COMES NOW Plaintiff, by and through his attorney, D.J. Banovitz, Esq. and files this Reply to Defendant’s Response to Motion for Protective Order:
Plaintiff filed the Motion for Protective Order on April 15, 2009. Pursuant to C.R.C.P. 121 any response was due on or about May 3, 2009. Defendant Portillo failed to timely file a response. Defendant Regalado-Cuevas has filed a nine page response arguing that the requested protective order is unnecessary, overreaching, and moot. Plaintiff will reply to Defendant’s surprisingly long response to a motion that he purports to be unnecessary and moot.
Defendant spends a great deal of time in the Response indicating the duties and obligations that Young America Insurance has as it relates to the Colorado Division of Insurance. Defendant correctly points out but fails to adequately address the fact that Young America is not a party or a litigant to this lawsuit and is not entitled to any (emphasis added) confidential medical information of Mr. LaGrande in the first place.
Defendant further indicates that there is adequate protection that an insurance company is required to keep the medical information confidential. Unfortunately, with Young America not being a party to this lawsuit, this Court has no jurisdiction over American Family if it at some point converts the medical information. Defendant’s position is that no protective order is required for what might happen. This “once the horse has left the barn” argument will do nothing to protect Mr. LaGrande from any harm, embarrassment, or inconvenience if and when his personal information is disseminated outside of what is required for this suit.
Young America, through the use of databases such as Colossus, may take Plaintiff’s confidential medical information and entering it into the database, not to evaluate his injuries or claims to settle his claim, but to decide what Young America will be offering other individuals on their claims in the future and calibrating the baseline for the database. Young America may also take the confidential information of Plaintiff and put it into databases such as the Comprehensive Loss Underwriting Exchange (CLUE database) and the Automobile-Property Loss Underwriting Services (A-PLUS database). That is a conversion of her medical information that is inappropriate and unauthorized by Plaintiff.
Such a conversion of the medical and personal information of Plaintiff’s records is not-authorized and goes beyond what is necessary for defense counsel to defend Mr. Regalado-Cuevas in this action. Presumably defense counsel is looking out for the best interests of Mr. Regalado-Cuevas and not Young America. Plaintiff loses the ability to keep his records confidential if they are distributed to a third party such as Young America which can use them in whatever fashion it deems appropriate at some time in the future. Plaintiff cannot predict all the harm and all the ways that Young America can improperly convert that information, but the danger and risks to Plaintiff are real, serious, and objectively manifest by simply looking at the newspaper headlines of large corporations improperly disseminating confidential information on individuals. Without a Protective Order or Stipulation (limited in scope and in no way impacts the ability to defend the case) there would be no repercussions against Young America for improper usage or dissemination. Defense counsel and defendant simply ask this Court and Plaintiff to trust that Young America will keep the information confidential and will not improperly convert it. However, they do not acknowledge that they have no control over what Young America does with the materials once disseminated.
Young America, without a protective order, is not even subject to the jurisdiction of this Court so the Protective Order must be applied to the Defendant, defense counsel and their experts, all of whom are subject to the jurisdiction of the Court. If Young America wants the confidential medical information of Plaintiff, it must voluntarily subject itself to the jurisdiction of this Court or be prohibited from receiving the medical information.
Conceptually, Young America is simply required to pay the defense costs, and in the event of a judgment against Defendant, indemnify and pay the judgment on his behalf. It cannot practice law, has no other obligations or duties to defendant, and has no right to interject itself and demand confidential medical information and records of Plaintiff.
The fact remains that defense counsel represents the Defendant and not Young America. The granting of a Protective Order will not affect counsel’s ability to defend the defendant in any way, shape or form. All that Young America has to do is agree in writing to keep the records confidential, not convert them to some database, destroy them after completion of this case, or utilize them in any fashion other than to evaluate the case. Why is this so difficult?
Defendant contends that the insurance company cannot agree to destroy the records because it has an obligation to retain the records pursuant to the Colorado Division of Insurance. An agreement may be worked out with defense counsel that for purposes of malpractice issues, defense counsel keeps the records for a period of seven years and the insurance company destroys their records (including electronic file), which complies with any retention requirements. To allow the insurance company to just retain the confidential medical information and utilize them as they see fit without a protective order is problematic as there is no ability for Plaintiff to monitor their usage and, at some point in the future the insurance company can decide to distribute, convert or utilize them in any way they see fit.
Any contention that the use of the databases is “an essential fraud prevention tool” and that “sharing” the information allows the insurance industry to combat fraud is irrelevant to this case. While that goal is admirable, there has been no affirmative defense of fraud asserted by the defendant in this case. Fraud must be pled with specificity under the Rules of Civil Procedure and pure conjecture and speculation about what Plaintiff may or may not do years or decades in the future does not serve the ends of justice, is without merit, and is not proper legal analysis.
Finally, this particular Protective Order will not harm or prejudice Defendant in any way in this litigation. Defense counsel will still be able to defend, will still get all the records, and will still be able to proceed to trial with no real or imagined disadvantage. Defendant, if it so chooses, can make full use of the tools of discovery provided for in the Colorado Rules of Civil Procedure, completely unhindered by the entry of the proposed protective order.
Respectfully submitted, this May 6, 2009.