Dobbey v. Randle et al
Filing
209
Order Signed by the Honorable Mary M. Rowland on 4/7/2014.Mailed notice(gel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LESTER DOBBEY,
Plaintiff,
v.
MICHAEL RANDLE, et al.,
No. 10 C 3965
Magistrate Judge Mary M. Rowland
Defendants.
ORDER
Plaintiff’s Motion to Compel [197] is GRANTED IN PART and DENIED IN
PART. All documents ordered produced shall be postmarked by April 21, 2014.
STATEMENT
On February 1, 2013, Plaintiff served Liping Zhang, M.D., and Latonya Williams, P.A. (Defendants) with Plaintiff’s First Request for Production of Documents.
On or about August 21, 2013, Plaintiff served Defendants with his Second Request
for Production of Documents. In spite of several requests by Plaintiff, including filing motions to compel, Defendants did not respond to the First and Second Request
for Production of Documents until September 30, 2013.
In his Motion to Compel, Plaintiff seeks an order compelling the production of
the information requested in his First and Second Request for Production. Plaintiff
contends that Defendants’ objections to the First Request for Production of Documents have been waived as untimely. (Mot. 1–7). While Defendants should have responded to Plaintiff’s discovery requests within 30 days, Fed. R. Civ. P. 34(b)(2)(A),
the Court exercises its discretion to rule on the merits of Defendants’ objections.
Nevertheless, Defendants are reminded of their obligations to respond to discovery
without requiring Plaintiff to write letters demanding responses and to file motions
to compel. Further incidents of this kind will result in modest sanctions to compensate Plaintiff for the money he spends on paper and ink in obtaining discovery responses to which he is entitled.
Defendants’ “main objection … is that the documents requested are those of
Wexford Health Sources Inc. and not of the actual[] [sic] defendants, Dr. Zhang and
Ms. Williams, P.A.” [Dkt. 202 at 1]. “[I]t is well-settled that discovery obligations
require a party to produce more than merely the documents in its possession.”
SRAM, LLC v. Hayes Bicycle Grp., Inc., 12 C 3629, 2013 WL 6490252 (N.D. Ill. Dec.
10, 2013). Rule 34(a)(1) calls for production of documents “in the responding party’s
possession, custody, or control.” (Emphasis added.) The concept of “control” is construed broadly and “includes documents that a party has the legal right to obtain on
demand.” Am. Soc’y for the Prevention of Cruelty to Animals v. Ringling Bros. and
Barnum & Bailey Circus, 233 F.R.D. 209, 212 (D.D.C. 2006). The fact that a document is generated by Dr. Zhang’s employer, Wexford Health Sources, Inc., does not
do away with Dr. Zhang’s obligations under the Federal Rules of Civil Procedure to
produce documents within his possession, custody or control.
After careful review of Plaintiff’s Motion and Defendants’ responses, the Court
rules on Defendants’ objections as follows:
First Request for Production
Request No. 1
Sustained. Defendants have produced the relevant policies in effect in and
around 2008. The burden of producing the entire Prison Operations and Policies
from 2007 through the present outweighs any benefits.
Request No. 2
Overruled. The Illinois Department of Corrections (IDOC) claims this is a
“Wexford document.” Dkt. 198 at 4. In an order issued on April 1, 2014, the Court
ordered the IDOC to “file a description of any ‘Wexford Quality Improvement Program or Manuals’ in its possession, custody, or control, as defined by the Federal
Rules of Civil Procedure, that were in effect during the period of September 2008
through June 2011.”[Dkt. 207]. Defendants Zhang and Williams are also ordered to
produce, by April 21, 2014, a description of any ‘Wexford Quality Improvement Program or Manuals’ in their possession, custody, or control, as defined by the Federal
Rules of Civil Procedure that were in effect between September 2008 through June
2011. The Court will then consider the issues of relevance and burden.
Request No. 3
Sustained. Wexford’s “Orientation and Physician’s Handbook” and “Orientation
and Physician’s Assistant Handbook or Manuals” from 2007 to the present is overly
broad and is not likely to lead to admissible evidence.
Request No. 4
Sustained. Insurance agreements and policies are not relevant at this stage of
the case.
Request No. 5
Sustained. Settlements regarding Defendants Zhang and Williams are not reasonably likely to lead to admissible evidence.
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Request No. 6
Overruled. To the extent the following policies exist and have not already been
produced, Defendants shall produce Wexford’s policies, guidelines, procedures, and
protocols that were in effect around 2008 related to (A) Gastroenterology; (C) Bacterial Infections, Intestine, Abdomen; (E) Referrals for Off-Site/Outside Hospital Consultations; (F) Physical Exams; (G) Treatment Plans; and (I) Sick Call Request.
Request Nos. 7–13
Sustained. Requested records are in IDOC’s possession, custody, and control
and are the subject of a separate order by this Court. [Dkt. 206].
Request No. 14
Overruled. Defendants shall provide a list of judgments against Defendants
Zhang and Williams in civil actions from 2008 through the present.
Request No. 15
Sustained. Defendants have produced Utilization Management records. All
other Plaintiff’s medical records are in IDOC’s possession, custody, and control.
Second Request for Production
Request No. 1
Overruled. Defendants do not adequately substantiate how this request for
grievance procedures is overbroad, vague, or not relevant. Defendants shall produce
all Wexford grievance policies and procedures for health complaints, to the extent
that there are any additional documents not produced with Exhibit A to Defendants’ response to Plaintiff’s First Production Request.
Request No. 2
Overruled. Defendants do not adequately substantiate how this request for
health care standards is overbroad, vague, or “equally accessible to Plaintiff.” Defendants shall produce the “National Commission of Correctional Health Care
(NCCHC) Standards” which pertain to type of treatment at issue in this case, which
are in Defendants’ possession, custody, or control.
