DAVEFLORE CHARLEMAGNE, Plaintiff, v. SAMANTHA ALIBAYOF and NICOLE ALIBAYOF, Defendants CASE NO. 20-CV-62043-SMITH/VALLE United States District Court, S.D. Florida Entered on FLSD Docket November 11, 2021 Counsel Jennito Simon, Pierre Simon, LLC, Fort Lauderdale, FL, Faudlin Pierre, Miami, FL, for Plaintiff. Che Christian Padron, Zediker, Associates, P.A., Coral Gables, FL, Marc Scott Buschman, Clark, Robb, Mason, Coulombe & Buschman, Miami, FL, Michael Austin Robb, Clark Robb Mason Coulombe & Buschman, Coral Springs, FL, for Defendants. Valle, Alicia O., United States Magistrate Judge OMNIBUS ORDER ON DEFENDANTS’ DISCOVERY MOTIONS1 *1 THIS CAUSE is before the Court upon Defendants’ Motions to: (i) Compel Plaintiff to Sign Medical Authorizations for Records (ECF No. 79); and (ii) to Overrule Plaintiff's Objections and to Allow Subpoenas for Plaintiff's School Records and Motion for Sanctions (ECF No. 81) (together, the “Motions”). In particular, Defendants seek to compel Plaintiff to execute HIPAA authorization forms for the release of medical records and permission to issue Rule 45 subpoenas to Miami Dade College and Florida Atlantic University for Plaintiff's educational records. See generally (ECF Nos. 79, 81). Having reviewed the Motions, Plaintiff's Responses, and Replies, see (ECF Nos. 79, 81, 82, 86, 87, 91), and being duly advised in the matter, the Motions are GRANTED IN PART AND DENIED IN PART for the reasons set forth below. I. MOTION REGARDING MEDICAL AUTHORIZATIONS Previously, the undersigned denied Plaintiff's motion to quash several third-party subpoenas issued to Plaintiff's medical providers, but nonetheless found the scope of subpoenas overbroad and limited production to five years from the date of the hearing. See (ECF No. 90 at 31, 37) (Transcript of April 27, 2021 discovery hearing). To date, however, two of the health care providers have refused to respond to the subpoenas until Plaintiff executes a HIPAA release authorizing the production of the subpoenaed medical records to Defendants. (ECF No. 79 at 1-2); see also 45 C.F.R. 164-508. The instant Motion followed. (ECF No. 79). Plaintiff objects to the Motion, arguing that: (i) it is untimely under Local Rule 26(g)(1), which requires that motions be filed within 30 days after the discovery dispute arose; and (ii) the Court cannot compel Plaintiff to execute a release for the subpoenaed medical records. See generally (ECF No. 82). In reply, Defendants argue that Plaintiff is not prejudiced by the relief sought and the subpoenaed medical records are relevant. See generally (ECF No. 86). Regarding the timeliness of the Motion, courts have discretion to consider a motion filed beyond the 30-day period contemplated in Rule 26(g)(1). Ctr. for Individual Rights v. Chevaldina, No. 16-CV-20905, 2017 WL 5905191, at *3 (S.D. Fla. Nov. 29, 2017). Here, although it is unclear when Defendants learned of the issue leading to the Motion, the record reflects that the parties attempted to resolve the dispute without court intervention. (ECF Nos. 79 at 2-3, 86 at 2-3). Accordingly, in the exercise of the Court's discretion, the undersigned will decide the Motion on the merits. Ctr. for Individual Rights, 2017 WL 5905191, at *3 (finding good cause to consider an otherwise untimely motion based on the offending party's ongoing effort to resolve the dispute without court intervention); see also Cotromano v. United Tech. Corp., No. 13-CV-80928, 2020 WL 3268268, at *2 (S.D. Fla. Apr. 7, 2020) (“[T]his Court has a strong preference for deciding cases on the merits, and not a procedural misstep.”). Turning to the substance of the Motion, the parties do not dispute that Plaintiff has placed her physical and mental health at issue. Nonetheless, Plaintiff has refused to sign a HIPAA authorization for the release of the requested medical records. There is no Eleventh Circuit precedent on whether this Court can compel Plaintiff to execute such a release, and district courts have taken conflicting positions. See Williams v. Carnival Corp., No. 18-CV-21654, 2020 WL 854809, at *1-2 (S.D. Fla. Feb. 11, 2020) (collecting cases); Sherlock v. Fontainebleau, 229 F. Supp. 3d 1277, 1281-82 (S.D. Fla. 2017) (collecting cases); see also Cupp v. U.S., No. CV512-005, 2015 WL 510134, at *3 (S.D. Ga. Feb. 6, 2015) (noting no Eleventh Circuit precedent, but further noting that several district courts have recognized the court's authority to compel a plaintiff to sign a HIPAA authorization form); but cf. Chase v. Nova Se. Univ., Inc. No. 11-CV-61290, 2012 WL 1936082, at *1 (S.D. Fla. May 29, 2012) (denying motion to compel execution of medical release forms). *2 In the absence of controlling authority, the undersigned adopts the reasoning in Sherlock and declines to compel Plaintiff to execute a medical release form. Sherlock, 229 F. Supp. 3d 1277 at 1282-83; see also Graham v. Carroll, No. 5-10-CV-65, 2011 WL 855331, at *2 (N.D. Fla. Mar. 9, 2013). Defendant may, however, obtain the requested medical records through HIPAA Orders, which would permit the health care providers to disclose “only the protected health care information expressly authorized by such order.” 