*1 Robert Love brings this action against the Medical College of Wisconsin (MCW),[1] Froedtert Memorial Lutheran Hospital, and various physicians employed by MCW and Froedtert alleging retaliation in violation of the False Claims Act, defamation, tortious interference with prospective contractual relations, breach of contract, and intentional infliction of emotional distress. In June 2016, I entered a protective order in this case, jointly proposed by the parties, governing the “exchange of sensitive information between or among the parties and/or third parties,” including in “documents produced in discovery, answers to interrogatories, answers to requests for admission, and deposition testimony.” See Protective Order, ECF No. 71, at 1. Love has filed two “emergency” motions to supplement the protective order.

Love's first motion to supplement the protective order arises from letters that his current and former counsel received from an attorney purportedly retained by MCW to investigate a “security incident” involving Love's improper removal and unauthorized use and disclosure of MCW's “protected health information” or “PHI.” See Pl.’s Mot. Ex. A, ECF No. 163-1, at 1. Citing regulations promulgated by the U.S. Department of Health and Human Services (HHS) under authority conferred by Congress in the Health Insurance Portability and Accountability Act (HIPAA), these letters demand, under threat of legal action, (1) the prompt identification of “[a]ny uses or disclosures of MCW's PHI” by Love or his counsel and (2) the immediate return of “any and all MCW PHI and confidential information, including copies thereof.” See id. at 1–2.

Love primarily objects to MCW's threat to bring a separate legal action against him and his attorneys should they fail to comply with its demands. He argues that “MCW is attempting ... to divert [his] attention and resources away from his case-in-chief and to block his use of documents supporting his claims produced in discovery.” Pl.’s Mot., ECF No. 163, ¶ 9. According to Love, “only this Court has the authority to decide whether and the extent to which [he] may utilize any [such] document[s],” and “MCW should, therefore, be barred from ... bringing any dispute over documents in any other venue or in any other action.” Id. Love proposes supplementing the terms of the protective order with the following language:

See Pl.’s Mot. Ex. C, ECF No. 163-3, at 2.

*2 MCW argues, and I agree, that Love “is trying to use the protective order in this action to resolve a dispute that is not part of this action.” Def.’s Opp'n, ECF No. 167, at 2. This case simply does not concern the applicability of or the parties’ compliance with HIPAA or regulations promulgated by HHS pursuant to HIPAA. I see no reason to draw disputes over such issues into this case. Moreover, Love's proposed addendum covers not only disputes about the unauthorized use and disclosure of PHI but all disputes concerning any information “produced or requested in this action.” As I cannot discern whether I would even have jurisdiction to hear all disputes that fall within the expansive yet nebulous scope of this language, I will not adopt it. Thus, I will deny this motion.

Love's second motion to supplement the protective order concerns a subpoena from the U.S. Department of Justice requiring his attorneys to turn over certain documents, presumably including confidential documents produced in discovery by MCW or Froedtert pursuant to the terms of the protective order. To allow his attorneys to respond to the subpoena without violating the protective order, Love proposes adding to it the following language:

See Pl.’s Mot. Ex. C, ECF No. 164-3, at 2.

MCW and Froedtert do not, generally, oppose Love's motion, but they do request a few changes to his proposed addendum, requiring written notice of both (1) a subpoena or other such demand within ten days of service of it and (2) the specific documents that will be produced in response to it at least five days before production.

Love moves for leave to file a reply brief in support of this motion. In his proposed reply brief, Love objects to MCW and Froedtert's proposed change requiring written notice of the specific documents to be produced in response to a subpoena. He argues that such notice would effectively require disclosure of a subpoena's terms, which may conflict with its terms or the demands of the federal or state agency that serves it.

I will grant Love's motion for leave to file a reply brief and grant in part his motion to supplement the protective order to expressly permit the parties to respond to lawful subpoenas and other civil investigative demands served on them or their attorneys by any federal or state agency. Specifically, as provided below, I will supplement the terms of the protective order with Love's proposed addendum as substantively modified by MCW and Froedtert except with respect to the provision to which Love objects.

THEREFORE, IT IS ORDERED that plaintiff's first motion to supplement the protective order (ECF No. 163) is DENIED.

IT IS FURTHER ORDERED that plaintiff's motion for leave to file a reply brief in support of his second motion to supplement the protective order (ECF No. 174) is GRANTED and that plaintiff's second motion to supplement the protective order (ECF No. 164) is GRANTED in part (and otherwise DENIED) as follows: The parties shall comply with the terms of the protective order and the following addendum to it:

Dated at Milwaukee, Wisconsin, this 25th day of May, 2018.