IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DOUGLAS OUSTERHOUT, M.D., ) No. 11 cv 9136

D.D.S. ) 

 ) 

 Plaintiff ) Judge Lee

)

 vs. ) 

 ) Magistrate Judge Arlander Keys

 MARK ZUKOWSKI, M.D., ) 

 ) 

Counter-Plaintiff ) 

) 

 vs. )

)

DOUGLAS OUSTERHOUT, M.D., )

D.D.S., MIRA COLUCCIO, and )

SOUTHERN COMFORT CONFERENCE, )

INC. )

)

Counter-Defendants. )

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff and CounterDefendants’, Douglas Ousterhout’s, M.D., D.D.S. (“Dr.

Ousterhout”) and Mira Coluccio’s (“Ms. Coluccio”), motion for a

Health Insurance Portability and Accountability Act (“HIPAA”)

qualified protective order [#113] and motion to compel [#117]. 

Defendant, Mark Zukowski, M.D. (“Dr. Zukowski”), opposes the

entry of any such orders. For the reasons set forth below, the

motion for a HIPAA qualified protective order [#113] is granted

with an additional qualification, and the motion to compel [#117]

is granted in part, and denied in part. 

1
Background

Dr. Ousterhout filed a Complaint in this action on December

23, 2011, asserting claims for defamation, per se and per quod,

and violation of the Illinois Uniform Deceptive Trade Practices

Act, 815 ILCS 510/1, et seq. (Dkt. No. 1.) On March 31, 2013,

Dr. Zukowski filed his Third Amended Counterclaim & Third Party

Complaint (“Counterclaim”) against Counter-Defendants, Dr.

Ousterhout, Ms. Coluccio, an employee of Dr. Ousterhout, and

Southern Comfort Conference, Inc. (“Southern Comfort”), asserting

claims against Dr. Ousterhout and Ms. Coluccio for defamation,

per se and per quod, and for violations of the Illinois Deceptive

Uniform Trade Practices Act. (Dkt. No 7.) Additionally, it

alleges violation of the Sherman Antitrust Act (15 U.S.C. § 1 et

seq.) and conspiracy to defame against all Counter-Defendants

(Dkt. No. 84.) 

Specifically, Dr. Zukowski alleged that Dr. Ousterhout and

others acting at his direction –including Ms. Coluccio –“put[ ]

down Zukowski’s techniques” at “various lectures on facial

feminization in the Chicagoland area and throughout the USA,”

including at the “First Event” conference “in Boston,

Massachusetts in January 2011.” (Id. at ¶¶25, 26, 27, 29-31.) 

Dr. Zukowski is a licensed physician residing in Illinois.

(Dkt. No 84, at ¶¶2, 16, 20.) Dr. Zukowski specializes in

2
plastic, maxillofacial, and craniofacial surgery, and devotes

about 65 percent of his practice to performing such surgery on

transgendered individuals seeking facial feminization using

endoscopic surgical techniques. (Id. at ¶17.) Dr. Zukowski

began working in this field, in competition with Dr. Ousterhout,

in the late 1990s. (Id. at ¶23.) 

Dr. Ousterhout is a licensed physician and resident of the

State of California, who practices in competition with Dr.

Zukowski, serving the community of transgendered individuals,

among others. (Dkt. No. 84, at ¶¶3, 23.) Ms. Coluccio is a

resident of San Francisco, California, and the business manager

and employee of Dr. Ousterhout. (Id. at ¶4.) Counterclaim

Defendant Southern Comfort Conference (“SCC”) is a Georgia notfor-profit corporation. (Id. at 5.) Southern Comfort organizes

an annual conference that it describes as “the ‘largest

transgender social, educational, and entertainment conference in

the world.” (Id. at ¶56.) 

