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

Filing 192

ORDER granting in part and denying in part 190 Joint Motion for Determination of Discovery Dispute regarding Requests for Production served upon Defendant Correctional Physicians Medical Group, Inc. CPMG is ORDERED to produce excerpts of the Quarterly Report of July September 2015 which discuss, pertain or relate to the care, treatment and death of Ruben Nunez to Plaintiff within 14 days of this Order. Signed by Magistrate Judge Mitchell D. Dembin on 9/21/17. (Dembin, Mitchell)

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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 Defendants, Third-Party Plaintiffs, Case No.: 16cv1412-BEN-MDD ORDER ON JOINT MOTION FOR DETERMINATION OF DISCOVERY DISPUTE REGARDING REQUESTS FOR PRODUCTION SERVED UPON DEFENDANT CORRECTIONAL PHYSICIANS MEDICAL GROUP, INC. [ECF No. 190] v. CORRECTIONAL PHYSICIANS MEDICAL GROUP, INC., et al., Third-Party Defendants. 22 23 Before the Court is the Joint Motion of Plaintiff and Defendant 24 Correctional Physicians Medical Group, Inc. (“CPMG”) filed on September 15, 25 2017. (ECF No. 190). The joint motion presents Plaintiffs’ motion to compel 26 production of certain documents from CPMG regarding the death of Ruben 27 Nunez and to compel production of the personnel files of Defendant Drs. 1 16cv1412-BEN-MDD 1 Naranjo and Hansen. (Id. at 3 (the Court will use pagination supplied by 2 CM/ECF rather than original pagination throughout). CPMG asserts that 3 the withheld documents are protected by peer-review privilege and, as to the 4 personnel files of Drs. Naranjo and Hansen, irrelevant and subject to privacy 5 protections. 6 7 LEGAL STANDARD The Federal Rules of Civil Procedure authorize parties to obtain 8 discovery of “any nonprivileged matter that is relevant to any party’s claim or 9 defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 10 26(b)(1). “Information within the scope of discovery need not be admissible in 11 evidence to be discoverable.” Id. District courts have broad discretion to 12 limit discovery where the discovery sought is “unreasonably cumulative or 13 duplicative, or can be obtained from some other source that is more 14 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C). 15 A party may request the production of any document within the scope of 16 Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the response 17 must either state that inspection and related activities will be permitted as 18 requested or state an objection to the request, including the reasons.” Rule 19 34(b)(2)(B). If the responding party chooses to produce responsive 20 information, rather than allow for inspection, the production must be 21 completed no later than the time specified in the request or another 22 reasonable time specified in the response. Id. An objection must state 23 whether any responsive materials are being withheld on the basis of that 24 objection. Rule 34(b)(2)(C). An objection to part of a request must specify the 25 part and permit inspection or production of the rest. Id. The responding 26 party is responsible for all items in “the responding party’s possession, 27 custody, or control.” Rule 34(a)(1). Actual possession, custody or control is 2 16cv1412-BEN-MDD 1 not required. Rather, “[a] party may be ordered to produce a document in the 2 possession of a non-party entity if that party has a legal right to obtain the 3 document or has control over the entity who is in possession of the 4 document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995). DISCUSSION 5 6 At issue are 15 Requests for Production (“RFP”). (ECF No. 190 at 3-10). 7 With the exception of the two RFPs regarding personnel records, RFPs 7 and 8 8, there is a threshold issue regarding the RFPs that needs to be addressed. 9 CPMG originally identified certain reports as responsive and included those 10 reports in its privilege log. (ECF No. 190-3). CPMG now asserts that upon 11 further review, the documents are not relevant as they do not pertain to or 12 mention the care, treatment and death of Ruben Nunez. Plaintiff claims that 13 the RFPs are not limited solely to the death of Ruben Nunez. (ECF No. 190 14 at 13). Having reviewed each RFP, the Court finds that each self-limits to 15 documents reflecting the care, treatment and death of Ruben Nunez. To that 16 extent, Plaintiff’s motion to compel is DENIED. 17 Consequently, at issue are only the personnel files of Drs. Naranjo and 18 Hansen and the document referred to as the Quarterly Report, July – 19 September 2015. 20 Quarterly Report July – September 2015 21 CPMG suggests that this Court endorse a federal self-critical analysis 22 privilege or, in the alternative, apply California Evidence Code § 1157(a). 