Assaf v. OSF Healthcare System, an Illinois not for profit corporation d/b/a SAINT FRANCIS MEDICAL CENTER
Filing
62
ORDER by Magistrate Judge John A. Gorman granting in part and denying in part 56 Motion to Compel and granting in part and denying in part 50 Motion to limit discovery. See written order. Entered on 1/29/14. (WW, ilcd)
E-FILED
Wednesday, 29 January, 2014 02:35:06 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
Dr. Bassam Assaf
Plaintiff
v.
OSF Healthcare System, an Illinois not for
profit corporation d/b/a SAINT FRANCIS
MEDICAL CENTER
Defendant
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11-4108
ORDER
Now before the Court are two motions: Defendant’s Motion to Limit Discovery (#50)
and Plaintiff’s Motion to Compel (#56). These motions are fully briefed, and a hearing on these
motions was held on Jan. 28, 2014. I have carefully considered the submissions and arguments of
the parties. The motion to compel (#56) is granted in part and denied in part, as stated herein.
The motion to limit discovery (#50) is granted as stated herein.
I. WRITTEN DISCOVERY GENERALLY
The scope of discovery is governed by FRCP 26(b), which provides that discovery may
be had on any subject not privileged that is relevant to the claims and defenses raised by the
parties. The evidence need not be admissible to be discoverable, so long as it is reasonably likely
to lead to the discovery of relevant information. This Rule - and the other discovery rules - apply
with equal force to ESI.
Discovery is limited in other ways stated in FRCP 26(b)(2)(C): it cannot be unreasonably
cumulative or duplicative. If some other source is more convenient or less burdensome or less
expensive, the request should be limited. It should also be limited if the burden or expense of the
discovery outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues, and the importance of the
discovery.
Interrogatories are governed by FRCP 33, and Requests for documents by FRCP 34. Both
rules incorporate the scope of discovery from Rule 26(b). Each interrogatory must be answered
to the extent it is not objected to, and grounds for objections must be stated with specificity. An
interrogatory can be answered by referring to documents. The same is true for document
requests: the requests must be reasonably descriptive, and the answers must either allow
production/inspection or state a specific objection.
II. LAW OF EMPLOYMENT DISCRIMINATION
In order to evaluate the discovery disputes, elements of Plaintiff’s claim must be
considered, so issues of relevance and burden can be evaluated.
In this case, Plaintiff Dr. Bassam Assaf alleges that Defendant OSF Healthcare System
(herein, “OSF”) discriminated against him and retaliated against him on the basis of race and
national origin, in violation of Title VII. He also claims breach of contract and violation of the
Illinois Wage Payment and Collection Act.
Ultimately, if this case goes to trial, Dr. Assaf will have to prove that intentional
discrimination motivated an adverse employment decision. Before trial, however, he will have to
survive summary judgment. To do that, Dr. Assaf will either have to have direct evidence of
discrimination - which is not at issue in the pending motion - or will have to succeed at the
burden shifting, McDonnell Douglas test by establishing a prima facie case of discrimination which requires evidence that
(1) plaintiff was a member of the protected class;
(2) plaintiff was qualified for the job in question or was meeting the employer’s
legitimate performance expectations;
(3) plaintiff suffered an adverse employment action; and
(4) the employer treated similarly situated persons not in a protected class more
favorably.
Bragg v Navistar Intn’l Transp. Corp., 164 F3d 373, 376 (7th Cir 1998). If the prima facie case
is established, then there is a rebuttable presumption of discrimination, which can be rebutted if
defendant articulates a legitimate, non-discriminatory reason for the adverse employment
decision. The burden then returns to the plaintiff to show that the reason was pretext.
III DISCUSSION
Dr. Assaf has served written discovery on OSF. OSF responded to interrogatories and
requests for documents, producing some paper documents and stating objections to some of the
discovery. In addition, OSF acknowledged that more information and documents were available
in electronic form. OSF has been trying since May of 2013 to get agreement from Dr. Assaf
regarding the parameters of a search for relevant electronically stored information (ESI). At no
time since OSF’s initial proposal has Dr. Assaf responded in any way other than to reject the
proposal. He has not proposed alternative terms or record custodians or participated in any
meaningful way in determining the scope of this search.
