How To Get Around A Medical Malpractice Lawsuit In Florida

Transcription

1 Communications with Treating Physicians Mark Hicks Erik P. Bartenhagen Hicks, Porter, Ebenfeld & Stein, P.A. Hicks, Porter, Ebenfeld & Stein, P.A. 799 Brickell Plaza, 9th Floor Miami, FL Phone: (305) Fax: (305)

2 Executive Summary Most people would expect that if they will be testifying at a deposition, they would have the right to hire an attorney of their choice to prepare them for their deposition and to protect their rights while testifying. While this is true for the vast majority of Floridians, current Florida law actually forbids treating physicians who have not (yet) been sued by a medical malpractice plaintiff from exercising this basic and fundamental right. This is unjust and unreasonable. A recent decision by the Florida Supreme Court has significantly expanded patient-physician confidentiality beyond all rational and reasonable limits, forcing non-party treating physicians to navigate treacherous legal waters without an attorney to assist them. This unfairly subjects such physicians to numerous perils when they are forced to attend their depositions without any guidance or legal advice whatsoever. Such dangers include the possibility of unwittingly providing standard of care opinions against their defendant colleagues, accidentally subjecting themselves to professional discipline, or unknowingly providing testimony that may ultimately cause the treating physicians to be later named as defendants or liable parties in the litigation. It also creates chaos among the defense bar, who if contacted by such potential clients must quickly determine whether or not they can ethically represent the treating physician, at the risk of potentially having to later disclose ostensibly privileged communications, and subjecting themselves to bar discipline if they make the wrong initial decision. The proposed legislation outlined below would prevent such hazards, and would recalibrate Florida s 1

3 patient-physician confidentiality protections so that they do not restrict a treating physician s fundamental right to consult with an attorney of his or her choice. In addition, current Florida law prevents non-party treating physicians from informally communicating with defense counsel in a medical malpractice lawsuit. As a result, access to the information held by such key treating doctors is unfairly restricted to one party, and medical malpractice litigation has been made less efficient and more costly by requiring the defense to utilize burdensome formal discovery procedures to obtain such information. This result is manifestly unfair, allowing the plaintiff to use the confidential relationship as both a shield and a sword. The proposed legislation would restore fairness by authorizing defense counsel to have the same informal access to treating physicians currently only enjoyed by the plaintiff. The Right To Counsel and Ex Parte Interviews With Defense Counsel The right to counsel is one of the oldest common law and constitutional privileges, and it is protected under both state and federal law. The attorneyclient privilege is not only an interest long recognized by society but also one traditionally deemed worth of maximum legal protection. 1 The purpose of the privilege is to encourage full and frank communication between attorneys and their clients, thereby promoting broader public interests in the observance of law and the administration of justice. The improper denial of the right to consult with 2

4 an attorney in civil matters violates two constitutional rights the right to free speech and to due process of law. The First Amendment s guarantee of freedom of speech, association and petition extends to the consultation inherent in the attorney-client relationship. 2 The Fifth Amendment guarantee of due process is violated if a citizen is prevented from consulting with an attorney in civil and administrative cases, since such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense. 3 These important rights should not be undermined by Florida s patient-physician confidentiality statutes. Ex parte interviews are a longstanding and significant component of pretrial discovery. Ex parte communications are extra-judicial disclosures made informally by witnesses to one party in a lawsuit without opposing counsel being present. Lawyers and courts have long recognized ex parte interviews as a timehonored method of informal discovery that is efficient and cost-effective for both parties when compared to formal depositions. As one court put it, personal interviews are an accepted, informal method of assembling facts and documents in preparation for trial. 4 With respect to doctors, counsel usually serve formal discovery requests to obtain a copy of the patient s medical record which will contain a summary of symptoms, diagnosis and treatment, but likely does not reflect everything a physician knows about that patient. For instance, a doctor might distinctly remember a particular patient, and have valuable information not reflected in the medical records such as health information not previously shared with the patient, a description of the patient and his or her litigiousness, important family background information and dynamics, names of other providers the patient has seen, and comments made by the patient to the physician, perhaps including statements made about the pending lawsuit. 5 3

