Teasel v. State of Michigan et al

Filing 69

ORDER Granting in Part 62 , 63 Motions to Enforce Subpoena, Denying Without Prejudice 67 Motion to Quash Subpoena, Directing Production of Documents, Setting Deadline for Objections, Scheduling a Status Conference, and Denying Without Prejudice 32 Motion for Preliminary Injunction. ( Defendant's Documents due by 3/23/2018; Objections due by 4/2/2018. Status Conference set for 4/17/2018 at 2:00 PM before District Judge Thomas L. Ludington.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ALLAN TEASEL,
Plaintiff,
v.

Case No. 17-cv-10987
Honorable Thomas L. Ludington

ROSE LASKOWSKI,
Defendant.
_______________________________________/
ORDER GRANTING IN PART MOTIONS TO ENFORCE SUBPOENA, DENYING
WITHOUT PREJUDICE MOTION TO QUASH SUBPOENA, DIRECTING
PRODUCTION OF DOCUMENTS, SETTING DEADLINE FOR OBJECTIONS,
SCHEDULING STATUS CONFERENCE, AND DENYING WITHOUT PREJUDICE
MOTION FOR PRELIMINARY INJUNCTION
On March 28, 2017, Plaintiff Allan Teasel, a patient at a mental health institution initiated
this case on his behalf and on behalf of other similarly situated patients. His complaint alleges that
the State of Michigan and the Department of Health and Human Services have violated his
substantive due process rights by forcing his caregivers to work excessive overtime. Compl., ECF
No. 1. On July 17, 2017, Teasel filed an amended complaint which names Rose Laskowski, the
director of the mental health institution housing Teasel, as the only Defendant. Am. Compl., ECF
No. 30. Several days after filing the amended complaint, Teasel filed a motion for a preliminary
injunction. ECF No. 32. On August 25, 2017, Lawskowski filed a motion to dismiss the suit for
lack of standing. ECF No. 43. A hearing on the two motions was held on November 7, 2017. On
December 15, 2017, the Court issued an opinion and order denying the motion to dismiss and
directing attention to certain issues at the next hearing on the motion for a preliminary injunction.
ECF No. 60.

On January 3, 2018, Teasel filed two apparently identical emergency motions to enforce a
subpoena. ECF Nos. 62, 63. The subpoena at issue was broadly focused on information relevant
to the issues the Court had identified in its December 15, 2017, opinion and order. On January 19,
2018, Teasel filed a motion to quash a subpoena issued by Defendant. ECF No. 67. In that
subpoena, Defendant seeks documents retained by Ms. Judd and Ms. Goyette, two individuals who
provided affidavits to Teasel which support allegations made in the complaint.
On January 22, 2018, the Court held a second hearing on the motion for a preliminary
injunction. Discussion on the record quickly centered on the ongoing discovery disputes, and
Teasel acknowledged that additional disclosures were required before he could complete his proofs
regarding the requested preliminary injunction. After a short recess, the parties and Court
conducted an informal status conference to address the pending discovery motions. This order is
meant to formalize the understandings reached in that status conference.
I.
The Court summarized Teasel’s factual allegations in the December 15, 2017, opinion and
order. That summary will be adopted in full.
II.
Federal Rule of Civil Procedure 26(d)(1) provides that “[a] party may not seek discovery
from any source before the parties have conferred as required by Rule 26(f), except . . . when
authorized by these rules, by stipulation, or by court order.” Teasel seeks a court order authorizing
early discovery. In reviewing such requests, courts typically impose a “good cause standard.” 8A
Charles Alan Wright and Arthur R. Miller, 1993 Discovery Moratorium Pending Discovery Plan,
Fed. Prac. & Proc. Juris. § 2046.1 (4d ed.). Several decisions within the Sixth Circuit provide some
guidance. In In re Paradise Valley Holdings, Inc., the bankruptcy court explained that “‘[g]ood

