Schachter v Sunrise Senior Living Management, Inc. et al
Filing
122
RULING granting 121 Motion to Strike; granting in part and denying in part the plaintiff's and the defendants' discovery requests set forth in their extensive letter briefing [Doc. Nos. 97-98, 104-05, 113-15]. Signed by Judge Robert M. Spector on 1/30/2020. (Watson, M.)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
------------------------------------------------------x
:
DORINA SCHACHTER
:
:
v.
:
:
SUNRISE SENIOR LIVING
:
MANAGEMENT INC. ET AL.
:
:
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3: 18 CV 953 (JAM)
DATE: JAN. 30, 2020
RULING ON DISCOVERY (DOC. NOS. 97-98, 104-105, 113-15)
I.
BACKGROUND
On March 21, 2019, this case was removed to the United States District Court for the
Eastern District of New York from Queens County Supreme Court in Queens, New York, and
transferred to this Court on June 5, 2018. Dorina Schachter, was injured when she was a resident
at Sunrise of Stamford. She, through her son, Theodore Schachter, as her agent, brought this action
against defendants Sunrise Senior Living Management Inc. [“SSLMI”], Sunrise Senior Living
Services Inc. [“SSLSI”], Jaclyn Robbins, AL I/Stamford Senior Housing, LLC [“AL”], and
Welltower, Inc., alleging (1) negligence, (2) negligent infliction of emotional distress, (3)
intentional infliction of emotional distress, (4) breach of contract (against all defendants except
Ms. Robbins), (5) violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42110b(a), (6) breach of the Patients’ Bill of Rights, Conn. Gen Stats § 19a-550, and (7) willful
and/or reckless disregard for Mrs. Schachter’s safety and rights. (Doc. No. 62).
On June 21, 2019, the defendants filed a motion to dismiss all claims against Ms. Robbins,
Welltower, and SSLSI, to dismiss the CUTPA and violation of the Patients’ Bill of Rights claims
brought against the remaining defendants, and to dismiss the breach of contract claim against all
1
parties other than SSLMI and AL. (Doc. No. 65; see Doc. Nos. 77-78, 80, 88). The motion is
pending before United States District Judge Jeffrey A. Meyer.
On November 8, 2019, the parties sought an extension of the scheduling order. (Doc. Nos.
90-91). The Court (Meyer, J.) granted the extension and directed the parties to contact the Court if
they had any discovery disputes requiring attention. (Doc. No. 92).
On December 11, 2019, the Court held a telephonic discovery conference. After the
conference, the Court issued the following order:
In accordance with the parties’ agreement, the Court hereby ORDERS defendants
to produce any records related to the job-related training, discipline, and
performance of employees Mabel McKay, Ibrahim Abdul, Dorothy Lee, and Marie
Phillippe during the period of January 2016 to the date of the incident on January
28, 2017, including any such records created after the incident that reflect on the
employees’ activities from January 1, 2016, to January 28, 2017. The parties are
encouraged to confer to resolve any concerns that may arise as to the protection of
any non-relevant, private information of the named employees that may be within
such records and subject to redaction.
(Doc. No. 94).
Seven days later, the parties contacted the Court again “to advise that they have multiple
discovery disputes.” (Doc. No. 95). The Court referred this case to the undersigned for resolution
of the discovery disputes and to “modify the case scheduling order as necessary in light of the
parties’ disputes.” (Id.; see also Doc. No. 99). At the time, the fact discovery deadline was January
14, 2020. (Doc. No. 92).
Pursuant to this Court’s Order, on December 26, 2019, the parties filed simultaneous letter
briefs detailing the current discovery disputes (Doc. No. 97 [“Def. Letter Br.”]; Doc. No. 98 [“Pl.
Letter Br.”], and they filed responsive briefing on January 3, 2020. (Doc. No. 104 [“Pl. Response”];
Doc. No. 105 [“Def. Response”]). On January 3, 2020, the plaintiff filed a motion for a telephonic
2
discovery conference (Doc. No. 101), which the Court granted (Doc. No. 102); that conference
was held on January 6, 2020. (Doc. Nos. 103, 107).
Following the conference, the Court entered two orders. (Doc. Nos. 108-09). In the first
order, the Court extended the fact discovery deadline to March 14, 2020. (Doc. No. 108).
Additionally, counsel agreed to file any supplemental briefing regarding the outstanding discovery
dispute by January 13 and January 16, 2020. (Id.).
