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________________________ No. 04

– 1379 N ORTHWESTERN M EMORIAL H OSPITAL , Plaintiff

- Appellee,

v. J OHN A SHCROFT , Attorney General of the United States, Defendant

- Appellant.

__________________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 55

— Charles P. Kocoras , Chief Judge

.

__________________________ Argued March 23, 2004

— Decided March 26, 2004 *

__________________________ Before P OSNER , M ANION , and W

ILLIAMS , Ci r cuit Judges

. P OSNER , Circuit Judge . The government appeals from an order by the district court quashing a subpoena commanding Northwestern Memorial Hospital in Chicago to produce the medical records of certain patien ts on whom Dr. Cassing Hammond had performed late

- term abortions at the hospital using the controversial method known variously as “D & X” (d ilation and extraction) and “intact D & E” (dilation and evacu ation). We accelerated briefing and argument, and now accele rate our decision, in view of the pressures of time di s cussed later in the opinion.

* This opinion is being released in typescript; a printed version will follow.No. 04

– 1379 2 The subpoenaed records, apparently some 45 in number, are sought for use in the forthcoming trial in the Southern Di strict of New York of a suit challenging the cons titutionality of the Partial

- Birth Abo r tion Ban Act of 2003, Pub. L. No. 108

– 105, 117 Stat. 1201, 18 U.S.C. § 1531. See National Abortion Fe d eration v. Ashcroft , No. 03 Civ. 8695 (Rcc), 2004 WL 540470 (S.D.N.Y. Mar. 17, 2004) (order denying summary judgmen t for plai n tiffs). Dr. Hammond is one of the plaintiffs in that suit and will also be testifying as an e x pert witness. The district court held that the production of the records is barred by regulations issued under the Health Insurance Portability and A cc ountabi l ity Act of 1996 (HIPAA), Pub. L. 104

– 191, 110 Stat. 1936, and let us b e gin there. Section 264 of HIPAA, 42 U.S.C. § 1320d

– 2 Note, directs the Secretary of Health and Human Services to promulgate regulations to protect the privacy of medical records , but pr ovides in subsection (c)(2) that such a regulation “ shall not s

upe r cede a contrary provision of State law, if the provision of State law imposes requirements, standards, or implementation spec i fications that are more stringent than the requirements , sta n dards, or implementation specifications imposed under the regulation.” See also 45 C.F.R. § 160.203(b). A standard is “more stringent” if it “provides greater privacy protection for the individual who is the subject of the individually identifiable h ealth information” than the standard in the regulation. § 160.202(6). The particular focus of the appeal is an HHS regulation e ntitled “Standard: Di s closures for Judicial and Administrative Proceedings,” § 164.512(e), which autho r izes a “covered entity” (s uch as Northwestern Memorial Hosp i tal) to disclose private health information in judicial or administrative proceedings “in response to an order of a court.” § 164.512(e)(1)(i). The regul ation also allows the disclosure of such information in those pr oceed ings “in response to a su b poena, discovery request, or other lawful process,” § 164.512(e)(1)(ii), if the party seeking the information either notifies the patient (or at least makes a good faith effort to do so) or makes a “reasonable effort” to s e cure a qualified protective order, that is, an order that prohi b its theNo. 04

– 1379 3 use or disclosure of the information outside the litig a tion and requires the return or destru c tion of the information at the end of the litigation. 45 C.F.R. § 164.512(e)(1)(v). The district judge presiding over the case in New York issued an order authorizing, although not d i recting, the hospital to provide the records to the government after redaction to remove inform a tion identifying the patients. The parties agree that his order is an “ord er” within the meaning of the “in response” pr o

vision. It hardly matters; the government didn’t need such an order because it had obtained a protective order, thus qualifying under the alternative procedure for di s closure of medical records. But under Illi nois law, even redacted medical records are not to be disclosed in judicial pr o ceedings, with immaterial exceptions. 735 ILCS 5/8

– 802; Department of Pr ofessional Regul a tion v. Manos , 761 N.E.2d 208, 216

– 17 (Ill. App. 2001); Parkson v. Ce n tral DuPage Hospit al , 435 N.E.2d 140, 143

– 44 (Ill. App. 1982). The district court in our case ruled that the Illinois law, because it sets a “more stringent” sta ndard for di s closure than the HIPAA regulation, trumps that regulation by virtue of HIPAA’s supersession pr o visio n. So he quashed the subpoena, precipita t ing this appeal. Although the issue is not free from doubt, we agree with the government that the HIPAA regulations do not impose state evidentiary privileges on suits to enforce federal law. Ill inois is free to enf

orce its more stringent medical

- records priv ilege (there is no comparable federal priv i lege) in suits in state court to enforce state law and, by virtue of an e x press provision in Fed. R. Evid. 501, in suits in federal court (mainly diversity suits) as wel l in which state law supplies the rule of dec i sion. But the Illinois privilege does not govern in fe d eral

- question suits, such as the suit in the Southern District of New York. The e n forcement of federal law might be hamstrung if state

law privileges more stringent than any federal privilege regarding medical records were applicable to all fe d eral cases. We say “might” not “would” because some federal statutes authorize subpoenas in terms that would override the HIPAA regul a tions. See, e.g., 18 U.S.C. § 348 6; In re Subpoena Duces Tecum , 228 F.3d 341 (4th Cir. 2000). But almost ce r tainlyNo. 04

– 1379 4 there are gaps; and we think it improbable that HHS i n tended to open such a can of worms when it set forth a procedure for discl o sure of medical records in litigation

— intende d, that is, to be regulating, actually or potentially (depending on other stat u tory provisions regulating subpoenas), the litigation of federal employment discrimination cases, social security di sability cases, E R ISA cases, Medicare and Medicaid fraud case s, Food and Drug Administration cases, and the numerous other classes of federal case in which medical records whether of the parties or of nonparties would not be privileged under federal evidence law. All that 45 C.F.R. § 164.512(e) should be understood to do, therefore, is to create a procedure for obtaining authority to use medical records in litigation. Whether the records are actually admi s sible in evidence will depend among other things on whether they are privileged. And the evidentiary privileges t hat are applic

a ble to federal

- question suits are given not by state law but by federal law, Fed. R. Evid. 501, which does not recognize a ph

y sician

- patient (or hospital

- patient) privilege. Rule 501 in terms makes fe d eral common law the source of any privil eges in federal

- question suits unless an Act of Co n gress provides otherwise. We do not think HIPAA is rightly unde rstood as an Act of Congress that creates a priv i lege. The purely procedural character of the HIPAA standard for disclosure of medical informa tion in judicial or a d ministrative proceedings is indicated by the procedure for disclosure in response to a subpoena or other process; the notice to the p a tient must contain “sufficient information about the litigation or proceeding in which the protected health information is r equested to permit the i n dividual to raise an objection to the court.” § 164.512(e)(1)(iii)(B). The objection in court would often be based on a privilege

