Bowling v. Stamford Anesthesiology Services, P.C.
Filing
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ORDER granting in part and denying in part 176 Defendant's Motion to Compel. See attached ruling. Signed by Judge Robert A. Richardson on 7/24/2020. (Fries, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
THERESA BOWLING, M.D.,
Plaintiff,
v.
STAMFORD ANESTHESIOLOGY
SERVICES, P.C.,
Defendant.
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CASE NO. 3:17cv642(AWT)
RULING ON DEFENDANT’S MOTION TO COMPEL
Plaintiff, Dr. Theresa Bowling, filed this lawsuit against
her former employer, Stamford Anesthesiology Services, P.C.
(“SAS”), alleging that SAS violated the Americans with
Disabilities Act of 1990 (“ADA”) and the Connecticut Fair
Employment Practices Act (“FEPA”).
Specifically, Dr. Bowling
alleges that SAS failed to accommodate her disability and
terminated her employment because of her disability.
Dr.
Bowling also alleges that SAS retaliated against her after she
complained of discriminatory treatment.
Pending before the court is SAS’ Motion to Compel the
production of (1) an unredacted copy of certain treatment notes
from one of Dr. Bowling’s therapists, Dr. Boulton, and (2)
Department of Public Health records relating to a meeting that
occurred on May 19, 2016. (Dkt. #176.)
For the following
reasons, SAS’ motion to compel is granted in part and denied in
part.
a. Dr. Boulton’s Redacted Records
During discovery, SAS requested numerous records from
plaintiff’s medical providers regarding plaintiff’s treatment.
Plaintiff produced several records in this matter, including
notes from a treating therapist, Dr. Boulton.
Before taking Dr.
Boulton’s deposition, SAS sought to update the treatment records
but was told that an authorization from Dr. Bowling would be
required.
According to SAS’ brief, Dr. Bowling only authorized
the release of the records to her own attorney.
Thereafter, Dr.
Boulton’s records were produced to Dr. Bowling’s attorney, who
in turn provided them to SAS’ attorney.
However, at the time of
Dr. Boulton’s deposition two pages of records were withheld by
Dr. Bowling’s attorney.
Several days after Dr. Boulton’s deposition, the two pages
that were previously withheld were turned over to SAS.
The
documents contain redactions for portions of three of the
meeting notes.
SAS seeks to compel Dr. Bowling to produce an
unredacted version of the meeting notes.
Dr. Bowling argues that the notes are not relevant to the
litigation and/or are subject to attorney/client privilege.
her opposition to SAS’s motion, Dr. Bowling’s attorney
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represents that the redacted text relates to discussions about
Dr. Bowling’s teenage daughter and settlement discussions
related to this litigation.
SAS argues that Dr. Bowling has turned over many other
treatment notes that contain information not relevant to this
litigation.
SAS further argues that the attorney/client
privilege would not apply here because the information was
shared with a third party, namely Dr. Boulton.
SAS also notes
that no privilege log has been provided.
Based on the representations made by Dr. Bowling’s
attorney, who is an officer of the court and subject to the
rules of professional responsibility, SAS’ motion to compel is
DENIED as to the redactions in Dr. Boulton’s records.
While the
Court would prefer that counsel follow the practice of providing
a privilege log, SAS suffered no prejudice in not having access
to these records.
According to plaintiff’s brief, each of the
three redactions is approximately one line of text.
Dr.
Bowling’s attorney has represented, as an officer of the court,
that the redacted items relate to matters that are unrelated to
this litigation or are alleged to be privileged.
More
specifically, Dr. Bowling’s attorney states that the redactions
relate to Dr. Bowling’s teenage daughter and settlement
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negotiations.
The Court fails to see how those topics are
relevant to the merits of this case or the issues presented.1
Further, during Dr. Boulton’s deposition, Dr. Boulton was
asked about the content of the pages withheld from SAS.
After
reviewing unredacted copies, Dr. Boulton indicated that there
was nothing significant contained therein.
Further, SAS has now
reviewed the pages containing the redacted material in context
of the other notes.
SAS has not argued, or provided information
to the court to insinuate, that the information contained in the
non-redacted portions of the records indicates that the three
redacted lines of text are highly relevant to the issues in this
case.
b. Department of Public Health Meeting Records
SAS also seeks to compel the production of records from the
Connecticut Department of Public Health (“DPH”) related to a
meeting that was held on May 19, 2016.
The alleged participants
were Dr. Bowling, Maureen Dinnan, and a member of the DPH staff.