Drs. Ousterhout and Zukowski both claim that the other made

disparaging remarks against their ability as surgeons to

correctly perform facial feminization procedures. Both allege

that many of the defamatory remarks were made in front of current

and perspective patients at various large speaking engagements,

the majority of which were held and sponsored by Southern

3
Comfort. Additionally, Dr. Zukowski alleges that Ms. Coluccio

made a practice of defaming him to patients in Dr. Ousterhout’s

office. 

Motion for HIPAA Qualified Protective Order 

Dr. Ousterhout and Ms. Coluccio seek the entry of a HIPAA

qualified protective order, arguing that the scope of discovery

will encompass the production of documents or oral testimony

which may contain certain information protected from disclosure

by HIPAA, and that the order is necessary to protect such

Protected Health Information (“PHI”) as defined in 45 CFR

160.163. Defendant opposes the motion for three main reasons:

(1) the production of records would be unfair to patients and

harm the parties’ business; (2) the potential harm outweighs the

probative value; and (3) several other general objections,

including that such a defamation focused case does not require

medical records. The Court finds that, although the case is

about defamation at its core, the allegations are about surgical

procedures which will require the discovery of medical records

and information of various patients, which, in turn, require them

to be made available, yet, protected by HIPAA.

The Court finds Dr. Zukowski’s arguments against the entry

of a HIPAA qualified protective order unavailing. The claims in

this case, on both sides, involve facts relating to Drs.

4
Ousterhout and Zukowski’s skills and abilities, whether their

surgeries were “botched”, needed correction, benefitted the

patient, and other facts. Dr. Ousterhout and Ms. Coluccio served

discovery upon Dr. Zukowski, seeking the identities of certain

patients and medical records and documents relating to Dr.

Zukowski’s surgeries, and Dr. Zukowski objected to the discovery

requests on the ground, among others, that the information could

not be provided due to HIPAA. Counter-Defendants proposed a

HIPAA Qualified Protective Order, and despite his objections to

providing discovery responses based on HIPAA, Dr. Zukowski

objected to the proposed HIPAA Qualified Protective Order.

Dr. Zukowski’s first argument in opposition focuses on the

patients and their possible discontent with their medical

information being disseminated. He argues that the “highly

personal and sensitive nature of the procedures performed...is an

invasion of their privacy.” (Def.’s Resp. at 7.) However, the

protection of patient information is a main purpose of HIPAA,

thus, Dr. Zukowski’s privacy concerns and their effect on

business are ameliorated in the HIPAA order in a manner

authorized by the HIPAA Rules. Next, he argues that entry of the

protective order is not appropriate, as the probative value

thereof is outweighed by the potential for harm to the patients. 

The Court, however, finds that entry of the protective order

5
sufficiently protects the potential for harm, and that the

probative value necessitates production. 

Lastly, Dr. Zukowski argues that relevance, burden, and the

Illinois Medical Records Act preclude entry of the HIPPAA order.

The Court finds that entry of the proposed HIPAA order serves to

move the litigation in this case forward by resolving the

concerns of the PHI. Dr. Zukowski’s objections of relevance and

burden, at this point in discovery, will not preclude entry. 

However, Dr. Zukowski’s underscoring of the Illinois Medical

Records Act is valid, and while no such privilege exists in the

federal system, the Illinois privilege applies in federal suits

which are based on state law claims and where state law provides

for the rule of decision. See Fed. R. Evid. 501. The Act

prohibits physicians from disclosing any patient’s information,

even in response to subpoena. See 735 ILCS 5/8-802. However,

the Act only protects records relating to information used in the

treatment of the patient by the physician. Regardless, “’[t]he

case law is perfectly clear that medical records of nonparties

are privileged’ under the physician-patient privilege.” People,

Dept. of Professional Regulation v. Manos, 326 Ill.App.3d 698,

708 (1st Dist. 2001) (citing In re D.H., 319 Ill.App.3d 771,776

(1st Dist. 2001). Therefore, in order to comply with both HIPAA

regulations and the Illinois law, advance notice to each patient

6
is required, as well as a meaningful opportunity for the patient

to object to the disclosure. 

