Dunn et al v. Thomas et al

Filing 318

OPINION AND ORDER: Because the court concludes, based on its in camera review of the documents that MHM has withheld, that the documents are protected neither by the state-law privilege MHM invoked nor by any other federal common-law or statutory qua lity-assurance or peer-review privilege, it is ORDERED as follows: (1) The plaintiffs motion to compel (doc. no. 290 ) is granted as further set out in the opinion and order. (2) MHM Correctional Services, Inc., is promptly to produce, in accordance with the protective order soon to be entered, the documents identified in its privilege log dated 12/23/2015 (doc. no. 290 -3), by the following reference numbers and (inclusive) ranges: 14, 16, 45-68, 71-82, 96-112, 127-138, and 150-162. (3) Withi n seven days of the date of todays order, the parties and MHM are to confer and submit a joint proposed protective order as outlined in the above opinion. If, after making good-faith efforts, the parties and MHM cannot reach an agreement as to the precise terms of that order, they may submit separate proposals. Signed by Honorable Judge Myron H. Thompson on 1/27/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL ACTION NO.
2:14cv601-MHT
(WO)

OPINION AND ORDER
I.
The

issue

Introduction

currently

before

the

court

in

this

prison-conditions case is whether the plaintiffs are
entitled,

under either Federal Rule of Evidence 501

(specifically as interpreted in Jaffee v. Redmond, 518
U.S.

1

(1998))

or

the

Protection

and

Advocacy

for

Individuals with Mental Illness Act (PAIMI), 42 U.S.C.
§§ 10801-10807, to the production of quality-assurance

documents by non-party MHM Correctional Services, Inc.
(MHM).
One of the plaintiffs in this case is the Alabama
Disabilities
State’s

Advocacy

designated

(P&A);

the

Program

(ADAP),

protection

function

of

a

and

P&A

is

which

advocacy
to

is

the

system

“protect

and

advocate the rights of individuals with mental illness
[] and investigate incidents of abuse and neglect of
individuals
§ 10803.

with

mental

illness....”

42

U.S.C.A.

The other plaintiffs are a group of Alabama

prisoners, who seek to represent putative classes of
other prisoners.
The

defendants

Corrections
Dunn,

and

(ADOC),
ADOC

are

the

ADOC

Department

of

Jefferson

S.

Commissioner

Associate

Services Ruth Naglich.

Alabama

Commissioner

for

Health

MHM, which is not a party to

this case, contracts with ADOC to provide mental-health
care to prisoners in ADOC’s custody.

2

As relevant here, the plaintiffs allege: that the
defendants’ mental-health-care system, as administered
by MHM, is constitutionally inadequate and violates the
Eighth

Amendment’s

punishment;

that

prohibition
the

on

cruel

defendants,

and

unusual

through

MHM,

involuntarily medicate mentally ill prisoners without
providing the due process required by the Fourteenth
Amendment; and that the defendants discriminate against
mentally ill prisoners in violation of Title II of the
Americans

with

Disabilities

Act

(ADA),

42

U.S.C.

§§ 12131-12134.
In the course of the discovery process, MHM has
refused to produce a number of documents (a few hundred
pages worth), with respect to which it has asserted an
Alabama

state-law

‘quality

assurance’

(alternately

referred to as ‘peer review’) privilege, as codified at
1975

Ala.

Code

§ 22-21-8. 1

MHM

has

also--in

the

1. Section 22-21-8(b) of the 1975 Alabama Code
states in relevant part: “All accreditation, quality
assurance credentialing and similar materials shall be
(continued...)
3

alternative--urged

the

court

to

recognize

a

similar

federal common-law privilege.
The

documents

at

issue,

which

the

court

has

reviewed in camera, are grouped into three distinct
categories
audits.
this

by

MHM

but

can

all

be

characterized

as

As described by MHM itself, in its briefing to

court

and

its

proposal

for

its

ADOC

contract,

these audits include “random samplings of clinician[s’]
credentialing files, patient charts and meeting minutes
as

well

as

comparisons

of

contractually

obligated

service elements to actual services performed at the
facilit[ies],” MHM Brief in Opposition (doc. no. 294)

held in confidence and shall not be subject to
discovery or introduction in evidence in any civil
action
against
a
health
care
professional
or
institution arising out of matters which are the
subject of evaluation and review for accreditation,
quality assurance and similar functions, purposes, or
activities.”
See also 1975 Ala. Code § 22-21-8(a)
(“Accreditation,
quality
assurance
and
similar
materials as used in this section shall include written
reports,
records,
correspondence,
and
materials
concerning the accreditation or quality assurance or
similar function or any hospital, clinic, or medical
staff.”).
4

at

2

n.1,

mental

and

health,

also

draw

on

medical

“meetings

and

with

security

[ADOC],

leadership;

meetings with mental health line staff and correctional
officers;

...

and

observation

of

actual

clinical

interventions,” MHM Proposal (doc. no. 301-1) at 10.
After attempting to mediate, see Order, Dunn v.
Dunn,

2015

WL

4661318

(M.D.

Ala.

July

27,

2015)

(Thompson, J.), the plaintiffs filed a motion to compel
the

production

of

these

documents,

arguing

that

state-law privileges do not apply in federal-question
cases,

that

no

federal

common-law

quality-assurance

privilege exists in cases raising civil-rights claims,
and that federal statutory law actually mandates the
disclosure of the documents at issue to ADAP upon its
request.
For the reasons that follow, the court concludes
that the asserted privileges are inapplicable in this

5

litigation, and will therefore order MHM to produce the
documents at issue. 2

II.
All

of

the

State Statutory Law

claims

in

this

case

were

pursuant to federal, rather than state, law.

brought
Federal

Rule of Evidence 501 therefore makes clear that federal
common law (or a federal statute, if applicable)--not
state law--“governs [this] claim of privilege.”
Alabama Code § 22-21-8 has no direct bearing here.

1975
Cf.

Marshall v. Planz, 145 F. Supp. 2d 1258, 1273 (M.D.
Ala. 2001) (Thompson, J.) (recognizing that “Rule 501
no longer prevent[ed] the application of the state-law
peer review privilege now that [all federal] claims

2. Because the court rejects MHM’s assertion of
privilege on the ground that neither the state-law
privilege
nor
an
equivalent
federal
common-law
privilege applies here, the court assumes without
deciding that the documents at issue would fall within
the scope of the state-law privilege being asserted and
need not decide whether MHM has, as the plaintiffs
contend, waived any quality-assurance privilege by
failing to assert it in a timely manner.
6

ha[d] been dismissed on summary judgment”).

