*1 This matter is before the Court upon Defendant Duke Energy Progress, LLC's (“Duke Energy”) Motion to Compel or, in the Alternative, to Exclude Testimony. (Docket Entry 56.) Also before the Court is Plaintiff Roanoke River Basin Association's (“RRBA”) Motion to Strike Defendant's Late-Noticed Witnesses or For a Protective Order. (Docket Entry 61.) For the following reasons, the Court will grant Duke Energy's Motion to Compel, and deny RRBA's Motion to Strike.

I. BACKGROUND

RRBA filed this action against Duke Energy challenging the alleged ongoing, unlawful discharges of toxic metals and other pollutants by Duke Energy at its Roxboro Steam Station coal-fired electricity generating plant (“Roxboro Plant”) in violation of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1376. (See generally Complaint, Docket Entry 1.) Since discovery commenced, several disputes have arisen requiring Court intervention. Currently pending before the Court is Duke Energy's motion seeking to compel the testimony of Ms. Rtistina Wiggins, one of RRBA's members who has been disclosed as a potential witness for trial. (Docket Entry 57 at 1-2.) RRBA opposes the motion, arguing that the information is irrelevant and protected from the disclosure based upon a protective order of this Court. (Docket Entry 68.) Also before the Court is RRBA's motion to strike whereby it seeks protection from the Court to bar the testimony of Duke Energy's two newly added lay witnesses. (Docket Entry 62.) Duke Energy argues that the supplemental disclosures were timely, relevant, and will not unduly prejudice RRBA in this action. (Docket Entry 87.)

II. DISCUSSION

As a general rule, Federal Rule 26(b) provides general provisions regarding the scope of discovery:

Fed. R. Civ. P. 26(b)(1). District courts generally have broad discretion in managing discovery, including whether to grant or deny a motion to compel. Lane Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 929 (4th Cir. 1995); Erdmann v. Preferred Research, Inc. of Georgia, 852 F.2d 788, 792 (4th Cir. 1988). “[T]he party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion.” Carter Hughes v. Research Triangle Inst., No. 1:11CV546, 2014 WL 4384078, at *2 (M.D.N.C. Sept. 3, 2014) (citation omitted) (unpublished).

Additionally, pursuant to Rule 26(c) Federal Rules of Civil Procedure, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” Fed. R. Civ. P. 26(c)(1). Protective orders pursuant to Rule 26(c) “should be sparingly used and cautiously granted.” Medlin v. Andrew, 113 F.R.D. 650, 652 (M.D.N.C. 1987). “Not only are protective orders prohibiting depositions rarely granted, but [P]laintiff has a heavy burden of demonstrating the good cause for such an order.” Id. at 653 (citation omitted). “Normally, in determining good cause, a court will balance the interest of a party in obtaining the information versus the interest of his opponent in keeping the information confidential or in not requiring its production.” UAI Tech., Inc. v. Valutech, Inc., 122 F.R.D. 188, 191 (M.D.N.C. 1988) (citation omitted). Thus, “[i]n order to obtain a protective order prohibiting a deposition, the proponent must convince the Court that the information sought by the deposition lacks relevance to the extent that the likelihood and severity of the harm or injury caused by the deposition outweighs any need for the information.” Id. Trial courts have broad discretion “to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).

*2 In its Complaint, RRBA contends that “its members have been harmed by Duke Energy's unpermitted discharges and unlawful activities,” that they “fear contamination of drinking water, wildlife, and river water,” and that there are toxic effects of pollutants, such that “[w]here several coal ash contaminants share a common mechanism of toxicity or affect the same body organ or system, exposure to several contaminants concurrently produces a greater chance of increased risk to health.” (Compl. ¶¶ 24-25, 95.) RRBA filed this citizen's suit on behalf of its members, none of which were individually named in this action. However, RRBA has disclosed a number of potential witnesses that RRBA “may call to testify about how their concerns about Duke Energy's Roxboro coal ash pollution affect their use and enjoyment of Hyco Lake and other water resources in the Roanoke River Basin, to demonstrate [RRBA's] standing to bring this action.” (Docket Entry 68 at 2.) One of its members, Ms. Wiggins, signed a declaration stating that her parents have owned a vacation property on Hyco Lake for numerous years which she and her family often visits during the summer and other parts of the year. (Kristina Wiggins Decl. ¶¶ 3-4, Docket Entry 57-2.) Ms. Wiggins noted that her son was tested for heavy metals and they discovered elevated levels of metals that concern his doctor. (Id. ¶ 8.) Both her son and daughter have an autoimmune disease, and Ms. Wiggins is upset that her son's condition is possibly the result of coal ash pollution. (Id. ¶¶ 8, 11-12.)

