For the Court to issue a disclosure order permitting ex parte communications with persons disclosing protected information under HIPAA, the party moving for such an order must demonstrate a compelling reason why traditional discovery methods are insufficient. Furthermore, mere desires to level the playing field or to lower costs and engage in more efficient fact finding, are generally insufficient reasons. Put differently, a party seeking a disclosure order must demonstrate why standard discovery is insufficient, and that reason cannot simply be the inherent difficulty in
contacting witnesses created by HIPAA.
In a medical malpractice case pending in the United State District Court for the District of Maryland, the defendant doctors filed their Motion for Qualified Protective Order seeking an order permitting them to speak, ex parte and informally, with several treating physicians of the plaintiff, arguing that facilitating ex parte informal communications with the treating physicians would “ensure fairness and rectify Plaintiff’s significant discovery advantage,” as “Plaintiff’s counsel already enjoys the opportunity for unrestricted and private meetings with [the treating physicians]”; that permitting such communications would “promote judicial economy and lessen the burden on the parties and the treating providers”; and that their proposed order is necessary and sufficient to protect West’s privacy interests, as enshrined in the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d, et seq. (“HIPAA”) and Maryland law.
HIPAA provides that protected health information may be disclosed in the course of a judicial proceeding in two circumstances. 45 C.F.R. § 164.512(e). First, counsel may obtain a court order expressly authorizing disclosure of specific protected health information, id.§ 164.512(e)(1)(i), which the Court has referred to as a “disclosure order.” Second, disclosure may be made in response to a subpoena, discovery request, or “other lawful process” if the requesting party provides assurances that reasonable efforts have been made (a) to notify the individual whose health information is at issue and resolve any objections to disclosure, or (b) to secure a “qualified protective order” (“QPO”) prohibiting use of the information outside of the proceedings and requiring return/destruction of the information.at the conclusion of the proceedings. 45 C.F.R. § 164.512(e)(1)(ii)-(iv). Courts in the Maryland district have understood the “other lawful process[es]” referred to in § 164.512(e)(1)(ii) to mean other “traditional means of discovery.”
In short, a party seeking protected health information under HIPAA for use in litigation can ask a court for a disclosure order, permitting a health care provider to disclose such information, and/or can ask a court for a QPO, which serves as a sort of general discovery order, governing how protected information should be handled once obtained pursuant to ordinary discovery procedures.
The federal judge stated in its October 9, 2025 Memorandum and Order that the fact that parties to a lawsuit may have different degrees of access to a fact witness is neither exceptional nor confined to the HIPAA context, and “[e]ven if it is more expensive and burdensome than informal conversations might be, formal discovery strikes the appropriate balance between, on the one hand, Dr. Pitman and JHU’s interest in obtaining all relevant information, and on the other hand, West’s interest in having irrelevant medical information remain confidential. See Lynch, 2017 WL 6508980, at *4 (citing Piehl, 2013 WL 2470128, at *3). Dr. Pitman and JHU have not shown that a disclosure order is warranted. Without a disclosure order (or any authorization to disclose provided by West), no purpose would be served by issuance of a qualified protective order.”
“It is hereby ORDERED that Dr. Pitman and JHU’s Motion for Qualified Protective Order (ECF No. 88) and Dr. Grill and TMJ’s Joinder of Co-Defendants’ Motion for Qualified Protective Order (ECF No. 89) are DENIED.”
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