Hence, the

state-law privilege MHM claims is--as MHM essentially
conceded

during

a

telephonic

hearing

on

this

motion--not directly applicable.

II.
MHM

urges

Federal Common Law

the

court,

however,

to

recognize

an

equivalent privilege under the federal common law.

A.

Adkins

In Adkins v. Christie, 488 F.3d 1324, 1326-30 (11th
Cir.

2007),

the

Eleventh

Circuit

applied

the

test

articulated in Jaffee, 518 U.S. at 8, 10-15, in order
to determine “whether to recognize the [‘medical peer
review’]

privilege

in

Although

it

that

implemented

noted
in

every

federal
such
State, 3

civil
a

rights

privilege
the

court

cases.”

has

been

expressly

3. See Jenkins v. DeKalb Cnty., 242 F.R.D. 652, 661
(N.D. Ga. 2007) (Thrash, J.) (“[W]hile the policies of
the 50 states bear[] on the wisdom of a particular
(continued...)
7

declined to recognize a federal common-law peer-review
privilege in civil-rights cases.
1330.
Court

Adkins, 488 F.3d at

Indeed, “[i]t appears that every United States
of

whether

Appeals
there

that

is

a

has

addressed

federal

the

medical

privilege has rejected the claim.”

issue

peer

of

review

Jenkins v. DeKalb

Cnty., 242 F.R.D. 652, 659 (N.D. Ga. 2007) (Thrash,
J.).
the

Although MHM attempts to distinguish Adkins, on
ground

that

discrimination

to

it

involved

which

the

a

claim

of

peer-review

employment
evidence

at

issue was essential, this court disagrees; the Eleventh
Circuit’s

reasoning

is

squarely

applicable

to

this

case.
As
Jaffee

Adkins
are:

explained,

“1)

the

the

needs

relevant

of

the

factors

public

under

good;

2)

whether the privilege is rooted in the imperative need
for confidence and trust; 3) the evidentiary benefit of
the denial of the privilege; and 4) consensus among the
privilege, an inquiry under Federal Rule of Evidence
501 is not a privilege popularity contest.”).
8

states.”

488 F.3d at 1328.

Because the distinctions

MHM attempts to draw relate only to the third and, to a
lesser extent, the first factors, the court relies on
the

discussion

of

the

second

and

fourth

factors

in

Adkins without rehashing that analysis.

1.

Evidentiary Value

MHM’s first and most strident argument in support
of its assertion of privilege is that the documents at
issue here are of less evidentiary value than were the
documents involved in Adkins, which were “critical” to
proving that discrimination had occurred.
1329.

But

Adkins

and

Jaffee

nowhere

488 F.3d at
suggest

that

evidence over which a purported privilege is asserted
must be essential to the claims of the party moving to
compel production in order for a court to decline to
recognize the privilege (indeed, it is impossible for a
court to determine with certainty that any given piece
of evidence is the linchpin of a case before hearing

9

the rest of the evidence); rather, the relative value
of the evidence is one factor to be considered.

See

Jaffee, 518 U.S. at 12 (observing, in recognizing a
psychotherapist-patient

privilege,

that

“the

likely

evidentiary benefit that would result from the denial
of the privilege is modest”).
Although the documents MHM seeks to withhold might
not

be

essential

to

the

plaintiffs’

case,

evidentiary value is likely quite significant.

their
These

documents draw on source material otherwise unavailable
to

the

plaintiffs,

important

as

they

and

will

attempt

to

likely

prove

demonstrate

extremely
that

the

defendants’ policies and practices towards mentally ill
prisoners

evince

deliberate

constitutional rights.

indifference

to

their

Moreover, this evidence might

well be valuable in determining whether to certify a
class or classes and, if liability is proven, how to
craft an effective remedy.

10

Contrary to MHM’s assertion, the plaintiffs do not
otherwise have access to some of the source materials
on

which

the

quality-assurance

documents

were

based;

extensive

in

conversations

assessments

particular,

with

in

they

medical,

these

draw

on

mental-health,

and security staff that plaintiffs’ counsel and their
experts

have

not

been

permitted

to

conduct

and

observations of clinical interactions that they have
not been allowed to make.
Support

(doc.

no.

301)

See Plaintiffs’ Brief in
at

4;

see

also

Mediation

Agreement Pertaining to Discovery (doc. no. 250-1) at
22

(“ADOC

will

provide

an

employee

of

ADOC

or

its

contractors to answer questions any Plaintiffs’ expert
may have regarding the location or use of any item or
portion of any ADOC facility that may be visited.

...

However, nothing in this paragraph will required ADOC
to respond to questions concerning its programs or the
efficacy of the same.); id. at 26 (“Except as set forth
above, and as necessary for the purpose of escorting

11

the experts to the requested areas of the facilities
and identifying records to be reviewed or inmates to be
met with, counsel for the Plaintiffs and any expert
witness retained by them agree to have no contact with
any employee or contractor of ADOC during any visit
allowed by this agreement.”).
Even if the plaintiffs did have all of the source
materials on which MHM drew in assessing the care it
was providing to prisoners in ADOC custody, MHM’s own
analysis of that information would have distinct and
significant
value

of

evidentiary
such

malpractice

value,

information

case.

In

a

above
in

a

and

beyond

the

run-of-the-mill

medical-malpractice

case,

peer-review materials are relevant only because they
provide an assessment of the quality of care provided
to

an

individual

patient;

while

a

provider’s

acknowledgement of errors may be particularly damning,
the

plaintiffs’

experts’

assessment

of

the

care

provided goes to the same issue: whether the care was

12

substandard.