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cause may be found where the plaintiff’s need for expedited discovery outweighs the possible
prejudice or hardship to the defendant.’” No. 03-34704, 2005 WL 3841866, at *2 (Bankr. E.D.
Tenn. Dec. 29, 2005) (quoting Metal Bldg. Components, LP v. Caperton, 2004 U.S. Dist. LEXIS
28854, at *10 (D.N.M. Apr. 2, 2004)). Further, “[g]ood cause is usually found in cases involving
requests for injunctive relief, challenges to personal jurisdiction, class actions, and claims of
infringement and unfair competition.” Id. The Paradise Valley Holdings opinion also emphasizes
that Rule 26(d) “‘protects defendants from unwarily incriminating themselves before they have a
chance to review the facts of the case and to retain counsel. This important protection maintains
the fairness of civil litigation.’” Id. (quoting Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y.1982)).
See also USEC Inc. v. Everitt, No. 3:09-CV-4, 2009 WL 152479, at *3 (E.D. Tenn. Jan. 22, 2009)
(adopting the analysis in Paradise Valley Holdings); Whitfield v. Hochsheid, No. C-1-02-218,
2002 WL 1560267, at *1 (S.D. Ohio July 2, 2002) (imposing a good cause standard).
Other district courts have also identified certain relevant factors. In Yokohama Tire Corp.
v. Dealers Tire Supply, Inc., the district court specified four factors:
(1) irreparable injury, (2) some probability of success on the merits, (3) some
connection between expedited discovery and the avoidance of the irreparable
injury, and (4) some evidence that the injury that will result without expedited
discovery looms greater than the injury that the defendant will suffer if the
expedited relief is granted.
202 F.R.D. 612, 613 (D. Ariz. 2001) (quoting Notaro and noting that Notaro borrowed the test
for granting a preliminary injunction and applied it to a request for expedited discovery).
Similarly, in Meritain Health Inc. v. Express Scripts, Inc., the district court enumerated a different
five factors that have relevance:
(1) whether a preliminary injunction is pending; (2) the breadth of the discovery
requests; (3) the purpose for requesting the expedited discovery; (4) the burden on
the defendants to comply with the requests; and (5) how far in advance of the typical
discovery process the request was made.
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No. 4:12-CV-266 CEJ, 2012 WL 1320147, at *2 (E.D. Mo. Apr. 17, 2012) (citing Qwest Comm.
Int'l, Inc. v. WorldQuest Networks, Inc., 213 F.R.D. 418, 419 (D.Colo. 2003)).
III.
A.
Although a Rule 26(f) conference has not yet been held, the Court believes that there is
good cause to authorize limited document discovery. Teasel has filed a motion for a preliminary
injunction and, as reflected in the Court’s December 15, 2017, opinion and order, there are several
outstanding factual uncertainties that bear considerable relevance to that motion. Relatedly,
because Defendant’s motion to dismiss has been denied, Teasel’s requests for discovery are
premature more in form than in substance. Teasel’s motion to enforce his subpoena will be granted
in part.
B.
1.
In Teasel’s subpoena to Defendant, he requests a significant universe of documents over a
lengthy period of time. Teasel’s first four requests seek documentation of “incidences of murder,
suicide, assault, and sexual assault,” “violence,” and communicable diseases at the Caro Center
over the past ten years. Pl. Subpoena at 7–8, ECF No. 62, Ex. A. At the conference, Defendant
represented that much of this information has already been provided. The parties agreed to limit
the relevant time period to six years. Defendant also agreed to conduct a key-word search of its
records for “assault” and supply the results to Teasel.
2.
The fifth request from Teasel’s subpoena is the primary source of contention between the
parties. In that request, Teasel requests “all documents . . . related to voluntary and mandatory
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overtime hours worked by each Resident Care Aid [RCAs] employed by Caro Center between
December 1, 2007 and present.” Id. at 8. At the conference, Defendant explained that there are two
categories of overtime records. Aggregate overtime records for employees are currently
maintained electronically and thus can be created and produced without conducting a
particularized review of individual employee timesheets. However, those aggregate records do not
specify how much overtime a specific employee worked, nor do they reflect the relationship of
mandatory overtime to voluntary overtime. The second category of overtime records—employeespecific overtime records—can be created only by reviewing the biweekly timesheets submitted
by employees. Because, until recently, all those records were exclusively maintained only on
paper, tabulating the overtime worked by specific employees is a daunting task. As agreed at the
conference, Defendant will produce aggregate overtime records for all three shifts going back two
years. Defendant will also produce employee-specific overtime records for all third shifts RCAs
going back two years. Defendant advised that some of the records will contain medical information
(often, the reasons why overtime was necessary in a particular instance), and Teasel did not object
to limited redactions of that information.
At the conference, Teasel requested overtime records going back six years. He alleges that
he has been informed that, approximately three or four years ago, overtime practices at the Caro
Center changed. Teasel contends that, if the amount of mandatory overtime over the past six years
is plotted against the incidences of violence and disease at the Caro Center, a correlation between
increased mandatory overtime and increased violence and disease will emerge. Given the
significant expense which producing six years of employee-specific overtime records would
impose on Defendant, overtime record production will be limited to the two year timeframe
identified above. However, as discussed at the conference, if the data collected for those two years

