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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

Currently pending before the Court is Plaintiff and 

Counter-Defendants’, Douglas Ousterhout, M.D., D.D.S. and Mira 

Coluccio (collectively the “Ousterhout Parties”), motion to 

compel [#142] and motion to clarify [#144], as well as Defendant

and Counter-Plaintiff’s, Mark Zukowski, M.D., motion to compel 

[#137] and motion to clarify [#145]. For the reasons set forth 

below, the Ousterhout Parties’ motion to compel is granted in

part, and denied in part, and the motion to clarify is granted. 

Dr. Zukowski’s motion to compel and motion to clarify is denied.
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As the facts of this case are fully set forth in the 

Court’s November 21, 2013 Memorandum Opinion and Order [#134], 

the Court will not repeat them here and will commence with its 

findings. With the exception of denying the production of Dr. 

Zukowski’s doctor’s note, the Ousterhout Parties’ motion to 

compel is granted. Most of the Ousterhout Parties’ requests 

address information that the Court previously ordered Dr. 

Zukowski to produce, and the rest of the Ousterhout Parties’

requests have now been made sufficiently precise that Dr. 

Zukowski can now readily comply. 

With regard to Interrogatory No. 1, the Ousterhout Parties 

sought identification (name, address, and similar contact 

information) of the patients referred to in Dr. Zukowski’s 

original counterclaim, as well as in his third amended 

counterclaim. Dr. Zukowski objected for several reasons, 

including HIPAA and the Illinois Medical Records Act. The Court 

finds that Dr. Zukowski’s objections based on HIPAA and the 

Illinois Act are without merit, as they will be obviated by the 

entry of a qualified HIPAA protective order. Moreover, The 

Court finds that Dr. Zukowski’s reliance on DeFilippis v. 

Gardner, 368 Ill. App. 3d1092 (2d Dist. 2006), is misplaced as 

it is distinguishable from the instant case. Herein, due to the 

variety of procedures that Dr. Zukowski performs, the disclosure 
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of patient names does not automatically disclose the specific 

procedures. Accordingly, the Court orders Dr. Zukowski to

immediately comply with Interrogatory No. 1.

With regard to the financial information, the Court, while 

sympathetic to Dr. Zukowski’s need for additional time due to 

his injury, orders the requested information to be promptly 

produced. The Court finds no need for Dr. Zukowski’s production 

of his doctor’s note referenced at the November 25, 2013 

hearing. However, as March is upon us, Dr. Zukowski has had 

ample time to recover from his November injury and resulting 

procedure, and to have compiled that information. Accordingly, 

the financial information is to be produced within 7 days of the 

date of this memorandum opinion and order.

With regard to the electronic documents, the Court 

previously observed that the Ousterhout Parties were willing to 

discuss creating a protocol for the gathering, searching, and 

review of electronic records, and that such a system would be 

useful to all parties’ discovery efforts. It was anticipated by 

the Court that the parties would come together on this issue to 

discuss and set up said protocol. However, the Ousterhout 

Parties claim that Dr. Zukowski’s counsel, Mr. Blumentahl, was 

unable to do so as a result of Dr. Zukowski’s injury and 

absence, as he claimed to not personally know how to procure Dr. 

Zukowski’s electronic records. Now that Dr. Zukowski is 
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available, the Court orders both parties to immediately discuss 

this issue and implement a system to search and review complete 

electronic files. Accordingly, the Court orders both parties to 

meet-and-confer within 14 days of the date of this memorandum 

opinion and order, in an effort to discuss the electronic 

documentation scope and implement a process of review. 

With regard to Document Requests Nos. 1 and 2, the Court 

agreed with Dr. Zukowski that the timeframe originally sought 

was too vague and the information requested overbroad. The 

Ousterhout Parties compromised and agreed to limit the Requests 

to documents relating only to Dr. Ousterhout or Ms. Coluccio, 

and from 2001 to the present. Although Dr. Zukowski maintains 

that such parameters are still too broad, the Court disagrees. 

Accordingly, Dr. Zukowski is ordered to produce all such 

responsive documents within 14 days of the date of this 

memorandum opinion and order.

Dr. Zukowski’s motion to compel is denied, as well as the 

demand for fees and costs. The Court finds that the Ousterhout 

Parties have either since supplemented or sufficiently produced 

the information sought by Interrogatories Nos. 1,2,4,6,7,9-

12,14, and 15, as well as Requests for Production Nos. 1-

7,8,9,12-14,17,18,19,20,21,23-29,31, and 32. The Court finds

any further requests, beyond what the Ousterhout Parties have 
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currently supplemented and provided, to be unwarranted. 

Especially the additional information requested through 

Interrogatory No. 1 of Dr. Ousterhout’s driver’s license number, 

social security information, etc., as well as Ms. Coluccio’s 

personal salary information sought via Interrogatory No. 10. 

The Court finds such discovery irrelevant to the litigation and 

unnecessary. 

Next, with regard to the parties’ motion for clarification, 

the Ousterhout Parties implore the Court to reconsider its 

initial ruling regarding its motion to compel Interrogatory No. 