Here, by contrast, MHM’s own assessment

of the care it has been

providing

is likely to

be

central to--indeed, perhaps necessary for--the court’s
determination of a number of other issues.
As a preliminary note, although MHM contends that
its

client,

ADOC,

does

not

have

access

to

its

peer-review documents, there appears, on the current
record, to be no basis for this contention. 4
contract

with

available

to

ADOC
the

states

ADOC,

at

that
the

“MHM

ADOC’s

MHM’s

shall
request,

make
all

records, documents, and other papers relating to the
4. The court takes pains to acknowledge that it
reaches this conclusion--as it must--based on the
limited record before it.
Specifically, although the
defendants were invited to file a brief in response to
the motion to compel, they declined to file anything.
The defendants are nonetheless free to argue, when this
case is tried on the merits, that they were not able to
access (or believed they were not able to access) MHM’s
quality quality-assurance documents; if presented with
additional evidence on this point, the court will
reconsider its conclusion.
However, the plaintiffs
would in any event need to be able to review the
contents of the documents in order to be able
meaningfully to contest such a contention by the
defendants that the documents fall outside the scope of
the contractual provision discussed below.
13

direct

delivery

of

mental

inmates hereunder.”
4.

health

care

services

to

MHM Contract (doc. no. 301-2) at

The court has reviewed the documents at issue, and

they appear to fall within the plain language of this
contractual

provision:

they

“relat[e]

to

the

direct

delivery of mental health care,” in that they discuss
numerous individual cases as well as practices employed
by

practitioners

patients.

in

administering

treatment

to

More generally, they concern the quality of

MHM’s direct delivery of services, and are designed to
improve it.

Furthermore, were there any ambiguity as

to the meaning of this provision, evidence extrinsic to
the

contract

parties

appears

intended

strongly
the

to

suggest

provision

that
to

both
cover

quality-assurance documents.

MHM stated plainly and

repeatedly

in

request

in

for

its

proposal

proposals

quality-assurance

reports

that
with

response

it

would

ADOC;

to

ADOC’s

share

indeed,

its
MHM’s

concerted efforts to share the information gleaned from

14

its quality-assurance activities appears to have been a
selling point.

See MHM Proposal (doc. no. 301-1) at

4-6 (stating that “MHM understands and agrees to the
requirements"

of

the

portion

of

the

request

for

proposals that required that a "report of the findings
[of

the

(CQI)

vendor’s

program]

Comprehensive

will

be

Quality

presented

at

Improvement
the

monthly

administrative meeting between Vendor and ADOC Director
of

Treatment";

that

MHM

will

“provide[]”

ADOC

with

"[r]eports from routine monitoring and special studies
...

regularly

during

monthly

administrative

meetings

and quarterly CQI meetings" and “submit[]” "semi-annual
and annual reports to the ADOC”; that "[g]uided by the
ADOC, the MHM CQI program will continue to collaborate
with the Department and the medical contractor, share
information and data, as well as actively coordinate
and participate in CQI activities”; and that MHM “will
ensure that utilization and outcome data as well as the

15

results of CQI studies and corrective action plans are
reported to the ADOC at least quarterly”). 5
The court is faced with a systemic challenge to the
quality

of

mental-health

care--specifically,

an

allegation that the quality is so poor as to constitute
cruel and unusual punishment--and a claim that ADOC
discriminates against mentally ill prisoners.

Both the

plaintiffs’ Eighth Amendment and ADA claims therefore
place

at

issue

not

merely

ADOC’s

treatment

of

individual prisoners but also, much more importantly,
its policies and practices with respect to all mentally

5.
As
a
side
note,
the
fact
that
MHM’s
quality-assurance program is contractually mandated,
and the fact that its purported quality is apparently a
major selling point, suggest that the second Jaffee
factor--“whether the privilege is rooted in the
imperative need for confidence and trust”--weighs more
strongly in favor of rejecting the privilege in this
case than in Adkins.
Although it is conceivable that
the risk of self-critical disclosure might lead a
private hospital to consider cutting back on its
quality-assurance programs, it appears that if MHM
decided to do so, it would find itself out of business.
16

ill

prisoners. 6

As

other

courts

have

recognized,

“evidence of unconstitutional policies and customs may
not exist outside of the confines of [such reports],”
because

“unofficial,

defacto

practices

and

customs

within the jail are ... difficult to expose[,]” Estate
of Belbachir v. Cnty. of McHenry, 2007 WL 2128341, at
*6–*7 (N.D. Ill. July 25, 2007) (Mahoney, M.J.); see
also Johnson v. Cook Cty., 2015 WL 5144365, at *4 (N.D.
Ill.

Aug.

31,

2015)

medical-malpractice

(Gilbert,
cases,

M.J.)

where

the

(distinguishing
policy

that

6. Somewhat bizarrely, MHM argues that the audits
“do not address any issues related to the [ADA] as that
is not a function of the audits.”
MHM Brief in
Opposition (doc. no. 294) at 4.
Given that ADOC is
required to comply with that law, and that MHM stated
in its proposal to ADOC that its quality-assurance
program was designed to “ensure[] compliance with ADOC
expectations as well as [National Commission on
Correctional Health Care] and [American Correctional
Association] standards,” this assertion is, in itself,
noteworthy.
MHM Proposal (doc. no. 301-1) at 4; see
also MHM Contract (doc. no. 301-2) at 1 (noting, in a
prefatory clause, that “ADOC desires to provide mental
health care to inmates in accordance with applicable
law”). That aside, an assessment that is not designed
to determine compliance with a law or standard may
nonetheless be highly relevant to that issue.
17

motivates

medical

strongest”

and

peer-review

the

impact

privilege

of

the

is

“at

its

on

the

privilege

plaintiff’s ability to prove his case is at is weakest,
from cases alleging “systemic failures” and “widespread
practice[s]
“often

of

harder

distinguishing

deliberate
for

a

indifference,”

plaintiff

performance

to

evaluations

which

are

prove”;
of

and

individual

practitioners from reports which “focus[] primarily on
systems

and

processes”

(internal

quotation

marks

omitted)); Jenkins, 242 F.R.D. at 660 (recognizing that
peer-review

reports

may

contain

“nonmedical”

information regarding how prison staff identified and
responded to problems, which may “at least raise an
inference of jail customs or policies”).
Indeed, part of the plaintiffs’ contention is that
“MHM’s monitoring of [] care was either inadequate or
that

the

problems

found

were

grossly

understated.”

Plaintiffs’ Brief in Support (doc. no. 301) at 6.
they

point

out--and

as

any

18

judge

who

has

heard

As
a

prison-conditions case well knows--“monitoring of the
system of care is an essential part of the system of
care.

...

system

of

The audits are themselves part of the
care,

and

thus

relevant

aspect of the inadequacy of care.”

to

show

another

Id. at 6-7.

The

court need not take the plaintiffs’ word for it; MHM’s
own

proposal

says,

“It

tracking,

trending,

and

processes

can

efficient

and

health.”

