Osborne et al v. Billings Clinic et al

Filing 89

OPINION AND ORDER granting in part and denying in part 46 Motion to Compel discovery. Signed by Judge Susan P. Watters on 3/26/2015. (EMH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

FILED
MAR 2 fi 2015
Clerk, U.S District Court
01stnct Of Montana

DALE OSBORNE, as Personal
Representative of the Estate of Sarah
Osborne,

CV 14-126-BLG-SPW

Brllings

OPINION and ORDER

Plaintiff,
vs.
BILLINGS CLINIC, and UNITED
STATES OF AMERICA,
Defendants.

BILLINGS CLINIC,
Cross-Claimant,
Vs.
UNITED STATES OF AMERICA,
Cross-Defendant.

Before this Court is Plaintiff Dale Osborne's second motion to compel
discovery. (Doc. 46) He requests that the Court compel Billings Clinic's
responses to a number of discovery requests, issue sanctions, and award attorneys'

1

fees and costs. Osborne's motion is granted in part and denied in part for the
reasons set forth below.

I.

Discussion
Because the same arguments crop up with respect to Osborne's second and

third discovery requests, this Court will address the issues, as opposed to the
specific requests, in order.

A.

Privilege Log

Osborne argues that Billings Clinic asserted "privilege in its responses to his
Requests for Production Nos. 51, and 63-67, but failed to provide a privilege log."
(Doc. 47 at 5). Billings Clinic argues that it did not assert privilege in response to
any of Osborne's requests. (Doc. 47 at 6-7). The Court reviewed Billings Clinic's
responses to Plaintiffs second and third discovery requests. Billings Clinic did not
assert any privilege objections. Osborne's motion to compel on this issue is
denied.

B.

Requests seeking "policies, procedures and ... other guidance ...
for the period January 1, 2010 to present."

In Requests for Production Nos. 51, 64-67, Osborne seeks production of
"policies, procedures, training materials or other guidance" regarding various
medical topics from January 1, 2010 to the present. (Doc. 47-1 at 5; 47-2 at 9-13).
In its responses, Billings Clinic asserted the requests were overbroad and vague,

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sought irrelevant information, and objected to producing documentation, including
its policies, without a stipulated protective order. (Id.)
1.

Protective Order

On June 19, 2014, Billings Clinic sought, and the state court granted, a
protective order with respect to its policies. Despite removal to federal court, that
order remains in effect. (Doc. 78); 28 U.S.C. § 1450. Billings Clinic must produce
its policies, and the parties must proceed, in compliance with that order.

2.

Other responsive documentation

Irrespective of Billings Clinic's policies, Osborne argues that Billings Clinic
refuses to produce other documents responsive to these specific discovery requests.
(Doc. 47 at 14-15; Doc. 59 at 9). As a practical matter, Billings Clinic's discovery
responses state otherwise. To each request seeking "policies, procedures and other
guidance," Billings Clinic responded, "[P]ursuant to a Stipulated Protective Order
or a Court issued Protective Order, Billings Clinic will produce responsive
documents relevant to July, 2012, the time period at issue only .... " (Doc. 47-1 at
5; 47-2 at 9-13). In other words, Billings Clinic's response stated that it will
produce responsive documents (not just policies) once a protective order is in
place.

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3.

Objection regarding the discoverable time frame

Of course, the Court notes that Billings Clinic limited its promised
production of responsive documents to July, 2012, because documents outside that
time frame were not reasonably calculated to lead to the discovery of admissible
evidence. (Id.) Osborne argues this objection is "not a legal objection." (Doc. 59
at 12). The Court disagrees.
Billings Clinic's objection arises from Federal Rule of Civil Procedure
26(b )(I) which provides that "[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense [and that need
not] be admissible at trial if the discovery appears to be reasonably calculated to
lead to the discovery of admissible evidence." (Emphasis added). See also
Advisory Committee Note to the 2000 Amendment to Rule 26(b)(l) (stating that
the Rule was amended "to clarify that information must be relevant to be
discoverable, even though inadmissible, and that discovery of such material is
permitted if reasonably calculated to lead to the discovery of admissible
evidence.")
Because Osborne's case is predicated on his ability to prove that Billings
Clinic and/or RiverStone doctors breached the standard of care in July, 2012,
policies and procedures from 2010, 2011, any month other than July in 2012, 2013,
2014, or 2015, have no relevance to the subject matter in this action. No one has
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argued otherwise. Billings Clinic's objection to producing information that was
not in effect or pertinent to the time frame at issue is sustained.