On January 12, 2018, during a deposition, Ms. Wiggins testified that she and her two children have health issues, and her practitioner ran tests which showed toxins and heavy metals. (Wiggins Dep. 14:12-15, Docket Entry 57-1.) Counsel for Duke Energy proceeded to ask questions related to Ms. Wiggins’ communications with her doctor which counsel for RRBA instructed her not to answer. (Id. at 14-19.) In its motion, Duke Energy asserts that Ms. Wiggins has placed her medical conditions directly at issue in this matter; thus, Duke Energy should be able to question her about her condition and it should be entitled to all medical records related to those conditions. (Docket Entry 57 at 3.) RRBA states that the protective order in this action precludes disclosure of Ms. Wiggins’ confidential health information and that the information is not relevant to this action. (Docket Entry 68.)

On October 18, 2017, the Court signed a stipulated protective order which incorporated case management orders in state actions involving Duke Energy. (Docket Entry 27.) In particular, one of the limitations on discovery in the state case management order states that: “Nothing in this Initial Case Management Order shall require the disclosure of Protected Health Information, which is required to be kept confidential under State or federal law, and the Parties shall have the right to redact such information from any Discovery Materials.” (State Case Management Order ¶ 5(e), Docket Entry 68-1.) RRBA argues that this case management order protects disclosure of Ms. Wiggins’ private health information. However, the Court disagrees. By agreement, the state case management order does protect the private health information of the parties. Ms. Wiggins, a non-party, is not afforded such protection as the order is not applicable to her.[1]

Moreover, a physician-patient privilege does not exist to prevent disclosure of this information. Helsabeck v. Fabyanic, 173 F. App'x 251, 257 (4th Cir. 2006) (unpublished) (citing Fed.R.Evid. 501) (“The Federal Rules of Evidence do not recognize a physician-patient privilege where, as here, subject matter jurisdiction is based on federal law.”); Martin v. Cottrell Contracting Corp., No. 7:00-CV-114-F(1), 2000 WL 33177232, at *1 (E.D.N.C. Sept. 13, 2000) (unpublished) (“Because the federal courts do not recognize a federal physician-patient privilege, Plaintiff's argument regarding this privilege must be rejected.”). Additionally, the Health Insurance Portability and Accountability Act (“HIPAA”), 42 U.S.C. §§ 1320d et. seq permits disclosure of medical information pursuant to a court order. See 45 C.F.R. § 164.512(e).[2] Here, Ms. Wiggins has placed at issue her medical condition and that of her children, and it is relevant to this action, including the issue of standing as Ms. Wiggins has been identified by RRBA as a potential witness to support its standing to bring this action. As such, Duke Energy should be permitted to question Ms. Wiggins about such information. Laschkewitsch v. Lincoln Life & Annuity Distributors, Inc., No. 5:13-CV-315, 2014 WL 1365700, at *2 (E.D.N.C. Apr. 4, 2014) (unpublished) (allowing deposition of health care providers where “the Insured's medical condition clearly is a critical issue in the case”); United States v. Town of Chapel Hill, N.C., No. 1:05CV01083, 2006 WL 2714192, at *3 (M.D.N.C. Sept. 22, 2006) (unpublished) (granting motion to compel medical records related to health issues raised during deposition testimony). Although Ms. Wiggins will be required to disclose relevant confidential information, such information will be designated as confidential and will be subject to protection under a protective order.

*3 RRBA argues that should Ms. Wiggins remain unwilling to provide the medical information of her and her children, then her deposition testimony and declaration should be stricken from the record. (Docket Entry 57 at 14-15.) The Court agrees. Ms. Wiggins is not permitted to both hide behind health privacy and rely on her medical conditions creating both a shield and sword in this lawsuit. Should Ms. Wiggins elect to not disclose the relevant medical information, RRBA will be precluded from eliciting any testimony at trial, or introducing any evidence at trial, related to the medical conditions of Ms. Wiggins and her family that Ms. Wiggins believes were caused by operations at the Roxboro Plant, and all portions of Ms. Wiggins's deposition testimony and declaration related to those conditions will be stricken.

RRBA moves to strike Duke Energy's witnesses that were added for the first time on the day before the close of discovery. (Docket Entry 61.) Discovery in this matter ended on February 1, 2018. (Docket Entry 23.) Duke Energy has added two new lay witnesses, residents in the area of the Roxboro coal ash site who are listed to testify about their purported concerns regarding excavation of coal ash. (Docket Entry 61-1 at 3.) RRBA argues that Duke Energy could have disclosed these witnesses long ago, and that the disclosures are untimely because the witnesses could not be deposed within the discovery period. (Docket Entry 62.) Moreover, RRBA states that the testimony of the witnesses is irrelevant. (Id.) Duke Energy asserts that its supplementation to its initial disclosure was timely, does not unduly prejudice RRBA, and is relevant to the issues in this action. (Docket Entry 87.)