MHM Proposal (doc. no. 301-1) at 4.

be

is

only

analysis

corrected

effective

to

outcomes

through
that

problem-prone

produce
for

monitoring,

the

inmate

most
mental
In a

one-off medical-malpractice case, the quality of the
quality-assurance process is often irrelevant, but in a
challenge to a massive system’s provision of care for
thousands

of

incarcerated

patients

(and

especially

given that it is a closed system), the efficacy of the
system’s

feedback

loop

and

its

capacity

for

self-correction are critical to this court’s assessment
of

whether

they

are

functioning

19

above

the

constitutional
focus

of

baseline.

our

See

id.

at

[quality-assurance]

140

(“A

Program

major
is

to

implement corrective actions developed as the result of
[quality-assurance]

reviews

and

to

monitor

the

effectiveness of the corrective actions in producing
the

intended

improvements.

If

these

goals

are

not

achieved, [quality-assurance] activities become only a
‘paper’ process.”).
Furthermore, with respect to their Eighth Amendment
claims, the plaintiffs must show not only that they
have been denied adequate mental-health care, but that
the defendants have been deliberately indifferent to
that

violation

of

their

rights,

meaning

that

they

“kn[e]w[] of and disregard[ed] an excessive risk to
inmate health or safety.”
825,

837

documents

Farmer v. Brennan, 511 U.S.

(1994).

Although

at

here,

issue

they

the

have

not

plaintiffs

seen

the

identify

a

number of ways in which they expect to rely on them in
attempting to prove deliberate indifference.

20

First,

to

the

extent

that

the

documents

were

reviewed by ADOC officials (the record is unresolved as
to whether and to what extent they were), the contents
could be used to show that prison officials were aware
of any problems the documents identify.
extent

that

there

were--as

allege--significant

disparities

audit

at

of

MHM

care

a

Second, to the

the
between

particular

plaintiffs
ADOC’s

facility

own

(which

revealed serious concerns) and MHM’s positive report to
the defendants based on its audit of the facility, this
evidence

could

support

the

assertion

that

ADOC

officials were deliberately indifferent in continuing
to rely on the reports provided by MHM, instead of
conducting further audits themselves.

Third, if ADOC

officials renewed MHM’s contract in 2013 (shortly after
the documents at issue were produced) 7 without reviewing

7. MHM also argues that these
relevant because they are outdated;
between 2010 and 2012.
However,
court’s view, recent enough to be
present state of mental-health care
(continued...)
21

documents are not
they were created
they are, in the
probative of the
being provided to

those

documents,

this

failure

could

help

to

show

disregard of the risk that plaintiffs allege MHM posed
to prisoners. 8
This evidence may also play an important role at
two other junctures in the litigation, one before a
merits

adjudication

and

one

after.

First,

these

peer-review documents might well be highly relevant to
the court’s determination as to whether to certify a
class or classes under Federal Rule of Civil Procedure
23(b)(2), which requires (as a prerequisite under Rule
23(a)) a finding that “there are questions of law or
fact common to the class[,]” as well as a finding that
“the party opposing the class has acted or refused to
act on grounds that apply generally to the class, so
prisoners in Alabama, especially in light of the
apparent infrequency of similar assessments.
To be
sure, however, the defendants are free to offer
evidence to show that things have changed.
8. To be clear, the court has not made findings of
fact or conclusions of law on any of these points.
Rather, it concludes only that this is potentially
vital evidence on which the plaintiffs are entitled to
rely in attempting to make their case.
22

that

final

injunctive

relief

...

respecting the class as a whole.”

is

appropriate

When determining

whether to certify a class, the court will need to
decide whether there is evidence that the problems the
named plaintiffs allege to have occurred have common
causes and common solutions--i.e., whether the causes
of those problems could feasibly be remedied en masse.
MHM’s

quality-assurance

records

may

be

valuable

evidence on this question, because their very purpose
is

to

identify,

from

the

view

systemic problems and solutions.

of

providers,

any

Second, if the court

finds liability, these records may prove essential to
the crafting of an effective remedy; although the court
could

potentially

appoint

a

monitor

to

oversee

the

implementation of new policies or practices and report
the

results

for

the

court’s

consideration,

MHM’s

documents would represent the only available evidence
of which remedial measures have already been tried,
which have worked, and which have not.

23

2.

Public Good

MHM also argues that the Adkins court’s decision
turned on its view that lawsuits challenging employment
discrimination (which the court repeatedly generalizes
to “federal civil rights cases”) serve important public
interests.
challenging

488 F.3d at 1329.
allegedly

But so too do lawsuits

unconstitutional

mental-health

care in prison and the alleged discrimination against,
and failure to provide reasonable accommodations for,
mentally ill prisoners.
district

court

that

has

“[N]early every United States
addressed

the

issue

in

the

context of section 1983 litigation brought on behalf of
jail or prison inmates has rejected the assertion of
privilege.”

Jenkins, 242 F.R.D. at 659 (citing cases) 9;

9. The Jenkins court identified one case involving
at Eighth Amendment prisoner civil rights claim in
which the court found the existence of a medical
peer-review
privilege--Hadix
v.
Caruso,
2006
WL
2925270, at *2 (W.D. Mich. Oct. 6, 2006) (Enslen,
J.)--but did not follow it.
Jenkins, 242 F.R.D. at
660-61 (noting “the extreme difficulty prison inmates
(continued...)
24

see also Francis v. United States, 2011 WL 2224509, at
*4

(S.D.N.Y.

May

31,

2011)

(Fox,

M.J.)

(“[T]here

appears to be consensus among lower courts and in other
circuits

that

no

federal

privilege

protects

medical

peer review materials in civil rights [actions].”).
The importance of public scrutiny of medical and
mental-health care is greater in the prison and jail
contexts than in an ordinary medical-malpractice case,
to which MHM unconvincingly analogizes this case.

