*1 This matter is before the Court on ECF No. 62, Defendants' Opposed Motion to Compel Release of Medical Records.

Plaintiff's second amended complaint asserts that he was sprayed with chemical agents in violation of the Eighth Amendment. Defendants represent that Plaintiff has placed his medical condition (i.e., injuries suffered from the spraying) at issue in this action. (ECF No. 62.) In addition, Defendants say that Plaintiff's state of mind is also relevant to the proceedings. After discovery began,[1] Defendants mailed a request for production to Plaintiff requesting that Plaintiff sign a medical release for counsel to receive and review Plaintiff's medical and mental health records. (ECF No. 62-1.) Plaintiff, however, signed a refusal form indicating that he would not release his medical records. (ECF No. 62-2.) Counsel scheduled a call-out with Plaintiff to confer regarding his position, to which Plaintiff indicated his preference was to “go through the court.” (ECF No. 62.) Defendants now request the Court issue an order compelling Plaintiff to release his medical and mental health records because Plaintiff's refusal is preventing them from litigating this case. (Id.)

Rule 34 of the Federal Rules of Civil Procedure requires a party to produce all “documents and things” over which the party has “possession, custody or control.”[2] There is nothing in the wording of the Rule, however, that would require a plaintiff to execute a consent or medical release unless the Plaintiff wishes to do so voluntarily.

The Eleventh Circuit has never directly addressed the issue of whether a party can be compelled to execute a medical release. The issue has been addressed, however, by this Court, others from the Eleventh Circuit, and several district courts from other circuits with varying results. See Graham v. Witalec, No. 5:10-cv-65-GRJ, 2011 WL 1335808, at *1 (N.D. Fla. Apr. 7, 2011) (concluding that the Federal Rules of Civil Procedure do not provide authority for a court to order a prisoner plaintiff to sign medical releases or face dismissal); Clark v. Vega Wholesale, Inc., 181 F.R.D. 470, 472 (D. Nev. 1998) (refusing to order a party to execute a medical release in response to a Rule 34 request to produce because plaintiff did not have exclusive control of the documents and the relationship between plaintiff and her doctor was not sufficient to establish control for purposes of Rule 34); Neal v. Boulder, 142 F.R.D. 325, 327–28 (D. Colo. 1992) (finding no basis for a court to compel releases for medical records under Fed. R. Civ. P. 34 because of the plaintiffs' lack of custody of the records); but see Hong v. Mcneil, No. 4:10cv155-SPM-WCS, ECF No. 30 (N.D. Fla. Dec. 16, 2010) (ordering plaintiff to sign a medical release form where plaintiff placed his medical condition at issue because defendants would nonetheless be entitled to review those records as part of discovery); Smith v. Logansport Community Sch. Corp., 139 F.R.D. 637, 649 (N.D. Ind. 1991) (directing plaintiff to execute a release of her counseling records because where “the mental or physical condition of a party has been placed in issue, the practice of obtaining written consents for the release of records represents the least expensive and most efficient means of procuring information rom medical or counseling providers”); see also Sherlock v. Fontainebleau, No. 15-CIV-24593, 2017 WL 213803, at *1 (S.D. Fla. Jan. 18, 2017) (declining to conclusively decide whether a federal district court can force a plaintiff to sign a HIPAA[3] authorization and instead directing the parties to jointly submit a proposed order for the court to execute pursuant to HIPAA regulations as well as subpoenas to be issued to the healthcare providers);

*2 Defendants point to Gratton v. Great Am. Comms., 178 F.3d 1373 (11th Cir. 1999), for the proposition that the Court can compel a plaintiff to sign a release authorizing production of his medical records. The issue in Gratton, however, was not whether the district judge abused his discretion in ordering plaintiff to sign a release. Instead, the issue was whether the district judge erroneously dismissed the case because of plaintiff's failure to comply with the Court's order to provide medical releases to the defendants. Gratton, 178 F.3d at 1374; see also Sherlock, 2017 WL 213803, at *1 (noting that there is no binding legal authority from either the United States Supreme Court nor the Eleventh Circuit Court of Appeals on whether the court can require a plaintiff to sign a HIPAA medical authorization form for the release of medical records from third party healthcare providers simply because the plaintiff has placed his medical condition at issue). Furthermore, the situation here is distinct from Gratton because in Gratton, defendants had first issued subpoenas to plaintiff's treating physicians and the subpoenas were ignored. See Brief of Appellees, Gratton, No. 97-6312, 1999 WL 33618584, at *9 (11th Cir. June 29, 1999).[4]

The Court acknowledges that in some circumstances, compelling a party to execute releases may be a more expedient and less costly method for a party to obtain the desired information from a third party. See Cameron v. Supermedia, LLC, No. 4:15cv315-MW-CAS, 2016 WL 1572952, at *6 (N.D. Fla. Apr. 19, 2016 (“The practice of providing releases between the parties is more a matter of convenience to simplify the discovery process.”). Indeed, a reasonable argument might be made that even though a plaintiff might not have medical records in his or her physical possession, that the plaintiff nonetheless has control over them as provided in Rule 34. Defendants, however, have not presented an argument as to why or how the medical records are in Plaintiff's possession, custody, or control under Rule 34. The Court, therefore, declines to order Plaintiff to execute a medical release form at this juncture.

The fact that the Plaintiff has filed a lawsuit placing his medical condition in issue does not waive the confidentiality of Plaintiff's medical records under HIPAA. This does not leave Defendants without recourse. Even if the patient declines to give written consent, the medical provider may still disclose confidential health information under the steps outlined in HIPAA. Counsel may obtain the required medical records (even though Plaintiff has refused) in several ways under HIPAA. Counsel may obtain a court order which allows the healthcare provider to disclose “only the protected health information expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(I); see also Fed. R. Civ. P. 45(a)(2). In the absence of a court order counsel may avail himself of additional methods used in conjunction with traditional means of discovery. These additional methods include obtaining the information through a subpoena or request to produce in compliance with the requirements of § 164.512(e).

In the instant motion Defendants request neither a court order directed to the healthcare provider, nor is there any suggestion that they have sought the information through a subpoena. Accordingly, because the instant motion merely seeks an order compelling Plaintiff to sign a medical release form, Defendant's motion is due to be denied.

Upon due consideration, it is ORDERED that:

DONE AND ORDERED this 1st day of March, 2017.