5 Through an ex parte interview, counsel can provide an informal, relaxed environment, typically at the doctor s own offices, for the lawyer and physician to discuss health information candidly without the presence of opposing counsel or the patient. One court has gone so far as to observe that formal depositions of treating physicians have the effect of significantly interfering with the practice of medicine because [i]nstead of communicating with an attorney during a 10- minute telephone call, a physician could be required to attend a four-hour deposition. 6 Changing Florida s laws to allow for informal ex parte interviews of treating physicians would achieve these laudatory goals. Florida s Current Patient- Physician Confidentiality Statutes The strict restrictions on communications between non-party treating physicians and third parties arise out of Florida s patient-physician confidentiality statutes. There were only limited confidentiality protections afforded to a patient s medical information and documents prior to In that year, however, the Florida Legislature enacted the predecessor to current Section , which implemented strong protections against disclosure of sensitive medical documents and information to persons other than the patient, with limited exceptions. Section generally provides that a patient s medical records may not be furnished to, and the medical condition of a patient may not be 4

6 discussed with, any person other than the patient or the patient s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. 7 An exception is allowed for disclosure of medical records without the patient s written authorization in a civil action, but only upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient s legal representative by the party seeking such records. 8 Moreover, the statute also contains the following admonition: Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given. 9 The language of section clearly does not allow for informal ex parte meetings with physicians by defense counsel, except with the patient s express authorization. The Florida Supreme Court has previously confirmed that no informal ex parte interviews are permitted under this statute. 10 There is no language in Section discussing whether or not nonparty treating physicians may consult with their own attorneys without receiving written authorization by the patient. The other relevant statute addressing the disclosure of medical information is Section , enacted in 2011, which requires that medical malpractice claimants execute a HIPAA-compliant authorization form which must accompany the notice of intent to sue, and which allows the claimant s treating physicians to disclose protected health information to third parties, including the 5

7 attorneys for the physician being sued. The authorization form allows parties, their insurers and their attorneys to obtain information from certain specified treating physicians. The claimant must list all treating physicians who have examined, evaluated, or treated the Patient in connection with injuries complained of after the alleged act of negligence, as well as all treating physicians who have examined, evaluated, or treated the Patient during a period commencing 2 years before the incident that is the basis of the accompanying presuit notice. 11 The authorization also expressly includes any additional health care providers that may in the future evaluate, examine, or treat the Patient for the injuries complained of. 12 The authorization form lists specific categories of people that are allowed to obtain medical information from these identified treating physicians. These include other health care providers providing treatment to the claimant, the defendant s insurers, experts and attorneys, and certain court personnel. However, the treating physicians own attorneys are not listed in the authorization form as among those who can have access to the patients medical information. Moreover, the authorization form does not explicitly allow the disclosure of medical information by treating physicians through ex parte interviews with defense counsel. Specifically, while section specifies that the information disclosed by the authorization form includes the verbal as well as the written, it does not otherwise indicate that the verbal disclosure of information authorized by the form specifically includes ex parte interviews, as opposed to more formal procedures such as unsworn statements. 13 6

8 Restrictions On Communications By Treating Physicians As noted, the Florida Supreme Court in 1996 confirmed that no informal ex parte interviews were permitted between treating physicians and defense counsel under section It was not until 2006, however, before an appellate court in Florida extended this prohibition to include conversations between a nonparty treating physician and his or her own attorney. 15 The First District Court of Appeal held that Section clearly forbids a treating physician from disclosing information concerning the patient s medical condition and treatment to the treating physician s attorney (hired by the defendant s insurer), since neither the treating physician nor the provider that employed him is named or expects to be named as a defendant in this action. 16 Notably, however, the Court limited its ruling to the patient s sensitive medical condition and treatment, and did not discuss whether it also included non-confidential information unrelated to the patient s care. The First District reaffirmed this decision three years later, concluding that Section prohibits any nonparty physician from disclosing the decedent s medical condition and history to the counsel hired by the defendant s insurer to represent the physician at a deposition. 17 As before, the decision was restricted to confidential medical information, and did not discuss whether the treating physician could consult with an attorney regarding non-confidential matters only. 7