45 C.F.R. 164.512(e)(1). Accordingly, Defendants’ Motion to Compel Plaintiff to Sign Medical Authorizations for Records is GRANTED IN PART AND DENIED IN PART to permit Defendants to submit appropriate HIPAA Orders for the Court's consideration. Consequently, the fact discovery deadline is extended to November 22, 2021 to allow Defendants to submit proposed HIPPA Orders that comply with the requirements of 45 C.F.R. 164.512(e)(1) and this Court's April 2021 discovery rulings. All other deadlines in the Scheduling Order remain unchanged. See (ECF No. 18). II. MOTION REGARDING SUBPOENAS FOR SCHOOL RECORDS Plaintiff has alleged various injuries, including traumatic brain injury, memory loss, and concentration difficulties. See (ECF No. 63 at 2-3). On October 7, 2021, Defendants sent an email to Plaintiff advising Plaintiff of their intent to issue Rule 45 subpoenas to Miami Dade College and Florida Atlantic University for Plaintiff's educational records, which Defendants claim are relevant to their expert's analysis of Plaintiff's mental functioning prior to the accident. (ECF Nos. 81 at 2, 87 at 1-2). Defendants’ email did not attach the proposed subpoena, but advised Plaintiff that Defendants would serve the subpoena by 4 p.m. the next day if they did not hear back from Plaintiff before then. (ECF No. 87 at 1-2). On October 8, 2021, Plaintiff's counsel replied, “We don't agree.” Id. at 2. The instant Motion followed. (ECF No. 81). To date, the proposed subpoenas have not been served. (ECF No. 91 at 4). Plaintiff objects to the Motion, arguing that: (i) Defendants failed to comply with the requirements of Rule 45; and (ii) there is no cognizable discovery dispute before the Court. (ECF No. 87 at 2-3). In reply, Defendants argue that the school records sought are relevant and they provided Plaintiff with adequate notice of the underlying subpoenas. See generally (ECF No. 91). Pursuant to Rule 45, before a subpoena can be served on a third-party, notice and a copy of the subpoena must be served on each party to the litigation. Fed. R. Civ. P. 45(a)(4). The purpose of the “prior notice” provision is to give an opposing party the opportunity to object to the subpoena prior to the date in the subpoena. Warren v. Delvista Towers Condo. Ass'n, Inc., No. 13-CV-23074, 2014 WL 1608369, at *1 (S.D. Fla. Apr. 22, 2014). The notice requirement is mandatory, and failure to provide notice constitutes grounds to quash a subpoena. Gonzalez v. RFJD Holding Co., Inc., No. 14-CV-61041, 2014 WL 12600141, at *2 (S.D. Fla. Sep. 2, 2014). Here, Plaintiff first received a copy of the proposed subpoenas when Defendant attached them as exhibits to their Reply to the instant Motion. See (ECF No. 91 at 7-14). Against this factual and legal backdrop, the undersigned finds that Defendants failed to comply with the requirements of Rule 45 in that Defendants’ October 7, 2021 email to Plaintiff did not include a copy of the proposed subpoenas and demanded an almost immediate response from Plaintiff. Indeed, Defendants did not provide Plaintiff with copies of the proposed subpoenas until their Reply to Plaintiff's Response. See (ECF No. 91). Although Defendants’ notice was technically defective, quashing the subpoena at this late stage of the litigation is imprudent as it may deprive Defendants of relevant discovery. Furthermore, Plaintiff has not shown prejudice, now having received copies of the still unserved subpoenas. *3 Nonetheless, the proposed subpoenas are overbroad in that they seek “any and all school records, grades, reports pertaining to scholastic achievements, attendance, general conduct, and any and all records or information in any way pertaining to and [a]ny and [a]ll other [d]ocuments in [y]our [p]ossession [c]oncerning” Plaintiff. (ECF No. 91 at 7, 11). To promote efficient case management, the undersigned will amend the subpoenas to limit production to: School records, grades, and reports pertaining to Plaintiff's scholastic achievements, attendance, and disciplinary history during Plaintiff's enrollment at the subpoenaed institution. Accordingly, Defendants’ Motion to Overrule Plaintiff's Objections and Allow Subpoenas for School Records is GRANTED IN PART, as amended by the Court. By November 15, 2021, after having reviewed the amended subpoenas and conferring with Defendants (conferral may be telephonic), Plaintiff may file a motion to quash, if necessary. Absent a motion to quash, Defendants may then serve the amended subpoenas to the respective academic institutions. III. CONCLUSION Accordingly, the Motions are GRANTED IN PART AND DENIED IN PART as follows: 1. Defendants’ Motion to Compel Plaintiff to Sign Medical Authorizations (ECF No. 79) is GRANTED IN PART AND DENINED IN PART. By November 22, 2021, Defendants shall submit to the Court proposed HIPPA Orders that comply with the requirements of 45 C.F.R. 164.512(e)(1) and this Court's April 2021 rulings. 2. Defendants’ Motion to Overrule Plaintiff's Objections and Allow Subpoenas for School Records is GRANTED IN PART. By November 15, 2021, after having reviewed the amended subpoenas and having conferred with Defendants, Plaintiff may file a motion to quash, if necessary. Absent a motion to quash, Defendants may then serve the amended subpoenas to the respective academic institutions. DONE AND ORDERED in Chambers at Fort Lauderdale, Florida on November 11, 2021. Footnotes [1] The discovery period in this case has now closed; however, Defendants’ Motions to: (i) Compel Plaintiff to Sign Medical Authorizations for Records; and (ii) to Overrule Plaintiff's Objections and to Allow Subpoenas for Plaintiff's School Records and Motion for Sanctions were timely filed prior to the cutoff. Accordingly, the issues raised in the Defendants’ Motions to Compel will be considered.