4.

Objection regarding the term "guidance."

As noted above, in addition to requesting "policies, procedures, and training
materials," related to various medical topics, Osborne also seeks production of
"other guidance," in his Requests for Production Nos.63-67. (Doc. 47-2 at 9-13).
Billings Clinic argues that the term "other guidance" is vague because Billings
Clinic could have guidance regarding any of the topics in many of its departments.
In response, Osborne fails to provide any additional details about what "guidance"
he seeks or what "guidance" even is. Billings Clinic's argument is persuasive. For
example, the Clinic could have "guidance" regarding the administration of opioids
(Osborne's Request for Production No. 64) in every department in the hospital.
Guidance on administering opioids to infants, however, has no relevance to this
case, nor is it calculated to lead to the discovery of admissible evidence. Billings
Clinic's objection with respect to Osborne's request for "guidance" in Request for
Production Nos. 63-67 is sustained.

C.

Objections followed by response that Billing Clinic does not have
documents.

Osborne argues that Billings Clinic objected and responded to his Requests
for Production Nos. 55 and 56 that it had no responsive documents. Indeed, he is
correct. Billings Clinic did, in fact, respond to his requests and state that it has no

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responsive documents. (Doc. 47 at 10). But that response is not objectionable.
Sometimes no documents exist to produce. And based on Billings Clinic's
response, which it submitted under F.R.Civ.P. 11 and 37, there are no additional
answers to compel. Osborne's motion to compel with respect to this issue is
denied.
D.

Logbooks and video surveillance

Osborne moves to compel Billings Clinic's responses to Requests for
Production No. 62 (requesting logbooks for the floor on which Sarah Osborne was
admitted) and 69 (requesting surveillance videos on the floors where Sarah
Osborne arrested). (Doc. 47 at 13, 15). Billings Clinic responded in discovery and
that no logbooks or surveillance videos exist for the floors in question. (Doc. 55 at
5-7; Doc. 47-2 at 14-15). Billings Clinic again told Osborne no logbooks or
surveillance videos exist for the floors in question in correspondence preceding this
motion on December 15, 2014. (Doc. 47-6 at 6, 9). Osborne's motion to compel
with respect to this issue is denied.
E.

Audit trails

Osborne seeks to compel production of Billings Clinic's audit trails for
Sarah Osborne's medical chart for July 2012. Osborne argues that under Montana
law, the audit trails are included in Sarah Osborne's "healthcare information" and
so are discoverable. Billings Clinic argues that audit trails were implemented for
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quality control purposes and as a result are not "healthcare information" under
Montana law or included in the "designated record set" to which patients are
entitled to under the Health Insurance Portability and Accountability Act (HIPAA),
45 C.F.R. § 160, et seq. (Doc. 55). This Court determines the audit trails are
discoverable for the reasons set forth below.
Osborne argues that the Montana Supreme Court has broadly determined
that where a patient can show that records relate to his or her hospital care and
treatment, the records are discoverable. (Doc. 47 at 12 (citing Huether v. Dist.
Court ofSixteenth Judicial Dist. of State ofMontana, In & For the Cnty. of Custer,

2000 MT 158, ~ 18, 4 P.3d 1193, 1197)). In Huether, the personal representative
of a deceased hospital patient sought documents indicating whether the decedent's
vital signs had been monitored prior to his death. There, like here, the hospital
resisted disclosure by pointing to Montana's peer review statutes which provide for
confidentiality of information and proceedings of medical peer review committees.
Id.

