Plaintiff's motion for sanctions [179] complains that Defendants' former counsel engaged in an unauthorized ex parte meeting with Plaintiff's former treating physician about her medical treatment. As this motion seeks only monetary sanctions and other non-dispositive relief, the undersigned Magistrate Judge has authority to adjudicate this motion. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72; Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 240 (9th Cir. 1991). For the reasons stated below, the Court finds that Defendant's former counsel possessed authority under the release drafted and executed by Plaintiff to interview her physician, who was an independently-represented third-party fact witness. Thus, the Court DENIES Plaintiff's motion [179].

Because Shahar's motions for sanctions [209] in part seeks the case-dispositive relief of dismissal, the undersigned is empowered only to issue a Report and Recommendation as to that motion. See Grimes, 951 F.2d at 240–41. This motion seeks sanctions and dismissal on the basis that the claims against Shahar are clearly unsupported by the evidence and are being maintained unreasonably. As explained below, the undersigned RECOMMENDS that this motion [209] be DENIED.

Shahar's motions to seal material concerning Plaintiff's sanctions motion [196][238] are GRANTED IN PART and DENIED IN PART. Plaintiff and Shahar's motions to seal material concerning Shahar's sanctions motion [210][222][228] are DENIED.

I. BACKGROUND

The motions before the Court are the culmination of an oft-extended discovery period fraught with disputes between parties and non-parties alike. Plaintiff filed this action on January 15, 2019, asserting claims of employment discrimination against the City of Atlanta, her former employer, and Robin Shahar, her former supervisor. Against Shahar, Plaintiff asserts a claim of “Sexual Harassment/Gender Discrimination” under 42 U.S.C. § 1983, arguing that Shahar's actions in the scope of Plaintiff's public employment amounted to a violation of the Constitution's Equal Protection Clause. See Am. Compl. [48] at ¶¶ 133–45. In brief, Plaintiff alleges in her operative Amended Complaint that Shahar subjected her to repeated unwanted sexual advances and touching beginning in February 2016. See id. at ¶¶ 34–38, 43–55. According to Plaintiff, Shahar's alleged harassment came to a head on December 6, 2016, after Plaintiff was summoned to the City's Human Resources office for a meeting. Id. at ¶ 80. On her way to the meeting, Plaintiff alleges that Shahar called her into her office and “made additional unwanted sexual advances.” Id. at ¶ 81. Plaintiff contends that Shahar stated “that she knew why [Plaintiff] was called down to HR and offered to make it all go away” in exchange for “you know,” a proposition which Plaintiff declined. See id. at ¶¶ 83–90. Plaintiff alleges that she suffered a complete breakdown after finally meeting with HR that day, and that she accordingly took leave under the Family and Medical Leave Act. Id. at ¶¶ 94, 99–101. On February 24, 2017, Plaintiff says she produced a letter from her doctor stating that she was able to return to work. Id. at ¶ 113. However, the City allegedly denied Plaintiff's request to return to work, instead instructing her to undergo a fitness for duty examination. In a March 2017 independent examination, Dr. Ifetayo Ojelade concluded that Plaintiff was not fit to return to work. Id. at ¶¶ 114, 122. Plaintiff then sought and received a second independent examination from Dr. Mark Ackerman, who was slated to conclude that Plaintiff was, in fact, capable of returning to work. Id. at ¶¶ 129–30. Before he could issue any such report, however, the City terminated Plaintiff's employment. Id. at ¶ 131.

*2 Throughout this litigation, Shahar has contended that she and Plaintiff had no contact after December 6, 2016 and that she was not in any way involved with the adverse actions Plaintiff complains of relating to her FMLA leave and termination. She has argued that December 6, 2016 is the date on which Plaintiff's claims against her accrued, and that Plaintiff's January 2019 filing of her claims is thus untimely under the applicable two-year statute of limitations. As such, Shahar has twice sought the dismissal of claims against her on the grounds that Plaintiff did not allege that she committed any acts of discrimination or harassment against Plaintiff within the two-year period preceding the filing of the original Complaint. See Mots. [11][57].

The Court has twice rejected Shahar's arguments. See R&R [42] at 17–19, adopted by Order [47]; R&R [105] at 17–20, adopted by Order [112]. Notwithstanding Shahar's protestations that she was not, in fact, involved in the adverse actions Plaintiff suffered in 2017, the Court stated that Plaintiff was due an opportunity to gather evidence in discovery proving Shahar's potential involvement and individual liability. See R&R [42] at 17–19; R&R [105] at 17–20. In her motion for sanctions, Shahar contends that Plaintiff has failed to uncover any such evidence of her individual liability and that, in maintaining Plaintiff's claims against her, Plaintiff's counsel are proceeding in sanctionable bad faith.

Plaintiff's sanctions motion focuses on the methods Defendants employed in seeking discovery regarding her medical treatment history. Plaintiff's physical and mental health status has featured prominently in Defendants' discovery inquiries and requests for production. Because of the sensitive nature of information and records responsive to such requests, the parties have sharply disputed the discoverability and conditions of use attached to relevant material and sources of information. As such, the Court has entered multiple general protective orders governing the procurement and use of medical information during discovery. See Orders [52][89][187].