Rule 26(a)(1) of the Federal Rules of Civil Procedure provides that a party must provide the name and contact information of “each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). Under Rule 26(e), a party must supplement its disclosures “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A). If any party fails to “identify a witness as required by Rule 26(a) or (e),” then they are prevented from using that “witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Whether a failure to disclose is substantially justified or harmless depends upon a five-factor test:

S. States Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003) (quotations and citations omitted). “The determination of whether a Rule 26(a) or (e) violation is justified or harmless is entrusted to the broad discretion of the district court.” Reed v. Washington Area Metro. Transit Auth., No. 1:14CV65, 2014 WL 2967920, at *2 (E.D. Va. July 1, 2014) (unpublished).

After review of the parties’ briefs and attachments, the Court finds that Duke Energy's disclosures were untimely, but do not prejudice RRBA. Duke Energy added the new witnesses to its initial disclosures shortly after discovering that those third-party witnesses had information that Duke Energy might use to support its defense in this action. (See Corey D. Laplante Decl. ¶¶ 3-6, Docket Entry 87-8 (stating that the two new witnesses were not identified and confirmed as witnesses until the month preceding the close of discovery)). Within days of confirming that both could be witnesses, Duke Energy supplemented its disclosures. “The aim of Rule 26(a)(1) ... is to identify at the outset those persons that may have any information relevant to the case in order to allow for a complete investigation by all parties, thus allowing parties to depose, interview, or subpoena documents of such individuals during the period of time set aside for discovery.” Quesenberry v. Volvo Grp. N. Am., Inc., 267 F.R.D. 475, 480 (W.D. Va. 2010). Here, disclosure one day prior to the discovery deadline would not allow for adequate time for deposition of these new witnesses within the discovery period.

*4 The Court nevertheless finds that the untimely disclosures are harmless. Applying the five-factor test, RRBA may have been surprised by Duke Energy's late disclosure; however, such surprise can be cured by allowing the new witnesses to be disposed by RRBA which should not disrupt the trial which has been continued to December 2018. (See Docket Entry 115; see also Nat'l Credit Union, Admin. Bd. v. Cumis Ins. Soc'y, Inc., No. 1:11 CV 1739, 2015 WL 6658670, at *4 (N.D. Ohio Oct. 30, 2015) (unpublished) (“Although Plaintiff's disclosure of [a witness] was undoubtedly a surprise, it was not an eve of trial surprise nor was it one that [Defendant] was unable to cure.”); Bodden v. Cole, No. 3:11-CV-127-J-20MCR, 2012 WL 33051, at *2 (M.D. Fla. Jan. 6, 2012) (unpublished) (“Plaintiff's alleged untimely disclosures are harmless because Defendant will not suffer any prejudice as trial is not [imminent], and the Court will reopen discovery for this limited purpose.”)). Even if Duke Energy's reasoning for its late disclosure – its inability to reach witnesses until late January 2018 – weighs in RRBA's favor, the fifth factor does not. RRBA has provided the testimony of witnesses asserting their concerns about coal ash pollution in the surface and ground waters in the Mayo and Roxboro facilities, and how capping the top of the lagoons would not stop the problem. (Docket Entries 87-2, 87-3, 87-4.) Additionally, RRBA's executive director indicated that excavation and removal would be the best option to remedy the pollution issue. (Docket Entry 87-1.) As such, Duke Energy's witnesses potentially testifying on this same remedy issue is relevant. Therefore, the Court will not strike Duke Energy's additional witnesses in this matter.

III. CONCLUSION

For the reasons stated herein, IT IS HEREBY ORDERED that Duke Energy's Motion to Compel or, in the Alternative, to Exclude Testimony (Docket Entry 57) is GRANTED. A supplemental deposition shall take place within 30 days of the date of this Order. The parties shall split the costs of the supplemental deposition. Any medical information disclosed shall be protected by a confidentiality order. Should Ms. Wiggins decline to disclose the relevant medical information or be further deposed in this matter, RRBA will be precluded from eliciting any testimony at trial, or introducing any evidence at trial, related to the medical conditions of Ms. Wiggins, and her family, that Ms. Wiggins believes were caused by operations at the Roxboro Plant, and all portions of Ms. Wiggins's deposition testimony and declaration related to those conditions will be stricken.

IT IS FURTHER ORDERED that RRBA's Motion to Strike Defendant's Late-Noticed Witnesses or For Protective Order (Docket Entry 61) is DENIED. Should RRBA desire to depose these witnesses, the depositions shall take place no later than 30 days from the date of this Order.

There is no indication that Ms. Wiggins agreed to be bound by the state case management order.

In asserting that the state case management order applies to Ms. Wiggins, RRBA also argues that North Carolina law provides a physician-patient privilege to protect private health information. See N.C. Gen. Stat. § 8-53 (“Confidential information obtained in medical records shall be furnished only on the authorization of the patient ....”). Even if this statute were applicable, it also permits disclosure by a judge “if in his opinion disclosure is necessary to a proper administration of justice.” Id.