5 and Request for Production No. 11. During the status hearing

on November 25, 2013, the Ousterhout Parties explained to the 

Court that facial feminization surgery is a broad term that can 

encompass a lot of surgeries. The Court agrees with the 

Ousterhout Parties that its prior order limiting Dr. Zukowski’s 

response to malpractice claims arising solely out of facial 

feminization procedures was too narrow. 

Accordingly, the Court orders Dr. Zukowski to fully and 

completely respond to those requests, identifying all

malpractice claims made against him in any forum, by any method, 

and at any time. Likewise, as it relates to Dr. Zukowski’s 

identical Interrogatory No. 17, the Ousterhout Parties are

directed to ensure that their answer is equally all-
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encompassing. The Court finds, in this regard, that such 

information is relevant to the issues in this case, or that it 

is reasonably calculated to lead to admissible evidence.

Finally, with regard to both parties’ request for 

clarification on the need for consent or not from the patients, 

the Court agrees with Dr. Zukowski that HIPPA regulations do not 

preempt the governing Illinois Medical Records Act mandating 

express consent for the disclosure of a patient’s Personal 

Health Information (“PHI”). At the same time, the Court also 

agrees with the Ousterhout Parties that, for the time being, the 

entry of an agreed upon HIPPA qualified protective order is 

necessary and will only aid in the protected production of 

certain PHI, while simultaneously moving along this stagnant 

discovery. Undoubtedly, both parties may find that the HIPAA 

protective order does not address all of the possible objections 

to production based on other theories. However, it will at a

minimum remove any HIPAA-related barriers, and that alone will 

allow for a more fruitful discovery effort on both sides.

Each of the parties has properly interposed objections to 

discovery requests on grounds that disclosure of the information 

sought might violate patient rights under HIPAA. The Ousterhout

Parties have proffered a proposed standard HIPAA qualified 

protective order for entry by the Court that seemingly resolves 
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both parties’ HIPAA-related objections to discovery. Dr. 

Zukowski appears not to object to the substance of the proposed 

protective order, instead objecting to its entry on the basis 

that certain documents and information requested may still be 

protected from discovery pursuant to application of a physicianprivilege under the Illinois Medical Records Act or a comparable 

statute under other states’ laws. Indeed, even with a HIPAA 

qualified protective order in place, the parties may have other

objections to discovery requests that will need to be discussed 

and resolved by other means before documents are produced. The 

entry of a HIPAA qualified protective order will not, for

example, cure any objections that a party might interpose as to 

the relevance or breadth of particular requests, nor will it 

resolve questions of privilege, whether those involve attorney

client privilege, physician-patient privilege, or any other 

privilege or immunity upon which a party might purport to rely.

Regardless, even upon entry of a HIPAA qualified protective 

order, the parties are not immediately divested of their rights 

or their other objections unrelated to HIPAA, nor are the 

parties required to immediately produce documents. As the Court 

decided previously, to the extent that other documents exist 

that either party believes should be protected, the Court orders 

that party to provide an appropriate privilege log, complying 
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with applicable law and identifying all items in sufficient 

detail withheld on the grounds of privilege, so that the claims 

may be evaluated. See Fed. R. Civ. P. 26(b)(5). See also

Petrovic v. City of Chicago, 2007 WL 2410336, at *2 (N.D. Ill., 

Aug. 21, 2007) (describing the information required under Rule 

26(b)(5) to allow parties and courts to determine whether a

claimed privilege applies to documents withheld from discovery); 

Doe v. Oberweis Dairy, 2004 WL 1146712, at *5 (N.D. Ill., May 

21, 2004) (applying requirements of Rule 26(b)(5) to physicianpatient privilege). In this regard, Dr. Zukowski’s assertion that 

even listing information on a privilege log about certain 

documents being withheld and the in camera review by the Court 

of certain documents to determine whether there is a privilege 

proscribed by the Illinois Medical Records Act, is untenable. 

Therefore, the Court grants the Ousterhout Parties’ request 

to enter a standard HIPAA qualified protective in an effort to

address the parties’ HIPAA-based objections to discovery. 

Accordingly, the Court strikes the original order requiring 

“notice to patients along with a meaningful opportunity for the 

patient to object...,” and will not require notice or consent, as 

that is not required under HIPAA. The parties are directed to 

agree upon the final form of the HIPAA qualified protective 

order, and to submit the finalized HIPAA qualified protective 
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order to the Court by the March 5, 2014 status date, so that 

discovery may proceed forthwith. 

CONCLUSION

For the reasons set forth above, the Ousterhout 

Parties’ motion to compel [#142] and motion to clarify [#144] is 

granted, in part, and denied, in part, as outlined above. Dr. 

Zukowski’s motion to compel [#137] and motion to clarify [#145] 

is denied. The Court orders immediate production of all 

documents and information as described above. The parties 

should be prepared to provide the Court with a copy of their 

agreed upon HIPAA qualified protective order at the March 5, 

2014 status hearing.

DATE: February 28, 2014 ENTERED:

________________________

ARLANDER KEYS

United States Magistrate Judge