— the source of which would be found elsewhere than in the regulations the m selv es. This conclusion is buttressed by a HIPAA regulation which says that the “more stringent” clause applies only to “individually identifiable health information,” § 160.203(b), as opposed to “health information that does not identify an individual and wit h r e spect to which there is no reasonable basis to believeNo. 04

– 1379 5 that the information can be used to identify an indivi d ual .” § 164.514(a). Provided that medical records are redacted in accordance with the redaction requirements (the m selves quite stringent) of §

164.514(a), they would not contain “ind i vidually identifiable health information” and the “more stri n gent” clause would fall away. As an alternative basis for quashing the subpoena, the di strict judge undertook to craft a new federal common law priv ilege for abortion records. He based this ruling on their sensiti vity, which he compared to that of psychotherapists’ treatment records, held priv i leged in Jaffee v. Redmond , 518 U.S. 1 (1996). The creation of new common law evidentiary privileges is autho r ized by Fed. R. Evid. 501, and Jaffee is not the only recent case in which the authority was exercised. Goodyear Tire & Rubber Co. v. Chiles Power Su p ply, Inc. , 332 F.3d 976, 979

– 81 (6th Cir. 2003); In re Air Crash Near Cali, Colombia , 959 F. Supp. 1529, 1533

– 3 5 (S.D. Fla. 1997), and United States v. Lowe , 948 F. Supp. 97, 99

– 100 (D. Mass. 1996), all created new privileges on the authority of Jaffee . But none relates to medical records and we are reluctant to embark on a case

- by

case d e termination of the relativ e sensitivity of medical records of di f ferent ailments or procedures. Most medical records are sensitive, and many are as sensitive as late

- term abortion records, such as the records of AIDS patients. Pr o ceeding down the path taken by the district court wo uld inevitably result in either a r bitrary line drawing or the creation of an Illinois

- type comprehensive priv i lege for medical records. Northwestern Memorial Hospital concedes that there is no federal common law physician

- patient privilege. It is not for u s
— especially in so summary a proceeding as this litigation to quash the gover nment’s su b poena
— to create one, whether all at once or by a process of slow but inevitable add i tions to the sole category recognized by Jaffee

. Cf. University of Pennsy l vania v. E EOC , 493 U.S. 182, 188

– 89 (1990); United States v. Nixon , 418 U.S. 683, 707

– 13 (1974); In re Witness Before Sp e cial Grand Jury 2000

– 2 , 288 F.3d 289 (7th Cir. 2002); In re Sealed Case , 148 F.3d 1073, 1078

– 79 (D.C. Cir. 1998) (per c u riam).No. 04

– 1379 6
The district court did not reach a further ground urged by Northwestern Memorial Hospital for quashing the gover nment’s subpoena, which is simply that the burden of compl iance with it would exceed the benefit of production of the material sought by it. Fed. R. Civ. P. 45(c) (3)(A)(iv); Deitchman v. E.R. Squibb & Sons, Inc. , 740 F.2d 556, 563 (7th Cir. 1984); Roberts v. Shawnee Mission Ford, Inc. , 352 F.3d 358, 361

– 62 (8th Cir. 2003); Miscellaneous Docket Matter # 1. v. Miscellaneous Docket Ma t ter # 2 , 197 F.3d 922, 926

– 27 (8t h Cir. 1999); In re Sealed Case , 162 F.3d 670, 673

– 74 (D.C. Cir. 1998). However, in support of his ruling expanding the federal common law of privilege to embrace the medical records of abortion p a tients, the judge made findings that are highly germane to

— indeed arguably dispositive of

— the Rule 45(c) i s sue. He pointed out that the “gover n ment seeks these records on the possibility

that it may find something therein which would affect the te

s timony of Dr. Hammond adversely, that is, for its potential value i n impeaching his credibility as a wi t ness. What the government ignores in its argument is how li t tle, if any, probative value lies within these patient records.” He contrasted the dearth of probative value “with the p o tential loss of privacy that would ens ue were these medical r e cords used in a case in which the patient was not a party” and co n cluded that “the balance of harms resulting from disclosure s e verely ou tweighs the loss to the go v ernment through non

- disclosure.” These findings were solidly based. The hospital had urged both the lack of probative value of the r e cords and the loss of privacy by the patients. The government had responded in generalities, arguing that redaction would eliminate any pr ivacy concern and that since Dr. Hammond had “made as sertions of fact about his experience and his patients that plai ntiffs are using to support their claim that, without a health exception, the Act is unconstitutional,” the government should be permi t ted to test those assertions; but the government had not ind i cated what assertions these were or how the records might bear on them. Although on appeal the hospital repeated at length its reasons for believing that the records sought by the government would have little or no probative value, the go v-No. 04

– 1379 7
ernment’s res ponse in both its opening brief and its reply brief remained vague to the point of being evasive. At the oral argument we pressed the gover n ment’s lawyer repeatedly and hard for indications of what he hoped to learn from the hospital records, and drew a bl ank. (Co n trary to our usual practice, we did not limit the length of the oral arg ument.) The lawyer did suggest that if Hammond testified that patients with leukemia are better off with the D & X procedure than with the conventional D & E procedure but the med i cal records indicate that not all abortion patients with leukemia undergo D & X abo

r tions, this would both impeach Hammond and suggest that D & X is not the only medically safe abortion procedure available to pregnant women afflicted with leukemia. Bu t such inform a tion would be unlikely to be found in Hammond’s

r e cords, given his strongly expressed preference for using the D & X method in the case of p a tients in fragile health. The information would be much more likely to be found in the records of phy

sicians who pe

r form D & E rather than D & X abortions on such women. Those records, however, the government didn’t seek. We learned at argument for the first time that Dr. Hammond has been deposed in the New York litigation. The questions and a

n swers in hi s deposition might illuminate the relevance of the medical records for impeachment of his test imony at the trial. But the government has made no effort to make the dep o

sition a part of the record. Ordinarily when a district judge has not addressed an issue committed to his discretion, such as the balance of benefit and burden in complying with a subpoena, e.g., Peate v. McCann , 294 F.3d 879, 884 (7th Cir. 2002); Deitchman v. E.R. Squibb & Sons, Inc. , supra , 740 F.2d at 563; Pamida, Inc. v. E.S. Orig inals, I nc. , 281 F.3d 726, 729 (8th Cir. 2002), and the issue becomes crit i cal to the disposition of the appeal, the appellate court must remand to give the judge a chance to exercise his discretion. Icicle Se

a foods, Inc. v. Worthington , 475 U.S. 709 (1986). We do

not follow that course, here, however, for two reasons. The first is that the judge, in the pa s sages we quoted from his opinion, struck the ba l ance
— in other words,No. 04

