Pizarro v. Westchester County

Background

Liza Pizarro, as administrator of the estate of Daruis M. Pizarro, brought the action against Westchester County; Wellpath LLC; New York Correct Care Solutions Medical Services, P.C.; Dr. Jerome Norton; and Helene Bishop, R.N. The U.S. Department of Justice and its components are not parties to the action.

On April 22, 2024, Pizarro sent a request under the Department of Justice’s Touhy regulations and an accompanying subpoena to the U.S. Marshals Service, seeking documents connected to the allegations in the complaint. The requested materials could include records maintained in a federal system of records covered by the Privacy Act of 1974, as well as sensitive law-enforcement, investigative, or other confidential information.

The United States, Pizarro, and the defendants jointly requested the order under Federal Rule of Civil Procedure 26(c). The court found good cause for entering it to facilitate disclosure of information that might otherwise be restricted by the Privacy Act and to protect confidential information disclosed during discovery.

The Court’s Order

The order authorizes the United States, on behalf of the Department of Justice and its components, including the U.S. Marshals Service, to produce information that the Privacy Act would otherwise restrict, to the extent disclosure is permitted by a court order. The order does not require production barred by another privilege, statute, regulation, or authority.

The order also authorizes disclosure of information protected by the Health Insurance Portability and Accountability Act, known as HIPAA, and applicable state privacy laws. It is intended to qualify as a protective order under HIPAA. The order states that Daruis Pizarro’s medical records or health information are not protected under this order solely because they are medical information, because the estate administrator authorized their release under HIPAA.

The order defines “Protected Information” broadly to include documents, records, and information containing confidential, proprietary, personal, or similar information, including privileged law-enforcement information and information protected by the Privacy Act. Producing parties may designate such materials by marking them “Confidential — Subject to Protective Order.”

Protected Information may be used only for this action and may not be publicly disclosed except as the order permits. Authorized recipients include the United States and its attorneys, the plaintiff and her attorneys, the defendants and their attorneys, certain deposition witnesses, litigation experts and consultants who agree to follow the order, court reporters, and other people authorized by the court. Recipients must receive a copy of the order, and certain experts and consultants must sign an acknowledgment before receiving the information.

The order establishes procedures for challenging confidentiality designations, questioning witnesses about Protected Information, and giving advance notice before publicly filing protected material. A party intending to file Protected Information must give the producing party at least ten days’ written notice. The producing party may then ask the court to keep the material under seal. After the action, including appeals, has ended, Protected Information generally must be returned or destroyed within 30 days, subject to the order’s certification requirements.

What the Order Did Not Decide

Judge Judith C. McCarthy’s order expressly states that it does not decide whether any document or category of information is discoverable. It also does not rule on relevance, admissibility, privilege, other objections, or any party’s defenses, rights, or claims. The order does not prevent parties from seeking additional protection or additional disclosure.