Lymon v. Wexford Health Service, Inc. et al
Filing
224
MEMORANDUM Opinion and Order: For the reasons stated in the attached Opinion, Plaintiff's motions to compel 199 205 are granted. The telephonic status hearing remains set for 11/30/2020 at 9:15 AM. Signed by the Honorable Lisa A. Jensen on 11/24/2020. Mailed notice (jp, )
Case: 3:17-cv-50093 Document #: 224 Filed: 11/24/20 Page 1 of 8 PageID #:3685
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Anthony C. Lymon,
Plaintiff,
v.
Dr. Timothy Chamberlain and
Wexford Health Sources, Inc.,
Defendants.
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Case No. 17 CV 50093
Magistrate Judge Lisa A. Jensen
MEMORANDUM OPINION AND ORDER
For the reasons stated below, Plaintiff’s motions to compel [199] [205] are granted.
I. Background
Plaintiff Anthony C. Lymon brings claims under 42 U.S.C. § 1983 against Defendants
Wexford Health Sources, Inc., a medical contractor for the Illinois Department of Corrections
(“IDOC”), and Dr. Timothy Chamberlin alleging they were deliberately indifferent to his serious
medical needs while he was an inmate at Dixon Correctional Center in 2016 and 2017. Plaintiff
alleges that Defendants failed to promptly remove a large growing mass in Plaintiff’s abdomen for
approximately one year following its discovery. The mass was eventually removed and was
determined to be cancerous.
As to Defendant Wexford, Plaintiff alleges that Wexford’s policies, procedures, and
practices caused substantial delays in his treatment, namely for offsite treatment and specialty care,
and resulted in unconstitutional medical care. In support of this claim, Plaintiff obtained public
versions of the expert reports issued in Lippert, et al. v. Ghosh, et al., No. 1:10-CV-04603 (N.D.
Ill.), a class-action lawsuit alleging inadequate healthcare provided to IDOC inmates. In Lippert,
the court appointed two separate experts to assess the medical care provided to IDOC inmates and
to issue reports with their findings and recommendations. The first report was issued in 2014, and
a follow-up report was issued in 2018. Both the 2014 and 2018 reports included facility-specific
findings relating to Dixon Correctional Center and identified numerous systemic failures in the
prison healthcare system, including leadership issues and staffing deficiencies that resulted in
delays relating to offsite services, referrals for specialty care, and follow-up visits with inmates.
See Dkts. 223-4, 223-5.
On August 31, 2020, Plaintiff served a supplemental set of document requests on
Defendant Wexford. Of relevance here, Request for Production No. 26 requested:
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All Documents underlying the Lippert reports (Bates Nos. Lymon 7646-8203),
including but not limited to Documents Defendant and third-parties provided to
the authors of the Lippert reports while the reports were being drafted and
Documents referenced in or otherwise relied upon by the authors of the Lippert
reports in reaching the opinions expressed in the reports.
Plaintiff’s Motion, Ex. A, Dkt. 205-1. The relevant time period for the request was January 1, 2015
through October 31, 2018. Id.
Similarly, on September 1, 2020, Plaintiff issued a subpoena to the IDOC seeking the same
documents underlying the Lippert reports. Plaintiff’s Motion, Ex. A, Dkt. 199-1. However, the
subpoena to the IDOC had a broader time period, namely from January 1, 2013 through
December 31, 2018. The subpoena required production of responsive documents by September 15,
2020.
After receiving no response to the subpoena, Plaintiff followed up with the IDOC on
September 16, 2020. On the same day, the IDOC mistakenly produced Plaintiff’s medical records,
which were not responsive to the subpoena. After several meet and confers between counsel for
the IDOC and Plaintiff’s counsel, the IDOC ultimately refused to produce any additional
documents. Accordingly, on September 29, 2020, Plaintiff filed a motion to compel against the
IDOC, seeking compliance with the subpoena pursuant to Federal Rule of Civil Procedure 45. Dkt.
199.