See

Agster v. Maricopa Cnty., 422 F.3d 836, 839 (9th Cir.
2005) (“Whereas in the ordinary hospital it may be that

often face in obtaining evidence of jail customs or
policies,”
and
in
that
light
rejecting
Hadix’s
contention that “an evaluation of the prisoner’s
medical records was enough to satisfy the prisoner’s
discovery requests”; and concluding that “[t]o the
extent that Hadix has any persuasive value, it
disappears in the context of a section 1983 claim
involving more than mere malpractice”). Another court
has rejected Hadix as well.
See Lowe v. Vadlamudi,
2012 WL 3887177, at *5 (E.D. Mich. Sept. 7, 2012)
(Lawson,
J.)
(distinguishing
and
rejecting
the
conclusion in Hadix on the ground that, in Hadix, “the
court found that disclosure of such records was not
necessary in part because an independent medical
monitor had been appointed in that case”).
25

the first object of all involved in patient care is the
welfare

of

the

patient,

safety

and

efficiency

goals

affecting

circumstances,

the

it

is

in

of

the

the

care

prison

prison

context

may

operate

offered.

peculiarly

the

In

important

as

these

that

the

public have access to the assessment by peers of the
care

provided.

accountability,

Given
which

the

seem

demands

likely

to

for

public

guarantee

that

such reviews take place whether they are privileged or
not, we are not convinced by the County's argument that
such reviews will cease unless kept confidential by a
federal peer review privilege.”); see also Williams v.
City of Phila., 2014 WL 5697204, at *4 (E.D. Pa. Nov.
4, 2014) (Surrick, J.) (agreeing, and distinguishing a
prison

civil-rights

case

from

a

“medical-malpractice

action in which the plaintiff seeks monetary damages
for the inadequate care of a prison doctor”).
The court’s conclusion in Adkins rests in no small
part

on

the

general

“presumption

26

against

privileges

which may only be overcome when it would achieve a
public

good

principle

of

transcending

the

utilizing

all

normally

predominant

rational

means

for

ascertaining truth[,]” “a high standard, [such that]
only the most compelling candidates will overcome the
law’s

weighty

dependence

relevant evidence.”

on

the

availability

of

488 F.3d at 1328 (citations and

internal quotation marks omitted).

This presumption is

at its strongest in civil-rights cases.

See Estate of

Belbachir, 2007 WL 2128341, at *6 (“The interest in
protecting the civil rights of individuals has led the
courts to take caution before recognizing privileges in
federal civil rights actions, where any assertion of
privilege must overcome the fundamental importance of a
law

meant

to

protect

citizens

from

unconstitutional

state action.” (citation and internal quotation marks
omitted)).

3.

Protective Orders

27

One other element of the analysis in Adkins further
supports
court

its

application

explained

that

defendants”--that

is,

to

the

this

case.

“concerns

that

The

advanced

performance

Adkins
by

the

evaluations

would be less candid and that patient confidentiality
might be compromised--“may capably be served in the
absence of a medical peer review privilege[,]” because
“district courts are well-equipped with a variety of
mechanisms to ensure that peer review materials, once
furnished

through

wayward hands....”
mechanisms

Adkins

discovery,

are

not

compromised

488 F.3d at 1329-30.
suggests

is

the

by

One of the

protective

order.

This court has already entered one such order on MHM’s
motion,

which

confidentiality.

addresses

the

concern

about

See Order (doc. no. 279).

patient
Moreover,

as discussed in greater detail below, this court will
enter

an

additional

protective

order

conditionally

deeming the documents at issue confidential, in order
to ensure that they are not disclosed to anyone not

28

involved in, or used for any purposes other than, this
litigation.

B.

Non-Party Status

One final point bears mention: MHM has vehemently
insisted that its status as a non-party should alter
the privilege analysis in its favor.
this

argument

for

several

reasons.

The court rejects
First,

despite

having more than one opportunity to brief the issue,
MHM has failed to provide any relevant citation for
this proposition; the court has been unable to find any
support for it in the case law. 10

10. The only appellate reference this court has
been able to find even mildly supportive of this
position is an old case out of the Ninth Circuit, Dart
Indus. Co., Inc. v. Westwood Chem. Co., Inc., 649 F.2d
646 (9th Cir. 1980). Two judges on the panel suggested
that the “‘necessary’ restriction on discovery may be
broader when a non-party is the target of discovery.”
Id. at 649 (emphasis added). In so doing, they cited a
district court decision, Collins & Aikman Corp. v. J.P.
Stevens & Co., Inc., 51 F.R.D. 219, 221 (D.S.C. 1971)
(Hemphill, J.), for the proposition that non-party
discovery should be more limited in part to protect
third
parties
from
“disclosure
of
confidential
(continued...)
29

Second, the defendants appear to have the right to
obtain

the

documents,

and

the

plaintiffs

could

therefore have requested that the defendants produce
them.

See

subpoenas

Fed.

may

R.

Civ.

properly

P.

34(a)(1)

request

(stating

documents

“in

that
the

responding party’s possession, custody, or control”).
The defendants might well have agreed to produce them
without asserting any privilege; they were invited to
file a brief opposing the motion to compel but did not
do so.

In any event, the ordinary, broad relevance

documents.”
However, Collins & Aikman Corp. was
decided one year after the Federal Rules of Civil
Procedure were first amended to allow discovery from
non-parties, and its discussion on this point was
prefaced by an acknowledgement that “it is not at this
point clear whether the same broad test for relevance
of documents will be utilized with respect to third
parties.” Id. It does not appear that this view has
gained a foothold since. See also Wright & Miller, 9A
Fed. Prac. & Proc. Civ. § 2459 (3d ed.) (concluding
that although a few courts have “suggest[ed] that a
different test of relevancy might apply when the
subpoena is directed to a person who is not a party in
the action, ... there is no basis for this distinction
in the rule’s language”).
30

standard set forth in Federal Rule of Civil Procedure
26(b)(1) would indisputably apply to such a request. 11
Finally, there is a more fundamental problem with
MHM’s argument concerning its non-party status.

MHM is

not formally a party to this suit, but it is hardly a
peripheral

player

whose

records

are

incidentally

relevant to the case; rather, it is a major provider of
correctional mental-health services, and its contract
with

ADOC

litigation.

explicitly

anticipates

its

involvement

in

See MHM Contract (doc. no. 301-2) at 5.

In fact, while MHM is not a governmental entity, it is

11. If production were burdensome, MHM would,
perhaps, have a colorable argument that the defendants
should bear that burden.
But this dispute involves
only a few hundred pages of already compiled documents,
which MHM volunteered to submit to the court for in
camera review.
It would presumably be no less
burdensome for MHM to send them to the defendants for
production to the plaintiffs than for MHM to simply
produce them.

31

serving

a

quintessentially--constitutionally

mandated--state function. 12
For these reasons, no higher standard of relevance
applies to requests for production by MHM.

Further,

even if a higher standard did apply, the court has
concluded,

based

upon

an

in

camera

review

of

the

documents, that these documents are highly relevant.

C.