9 It was against this backdrop that the Fourth District Court of Appeal considered the case of Hasan v. Garvar. 18 This was a medical malpractice action in which the patient sued Dr. Garvar and his dental practice for failure to diagnose and treat certain dental conditions. 19 After the patient was treated by Dr. Garvar, he sought medical treatment from Dr. Schaumberg, an oral and maxillofacial surgeon. The parties sought to depose Dr. Schaumberg, and during the process of scheduling the deposition the plaintiff learned that Dr. Schaumberg s professional liability insurance company had retained an attorney to consult with her and to conduct an ex parte private pre-deposition conference. 20 The patient moved for a protective order to prohibit the ex parte predeposition conference between Dr. Shaumberg and her attorney, arguing that such a conference would violate the protections afforded by Section The trial court entered a protective order allowing Dr. Shaumberg to consult with her attorney, but specifically preventing any discussion of the patient s confidential medical information. The Fourth District upheld this decision, finding that this particular case was different from past decisions in that it did not concern discussions with defense attorneys nor did it involve communications involving confidential medical information. Instead, the Court noted that the order allows the plaintiff s nonparty treating physician to have an ex parte conference with her own attorney [and] excluding the plaintiff s health care information. 21 The Florida Supreme Court reversed this decision, and in so doing vastly extended patient-physician confidentiality to an absurd degree. The Court ostensibly granted review to address the issue of whether the patient confidentiality statute prohibits a nonparty treating physician from having an ex parte meeting with an attorney selected and provided by the defendant s 8

10 insurance company. 22 However, language contained in the opinion is not limited to such circumstances, and instead encompasses all conversations between nonparty treating physicians and their attorneys, regardless of whether the attorney is hired by the defendant s insurance company, another insurance company, or the physicians themselves. Specifically, the Court stated that not only are ex parte interviews between a defendant s attorneys and a nonparty treating physician prohibited, but also that Section prohibits ex parte meetings between nonparty treating physicians and others outside the confidential relationship whether or not they intend to discuss privileged or non-privileged matters, which would necessarily include the nonparty treating physician s own attorneys. 23 It based its decision on the broad and expansive physician-patient privilege of confidentiality for the patient s personal information contained in the statute, with only limited, defined exceptions. 24 In the dissenting opinion, Justice Polston noted that the majority opinion is so breathtakingly broad that it even forbids the nonparty physician from consulting a lawyer that she may choose to hire independently. 25 The nonparty treating physician in Hasan was not served with a deposition subpoena, and consulted with counsel after learning that the plaintiff was informally attempting to schedule her deposition. From this, one might argue that an exception to general rule against disclosure by a nonparty treating physician to an attorney is if the physician is subpoenaed. However, the statute at issue only lifts the bar against disclosure where the physician is "compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given." 26 This strongly suggests that a nonparty treating physician is only free to divulge confidential medical information to third parties at the deposition itself, and that such disclosures cannot occur before that moment, even to the 9

11 physician's own attorney. 27 This result is confirmed by the broad holding reached in Hasan, where the Florida Supreme Court made sweeping pronouncements against ex parte meetings between nonparty treating physicians and their attorneys without carving out any exception for those physicians receiving deposition subpoenas. The proposed legislative changes outlined below would make this controversy moot, and remove any and all doubt regarding the right of a nonparty treating physician to consult with his or her attorney prior to a deposition, regardless of whether or not a subpoena was issued. The Court in Hasan seemed to be particularly worried about the potential for inadvertent disclosures of confidential patient information by the nonparty treating physician to that physician s own attorney that might eventually be revealed to the defendant physician and defense counsel through the back door. It is curious, therefore, that the Hasan decision does not mention Section , even though the authorization form required by this statute allows the claimant s treating physicians to disclose protected health information to third parties, including the defendant s insurers, experts and attorneys. Moreover, this same information will inevitably be disclosed during the deposition itself, as Section specifically permits a nonparty treating physician to disclose a patient s medical information once compelled by subpoena at a deposition. 10