Following the filing of Plaintiff’s motion, counsel for the IDOC informed Plaintiff’s
counsel in writing on September 30, 2020, why it could not comply with the subpoena. The IDOC
argued, in part, that the request was burdensome based on the large volume of documents that the
request included and the fact that the files previously produced to the experts were not maintained
in a central location or stored in a manner that would be easily identifiable. Dkt. 217-3.
On September 30, 2020, Plaintiff also filed a motion to compel against Defendant Wexford
for failing to produce documents responsive to Request for Production No. 26. 1 Defendant
Wexford objected to the discovery as vague, overly broad, burdensome, and irrelevant. Plaintiff’s
Motion, Ex. C, Dkt. 2015-3. Defendant Wexford also asserted that the Lippert reports themselves
were inadmissible. The Court held a hearing on both motions to compel on October 16, 2020.
Following the hearing, the IDOC, Defendant Wexford, and Plaintiff filed written responses to the
motions. See Dkts. 217, 219, 220.
II. Standard of Review
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional
to the needs of the case, considering the importance of the issues at stake in the action, the amount
in controversy, the parties’ relative access to relevant information, the parties’ resources, the
1
Plaintiff originally moved to compel Defendant Wexford to produce documents responsive to Requests
for Production Nos. 25 and 26. However, after filing the motion the parties resolved Request for Production
No. 25.
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importance of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “The scope of material
obtainable pursuant to a Rule 45 subpoena is as broad as what is otherwise permitted under Rule
26(b)(1).” In re Kleimar N.V. v. Benxi Iron & Steel America, Ltd., No. 17-cv-01287, 2017 U.S.
Dist. LEXIS 124437, at *19 (N.D. Ill. Aug. 7, 2017) (internal quotation marks and citation
omitted). “A party seeking such discovery should point to something that demonstrates that the
requested documents are both relevant and proportional to the needs of the case, as Rule 26
dictates.” Allstate Insurance Co. v. Electrolux Home Products, No. 16-cv-4161, 2017 U.S. Dist.
LEXIS 189229, at *10 (N.D. Ill. Nov. 15, 2017); see also Autotech Techs. Ltd. Partnership v.
Automationdirect.com, Inc., 235 F.R.D. 435, 440 (N.D. Ill. 2006) (“The initial inquiry in
enforcement of any discovery request is one of relevance.”). “If discovery appears relevant, the
burden is on the party objecting to a discovery request to establish the request is improper.” Doe
v. Loyola Univ. Chicago, No. 18 CV 7335, 2020 WL 406771, at *2 (N.D. Ill. Jan. 24, 2020).
III. Discussion
A. IDOC
The IDOC’s main objection to the subpoena is based on undue burden. But first, the Court
will address the timeliness of the IDOC’s objection to the subpoena. Federal Rule of Civil
Procedure 45(d)(2)(B) provides that a person commanded to produce documents may object, but
the objection must be in writing and served on the party by the time specified for compliance or
within 14 days after the subpoena is served, whichever is earlier. Here, the subpoena was served
on September 1, 2020 and compliance was required by September 15, 2020. The IDOC did not
respond to the subpoena or serve any objection by September 15, 2020.
It was not until September 30, 2020 that the IDOC stated its objection in writing. This late
objection is in part explained by the fact that an IDOC employee mistakenly accepted the subpoena
believing it was a routine request for inmate records. Counsel for the IDOC was first retained on
September 28, 2020. Nevertheless, counsel for the IDOC was able to speak with Plaintiff’s counsel
about its objections before the instant motion was filed. The IDOC’s objections are now fully
briefed and before this Court, and Plaintiff has not shown any prejudice if the Court were to
consider the objections in deciding this motion. See American Federation of Musicians of the
United States & Canada v. Skodam Films, LLC, 313 F.R.D. 39, 44 (N.D. Tex. 2015) (“Unusual
circumstances warranting consideration of [untimely] objections [to subpoena duces tecum] have
included those where counsel for the nonparty and for the subpoenaing party were in contact with
respect to the nonparty’s compliance prior to the time the nonparty challenged the subpoena.”)
