PACIFIC RADIATION ONCOLOGY, LLC, a Hawai'i Limited Liability Corporation, et al., Plaintiffs,
THE QUEEN’S MEDICAL CENTER, a Hawai'i Non-Profit Corporation, et al., Defendants.
ORDER GRANTING MOTION TO INTERVENE BY 14 PATIENTS ON THEIR OWN BEHALF AND ALTERNATIVELY AS CLASS REPRESENTATIVES FOR THE LIMITED PURPOSE OF FILING THE ATTACHED BRIEF ON THE ISSUE OF THE APPEAL FROM THE MAGISTRATE JUDGE’S ORDER REGARDING THE DISCLOSURE OF CONFIDENTIAL MEDICAL RECORDS
Leslie E. Kobayashi United States District Judge
Before the Court is the Motion to Intervene by 14 Patients on Their Own Behalf and Alternatively as Class Representatives for the Limited Purpose of Filing the Attached Brief on the Issue of the Appeal from the Magistrate Judge’s Order Regarding the Disclosure of Confidential Medical Records (“Motion to Intervene”), filed on November 6, 2014. [Dkt. no.403.] On November 20, 2014, Defendants/Counter Claimants Queen’s Medical Center, a Hawai`i Non-Profit Corporation (“Queen’s”), Queen’s Development Corp., a Hawai`i for Profit Corporation, Noreen D.S.W. Mokuau, William G. Obana, M.D., Arthur A. Ushijima, Mark H. Yamakawa, Paula Yoshioka, Sharlene K. Tsuda, Richard C. Keene, Clinton Yee, Naleen N. Andrade, M.D., Ernest H. Fukeda, Jr., Robb Ohtani, M.D., Neil J. Hannahs, Christine M. Gayagas, Peter K. Hanashiro, Robert K. Nobriga, Eric K. Yeaman, Julia C. Wo, Caroline Ward Oda, Peter Halford, M.D., Barry Weinman, each individually and in his or her capacity as Officer and Trustee of Queen’s Medical Center (all collectively “Defendants”) filed their memorandum in opposition; and Plaintiffs/Counterclaim Defendants Pacific Radiation Oncology, LLC, a Hawai`i Limited Liability Corporation, PRO Associates, LLC, a Hawai`i Limited Liability Corporation, John Lederer, M.D., Laeton Pang, M.D., Eva Bieniek, M.D., Vincent Brown, M.D., Paul DeMare, M.D., and Thanh Huynh, M.D. (collectively “Plaintiffs”), filed a memorandum in support of the Motion to Intervene. [Dkt. nos. 425, 426.] The proposed intervenors filed their reply on December 4, 2014. [Dkt. no. 444.]
The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). After careful consideration of the motion, supporting and opposing memoranda, and the relevant legal authority, the Motion to Intervene is HEREBY GRANTED for the reasons set forth below.
The parties and this Court are familiar with the factual and procedural background of this case, and this Court will only repeat the events that are relevant to the Motion to Intervene.
As noted in this Court’s September 18, 2014 Amended Order Granting in Part and Denying in Part Plaintiffs’ Motion for Temporary Restraining Order or in the Alternative for Preliminary Injunction (“9/18/14 TRO Order”):
Randy Talavera, the manager of Queen’s radiation therapy department reviewed the records of 133 patients “who had a consultation with a PRO physician but then did show up at [Queen’s] again for radiation therapy during the time frame January 2011 through June of 2011.” A list of 132 such patients was compiled showing each patient’s name, patient number, and the name of his or her physician (“the List”). Defendants’ counsel attached the List as an exhibit to: 1) a subpoena to [The Cancer Center of Hawaii’s] custodian of records, signed by the Clerk of Court on July 10, 2014 (“the Subpoena”); and 2) Defendants’ Second Request for Production of Documents and Things to Plaintiffs Pacific Radiation Oncology, LLC and PRO Associates, LLC, dated July 9, 2013 (“the RPD”). On July 10, 2014, Defendants’ counsel publicly filed the complete, unredacted Subpoena with its return of service. Defendants’ counsel contacted the magistrate judge through an email on July 12, 2014 and stated that they had inadvertently filed the unredacted List as an exhibit to the Subpoena. Counsel stated that, as soon as possible, Defendants would file an ex parte motion to delete the exhibit from the public record, but counsel asked the magistrate judge if the district court could remove the Subpoena from the publicly available website and allow Defendants to replace the exhibit with a redacted version, pending the filing and ruling on the ex parte motion. On July 14, 2014, the Clerk’s Office restricted access to the Subpoena, and Defendants filed their ex parte motion to seal the exhibit. The magistrate judge granted the ex parte motion on July 15, 2014.
2014 WL 4682688, at *4 (some alterations in original) (footnotes and citations omitted).
In the 9/18/14 TRO Order, this Court ruled that it could not address Plaintiffs’ argument that the review and compilation of patient records and the disclosure of the List were improper in the context of a TRO because the Amended Complaint for Declaratory and Injunctive Relief and for Damages, [filed 2/23/12 (dkt. no. 44), ] does not contain a claim alleging improper review and use of confidential patient information. 2014 WL 4682688, at *6. This Court, however, found that the public disclosure of the List was a violation of the Amended Stipulated Protective Order, [filed 11/8/13 (dkt. no. 134), ] and imposed sanctions on Defendants. Id. at *9-10. To the extent that Plaintiffs sought to prevent Defendants from obtaining or using patient information - which Defendants contended was relevant in this case - in a manner that violates the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d, et seq., its implementing regulations, and/or the Hawai`i State Constitution, the Court directed the parties to schedule a discovery conference with the magistrate judge to address these issues through the normal discovery process. 2014 WL 4682688, at *11.
The magistrate judge held a status conference on September 26, 2014, and issued his Order Regarding Discovery Issues on October 7, 2014 (“10/7/14 Discovery Order”). [Dkt. nos. 355 (minutes), 363.] The magistrate judge ruled, inter alia, that the protected health information at issue in this case “is discoverable if de-identified. Accordingly, the 132 patient medical records shall be de-identified. Upon de-identification, the medical records will be discoverable and shall be produced.” [10/7/14 Discovery Order at 5.]
On October 17, 2014, Plaintiffs filed a statement of appeal from the portion of the 10/7/14 Discovery Order “denying Plaintiffs’ motion to enjoin Defendants from making any further disclosure and use in this litigation of the protected health information of 133 of Plaintiffs’ patients identified by [Queen’s] through a review of its medical records.” [Dkt. no. 380 at 1.]
“John and Mary Does No. 1 through 14” (“the Patients”),  on behalf of “themselves and alternatively on behalf of the class of 133 patients who are similarly situated, ” seek to intervene in this action for the limited purpose of “address[ing] issues of confidentiality pending before the Court” in Plaintiffs’ appeal from the 10/7/14 Discovery Order. [Motion to Intervene at 2.] The Patients seek to intervene pursuant to Fed.R.Civ.P. 24(b). [Id.]
Rule 24(b) governs permissive intervention, and it states, ...