– 1379 8 “weigh[ed the] competing hardships.” Deitc h man v. E.R. Squibb & Sons, Inc. , supra , 740 F.2d at 563. True, he did so in the course of addressing a different issue from whether Rule 45(c) r e quired that the subpoena be quashed; but, realistically, the result of a remand is foreo r dained. The second reason is that with the trial in New York scheduled

to begin on March 29 and to last only four weeks, the practical effect of a remand would be to moot the issue of compliance with the subpoena. The time factor is unfortunate, and is not the fault of the government (or of anyone else, so far as appears). I f time permitted a remand, the judge would on remand examine the r e cords, or at least a sample of them, in camera, as in the parallel subpoena case of Planned Paren thood Feder a tion of America, Inc. v. Ashcroft , No. C03

– 4872 PJH, 2004 WL 432222 (N.D. Cal. M ar. 5, 2004), to determine whether they are likely to have any probative value. Time does not permit. The go

v ernment has not suggested that the case be remanded if we r

e ject the district court’s grounds for quashing the subpoena. A remand would be tantamou nt to mooting its appeal; in the go

v ernment’s words, “a remand would entirely frustrate the Government’s interest in preparing a timely defense in the New York trial, which will begin on March 29.” We take this as a waiver of any objection to our weighing the har dships ourselves, and we pr o ceed to the weighing. See Beer Nuts, Inc. v. Clover Club Foods Co. , 805 F.2d 920, 923 n. 2 (10th Cir. 1986); McCord v. Bailey , 636 F.2d 606, 613 (D.C. Cir. 1980); cf. International Ins. Co. v. Caja N a cional De Ahorro y Se

guro , 293 F.3d 392, 401 (7th Cir. 2002); Di l lard v. City of Greensboro

, 213 F.3d 1347, 1355

– 57 (11th Cir. 2000). Like the district judge, we think the balance weighs in favor of quas

h ing the subpoena. The government does not deny that the hospital is an ap propriate representative of the pr ivacy interests of its patients. Parkson v. Central DuPage Hospital , s u pra , 435 N.E.2d at 142. But it argues that since it is seeking only a limited number of r e cords and they would be produced to it minus the inform a tion that would enable the identity of the patient to be determined, there is no hardship to either the hospital or the patients of compliance. The argumentNo. 04

– 1379 9 is unrealistic and incomplete. What is true is that the admini strative hardship of compl i ance would be m odest. But it is not the only or the main hardship. The natural sensitivity that people feel about the disclosure of their medical records

— the sensitivity that lies behind HIPAA

— is amplified when the records are of a procedure that Congress has now declare d to be a crime. Even if all the women whose records the government seeks know what “redacted” means, they are bound to be skeptical that redaction will co n ceal their identity from the world. This is hardly a typical case in which medical records get drawn into a lawsuit. Reflecting the fierce emotions that the long

- running controversy over the morality and legality of abortion has made combustible, the Partial

- Birth Abortion Ban Act and the litigation challenging its constit u tionality

— and even more so the rash of suits around the cou n try in which the Department of Justice has been seeking the hospital records of abortion p

a tients

— have generated enormous publicity. These women must know that, and doubtless they are also aware that hostility to abortion has a t times erupted into violence, inclu ding criminal obstruction of entry into abortion clinics, the fir ebombing of clinics, and the assassination of physicians who perform abo

r tions. Some of these women will be afraid that when their r edacted records are mad e a part of the trial record in New York, pe r sons of their acquaintance, or skillful “Googlers,” sifting the information contained in the medical r e cords concerning each patient’s medical and sex history, will put two and two t ogether, “out” the 45 women, and thereby expose them to threats, humiliation, and obl o quy. As the court pointed out in Parkson v. Ce

n tral DuPage Hospital , supra , 435 N.E.2d at 144, “whether the patients’ identities would remain confide n tial by the exclusion of their names and identify ing numbers is que stionable at best. The patients’ admit and discharge su m maries arguably contain histories of the patients’ prior and present medical conditions, i n formation that in the cumulative can make the possibility of recognition very high.” In its ope n ing brief, as throughout the district court proceeding, the gover nment e x pressly reserved the right, at a later date, to seek theNo. 04

– 1379 10 identity of the patients whose records are pr o duced. Pressed at argument, the government’s lawyer aba n doned the reservati on; but we do not know what would prevent reconsi d eration should the government, the subpoena having been enforced, discover that particular medical records that it had obtained were incomplete, opaque, or ambiguous. Even if there were no possibility that a patient’s ide n tity might be learned from a redacted medical record, there would be an i n vasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her co n sent though without identifying her by name, were downloaded in a fore ign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late

- term abortion may inflict a similar wound. If Northwestern Memorial Hospital can not shield its abortion patients’ records from disclosure in judicial proceedings, moreover, the hospital will lose the confidence of its patients, and persons with sensitive medical conditions may be inclined to turn elsewhere for medical treatment. It is not as if the go

vernment were seeking medical records from every hospital and clinic that performs late

- term abortions, in which event women wan t ing assurance against the disclosure of their records would have nowhere to turn. It is Dr. Hammond’s presence in the New York suit as plaintiff and expert that has resulted in the government’s subpoenaing Northwestern Memorial Hosp ital. The concerns that the hospital has articulated do not ne cessarily justify withholding probative evidence from the government; no

r can the possibility that medical records of abortion patients would yield evidence germane to the constitutionality of the Partial

- Birth Abortion Ban Act be gainsaid. A nearly identical state predecessor of the Act was invalidated by the S u preme Court in Stenberg v. Carhart , 530 U.S. 914 (2000), b e cause it did not permit the D & X procedure in cases in which it is r e quired to protect the health of the pregnant woman. Id . at 930

– 38. In r

e sponse, the preamble to the Act contains a finding that the pr o cedure is never

required forNo. 04

– 1379 11 health reasons. 117 Stat. 1201, § 2. The government co n cedes as it must that this finding, although entitled to respectful consideration, does not bind the courts. E.g., United States v. Morrison , 529 U.S. 598, 614 (2000); Turner Bro a d casting System, Inc. v. FCC , 512 U.S. 622, 665

– 66 (1994) (pl u rality). The issue of medical necessity remains for determin a tion at the trial in New York, where Dr. Hammond will testify that he believes there are situations in which the D & X procedure is medically indicated. The essential di f ference between that procedure and the conventional D & E procedure is that in the latter procedure the f

e tus is destroyed while it is still entirely within the womb, while in the former procedure it is destroyed after the lower extremities, and som e times the torso, have emerged from the womb and only the head remains inside. It is because part of the fetus is outside the womb when the fetus is d e stroyed that the supporters of the Act describe the D & X procedure as “pa rtial birth” abortion. Dr. Hammond and other D & X pract iti o ners argue that because less of the fetus is in the womb there is less danger of cutting the woman’s tissues with the sharp knives used to dismember the fetus’s body in the conve ntional D & E proc

edure and causing hemo r rhaging, and that if the woman is in fragile health avoiding that danger is med ically indicated. The merits of the dispute are for determination at trial. The only issue for us is whether, given that there is a potential psychologica l cost to the hospital’s patients, and a potential cost in lost goodwill to the hospital itself, from the involuntary production of the medical records even as redacted, the cost is offset by the prob a tive value of the records. The district judge presiding

at the trial has said that the r e cords are “relevant,” and no doubt they are

— in the attenuated sense in which nonprivileged materials may be sought in discovery. “Relevant i nformation need not be admissible at the trial if the discovery appears reasonably

calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1); see Oppenheimer Fund, Inc. v. Sanders , 437 U.S. 340, 350