Dr. Assaf’s refusal to make his own proposal was based in part, as his counsel informed
the Court, on OSF’s statement that it would conduct one and only one ESI search. If the initial
ESI search reveals that additional information exists and should be searched for, Dr. Assaf can,
of course, bring that matter to the Court’s attention via a properly documented motion. At this
time, however, the parties must conduct this search. There must be agreement on the parameters
of the search, and Dr. Assaf must either participate in determining the parameters for a
reasonable initial search or forfeit any right to do so.
At the hearing, the parties were directed to come to agreement promptly on the
parameters of the ESI search and to file a status report within 14 days detailing their agreement.
To the extent that Plaintiff’s motion to compel is based on OSF’s failure to produce electronic
documents, I find that the motion is premature, as Plaintiff cannot possibly under these
circumstances assert that he has engaged in good faith efforts to resolve the dispute.
Accordingly, the Motion to Compel is denied to the extent it seeks ESI, and the Motion to Limit
Discovery is granted to the extent is seeks to compel Dr. Assaf to participate in this process.
Several matters underlying some of the disputes were resolved at the hearing. For
example, the parties acknowledge this Court’s previous ruling that the relevant time frame for
discovery is Jan. 1, 2002 through Dec. 31, 2007. To the extent that paper documents already
produced do not encompass this entire time frame, responses must be supplemented.
Likewise, the parties now agree that any written discovery about “OSF” is limited to the
INI Department at the OSF facility in Peoria, IL. To the extent that the motion to compel seeks
production of documents or information about other OSF facilities or departments or employees
and patients at other OSF facilities or departments, the motion is denied.
In the parties’ mandatory disclosures under FRCP 26(a), the identities of 22 individuals
with knowledge were disclosed, some by Dr. Assaf and some by OSF. To date, OSF has
provided personnel files of the individuals it identified. At the hearing, OSF indicated its
willingness to produce the personnel files of the individuals identified by Dr. Assaf. To the
extent the motion to compel sought those files, the motion is granted. OSF shall supplement its
response by making these files available within 14 days of this date.
The question of who is a comparator to Dr. Assaf is an issue not before the Court at this
time, and the Court need express no final decision as to that matter at this time. Suffice it to say
that information about potential comparators is relevant and discoverable. However, it must be
noted that Dr. Assaf has made no argument that any INI employee other than a physician might
fall into that category, nor has he shown a need for the personnel records of non-comparators
who lack knowledge of the events in this litigation. The scope of discovery at this time is
bounded by the Court’s understanding of the definition of “comparator” and a common sense
application of that understanding to the facts of this case: any comparator must be a physician. If
Plaintiff believes this assumption is incorrect, the matter can be raised and properly briefed in a
subsequent motion. For purposes of the pending motions and this Order, however, that limitation
applies to both paper and electronic discovery.
In response to the Court’s questioning, OSF indicated that there may be physicians who
were employed at INI during the relevant time period who have not yet been disclosed and for
whom no documents have been provided. Because these physicians may be comparators to Dr.
Assaf, OSF must supplement within 14 days its production of documents to include these
physicians.
In Interrogatory 1 and Request 1, Plaintiff basically asked OSF for a listing of all
“administrators, physicians and staff members” of INI for the entire time frame, with certain
information about each of them. First, no such document exists; OSF would have to create it.
The Request to produce it is denied for that reason. As to the interrogatory asking for this
information, Plaintiff has made no showing that the information being sought is relevant, except
as to the 22 people identified in the parties’ Rule 26(a) disclosures and any INI physician
employed during the relevant time period. The motion to compel an answer to this interrogatory
is denied to the extent it seeks information about any employee other than the 22 people
identified in the parties’ Rule 26(a) disclosures and any INI physician employed during the
relevant time period.