In the second order, the Court addressed the plaintiff’s request that the Court direct the
plaintiff to “provide records obtained from an investigation conducted by the Connecticut
Department of Public Health [“DPH”] into the incident pursuant to a public records request . . .
because the State of Connecticut erroneously provided documents relating to a patient not relevant
to this matter.” (Doc. No. 108). Specifically, the Court ordered:
To the extent these documents are covered by HIPAA, HIPAA permits the
disclosure of protected health information in the course of a judicial proceeding in
response to a court order, provided that the covered entity discloses only the
protected health information expressly authorized by such order. 45 C.F.R. §
164.512(e)(1)(i). The plaintiffs represent to the Court that the records at issue are
DPH records obtained from a Freedom of Information Act request, and that while
they intend to use the documents which relate to the parties in this case, they do not
seek to use the information regarding the unrelated patient. (Doc. No. 98 at 5). The
defendants represent that they, too, submitted their own public records request to
DPH, and have been informed that the records will likely be produced . . . in
February 2020. (Doc. No. 97 at 6). The plaintiffs shall, forthwith, produce to the
defendants the documents obtained from DPH which are relevant to this matter and
relate to the parties in this case.
(Id.).
On January 13, 2020, the plaintiff filed her supplemental response with multiple exhibits
in support (Doc. No. 113 [“Pl. Supp. Response”]), and three days later, the defendants filed their
supplemental response with exhibits in support (Doc. No. 114 [“Def. Supp. Response”]), followed
by a clarification of a statement made in their supplemental response. (Doc. No. 115).
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II.
DISCOVERY DISPUTES
A.
LEGAL STANDARD
Parties may “obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and is proportional to the needs of the case[.]” FED. R. CIV. P. 26(b)(1).
The proportionality determination limits the scope of discovery by “considering the importance of
the issues at stake[,]” the “amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of discovery in resolving the issues, and
whether the burden or expense . . . outweighs the likely benefit” of the discovery sought. FED. R.
CIV. P. 26(b)(1).
B.
DISCUSSION
1.
SCOPE OF DISCOVERY
a.
INVESTIGATION INTO THE INCIDENT
The plaintiff has requested records relating to (1) the interviews of state members by the
State of Connecticut Department of Health; (2) documents from defendant Robbins, related to the
Incident, and documents regarding her supervision of patient/resident care; (3) documents related
to the State of Connecticut Department of Public Health Facility Licensing & Investigations
Section Reportable Event Form, completed by Jaclyn Robbins on January 28, 2017; (4) the
remaining pages related to a letter dated November 27, 2017 to Calla Schrull, Supervisor of
Assisted Living Services, Sunrise at Stamford, which references an attachment, the related
response or information disputing the findings in the letter, and documents related to the plan of
correction referenced in the privilege log;1 (5) complete production of documents related to
SSLM100003, which purports to set forth the specific violations found during visits to Sunrise of
1
The defendants have agreed to produce the plan of correction which was withheld as privileged. (Def. Response at
11).
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Stamford on June 14, 16, 19 and 20; (6) the documents attached and related to SSLMI000004,
which is an unsigned letter from the Facility Licensing and Investigations Section, State of
Connecticut Department of Public Health to Jaclyn Robbins, dated January 25, 2018; (7) the
underlying response referenced in SSLMI000005, which is an email from Robbins to an
investigator for the State of Connecticut; (8) documents identifying Robbins as the custodian; (9)
documents related to the filling of vacancies or anticipated vacancies at the Dementia Care Unit;
and, (10) documents related to the reporting of the incident at issue in this case. (Pl. Letter Br. at
8-11).
In response, SSMLI contends that it has produced, or identified as privileged, all known
documents in its possession or control related both to an internal investigation into the incident
and to the Connecticut Department of Health’s investigation into the incident. (Def. Response at
8).
The Court orders that, to the extent there are additional documents, including the remaining
pages related to many of the documents produced to date, SSMLI shall supplement its discovery
response on this requested information on or before February 13, 2020, or when such documents
are discovered. See FED. R. CIV. P. 26(e).
b.
DEFENDANTS’
REQUESTS
REGARDING
RECORDS
OBTAINED FROM THE STATE OF CONNECTICUT
In their initial brief, the defendants sought an order compelling the plaintiff to respond to
their request for “[a]ny and all writings or documents in your possession reflecting any
investigations conducted by state or federal agencies within United States or law enforcement
within the United States regarding THE RESIDENT.” (Def. Letter Br. at 5). In light of this Court’s
Order, dated January 7, 2020 (Doc. No. 109), this request is moot.
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2.
DISCOVERY RELATED TO PARTIES AND CLAIMS THAT ARE THE
SUBJECT OF THE PENDING MOTION TO DISMISS
The defendants have filed a motion to dismiss, inter alia, the CUTPA2 and Patients’ Bill
of Rights claims, and that motion is currently pending. The defendants claim that it is improper for
the plaintiff to seek discovery on these claims when they are not plausibly alleged. (Def. Letter Br.
at 3). In addition, the defendants are seeking dismissal of all claims against Welltower and, as a
result, have refused to schedule the Welltower 30(b)(6) deposition and have objected to discovery
served on Welltower in light of the pending motion to dismiss. (Def. Letter Br. at 15). Finally,
the defendants refuse to produce documents relating to the negligence or breach of contract claims
or permit a 30(b)(6) deposition on that topic until the Court rules on their motion to dismiss.
