JOHN MILLER, Plaintiff, v. PANTHER II TRANSPORTATION, INC., EXPEDITER SERVICES, LLC, WILLIAM A. HALL, Defendants No. 1:17-cv-04149-JMS-TAB United States District Court, S.D. Indiana, Indianapolis Division Filed March 08, 2019 Baker, Tim A., United States Magistrate Judge ORDER ON DEFENDANTS’ MOTION TO QUASH AND PLAINTIFF'S MOTION FOR FEES I. Introduction *1 At issue is Defendants’ motion to quash Plaintiff John Miller's subpoenas served on Concentra Urgent Care and Gordon Zellers, MD and for a protective order, as well as Miller's resulting motion for attorney's fees. [Filing Nos. 77, 88.] The discovery dispute arises out of Miller's personal injury claims against Defendants Panther II Transportation, Inc., Expediter Services, LLC, and William Hall. Miller alleges he was injured when Hall failed to properly secure a box truck while Miller was unloading it with a forklift. Miller does not allege Hall was operating the box truck when the incident occurred, but rather that Hall had parked the truck at a loading dock and failed to secure it in place. Miller claims that the box truck moved away from the dock, causing the forklift Miller was driving to fall from the box truck to the ground, resulting in severe permanent injuries to Miller. Defendants argue the subpoenaed forms are privileged medical records. Miller responds that the documents sought are not truly medical records, “but rather only records relating to a physical examination that [Hall] underwent as required by federal regulations as a prerequisite for lawfully operating a commercial motor vehicle.” [Filing No. 87, at ECF p. 1.] The resolution of this issue hangs in the balance between the relevance of the records and Hall's privacy. Local Rule 37-1 was amended last December to require, rather than merely encourage, parties to contact the assigned Magistrate Judge's chambers to see if the Magistrate Judge can resolve the dispute without the parties having to resort to motions practice. The parties ignored this rule. The Court could deny Defendants’ motion for failure to comply with Local Rule 37-1. This dispute would have been resolved much faster and at considerably less expense had the parties complied. But denying this motion on this basis would be a waste of time. Defendants’ proposal of in camera review matches the Court's inclinations precisely, and is the most straightforward way to balance the records’ relevance against Hall's privacy. As explained below, the Court grants Defendants’ motion to quash the subpoenas, but declines to enter a protective order, pending the result of its in camera review. Within seven days, Defendants shall file the requested records on the docket under seal, such that only the Court may review them. Given that the Court believes in camera review of the records is appropriate, and in fact grants the motion to quash, the Court rejects Miller's insistence that the motion to quash lacks merit. Therefore, Miller's motion for fees under Rule 37(a)(5) is denied. II. Discussion Defendants produced some of the requested documents, but seek to quash Miller's subpoenas for Hall's U.S. Department of Transportation Medical Examination Report Form and Medical Examiner Determination Form. In general: Parties may obtain discovery regarding any nonprivileged 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. *2 Fed. R. Civ. P. 26(b)(1). The parties disagree on what to call these documents; Defendants call them medical records, while Miller calls them “records pertaining to a physical examination that is required by federal regulations.” [Filing No. 87, at ECF p. 2.] The nomenclature emphasis arises because Defendants argue the records are privileged medical records, while Miller argues they are not. Whether the records are privileged is determined by Indiana law because the Court's jurisdiction is based on diversity of citizenship. Fed. R. Evid. 501 (“But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.”). Indiana law protects communications made for the purpose of diagnosis or treatment. Vargas v. Shepherd, 903 N.E.2d 1026, 1030 (Ind. App. 2009). Given that the purpose of the forms is to meet federal regulatory requirements, the physician-patient privilege likely does not apply. See Matysik v. Judd Transportation, LLC, No. 1:14-cv-1889-TWP-DKL, 2016 WL 559217, at *1 (S.D. Ind. Feb. 12, 2016) (analyzing the issue in dicta). Irrespective of whether the records are privileged, the Court is not convinced that the records are relevant such that production is proportional to the needs of the case. Miller argues that health is relevant to the safe operation of a large truck, but as Defendants point out, Hall was not operating the truck when the incident happened. Miller's allegation is that Hall failed to properly secure the truck before he left it at the dock. While properly setting the brake and chocking the wheels are part of safely operating a truck, there is no obvious link between securing the truck and the health issues the doctor is supposed to review when filling out the requested forms. [See Filing No. 87-1, at ECF pp. 1-3 (sample U.S. Dept. of Transp. Med. Examination Report and Med. Examiner Determination Form).] The only health concern Miller points to is a possibility that Hall had sleep apnea. Miller highlights that Hall weighed 350 pounds at the time of the incident, but Hall claimed in his deposition that he never had any sleeping difficulties, including sleep apnea. Miller does not argue that sleep apnea would make it more likely that Hall would fail to properly secure the truck. Instead, Miller contends that, if the records show Hall had sleep apnea, Miller could use the records to impeach him. In an apparent effort to show Miller thinks Hall's testimony is ripe for impeachment, Miller adds that Hall's certified driving record shows some of his deposition testimony was “not entirely accurate.” [Filing No. 87, at ECF p. 5.] Miller also posits that it is “somewhat odd” that Hall “apparently abandoned the truck” after the incident. [Id.] While impeachment evidence is relevant, whether the evidence exists is speculative and does not justify full disclosure of the intimate health details included in the records. While full disclosure on these facts alone is not appropriate, in camera review is justified. If it turns out that sleeping problems are noted on the form, the form would be relevant impeachment evidence. Further, Miller points out that Hall was certified for only three months when these certifications typically last for two years. The unusually limited duration is grounds for pause. The form allows a doctor to certify an applicant for the full two years or require periodic monitoring with a certification for three months, six months, or one year. [Filing No. 87-1, at ECF p. 3.] The doctor's decision to certify Hall for only the shortest permissible period raises a potential issue about Hall's fitness to operate a truck. Still, it is more likely that the doctor's concerns related to driving the truck than to properly setting the brake. Thus, to balance the potential relevance of the form with the intimate details it may contain, the Court will review the records in camera to determine whether they should be produced. III. Conclusion *3 Accordingly, the Court grants Defendants’ motion to quash [Filing No. 77] but denies the motion to the extent it seeks a protective order, at least until the Court completes its in camera review of the records. Within seven days, Defendants must file the requested records on the docket under seal, limiting to the Court the ability to review the records. As for Miller's motion for fees under Rule 37(a)(5) [Filing No. 88], the Court has granted the motion to quash and will conduct an in camera review. As a result, the Court rejects Miller's contention that the motion to quash lacks merit, and therefore denies Miller's motion for attorney's fees. Distribution: All ECF-registered counsel of record by email.