During discovery, Defendants, both represented at the time by the law firm Baker, Donelson, Bearman, Caldwell & Berkowitz PC (“Baker Donelson”), engaged in an ex parte interview with Plaintiff's treating therapist, Dr. Torre Prothro-Wiley. Plaintiff argues that this meeting was impermissible because it occurred without any advance permission, either from her of from the Court, and did not otherwise comply with the privacy strictures of the Health Insurance Portability and Accountability Act (“HIPAA”) and Georgia state law. Plaintiff accordingly requests that the Court sanction Baker Donelson.

II. DISCUSSION

A. Motions to Seal

The Court will first address various motions to seal briefs and exhibits that Plaintiff and Shahar have filed along both of their sanctions motions.

“What transpires in the court room is public property,” Craig v. Harney, 331 U.S. 367, 374 (1947). Motions to seal are disfavored and must overcome the presumption of public access to judicial documents. See Perez-Guerrero v. U.S. Att'y Gen., 717 F.3d 1224, 1235 (11th Cir. 2013). Neither party here has opposed the other's motion to seal documents. However, it is not uncommon for litigants to acquiesce to each other's requests to seal, because “[m]ost litigants have no incentive to protect the public's right of access.” Le v. Exeter Fin. Corp., 990 F.3d 410, 419 (5th Cir. 2021) (alteration in original) (internal quotations omitted). Thus, it falls to the courts, usually sua sponte, to “undertake a case-by-case, document-by-document, line-by-line balancing of the public's common law right of access against the interests favoring nondisclosure.” Id.

*3 Although all motions to seal material from public access are subject to scrutiny, the level of scrutiny depends on the type and volume of material at issue. Subject to the highest level of scrutiny are requests by parties to seal the record of an entire case; such a request is at odds with the common law right of public access, and any party making such a request must show that it “is necessitated by a compelling governmental interest, and is narrowly tailored to that interest.” Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001) (alterations in original) (quoting Wilson v. Am. Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985)); see also Price v. Gwinnett Family Dental Care, LLC, No. 1:06-CV-2569-BBM-GGB, 2008 WL 11407228, at *2 n.1 (N.D. Ga. Aug. 11, 2008). A somewhat lower level of scrutiny applies to request to seal “[m]aterial filed in connection with any substantive pretrial motion, unrelated to discovery[.]” See Romero v. Drummond Co., Inc., 480 F.3d 1234, 1245 (11th Cir. 2007). While such material is still subject to the common law right of access, the right of access “may be overcome by a showing of good cause[.]” Id. at 1246. The Eleventh Circuit has elaborated on the good cause standard as follows:

Id. (internal citations omitted).

At the lowest level of scrutiny are requests to seal discovery material. “Because discovery is ‘essentially a private process,’ ” the common law right of access is inapplicable to material filed solely for discovery-related purposes, such as in relation to a motion to compel production. Id. (quoting United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)).

The parties' five motions are thus subject to different tiers of scrutiny. Two motions [196][238] filed by Shahar seek to seal her response to and sur-reply regarding Plaintiff's sanctions motion, along with exhibits attached thereto. Plaintiff's sanctions motion, which seeks sanctions for Baker Donelson's ex parte contact with Plaintiff's physician, solely relates to the conduct of discovery in this case. As such, Shahar's motions to seal material relevant to Plaintiff's sanctions motion are subject to a lower tier of scrutiny than motions to seal material relevant to the merits of this case. See Shepard v. United Parcel Serv., Inc., No. 5:08-CV-0906-SLB, 2010 WL 11562047, at *7–8 (N.D. Ala. Mar. 31, 2010) (applying a low level scrutiny to motions to seal material accompanying a motion to compel production and related request for sanctions).

Conversely, Shahar's sanctions motion, which seeks the dismissal of Plaintiff's claims against her and monetary sanctions against Plaintiff and her counsel, is related to the sufficiency of evidence uncovered in discovery rather than the scope of discovery itself. Although it is not styled as a motion for summary judgment, granting any of the relief Shahar seeks in her motion would necessarily involve determining that the evidence in the record is insufficient to support Plaintiff's claims against Shahar on the merits. In seeking the dismissal of the claims filed against her, Shahar's motion seeks to “invoke important Article III powers ... so much so that magistrate judges may not even rule on” much of her motion, such as its request for dismissal of Plaintiff's claims. Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1100 (9th Cir. 2016) (internal citations and quotations omitted) (applying the common law right of access to material related to motions for preliminary injunctions).

*4 Thus, for all intents and purposes, Shahar's motion is a pretrial motion on the merits subject to the common law right of access, and the motions to seal [210][222][228] associated with it are subject to a good cause standard. See Gubarev v. Buzzfeed, Inc., 365 F. Supp. 3d 1250, 1255–56 (S.D. Fla. 2019) (“Once the discovery is used ‘in connection with pretrial motions that require judicial resolution of the merits' ... the filed material becomes ‘subject to the common-law right.’ ”) (quoting Romero, 480 F.3d at 1245).