– 52 (1978); CSC Hol dings, Inc. v. Redisi , 309 F.3d 988, 995

– 96 (7th Cir. 2002). TheNo. 04

– 1379 12 trial judge has not opined o n the probative

value of the records, which appears to be meager. The government has had repeated opportunities to articulate a use for the records that it seeks, and it has failed to do so. What it would like to prove at the trial in New York, to refute D r. Hammond, is that D & E is always an adequate alte rnative, from the standpoint of a pre g nant woman’s health, to the D & X procedure. But the government has failed to explain how the record of a D & X abo r tion would show this. And it is not as if Hammond had relied on the medical records of his patients in pr e paring his expert testimony. (Had he done so, they would have had to be disclosed to the go v ernment under Fed. R. Civ. P. 26(a)(2).) He doesn’t have the records, is not basing his testimony on them, a nd so far as appears doesn’t even r e me m ber them. None of the records is going to state that Dr. Hammond said that he performed a D & X although he b e lieved that a D & E would be just as good. We thought the government might be ho p ing to find in the records evidence that Hammond had lied when he said he had performed a D & X on a woman who had leukemia or a woman who had breast cancer, but at arg ument the government disclaimed any such sugge s tion. We’re still at a loss to understand what it hopes to gain fro m such discovery. (We begged the government’s lawyer to be co n crete.) Of course, not having seen the records, the gover n ment labors under a disadvantage, although it has surely seen other med ical records. And of course, pretrial discovery is a fishing expedition and one can’t know what one has caught u n til one fishes. But Fed. R. Civ. P. 45(c) allows the fish to o b ject, and when they do so the fisherman has to come up with more than the government has been able to do in this case despite the exce llence of i ts la

w yers. The Partial

- Birth Abo r tion Ban Act was passed, as we said, in response to the S

u preme Court’s decision in the Stenberg case. Stenberg was one of a number of “first generation” pa rtial

- birth cases. The others were Hope Clinic v. Ryan , 195 F.3d 857 (7th Cir. 1999) (en banc); Planned Paren t hood of Wisconsin v. Doyle , 162 F.3d 463 (7th Cir. 1998); Planned Pa r enthood ofNo. 04

– 1379 13
Greater Iowa, Inc. v. Miller , 195 F.3d 386 (8th Cir. 1999); Little Rock Family Planning Se r vices, P.A. v. Jegley

, 192 F.3d 794 (8th Cir. 1999); Summit Medical Ass o ciates, P.C. v. Pryor , 180 F.3d 1326 (11th Cir. 1999); Richmond Medical Center for Women v. Gilmore

, 144 F.3d 326 (4th Cir. 1998); Women’s Medical Professional Corp. v. Voin o vich , 130 F.3d 187 (6th Cir. 1997); Armstrong v. S tate , 989 P.2d 364 (Mont. 1999); Woma nCare of Southfield, P.C. v. Gra n holm , 143 F. Supp. 2d 827 (E.D. Mich. 2000); Rhode Island Medical Soc. v. Whit e house , 66 F. Supp. 2d 288 (D.R.I. 1999), affirmed, 239 F.3d 104 (1st Cir. 2001) (per curiam); Richmond Med i cal Center for Women v. Gilmore , 55 F. Supp. 2d 441 (E.D. Va. 1999), a f firmed, 224 F.3d 337 (4th Cir. 2000) (per curiam); Causeway Medical Suite v. Foster , 43 F. Supp. 2d 604 (E.D. La. 1999), a f firmed, 221 F.3d 811 (5th Cir. 2000); A Choice for Women v. Bu tterworth , 54 F. Supp. 2d 1148 (S.D. Fla. 1998); Planned Parenthood of Central New Je r sey v. Verniero

, 22 F. Supp. 2d 331 (D.N.J. 1998); Planned Parenthood of Central New Je r sey v. Verniero

, 41 F. Supp. 2d 478 (D.N.J. 1998), affirmed, 220 F.3d 127 (3d Cir. 2000); Eubanks v. Stengel , 28 F. Supp. 2d 1024 (W.D. Ky. 1998), affirmed, 224 F.3d 576 (6th Cir. 2000) (per c u riam); Midtown Hospital v. Miller , 36 F. Supp. 2d 1360 (N.D. Ga. 1997); Planned Parenthood of Sout h ern Arizona, Inc. v. Woods , 982 F. Supp. 1369 (D. Ariz. 1997); Evans v. Kelley , 977 F. Supp. 1283 (E.D. Mich. 1997) . In one of the cases d e cided by this court, Hope Clinic v. Ryan , supra , Dr. Hammond was both a plaintiff and an e

x pert witness. Hope Clinic v. Ryan , 995 F. Supp. 847, 849

– 550 (N.D. Ill. 1998). Yet in none of these many cases, so far as either we or the gover n ment is aware, was it so much as suggested that patient records might contain inform ation that would help answer the question, cr u cial then as now, whether the D & X procedure is ever med i cally necessary. Although Hammond is a plaintiff in the New York case, presumably because he actually performs D & X abo r tions and wants to be allowed to continue doing so, he will be testifying as an expert medical witness. Of all experts who te s tif y in court, physicians are probably the most common. Yet the government has cited to us no case before this one in which med i-No. 04

– 1379 14 cal experts’ patient r e cords were used to impeach the expert ( Langley v. Coughlin , No. 84 Civ. 5431, 1989 WL 436675 (S.D.N.Y. June 19, 1989), rejected the attempt, in a helpful di scussion), though in malpractice cases it is not uncommon to use redacted medical records bearing on the defendant’s a l leged negligence for impeachment, as in Terre Haute Regional Hosp ital, Inc. v. Trueblood , 600 N.E.2d 1358 (Ind. 1992), an d Todd v. South Jersey Hospital System , 152 F.R.D. 676, 684

– 85 (D.N.J. 1993). Were the government sincerely interested in whether D & X abortions are ever medically indicated, one would have expected it to seek from Northwes tern Memorial Hospital stati stics summarizing the hospital’s experience with late

- term abortions. Suppose the patients who undergo D & X abo r tions are identical in all material respects (age, health, number of weeks pregnant, and so on) to those who underg o procedures not forbidden by the Partial