Because utilization of patient information is necessary for

both parties, the Court finds that the parties must allow for the

addition of notice to be added to the protective order. Indeed,

during the October 2, 2013 motion call, counsel for CounterDefendants acknowledged his willingness to add notice to the

protective order, given it was required by HIPAA. The Court

assumes this should not be problematic, as although not required

by HIPPAA, it is required by the governing Illinois law. 

Accordingly, with the addition of a clause providing notice to

patients along with a meaningful opportunity for the patient to

object to release, Counter-Defendants’ motion for entry of a

HIPAA protective order is granted. 

II. Motion to Compel

The district court exercises significant discretion in

ruling on a motion to compel. The court may grant or deny the

motion in whole or in part, and similar to ruling on a request

for a protective order under Rule 26(c), the district court may

fashion a ruling appropriate for the circumstances of the case. 

Fed. R. Civ. P. 37(a)(4)(B), (c). Thus, a district court is not

limited to either compelling or not compelling a discovery

request; in making its ruling, a district court should

7
independently determine the proper course of discovery based upon

the arguments of the parties. See, Gile v. United Airlines,

Inc., 95 F.3d 492, 496 (7th Cir. 1996). Courts have discretion

to limit the extent of discovery after considering “[if] the

burden or expense of the proposed discovery outweighs its likely

benefit...the importance of the issues at stake in the action,

and the importance of the discovery in resolving the issues.” 

Fed. R. Civ. P. 26(b)(2)(c)(iii). 

Where the party from whom the documents are requested

objects to the request, the party seeking the request may move

for an order to compel production. Gile v. United Airlines,

Inc., 95 F.3d 496. The Seventh Circuit, however, has often

warned that “discovery is not to be used as a fishing

expedition.” E.E.O.C. v. Harvey L. Walner & Associates, 91 F.3d

963, 971–972 (7th Cir. 1996). Accord Brenneman v. Knight, 297

Fed.Appx. 534, 538, 2008 WL 4748516, 2 (7th Cir. 2008) (“But

requiring the staff to conduct a fishing expedition, particularly

of the magnitude Brenneman requested, would have imposed too

great a burden.”)

Counter-Defendants have propounded a series of

interrogatories and requests for production of information to aid

in discovery. Dr. Zukowski responded to some requests, and

objected to others. Counter-Defendants found several

8
deficiencies in his responses, and claim his objections are

without merit. They now request the Court to order Dr.

Zukowski’s full response to all interrogatories and document

requests served upon him. The Court will discuss each request in

turn. 

I. Interrogatory Nos. 1, 2, 5, and 6

Interrogatory No. 1 seeks identification (name, address, and

similar contact information) of the patients of Dr. Ousterhout

that Dr. Zukowski has seen as alleged and referred to in

paragraph 25 of Dr. Zukowski’s original Counterclaim, as well as

in paragraph 26 of Dr. Zukowski’s Third Amended Counterclaim. 

Dr. Zukowski objected based on HIPAA, the Illinois Medical

Records Privilege, and the length of time covered by the request

(more than a decade). Counter-Defendants first argue that,

during the 37.2 conference, Dr. Zukowski agreed to answer this

interrogatory in full within 30 days, yet he has not supplied any

supplemental information, and that he should be ordered to abide

by his agreement. The Court finds that Dr. Zukowski’s objections

based on HIPAA and the Illinois Act are without merit, as

discussed above, they are obviated by the qualified protective

order as well as the notice given to patients. His last

argument, regarding the unreasonableness of time, is unavailing,

as both parties’ allegations include events over a significant

9
time frame. Accordingly, the Court orders Dr. Zukowski to comply

with Interrogatory No. 1. 