Shahar seeks to file under seal the entirety of her response to and sur-reply regarding Plaintiff's motion for sanctions. Previously, the Court granted Plaintiff's motion to seal discovery material filed alongside her motion for sanctions, which consisted “largely of medical records and communications, including a portion of a deposition transcript, which reference Plaintiff's medical condition in detail.” Order [188] at 4. Finding that Plaintiff had a strong privacy interest in her medical information, “at least in the context of ... discovery disputes,” the Court permitted the sealing of the documents. Id.

Shahar's motions largely seek the sealing of similar material. The documents filed along Shahar's response and sur-reply contain detailed references to Plaintiff's medical history and other sensitive personal information. Thus, to the extent that Shahar seeks the sealing of material appended to her response and sur-reply, the Court determines that sealing is appropriate, just as it did for similar material appended to Plaintiff's motion. However, Shahar's motions seek to go a step further than Plaintiff's motions and additionally seek the sealing of Shahar's response and sur-reply briefs themselves. Shahar offers no explanation for why her briefs, which contain no references to Plaintiff's medical conditions themselves or any information about Plaintiff which cannot already be found in her publicly filed briefs, should be sealed from public access. Further, unlike the medical details revealed in the parties' exhibits, the public has an interest in accessing the parties' legal arguments. Even applying the lower level of scrutiny appropriate for discovery matters, sealing of the legal briefs themselves is not warranted.

Accordingly, Shahar's motions to seal [196][238] are GRANTED IN PART and DENIED IN PART. Specifically, Shahar may file under seal the exhibits attached to her briefs relating to Plaintiff's sanctions motion. However, Shahar's briefs, themselves, may not be filed under seal. The Clerk is thus DIRECTED to unseal the Shahar's response and sur-reply briefs [195][237]; the exhibits attached to the briefs [195-1–195-10][237-1–237-5] must remain under seal.

Both Plaintiff and Shahar seek to file the entirety of the briefing and material associated with Shahar's sanctions motion under seal. As justifications for such a broad request, both contend that their briefing and exhibits contain references to Plaintiff's private health information and other information designated as confidential under the terms of previous protective orders entered by the Court.

At this juncture, as her theory of Shahar's individual liability, Plaintiff specifically advances a contention that Shahar falsely told City officials about certain mental health episodes suffered by Plaintiff in an attempt to cast her as incapable of returning to work after her leave. To the extent the parties' briefing and exhibits reference Plaintiff's medical history, they do so regarding conditions and episodes that are at the center of Plaintiff's theory and of Shahar's substantive defense that she was not involved in the City's decision to not permit Plaintiff to return to work after her FMLA leave and to eventually terminate her employment. Whether or not Plaintiff's theory of Shahar's individual liability is legally or factually viable, the mere fact that it concerns potentially sensitive medical information about Plaintiff does not warrant shielding Plaintiff and Shahar's core legal dispute from the public. Unlike the parties' disputes over whether certain medical records are discoverable or whether and how certain medical providers may be contacted, their disagreement over Shahar's individual liability is fundamentally a public matter. Further, to the extent that Plaintiff has a privacy interest in mental health information that can be found in the briefing and exhibits associated with Shahar's sanctions motion, it is mitigated by Plaintiff's own placement of the matter at issue by arguing that Shahar mischaracterized her health.

*5 The Court thus cannot find good cause to seal material relevant to Shahar's potentially dispositive motion. Accordingly, the parties' motions to seal [210][222][228] related to Shahar's sanctions motion are DENIED.

Thus, the Clerk is DIRECTED to remove the provisional seals over the parties' briefs [209][221][227] concerning Shahar's sanctions motion and all attached exhibits.

B. Motions for Sanctions

Plaintiff and Shahar variously ask the Court to invoke its power to sanction parties and counsel under Rules 11 and 37 of the Federal Rules of Civil Procedure, 28 U.S.C. § 1927, and its inherent common law authority.

Rule 11 “requires [litigants] to make reasonable inquiries into the veracity of information filed before the court and to advise the court of any changes.” Attwood v. Singletary, 405 F.3d 610, 613 (11th Cir. 1997) (per curiam). The Court may sanction an attorney or party that violates Rule 11, which provides as follows:

Fed. R. Civ. P. 11(b). “Rule 11 is intended to deter claims with no factual or legal basis at all; creative claims, coupled even with ambiguous or inconsequential facts, may merit dismissal, but not punishment.” Davis v. Carl, 906 F.2d 533, 538 (11th Cir. 1990). Rule 11 sanctions are appropriate “(1) when a party files a pleading that has no reasonable factual basis; (2) when the party files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law; and (3) when the party files a pleading in bad faith for an improper purpose.” Jones v. Int'l Riding Helmets, Ltd., 49 F.3d 692, 694 (11th Cir. 1995). “A court conducts a two-step inquiry when evaluating a motion for Rule 11 sanctions: (1) determining whether the non-moving party's claims are objectively frivolous; and (2) determining whether counsel should have been aware that they were frivolous.” Adams v. Austal, U.S.A., L.L.C., 503 F. App'x 699, 703 (11th Cir. 2013) (quoting Jones, 49 F.3d at 695). To decide whether a claim is objectively frivolous, the Court must “determine whether a reasonable attorney in like circumstances could believe his actions were factually and legally justified.” Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003). Sanctions cannot be imposed where the evidence supporting a plaintiff's claim “is reasonable, but simply weak or self-serving.” Thompson v. RelationServe Media, Inc., 610 F.3d 628, 665 (11th Cir. 2010) (quotations and emphasis omitted); see also Lawson, 563 F. App'x at 681 (“The fact that [a plaintiff] has provided some evidence [of his factual contentions] is sufficient to establish that Rule 11 sanctions are inappropriate.”).

*6 If a court determines that the factual contentions are frivolous, the question becomes “whether the person who signed the pleadings should have been aware that they were frivolous; that is, whether he would have been aware had he made a reasonable inquiry.” Worldwide Primates, Inc. v. McGreal, 87 F.3d 1252, 1254 (11th Cir. 1996) (citation omitted). “If the attorney failed to make a reasonable inquiry, then the court must impose sanctions despite the attorney's good faith belief that the claims were sound.” Id. (citation omitted). The reasonableness of the attorney's inquiry “turns on the totality of the circumstances, including, for example, the time available for investigation and whether the attorney had to rely on the client, another member of the bar, or others.” Thompson, 610 F.3d at 665. An attorney's obligation to make a reasonable factual inquiry into their claims continues beyond the time of pleading, as Rule 11 has been “amended to emphasize ‘the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable.’ ” Peer v. Lewis, 606 F.3d 1306, 1311 (11th Cir. 2010) (quoting Fed. R. Civ. P. 11 advisory committee note of 1993). Commentary appending the Rule “specifically notes that ‘if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention.” Id.

While Rule 11 governs the representations parties make to the Court, Rule 37 creates a specific sanctioning scheme for violations of discovery requirements. Rule 37 outlines several specific scenarios in which it authorizes sanctions, including, inter alia, failures by parties or witnesses to comply with discovery orders, make required disclosures, or appear for properly noticed depositions. See Fed. R. Civ. P. 37. Sanctions should not be imposed under Rule 37 “if reasonable people could differ as to the appropriateness of [a litigant's] contested action.” In re Delta/AirTran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d 1335, 1358 (N.D. Ga. 2012) (quoting Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993)).

28 U.S.C. § 1927 provides that “[a]ny attorney ... who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.” The Eleventh Circuit has explained the standards that must be met in any request for sanctions under this section as follows:

Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007) (quoting Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997)). Mere negligent behavior is not enough to warrant sanctions under § 1927—rather, “ ‘bad faith’ is the touchstone.” Schwartz v. Million Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). “A determination is warranted where an attorney knowingly or recklessly pursues a frivolous claim or engages in litigation tactics that needlessly obstruct the litigation of non-frivolous claims.” Id. (citing Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1320 (11th Cir. 2002)).

Underlying the Court's codified sanctioning powers outlined above is its inherent power to sanction counsel before it, a power “derived from the common law.” Byrne v. Nezhat, 261 F.3d 1075, 1131 n.110 (11th Cir. 2001), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008). “[T]he inherent power extends to a full range of litigation abuses,” and allows the Court to sanction any attorney or party “who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991); see Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010) (“inherent power fills the gap” when other rules are insufficient) (quoting Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1474 (D.C. Cir. 1995) (citing Chambers, 501 U.S. at 46)).

*7 In evaluating Plaintiff and Shahar's motions, the undersigned views the record in a light most favorable to the nonmoving party and with a view that sanctions are to be imposed sparingly.

Plaintiff seeks sanctions against Defendants and Baker Donelson under Rule 37, 28 U.S.C. § 1927, and the Court's inherent authority to impose sanctions. In her motion, Plaintiff complains that Baker Donelson engaged in an ex parte meeting with her treating therapist, Dr. Prothro-Wiley. Plaintiff argues that Baker Donelson solicited confidential medical information during this meeting, and that the meeting was without authorization through either a court order or a release. Plaintiff contends that Baker Donelson should have provided her with notice that it intended to meet with Dr. Prothro-Wiley and that they should have sought a qualified protective order permitting them to do so. Occurring without an authorizing order, notice, or a release, Plaintiff argues that the ex parte meeting, which took place on June 23, 2020—days before Dr. Prothro-Wiley's deposition—occurred in violation of HIPAA medical privacy regulations and that sanctions are warranted. Specifically, Plaintiff seeks the imposition of a monetary penalty on Baker Donelson, along with a limiting instruction attached to the “tainted” testimony of Dr. Prothro-Wiley, an admonishment of Baker Donelson against future similar conduct, and the payment of all fees and costs associated with the ex parte meeting, including the costs of Plaintiff's sanctions motion. See Mot. [179] at 14.

