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Doe v. County of Milwaukee

United States District Court, E.D. Wisconsin

April 21, 2016

JANE DOE, on behalf of herself and others similarly situated, Plaintiff,
COUNTY OF MILWAUKEE; DAVID A. CLARKE, JR. individually and in his official capacity; XAVIER D. THICKLEN; and JOHN and JANE DOE, unknown Milwaukee County Jail employees and Officers, Defendants, and WISCONSIN COUNTY MUTUAL INSURANCE CORPORATION, Intervenor.


RUDOLPH T. RANDA, District Judge.

The parties seek approval of a stipulated proposed qualified Health Insurance Portability Act and Accountability Act (HIPAA) protective order for qualified health information. (ECF No. 107-1.) The HIPAA privacy rules, 42 U.S.C. §§ 1320d through 1320d-9(b), and their implementing regulations, 45 C.F.R. pts. 160 and 164, set forth standards and procedures for the collection and disclosures of protected health information (PHI).

Under 45 C.F.R. § 164.512(e), a health care provider may disclose PHI in the course of judicial proceedings under one of two circumstances: (1) the provider must be assured that the entity has provided the patient with written notice and an opportunity to object; or (2) the requesting entity must move the Court for a qualified protective order. 45 C.F.R. § 164.512(e)(1)(ii)(A) & (B). Section 164.512(e)(1)(v) elaborates on the requirements for a qualified protective order stating:

[f]or purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:
(A) Prohibits 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) Requires 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.

The Court may issue a protective order under Federal Rule of Civil Procedure 26(c)(1), which is available "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." The Court must have sufficient facts to make an independent finding of good cause. See Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (holding that even if the parties agree that a protective order should be entered, they still have the burden of showing that good cause exists for issuance of that order).

Furthermore, a broad secrecy agreement that is fine at the discovery stage before the material enters the judicial record must be revisited when such material becomes part of the public record. See Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir. 2002) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984)). "[T]hose documents, usually a small subset of all discovery, that influence or underpin the judicial decision are open to public inspection unless they meet the definition of trade secrets or other categories of bona fide long-term confidentiality." Baxter Int'l, 297 F.3d at 545. The party seeking to seal items has the burden of showing good cause. See id. at 547.

In this action, Plaintiff Jane Doe claims that while in the custody of the Milwaukee County Jail she was sexually assaulted five times and shackled during labor and childbirth. The action also includes class claims regarding the shackling of pregnant detainees during labor and childbirth. These allegations make relevant the PHI of Doe and putative class members; issuance of a protective order is one of two circumstances under which a covered health provider may disclose PHI. The Court finds good cause for the issuance of the protective order. The proposed qualified HIPAA protective order includes the two limitations required by §§ 164.512(e)(1)(v)(A) and (B). (See ECF No. 107-1, ¶¶ 4(a), 5, 7.)

Moreover, paragraphs 2(c) and 12 of the proposed protective order also accommodate the requirement that the proposed sealing of any protective order materials filed with the Court or part of a trial must be subject to a separate and more demanding review for good cause. See Baxter Int'l, 297 F.3d at 545. See also Civil L.R. 26(e) and 26(f) (E.D. Wis.) The latter states, "[a] party seeking to file a paper under seal must follow the procedure set forth in General L.R. 79(d)." See also, Civil L.R. 26(f) Comm. Comment ¶ 3.


The parties' stipulated proposed qualified HIPAA protective order for qualified health information (ECF No. 107-1) as follows is APPROVED.


Pursuant to Fed.R.Civ.P. 26(c) and 45 C.F.R. Pts. 160 and 164, the Court ...

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