- Birth Abortion Ban Act. That would be potent evidence that the D & X procedure does not have a compelling health rationale. No such evidence has been sought, in contrast to the Planned Parenthood case, supra , at Tr anscript 26 (Mar. 5, 2004). A variant of the suggested a p proach would be to obtain a random sample of late

- term abo r tion records from various sources and then determine, through good stati stical analysis, whether the patient chara c teristics that lead Dr. H ammond to perform a D & X lead other phys i cians to perform a conventional D & E instead, and whether there are diffe rences in the health cons e quences for these two groups of women. If there are no diffe r ences, the government might have a good d

e fense of th e Act. Gathering records from Hammond’s patients alone will not be useful; but if the go v ernment has other r e cords (say, from VA hospitals) already in its files, then records of Hammond’s procedures might enable a useful compar i son. The government hasn’t s uggested doing anything like that either. Its motives in seeking individ u als’ medical records r e main thoroughly obscure. The question whether the D & X procedure is ever med ically indicated will be resolved as a matter of legislative fact not requiring the

taking of trial

- type testimony at all (see HopeNo. 04

– 1379 15 Clinic v. Ryan , supra , 195 F.3d at 885 (dissenting opi n ion)), or will pivot on the clash of expert witnesses at the New York trial, or pe r haps, as suggested in Stenberg , will be answered by some combin a tion of these two approaches to determining facts. The medical records of expert witnesses are irrelevant to the first i

n quiry; and, so far as we can determine after having listened to the government’s arguments at length, those records will not figure signific antly in the resolution of experts’ disagre e ments either. The fact that quashing the subpoena comports with Illinois’ medical

- records privilege is a final factor in favor of the district order’s action. As we held in Memorial Hospital for McHenry County v. Shadur , 664 F.2d 1058, 1061 (7th Cir. 1981), comity “impels federal courts to recognize state priv i leges where this can be accomplished at no substantial cost to federal substa ntive and procedural policy.” See also United States v. One Parcel of Property Located at 31

– 33 York Street , 930 F.2d 139, 141 (2d Cir. 1991) (per curiam). Patients, physicians, and hospitals in Ill i nois rely on Illinois’ strong policy of privacy of medical r

e cords. They cannot rely completely, for they are not entitled to count on t he state privilege’s being applied in fe deral court. But in a case such as this in which, so far as we can determine, applying the privilege would not interfere significantly with federal proceedings, comity has required us not to apply the Illinois privil ege, but to co n sider with special care the arguments for quashing the subpoena on the basis of relative hardship under Fed. R. Civ. P. 45(c). A FFIRMED
.MANION, concurri ng in part, d

issenting i

n part . I agre e with the court that HIPPA does not adopt s tate priv

ilege l aw in a fe deral qu

estion suit

brough t in fede ral cour t, but rath er Rule 501 of the Federal Rules of Evidence g overns the evidentiary privileges applicable in such suits. Opinion at 3. I also agre e that it is not for us to create a federal common law phy sician-patient privilege where none exists, and that the redacte d medical records are not privilege d. Opinion at 4. However, for several rea sons, I disagree with the court’s conclusion that enforcing the subpoena creates an undue burden unde r Fed. R. Civ. P. 45(c)(3)(A)(iv). I n passing HIPPA, Congress recognized a privac y interest only

in “individually identifiable medical re cords” and not redacted medical records, and H IPPA preempts state law in this rega rd. The “de-identification” (redaction) of all identify ing information from the medical records and the e xtensive protective order in place also eliminates any privacy inter

est in the records. Additionally, not only are the records in this case relevant, as the court a cknowledges, but they

are highly

probative of the underlying

issue. Finally, contra

ry to the court’s c onclusion that quashing the subpoena occurs “at no sub stantial c ost to fed eral sub stantive a

nd proce dural pol icy ,” both suf fer gr eatly . This court sho uld enfor ce the su bpoena. I the

refore concur i n part an d dissent in

part. As the court recognizes, in section 264 of HI PPA, Congress authorized the Secretary of Health and Human Services to promulgate re gulations to protect the privacy of medical records. Opinion at 2 ( citing

42 U.S.C. § 1320d-2). Therefore, HI PPA and the related regulations determin e the pri

vacy interest s at stake . While tedi ously detailed , these r

egulat ions appe ar to have thoroughly

considered and resolved the privacy concerns expressed by

the hospital and the
court. Section 164.502, which sets forth the general rules for the use and disclosure of “protec ted heal

th informa

tion,” pr ovides tha

t “[a] cove

red enti ty ma y no t use or di scloseNo. 04-1379 Page 2

protected health information, except as permitted or required by this subpart or by subpart C of part 160 o f this subc

hapter. ” 45 C.F. R. § 164.50 2(a). B efore l ooking to the vari ous except

ions, the initia l question is whethe

r the information so

ught in th is case is “protected heal

th informat ion.” The regula tions def ine “pro tected h ealth inf

ormation”

as “individually

identifia ble health in formatio n.” 45 C.F .R. § 160.1 03. Both C ongre ss and HHS define “ individua lly identifiable health information” as information that “is created or r eceived by

a health care provider, health plan, employ er, or health care clear

inghouse; and relates to the past, present, or future physica

l or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future pay ment for the provision of health care to an individual, and–(i) identifie s the indiv idual; or (

ii) with re spect to wh ich there

is a reason able basis to be lieve the

informatio n can be u

sed to ide ntify the i ndividual .” 42 U.S.C. 1320d(6); 45 C.F.R. § 160.103 (emphasis added). In thi s case, t

he gove rnment se eks only

redact ed medic al reco rds and a

grees that all identify ing info rmation ma

y be removed before Northwe stern mak

es the re cords av ailable f

or its review. Because the re cords will be redacted, they will not identify the individual. Nor is there a reasonable basis to believe that the information can be used to identify the individual. Section 164.514(b) confirms the latter conclusion. Section 164.514(b)(2)(i) sets for th specific identifiers which, if removed , “de-id

entify ,” the he alth rec ords: (A) Nam es; (B ) A ll ge og ra ph ic su bd iv is io ns sm al le r t ha n a St at e, in cl ud in g s tr ee t a dd re ss , c it y, county , precin

ct, zip cod

e, and the ir equiva

lent ge ocodes, except fo r the initi al three digits of a zip co de if, ac cording to the cur

rent publ icly

availab le data f

rom the B ureau of

the Censu s: (1) The geogra

phic unit formed by combining all zip codes with the same threeNo. 04-1379 Page 3

1 The government does not object to the removal of these identifiers and in fact has consented to redaction bey ond that required by

Section 164.514(b)(2)(i), for instance by agreeing that Northwestern may

delete the state of residence. The fa ct that the regulations allow the disclosur e of the p atient’s

state disproves No rthweste rn’s ass ertion tha

t, becau se the Ho spital is located in Chicago, the patients could be identified since they would be assumed to be from Illinois. Such an assumption is unreasonable given that HI PPA allows for that very disclosure , while still treating the records as de-identified. B ut in any event, the g overnment does not request that information.