Federal Privilege Statutes

Although MHM nowhere claims that the documents at
issue fall within any federal statutory privilege, a
brief discussion of the two federal statutes related to
medical peer review helps to illustrate why recognizing
12. In the Eleventh Circuit, private prison
contractors are not subject to liability under Title II
of the ADA, see Edison v. Douberly, 604 F.3d 1307 (11th
Cir. 2010), so some of the claims to which these
documents are relevant could not lie against MHM.
It
would be profoundly unjust, however, if a state
department of corrections could insulate itself from
liability by ensuring that documentation of the medical
or mental-health care provided prisoners was created by
private corporations which were both not subject to
suit and then, by dint of that non-party status,
protected from discovery.
32

a federal common-law peer-review privilege beyond the
narrow bounds of the limited privilege already codified
would be inappropriate.
The Supreme Court has made clear that courts should
be

particularly

common-law

reluctant

privileges

in

to

cases

recognize
where

federal

Congress

has

considered enacting such a privilege and declined to do
so.

See Univ. of Pa. v. E.E.O.C., 493 U.S. 182, 189

(1990)

(rejecting

federal

the

common-law

cautioning

courts

University’s
peer-review

to

be

assertion

of

privilege,

“especially

a
and

reluctant

to

recognize a privilege in an area where it appears that
Congress has considered the relevant competing concerns
but has not provided the privilege itself”).
Congress has passed two major pieces of legislation
related to medical peer review: the Health Care Quality
Improvement
§ 11101-11152,

Act
and

of
the

1986

(HCQIA),

Patient

33

Safety

42

U.S.C.

and

Quality

Improvement

Act

of

2005

(PSQIA),

42

U.S.C.

299b-21-299b-26.
As

for

the

significant
broad

HCQIA,

consistency

privilege,

courts
that

Congress,

have

“[f]ar
in

concluded
from

with

creating

enacting

the

a

HCQIA,

carefully crafted a very specific privilege, applicable
to peer review material submitted to the Secretary [of
Health and Human Services] pursuant to the dictates of
the

mandatory

reporting

provisions

of

that

statute.

That is as far as Congress went, and that is as far as
this

Court

therein.”

should

apply

the

privilege

contained

Nilavar v. Mercy Health Sys.-W. Ohio, 210

F.R.D. 597, 602 (S.D. Ohio 2002) (Rice, J.); see also
In re Admin. Subpoena Blue Cross Blue Shield of Mass.,
Inc.,

400

F.

Supp.

2d

386,

290-91

(D.

Mass.

2005)

(Saris, J.); Johnson v. Nyack Hosp., 169 F.R.D. 550,
560 (S.D.N.Y. 1996)
Gen.

Hosp.,

138

(Kaplan, J.);

F.R.D.

691,

(Conti, J.).

34

692

Teasdale v. Marin
(N.D.

Cal.

1991)

Two decades later, in the PSQIA, Congress again
created a “unique and narrow” peer-review privilege for
“work product prepared by a patient safety organization
or

prepared

for,

organization.”

and

reported

to,

a

patient

safety

Schlegel v. Kaiser Family Found. Health

Plan, 2008 WL 4570619, at *3 (E.D. Cal. Oct. 14, 2008)
(Mueller, M.J.).

Although the scope of this privilege

appears broad at first blush, it is in fact seriously
circumscribed

by

organization”:
Secretary

of

an
the

the

definition

organization
Department

of

“patient

certified

of

Health

safety
by

and

the
Human

Services the “mission and primary activity of [which]
are to conduct activities that are to improve patient
safety and the quality of health care delivery” and
which “has bona fide contracts ... with more than 1
provider for the purpose of receiving and reviewing
patient

safety

§ 299b-24(b)(1).

work
There

product.”
are

currently

42
81

U.S.C.
certified

patient safety organizations; MHM, however, is not one

35

of them, and there is no indication that MHM reports to
a

certified

patient

safety

organization.

See

“Federally-Listed PSOs,” Agency for Healthcare Research
and

Quality,

https://pso.ahrq.gov/listed.

MHM’s

quality-assurance mechanisms are, as it has repeatedly
noted, purely internal; the privilege created by the
PSQIA covers a particular form of (certified) external
review.
As

another

court

has

recently

recognized,

the

PSQIA’s “drafters made clear that the statute was not
intended

to

information

provide
and

blanket

communications

control purposes.”
(citation

a

omitted)

protection

generated

for

for

all

quality

Johnson, 2015 WL 5144365, at *6
(noting

that

the

statute

itself

“stress[es]” that information that is not developed for
the

purpose

of

reporting

to

a

patient

safety

organization does not become privileged merely because
it is in fact reported to one, and citing 42 U.S.C.
§ 299-b21(7)(B) to that effect).

36

The PSQIA is designed

to

incentivize

a

particular

form

of

external

quality-assurance review that Congress deems optimal.
It

sets

up

a

organizations

certification

that

provide

that

scheme
sort

to
of

recognize
review

and

provides a strong incentive for providers to employ one
of

them--namely,

privilege

to

submitted

to

the

other
a

privilege.

Extending

the

quality-assurance

documents

not

certified

organization

would

destroy

this incentive and seriously undermine the purpose of
Congress’s certification scheme.
Given the Supreme Court’s warning that courts must
be

hesitant

outside

to

the

create
bounds

federal

common-law

privileges

of

carefully

delineated

a

Congressional pronouncement, and in light of Congress’s
enactment of the HCQIA and PSQIA, MHM’s assertion of a
broad

federal

common-law

quality-assurance

privilege

must be rejected. 13

13. It is true that, “since Congress enacted the
PSQIA,
[a
few]
federal
[district]
courts
have
recognized some form of a medical peer review privilege
(continued...)
37

under federal common law.”
Tep v. Southcoast Hosps.
Grp., Inc., 2014 WL 6873137, at *5 (D. Mass. Dec. 4,
2014) (Sorokin, J.).
These cases, however, differ in
significant respects from the case before the court.
Nearly all of them involve medical malpractice claims
brought
under
the
Federal
Tort
Claims
Act
(FTCA)--quintessentially private damages actions in
which no public or federal interest is implicated,
quite unlike Eighth Amendment and ADA claims--and in
some instances involve external review processes by
organizations akin to patient safety organizations but
not so certified, quite unlike the purely internal
review process employed by MHM.
See Tep, 2014 WL
6873137, at *3-*5 (recognizing a medical peer-review
privilege in a case alleging violations of the
Emergency Medical Treatment and Active Labor Act
(EMTALA) and state malpractice claims); Sevilla v.
United States, 852 F. Supp. 2d 1057, 1058-69 (N.D. Ill.
2012) (Cole, J.) (recognizing the privilege in an FTCA
medical malpractice case); Francis, 2011 WL 2224509, at
*4-*6
(recognizing the privilege in an FTCA dental
malpractice case in light of the fact that the
documents at issue were provided to an external entity,
the New York State Department of Health, “which,
although not listed as a [patient safety organization],
meets many of the same qualifying criteria for [patient
safety organizations] and performs similar functions,
which Congress clearly intended to encourage”); KD ex
rel. Dieffenbach v. United States, 715 F. Supp. 2d 587,
590-98 (D. Del. 2010) (Thynge, M.J.) (recognizing the
privilege in an FTCA medical malpractice case in light
of the fact that the documents at issue were provided
to external entities, review bodies within the National
Institutes of Health, which, “[w]hether or not [they]
meet the technical requirements for listing as [patient
safety
organizations,]
clearly
perform
the
same
functions Congress intended the PSQIA to encourage”).
(continued...)
38

D.
Because
protected

the

evidence

merits

withheld

either

by

quality-assurance
disclosure.

