Free Response to Order - District Court of Delaware - Delaware

Case 1:04-cv-00125-JJF—MPT Document 95 Filed O4/14/2005 Paget of 2 I,
Org OB E,RMA Y ER
Phnadeipnra, PA 19103-1895
M REBMANN MAXWELL Sr HIPPEL LLP {215] 6656000 Fax [215] 6656165
AUOMWS At Law www.oberrnayer.com
Steven T. Davis Delaware Office
Direct Dial {215} 665-3128 3 Mill Road, Suite 306A
E-Mail: Steven.D¤.vis@ Qberinayer. com Wilmington, DE 19806
(302] 655-9094 Fax (302) 65a-so51
PLEASE REPLY T0 PHILADELPHIA
April 12, 2005
The Honorable Mary Pat Thynge, U.S.M.J.
United States District Court
For the District of Delaware
844 N. King Street
Lock Box 8 e Room 4209
Wilmington, DE 19801
Re: Andrea L. Spoltore, f/k/a Andrea L. Cadwallader v.
Wilmington Professional Associates, Inc.
Docket No.: 04-125 JJF
Dear Magistrate Judge Thynge:
Please accept this letter on behalf of plaintiff Andrea Spoltore, concerning Your Honor’s Order of
April 7, 2005 regarding the various discovery motions that were before the court that date. Specifically,
Paragraph 3 of that Order states, in part, "plaintiff shall reimburse defendant for the following expenses
incurred by defendant for the continued deposition of plaintiffs experts, Drs Kaye and Jackovic and of
plaintiff; any fees charged by either expert and the deposition fee charged by the Court Reporter?
Although I have not yet received a copy of the transcript of the hearing, Kimberly D. Sutton, Esq.,
who appeared at the hearing on behalf of the plaintiff, has advised me that it was her understanding that the
defendant’s requests for fees and sanctions in the various motions had been denied. Ms. Sutton has
indicated that her notes reflect that the Court denied the defendants’ requests for sanctions in their various
motions, since the plaintiffs objections, relating to plaintiffs medical records, which were first raised in the
Motion to Quash a Subpoena to Elizabeth Jackovic. D.O. (filed on September 8, 2004), and again, in the
Motion for a Protective Order (filed on December 20, 2004), were not addressed by the Court by the time
the depositions of Drs. Neil S. Kay and Elizabeth A. J ackovic, were conducted by defendant on January 20,
and J anuary 25, 2005, respectively.
We tmderstand that during the hearing of April 7, 2005, defendant’s counsel acknowledged that,
although he included a footnote in one of the briefs on the discovery motions, he was willing to enter into a
protective order, that he had not provided plaintiffs counsel with a proposed qualified protective order that
complied with the provisions of the Health Insurance Portability and Accountability Act (hereinafter
“HlPAA”) before the depositions of Drs. Kaye and Jackovic were conducted. Therefore, in light of the
plaintiffs objections to the subpoenas filed by defendants, and the pending discovery motions that had not
yet been resolved, Dr. Jackovic and Dr. Kaye were not authorized to disclose the protected health
information that was the subject of Plaintiffs motions, pursuant to the express mandates of the "litigation"
provisions of HIPAA. 45 C.F.R. Section l64.5l2(e)(l%i;). _
ver a Century of Solutions
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Permsylvarria Pennsylvania Pennsylvania New Jersey New Jersey Delaware

Case 1:04-cv-00125-JJF—MPT Document 95 Filed O4/14/2005 Page 2 of 2
OBERMAYER, REBMANN, MAXWELL dn HIPPEL LLP V
The Honorable Mary Pat Thynge, U.S.M.J.
United States District Court
April 12, 2005
Page 2
In light of what we believe to have been the Court’s ruling at the hearing of April 7, 2004, or in the
altemative, the justitication that existed for not disclosing the plaintiff s protected health information prior
to the Court’s resolution ofthe issues in the various discovery motions, it is respectfully requested that the
Order of April 7, 2005 be amended to omit the provision that sanctions the plaintiff. .
ll
Thank you for Your Honor’s attention to this matter,
Respectfully yours,
STEVEN T. DAVIS
STD/ldh
cc: Laurence V. Cronin, Esquire (Via E-Filing)

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Case 1:04-cv-00125-JJF-MPT

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Case 1:04-cv-00125-JJF-MPT

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