Co., 99 F.R.D.
126, 127 (D.D.C. 1983)) (internal quotation marks omitted);
see also Gregory v. United States, 369 F.2d 185, 188
(D.C. Cir. 1966) (“Witnesses . . . are the property of
neither the prosecution nor the defense. Both sides have an
equal right, and should have an equal opportunity, to
interview them.”). Plaintiff already may speak whenever
he wishes to any of his treating medical providers. The fact
that he has put his medical condition at issue in this case
is a good reason, under Street, for Defendant too to
speak to those providers to determine who is relevant to
further proceedings. As ...