12 Negative Real World Consequences As it currently exists and interpreted by the Florida Supreme Court, Florida law severely restricts the ability of nonparty treating physicians to communicate with their own attorneys and with other third parties. This has many negative real-world consequences that cannot be allowed to continue. For example, under current law a nonparty treating physician who receives a deposition subpoena cannot consult with an attorney, even to discuss non-patient information such as the mechanics of the deposition itself. Instead, the nonparty treating physician must enter the deposition blind and without guidance from an attorney, even if that physician is entirely unfamiliar with the process and procedure entailed. This inability of a nonparty treating physician to obtain legal counsel opens the door for such physicians to unwittingly place themselves in unnecessary legal trouble. Without guidance from an attorney, such physicians may be led to testify against their self-interest, causing them to be later named as an additional defendant by the patient, or as a Fabre defendant by the physician originally sued. The nonparty treating physician, without counsel present at the deposition, may also be unwittingly led to provide standard of care opinions against the defendant physician. The Hasan decision also creates unnecessary legal and ethical quandaries for both nonparty treating physicians and the attorneys with whom they attempt to consult after receiving a deposition subpoena. The decision prevents nonparty treating physicians from having any discussions with their 11

13 attorneys unless they reasonably expect to be named as a defendant. As a result, if physicians unfamiliar with this ruling call and consult with counsel after receiving a deposition subpoena, they may be accused of somehow admitting that they are somehow culpable and therefore expect to be named as a defendant. Moreover, if a nonparty treating physician and an attorney conduct a basic consultation about an upcoming deposition in ignorance of the new rules set out under Hasan, they may have both unknowingly violated the patient s confidentiality by doing so, thereby subjecting both the physician and the attorney to professional and ethical discipline. For them to defend themselves against accusations of having done so, they may be required to divulge their privileged conversations, further undermining the attorney-client relationship. By also not allowing nonparty treating physicians to have informal conversations with defense counsel without the patient present, Florida law creates additional problems. Having to wade through formal discovery procedures before communicating with a treating physician is inefficient and time-consuming. By contrast, ex parte interviews eliminate the cost and difficulties involved in holding and scheduling formal depositions with all parties present, provide a cost-efficient way of completely excluding nonessential witnesses from the list, and facilitate early evaluation and settlement of claims, thereby reducing the expense of litigation. 28 Currently, the plaintiff has free access to the treating physician without the defense being accorded similar treatment, and the plaintiff should not be able to use the confidential relationship as both a shield and a sword as a matter of fundamental fairness. 29 Not allowing ex parte interviews is also contrary to the liberal rules of discovery under both Florida and federal law, which are intended to expedite (and not hamper) the free flow of information. Finally, mandating that 12

14 patients and their attorneys be present when a defendant interviews a nonparty treating physician (as currently exists) invades the defense s work product, since the party holding the physician-patient privilege will be able to monitor progress in the defendant's case by being present at interviews. 30 Recommended Proposed Language Florida s patient-physician confidentiality statute must be amended to prevent the significant negative consequences that will inevitably arise from the Florida Supreme Court s interpretation of that statute in Hasan. While sensitive medical information most certainly must remain protected, this protection cannot completely override a nonparty treating physician s constitutional and fundamental right to an attorney. In addition, the mandatory authorization form that all medical malpractice plaintiffs must currently execute should be amended to allow treating physicians to consult with their own counsel. The authorization form should also explicitly permit ex parte interviews between such treating physicians and defense counsel. Finally, Section can be streamlined and simplified so that its provisions are clearer and better organized. The Florida Legislature can address all of these issues by making the following amendments to Section and Section : Section 1. Subsections (7) and (8) of Section , Florida Statutes, are amended to read: (7)(a) Except as otherwise provided in this section and in s (4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any 13

15 person other than the patient, or the patient s legal representative, or other health care practitioners and providers involved in the patient s care or treatment of the patient, except upon written authorization from of the patient. However, such records may be furnished without written authorization under the following circumstances: 1. To any person, firm, or corporation that has procured or furnished such care examination or treatment with the patient s consent. 2. When compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical records shall be furnished to both the defendant and the plaintiff. 3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient s legal representative by the party seeking such records. 4. For statistical and scientific research, provided the information is abstracted in such a way as to protect the identity of the patient or provided written permission is received from the patient or the patient s legal representative. 5. To a regional poison control center for purposes of treating a poison episode under evaluation, case management of poison cases, or compliance with data collection and reporting requirements of s and the professional organization that certifies poison control centers in accordance with federal law. 14