Interrogatory No. 2 requests that Dr. Zukowski identify all

communications that support the alleged quotes by Dr. Ousterhout

and Ms. Coluccio to patients that are contained in paragraph 28

of Dr. Zukowski’s original Counterclaim, and which also appear in

Dr. Zukowski’s current Third Amended Counterclaim as paragraph

29. Counter-Defendants argue that, while he produced certain

emails and clarified that his answer misstated who communicated

by email and who did not, Dr. Zukowski refused to identify which

documents corresponded to which communication, and failed to

identify and describe the communications that were not made in

writing. Dr. Zukowski argues that he fully responded, and that

he gave as full and complete an answer as he could at the time

and as he understood the question. The Court finds that Dr.

Zukowski sufficiently cleared up the misstatement about receiving

an e-mail versus being forwarded a copy of an e-mail, and that

his initial response to the interrogatory was sufficient. 

Presumably Dr. Zukowski is aware of his obligation to supplement

his answer if it is no longer complete. Accordingly, the Court

denies Counter-Defendants’ motion to compel Interrogatory No. 2. 

Interrogatory No. 5 seeks the identification of malpractice

claims against Dr. Zukowski. Counter-Defendants argue that Dr.

10
Zukowski’s answer improperly limited his response to claims

relating solely to facial feminization surgery based on the

assertion that this case is limited to those surgeries only. Dr.

Zukowski contends that his response was appropriate, as the

Complaint sets forth claims of defamation between the parties in

the performance of facial feminization procedures and nothing

more. The Court agrees; discovery, while broad, is limited to

the issues framed by the Complaint. Accordingly, the Court

denies Counter-Defendants’ motion to compel Interrogatory No. 5. 

Interrogatory No. 6 seeks identification of all conferences

Dr. Zukowski spoke at since January 1, 2005. Counter-Defendants

argue that Dr. Zukowski’s response only includes conferences at

which he “lectured”, and that they are aware that, even when not

on the official program, he “gives lectures and hosts a reception

on his own.” Reply. at p.5. Counter-Defendants argue that the

other speaking events may reveal additional witnesses and

instances of defamation. Dr. Zukowski contends that the

interrogatory is unreasonable. The Court disagrees and finds the

parties’ request to compel Dr. Zukowski to identify not only

presentations that he was officially listed on the program for,

but also other speeches, lectures, seminars, and similar

presentations to a group of people, reasonable and helpful for

discovery purposes. Accordingly, the Court orders Dr. Zukowski

to comply with Interrogatory No. 6. 

11
II. Document Request Nos. 1-6, 11, 12, 19, 37, and 39

Document Request Nos. 1-6 seek documents containing

information regarding Dr. Ousterhout and/or Ms. Coluccio, as well

as the pleadings involved in the case. Dr. Zukowski argues that

the requests are too vague and overbroad, no time frame is

associated, and it is impossible for one to know if they have

fully answered. The Court agrees that requests 1-6 need to be

better honed, including a specific time frame and more specified

requests for substantive information. Until such time as

Document Request Nos. 1-6 are clarified, the Court has no way of

determining whether they are objectionable. Therefore, the

motion to compel as to Document Request Nos. 1-6 is denied

without prejudice. 

Document Request No. 11 requests documents relating to

malpractice cases filed against Dr. Zukowski. As set forth

above, with regard to Interrogatory No. 5, the Court finds that

the Complaint claims defamation between the parties in the

performance of facial feminization procedures and nothing more. 

Dr. Zukowski has responded that he has no malpractice claims

involving facial feminization surgery, and, therefore, has no

records of malpractice claims to submit. Accordingly, the Court

denies Counter-Defendants’ motion to compel production of

Document Request No. 11. 

12
Document Request No. 12 seeks financial information about

Dr. Zukowski and his practice. Prior to entry of the

Confidentiality Order, Dr. Zukowski refused to provide such

information due to its confidential nature. However, now that

the Confidentiality Order is entered, the Court orders his

production. Counter-Defendants highlight Dr. Zukowski’s

mentioning of November 27, 2013, as an anticipated date of

production. Said information is to be produced by that date. 