The meeting was allegedly called by the DPH to discuss the CHRO
complaint that Dr. Bowling had filed in April of 2016 and to
While Dr. Bowling may have waived the attorney / client
privilege by mentioning settlement negotiations to her doctor,
that does not make the otherwise confidential and inadmissible
settlement discussions relevant and worthy of disclosure to her
adversary under Rule 26(b)(1) of the Federal Rules of Civil
Procedure.
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discuss the veracity of the allegations within the CHRO
complaint. (Dkt. #176, at 3).
SAS argues that the information about the meeting is highly
relevant to SAS’ defense.
More specifically, the requested
information relates to the question of whether Dr. Bowling had a
good faith basis for her CHRO complaint.
Throughout this
litigation, SAS has been arguing that Dr. Bowling cannot succeed
on her retaliation claim if her CHRO complaint lacked a good
faith basis, as this would take the CHRO complaint out of the
category of protected activity.
In light of this defense, SAS
argues that the meeting on May 19, 2016 and the records from DPH
are highly relevant to an issue in this case.
The Court agrees.
Plaintiff argues that (i) the meeting notes are not medical
records, (ii) the DPH meeting, which occurred a month after the
CHRO complaint was filed, is not relevant to whether Dr. Bowling
had a good faith belief at the time of filing, and (iii) that
SAS has deposed Dr. Bowling and Maureen Dinnan and asked them
about the meeting.
The Court finds that the DPH meeting notes are relevant
within the meaning of Rule 26(b)(1).
Even after the 2015
amendments to Rule 26(b)(1), relevance includes “’any matter
that bears on, or that reasonably could lead to other matter
that could bear on any issue that is or may be in this case.’”
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Blackrock Allocation Target Shares: Series S Portfolio v. Bank
of N.Y. Mellon, No. 14 Civ. 9372 (GBD)(HBP), 2018 WL 2215510, at
*6 (S.D.N.Y. May 14, 2018)(quoting Gilani v. Hewlett Packard
Co., No. 15-CV-05609 (NSR), 2017 WL 4236564, at *1 (S.D.N.Y.
Sept. 22, 2017)).
Dr. Bowling attended the DPH meeting and
potentially discussed a matter that goes to the very core of one
of SAS’ defenses.
More specifically, whether and to what extent
the CHRO complaint that Dr. Bowling had filed in April of 2016
was truthful and accurate.
The contents of the requested
documents could shed light on whether a good faith basis existed
for filing the CHRO complaint a month earlier.
The Court cannot
conclude that any statements or admissions that Dr. Bowling may
have made to the DPH about her CHRO complaint would have no
bearing on whether the CHRO complaint was or was not made in
good faith.
In addition, while SAS did have the opportunity to depose
Maureen Dinnan and Dr. Bowling, SAS should not be left to their
mere recollections of the May 2016 meeting when there are other
records available such as any meeting notes or information
retained by DPH.
The request served on DPH was for information
clearly discoverable under Federal Rule of Civil Procedure 26(b)
and, since it was narrowly tailored, the Court finds that the
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request is proportional.2 Therefore, SAS’s motion to compel is
GRANTED as to the DPH records sought in this matter.
I.
Conclusion
For the foregoing reasons, SAS’s motion to compel is
GRANTED in part and DENIED.
Plaintiff is ordered to supply SAS
with a signed authorization for the DPH records related to the
May 19, 2016 meeting within one week of this order.
This is not a Recommended Ruling.
This is a discovery
ruling or order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review.
28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. R. 72.2.
As such, it is an order of the Court unless reversed or modified
by a district judge upon motion timely made.
Under Rule 26(b)(2), the Court should consider the importance
of the issues at stake in the case, the amount in controversy,
the parties' relative access to relevant information, the
parties' resources, the importance of the discovery in resolving
the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. The nature of this case
has already been described earlier. Dr. Bowling is seeking
millions of dollars in damages, as well as a prejudgment
attachment on SAS’ assets in the amount of $3,500,000. (Dkt.
#166, at ¶2). SAS cannot obtain the requested documents without
written authorization from Dr. Bowling, which Dr. Bowling has
refused to provide. (Dkt. #176, at 3-4). As discussed earlier,
the requested information potentially goes to the heart of one
of SAS’ defenses and is narrowly tailored to cover the meeting
on May 19, 2016. Additionally, there does not appear to be a
burden or expense associated with the production. The DPH
appears willing to produce the materials if provided with a
written authorization from Dr. Bowling.
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SO ORDERED this 24th day of June, 2020 at Hartford,
Connecticut.
_______________/s/____________
Robert A. Richardson
United States Magistrate Judge
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