16 6. To an attorney for the health care practitioner or provider (including the attorney s staff) for the purpose of obtaining legal services, whether the attorney is hired directly by the health care practitioner or provider, or by the practitioner s or provider s insurer. (b) Absent a specific written release or authorization permitting utilization of patient information for solicitation or marketing the sale of goods or services, any use of that information for those purposes is prohibited. (8) Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, The medical condition of a patient or information disclosed to a health care practitioner or provider by a patient in the course of a patient s the care and treatment of such patient is confidential and may not be disclosed to any person other than the patient, the patient s legal representative, or only to other health care practitioners and providers involved in the patient s care or treatment of the patient, except upon or if permitted by written authorization from the patient. However, such disclosures may be made without written authorization under the following circumstances: (a) If or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given. (b) When limited to records properly furnished under subsection (7). (c) When disclosed to an attorney for the health care practitioner or provider (including the attorney s staff) for the 15

17 purpose of obtaining legal services, whether the attorney is hired directly by the health care practitioner or provider, or by the practitioner s or provider s insurer. (d) When disclosed in the context of a medical negligence action or administrative proceeding if the health care practitioner or provider is, or reasonably expects to be, named as a defendant. Section 2. Subsection (3) of section , Florida Statutes, is amended to read: (3) The authorization required by this section shall be in the following form and shall be construed in accordance with the Standards for Privacy of Individually Identifiable Health Information in 45 C.F.R. parts 160 and 164: AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION A. I, (Name of patient or authorized representative) [hereinafter Patient ], authorize that (Name of health care provider to whom the presuit notice is directed) and his/her/its insurer(s), self-insurer(s), and attorney(s), and the designated treating physician(s) listed below and their insurer(s), self-insurer(s), and attorney(s), may obtain and disclose (within the parameters set out below) the protected health information described below for the following specific purposes: 1. Facilitating the investigation and evaluation of the medical negligence claim described in the accompanying presuit notice; or 16

18 2. Defending against any litigation arising out of the medical negligence claim made on the basis of the accompanying presuit notice.; or 3. Obtaining legal advice or representation arising out of the medical negligence claim described in the accompanying presuit notice. B. The health information obtained, used, or disclosed extends to, and includes, the verbal as well as the written and is described as follows: 1. The health information in the custody of the following health care providers who have examined, evaluated, or treated the Patient in connection with injuries complained of after the alleged act of negligence: (List the name and current address of all health care providers). This authorization extends to any additional health care providers that may in the future evaluate, examine, or treat the Patient for the injuries complained of. 2. The health information in the custody of the following health care providers who have examined, evaluated, or treated the Patient during a period commencing 2 years before the incident that is the basis of the accompanying presuit notice. (List the name and current address of such health care providers, if applicable.) C. This authorization does not apply to the following list of health care providers possessing health care information 17

19 about the Patient because the Patient certifies that such health care information is not potentially relevant to the claim of personal injury or wrongful death that is the basis of the accompanying presuit notice. (List the name of each health care provider to whom this authorization does not apply and the inclusive dates of examination, evaluation, or treatment to be withheld from disclosure. If none, specify none. ) D. The persons or class of persons to whom the Patient authorizes such health information to be disclosed or by whom such health information is to be used: 1. Any health care provider providing care or treatment for the Patient. 2. Any liability insurer or self-insurer providing liability insurance coverage, self-insurance, or defense to any health care provider to whom presuit notice is given, or to any health care provider listed in subsections B(1)-(2) above, regarding the care and treatment of the Patient. 3. Any consulting or testifying expert employed by or on behalf of (name of health care provider to whom presuit notice was given) and his/her/its insurer(s), self-insurer(s), or attorney(s) regarding the matter of the presuit notice accompanying this authorization. 4. Any attorney (including the attorney s secretarial, clerical, or paralegal staff) employed by or on behalf of (name of health care provider to whom presuit notice was 18