Document Request No. 19 requests that Dr. Zukowski produce

documents relating to his reputation in various relevant

communities. Dr. Zukowski contends that, to date, no further

records, other than those already produced, have been located. 

He maintains that he will continue his efforts to locate and

produce more records “as soon as possible.” Resp. at p. 6. 

Accordingly, the Court orders Dr. Zukowski to quickly and fully

produce all records related to Document Request No. 19, and to

supplement said information as needed. 

Document Request No. 37 requests that Dr. Zukowski provide a

copy of the relevant insurance policy that may cover the claims

against him. In Dr. Zukowski’s response, he suggested that the

policy would be produced “before this honorable Court has seen

Defendants’ reply hereto.” Resp. at p. 6. Accordingly, the

Court orders production of Document Request No. 37. 

13
Document Request No. 38 sought certain communications

between Dr. Zukowski and his insurer regarding this case. 

However, Dr. Zukowski objected on the insurer/insured extension

of the attorney-client privilege, as set forth in cases such as

People v. Ryan, 30 Ill. 2d 456 (1964). Counter-Defendants

obliged, yet reserved the right to challenge its applicability

once review of the relevant policy, and any representations made

by the insurer regarding their duty to defend or a reservation of

their rights, can be made. Accordingly, the Court denies,

without prejudice, Counter-Defendants’ motion to compel

production of Document Request No. 38. 

Document Request No. 39 requests communications with various

people or entities regarding specific subjects, including, but

not limited to, “First Event,” “Southern Comfort,” “Be All,”

etc.. Dr. Zukowski objected on several grounds, including it

being vague, overbroad, and the request being a “catch-all.” 

Counter-Defendants have, in their Reply, attempted to streamline

the scope of their request. They are willing to limit the scope

of time from this Request to 2001 to the present (which begins 10

years before the filing of the Complaint). The Court finds that,

given the lengthy time period covered by all parties’

allegations, such a scope is not improper. Additionally,

Counter-Defendants are willing to discuss creating a protocol for

14
the gathering, searching, and review of electronic records, which

the Court agrees would be helpful in aiding all parties’

discovery efforts.

The Court finds Dr. Zukowski’s objections based on HIPAA and

the Illinois Medical Records Act unavailing, as the HIPAA

qualified Protective Order discussed above resolves those

concerns. Moreover, the Act only protects records relating to

information used in the treatment of the patient by the

physician. 735 ILCS 5/8-802. Communications that Dr. Zukowski

had with patients regarding Dr. Ousterhout, Ms. Coluccio, and/or

the pleadings in this case are not related to those issues and

will be produced. Accordingly, the Court orders the full

production of Document Request No. 39, after a streamlining of

the scope of the request is made, as well as a reasonable

protocol for the gathering, searching, and review of electronic

records, has been created. 

The Court orders immediate production of all documents and

information as outlined above. To the extent that other

documents exist that Dr. Zukowski believes are protected, the

Court orders Dr. Zukowski to provide an appropriate privilege

log, complying with applicable law and identifying all items

withheld on the grounds of privilege, so that the claims may be

evaluated. Despite Counter-Defendants’ emphasis, the Court does

15
not find an award of fees appropriate. See Fed. R. Civ. P.

37(a)(5)(A)(ii)-(iii). 

CONCLUSION

For the aforementioned reasons set forth, CounterDefendants’ motion for entry of a HIPPAA qualified protective

order [#113] is granted, with the addition of a clause that

provides all patients notice and an opportunity to object to the

release of their medical information. The motion to compel

[#117] is granted in part, and denied in part, as discussed

above. The parties should be prepared to inform the Court as to

the agreed final wording of the HIPAA qualified protective order,

as well as Document Requests Nos. 1-6 and Document Request No.

39, at the November 25, 2013 status hearing.

DATE: November 21, 2013 ENTER:

________________________

ARLANDER KEYS

United States Magistrate Judge

16