To date, Welltower is a named defendant. While the defendants vociferously object to
discovery served on Welltower on grounds that Welltower, through an affidavit, has refuted all of
the plaintiff’s allegations against it, the Court, in ruling on discovery, cannot and should not pass
judgment on whether Welltower should be dismissed as a party. The defendants have not moved
to quash the deposition, nor have they moved for a protective order. The deposition may go
forward, and Welltower shall respond, or properly object, to discovery.
As to the defendants’ blanket refusal to produce documents related to other claims that are
challenged in the motion to dismiss, the Court similarly concludes that their objection is not well
founded. The defendants may not just ignore discovery served in this case. A motion to dismiss
does not automatically stay discovery, United Rentals, Inc. v. Chamberlain, No. 3:12-cv-1466
(CSH), 2013 WL 6230094, at *3 (D. Conn. Dec. 2, 2013), and the defendants have neither moved
for such a stay, nor moved for a protective order. See Hong Leong Fin. Ltd. (Singapore) v. Pinnacle
2
The defendants argue that CUPTA does not apply to the medical malpractice claims at issue in this case, and that
the Patients’ Bill of Rights covers only nursing home facilities, residential care homes and chronic disease hospitals,
not an assisted living facility such as SSLMI.
6
Performance Ltd., 297 F.R.D. 69, 72 (S.D.N.Y. 2013) (discussing the circumstances in which,
upon motion, a pending motion to dismiss may constitute good cause for staying discovery).
Accordingly, to date, these claims are subject to discovery.
3.
ESI DISCOVERY
a.
COST-SHIFTING AND FAILURE TO PRESERVE
The incident at issue in this case occurred on January 26, 2017. The plaintiff alleges that,
in the evening of January 26, 2017, defendant Jaclyn Robbins, the facility’s Executive Director,
contacted Mr. Schachter to inquire as to when his mother would return to the facility. He informed
her that his mother would not be returning to Sunrise. This communication leads to the reasonable
conclusion that, as of January 26, 2017, the parties anticipated litigation. Although the defendants
argue that Mr. Schachter had a reputation of threatening litigation and that there was no duty to
preserve until SSLMI was put on actual notice of the claim, the defendants’ own actions contradict
this position. The defendants agree that this date is relevant in that they produced a privilege log
in which a document prepared on January 26, 2017 was withheld because it was prepared in
anticipation of litigation. Additionally, by January 28, 2017, the State of Connecticut had opened
a file regarding Mrs. Schachter because defendant Sunrise had completed a Reportable Event
Form. (Doc. Nos. 113-3, 113-4).
The party having control over the evidence has an obligation to preserve such evidence,
and that obligation ‘“usually arises when a party has notice that the evidence is relevant to litigation
. . . but also on occasion in other circumstances, as for example, when a party should have known
that the evidence may be relevant to future litigation.”’ Doe v. Norwalk Cmty. College, 248 F.R.D.
372, 377 (D. Conn. 2007) (quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2d Cir.
2001)). The obligation to preserve evidence is governed by Rule 37(f) of the Federal Rules of
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Civil Procedure which allows for a “good faith exception” for failing to preserve electronically
stored information: “Absent exceptional circumstances, a court may not impose sanctions under
these rules on a party for failing to provide electronically stored information lost as a result of the
routine, good-faith operation of an electronic information system.” FED. R. CIV. P. 37(f). The
Commentary to that Rule, however, indicates that, “[w]hen a party is under a duty to preserve
information because of pending or reasonably anticipated litigation, intervention in the routine
operation of an information system is one aspect of what is often called a ‘litigation hold.’” FED.
R. CIV. P. 37(f) advisory committee’s note to 2006 amendment. The defendants may not “take
advantage of the good faith exception,” if they did not act “affirmatively to prevent the system
from destroying or altering information, even if such destruction would occur in the regular course
of business.” Norwalk Cmty. College, 248 F.R.D. at 378.
In the absence of a litigation hold, the defendants would not be able to take advantage of
the good faith exception in Rule 37(f). After parsing through the detailed letters from the parties,
however, the Court finds that it is premature to conclude that documents have, in fact, been
destroyed. For example, the plaintiff asserts that she has not received all of the documents in
response to her request for data from Yardi, a software program used to store billing and medical
record information. (See Pl. Letter Br. at 12). Yet, the defendants represent that they have
produced all known “Yardi records for Mrs. Schacter” which consist of more than 200 pages of
documents regarding Mrs. Schachter. (Def. Letter Br. at 7; Def. Response at 1-2). The plaintiff is
seeking staffing records, which were allegedly destroyed,3 Individual Service Plans, Monthly
Resident Client Service Plan of Care for six months in 2016, and January 2017, progress notes,
and staff daily records. (Pl. Letter Br. at 6-7). The defendants posit that the relevant documents
3
As discussed below, the defendants claim they have produced staffing records. (See Section II.B.7.d. infra).