PAIMI

a

by

state

privilege,

it

MHM
or

is

is

not

federal

subject

to

Therefore, the court need not reach the

of

the

parties’

arguments

Protection

and

Advocacy

for

as

to

Individuals

whether
with

the

Mental

Illness Act (PAIMI) provides an independent basis for
compelling

disclosure

of

the

evidence

at

issue. 14

This court joins others in concluding that although the
PSQIA
somewhat
expanded
the
federal
statutory
peer-review privilege, it does not undermine the
Eleventh
Circuit’s
conclusion
that
no
federal
common-law
peer-review
privilege
applies
in
civil-rights cases.
See, e.g., Awwad v. Largo Med.
Ctr., Inc., 2012 WL 1231982, at *1 & n.2 (M.D. Fla.
Apr.
12,
2012)
(McCoun,
M.J.)
(rejecting
the
defendant’s
suggestion
that
Adkins
“should
be
revisited” in light of the PSQIA and concluding that
Adkins remained binding).
14. Hence, the court need not address MHM’s
procedural
quibbles--namely,
that
the
plaintiffs’
subpoena did not constitute an appropriate request for
records pursuant to PAIMI because the subpoena did not
cite that statute and because counsel employed by the
(continued...)
39

However, as PAIMI provides additional support for the
court’s conclusion, a brief discussion of its relevance
is warranted.
As the plaintiffs point out, Congress has not only
declined to privilege, but affirmatively mandated the
disclosure of, at least some of the records that MHM
has withheld.

PAIMI explains that P&As such as ADAP

are designed to “protect and advocate the rights of
such

individuals

through

activities

to

ensure

the

enforcement of the Constitution and Federal and State
statutes;
neglect

of

and

investigate

individuals

incidents

with

mental

of

abuse

illness

if

and
the

incidents are reported to the system or if there is

Southern Poverty Law Center (SPLC), rather than ADAP
itself, signed the subpoena.
In any event, these
arguments are dubious; although it is a non-party, MHM
has participated in this litigation enough to be well
apprised of the fact that Alabama’s P&A, ADAP, is both
a party to this litigation and co-counsel with SPLC.
Surely
MHM,
a
leading
corporate
provider
of
correctional mental-health services, is also well aware
that PAIMI authorizes P&As to access mental-health
records in the course of their work.
40

probable cause to believe that the incidents occurred.”
42 U.S.C. § 10801(b)(2).
Congress apparently considered access to records to
be essential to these advocacy and investigatory roles,
because it specifically provided P&As “access to all
records of” a variety of categories of individuals with
mental illness.
the

courts

of

42 U.S.C. § 10805(a)(4).
appeals

to

address

the

As all of
issue

have

concluded, “all records” of an individual means what it
says; PAIMI authorizes access even to quality-assurance
records

otherwise

protected

by

state-law

privileges.

See Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc.
Servs. Admin., 603 F.3d 365, 383 (7th Cir. 2010) (en
banc); Prot. & Advocacy for Person with Disabilities v.
Mental Health & Addiction & Advocacy Servs., 448 F.3d
119, 128 (2d Cir. 2006) (opinion of Sotomayor, J.); Mo.
Prot. & Advocacy Servs. v. Mo. Dep’t of Mental Health,
447 F.3d 1021, 1023 (8th Cir. 2006); Ctr. for Legal
Advocacy v. Hammons, 323 F.3d 1262 (10th Cir. 2003);

41

Pa. Prot. & Advocacy, Inc. v. Houstoun, 228 F.3d 423,
428 (3d Cir. 2000) (opinion of Alito, J.).
Moreover, PAIMI expressly preempts state privilege
law.

See 42 U.S.C. § 10806(b)(2)(C) (“If the laws of a

State prohibit an eligible system from obtaining access
to the records of individuals with mental illness in
accordance

with

[the

provision

in

PAIMI

authorizing

such access, that records-access provision] shall not
apply to such system before [a grace period of up to
two years].”); Pa. Prot. & Advocacy, Inc., 228 F.3d at
428 (“PA[I]MI would preempt a Pennsylvania law that
prohibited the disclosure of the peer review reports to
[the

P&A].”).

Further,

Federal

Rule

of

Evidence

501--which instructs courts that “[t]he common law ...
governs

a

claim

of

statute’]

provides

court

recognize

to

privilege

unless

otherwise”--would
the

[‘a

not

applicability

of

federal

permit
a

this

federal

common-law peer-review privilege to documents which a
federal statute says must be disclosed.

42

The court need not and will not dive into the weeds
in order to determine whether all of the hundreds of
pages of quality-assurance documents at issue could be
obtained by ADAP under PAIMI. 15

For present purposes,

15. MHM also argues that PAIMI does not cover the
records at issue here because a subsection of the
statute defines the term “records,” and the documents
at issue do not fall within that definition.
But the
documents at issue do appear to fall within its bounds
and, furthermore, the provision that MHM cites is a
non-exhaustive list.
The section of the statute at issue is devoted to
the confidentiality of mental-health records obtained
by P&As; the relevant subsection says that, “As used in
this section, the term ‘records’ includes reports
prepared by any staff of a facility rendering care and
treatment or reports prepared by an agency charged with
investigating reports of incidents of abuse, neglect,
and injury occurring as such facility that describe
incidents of abuse, neglect, and injury occurring at
such facility and the steps taken to investigate such
incidents, and discharge planning records.” 42 U.S.C.
§ 10806(b)(3)(A).
However, the requested documents do relate to
alleged neglect (and potentially abuse), which are
defined extremely broadly in the statute.
See 42
U.S.C.
§ 10802(5)
(“The
term
‘neglect’
means
a
negligent act or omission by any individual responsible
for providing services in a facility rendering care or
treatment which caused or may have cause injury or
death to a[n] individual with mental illness or which
(continued...)
43