initial digits contains more than 20,000 people; and (2) The initial three digits of a zip code for all such g eographic units containing 20,000 or fewer people is change d to 000. (C) All el ements of

dates (e xcept y ear) f or dates directly related to an indiv

idual, including birth date, admission date, discharge date , date of death; and all ages over 89 and all elements of dates (including y ear) indicative of such age , except that such ages and elements may be

aggrega ted into a single category

of age 90 or older; (D) Tele phone num

bers; (E) Fa x numbers; (F) Ele ctronic

mail addr

esses; (G) Socia l securit y nu mbers; (H) Medi cal rec ord numbe rs; (I) Health pl an bene ficiary numbers; (J) Accou nt number s; (K) Cer tificate /license numbers; (L) Vehicle

identifie rs and se rial numbe

rs, inclu ding lic ense pla

te number s; (M) Devi ce ident

ifiers a nd seria l numbers ; (N) Web Universal Resource L ocators (URLs); (O) I nternet Protocol ( IP) a

ddress nu mbers; (P) Biome

tric iden tifiers, including

finger and voice

prints; (Q) Full face photographic images and any

comparable images; and (R) Any other uni que ident

ify ing numbe

r, char acteris tic, or c ode, exce

pt as permitted by paragraph (c) of this section; 45 C.F.R. § 164.514(b)(2)(i). Once the se identif

iers are redact ed, the me dical re cords ar e no long er “indi

vidually identifiable health information.” 45 C.F.R. § 164.514(a). 1 Under HIPPA and the implementing regulations, there is no protected privacy interest in non-identifiable health information. Again,No. 04-1379 Page 4

2 As the co

urt also r ecogn izes, the g overnme

nt did not ne ed a cou

rt order in this cas e because it obtained a protective order sec uring the confidentiality

of the redacted records. Opinion a t 3. Thus, th e gove

rnment c omplied wi

th the priv acy

protect ions esta blished by

HIPPA in three independent way s: by obtaining a c ourt order; by obtaining a protective order; and by seeking only

redacted records. the reg ulations c onfirm thi s conclus ion. 45 C.F .R. § 164.5 02(d)(2 ) provide s: Uses and disclosures of de-identified information. Health in formatio n that mee ts the standard and implementation specifications for de-identification under § 164.514( a) and (

b) is cons idered n

ot to be ind

ividually identifia ble heal th informat ion, i.e., de-iden

tified. T he requi rements o f this subp art do not apply to informat ion that ha s been de -identif ied in ac cordanc e with the applica ble requirements of § 164.514 . . . .
45 C.F.R. § 164.502(d)(2) (emphasis added). Because the governme

nt seeks only reda

cted records that are not individually identifiable, under HIPPA there is no privacy interest in those records. However, even if the records were “individu ally identifia ble,” the y w ould still be

subject to

the general pr

ivacy rules g overning

use and disclosure of protected health information set forth in § 164.502. As noted above , the privacy pr

otection afforded in that section provides several exceptions. 45 C.F.R. § 164.502(a) (“A covered entity

may not use or disclose prote cted health information, except as permitted or required by

this subpart or by subpart C of par t 160 of this subchapter.”) (emphasis added). Of releva nce her e is 45 C.F .R. 164.51 2(e)(1 )(i), wh ich autho rizes the d

isclosure of prote cted hea

lth information pursuant to a court order. I n this case, the government obtained a court orde r authorizing the disclosure of the medical records. Unde r the regulations, such an order neg ates
any nee d to redact identify ing information. 2 45 C.F.R. § 164.512(e)(1)(i). Yet, as the government stressed at oral arg ument, it has no need for, nor desire to know, the individualNo. 04-1379 Page 5

identities of the patients. Therefore, it is only seeking the relevant redacted medical records. Such redacted records are a fforded no privacy

protection under HIPPA, logica lly so because the redacted records have no identifiably private information to expose. And although Illinois law has adopted an expansive view of privilege that includes re dacted medical records, as the court recognizes, Illinois law does not g overn this question. That s houl d end t he inq uiry. But inst ead th e court resurr ects t he pri vacy quest ion t hrough the “undue burden” languag e of Fed. R. Civ. P. 45(c)(3)(A)(iv). Rule 45(c) (3)(A)(iv) provides that a co urt may quash or m

odify a subpoe na if it “s ubjects a person to undue bur

den.” F ed. R. Civ. P. 45(c)(3)(A)(iv). I n the court’s view, compliance with the subpoena would impose an undue burden (i.e. “potential psy chological cost”) on the women whose re dacted records were subpoenaed. Such an undue burden exists, according to the cour t, because the potential loss of privacy outwe ighs the probative value of the medical rec ords. See opinion at 6 (stating that the
Illin ois distric t court’s

finding that the “ potentia l loss of pr

ivacy that would

ensue we re these medical records used in a case in which the pa tient was not a party . . . outwe ighs the loss to the government through non-disclosure” is “solidly based”). This conclusion is wrong on several levels. Initially , to reiterate, HIPPA and the implementing regulations recognize that there is no loss of privacy whe

re the medical records are r edacted (or in HI

PPA jargon, “de-identified”). Nor is it re asonable

to believ e that the

unidentif ied 45 wom en have

“acqua intance s . . . who will put two and two together, ‘out’ the 45 women, and there by expose them to threats, humiliation, and obloquy.” Opinion at 9. I n fact, there is no reason to believe that the women themselve sNo. 04-1379 Page 6

3 Even if some are aware of the subpoe na, there is nothing in the record to support the conclusion that “[t]he women whose records these are do not want them collec ted and examined by the Depa

rtment of Justice and presented in evidence in the New York trial.” Opinion at 6.

4 Notwithstanding the court’s discussion of the notice procedures of HIPPA, see opinion at 4, HI PPA does no t require

notice wh ere a c ourt orde r author izes disclo sure, 45 C .F.R. § 164.512(e)(1), where there is a pr otective order in place, 45 C.F.R. § 164.512(e)(1)( ii)(B), or where the records are r

edacted, 45 C.F.R. § 164.502(d)(2). have any idea that their records are among the few sought by

the government in this case. 3 But even if they kne

w, 4 no one els e ever w ould, bec ause all of the inf ormation t

hat could reasona bly be used to identify them will be re dacted, see 45 C.F.R. § 164.514(b)(2)(i), and none of the information—not even the redacted non-identify ing information—will ever be made public, much less paraded in court or placed on the I nternet within the reach of “skillful Googlers.” Opinion a t 9. That is

guara nteed by the addit ional sec urity of the pr otective order e ntered i n this case in the Southern District of New York. See, e.g., Reproductive Serv., Inc. v . Walker , 439 U.S. 1307, 1308 (1978) (Brennan, J., in chambers) (dissolving stay of subpoena seeking abortion record s of non-p arty

