LabMD v. FTC update

The latest updates to a case this blog has been following:

The FTC has responded to LabMD’s motion for a protective order to quash numerous subpoenas for discovery and to dismiss the complaint with prejudice.

On the matter of the protective order, the court granted in part and denied in part, and denied the request for oral argument. From my quick read, it appears that LabMD prevailed on the issue of pre-2005 discovery and was able to protect materials relating to the CEO’s book about the case. In all other respects, the FTC seems to have prevailed on discovery.

The FTC’s response to the motion to dismiss was pretty much what I expected to read based on their arguments in Wyndham and based on conversations I’ve had with Dan Solove and Woody Hartzog. Although LabMD tries to argue that HIPAA/HITECH trump the FTC, the FTC argues that the statutes are complementary and can be interpreted in a consistent way, with FTC continuing to have the authority to protect consumers from harm due to unreasonable data security. But you’ll see what you think.


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