Baker Donelson acknowledges that it met with Dr. Prothro-Wiley on an ex parte basis but argues that it is not restrained by HIPAA and that, even if it is, its meeting with Dr. Prothro-Wiley was consistent with HIPAA's requirements. Baker Donelson responds that Dr. Prothro-Wiley is a material witness in this case and none of the Court's previous protective orders, which govern the use of confidential medical information in this case, required them to seek permission before meeting with Dr. Prothro-Wiley. Further, Baker Donelson argues that Plaintiff did, in fact, authorize the meeting, pointing to an October 17, 2019 “Authorization for Release of Medical and/or Hospital Information” executed by Plaintiff. The Authorization, which identifies Dr. Prothro-Wiley as its subject, states as follows:

Authorization [179-1].

As a general matter, lawyers involved in a case may seek to informally speak with non-party potential fact witnesses in advance of their formal testimony, without necessarily seeking permission from, giving notice to, or inviting an opposing party. While non-party witnesses are not obliged to meet informally with lawyers or investigators involved in a case, they generally may do so of their own free will. In this case, the Protective Order in place at the time of Baker Donelson's meeting with Dr. Prothro-Wiley did not specifically address whether Defendants or their lawyers could meet with Plaintiff's treating physicians. In other words, the Protective Order did not, in itself, alter or negate the general rule allowing free access to non-party fact witnesses.

Nevertheless, Baker Donelson did not meet with just any non-party fact witness. Rather, the lawyers met ex parte with one of Plaintiff's treating doctors about her treatment of Plaintiff. Plaintiff argues that although the Protective Order did not expressly restrict this conduct, it did not expressly permit it either, and other background legal rules and precedents should be interpreted as prohibiting such a communication without express court permission.

Specifically, Plaintiff contends that Baker Donelson's meeting with Dr. Prothro-Wiley violated HIPAA, a statute enacted to “address concerns about the confidentiality of patents' individually identifiable health information,” OPIS Mgmt. Res., LLC v. Sec'y, Fla. Agency for Health Care Admin., 713 F.3d 1291, 1294 (11th Cir. 2013), and other confidentiality rules related specifically to medical information. As authorized by the law, the Department of Health and Human Services has issued regulations “establish[ing] that ‘[a] covered entity or business associate may not use or disclose protected health information,’ except in certain circumstances ... or with a valid authorization.” Id. at 1295 (quoting 45 C.F.R. §§ 164.502(a), 164.508(a)(1)) (alterations added and in original). Among other permissible circumstances, confidential health information may be released without written authorization if it is done “ ‘in the course of any judicial or administrative proceeding’ ... in response to: (1) an ‘order of a court or administrative tribunal,’ or (2) a ‘subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal,’ when certain conditions are met.” Murphy v. Dulay, 768 F.3d 1360, 1369 (11th Cir. 2014) (quoting 45 C.F.R. § 164.512(e)). Georgia courts also recognize a separate, although very similar, right under state law to medical privacy and confidentiality. Baker v. Wellstar Health Sys., Inc., 703 S.E.2d 601, 603 (Ga. 2010)).

As an initial matter, it is unclear whether the Court may enforce Plaintiff's HIPAA rights under the guise of a motion for sanctions. Most basically, law firms and opposing litigants generally are not “covered entities” within the reach of HIPAA, and Plaintiff makes no argument otherwise in this case. Further, “there is no right of enforcement by an individual generally .... Rather, an individual who believes [her] rights under HIPAA have been violated may file a complaint with the Office of Civil Rights, Department of Health and Human Services, the federal agency that enforces the regulations.” Sanchez v. McCray, No. 05-22171, 2008 WL 11452601, at *3 (S.D. Fla. Feb. 25, 2008) (citing 45 C.F.R. § 160.306). The mild penalties imposed in proper enforcement actions themselves have also left courts reticent to impose heavy-handed sanctions for violations occurring in the discovery process, be it through monetary sanctions or exclusion of evidence. See Estate of Lillis v. Bd. of Comm'rs of Arapahoe Cty., No. 16-cv-03038-KLM, 2019 WL 3386471, at *5 (D. Colo. July 26, 2019) (declining to impose sanctions for a HIPAA violation in part because the prescribed penalties for HIPAA violations are “minimal”); Frye v. Ayers, 2009 WL 1312924, at *3 (E.D. Cal. May 12, 2009) (“HIPAA does not provide for exclusion of evidence as a remedy for its violation.”) (quoting United States v. Streich, 560 F.3d 926, 935 (9th Cir. 2009)); Law v. Zuckerman, 307 F. Supp. 2d 705, 712 (D. Md. 2004).

*9 Nevertheless, several courts have considered the imposition of sanctions under Rule 37 in response to violations of HIPAA during discovery. See Sanchez, 2008 WL 11452601, at *3 (citing Crenshaw v. Money Life Ins. Co., 318 F. Supp. 2d 1015, 1030 (S.D. Cal. 2004)); Roots v. Allied Waste N. Am., Inc., No. 1:04-CV-3799-JOF-JMF, 2006 WL 8431778, at *11 (N.D. Ga. May 19, 2006). The Court agrees that doing so can be appropriate. After all, even if the lawyers themselves are not directly regulated by HIPAA, the doctors from whom they may be attempting to extract information are so regulated, including Dr. Prothro-Wiley in this case. It should go without saying that officers of the Court are to refrain from obtaining evidence by inducing legal violations by others and should be potentially subject to sanctions for abusive conduct if they obtain evidence involving another's breach of the law.