patients o n conditio n that pat ient name s were r

edacte d and par

ties ag reed to a protective order to ensure privacy of all patients). The cour t’s erro neous co nclusion t hat a pri vacy interest exists in the

redact ed docume

nts leads to the unnecessary

attempt to assess the probative value of the evidence. Notably , the district court (Judge Kocoras) did not reach the undue bur den of compliance issue of Fed. R. Civ. P. 45(c)(3)(A)(iv). I

n the interest of time, with the trial date at hand, the court by passed a remand and accepted the district court’s findings on the pr ivilege issue and applied them to the undue burden question. It then in effec t agrees with the district court that there is little if any probativeNo. 04-1379 Page 7

value in the requested documents. Based on the complaint, Dr . Hammond’s declaration, the congressional findings when it passed the law, a nd the arguments made by the government and the hospital (both very limited since privileg e, not probative value, was the issue argue d below), there is significant probative value. But that is not for us to dec ide, as the probative value of the evidence has already

been determined. District Court Judge Casey , who is presiding over the underly ing cas e, belie

ves the in formatio n is relev ant, so muc h so, that h e has indi cated th at if it is not produced, he would consider lifting the stay and dismissing the case (or at least dismissing Dr. Hammond from the case). This should also make clear that Judge Casey believe s the evidence is not just relevant “in the attenuated sense,” opinion at 11, but hig hly probative to the difficult question he will face starting on March 29. I f any def erence is owed, it is to the presidin g judg e—the jud

ge who h andled th

is case p re-tria

l and who k

nows the a

rgumen ts presented by

both sides, and the judge who will need all (non-privilege d) relevant evidence available to allow him to make the necessary factual findings to determine this difficult and contentious constitutional case. However, while recognizing that “ [t]he merits of the dispute are for determination at trial,” opinion at 7, the court nonetheless interjects its own theory of the case and its own judgment of the probative value of the evidence . For instance, the court states: “What the
gover nment wou

ld like to show, in re futation o f Dr. Ha mmond’s imp ending

testimony

, is that D & E is alway s an adequate alternative, from the standpoint of a pre gnant woman’s health, to the D & X procedure. The g overnment has failed to explain how the record of a D & X abortion would show this.” Opinion at 11. But the government’s document request wa s not so structured:No. 04-1379 Page 8

The government did not ask for the recor ds of the D & X abortions identified by Dr. Hammond, but rather req uested the red acted medical records of pat ients who h ad abortion s—both th e D & E and D & X

variety —for the reasons asserte d by

Dr. Hamm ond as just

ify ing a pa rtial-bi rth abortion. For instance, Dr. Hammond stated that he sometimes perfor med abortions for women to protec t their he alth afte r they learne d that “th eir fetu ses have anomalie s that are

often qui te severe.” Declaration ¶ 4. The g overnment requested the patient records for 2003 of any women who had an abortion during their 19 th or 20 th week of pregnancy , (whether partial-birth or D & E) for that reason. Inter

rogatories 1 At 3; Document Request at 7. As the gove rnment explained at oral ar gument, those re cords ar

e highly releva nt to the qu

estion of medical n

ecessity because , if they show that D r. Hammon

d did not re gularl

y pe rform pa rtial-bi rth abor tions unde

r those circumst ances, t hat would demonstr

ate that D r. Hammon

d does not b elieve a

partial- birth abortion is neces sary

to protec t the wome

n’s heal th. Of co urse, the re could be some va

riations i n the medical conditions of the individual cases that explain why Dr. Hammond used a different method, but Dr. Hammond remembers few, if any , of the circumstances surrounding the abortions. Opinion at 8. Thus, the only way the government (and the trial judge) can assess Dr. Hammond’s contention that partial-birth abortions are medically necessary

to protect the women’s health is to review the medical records of the patients with the conditions that Dr. Hammond referenced. The court rejects this theory , stating: “But such information would be unlikely to be found in Hammond’s records in vi ew of his st rongly expressed prefe rence for usin g the D & X method on patients in fragile health. I t would be much more likely to be f ound in the records, notNo. 04-1379 Page 9

sought by the g overnment, of physicia ns who perform D & E rather than D & X abortions on such women.” Opinion at 7. But that is exactly the point: The government does not know what is to be found in Dr. Hammond’s medical records. I t only knows what could be found there—evidence that, notwithstanding Dr. Hammond’s dec laration that he strongly prefers using the D & X method of abortion on patients in fragile he alth, in practice, he does not use that procedu re. Such evidenc e would be

highly probativ e, as the

court itse lf implies by r

ecogn izing it “would be unlikely to be found in Hammond’s records in view of his strongly expressed preference for using

the D & X method.” In fa ct, the r elevanc e here c annot be o verstate d: Congr ess made explicit fin

dings tha t a partial-birth abortion is never medically necessary

to protect a women’s health. Yet, Dr.
Ham mo nd c lai ms Co ngr ess is wro ng. The cou rt c onc is ely l ays o ut Dr. Ham mo nd’ s ar gum ent : In a D & X (partial-birth) abortion, “the fe tus is destroyed after

the lower extremities, and sometimes

the torso , have e

merge d from the

womb and o nly

the head remains i nside,” a nd this, according to Dr. Hammond is safer then the D & E procedure, where “the fetus is destroye d while it is still entirely within the womb . . . . “ Opinion at 7. Dr. Hammond seeks to testify accord ingly , and it is th erefor

e impera tive that t he gove rnment be

able to de

termine t he vera city of his testimony. There is no better w ay than by determining if Dr. Hammond’s actual prac tice supports his testimony. And this is not a question only of impeachment, but rather concerns the heart of this case. Moreover, as the government explained during oral argument, the medical recor ds are highly releva nt to its ca se beca

use its expe

rts must be

able to r eview Dr . Hammond ’s files t oNo. 04-1379 Page 10

5 Northwestern also acknowledged a nother point of relevancy during questioning: When asked whether the records could possibly demonstrate that the woman’s life—and not just her health—was at risk, Northwestern’s attorney responded, “y

es, but that would help the other side.” This case is not about sides, but about the document request, and providing the district court wit h the evid ence it n eeds to r

esolve th e constitu

tional que stion bef

ore it. determin e whethe

r, in their expert opi

nion, a D &

X proce dure wa s the most a ppropria te procedure, as Dr. Hammond claims. The court r ecognizes that “[t]he need for a health exception to the ban in the Partial-Birth Abortion Ban Act will pivot on the clash of expert witnesses in the New York trial.” Opinion at 13. Yet, the court refuse s to recognize the importance of the redact ed reco rds to the

gover nment’s c ase, eve

n after the gov ernment

explained

the need for its experts to r

eview the files to f orm indep endent e xpert opinions. Th e m ed ic al re co rd s a re al so hi gh ly r el ev an t t o a se co nd co ng re ss io na l f in di ng , n am el y, that a “partial-birth abortion poses serious risks to the health of a woman under going the procedu re.” 117 Stat. 1201. Congre ss detaile d numerou s risks it f ound pose d by

partial- birth abortions. Although the government did not point this out during oral arg ument, Northwestern’s attorney ale

rted the court to the fact that the medical recor ds will show whether there were any complications from the abortion, and this evidence is highly probative to the underly

ing constitutional challenge. 5 The court also questions whether the government since rely wants to dete

rmine “whether D & X abortions are ever medica lly indicated,” bec ause the government did not seek summary statistics of all circumstances in which such abortions are perfor med. Opinion at 9. But as the government pointed out at oral argument, it was try ing to limit the burden on Northwestern byNo. 04-1379 Page 11