Dr. Assaf asserts that the personnel files he has received are incomplete because they do
not appear to include any disciplinary information. According to OSF, if disciplinary actions
were imposed, those actions would be reflected in the personnel files. If the files contain no such
information, then none exists. If OSF has not formally supplemented its responses to written
discovery seeking these files to include this information, it shall do so within 14 days.
With respect to privilege and OSF’s failure to provide a privilege log, OSF states that it
has withheld only one email printout on the basis of privilege. OSF requests that it be allowed to
prepare one single privilege log after the ESI search is conducted. Dr. Assaf stated no opposition
to that request. Any issue in the motion to compel relating to privilege or privilege log is
therefore moot. A privilege log must be properly prepared and served when discovery is
supplemented with ESI.
Plaintiff has sought OSF “medical and operational” policies and procedures. In response,
OSF produced its Professional Staff Policy Books. It also provided indices of Ambulatory
Policies and HR Policies, asking Plaintiff to identify the ones being sought. To date, Dr. Assaf
has not done so. He is directed to review the indices and identify the policies being sought. Once
OSF has received identification of the policies, it shall supplement its response within 14 days.
Dr. Assaf has requested all documents “related to complaints made regarding INI
personnel and activities by employees or patients.” OSF responds that it was able to reproduce
certain records about patient complaints but “has determined that these records were not
maintained in the ordinary course of business and either no longer exist or are unrecoverable.”
At the hearing, Plaintiff explained that certain records of patient complaints would be
relevant to this litigation because at his deposition, he was confronted with “patient concern
logs” and other documents indicating patient complaints. These documents were used as part of
the justification for terminating his employment. He believes, however, that patient complaints
were made about other physicians and that he should be able to show that these complaints were
not a proper basis for OSF’s actions.
OSF responds, however, that these documents are not maintained in the ordinary course
of business and are not placed routinely in employee HR files. The documents that relate to Dr.
Assaf exist because they were copied and provided as part of the EEOC investigation into his
charge of discrimination. OSF cannot, however, recover these records as to other physicians.
Of course, if these records do not exist, OSF cannot produce them. Plaintiff is entitled,
however, to more of an explanation than OSF has given. OSF shall provide Dr. Assaf with an
affidavit from a person with knowledge of document retention explaining how these documents
are generated, who deals with them, and what is done with them. Information about OSF’s
document retention policy would certainly be helpful as well.
Plaintiff has also sought documents about OSF’s Employee Assistance Program (EAP).
When asked how these documents were relevant, his counsel explained that there was evidence
of discord in the INI Group before he was employed and evidence that EAP was involved
somehow with his predecessor and the INI employees. I find that these documents are relevant.
OSF responds, however, that it employs a third party administrator to manage the EAP
program and that the documents are therefore not in their control. Counsel acknowledged,
however, that no effort had been made to ask the third party administrator for those documents.
The Court acknowledges the necessity for separation of EAP documents from the employer. In
this instance, however, a very limited request for those documents relating to the INI department
during the 2 year period preceding Dr. Assaf’s employment must be made by OSF. If for some
reason, the third party administrator declines to produce those documents voluntarily, OSF shall
immediately notify Dr. Assaf’s counsel of that fact and shall identify the third party
administrator. Plaintiff shall then be responsible for serving a subpoena for the relevant
documents. More than that the Court cannot do at this time. If a subpoena is issued and objected
to, the Plaintiff must bring the matter to the Court’s attention promptly.
In Request 7, Plaintiff seeks financial information about OSF from 2005 to the present.
Presumably, this information is sought in relation to Plaintiff’s punitive damages claim. As to
that claim, only the most recent information would be important. In its response, OSF proposed
to produce the Form 990 it prepares annually for the IRS for the years 2010 to the present. That
appears to be sufficient at this time, without prejudice to further inquiry if justified. If OSF has
not yet produced those Forms, it should do so within 14 days.
IV. CONCLUSION
The Court believes that this Order resolves all aspects of the two motions that are
properly presented at this time. Accordingly, as stated herein, the Motion to Compel is denied in
part and granted in part. The motion to limit discovery is granted as stated herein.
Entered: January 29, 2014
s/ John A. Gorman
John A. Gorman
U.S. Magistrate Judge
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