However, while the Court may consider imposing sanctions based on HIPAA and other medical confidentiality violations under Rule 37 and/or 28 U.S.C. § 1927, Plaintiff has not shown that Baker Donelson committed any sanctionable violations in this case.

HIPAA is largely satisfied when a patient has signed a valid authorization for the release of confidential medical information, which, “alone, is sufficient to permit disclosure in compliance with HIPAA, ‘so long as such use or disclosure [is] consistent with such authorization.’ ” Murphy v. Dulay, 768 F.3d 1360, 1370 (11th Cir. 2014) (alteration in original) (quoting 45 C.F.R. § 164.508). A valid authorization must contain:

Id. (alterations in original) (quoting 45 C.F.R. § 164.508(c)(1)(i)–(vi)). An authorization must additionally include, inter alia, statements “adequate to place the individual on notice” of their right to revoke their consent to the release of confidential health information. Id.

In a litigation context, HIPAA and related rules generally reflect a “ ‘strong policy’ against allowing defense counsel ex parte access to [a] plaintiff's treating physicians,” as such contacts risk the unauthorized dissemination of protected health information. Wade v. Vabnick-Wener, 922 F. Supp. 2d 679, 690 (W.D. Tenn. 2010) (quoting E.E.O.C. v. Boston Mkt. Corp., No. CV 03-4227, 2004 WL 3327264, at *4 n.5 (E.D.N.Y. Dec. 16, 2004)). But such contacts are not prohibited. See Thomas v. 1156729 Ontario Inc., 979 F. Supp. 2d 780, 784 (E.D. Mich. 2013) (“HIPAA neither prohibits nor permits defendants to conduct ex parte interviews with physicians.”) (collecting authority). Rather, if the conditions stipulated in HIPAA's implementing regulations are satisfied, litigants may seek otherwise confidential medical information from their adversary's medical providers. The release of such information may be accomplished through meetings with medical providers, as “[n]othing in the HIPAA regulations indicates that such requests should be limited only to written documents[.]” Lajeunesse v. BNSF Railway Co., No. CV 18-0214 KG/JHR, 2019 WL 3017127, at *4 (D.N.M. July 10, 2019); Thomas, 979 F. Supp. 2d at 784 (“The HIPAA regulations plainly permit adversaries in litigation to have access to a claimant's medical records that are relevant .... Having access to the medical witnesses serves the same goal of allowing equal access to the evidence ...”). Thus, if it is done pursuant to a valid authorization, court order, or other circumstance identified in the regulations, an ex parte meeting with a litigant's medical provider is not prohibited under HIPAA. See Rodriguez v. City of New Brunswick, No. 12-4722 (FLW), 2017 WL 5598217, at *7 (D.N.J. Nov. 21, 2017) (“It is the collective conclusion of courts across the country that that although ex parte communications [with covered medical providers] are not per se prohibited by HIPAA, when notice was not given to [the plaintiff] in advance of the communications and [the plaintiff] has not expressly authorized disclosure, counsel must at the very least secure a qualified protective order consistent with HIPAA's privacy rules.”) (collecting authority) (emphasis added).

*10 Plaintiff's Authorization is broad and could be reasonably interpreted as allowing ex parte communications with Dr. Prothro-Wiley. The Authorization plainly states that Dr. Prothro-Wiley was permitted to furnish to Baker Donelson “any and all information or opinions that they may request” regarding Plaintiff's treatment. Authorization [179-1]. Plaintiff further states in the Authorization that she “voluntarily authorize[s]” Dr. Prothro-Wiley to “furnish the above information, including Photostat, faxed or electronic copies of my medical records” to Baker Donelson. Id.

Notwithstanding her acknowledgement that patient authorization is, alone, enough to permit an adversary to meet ex parte with a medical provider, Plaintiff provides little argument that the broad language she uses in her Authorization does not provide such permission with regards to Dr. Prothro-Wiley. Nor does Plaintiff make any argument that her Authorization is invalid to the extent it does provide such permission.