20 given), or employed by or on behalf of any health care provider(s) listed in subsections B(1)-(2) above, regarding the matter of the presuit notice accompanying this authorization and/or the care and treatment of the Patient. 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of the Patient. E. This authorization expressly permits the persons or class of persons listed in subsections D(2)-(4) above to have access to interview the health care provider(s) listed in subsections B(1)-(2) above, without notice to or the presence of the Patient or the Patient s legal representative. E.F. This authorization expires upon resolution of the claim or at the conclusion of any litigation instituted in connection with the matter of the presuit notice accompanying this authorization, whichever occurs first. F.G. The Patient understands that, without exception, the Patient has the right to revoke this authorization in writing. The Patient further understands that the consequence of any such revocation is that the presuit notice under s (2), Florida Statutes, is deemed retroactively void from the date of issuance, and any tolling effect that the presuit notice may have had on any applicable statute-oflimitations period is retroactively rendered void. 19

21 G.H. The Patient understands that signing this authorization is not a condition for continued treatment, payment, enrollment, or eligibility for health plan benefits. H.I. The Patient understands that information used or disclosed under this authorization may be subject to additional disclosure by the recipient and may not be protected by federal HIPAA privacy regulations. Signature of Patient/Representative: Date: Name of Patient/Representative: Description of Representative s Authority: Section 3. This act shall take effect upon becoming law, except that Section 2 of this act shall take effect on July 1, 2013, and shall apply to all causes of action accruing on or after that date. 20

22 Endnotes 1 Am. Tobacco Co. v. State, 697 So. 2d 1249, 1252 (Fla. 4th DCA 1997). 2 Denius v. Dunlap, 209 F.3d 944, (7th Cir. 2000). 3 Powell v. Alabama, 287 U.S. 45, 67 (1932). 4 Stempler v. Speidell, 495 A.2d 857, 864 (N.J. 1985). 5 See Angela T. Burnette & D Andrea J. Morning, HIPAA and Ex Parte Interviews: The Beginning of the End?, 1 J. HEALTH & LIFE SCI. L. 73, 77 (2008). 6 Kish v. Graham, 833 N.Y.S.2d 313, 320 (N.Y. App. Div. 2007) (Pine, J., dissenting) (7)(a), Fla. Stat. (2010) (7)(a)(3), Fla. Stat. (2010) (8), Fla. Stat. (2010). 10 Acosta v. Richter, 671 So. 2d 149 (Fla. 1996) (3), Fla. Stat. (2012). 12 Id. 13 Id. 14 See Acosta, supra note See Hannon v. Roper, 945 So. 2d 534 (Fla. 1st DCA 2006). 16 Id. at Dannemann v. Shands Teaching Hosp. & Clinics, Inc., 14 So. 3d 246, 247 (Fla. 1st DCA 2009). 18 Hasan v. Garvar, 34 So. 3d 785 (Fla. 4th DCA 2010). 19 Id. at Id. 21 Id. at Hasan v. Garvar, --- So. 3d ----, 2012 WL *2 (Fla. Dec. 20, 2012). 23 Id. at *8. 24 Id. 25 Id. at * (8), Fla. Stat. (2010). 21

23 27 While the First District in Hannon stated that one of the exceptions to the general rule against disclosure is if the physician is subpoenaed, this does not accurately reflect the language of the statute which limits the ability to disclose patient information to at the deposition itself after proper notice has been given to the plaintiff. 28 Lewis v. Roderick, 617 A.2d 119, 122 (R.I. 1992); King v. Ahrens, 798 F. Supp. 1371, 1373 (W.D. Ark. 1972). 29 See Domako v. Rowe, 475 N.W.2d 30, 34 n.5 (Mich. 1991) (stating that certain actions of the plaintiff were apparently designed to obtain a tactical advantage, not to protect confidentiality ). 30 Doe v. Eli Lilly & Co., Inc., 99. F.R.D. 126, (D.D.C. 1983). 22