(internal quotation marks and citation omitted). Moreover, the Court may sua sponte quash a
subpoena or issue a protective order for good cause shown. See Sanchez Y Martin, S.A. de C.V. v.
Dos Amigos, Inc., No. 17CV1943 LAB (JMA), 2018 WL 2387580, at *4 (S.D. Cal. May 24, 2018)
(“Even assuming arguendo Defendant’s objections had been waived, because the subpoena seeks
information not relevant to the claims or defenses in this case, the Court would still not require
compliance with the subpoena.”); Singletary v. Sterling Transp. Co., 289 F.R.D. 237, 241 (E.D.
Va. 2012); Fed. R. Civ. P. 26(b)(2)(C) (allowing a court to issue a protective order on its own
initiative to limit discovery if it is outside the scope permitted by Rule 26(b)(1)). Accordingly, the
Court will consider the IDOC’s objections in deciding the instant motion.
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Plaintiff seeks to compel the IDOC’s compliance with the subpoena, arguing that the
documents underlying the Lippert reports are both relevant to Plaintiff’s Monell claim against
Defendant Wexford and proportional to the needs of the case. 2 “To prove an official policy,
custom, or practice within the meaning of Monell, [a plaintiff] must show more than the
deficiencies specific to his own experience[;]” he must show “systemic and gross deficiencies in
staffing, facilities, equipment, or procedures in a detention center’s medical care system.” Daniel
v. Cook Cty., 833 F.3d 728, 734-35 (7th Cir. 2016). “District courts addressing discovery-related
disputes in cases involving Monell claims have routinely recognized that such claims often require
a broad and substantial amount of discovery that would not be involved if the plaintiff sued only
the individuals directly involved in the deprivation of his rights.” Awalt v. Marketti, No. 11 C 6142,
2012 WL 6568242, at *3 (N.D. Ill. Dec. 17, 2012).
Plaintiff references specific portions of the Lippert reports to show the documented pattern
of systemic deficiencies and untimely medical care at Dixon Correctional Center allegedly caused
by Defendant Wexford’s policies and practices. Both the IDOC and Defendant Wexford argue that
Plaintiff has not shown how documents before and after his treatment in 2016 and 2017 would be
relevant to his claims. It is true that the 2014 and 2018 reports and the underlying documents would
both predate and postdate Plaintiff’s treatment. Nevertheless, Defendant Wexford’s policies and
practices shortly before and after Plaintiff’s claims may show that Wexford used similar costcutting polices during 2016 and 2017 that caused the inadequate medical care Plaintiff alleges.
Moreover, Plaintiff points out that the 2018 report found no improvement in the provision of
specialty care from the 2014 report. See Von Ryburn v. Obaisi, No. 14 CV 4308, 2020 WL
3868715, at *13 (N.D. Ill. July 9, 2020) (“A jury could find that Wexford knew that collegial
review threatened inmates’ constitutional right to obtain adequate health care for their objectively
serious medical needs, but nevertheless maintained the policy. The key predicate of such a finding
is the Lippert Report, both volumes of which Wexford’s corporate representative knew about
shortly after their release.”). Therefore, the apparent deficiencies found in the records underlying
both the 2014 and 2018 reports would clearly be relevant to Plaintiff’s Monell claim. The
underlying documents will either establish or refute Plaintiff’s claim that Defendant Wexford’s
policies or practices caused the delays in his offsite services and specialty care.
Nevertheless, the IDOC takes issue with Plaintiff’s request for all documents underlying
the Lippert reports, stating that “[n]o parameters were included in this request or specification of
the type or class of documents sought.” IDOC’s Response at 4, Dkt. 217. What the IDOC fails to
mention is that the subpoena is limited to the time period of January 1, 2013 through December 31,
2018. 3 At oral argument, Plaintiff further limited the subpoena to documents relating only to Dixon
2
Because the IDOC and Defendant Wexford raise similar arguments about relevance, proportionality, and
undue burden, the Court will address all of those arguments in relation to the subpoena to the IDOC.
