by Ben Vernia | June 18th, 2010
In an order dated June 10, 2010, Magistrate Judge Thomas Boyle of the Eastern District of New York ruled on cross-motions for a protective order governing discovery in United States ex rel. Gelfand v. Special Care Hospital Management Corp., a False Claims Act case concerning allegedly fraudulent Medicare and/or Medicaid claims. The parties disagreed over the procedure for redacting patient identifying information in substance abuse records. The defendants proposed a voluntary opt-out system with no redaction of identifying information, while the government proposed requiring such redaction.
Magistrate Judge Boyle held that the applicable law requires even more protection of patient information than was proposed in the government’s order. Accordingly, Boyle issued a protective order with the following conditions:
- All identifying information contained in records must be redacted.
- Unless patients consent to disclosure of confidential communications contained in their records, such communications must also be redacted.
- All patients must be provided with notice that their records will be disclosed, and be afforded an opportunity to file a written response within 30 days.
- Because the heavy burden of redaction falls on the defendant, random sampling shall be utilized to reduce that burden.
