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S P R I N G 2 0 1 5
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health information is requested
to permit the individual to raise
an objection to the court or
administrative tribunal; and
(C) The time for the individual to
raise objections to the court
or administrative tribunal has
elapsed, and:
(1) No objections were filed; or
(2) All objections filed by
the individual have been
resolved by the court or the
administrative tribunal and the
disclosures being sought are
consistent with such resolution.
In practice, defense counsel must
provide a copy of the subpoena to
plaintiff's counsel before it is served upon
the healthcare provider. Under FRCP
45(d)(2)(B), the provider and plaintiff
have 14 days following service of the
subpoena to tender any written objections.
Once that period expires (and assuming
no objections have been lodged),
defense counsel should dispatch written
correspondence to the provider enclosing
the certificate of service showing that
the plaintiff received notice; noting the
expiration of the objection period; and
stating that there have been no objections.
In doing this, defense counsel should be
sure to carbon copy plaintiff's counsel so
as not to run afoul of any rule prohibiting
defense counsel's ex-parte contact with
the treatment providers of a plaintiff.
3
In a bodily injury case, the plaintiff's
medical records and history are the
foundation upon which the entire case
is built. Strategic considerations aside,
obtaining the information as early as
possible is crucial for adjusters and risk
managers to set reserves, assess overall
exposure and evaluate settlement versus
taking the case to trial. For those cases
where the plaintiff's attorney refuses
to provide medical authorizations or
otherwise permit reasonable inquiry into
her client's medical history, utilizing
subpoenas is a viable way to diligently
move the case forward.
1 Factor v. Mall Airways, Inc., 131 F.R.D. 52, 54
(S.D.N.Y.1990).
2. See, generally, J.J.C. v. Fridell, 165 F.R.D. 513,
517 (D.Minn.1995) ("Requests for authorizations
for the release of medical records can be properly
ordered pursuant to Rule 34 but authorizations are
not mandated."); Arnold v. ADT Sec. Servs., Inc., No.
05­0607­cv, 2009 WL 1086949, at *3 (W.D.Mo. Apr.22,
2009) (denying plaintiffs' motion for reconsideration of
order compelling them to provide authorizations on the
basis of Fed.R.Civ.P. 37(a)(5) (A)); Lischka v. Tidewater
Servs., Inc., Civ. A. No. 96­296, 1997 WL 27066, at *2
(E.D.La. Jan.22, 1997) ("The cases almost universally
hold, explicitly or implicitly, that Rule 34, along with
Rule 37, empowers federal courts to compel parties to
sign written authorizations consenting to the production
of various documents."). The United States Court of
Appeals for the Fifth Circuit has suggested in dicta that
Rule 34 may be an appropriate mechanism by which
to require a party to sign an authorization release. See
McKnight v. Blanchard, 667 F.2d 477, 481­82 (5th
Cir.1982) (suggesting that, when a party puts his or her
physical condition at issue, a court can, upon proper
motion, order him or her to sign a medical authorization);
cf. Butler v. Louisiana Dept. of Public Safety and
Corrections, 3:12­cv­00420, 2013 WL 2407567, at
*9 (M.D.La. May 29, 2013); E.E .O.C. v. Resources
for Human Development, No. 10­03322, 2011 WL
3841066, at *1 (E.D.La. Aug. 31, 2011).
3. See Leavitt v. Siems, 130 Nev. Adv. Op. 54, 330 P.3d 1
(2014).