3
Defendant Wexford makes a similar argument of undue burden, claiming it provided documents to the
Lippert experts dating back to 2006 and spanning approximately 14 years. Yet, Request for Production No.
26 was limited to January 1, 2015 through October 31, 2018. It is unclear why the relevant time period for
the discovery issued to the IDOC and Defendant Wexford were not identical. However, because the parties
do not raise a specific objection, the Court will not address it here. See RBS Citizens, N.A. v. Husain, 291
F.R.D. 209, 222 (N.D. Ill. 2013) (“[T]he Court does not compel parties to produce documents that were not
requested.”).
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Correctional Center. Accordingly, this request for facility-specific documents spans only a few
years before and after Plaintiff’s treatment and therefore is not overly broad and is proportional to
the needs of the case. See Awalt, 2012 WL 6568242, at *6 (finding a plaintiff’s request for
documents pertaining to medical care over the five-year period at one facility not overly broad
because the plaintiff must show “that her husband’s constitutional rights were violated as a result
of a widespread policy, practice, or custom of denying medical care that the Defendants were
aware of and failed to correct”).
The Court will now turn to the IDOC’s claim of undue burden. The IDOC has attached a
declaration from its legal counsel in support, but it falls short of showing an undue burden. See
IDOC’s Response, Ex. 4, Dkt. 217-4. Although the declaration states that the documents provided
for the 2018 report alone range from 15,000 to 20,000 documents in addition to medical records,
it does not indicate whether these documents relate only the Dixon Correction Center, as opposed
to the 27 IDOC facilities that were part of the report. The IDOC also makes no claim as to the
number of documents provided for the 2014 report and instead makes conclusory allegations that
“[i]t would be impossible to identify documents produced to the 2014 report authors as the files
are not in a central location or stored in a manner that would be easily identifiable” and “[m]any
of the individuals at these facilities, with responsibilities of tendering such documentation are no
longer employed by IDOC.” Id.
While this may be true, Plaintiff points out that the Lippert reports make specific references
to categories of documents and inmate files that were reviewed. Although these reports were
redacted when filed publicly, Plaintiff argues that the IDOC, as a party to the Lippert action where
the documents were produced, cannot make a compelling claim of undue burden in identifying
and producing the same documents. In light of the identification of many of the underlying
documents within the reports themselves, the Court agrees that the IDOC’s receipt of the
confidential versions of those reports reduces the burden on the IDOC in identifying the documents
requested by Plaintiff. 4 The Court also finds this procedure much less burdensome than if Plaintiff
had requested all documents between January 1, 2013 and December 31, 2018 for inmates at Dixon
Correctional Center that sought offsite services. Here, the documents Plaintiff seeks have already
been collected and produced once. Plaintiff is now seeking those same documents so that his own
expert may opine on them.
Nevertheless, the IDOC maintains that it cannot identify and produce the underlying
documents that the experts relied upon, arguing that the Lippert experts would be in the best
position to produce such documents. Although the Court understands the difficulty in identifying
documents the experts relied upon, as opposed to documents that were provided to the experts or
referenced in the reports, this does not excuse the IDOC from responding to the subpoena entirely.
Moreover, the experts themselves are not a source of this information. Not only do the orders
appointing the experts in the Lippert case restrict the experts’ use of the underlying documents, 5
but Plaintiff has pointed to other rulings in the Lippert case suggesting that the experts do not have
4
Defendant Wexford, although dismissed as a party in the Lippert case before the experts were appointed,
also received confidential versions of the reports.
5
Defendant Wexford admits that “[e]ven if Plaintiff had issued records or deposition subpoenas to the
correct source of the reports [i.e. the experts], the Lippert Orders would again prohibit the authors to
produce [sic] the requested documents.” Wexford’s Response at 4, Dkt. 219.