Request No. 3
Sustained. Defendants have produced the relevant policies in effect in and
around 2008. The burden of producing the entire Prison Operations and Policies
from 2007 through the present outweighs any benefits.
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Request No. 4
Sustained. Wexford’s “Orientation Handbook and/or Manuals for Physicians,
Dentists, Nurse Practitioners and Physician Assistants” are not relevant to the
claims at issue.
Request No. 5
Overruled. “The Illinois Medical Studies Act (MSA), 735 ILCS 5/8–2101 et seq.,
protects the records, reports, notes, and the like, of hospitals, hospital committees,
medical societies, and other review groups used in the course of internal quality
control or medical study for the purpose of improving morbidity and mortality, or
for improving patient care.” Buechel v. United States, 08 C 132, 2010 WL 3613930,
at *1 (S.D. Ill. Sept. 8, 2010). However, original records pertaining to patients are
not covered under the Act. 735 ILCS 5/8–2101. Moreover, federal courts have declined to recognize a state evidentiary privilege when doing so would impose a substantial cost to federal substantive and procedural policy, particularly when a plaintiff would be precluded from pursuing his federal claims. See Univ. of Penn. v.
EEOC, 493 U.S. 182, 193, 202 (1990) (refusing to create a new common-law privilege protecting records relating to the peer review process in a Title VII action, finding the records should be produced in part because it was the very peer review process itself that was at issue); Mem’l Hosp. for McHenry County. v. Shadur, 664 F.2d
1058, 1059 (7th Cir. 1981) (holding that the state privilege should not apply when
the peer review records sought directly related to the allegations challenging the
peer review process); U.S. v. State of Ill., 148 F.R.D. 587, 590–91 (N.D. Ill. 1993) (refusing to recognize the Illinois Medical Studies Act evidentiary privilege in a federal
civil rights case because doing so would thwart the purpose of the underlying federal statute); accord Clemmer v. Office of Chief Judge, 544 F. Supp. 2d 722, 726–27
(N.D. Ill. 2008).
Defendants shall produce Annual Performance Reviews and Peer Reviews of
Drs. Ghosh and Zhang and LaTanya Williams for 2008 and 2009 to the Court for in
camera review by April 21, 2014.
Request No. 6
Sustained. On April 1, 2014, the Court determined that any marginal relevance
of these minutes is outweighed by the burden in producing meeting minutes. See
April 1, 2014 Order (“Under the circumstances, the Court finds that any marginal
relevance is outweighed by the burden to IDOC in producing the meeting minutes.
See Widermyre v. Transamerica Commercial Fin. Corp., 95 C 1329, 1995 WL
548642, at *1 (N.D. Ill. Sept. 13, 1995) (“Where materials sought to be discovered
have arguable relevance, the Federal Rules of Civil Procedure direct courts to limit
or deny discovery where the burden to the producing party outweighs the needs of
the requesting.”); Fed. R. Civ. P. 26(b)(2)(C)(iii) (courts may limit discovery if “the
burden or expense of the proposed discovery outweighs its likely benefit”); accord
Malibu Media, LLC v. John Does 1–6, 291 F.R.D. 191, 197 (N.D. Ill. 2013).”).
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Request Nos. 7–8
Sustained. Defendants have produced the relevant policies in effect in and
around 2008. The burden of producing the entire Prison Operations and Policies
from 2007 through the present outweighs any benefits.
Request No. 9
Sustained. Wexford’s “Specialty Referral Studies and Chronic Clinic Studies for
Medical Care at Stateville” from 2008 to present are not reasonably likely to lead to
admissible evidence.
Request No. 10
Sustained. Pharmacy policies, procedures, and manuals are not reasonably
likely to lead to admissible evidence.
Request No. 11
Sustained. Defendants have produced the relevant portions of the Utilization
Management Guide (UMG) in effect in and around 2008. The burden of producing
the entire UMG from 2007 through the present outweighs any benefits.
Request No. 12
Overruled without prejudice. Defendants do not adequately substantiate
how a request for the “Summary of Policy Recommendations for Periodic Health
Examination” in effect in and around 2008 is overbroad, vague, not relevant, or
privileged. By April 21, 2014, the defendants shall file a clarification to this response.
Request No. 13
Sustained. Requested records are in IDOC’s possession, custody, and control.
Request Nos. 14–17
Overruled. Defendants do not adequately substantiate how these requests for
information related to Dr. Zhang’s resignation, and Dr. Zhang’s and Williams’s alleged mismanagement of inmates are overbroad, vague, not relevant, or privileged.
As discussed above, the Medical Studies Act creates a state-law privilege not binding in this action.
Defendants shall produce the information requested in Request Nos. 14, 15, 16,
and 17 to the Court for in camera review by April 21, 2014.
Request No. 18
Overruled without prejudice. Defendants do not adequately explain how
Wexford’s “Master Problem List for Stateville’s Health Care Unit” and improvement
list is not relevant, would be overly burdensome to produce, or why it is contained
Dobbey v. Randle, No. 10 C 3965
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within patients’ medical files and therefore implicates HIPAA. By April 21, 2014,
the defendants shall file a clarification to this response.
Request No. 19
Sustained. Catalogs of Wexford policies and procedures are not reasonably likely to lead to admissible evidence.
Request No. 20
Sustained. Catalogs of NCCHC and ACA standards are not reasonably likely to
lead to admissible evidence.
Request No. 21
Sustained. The master list of Wexford policies and procedures is not reasonably
likely to lead to admissible evidence.
Dated: April 7, 2014
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