8
are the progress notes, which have been produced, and that “[t]here is no evidence at this point
that any missing records were destroyed [as] SSMLI is still searching for missing records.” (Def.
Response at 5). Additionally, the defendants counter that there is no document referred to as a
“Monthly Resident Client Service Plan of Care[,]” but that, to the extent the plaintiff is referring
to the Resident (Client) Service Plan of Care, those documents were stored in Yardi and were
produced, and the document for January 2017 was produced. (Def. Response at 7). Similarly,
according to the defendants, the progress notes were stored in Yardi and were produced. (Id. at
8).
The defendants admit that some documents may have been destroyed pursuant to the
routine destruction of old records.
(Def. Letter Br. at 16).
Specifically, the defendants
acknowledge that “[t]he only records that are definitively known to be missing are Care Manager
ISPs and staff schedules from 10 days prior to the incident.” (See Def. Response at 6). Additionally,
SSMLI concedes that the Individual Service Plans for a number of dates are missing and “may
have been destroyed.” (Def. Response at 7). SSLMI, however, “continues to look for the
documents and agrees that if records can be located, they will be produced to the plaintiff.” (Id.;
see also Def. Response at 5-6).
SSMLI must continue to supplement its responses as documents, including staff daily
records, become available. See FED. R. CIV. P. 26(e). Additionally, for the records that SSMLI has
identified as missing, SSLMI “agreed that it would produce schedules from 10 days prior to the
incident, or an adequate substitute if schedules were unavailable[.]” (Def. Response at 7).
The Court orders that, on or before February 13, 2020, the defendants shall produce the
schedules, or the reports that SSMLI offers as a substitute, and the defendants shall continue to
supplement its responses. If, after the conclusion of a diligent search and supplementation of its
9
responses, there are documents that have been destroyed, the defendants must identify those
documents to the plaintiff, and the plaintiff may file an appropriate motion to address her claim
regarding the defendants’ failure to preserve.
b.
SEARCH TERMS
The emails have been archived and preserved (Def. Response at 8; Def. Supp. Response at
6),4 but SSLMI represents that “it requires further information to provide a cost estimate to retrieve
archived emails[.]” (Def. Supp. Response at 6). As SSMLI explained, “[t]he process of searching
through SSLMI’s extensive archived [email] system for the documents requested would require
restoring distinct tape sets of the entire [email] system. . . . The number of tape sets that need to
be restored depends on how many restore dates” are searched, and the “number of tapes to restore
affects how much time the project will take and how much data needs to be sifted through. An
estimate of the cost of the project and the time to complete it can be provided once [the] [p]laintiff
provides the detailed parameters for the search he is requesting.” (Def. Letter Br., Ex. 17 ¶¶ 7-8).
Additionally, “[o]nce the data has been restored, extracted, and de-duplicated, the data would need
to be indexed and keyword searched for responsive [emails], which would usually involve hourly
costs above and beyond the cost of restoring data from the backup tapes and extracting [email]
data from each tape.” (Id. ¶ 12). The parties dispute the search terms, and the plaintiff has yet to
provide the range of emails the plaintiff wants to restore.
“[T]he best solution in the entire area of electronic discovery is cooperation among
counsel.” William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Ins. Co., 256 F.R.D. 134, 136
(S.D.N.Y. 2009). Thus, “[i]deally, the parties should agree on the search methods, including
Defense counsel represents “that some emails may be archived, rather than immediately accessible, because they
may have been deleted at some point in the past, and therefore are not readily accessible in someone’s inbox.” (Def.
Response at 5).
4
10
search terms or concepts.” Saliga v. Chemtura Corp., No. 3:12-cv-832(RNC), 2013 WL 6182227,
at *3 (D. Conn. Nov. 25, 2013).5
The defendants’ suggestion that the plaintiff’s demands must “specify file name and exact
date, rather than by topic and date range[]” is not practical as file names are not known to the
plaintiff. (Pl. Letter Br. at 5). The plaintiff, however, must provide the parameters and proposed
terms to assist the defendants in this search. (See Def. Supp. Response at 6). The plaintiff represents
that she will “again provide search terms on an expanded basis.” (Pl. Supp. Response at 13).
Counsel shall work together to refine targeted search terms by topic, within the relevant date
range.6
4.
SPOLIATION
To the extent the plaintiff argues that spoliation has occurred, the plaintiff may move for
appropriate sanctions.
5.