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the underlying records. See Plaintiff’s Reply at 3, Dkt. 220. Accordingly, the IDOC should first
produce the documents it provided to the experts or are referenced in the reports. Should an issue
arise relating to documents the experts relied upon that are not otherwise easily identifiable or
referenced in the reports, Plaintiff should attempt to meet and confer with counsel to resolve this
issue in a timely manner.
The IDOC further argues that Defendant Wexford, as a party to this case, is a more
convenient source for the discovery and should be required to respond to Plaintiff’s discovery
request first. It is true that the IDOC is a non-party to this case, and non-parties are often afforded
greater protections in when responding to a subpoena. See Patterson v. Burge, No. 03 C 4433,
2005 WL 43240, at *1 (N.D. Ill. Jan. 6, 2005). However, the IDOC is not truly a disinterested third
party to this case. Plaintiff alleges he received constitutionally inadequate medical care at an IDOC
correctional facility by one of the IDOC’s medical contractors. It would be difficult to say that the
IDOC does not have an interest in the outcome of this case. Accordingly, this Court does not find
that he IDOC is entitled to greater protections as a third-party to this case. Regardless, it would
only benefit the IDOC and Defendant Wexford to coordinate their efforts in producing documents
because there will presumably be some overlap. For the reasons stated above, the Court finds that
the IDOC has not shown that it will suffer an undue burden if ordered to produce the requested
documents.
Lastly, the IDOC argues that producing the requested documents would needlessly
compromise third-party inmates’ protective information. The Court agrees that these inmates have
valid privacy interests in their records. But again, such concerns do not prevent the production of
all the documents requested here. First, the IDOC should redact the non-party inmates’ personal
identifiers from the documents produced. See Doe v. MacLeod, No. 3:18-CV-3191, 2019 WL
2601338, at *3 (C.D. Ill. June 25, 2019) (finding error by not ordering IDOC to redact the personal
identifiers of the non-party offenders when producing documents). This appears to have already
been done during the first production based on the reports’ references to generic patient identifiers.
Second, the confidentiality order entered in this case on November 7, 2017, which was signed by
counsel for Plaintiff, Wexford, and the IDOC, applies to “[a]ll materials produced or adduced in
the course of discovery” and “documents produced in response to subpoenas[.]” Confidentiality
Order at 1, Dkt. 48. No one has argued that the confidentiality order is somehow inapplicable to
the documents Plaintiff seeks. Without any evidence to the contrary, this Court finds that any
privacy concerns regarding the documents of other inmates would be adequately protected. Should
the parties determine that additional protection is required once they have reviewed the responsive
documents, they should submit a proposed protective order to this Court.
B. Wexford
Defendant Wexford’s objections to producing the documents underlying the Lippert
reports greatly overlap with the ones outlined above by the IDOC. Unlike the IDOC, however,
Defendant Wexford has not provided an affidavit in support of its claim of undue burden.
Accordingly, the Court will not re-analyze the arguments it has rejected above with respect to
Defendant Wexford and similarly finds that Defendant Wexford has not rebutted Plaintiff’s
showing that the documents requested are relevant or proportional or otherwise sufficiently
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supported its claim of undue burden. However, the Court will address two additional arguments
made by Defendant Wexford.
First, a major part of Defendant Wexford’s objection to producing the documents
underlying the Lippert reports is its argument that the reports themselves are inadmissible hearsay.
This argument fails for several reasons. Despite Defendant Wexford’s lengthy argument about the
inadmissibility of the reports, Wexford fails to address the possible use of the reports and/or the
underlying documents for non-hearsay purposes. See Von Ryburn, 2020 WL 3868715, at *13
(“The Lippert Report is admissible, moreover, for the non-hearsay purpose of showing that
Wexford was on notice of potentially serious shortcomings with its collegial review policy,
including the policy’s effect on inmates’ ability to obtain needed care from an outside specialist.”)