at~~

4-5. The thrust of the hospital's argument turned on the premise that the

Montana statute allows a healthcare provider to deny a patient access to health care
information ifthe health care provider reasonably concludes that the health care
information is "data," used exclusively in connection with quality assessment or
improvement activities by a health care provider, as defined in§ 50-16-20l(l)(a).
Id.

at~

16 (citing§ 50-16-542(1)(d), MCA).
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Finding the documents discoverable, the Court explained that the medical
peer review confidentiality statutes must be reconciled with other segments of
Montana law, particularly the Uniform Health Care Information Act, which
establishes a patient's right to inspect information relating to the patient's health
care. Id. at i!il 12-19. In order to give effect to all of Montana's relevant
healthcare statutes, the Court held that "to the extent that the records sought by the
Estate[] relate to Huether's hospital care and treatment, they do not fall within the
definition of"data," [so they] are subject to discovery by the patient or[] the
patient's estate." Id. at i! 19. Based on the holding in Huether, the relevant inquiry
here is whether the audit trails, notwithstanding the fact that they may be "data,"
relate to Osborne's hospital care and treatment: if so, they are discoverable under
Montana law. Id. at i!il 18-19.
Billings Clinic argues that HIP AA does not provide for such an expansive
view of what is discoverable. The Clinic argues that the audit trails do not relate to
Sarah Osborne's care and treatment because audit trails were generally
implemented for quality control purposes to allow the hospital to monitor patient
record access for compliance with HIPAA. (Doc. 55 at 8). According to the
Clinic, audit trails are not used to make medical decisions, are not considered part
of a patient's medical or billing record, and are not created on every patient. (Doc.
55 at 1-10). The Clinic thus concludes that under HIP AA, because the audit trails
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exist for purely administrative reasons and do not fall within a patient's
"designated record set," they do not constitute "healthcare information" to which a
patient is entitled under HIPAA. (Id. at 9) (citing Harris v. Tenet Healthsystem

Spalding, Inc., 746 S.E.2d 618, 623 (Ga. App. 2013) (citing 45 C.F.R. §
164.524(a)(a) (sic) and 45 C.F.R. § 164.526(a)(l)).
What Billings Clinic fails to note, however, is that HIPAA preempts any
"contrary" state law, unless the state law is "more stringent" than the HIP AA
requirements. 45 C.F.R. § 160.203. A state law is "contrary" to HIPAA if a health
care provider would find it impossible to comply with both the state and federal
provisions regarding disclosure or ifthe state law is an obstacle to the
accomplishment of the purposes of HIPAA. 45 C.F.R.§ 160.202. There is no preemption, however, when a "contrary" state law is "more stringent" than HIPAA.
45 C.F.R. § 160.203(b).
Under Huether, Montana law allows an individual complete access to all of
his or her "healthcare information," but 45 C.F.R. § 164.524(a) limits an
individual's access to his or her "designated record set." Therefore, Montana law
is contrary to HIP AA because a health care provider would find it impossible to
comply with Montana law, which does not restrict the release of an individual's
healthcare information to that individual, and HIPAA, which does restrict the
release of an individual's healthcare information to the individual in certain
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circumstances. 45 C.F.R. § 160.202. Thus, HIP AA pre-empts Montana law on
this issue, unless Montana law is more stringent. 45 C.F.R. § 160.203(b).
Montana law is more stringent with regard to an individual's right to his or her
medical records because Montana law permits a patient greater access to his or her
records than HIPAA does. 45 C.F.R. § 160.202; cf Huether, 1118-19 and 45
C.F.R. §164.524. Consequently, HIPAA does not preempt Montana law and
Osborne's discovery is not limited to Sarah Osborne's "designated record set."
Under Montana law, Sarah Osborne's audit trails are discoverable.

F.