RULE 30(b)(6) DEPOSITIONS
In light of the defendants’ acknowledgment that documents have been destroyed as part of
a routine policy, the plaintiff may inquire, at the SSLMI 30(b)(6) deposition, about its document
destruction policy and how the policy was implemented from January 1, 2016 through the present.
The defendants represent that SSLMI has produced some emails in response to searches for the terms: “Dorina” and
“Schachter” and common misspellings of those names. (Def. Letter Br. at 6-7).
5
6
If the parties reach an impasse, they shall contact the Court for a telephonic conference. As Rule 26(b)(2)(B) of the
Federal Rules of Civil Procedure states: “A party need not provide discovery of electronically stored information from
sources that the party identified as not reasonably accessible because of undue burden or cost.” If the defendants can
make such a showing, they, of course, may file an appropriate motion under Rule 26(b)(2)(B). Similarly, the plaintiff
may move to compel such discovery and may seek to shift the cost of such production. The cost shifting issue is not
ripe until the parties identify the parameters of the search and obtain an estimate of the cost. The parties’ arguments,
to date, are premature.
11
The defendants identify several other topics they find objectionable. (Def. Letter Br. at 810).
a.
TOPIC NO. 1: THE RELATIONSHIP BETWEEN AND AMONG
WELLTOWER, ITS AFFILIATES, RED FOX, THE SUNRISE
DEFENDANTS AND THEIR PARENT COMPANIES AND
SUBSIDIARIES.
SSMLI responded that the request is vague because Sunrise is not clearly defined and the
definitions of Welltower and Red Fox are also vague and unclear. Additionally, the request is
overbroad, unlimited in time and scope and seeks information related to separate corporate entities,
some of which are not parties to this litigation.
The plaintiff defined Welltower and Red Fox in its Notice of Rule 30(b)(6) Deposition,
and Welltower is a named defendant in this case. This topic, as written, however, requests
information not proportional to the needs of the case. The plaintiff shall tailor her topic request to
limit the scope to the time period relevant to the events in this litigation. SSLMI’s 30(b)(6) witness
shall testify as to the Sunrise defendants, its subsidiaries and parent company as well as to its
knowledge regarding the entities involved in the operation of the Sunrise of Stamford community.
Additionally, the plaintiff can inquire into the relationship between the Welltower defendant and
the Sunrise defendants.
b.
TOPIC NO. 4:
ACTIVITIES.
SSLMI’S
RIDEA
COMPLIANCE
AND
The plaintiff has clarified that the parties redrafted this topic to read: “SSLMI’s role in
Welltower’s senior housing structured under RIDEA.” (Pl. Response at 11). To the extent that
the parties cooperatively redrafted this topic, SSLMI’s designee shall testify to regarding this
amended request.
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c.
REDRAFT OF TOPIC NO. 5: TOPIC 5 SEEKS INFORMATION
RELATING TO SSLMI’S EMPLOYMENT RECORDS,
EMPLOYEE TRAINING, PERSONNEL AND HIRING,
MAINTENANCE OF MEDICAL RECORDS FOR PATIENTS,
BUSINESS DOCUMENTS AND FINANCIAL RECORDS,
PURCHASING
AND
PROCUREMENT,
COMPUTER
HARDWARE AND SOFTWARE SYSTEMS, MANAGEMENT
AND OPERATION OF THE PROPERTIES, AND LIAISON
WITH WELLTOWER
SSLMI appropriately objects to this request as overly broad, unduly burdensome, and not
limited in time. (Def. Letter Br. at 9). SSLMI’s 30(b)(6) witness shall testify as to the policies
and procedures at Sunrise of Stamford related to clinical care, maintenance of medical records,
employee training, employee records, personnel and hiring, and Welltower’s relationship with
SSLMI in 2016 and 2017, including the time period that Mrs. Schacter was a resident.
Additionally, the witness shall testify as to a financial incentive structure relating to placement in
the dementia unit at Sunrise of Stamford, if any exists. The remaining financial and budget
information requested is confidential and proprietary, and any request relating to an ability to pay
a judgment is premature at this stage of the litigation.
d.
TOPIC NO. 6: ANY INVESTIGATIONS OR FOLLOW UP OF
WHAT HAPPENED TO DORINA SCHACHTER.
SSLMI’s 30(b)(6) witness shall testify as to the non-privileged aspects of the incident
involving Dorina Schachter.
e.
TOPIC NO. 8: MANAGEMENT AGREEMENTS AND
OPERATING
AGREEMENTS
FOR
WELLTOWER
PROPERTIES INCLUDING INCENTIVE STRUCTURES AND
PERFORMANCE METRICS.