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suggests a correlation between the amount of mandatory overtime and the violence and disease at
the Caro Center, additional production may be directed.
Defendant also argued that, to the extent more comprehensive overtime records are
necessary, Teasel should bear the costs of their production. In connection with that assertion,
Defendant offered to provide an estimate of the costs of producing additional overtime records to
Teasel (and the Court).
3.
The sixth request in Teasel’s subpoena is for “all documents . . . related to RCAs falling
asleep while working. Defendant has already provided two years of records related to this request.
At the conference, Defendant committed to review and disclose an additional two years of records,
though Defendant cautioned that some of the relevant documents may not have been retained.
4.
Next, Teasel’s subpoena requests “all documents . . . related to communications which
involved Rose Laskowski and mandatory overtime.” At the conference, Teasel further defined the
term “communications.” As articulated by Teasel, he seeks 1) all communications where
Laskowski received or shared statistical data regarding overtime at the Caro Center, 2) all
administrative steps Laskowski has taken to end mandatory overtime at the Caro Center, 3) all
communications Laskowski received or sent which discussed harm to patients or staff in
connection with mandatory overtime, and 4) and all of Laskowski’s communications regarding the
hiring of new staff, especially as the personnel need related to mandatory overtime.
As agreed at the conference, the relevant time frame for this request shall begin four years
ago and end June 30, 2017. Defendant shall not be required to disclose any communications
between Defendant’s counsel and Laskowski which post-date the filing of the complaint (March

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25, 2017). At the conference, Defendant further offered to conduct a search of Laskowski’s email
inbox (though not necessarily the email archives), if Teasel provided search terms.
C.
Although the discussion at the conference focused primarily on Teasel’s subpoena, the
parties did briefly discuss Defendant’s subpoena to Ms. Judd and Ms. Goyette. Just before the
hearing on January 22, 2018, the Court filed a stipulated protective order. ECF No. 68. At the
subsequent conference, Teasel offered to submit the requested documents subject to the protective
order and with the understanding that he may later assert attorney-client privilege regarding those
documents. Laskowski has not responded to Teasel’s motion to quash the subpoena and
Defendant’s subpoena was only briefly addressed at the conference. Accordingly, the Court will
not affirmatively order Teasel to disclose the documents in question. Rather, the motion to quash
will be denied without prejudice and, if necessary, the Court will adjudicate any disputes between
the parties regarding the subpoena if any arise in the future.
D.
The remaining issue involves the timing of disclosures. The emailed cost estimates for
production of additional overtime records shall be due on January 30, 2018.1 Defendant will be
directed to produce the documents identified above on or before March 23, 2018. Either party may
file objections to the scope of disclosure and/or requests for additional disclosures, but must do so
by April 2, 2018. Finally, a status conference will be scheduled for April 17, 2018, at 2:00 p.m.
The final issue which requires attention is Teasel’s pending motion for a preliminary
injunction. In the motion for a preliminary injunction, Teasel asserts that “should the Court
determine that there is insufficient evidence at this time to grant an injunction, Plaintiffs seek

1

The Court’s copy should be submitted via the “Utilities, Proposed Order” function of CM/ECF.

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discovery for a period of at least 45 days so to establish in more detail a record of resident injuries
and overtime hours worked at each facility before a hearing on the request for preliminary
injunction.” ECF No. 32 at 20. At the hearing on January 22, 2018, Teasel acknowledged that,
until he receives disclosures responsive to his subpoena, he would be unable to complete his proofs
regarding the motion for a preliminary injunction. Given the breadth of the disclosures which will
be provided over the next sixty days, Teasel’s motion for a preliminary injunction will almost
certainly need to be substantially updated. For that reason (and to avoid piecemeal briefing), the
current motion for a preliminary injunction will be denied without prejudice. After receiving the
discovery identified above, the parties will be better equipped to address the request for injunctive
relief.
IV.
Accordingly, it is ORDERED that Plaintiff Teasel’s motions to enforce his subpoena, ECF
Nos. 62, 63, are GRANTED in part.
It is further ORDERED that Defendant Laskowski is DIRECTED to disclose documents
as defined and identified in this order on or before March 23, 2018.
It is further ORDERED that Plaintiff Teasel’s motion to quash Defendant’s subpoena,
ECF No. 67, is DENIED without prejudice.
It is further ORDERED that either party may object to the scope of discovery and/or seek
additional discovery, but must do so on or before April 2, 2018.
It is further ORDERED that the parties are DIRECTED to appear at a status conference
on April 17, 2018, at 2:00 p.m.

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It is further ORDERED that Plaintiff Teasel’s motion for a preliminary injunction, ECF
No. 32, is DENIED without prejudice.

Dated: January 23, 2018

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 23, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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