United States District Court, D. Colorado
THE ESTATE OF JEFFREY SCOTT LILLIS, by and through its co-personal representatives Meghan Lillis and Michele Driscoll, MEGHAN LILLIS, individually, C.A.L., individually, a minor, by and through Michele Driscoll as guardian, C.S.L., individually, a minor, by and through Michele Driscoll as guardian, A.L., individually, a minor, by and through Robin Booth as next friend and mother, JORDAN LILLIS, individually, and ASHLEY PERRY, individually, Plaintiffs,
BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY; TYLER S. BROWN, in his official capacity as Arapahoe County Sheriff, and RUTH KYAMBADDE, RN, individually; Defendants.
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
BY MAGISTRATE JUDGE KRISTEN L. MIX
matter is before the Court on Plaintiffs' Motion
for Order to Show Cause Why Defense Counsel Should Not Be
Sanctioned (the “Motion”) [#138], in
which Plaintiffs seek sanctions against Defendants'
counsel pursuant to Fed.R.Civ.P. 30(d) and 28 U.S.C.§
1927. Defendants filed a Response [#151] in opposition to the
Motion, and Plaintiffs filed a Reply [#159]. The Court held a
hearing on the Motion on April 9, 2019. The Court has
reviewed the briefing on the Motion, the entire docket, the
applicable law, and is sufficiently advised in the premises.
For the following reasons, the Motion [#138] is
case involves the death of an inmate, Jeffrey Scott Lillis
(“Lillis”), while he was detained in the Arapahoe
County Detention Facility (“ACDF”) in Arapahoe
County, Colorado. Compl. [#1] ¶¶ 1, 40.
The remaining claims in this case are (1) a claim under the
Fourteenth Amendment for deliberate indifference to medical
needs against Defendant Ruth Kyambadde in her individual
capacity and (2) a Monell claim against the Board of
County Commissioners of Arapahoe County and Arapahoe County
Sheriff Tyler Brown (collectively, the “County
Defendants”). Plaintiffs formerly asserted a wrongful
death claim and a Fourteenth Amendment claim against other
nurses at ACDF and other Defendants, but that claim has since
been dismissed. See Order [#87]; Stipulation of
Dismissal [#133]; Stipulation of Dismissal
January 29, 2019, defense counsel Writer Mott
(“Mott”) deposed Michael J. Hart
(“Hart”), an inmate and third-party witness to
Lillis' death. Motion [#138]; Defs.' Ex.
A-2, Dep. of Michael J. Hart [#151-2] (the
“Deposition”). During the Deposition, Attorney
Mott used Mr. Hart's medical records to contradict
statements made by Mr. Hart in his sworn declaration (the
“Declaration”). Response [#151] at 4-8;
see Defs.' Ex. A-1, Decl. of Michael Hart
[#151-1]. It is unclear when the medical records were first
obtained, but they were allegedly retained by ACDF.
Motion [#138] at 2. Plaintiffs contend, and Attorney
Mott does not contest, that Attorney Mott acquired the
medical records without Mr. Hart's knowledge or consent,
or permission from the Court, and that the first time they
were used in this case was during the Deposition.
Id. at 2-3.
now move for sanctions against Attorney Mott on the grounds
that he willfully and knowingly procured, and used, Mr.
Hart's medical records in violation of the Health
Insurance Portability and Accountability Act of 1996
(“HIPAA”). Id. at 1-3. The Motion [#138]
is brought pursuant to Fed.R.Civ.P. 30(d) and 28 U.S.C.
§ 1927. Id. at 6.
decision to impose sanctions for discovery violations and any
determination as to what sanctions are appropriate are
matters generally entrusted to the discretion of the district
court.” Bowers v. Nat'l Collegiate Athletics
Ass'n, 475 F.3d 524, 538 (3d Cir. 2007). Pursuant to
Fed.R.Civ.P. 30(d)(2), “[t]he Court may impose an
appropriate sanction-including the reasonable expenses and
attorneys' fees incurred by any party-on a person who
impedes, delays, or frustrates the fair examination of the
deponent.” See, e.g., Deville v. Givaudan
Fragrances Corp., 419 Fed.Appx. 201, 209 (3d Cir. 2011)
(affirming magistrate judge's imposition of sanctions
pursuant to Fed.R.Civ.P. 30(d)(2) on finding that attorney
“testified on behalf of her witness by way of
suggestive speaking objections”). Further, according to
the Advisory Committee's Note to the 1993 Amendments to
Fed.R.Civ.P. 30(d), sanctions may be authorized “not
only when a deposition is unreasonably prolonged, but also
when an attorney engages in other practices that improperly
frustrate the fair examination of the deponent . . . .”
under 28 U.S.C. § 1927 are appropriate when an attorney
acts “recklessly or with indifference to the
law.” Dominion Video Satellite, Inc. v. Echostar
Satellite LLC, 430 F.3d 1269, 1278 (10th Cir. 2005).
However, sanctions sought pursuant to section 1927 can be
awarded even in the absence of a finding of bad faith.
Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1202
(10th Cir. 2008). Moreover, section 1927 “is penal in
nature, [and] the award should be made only in instances
evidencing serious and [studied] disregard for the orderly
process of justice.” Miera v. Dairyland Ins.
Co., 143 F.3d 1337, 1342 (10th Cir. 1998) (quotation
marks and citations omitted).
instant Motion [#138] raises two questions: whether HIPAA was
violated when Attorney Mott obtained and used Mr. Hart's
medical records in the Deposition, and, if so, what sanctions
would be appropriate, if any. HIPAA is designed to restrict
the dissemination of a person's protected health
information. “[Through] HIPAA, Congress has spoken
about the protection that must be extended to patients
regarding their health related information.” EEOC
v. Boston Mkt. Corp., No. CV 03-4227, 2004 WL 3327264,
at *2 (E.D.N.Y. Dec. 16, 2004) (internal quotations omitted).
“HIPAA and the standards promulgated by the Secretary
of Health and Human Services [“DHHS”] in the Code
of Federal Regulations set forth the baseline for the release
of health information.” Law v. Zuckerman, 307
F.Supp.2d 705, 708 (D. Md. 2004); see 45 C.F.R.
§ 160.101 et seq. In certain limited
circumstances, such as with a court order, a person's
protected health information may be obtainable without that
person's knowledge or consent. See 45 C.F.R.
§ 164.512(e)(1)(I). However, if counsel attempts to
collect protected health information without obtaining
consent or meeting any of the exceptions in 45 C.F.R. §
162.512, he has violated HIPAA, and sanctions may be
appropriate. See Crenshaw v. MONY Life Ins. Co., 318
F.Supp.2d 1015, 1027, 1029-30 (S.D. Cal. 2004);
Zuckerman, 307 F.Supp.2d at 712-13. Attorney Mott
does not contest that Mr. Hart's medical records are
protected health information. He also does not refute the
allegation that he failed to inform opposing counsel, the
Court, or Mr. Hart that he was seeking Mr. Hart's medical
records. Thus, unless an exception applies or there are other
mitigating circumstances, sanctions may be appropriate.
opposition, Attorney Mott makes the following five arguments
in defense of his use of Mr. Hart's medical records: (1)
ACDF is not a “covered entity” under HIPAA and
thus, has no statutory duty to maintain inmate medical
privacy, a position Plaintiffs' counsel once took in an
unrelated suit, Response [#151] at 2; (2) Plaintiffs
lack standing to impose sanctions because they do not
represent Mr. Hart, a third party, id. at 13; (3)
there is no private right of action under HIPAA and
Plaintiffs cannot circumvent that fact by asking for
sanctions pursuant to the Court's supervisory power,
id. at 11; (4) assuming ACDF is a covered entity, it
“may disclose protected health information in response
to lawful process without notifying the party whose records
are sought, ” when there is a protective order in
place, id. at 9, and; (5) Mr. Hart effectively
waived his HIPAA protections by placing his health at issue
in his Declaration [#151-1], id. at 12.
Whether Attorney Mott Violated HIPAA
threshold matter, the Court addresses (1) whether ACDF is a
covered entity and (2) whether Plaintiffs are able to request
sanctions when third-party rights are violated. The parties
have provided the Court with minimal authority addressing
whether a prison is or is not a covered entity under HIPAA.
Attorney Mott directs the Court to two cases in support of
his position, however neither one is controlling nor
persuasive. See Response [#151] at 8-9 (citing
Winfree v. S. Cent. Reg'l Jail, No.
2:16-cv-06332, 2018 WL 737429 (S.D. W.Va. Jan. 16, 2018)
(deciding in dicta that the jail defendant was not a covered
entity while determining that HIPAA did not create a private
right of action) and McElyea v. Wallace, No.
3:11-0914, 2011 WL 5444100 (M.D. Tenn. Nov. 9, 2011)
(deciding that a judge and an attorney were not
covered entities under HIPAA)). Nevertheless, few courts have
tackled the question before the Court now. Generally,
prisoners have, at least in a limited respect, a right to
privacy in their medical records. See U.S. v.
Deleon, 323 F.Supp.3d 1273, 1281 n. 5 (D.N.M. 2018);
Howard v. Douglas County Jail, 2009 WL 1504733, *4,
n.5 (D. Kan. May 28, 2009) (discussing privacy in a prison
context); accord 45 C.F.R. § 164.512(k)(5)(I)
(limiting correctional facilities' access to a
prisoner's protected health information). Moreover, when
a prison is providing health care to a prisoner, it is acting
in a way similar to healthcare providers, which are normally
considered covered entities under HIPAA. See Fernandez v.
Cal. Dept. of Correction & Rehabilitation, No.
2:11-cv-01125 MCE KJN P, 2014 WL 794332, at *5 (E.D. Cal.
Feb. 27, 2014) (adopting the defendant's averment that
HIPAA protects inmates' medical information regarding
treatment at defendant's facility); 45 C.F.R. §