As discussed above, although Welltower’s involvement in this case is the subject of a
motion to dismiss, to date, Welltower is a named defendant. The plaintiff has limited this request
to 2016 and 2017. The deponent shall testify as to Welltower’s relationship with Sunrise of
13
Stamford, and, to the extent any agreements include incentive structures and performance
structures, the deponent shall testify as to the provisions of such agreements that existed between
Welltower and Sunrise of Stamford during the period of 2016 and 2017.
f.
TOPIC NO. 9: THE MANNER IN WHICH STAFFING LEVELS
IN THE “RU” ARE SET.
Although this request was not limited in time, the plaintiff has agreed to limit this request
to 2016 and 2017. The SSLMI 30(b)(6) witness shall testify regarding staffing levels in the
Reminiscence Neighborhood at Sunrise of Stamford, including how they were set, from 2016 to
2017, including, but not limited to, the time that Mrs. Schachter resided in the Reminiscence
Neighborhood at Sunrise of Stamford.
g.
TOPIC NO. 10: JOB DESCRIPTIONS FOR “RU” EMPLOYEES
& THE EXECUTIVE DIRECTOR.
The SSLMI 30(b)96) witness shall testify regarding this topic as to the job descriptions for
“RU” employees and the Executive Director, in effect when Mrs. Schachter resided at the
Reminiscence Neighborhood at Sunrise of Stamford.
h.
TOPIC NO. 11: SUNRISE CAPTIVE, SUNRISE SENIOR
LIVING INSURANCE AND ALL SUNRISE LIABILITY
POLICIES.
Rule 26 (a)(1)(A)(iv) requires the disclosure of an insurance agreement under which “an
insurance business may be liable to satisfy part or all of a possible judgment in the action or to
indemnify or reimburse for payments made to satisfy the judgment.” FED. R. CIV. P.
26(a)(1)(A)(iv). SSLMI shall testify as to the insurance information applicable to the entities
named as defendants. (See Section II.B.8. infra).
6.
PLAINTIFF’S MENTAL HEALTH RECORDS
14
The defendants served a subpoena on Adult Mind & Body Wellness, LLC a/k/a Judith
Stoddard, Dorina Schachter’s social worker in 2016 (Def. Letter Br., Ex. 8), for Mrs. Schachter’s
mental health records because the plaintiff has claimed that she suffered a cognitive decline since
the incident. (Def. Letter Br. at 10). An attorney for Ms. Stoddard informed defense counsel that
he would not produce the records without an authorization from Mrs. Schachter. (Id.).
Mrs. Schachter’s mental state is at issue in this case, and her preexisting mental state is
relevant. The disclosure of such records, however, should be narrowly tailored to the claims at
issue, which involve an allegation that the plaintiff’s mental state declined as a result of the
defendants’ actions. See Buell v. Hughes, No. 3:07 CV 468(DJS), 2008 WL 11375421, at *1 (D.
Conn. Jan. 1, 2008); see Williams v. Gillette Co., No. 3:02 CV 2213(WWE), 2004 WL 717173, at
*1 (D. Conn. Mar. 24, 2004) (noting that “there is no privilege as to communications relevant to
the mental or emotional condition of the patient in any proceeding in which the patient relies on
the condition as an element of the patient’s claim or defense.”). The defendants argue that medical
records indicate that Mrs. Schachter began experiencing symptoms of memory decline as early as
2013.
Accordingly, the plaintiff shall execute an authorization for the production of Mrs.
Schachter’s mental health records from Adult Mind & Body Wellness, LLC, from 2013 to the
present.
7.
PLAINTIFF’S RULE 34 REQUESTS7
In addition to the foregoing topics that were the subject of the parties’ letter briefs, responses and supplemental
responses, the plaintiff, in her supplemental response, addresses an additional fifty-five “[u]nresolved [d]iscovery
[d]emands.” (Pl. Supp. Response at 13-22). During the conference call held on January 6, 2020, the Court afforded
the parties an opportunity to file supplemental briefing on the issues already pending before the Court. (See Doc. No.
108). The Court will not entertain the plaintiff’s attempt to re-start briefing on discovery disputes not addressed in the
voluminous letter briefs before the Court as of that January 6, 2020 telephonic conference.
7
Additionally, on January 29, 2020, the parties filed additional briefing addressing discovery, and arguing over what
discovery is permitted between January 14, 2020 to March 14, 2020. (Docs. Nos. 119-20). Later the same day, the
defendants filed a Motion to Strike the plaintiff’s filing on grounds that their brief includes “extensive arguments on
issues that the Court did not ask to be briefed.” (Doc. No. 121). To the extent that the plaintiff’s briefing raises
15
a.
