The Estate of Ruben Nunez et al v. County of et al

Filing 189

ORDER on Joint Discovery Motion Presenting Plaintiffs' Motion to Compel Production of Documents (ECF No. 150 ). Signed by Magistrate Judge Mitchell D. Dembin on 9/11/2017. (knb)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 THE ESTATE OF RUBEN NUNEZ by and through its successor-ininterest LYDIA NUNEZ, ALBERT NUNEZ, and LYDIA NUNEZ, Plaintiff, 14 15 v. 16 CORRECTIONAL PHYSICIANS MEDICAL GROUP, INC., et al., 17 18 19 20 21 Case No.: 16cv1412-BEN-MDD ORDER ON JOINT DISCOVERY MOTION PRESENTING PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS [ECF No. 150] Defendants, Third-Party Plaintiffs, v. CORRECTIONAL PHYSICIANS MEDICAL GROUP, INC., et al., Third-Party Defendants. 22 23 Before the Court is the parties’ Joint Discovery Motion filed on August 24 7, 2017. (ECF No. 150). The joint motion presents Plaintiffs’ motion to 25 compel production of documents from Defendant Patton State Hospital 26 (“Patton”). (Id.). The dispute involves disclosure of documents created by 27 Patton pertaining to meetings held following the death of Ruben Nunez. 1 16cv1412-BEN-MDD 1 2 LEGAL STANDARD The Federal Rules of Civil Procedure generally allow for broad 3 discovery, authorizing parties to obtain discovery of “any nonprivileged 4 matter that is relevant to any party’s claim or defense and proportional to the 5 needs of the case….” Fed. R. Civ. P. 26(b)(1). “Information within the scope 6 of discovery need not be admissible in evidence to be discoverable.” Id. 7 District courts have broad discretion to determine relevancy for discovery 8 purposes. See Hallett v. Morgan, 296 F. 3d 732, 751 (9th Cir. 2002). 9 Similarly, district courts have broad discretion to limit discovery where the 10 discovery sought is “unreasonably cumulative or duplicative, or can be 11 obtained from some other source that is more convenient, less burdensome, or 12 less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 13 A party may request the production of any document within the scope of 14 Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response 15 must either state that inspection and related activities will be permitted as 16 requested or state an objection to the request, including the reasons.” Id. at 17 34(b)(2)(B). If the responding party chooses to produce responsive 18 information, rather than allow for inspection, the production must be 19 completed no later than the time specified in the request or another 20 reasonable time specified in the response. Id. An objection must state 21 whether any responsive materials are being withheld on the basis of that 22 objection. Id. at 34(b)(2)(C). An objection to part of a request must specify 23 the part and permit inspection or production of the rest. Id. 24 25 26 27 DISCUSSION Request for Production (“RFP”) No. 21 In this RFP, Plaintiffs request documents generated, produced, written, drafted, edited, compiled, or used by any Patton employee in preparation, 2 16cv1412-BEN-MDD 1 anticipation, or utilization “at the meeting” to review the circumstances of 2 Nunez’s death. (ECF No. 150 at 3). While this RFP is vaguely worded, “the 3 meeting” appears to be a January 2016 Morbidity/Mortality Interdisciplinary 4 Review Committee (“MIRC”) meeting. 5 Defendant Patton has objected, stating that they are entitled to official 6 information, deliberative process, and self-critical analysis privileges. On 7 July 7, 2017, Defendants filed a privilege log and declaration. (ECF No. 150- 8 4, 150-5). The Privilege Log identifies these three documents as (1) Internal 9 Interdiscipline/Service Review of Death Summary; (2) DSH External 10 Mortality Review; and (3) E-mail to M. Gomes re: MIRC discussions. (ECF 11 No. 150-4). 12 According to Dr. Kayla Fisher, Medical Director for the Department of 13 State Hospitals – Patton State Hospital, the primary predominant purpose of 14 a MIRC meeting is to “explore ways to reduce morbidity or mortality, and/or 15 improve patient outcomes.” (ECF No. 150-5 at ¶2). In her declaration, Dr. 16 Fisher, explains why Defendants believe the three documents fall within the 17 scope of the three claimed privileges. 