Request for Inspection

Osborne seeks permission to inspect Billings Clinic's emergency
department, and the rooms and floors where Sarah Osborne was admitted from
July 1-12, 2012. Osborne argues that photographs of these areas would assist in
explaining how alleged events happened, the location of respective stations, and
would assist in showing where the parties were at the time of the events at issue.
(Doc. 59 at 10-11 ). Further, Osborne agreed to take no more than five minutes in
Room 317, and to protect the identity of patients during his inspection. (Id. At 1112).
Billings Clinic opposes any on-site inspection because it would be
"disruptive of Billings Clinic operations and could compromise current patients'
rights to confidentiality." (Doc. 55 at 16). Billings Clinic asserts that an
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inspection would not be able to occur anytime there were patients in the ICU or the
medical floor room so the burden of the proposed inspection outweighs its
necessity. (Doc. 55 at 16).
The Federal Rules of Civil Procedure permit a party to request-"within the
scope of Rule 26(b)"-"entry onto designated land or other property controlled by
the responding party, so that the requesting party may inspect, measure, survey,
photograph, test, or sample the property or any designated object or operation on
it." Fed.R.Civ.P. 34(a)(2). Rule 26(b) permits "discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense."
Fed.R.Civ.P. 26(b )(1 ). When considering a motion under Rule 34(a)(2) "the
degree to which the proposed inspection will aid in the search for truth must be
balanced against the burdens and dangers created by the inspection." Belcher v.
Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978).

Osborne alleges that Billings Clinic failed to monitor and manage Sarah's
condition during her hospitalization at Billings Clinic. (Doc. 43 at if 32).
Photographs can make the presentation of evidence on locations, physical
distances, and presence of hospital staff much clearer and more concise than verbal
testimony alone. Under Rule 34, Osborne should be allowed to obtain
demonstrative evidence of how Sarah Osborne's treatment occurred by virtue of
the hospital's configuration. Of course, Osborne does not have the right to roam
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through Billings Clinic facilities at will, particularly in light of Billings Clinic's
concerns regarding patient privacy and disruption. Osborne's suggestions
regarding both convince this Court that the burden to Billings Clinic does not have
to outweigh the search for the truth, however.
Osborne therefore, is permitted to conduct a "brief walk through" of Billings
Clinic's emergency department, to last no more than five minutes, nurses' stations
and hallways, to last no more than ten minutes, and Room 317 at a time it is
unoccupied, to last no more than five minutes, for a time frame of inspection and
photographing totaling no more than 20 minutes, . This time frame does not
include the time it takes to walk from one designated area to another. During the
viewing and inspections, Osborne and/or his representative may not ask questions
of any Billings Clinic patients and staff and should direct all of their potential
questions to Billings Clinic's attorney present during the inspection. This
inspection will be set at a time frame mutually agreeable to both parties.

G.

Safety Video

Osborne seeks to compel the production of a safety video referenced on
Billings Clinic's website. (Doc. 4 7 at 17). Billings Clinic has refused to produce
the video because Expectation Management and Medical Information (EMMI)
produced and owns the video, not Billings Clinic. (Doc. 55 at 16-17). As a result,

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Billings Clinic argues that it does not have custody or control of the videos such
that it is required to produce them. (Id.)
Under Rule 34(a), a party may request the production of documents that are
"in the responding party's possession, custody, or control." Fed.R.Civ.P. 34(a)(l).
"[F]ederal courts have consistently held that documents are deemed to be within
the 'possession, custody or control' for purposes of Rule 34 ifthe party has actual
possession, custody or control, or has the legal right to obtain the documents on
demand." United States v. Int'/ Union ofPetroleum and Indus. Workers, AFL-

CIO, 870 F.2d 1450, 1452 (9th Cir. 1989). "A party responding to a Rule 34
production request cannot furnish only that information within his immediate
knowledge or possession; he is under an affirmative duty to seek that information
reasonably available to him from his employees, agents, or others subject to his
control." Rogers v. Giurbino, 288 F.R.D. 469, 485 (internal citations omitted).
But '"[t]he relationship between the party and the person or entity having
actual possession of the document is central in each case. The party must be able to
command release of the documents by the person or entity in actual possession."'