PERSONNEL RECORDS
Individually identifying information contained in personnel files may not be disclosed
without written authorization of an employee. CONN. GEN. STAT. § 31-128f. Such information,
however, may be disclosed under certain exceptions, including pursuant to a judicial order. As
discussed above, on December 11, 2019, the Court (Meyer, J.) held a telephonic discovery
conference following which, the Court ordered:
In accordance with the parties’ agreement, the . . . defendants [shall] produce any
records related to the job-related training, discipline, and performance of employees
Mabel McKay, Ibrahim Abdul, Dorothy Lee, and Marie Phillippe during the period
of January 2016 to the date of the incident on January 28, 2017, including any such
records created after the incident that reflect on the employees’ activities from
January 1, 2016, to January 28, 2017. The parties are encouraged to confer to
resolve any concerns that may arise as to the protection of any non-relevant, private
information of the named employees that may be within such records and subject
to redaction.
(Doc. No. 94). Thus, SSLMI stipulated to a court order to produce personnel file records for the
time period of January 1, 2016 to the date of the incident, related to job related evaluations, training
and discipline for the four employees identified as directly involved in the incident at issue.
The defendants have indicated that they will stipulate to a similar court order to produce
additional records if other employees are identified. (Def. Letter Br. at 11). The plaintiff
“remain[s] willing to work with [the] [d]efendants to provide a list of employees whose records
are sought, and to obtain the Court order [the] [d]efendants claim they require for their own
protection[.]” (Pl. Supp. Response at 14). The parties shall meet and confer to resolve this issue;
a proposed stipulated order shall be submitted to the Court by February 13, 2020.
additional discovery disputes beyond those discussed in the initial briefing and addressed by this Ruling, the
defendants’ Motion to Strike (Doc. No. 121) is GRANTED.
The parties’ extensive briefing reflects an inability to meet and confer in a productive manner. The parties are directed
to address outstanding discovery in a cooperative manner. If additional disputes arise, the parties shall contact
Chambers for a telephonic discovery conference before filing additional briefing.
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b.
BUDGET AND FINANCIAL RECORDS
The defendants object to the production of budget and financial records of SSLMI because
the plaintiff is seeking to discover assets prior to judgment, and because the records are confidential
and proprietary. (Def. Letter Br. at 12). The plaintiff claims that her demands “are directly relevant
to their causes of action[,]” and, “[a]s it happens, [the] [p]laintiff’s demands would not yield
information regarding internal information about [the] [d]efendants’ assets or cash positions, and
no demand is structured or intended to determine whether [the] [d]efendants’ can pay an award.”
(Pl. Letter Br. at 11). Additionally, the plaintiff seeks the management agreement between SSLMI
and A1 I/Stamford Senior Housing, LLC on the ground that defendant “Welltower has exerted
control over Sunrise of Stamford through the Management Agreements that are used by SSLMI in
the management of Sunrise of Stamford among other properties.” (Def. Response at 12). The
defendants object to this request because the plaintiff has “either made up these claims or has failed
to disclose the evidence that supports the claims[,]” and this is “just another attempt by the
plaintiff[s] to prematurely gather financial information about the defendants.” (Id. at 12-13).
The plaintiff’s requests seek specific financial information, and much of the information
sought in the current requests may be both confidential and proprietary. Additionally, the
plaintiff’s requests are not proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). On or
before February 13, 2020, the plaintiff shall serve revised requests tailored to seek information
regarding the quality or competency of the staff, and whether a bonus structure existed for
transferring patients to the dementia unit.
8.
INSURANCE INFORMATION
Rule 26 (a)(1)(A)(iv) requires the disclosure of an insurance agreement under which “an
insurance business may be liable to satisfy part or all of a possible judgment in the action or to
17
indemnify or reimburse for payments made to satisfy the judgment.” FED. R. CIV. P.
26(a)(1)(A)(iv). SSLMI has disclosed that it has a $1 million self-insured retention, and a $10
million excess policy. Additionally, SSLMI has agreed to produce responsive information to the
plaintiff’s request of whether this is an eroding policy and how much is left on the policy. (Def.
Letter Br. at 12-13). SSLMI shall produce its supplemental response on or before February 13,
2020.
9.
STAFFING
The plaintiff generally requests all documents “related to” the staffing procedure at Sunrise
at Stamford. This request is impermissibly vague as written. The plaintiff narrowed her request to
“documents relating to staffing while Mrs. Schachter was a resident of Sunrise of Stamford.” (Pl.
Response at 15). SSLMI produced documents explaining that staffing numbers at Sunrise of
Stamford are adjusted based on resident needs. To the extent that SSLMI has not done so already,
on or before February 13, 2020, SSLMI shall produce documents showing “the target staffing
numbers” while Mrs. Schachter was a resident of the Assisted Living facility and the Reminiscence
Unit. (See Def. Letter Br. at 13).
10.
IDENTFYING THE FACTS AND DOCUMENTS SUPPORTING THE
PLAINTIFF’S ALLEGATIONS IN THE AMENDED COMPLAINT
To the extent the plaintiff has not done so already, on or before February 13, 2020, she
shall describe the facts and documents upon which they rely to support the allegations in the
Amended Complaint.