23 (ECF No. 190 at 17-20). This Court recently addressed the availability of this 24 privilege in a related dispute in this case between Plaintiff and Defendant 25 Patton State Hospital. (See ECF No. 189 at 7-9). The Court declined to 26 endorse a federal self-critical analysis or apply California Evidence Code § 27 1157(a). (Id.). The Court finds the same analysis applies to the instant 3 16cv1412-BEN-MDD 1 2 motion and will not endorse a federal peer review privilege. If the Court was inclined to endorse the self-critical analysis privilege, 3 CPMG would need to establish that the documents met the following three 4 criteria: “first, the information must result from a critical self-analysis 5 undertaken by the party seeking protection; second, the public must have a 6 strong interest in preserving the free flow of the type of information sought; 7 finally, the information must be of the type whose flow would be curtailed if 8 discovery were allowed.” Dowling v. American Hawaii Cruises, Inc., 971 F.2d 9 423, 426 (9th Cir. 1992). 10 Here, CPMG supports its claim of privilege with the Declaration of Dr. 11 Steven Mannis, M.D., the President of CPMG. (ECF No. 190-5). First, the 12 confidentiality of the Quarterly Report has not been maintained. (ECF No. 13 190-5 at ¶ 5). The Report was provided to the County of San Diego. It seems 14 just as likely that the free-flow of information sought and that might be 15 curtailed if the privilege was not endorsed, is curtailed by voluntary sharing 16 of the Report outside the confines of CPMG. Consequently, whatever federal 17 privilege may have applied to the Report has been waived. 18 Second, the Court finds that CPMG has not demonstrated that it is 19 entitled to the protection of California Evidence Code § 1157(a). CPMG has 20 not established that the proceedings of its regular internal staff meetings 21 qualifies as “an organized committee . . . having the responsibility of 22 evaluation and improvement of the quality of care rendered in the hospital.” 23 Cal. Ev. Code § 1157(a). CPMG is not a hospital and has not suggested that 24 it is otherwise a qualified health care clinic or facility. Nor has CPMG 25 established that the quarterly staff meetings constitute a “peer review body, 26 as defined in Section 805 of the Business and Professions Code…” Id. That 27 statute also requires that the peer review committee or body be part of a 4 16cv1412-BEN-MDD 1 health care facility or clinic. Cal. Bus. & Prof. Code § 805(B). Plaintiff’s motion to compel production of this Quarterly Report is 2 3 GRANTED. 4 Personnel Files of Drs. Naranjo and Hansen 5 Plaintiff asserts that these files are relevant as they may reflect 6 training or discipline records, CPMG’s failure to supervise and information 7 pertaining to punitive damages. CPMG seeks to withhold these files 8 asserting that they contain no records of prior incidents or complaints and 9 that all training documents have been produced. Moreover, CPMG asserts 10 that state privacy rights are implicated. CPMG’s boilerplate privilege 11 ssertions will be ignored.1 12 The Court finds that the state privacy rights asserted by CPMG 13 generally fall in the face of relevance and a protective order in federal cases 14 asserting federal causes of action. The Court finds, however, that Plaintiff 15 has not demonstrated that the files may contain relevant information. 16 Plaintiff’s speculations do not overcome the annoyance, embarrassment or 17 oppression that the doctors may experience by having their personnel files 18 exposed. See Fed. R. Civ. P. 26(c)(1). Accordingly, Plaintiff’s motion to 19 compel production of the personnel files of Drs. Naranjo and Hansen is 20 DENIED. CONCLUSION 21 Plaintiff’s motion to compel production of documents from CPMG, as 22 23 24 25 26 27 Among other things, CPMG asserts that these records are subject to protection under the federal Freedom of Information Act and the federal Privacy Act. (See ECF No. 190 at 20). This claim is frivolous and reflects poorly on counsel. These Acts apply only to records in the possession of certain agencies of the United States. See and 1 5 16cv1412-BEN-MDD 1 presented in the instant Joint Motion, is GRANTED IN PART AND 2 DENIED IN PART. CPMG is ORDERED to produce excerpts of the 3 Quarterly Report of July – September 2015 which discuss, pertain or relate to 4 the care, treatment and death of Ruben Nunez to Plaintiff within 14 days of 5 this Order. 6 IT IS SO ORDERED. 7 Dated: September 21, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 6 16cv1412-BEN-MDD

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