At most, Plaintiff contends that the phrasing “including ... copies of my medical records” implies that her Authorization did not encompass anything beyond documentary records. See Reply [205] at 5. However, an illustrative clause following the word “including” does not serve to limit the scope of the operative term it follows. See Chickasaw Nation v. United States, 534 U.S. 84, 89 (2001) (“To ‘include’ is to ‘contain’ or ‘comprise as part of a whole.’ ”); Ala. Educ. Ass'n v. State Superintendent of Educ., 746 F.3d 1135, 1150 n.13 (11th Cir. 2014). Rather, in a medical records context, the operative term at issue—“information”—“as properly interpreted, includes knowledge or data that is communicated to another, regardless of whether the knowledge or data has been memorialized in any tangible medium or exists only in the memory and voice of the person communicating it.” Arby's Rest. Grp., Inc. v. McRae, 734 S.E.2d 243, 245 (Ga. 2012) (internal quotation omitted) (determining that workers' compensation claimants waive any privilege prohibiting ex parte communications with their treating physicians, pursuant to O.C.G.A. § 34-9-207's authorization of employers to seek “information and records ... concerning the [claimant]”). Plaintiff herself appears to agree that, absent express indication otherwise, the phrase “any and all information” includes both oral and documentary records, arguing in her brief supporting her motion that oral records fall within the scope of “protected health information” under HIPAA “because any oral recount of treatment of an individual necessarily constitutes a verbal medical record.” Mot. [179] at 11.

The Court also notes that this release was negotiated and signed in the context of litigation in which Plaintiff was ably represented by counsel, who apparently drafted the authorization itself. In this context, there is no reason not to interpret the language “any and all information,” including “opinions,” according to its natural, common-sense, broad meaning. This is particularly so in the context of a motion for sanctions, that seeks to punish a beneficiary of a release for acting in at least arguable compliance with it.

Also importantly, Dr. Prothro-Wiley was at all times during these events separately and independently represented by her own lawyer, who confirmed on the record of the deposition that in his judgment Dr. Prothro-Wiley was legally authorized under the terms of the release to meet with Baker Donelson.

Thus, given her broad empowerment of Dr. Prothro-Wiley to provide Baker Donelson with “any and all information or opinions [it] may request” over the course of a year, the Court cannot accept Plaintiff's argument that Baker Donelson had reason to believe that an oral exchange of information with Dr. Prothro-Wiley in the full presence of the doctor's independent counsel was outside the scope of the Authorization. Having reason to believe that the meeting was authorized by the Authorization drafted and executed by Plaintiff, Baker Donelson had reason to believe that the meeting was compliant with HIPAA privacy rules. Faced with such facts, the Court cannot conclude that Baker Donelson acted in bad faith in meeting with Dr. Prothro-Wiley.

*11 Accordingly, the Court cannot find that Baker Donelson acted unreasonably, and therefore finds that sanctions are unwarranted. See Estate of Lillis, 2019 WL 3386471, at *5 (declining to sanction an attorney who violated HIPAA by seeking medical information regarding an adversarial party without consent or other authorization because “it was not immediately obvious ... that [the attorney's] actions were a violation of HIPAA”); Croskey v. BMW of N. Am., No. 02-73747, 2005 WL 4704767, at *5 n.2 (E.D. Mich. Nov. 10, 2005) (denying a plaintiff's request to sanction defense counsel for an ex parte meeting with his treating physician that may have violated HIPAA because they were “acting in accordance with a reasonable interpretation of the law”).[1]

In her sanctions motion, Shahar argues that, by continuing to press claims of discrimination against her, Plaintiff's counsel are engaging in vexatious conduct and violating their duty of candor under Rule 11 and § 1927, and that sanctions under both rules are warranted. According to Shahar, evidence uncovered in discovery conclusively establishes that Plaintiff's discrimination claims against her are meritless under the applicable statute of limitations. Given the contention that Plaintiff and Shahar had no contact after December 6, 2016, the two-year statute of limitations applicable to Plaintiff's claims, and Plaintiff's January 2019 filing of the Complaint, Shahar states that Plaintiff's claims against her can be timely only if she can “show that Shahar was somehow involved in: (1) the City's denial of Plaintiff's request to return to work; (2) the City's subsequent decision to subject Plaintiff to a contested fitness for duty examination; and/or (3) the City's decision to fire Plaintiff.” Mot. [209-1] at 6. Notwithstanding the City's statement that concern from Plaintiffs' “managers” prompted its refusal of Plaintiff's request to return to work, Shahar argues that there is no evidence that she, specifically, was involved in the decision, citing to her own deposition testimony and that of various City officials. See id. at 6–9; Exh. H [209-9]. Shahar additionally cites deposition testimony that she claims confirms that she was not involved in subjecting Plaintiff to a fitness-for-duty examination, that she was not involved in the negative result of said examination, and that she was not involved in the City's eventual decision to terminate Plaintiff. See Mot. [209-1] at 9–15. According to Shahar, such evidence conclusively establishes that Plaintiff's claims against her are time-barred.