11.
PRIVILEGED MATERIALS AND THE PRIVILEGE LOG
The defendants are withholding the following documents as privileged, attorney-client
communications protected from disclosure by the peer review privilege: (1) an internal
investigation report regarding the incident, created on January 26, 2017; (2) a Resident/General
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Liability Incident Report concerning the incident, dated January 26, 2017; (3) a general liability
report form, created on January 28, 2017, which was used to communicate incidents to the legal
department; (4) a Resident/General Liability Incident Report concerning a separate incident on
November 6, 2016; and, (5) a Resident/General Liability Incident Report concerning a separate
incident, created on August 26, 2016. The defendants, however, have agreed to produce the plan
of correction that was originally withheld as privileged. (Def. Response at 11).
“The attorney-client privilege protects confidential communications between client and
counsel made for the purpose of obtaining providing legal assistance.” In re County of Erie, 473
F.3d 413, 418 (2d Cir. 2007). The party asserting that discovery is barred by the Connecticut
medical peer review statute bears the burden of proving facts that establish the applicability of the
statute to the documents the party seeks to withhold. Babcock v. Bridgeport Hosp., 251 Conn. 790,
847-49, 742 A.2d 322 (1999). “Confidentiality properly attaches to peer review documents only
when the moving party has provided sufficient information to enable the court to determine that
each element of the privilege is satisfied . . . . A failure of proof as to any element of the privilege
causes the claim of privilege to fail.“ Id. at 828-29 (citation and internal quotations omitted).
“[A]lthough a statutory privilege must be applied so as to effectuate its purpose, it is to be applied
cautiously and with circumspection because it impedes the truth-seeking function of the
adjudicative process.” Id. at 819. The defendants must show that the “documents and discussions
at issue constituted the proceedings of a medical review committee, and that the committee was
specifically conducting a peer review proceeding.” Kristian Best, Adm'x of the Estate of Rohan K.
Williams v. CCWC Prof'l Practice Group, LLC dba Connecticut Childbirth & Women's Ctr., No.
DBDCV186025335S, 2019 WL 6999125, at *3 (Conn. Super. Ct. Nov. 21, 2019).
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In this case, like in Babcock, the defendants made conclusory statements without any
evidentiary showing that the reports and investigations meet the statutory definition of a peer
review proceeding. The defendants claim that the incident reports and internal investigations are
reviewed by Sunrise of Stamford’s quality assurance committee, and the quality assurance
committee falls within the definition of a peer review committee. Thus, according to the
defendants, the reports and investigations are “documents of medical peer review committees” and
are deemed “confidential and immune from discovery[.]” (Def. Response at 11). The peer review
exemption, however, “relates only to ‘the proceedings of a medical review committee conducting
a peer review’ not to all activities conducted by a medical review committee.” Babcock, 251 Conn.
at 827 (quoting CONN. GEN. STAT. § 19a-17b). This narrow definition of the exemption is
important because any “evidence of a practitioner’s negligence is immune from discovery only to
the extent that it is disclosed solely during the course of peer review.” Babcock, 251 Conn. at 826
(emphasis added).
The defendants claim that the “creation of the internal incident reports and internal
investigation report was for review by the quality assurance committee in order to improve the
quality of the care provided by the assisted living services agency.” (Def. Response at 12). The
defendants offer, upon request of the Court, but have not submitted, an affidavit “substantiating
the claim of privilege for the incident reports, general liability report form, and internal
investigation.” (Id.). On or before February 13, 2020, the defendants shall submit an affidavit,
along with copies of the five withheld documents that they assert are immune from discovery by
the peer review privilege, for the Court’s in camera review.8
III.
8
CONCLUSION
Defense counsel shall contact Chambers for instructions on the form of submission of these in camera documents.
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Accordingly, as detailed above, the Court grants in part and denies in part the plaintiff’s
and the defendants’ discovery requests set forth in their extensive letter briefing. (Doc. Nos. 9798, 104-05, 113-15). The lengthy additional briefing that has occurred in this case, including the
briefs filed yesterday (Doc. Nos. 119-20), reflects counsel’s inability to meet and confer in a
productive manner. The parties are directed to address outstanding discovery in a cooperative
manner. If additional disputes arise, the parties shall contact Chambers for a telephonic discovery
conference before filing additional briefing.
This is not a Recommended Ruling. This Ruling is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P. 72(a); and
D. CONN. L. CIV. R. 72.2. As such, it is an order of the Court unless reversed or modified by the
district judge upon timely made objection.
Dated at New Haven, Connecticut, this 30th day of January, 2020.
__/s/ Robert M. Spector_____________
Robert M. Spector
United States Magistrate Judge
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