(collecting cases). Defendant Wexford also makes a conclusory argument that because it believes
the reports are inadmissible, so too are all the documents underlying the reports. See Wexford’s
Response at 6-7, Dkt. 219 (“The Lippert reports are inadmissible; thus, all documents underlying
the Lippert reports must also be inadmissible.”). However, Defendant Wexford does not cite any
authority to support this claim, and as set forth above there may be non-hearsay purposes for which
the admission of the Lippert reports and/or their underlying documents are sought. In addition to
the notice example set forth above, Plaintiff alleges that he intends to provide the documents
underlying the Lippert reports to his own expert to review. The source of an expert’s opinion need
not be admissible at trial in order for the opinion to be admissible. See Fed. R. Evid. 703.
Regardless, the reports’ admissibility is not before the Court. Not only is Plaintiff seeking
the documents underlying the reports, not the reports themselves, but Plaintiff has not yet sought
to introduce these documents or opinions based on these documents at summary judgment or trial.
See Coleman v. Illinois, No. 19 C 3789, 2020 WL 5752149, at *3 (N.D. Ill. Sept. 25, 2020)
(“Because discovery is concerned with ‘relevant information’ not ‘relevant evidence’ the scope of
relevance for discovery purposes is necessarily broader than it is for trial evidence under Federal
Rule of Evidence 401.”). Therefore, the only issue before the Court is whether the documents
underlying the reports are discoverable. See Fed. R. Civ. P. 26(b)(1) (“Information within this
scope of discovery need not be admissible in evidence to be discoverable.”); Coleman v. Illinois,
No. 19 C 3789, 2020 WL 5752149, at *4 (N.D. Ill. Sept. 25, 2020) (“The natural tendency of
courts is to allow the civil litigant to discover information that is broadly ‘relevant,’ even if there
may be a strong argument against its admissibility.”).
Second, Defendant Wexford argues that responding to Plaintiff’s discovery request would
violate the court orders entered in the Lippert case. See Wexford’s Response, Ex. 1 and 2, Dkts.
219-1, 219-2. However, these orders are not as broad as Defendant Wexford asserts.
In the 2013 and 2017 orders appointing the experts, the court in Lippert stated, in part:
“The Expert, his consultants and assistance shall not provide opinions and/or testimony in
unrelated cases based on knowledge and/or information gained in the course of performing their
services in this matter.” Wexford’s Response, Ex. 1 at 2, 9, Dkt. 219-1. The order further stated:
“The Expert and his consultants and assistants, and counsel for any party, shall maintain the
confidentiality of all material obtained and reviewed pursuant to this Order, as if all material was
marked ‘Attorneys Eyes Only’ as set forth in the Protective Order entered by this Court on
April 11, 2012.” Id. at 5, 12. However, as Plaintiff points out, the protective order entered in
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Lippert states that “[n]othing in this Order shall prevent a Party from disclosing or using any of its
own documents, information or things as it deems appropriate.” Lippert, No. 1:10-cv-04603, Dkt.
111 at 8. Additionally, the court in Lippert acknowledged that an intervening party was able to
request the underlying documents from the IDOC and Wexford directly for his case. See Lippert,
No. 1:10-cv-04603, Dkt. 653 at 3 n.3 (“The originals of the documents relied on by Dr. Shansky
remain with IDOC or Wexford. Mr. Burks could have pursued their production directly in his case
if they were essential to his claim.”). As such, ordering Defendant Wexford or the IDOC to produce
the underlying documents does not violate these court orders. 6
IV. Conclusion
Therefore, Plaintiff’s motions to compel against the IDOC and Defendant Wexford are
granted. The IDOC shall produce documents responsive to the subpoena and Defendant Wexford
shall produce documents responsive to Request for Production No. 26.
Date: November 24, 2020
By:
6
______________________
Lisa A. Jensen
United States Magistrate Judge
Defendant Wexford also cites the confidentiality provisions of the consent decree regarding documents
gathered by the monitor in the Lippert case. Wexford’s Response, Ex. 2, Dkt. 219-2. The Court will not
address these provisions because Plaintiff has made it clear that he is not seeking documents underlying the
monitor’s report. See Plaintiff’s Reply at 8 n. 5, Dkt. 220.
8
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