6 The court also charges the g overnment with being evasive on the question of the probativ e value o f the med ical doc uments. Op inion at 7. It is tr ue that th e gove

rnment’s main focus was not on the probative value of the medical re cords, but that is neither surprising nor confining its document request to those specific situations where Dr. H ammond claimed a partial birth abortion was necessary to preserve the mother’s health. See Fed. R. Civ. P. 45(c)(1) (“A party or attorney

responsi ble for th e issuanc e and ser vice of a subpoena

shall take

reasona ble steps to a void imposin

g undue burden o r expense

on a pers on subjec t to that sub poena.” ). And it succeeded, may

be even better than the governme nt had hoped: During oral argument, the government learned for the fir st time that there are only 45 records that satisfy

its document request. Given that Dr. Hammond stated in his declaration that he perf orms, teaches or supervis es about 3 00 aborti ons a y ear, an d that the gover nment soug

ht the re cords fo r a two- t o three-y ear time frame, it probably surprised the government to learn that there w ere only 45 relevant records, with the rest appare ntly unrelated to the mother’ s or fetus’s health. In any event, the limited scope of the document request, and the g overnment’s agreement to redact the records—something not require d by HI PPA—if anything, re futes any que stioning of the government’s motives or the court’s implication that the gove rnment is on a fishing expedition. Opinion at 12. Although contradictory , the court also chastises the government for not asking for enough recor ds, implying that since the g overnment did not ask for all relevant documents, the documents it did request were somehow less than relevant. Gr anted, there were
many more re levant records that the government did not seek, but the g overnment should not be impugned for prudently

limiting its document request to those few medical records Dr. Hammond directly re ferenced. 6No. 04-1379 Page 12

nefari ous, giv en the ar

guments below an d the distr ict cour t’s ruling . The distr

ict cour t in this case ruled that Illinois privilege law governed and not HI PPA. The question of the relevance and probative value of the documents was not central to the question of whe ther Illinois privilege law applied. This court appropriately reversed the district court on the privilege issue without delving into the question of relevance. Thus, it is not surprising that the g overnment’s opening brief did not focus on the relevancy of the documents. Moreover, although Northwester n argued below that the documents were not relevant, it did so in the context of arguing for a federal common law doctor-patient privilege. On appea l, the government did not need to argue relevancy to address that legal issue, and in fact, this court ag ain appropriately rejected the idea of a fed eral co mmon law pr

ivilege without ad

dressing the quest ion of re levance . Releva

nce only became relevant once the cour t discounted the import of HIPPA de- identification and looked to a balancing test under Rule 45(c)(3)( A)(iv). Again, that the gover nment’s opening brief did not focus on this question is not surprising given that Northwestern’s Rule 45(c)( 3)(A)(iv) undue burden argument below was limited to three short para graphs, and the only

tangential reference to relev ance in i

ts opening

brief c ame fro m this sente nce: “Th e Attorne

y G eneral ’s subpoe

na is an unacceptable intrusion into the privacy of the Hospital’s patients, promising no significant contribution to the ascertainment of truth in NAF v. Ash croft.” Memorandum in Support of Northwestern Memorial Hospital’s Motion to Quash Subpoena at 20. After Northweste rn changed direction on appeal, to ar gue that the production of the records constituted an undue burden b ecause

the rec ords wer

e not rel evant, th e gove

rnment re sponded a

t length in its repl

y brief. See Appellant’s Reply B rief at 8 - 11. At oral argument, the g overnment also elaborated on the re levance

of the doc

uments, no t in a vag

ue or eva sive way

, but by specific ally demonstrating that the medical records are both relevant and highly

probative of the issues in the underlying

case. See supra at 8 - 10. That brin gs us ba ck to the q

uestion of undue bur

den, whic h, along with HI PPA, should have been the focus of the narrow que stion before the district court and this court in this case. Under Rule 45, a court may quash a subpoena where it creates a n undue burden. There is no such burden in this case because HI PPA establishes that there is no privacy interest in redacted record s and those

record s are hig

hly releva nt to the c onstitution al challe nge to th e Partia

l Birth Abortion Ban Act. The only burden identified by the

court seems to be a “potential psychologic al cost.” Opinion at 7. Even assuming that is the kind of “burden” Rule 45No. 04-1379 Page 13

7 Northwestern does not claim that it is an undue burden to comply with the subpoena because it is too cos tly, difficul

t or time c onsuming

to produc e the re dacted r ecords, only

that it may negati vely impact its

reputat ion with pa st and fut

ure pati ents. The

court ag rees, c alling it

a “potential cost in lost goodwill,” opinion at 11, because Northwestern “will lose the conf idence of its patients, and persons with sensitive medical conditions may be inclined to turn elsewhere for medical treatment.” Opinion at 10. However, this is not an authentic “ cost,” because the same federal regulations apply equally to all hospitals. These re gulations put all hospitals on the same footing, thus negating any basis for a patient rejecting a hospital’s ca re because a federa

l court orders the production of redacted r ecords pursuant to a federal reg ulatory standard. contempl ates, re liance o n that as a burden in

effec t create s a privile ge whe re none e xists. 7 Finally , contra ry to the cou

rt’s con clusion, q

uashing the subpoe

na in this c ase does

come at a “sub stantial c ost to fed eral sub stantive a

nd proce dural pol icy .” The c ourt’s ru ling may well be the death knell for Dr. Hammond’s claim, as the district court made clear that it believed the records relevant and that it would consider dismissing the case if the records were not produced. Given that the government cannot adequate ly cross-examine Dr. Ha mmond, the district court would be w ell within i

ts rights to bar Dr . Hammond ’s testimo ny, which wil l not only harm his case, but also the other plaintiffs’. The court’s decision also come s at a substantial cost to the federal policy

adopted by HI

PPA. Lastly , and most significantly, it comes a t a cost to the truth of Congre ss’ findin

gs that a partial- birth abo rtion is ne

ver nec essary

to protec t a woman’ s health and poses significant health risks, and to the constitutionality of such a law. For these and the foreg oing re asons, I

would enf

orce the subpoena

to produc e the des ignate d recor ds.