18 1. Official Information Privilege 19 “Federal common law recognizes a qualified privilege for official 20 information.” Sanchez v. City of Santa Ana, 936 F.2d 1027, 1033 (9th 21 Cir.1990) (citing Kerr v. United States Dist. Ct. for the N. Dist. of Cal., 511 22 F.2d 192, 198 (9th Cir.1975)). The discoverability of official documents 23 should be determined under the “balancing approach that is moderately pre- 24 weighted in favor of disclosure.” Kelly v. City of San Jose, 114 F.R.D. 653, 25 661 (N.D. Cal. 1987). The party asserting the privilege must properly invoke 26 the privilege by making a “substantial threshold showing.” Id. at 669. To 27 meet this showing, Defendants “must submit a declaration or affidavit from a 3 16cv1412-BEN-MDD 1 responsible official with personal knowledge of the matters to be attested to 2 in the affidavit.” Dowel v. Griffin, 275 F.R.D. 613, 616 (S.D. Cal. Aug. 17, 3 2011) (quoting Soto v. City of Concord, 162 F.R.D. 603, 613). Specifically, 4 “[i]n order to fulfill the threshold requirement, the party asserting the 5 privilege must submit a declaration or affidavit from a responsible official 6 with personal knowledge of the matters to be attested to in the affidavit. The 7 affidavit must include: (1) an affirmation that the agency generated or 8 collected the material in issue and has maintained its confidentiality; (2) a 9 statement that the official has personally reviewed the material in question; 10 (3) a specific identification of the governmental or privacy interests that 11 would be threatened by disclosure of the material to plaintiff and/or his 12 lawyer; (4) a description of how disclosure subject to a carefully crafted 13 protective order would create a substantial risk of harm to significant 14 governmental or privacy interests, and (5) a projection of how much harm 15 would be done to the threatened interests if disclosure were made.” Soto, 162 16 F.R.D. at 613 (quoting Kelly, 114 F.R.D. at 670). If the nondisclosing party 17 does not meet this initial burden of establishing cause to apply the privilege, 18 the court must order disclosure of the documents; if the party meets this 19 initial burden, the court generally conducts an in camera review of the 20 material and balance each party's interests. Soto, 162 F.R.D. at 613; Kelly, 21 114 F.R.D. at 671. 22 Here, Patton has failed to meet the threshold burden because they have 23 not satisfactorily declared requirements 3 through 5. The declaration did not 24 identify the specific governmental or privacy interest that would be 25 threatened by disclosure of these three documents. Further, Dr. Fisher’s 26 declaration has not described a risk to significant governmental or privacy 27 interests that would not be overcome through a protective order. Rather, Dr. 4 16cv1412-BEN-MDD 1 Fisher’s opinion states that disclosure would “erode integrity and security of 2 the protected documents” and “affect the morale” of those who took part in 3 creating or using the documents in question. (ECF No. 150-5 at ¶7). That 4 there might be lower morale among the unnamed MIRC participants if these 5 documents were disclosed under a protective order does not rise to the level of 6 harm to an unidentified significant governmental or privacy interest. 7 Since Patton has not met their burden, the Court is not required to 8 conduct an in camera review and may require production of the requested 9 documents. As such, Defendants’ objection on the basis of official information 10 privilege is OVERRULED. 11 2. Deliberative Process Privilege 12 Patton argues that as a government agency, the deliberative process 13 privilege allows for open and robust discussion among hospital staff and 14 applies here to keep the documents used in preparation for and about the 15 MIRC meeting unavailable for discovery. Plaintiff argues the deliberative 16 process privilege does not apply because Patton failed to make the threshold 17 showing required to invoke the privilege. 