Lipsky v. N.J. Ass'n of Health Plans, Inc.
Decision Date | 18 January 2023 |
Docket Number | DOCKET NO. A-1611-21 |
Citation | 474 N.J.Super. 447,288 A.3d 1273 |
Parties | Richard LIPSKY, and MHA, LLC d/b/a Meadowlands Hospital, Plaintiffs-Respondents, v. The NEW JERSEY ASSOCIATION OF HEALTH PLANS, INC., Health Professionals and Allied Employees Union, Jeanne Otersen, Ann Twomey, Adrien Dumoulin-Smith, Harriet Rubenstein, Amerigroup, Inc., AmeriHealth Insurance Company of New Jersey, AmeriHealth HMO, Inc., United Healthcare Services, Inc., United Healthgroup Incorporated, Aetna, Inc., Horizon Blue Cross Blue Shield Insurance Company, and New Jersey Health Care Quality Institute, Defendants-Respondents. New Jersey Department of Health, Appellant. |
Court | New Jersey Superior Court — Appellate Division |
Michael R. Sarno, Deputy Attorney General, argued the cause for appellant (Matthew J. Platkin, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Michael R. Sarno, Deborah Shane-Held, and Patrick Jhoo, Deputy Attorneys General, on the briefs).
William J. Hughes, Jr., Morristown, argued the cause for respondent MHA, LLC d/b/a Meadowlands Hospital (Porzio, Bromberg & Newman, PC, attorneys; Vito A. Gagliardi, Jr., and Brett S. Moore, of counsel and on the joint brief; Thomas J. Reilly, on the joint brief).
Robert A. Agresta, Englewood, argued the cause for respondent Dr. Richard Lipsky (The Agresta Firm, PC, attorneys; Robert A. Agresta and Anthony K. Modafferi, III, of counsel and on the joint brief).
Before Judges Haas, Gooden-Brown and Mitterhoff.
The opinion of the court was delivered by
HAAS, P.J.A.D.
In this opinion, we address the novel issue of whether a party to a pending litigation may compel a non-party State agency to turn over its employees' State-issued and personal cell phones to that party's expert for forensic examination, even when the agency has already produced the relevant records from the devices. Having reviewed this issue in light of the record, the arguments of the parties, and the applicable law, we conclude that the trial court misapplied its discretion when it required the New Jersey Department of Health (Department) to give the cell phones to plaintiffs' expert for evaluation. The trial court's order violated civil discovery rules and case law by requiring the production of materials not in the Department's possession, custody, or control, not allowing for privilege and confidentiality review, and being unnecessary and unduly burdensome. The order also contravened the employees' constitutional right to privacy. Therefore, we reverse the court's order mandating that the Department turn over any State-issued or personal electronic devices for examination by plaintiffs' expert, and remand for resolution of any outstanding issues relating to the completeness of the Department's response to plaintiffs' subpoena.
Plaintiffs Richard Lipsky, MD, and MHA, LLC d/b/a Meadowlands Hospital, initiated this litigation in federal court. In 2016, the federal court severed a number of claims, which plaintiffs then pursued in State court.
In July 2017, plaintiffs served a subpoena duces tecum on the Department, with an attached copy of their November 2016 State-court amended complaint. This subpoena is not at issue in this appeal. For the most part, this subpoena sought documents and communications relating to plaintiffs and several other named individuals from January 2010 to the present. Plaintiffs issued a modified subpoena in April 2018, and in May 2018 the court issued an order granting plaintiffs' motion to compel the production of responsive documents.
In August 2018, plaintiffs filed a third amended complaint in their State-court litigation, in which they asserted claims for violations of New Jersey's racketeering and antitrust statutes, tortious interference with prospective and ongoing economic advantage, civil conspiracy, common law and statutory unfair competition, and aiding and abetting. In a nutshell, plaintiffs alleged that defendants1 conspired to target Meadowlands Hospital for elimination. They alleged:
As relates to the Department, which is not a party to the litigation, plaintiffs alleged that defendants: encouraged the Department to conduct inspections of Meadowlands Hospital for health-related violations; and used public records requests to obtain data about Meadowlands from the Department, as follows:
A little over a year after the third amended complaint, in October 2019, the Department conducted an inspection survey at Columbus Hospital in Newark, which is one of plaintiffs' facilities. On October 23, 2019, plaintiffs' counsel wrote to Department Assistant Commissioner Stefanie Mozgai seeking an explanation as to the factual and legal basis for the inspection. Shortly thereafter, in November 2019, in response to counsel's letter, the Department advised certain Department employees to preserve documents and electronic data regarding the October 2019 inspection and also a June-July 2019 licensure survey.
On April 27, 2020, plaintiffs served a subpoena duces tecum on the Department in care of Mozgai. This subpoena, which the trial court and the parties to this appeal sometimes referred to as the "Columbus Subpoena," is the subpoena at issue. Through the subpoena, plaintiffs sought twenty categories of documents and communications, mostly (but not exclusively) concerning Columbus Hospital, inspections and surveys at Columbus Hospital, and any complaints made about Columbus Hospital.
In the "Definitions and Instructions" portion of the subpoena, plaintiffs made it clear that they were seeking data from both work and personal accounts and work and personal electronic devices. Indeed, plaintiffs defined "documents and communications" as including "all Documents and Communications wherever they may be stored including in personal devices, personal accounts, cloud-based accounts, corporate accounts, CD or DVD discs, government data storage of any kind, USB or other forms of attachable storage devices." (emphasis added).
Moreover, plaintiffs provided instructions for how individuals should conduct searches of various messaging applications on their personal and work devices. For example, the subpoena instructed:
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