the statute is more generally instructive: Congress, by
authorizing
including

otherwise

manifested
critical

unfettered

its

to

view

the

access

protected
that

efficacy

to

“all

records,”

peer-review

documents,

access
of

to

efforts

such
to

records
protect

is
and

placed a[n] individual with mental illness at risk of
injury or death, and includes an act or omission such
as the failure to establish or carry out an appropriate
individual program plan or treatment plan for a[n]
individual with mental illness, the failure to provide
adequate nutrition, clothing, or health care to a[n]
individual with mental illness, or the failure to
provide a safe environment for a[n] individual with
mental illness, including the failure to maintain
adequate numbers of appropriately trained staff.”);
§ 10802(1) (“The term ‘abuse’ means any act or failure
to act by an employee of a facility rendering care or
treatment which was performed, or which was failed to
be performed, knowingly, recklessly, or intentionally,
and which cause, or may have caused, injury or death to
a[n] individual with mental illness[.]”).
Moreover, the use of the word “includes” in the
provision MHM cites indicates that what follows is not
an exclusive list of what constitutes “records.”
See
United States v. Whiting, 165 F.3d 631, 633 (8th Cir.
1999) (“When a statute uses the word ‘includes’ rather
than ‘means’ in defining a term, it does not imply that
items not listed fall outside the definition.”); United
States v. Mass. Bay Transp. Auth., 614 F.2d 27, 28 (1st
Cir. 1980) (“‘[I]ncludes’ is not a finite word of
limitation; its use destroys the basis for implying the
negative.”).
44

advocate for the mentally ill.

Moreover, the statute

as a whole reflects Congress’s view that such efforts
promote important federal interests.
further

support

recognize

a

for

federal

the

court’s

common-law

PAIMI serves as
decision

not

to

quality-assurance

or

peer-review privilege that would undermine the ability
of

Alabama’s

P&A

to

determine

whether

mentally

ill

state prisoners are being mistreated and, if so, to
seek remediation.

III.

Confidentiality After Production

Finally, MHM argues that, even if the court compels
disclosure of the records in question, it should issue
a

protective

order

deeming

them

confidential

and

limiting access to the records to ADAP, due to its
status as a P&A.

The court declines to enter the

sweeping

requests,

order

MHM

but

will

enter

a

more

limited protective order pursuant to Federal Rule of
Civil Procedure 26(c).

45

MHM’s

contention

that

any

disclosure

of

its

peer-review records should be limited to ADAP was based
on its belief that only a P&A (and not its co-counsel)
would be entitled to view records obtained pursuant to
PAIMI.
the

Whether or not that understanding is correct,

court’s

decision

privilege--and

not

here
on

relies

the

on

the

disclosure

lack

of

mandate

a
in

PAIMI--so an order that would grant exclusive access to
ADAP, and seriously curtail the plaintiffs’ ability to
use this evidence, is not appropriate.
However, a more limited protective order will not
significantly

hinder

simultaneously

the

recognizing

the

plaintiffs
“important

while

interests”

served by preventing public disclosure of peer-review
documents.
medical

Adkins,
provider’s

488

F.3d

interests

at

1328
in

(describing
a

a

peer-review

privilege, including interests in encouraging candor in
the

peer-review

process,

maintaining

patient

confidentiality, and avoiding malpractice litigation).

46

While

countervailing

interests

in

considerations

keeping

the

outweigh

documents

out

MHM’s

of

this

litigation entirely, there is at this time no apparent
need for them to be more widely released.

At least for

the time being, the plaintiffs’ ability to use this
evidence in developing and presenting their case will
not be prejudiced by the entry of a protective order
conditionally

deeming

confidential.

the

documents

at

issue

The court will revisit this protective

order if circumstances arise, in the course of trying
or

deciding

this

case,

that

justify

the

public

disclosure of some or all of the documents at issue.
The

question,

then,

is

to

documents should be disclosed.

whom

exactly

these

As ordered below, MHM

and the parties are to draft and submit to the court a
proposed

protective

order,

taking

into

account

the

following issues:
First, plaintiffs’ counsel (including ADAP, which
is

representing

itself

as

a

47

party)

are

entitled

to

access

these

documents.

Second,

and

for

obvious

reasons, the named prisoner plaintiffs should not have
access to these documents, absent some overriding need
not now apparent.

Third, the defendants should receive

any of the documents they do not already have.

Fourth,

as for defense counsel: MHM has expressed concern that
if counsel for ADOC obtains the documents, they could
be

shared

with

Corizon

Correctional

Healthcare,

a

competitor of MHM’s which is represented (including as
a

non-party

in

the

discovery

portion

of

this

litigation) by one of the same firms employed by ADOC.
The court is confident that the protective order can be
crafted in such a way as to mitigate this concern.
Fifth, the parties and MHM should identify which of the
parties’ experts should have access to the documents
for purposes of rendering their opinions; they should
likewise identify which deponents employed by ADOC and
MHM should be allowed to view (and be questioned about
the contents of) the documents.

48

With respect to this

final point, the protective order should permit any
expert or deponent to whose opinion or testimony the
documents are reasonably relevant to view them, and
prohibit disclosure otherwise.

* * *

Because the court concludes, based on its in camera
review of the documents that MHM has withheld, that the
documents

are

protected

privilege

MHM

invoked

common-law

or

neither
nor

statutory

by

by
any

the

state-law

other

federal

quality-assurance

or

peer-review privilege, it is ORDERED as follows:
(1) The plaintiffs’ motion to compel (doc. no. 290)
is granted.
(2) MHM Correctional Services, Inc., is promptly to
produce, in accordance with the protective order soon
to

be

entered,

the

documents

identified

in

its

privilege log dated December 23, 2015 (doc. no. 290-3),
by

the

following

reference
49

numbers

and

(inclusive)

ranges:

14,

16,

45-68,

71-82,

96-112,

127-138,

and

150-162.
(3) Within seven days of the date of today’s order,
the parties and MHM are to confer and submit a joint
proposed

protective

opinion.

If,

after

order

as

making

outlined
good-faith

in

the

above

efforts,

the

parties and MHM cannot reach an agreement as to the
precise terms of that order, they may submit separate
proposals.
DONE, this the 27th day of January, 2016.
/s/ Myron H. Thompson____
UNITED STATES DISTRICT JUDGE