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June Medical Services, LLC v. Gee

United States District Court, M.D. Louisiana

October 12, 2018

JUNE MEDICAL SERVICES, LLC, d/b/a HOPE MEDICAL GROUP FOR WOMEN, on behalf of its patients, physicians, and staff, ET AL.
REBEKAH GEE, in her official capacity as Secretary of the Louisiana Department of Health, ET AL.



         Before the Court is Defendants' First Motion to Compel (R. Doc. 108) filed on April 19, 2018. Plaintiffs filed their Opposition (R. Doc. 112) on May 10, 2018, and Defendants filed their Reply (R. Doc. 120) on May 18, 2018. Plaintiffs also provided the Court with certain documents for in camera review pursuant to the Court's August 30, 2018 Order. (R. Doc. 184). Oral argument was held on September 20, 2018. (R. Doc. 191).

         I. Background

         Plaintiffs initiated this litigation with the filing of their Complaint (R. Doc. 1) on July 1, 2016. They filed a First Amended Complaint for Declaratory and Injunctive Relief (R. Doc. 22) on December 16, 2016, and a Second Amended Complaint for Declaratory and Injunctive Relief (R. Doc. 88) on December 8, 2017. Defendants filed their Answer (R. Doc. 90) to Plaintiff's Second Amended Complaint on December 22, 2017.

         Plaintiffs seek declaratory and injunctive relief, challenging the constitutionality of six bills passed by the Louisiana Legislature during its 2016 Regular Session, as well as two emergency regulations. (R. Doc. 1 at 2). Plaintiffs are comprised of three medical doctors, appearing on behalf of themselves and their patients, as well as June Medical Services, LLC, d/b/a Hope Medical Group for Women (“Hope”), a women's reproductive health clinic in Shreveport, Louisiana. (R. Doc. 88 at 5).

         Plaintiffs assert that the six bills passed and two emergency regulations impose unconstitutional requirements on women seeking abortions, women's ability to obtain-and doctors' ability to provide-certain types of abortions at particular points past the last menstrual period, and the availability of abortion services in Louisiana. Plaintiffs assert that these bills and regulations violate their due process and equal protection rights guaranteed by the Fourteenth Amendment to the U.S. Constitution. (R. Doc. 88 at 34-39).

         II. Law and Analysis

         A. Legal Standard

         “Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b)(1). The court must limit the frequency or extent of discovery if it determines that: “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed.R.Civ.P. 26(b)(2)(C).

         Rule 34 provides a party with 30 days after service of the discovery to respond or object. See Fed. R. Civ. P. 34(b)(2)(A). If a party fails to respond fully to discovery requests made pursuant to Rule 34 in the time allowed by the Federal Rules of Civil Procedure, the party seeking discovery may move to compel disclosure and for appropriate sanctions under Rule 37. An “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer or respond.” Fed.R.Civ.P. 37(a)(4).

         B. Analysis

         Defendants seek to compel Plaintiffs to produce their patient files. (R. Doc. 108-1 at 1). In support of this, Defendants argue that the only way to test Plaintiffs' allegation that H.B. 386 unduly burdens the decision to obtain an abortion “is by measuring them against the medical records of Plaintiffs[sic] patients.” (R. Doc. 108-1 at 1). Defendants suggest that the patient files will provide information such as the distance patients travel to reach the clinic, the gestational age at the time of the initial consultation and the abortion procedure, how many women choose to have abortions within 72 hours of their initial consultation, and potential medical consequences arising from a longer wait. (R. Doc. 108-1 at 3-4). Plaintiffs respond that the patient files are not relevant, production would be overly burdensome, and assert patient privacy. (R. Doc. 112 at 3). Plaintiffs also suggest that much of the information for the production requests in which Defendants seek the patient files is in the Induced Termination of Pregnancy (“ITOP”) reports provided to the Louisiana Department of Health, and that the information sought by Defendants that is not in the ITOP reports either (i) does not exist in the patient files, or (ii) can be extrapolated from a combination of the ITOP reports and Plaintiffs' accounting summaries, which they are willing to produce. (R. Doc. 112 at 3, 7-8).

         At oral argument, the Court asked Defendants to identify what information they hoped to obtain from the patient files. Defendants indicated that the patient files would reveal how far each patient travelled to get to the Plaintiff clinic, gestational age, the patient's reason for obtaining an abortion, a patient's activities between initial consultation and abortion, whether a patient received financial assistance, and patients' salaries. Defendants also expressed concern that Plaintiffs would provide patient files to their experts, which Defendants suggest would prejudice them if they were unable to obtain the same patient files. When the Court discussed these issues with Plaintiffs, Plaintiffs indicated that their experts would not be receiving or reviewing patient files. Plaintiffs also suggested that a combination of the account summaries and ITOP reports would provide Defendants all of the information they seek, except for a patient's activities between initial consultation and abortion, but noted that patient files were highly unlikely to contain that information.

         The Court also reviewed ten sample patient files along with the corresponding account summaries and ITOP reports provided by Plaintiffs. Based on the Court's review of those sample files, the following information is available by way of account summary and ITOP report: date of initial consultation, date of abortion procedure, gestational age, patient's zip code, patient's reported reason for termination of pregnancy, and whether a patient received financial assistance. Absent from all of the patient files reviewed by the Court is any indication of what a patient did with her time between initial consultation and procedure, or the reason for the timing between her initial ...

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