*12 However, Shahar's Rule 11 request is premature and due to be denied. “As the Eleventh Circuit has found, Rule 11 sanctions [regarding the sufficiency of evidence underlying a pleaded claim] are not ordinarily determined until the end of a case,” when a full view of the reasonability of pursuing a claim is available. Almeida v. Bennet Auto Supply, Inc., 335 F.R.D. 463, 366 (S.D. Fla. 2020) (citing Donaldson v. Clark, 819 F.2d 1551, 1555 (11th Cir. 1987)); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1337.1 (4th ed.) (“[I]f the challenged conduct is that there is no factual support for the institution of the action itself ... the question of whether there has been a Rule 11 violation generally should not be decided until after the litigation is completed.”). Further, in seeking the dismissal of claims against her for lack of sufficient supporting evidence, Shahar “moves the Court to adjudicate the disputed core claims of this litigation in the context of a sanctions motion.” Bigford v. BESM, Inc., No. 12-61215, 2012 WL 12886184, at *2 (S.D. Fla. Oct. 12, 2012). But a “Rule 11 motion is not an avenue to ... seek judgment on the merits of a case under Rule 56.” Almeida, 335 F.R.D. at 465. Without the benefit of the form and timing of a proper motion for summary judgment, including a presentation of all relevant evidence in the record and statements of facts constituting the parties' full contentions as to the relevant events, determining the merits of Plaintiff's claims against Shahar at this juncture “is not the preferred method of proceeding.” Id.

Shahar's motion was filed on October 19, 2020, well before the discovery period was complete. Discovery was not even substantially complete as to all the sources of information relevant to Shahar's potential individual liability—the depositions of Cathy Hampton and Dr. Adrienne Bradford, two witnesses with knowledge as to Plaintiff's medical condition, the City's alleged decision to require Plaintiff to undergo a fitness-for-duty exam, and its alleged decision to not let Plaintiff return to work, had not yet taken place. See Resp. [221] at 1–2. As such, Shahar cannot argue that discovery had conclusively shown that she cannot be individually liable for any adverse actions taken against Plaintiff within the statute of limitations period. Thus, as the Court has already done once before, the Court should again turn back Shahar's premature attempt to offer evidence that she claims warrant dismissal of Plaintiff's claims. See R&R [42] at 18 n.1, adopted by Order [47].

Shahar's request for sanctions under § 1927, “which require[s] a higher showing” than her request under Rule 11, see Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1241 n.1 (11th Cir. 2007) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991)), is also due to be denied. The Court views the reasonability of Plaintiff's counsel's assertion of claims against Shahar in light of the circumstances as they existed on October 19, 2020, when Shahar filed her sanctions motion. At that time, Plaintiff's counsel were aware of a February 2017 letter from the City stating that it was the concern of Plaintiff's “managers” that prevented her from returning to work, and of Plaintiff's testimony that Shahar had a managerial role over her and that Shahar historically had a role in personnel decisions affecting LGBT employees such as herself. See Exh. E [209-6] at 6, 8; Exh. H [209-9]. Whatever the sufficiency of this or any other evidence for purposes of Plaintiff's claims against Shahar surviving a motion for summary judgment, it is not so plainly deficient as to make proceeding with those claims an egregious act “tantamount to [objective] bad faith.” Id. at 1239 (quotation omitted). This is particularly so given that discovery was not yet complete and depositions of multiple witnesses remained outstanding. As such, the only way to reach Shahar's invited conclusion is to review an incomplete record outside of the confines of a motion for summary judgment and to determine the sufficiency of the evidence with minimal direct briefing on the topic and/or to credit Shahar's proffered evidence over Plaintiff's. The Court should decline to do so.

III. CONCLUSION AND RECOMMENDATION

*13 For the reasons stated above, Plaintiff's motion for sanctions [179] is DENIED. The undersigned RECOMMENDS that Shahar's motions for sanctions [209] be DENIED.

Shahar's motions to seal material concerning Plaintiff's sanctions motion [196][238] are GRANTED IN PART and DENIED IN PART. Specifically, Shahar may file under seal the exhibits attached to her briefs relating to Plaintiff's sanctions motion. However, Shahar's briefs, themselves, may not be filed under seal. The Clerk is thus DIRECTED to unseal the Shahar's response and sur-reply briefs [195][237]; however, the exhibits attached to the briefs [195-1–195-10][237-1–237-5] must remain under seal. Plaintiff and Shahar's motions to seal material concerning Shahar's sanctions motion [210][222][228] are DENIED; as such, the Clerk is DIRECTED to unseal documents [209][221][227] and all their attachments.

IT IS SO ORDERED AND RECOMMENDED this 2nd day of June, 2021.

Plaintiff states that, under Georgia law, “a Court must specifically authorize ex parte interviews for one to be conducted with a health care provider.” Reply [205] at 11 (citing Baker v. Wellstar Health Sys., Inc., 703 S.E.2d 601, 603 (Ga. 2010)). Baker applied “the substantive right to medical privacy under Georgia law,” which according to Baker continues to exist alongside HIPAA. However, to the extent Georgia law is even applicable in this action, which features solely federal claims, the relevant language Baker solely addresses the restrictions that lower courts should include in protective orders to allow litigants to obtain an adversary's medical information. Baker did not hold that a litigant is required by Georgia law or otherwise to obtain any additional court permission to interview a doctor, where the patient herself has granted the litigant broad access and authorization to “any and all information or opinions that they may request” from that doctor. Indeed, no such patient authorization was at issue in Baker. Here, by contrast, the patient authorization granted Baker Donelson the right to request and obtain information from the doctor, and even the doctor's own independent counsel apparently agreed that there was no legal violation involved by doing so. The Court finds no basis for sanctions predicated on Georgia law as reflected in Baker.