18 The deliberative process privilege permits governmental agencies to 19 withhold documents that “reflect[] advisory opinions, recommendations and 20 deliberations comprising part of a process by which governmental decisions 21 and policies are formulated.” Hongsermeier v. C.I.R., 621 F.3d 890, 904 (9th 22 Cir. 2010) quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). 23 The purpose of the deliberative process privilege is to “promote frank and 24 independent discussion among those responsible for making governmental 25 decisions,” and ultimately to “protect the quality of agency decisions.” F.T.C. 26 v. Warner Communications, Inc., 742 F.2d 1156, 1161 (9th Cir. 1994). In 27 order to be protected by the privilege, a document must be both 5 16cv1412-BEN-MDD 1 “predecisional” and “deliberative.” Id. A document is “predecisional” if it was 2 “prepared in order to assist an agency decision maker in arriving at his 3 decision.” Hongsermeier, 621 F.3d at 904. A document is “deliberative” if its 4 disclosure would “expose an agency’s decision making process in such a way 5 as to discourage candid discussion within the agency and thereby undermine 6 the agency’s ability to perform its functions.” Id. “[W]henever the unveiling 7 of factual materials would be tantamount to the ‘publication of the evaluation 8 and analysis of the multitudinous facts’ conducted by the agency, the 9 deliberative process applies.” Nat’l Wildlife Fed’n v. U.S. Forest Serv., 861 10 F.2d 1114, 1119 (9th Cir. 1988) (citation omitted). 11 The deliberative process privilege is a qualified privilege. Warner 12 Communications, 742 F.2d at 1161. A party may obtain materials protected 13 by the privilege if the need for the information overrides the government’s 14 interest in non-disclosure. Id. The following factors are considered in 15 deciding whether to override the privilege: “1) the relevance of the evidence; 16 2) the availability of other evidence; 3) the government’s role in the litigation; 17 and 4) the extent to which disclosure would hinder frank and independent 18 discussion regarding contemplated policies and decisions.” Id. 19 Here, through Dr. Fisher’s declaration, Patton has not indicated how 20 the documents they are seeking to withhold directly contribute to the 21 formulation of policy. The declaration makes no mention of formulating 22 governmental decisions in the wake of the MIRC meeting. Further, Patton 23 does not assert that MIRC meetings are geared toward policymaking at all or 24 that they are attended by policymakers. Dr. Fisher simply states that a 25 MIRC session’s predominant purpose is exploring ways to reduce morbidity 26 and mortality and/or improving patient outcomes. (ECF No. 150-5 at ¶2). 27 While a MIRC meeting may aim to guide future medical decisions, not every 6 16cv1412-BEN-MDD 1 decision results in a governmental policy and as such the Court finds that 2 Patton has not shown how the MIRC meeting and these associated 3 documents are deliberative. Patton cannot invoke the deliberative process 4 privilege to shield discovery of these three documents. 5 As such, Patton’s assertion of deliberative process privilege is 6 OVERRULED. 7 3. State and Federal Self-Critical Analysis Privileges 8 Lastly, Patton encourages the Court to endorse a federal self-critical 9 analysis privilege or, in the alternative, apply California Evidence Code § 10 1157(a). (ECF No. 150 at 19, 23). The parties agree that there is no 11 unequivocal federal case law that supports self-critical analysis privilege, 12 however Patton argues that some courts have adopted a privilege and others 13 have left the door open to the possibility of said privilege. 14 In arguing for and against a federal privilege, the parties both cite 15 Agster v. Maricopa Cty., 422 F.3d 836 (9th Cir. 2005). In Agster, parents of a 16 prisoner who died in custody of county sheriff's department brought action 17 against the county. Plaintiffs sought discovery of the mortality review and 18 defendant declined asserting the peer review privilege. The Ninth Circuit 19 declined to create peer review privilege for county correctional health 20 services' ‘mortality review’ of circumstances surrounding the prisoner's death. 