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discovery is now prohibited unless the patient consents. Id., quoting, Law v. Zuckerman, 307 F. Supp. 2d at 711. See also Crenshaw v. Mony Life Ins. Co., 318 F. Supp. 2d 1015, 1029 (S.D. Cal. 2004) [interpreting 45 CFR. § 164.512(c)]. HIPAA’s protection of health information is so strong that


in Law, Magistrate Judge Day advised that "[c]ounsel should now be far more cautious in their contacts with medical fact witnesses when compared to other fact witnesses to ensure that they do not run afoul of HIPAA's regulatory scheme." Law v. Zuckerman, 307 F. Supp. 2d at 711. Judge Day further cautioned that "[w]ise counsel must now treat medical witnesses similar to the high ranking corporate employee of an adverse party.” Id. 45 CFR § 164.512(e), which regulates disclosures for judicial and administrative proceedings,


cause” requirement of Rule 2-403 and adopted the following principles:


(a) the party seeking a protective order has the burden of making a particular and specific demonstration of fact, as distinguished from general, conclusory statements, revealing some injustice, prejudice, or consequential harm if protection is denied; (b)


it is clear that does, however,


provide (in the absence of consent) for the discovery and disclosure of protected health information through traditional means of litigation discovery and, in a limited fashion, via court order. Boiled down to its essence, 45 CFR § 164.512(e) requires a court order be obtained in order for defense counsel to undertake ex parte communications with plaintiff ’s treating health care providers. Absent a court order, defense counsel can only speak with a treating health care provider with the permission of the plaintiff, or by deposition. Te primary legal device used by defense counsel in attempting to circumvent HIPAA is the “motion for limited protective order.” Tis may seem an odd title since it seems that the plaintiff ’s right to medical confidentiality needs protection. However, CFR § 164.512(e) speaks of “qualified protective orders” presumably in the context of providing “protection” to health care providers ordered to divulge confidential medical information. 45 CFR § 164.512(e) does not describe the level of persuasion needed to be offered by defense counsel in support of such a motion. For that determination, state law must be consulted. Maryland Rule 2-403 governs the issuance of protective


orders. Te Rule states that on “motion of a party or a person from whom discovery is sought, and for good cause shown, the court may enter any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .” (Emphasis added). Maryland courts define “good cause” as


[s]ubstantial reason, one that affords a legal excuse. Legally sufficient ground or reason . . . “good cause” depends upon the circumstances of the individual case . . . and its meaning must be determined by the context of the statute in which the term is employed but also by the context of the action and procedures involved in the type of case presented.


In Re: Robert G., 296 Md. 175, 179, 461 A.2d 1 (1983),


quoting, Black’s Law Dictionary 623 (5th ed. 1979). Defense motions should therefore be considered and determined in the context of a request for relief that would invade a federally recognized “protection that must be extended to patients regarding their health related information.” EEOC v. Boston Market Corp., 2004 U.S. Dist. Lexis 27338, *7. In Tanis v. Crocker, 110 Md.App. 559, 575, 678 A.2d 88 (1996), the Court of Special Appeals interpreted the “good


Trial Reporter / Summer 2009 41


protective orders are not to be granted liberally; and c) the rule governing protective orders is not a blanket authorization for the court to prohibit disclosure of information whenever it deems it advisable to do so, but is rather a grant of power to impose conditions on discovery in order to prevent injury, harassment, or abuse of the court’s processes.


Tanis v. Crocker, 110 Md.App. at 574-75. Tis is a heavy burden that most defendants attempt to shoulder by claiming that the interests of “fairness” and a “level playing field” require that defense counsel be allowed to probe the opinions of plaintiff ’s treating health care providers in the absence of plaintiff ’s counsel.


3. “Fairness” requires that Defense counsel be allowed ex parte contact with Plaintiff ’s treating health care providers. Virtually every motion filed by defense counsel seeking ex


parte interviews with plaintiff ’s treating health care providers cites the need to “level the playing field” in the interests of “fairness” as good cause for granting the motion. Tey claim that defendant will be “prejudiced” if ex parte communications are not permitted. Put bluntly, such rhetoric is disingenuous and seeks to perpetuate the fallacy that plaintiffs have an


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