21 Similarly, in Leon v. County of San Diego, 202 F.R.D. 631 (S.D. Cal. 22 2001), a § 1983 action against the county, sheriff's department, and sheriff, 23 alleging deliberate indifference to detainee's medical condition, failure to 24 train and supervise, and existence of policy, practice or custom creating 25 constitutional violations, the court held (1) nursing peer review records from 26 county detention facility were relevant to municipal liability and, therefore, 27 were discoverable; (2) provision of California Evidence Code privileging 7 16cv1412-BEN-MDD 1 medical peer review records did not apply to protect records from discovery; 2 and (3) self-critical analysis privilege under federal common law did not 3 apply to protect records from discovery. 4 While Plaintiffs cite Agster in support of discovery, Patton argues that 5 the decision left the door open to hospitals’ use of the critical self-analysis 6 privilege, pointing to the decision’s differentiation between the defendant 7 Correctional Health Services and an “ordinary hospital.” Agster, 422 F.3d at 8 839. The assumption is that Patton considers itself to be an “ordinary 9 hospital.” Patton’s population is, according to their website, over 90% 10 individuals who are either incompetent to stand trial, mentally disordered 11 offenders, individuals deemed not guilty by reason of insanity, or sexually 12 violent predators. While Patton and the correctional medical provider in 13 Agster may not be entirely the same, both have a correctional mission that 14 must be taken into account when seeking to apply the self-critical analysis 15 privilege. Thus, this privilege is not recognized by the Ninth Circuit in the 16 context of the instant case. 17 Were the court to adopt the self-critical analysis privilege, Patton would 18 need to establish that the documents met the following three criteria: “first, 19 the information must result from a critical self-analysis undertaken by the 20 party seeking protection; second, the public must have a strong interest in 21 preserving the free flow of the type of information sought; finally, the 22 information must be of the type whose flow would be curtailed if discovery 23 were allowed.” Dowling v. American Hawaii Cruises, Inc., 971 F.2d 423, 426 24 (9th Cir. 1992). 25 As a threshold matter here, Dr. Fisher’s declaration does not indicate 26 that the MIRC is a self-critical analysis or a peer review process. As it is, the 27 words “self-critical” or “peer-review” are not in the declaration at all. Nor has 8 16cv1412-BEN-MDD 1 Patton provided any law that would serve as a gap filler to establish that a 2 MIRC session is inherently a self-critical or peer-review practice. As stated 3 above, Dr. Fisher’s declaration simply states that a MIRC session’s 4 discussions “explore ways to reduce morbidity or mortality, and/or improve 5 patient outcomes.” (ECF No. 150-5 at ¶2). The declaration does not detail 6 through what means this exploration occurs. 7 Further, Patton encourages the Court to look to California Evidence 8 Code § 1157 for guidance. (ECF No. 150 at 23.) State privilege law applies to 9 purely state law claims brought in federal court pursuant to diversity 10 jurisdiction; however, state law claims that are pendent to federal question 11 cases are governed by federal privilege law. Burrows v. Redbud Cmty. Hosp. 12 Dist., 187 F.R.D. 606, 610 (N.D. Cal 1998). In the instant case the Court’s 13 jurisdiction is grounded on 42 U.S.C. § 1983 based on Plaintiff’s civil rights 14 claims. Thus, federal privilege law applies. 15 16 As such, Patton’s assertion of the self-critical analysis privilege is OVERRULED. CONCLUSION 17 18 Accordingly, Patton’s objection and assertion of the deliberative process 19 privilege with regard to the three documents at issue is OVERRULED. The 20 Court compels Patton to produce the three documents at issue to Plaintiff in 21 response to Request for Production No. 21. 22 IT IS SO ORDERED. 23 Dated: September 11, 2017 24 25 26 27 9 16cv1412-BEN-MDD

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?