United States v. Estate a/Young v. Holmes, 134 F.R.D. 291, 294 (D.Nev.1991)).
Ordering a party to produce documents that it does not have the legal right to
obtain will oftentimes be futile, because the party has no way of getting those
documents. In re Citric Acid Litigation, 191 F .3d 1090, 1108 (9th Cir. 1999). Of
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course, "[t]he party seeking production of documents bears the burden of proving
that the opposing party has [such] control." International Union, 870 F.2d at 1452.
Here, it is undisputed that Billings Clinic does not have possession of the
safety video, but has a link to the video posted on its website. Billings Clinic
stated that while Osborne could access the video via the website, Billings Clinic
has no way to produce the video. (Doc. 55 at 17). In his reply, Osborne does not
refute Billings Clinic's assertion that it does not have legal control over the video
nor the means to compel EMMI to produce the video. Because Billings Clinic does
not have legal control over EMMI' s video, this Court cannot compel Billings
Clinic to produce the video. International Union, 870 F.2d at 1452. Osborne's
motion to compel with respect to this issue is denied.

H.

Documents in form maintained

In his Request for Production No. 58, Osborne requested Billings Clinic
produce the electronic copy of Sarah Osborne's medical record and provided a
flash drive. (Doc. 47-2 at 7). Osborne failed to specify any particular form for the
records. (Id.) In response, Billings Clinic provided the medical records in PDF
form on the flash drive. (Id.) On December 4, 2014, Osborne requested the
records "in the form [they are] maintained, electronically." (Doc. 47-5 at 3).
Billings Clinic refused Osborne's request on December 15, 2014, citing Federal
Rule 34(b)(E), which does not require the responding party to produce the
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electronically stored information in more than one form. (Doc. 47-6 at 5).
Osborne moves to compel Sarah Osborne's medical records in the format they are
maintained because the PDF records he received from Billings Clinic contain
duplicates and are difficult to follow in the PDF format. (Doc. 4 7 at 10, Doc. 59 at
12).
Fed.R.Civ.P. 34(b)(2)(E) controls the production of electronically stored
information:
(E) Producing the Documents or Electronically Stored Information.
Unless otherwise stipulated or ordered by the court, these procedures
apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond to
the categories in the request;
(ii) If a request does not specify a form for producing electronically
stored information, a party must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or
forms; and
(iii) A party need not produce the same electronically stored
information in more than one form.
Because Osborne did not specify a form for the production of the documents at
issue, Billings Clinic had the option of producing the records in the form in which
they were ordinarily maintained, or in a reasonably usable form. Id. By producing
the records in PDF format, Billings Clinic did not produce the records in the form

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they were ordinarily maintained, so in order to comply with the rule, as produced,
the records must have been in reasonably usable form. Id.
According to Osborne, the records in PDF form are not reasonably usable.
Osborne points out that the PDF form contains multiple duplicates and is
extremely difficult to understand. He reasonably seeks to view the records in the
same manner Billings Clinic views them. Billings Clinic has not asserted that the
records cannot be produced in the form they are originally kept, so there is no
apparent reason Osborne should be placed at a disadvantage by having to slog
through thousands of pages of records in unusable form. Accordingly, Osborne is
entitled to the records in the form they are ordinarily maintained. His motion to
compel with respect to this issue is granted.
I.

Billing codes

Osborne moves to compel Billings Clinic's response to his Request for
Production No. 61, where he seeks "billing codes similar to those recorded for
Sarah Osborne from July 1-12, 2012, for the period 2010 to the present." (Doc.
47-2 at 8). Osborne contends that "this information is reasonably calculated to
lead to the discovery of admissible evidence, including the competency of the
doctors involved in Sarah's care," (doc. 47 at 13), and "information about the
experience ofRiverStone doctors in managing similarly situated patients." (Doc.
59 at 9). This Court disagrees. As noted above, Osborne's negligence claim
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survives in the event he can prove that Billings Clinic and/or RiverStone doctors
breached the applicable standard of care thereby causing Sarah Osborne's death.
Accordingly, information regarding Billings Clinic's or RiverStone's doctors'
competence and experience is not relevant and is not reasonably calculated to lead
to the discovery of admissible evidence in this case. Osborne's motion with
respect to this issue is denied.

J.

Attorney's fees and sanctions

Osborne seeks attorney's fees and sanctions for the instant motion to
compel. Osborne asserts that Billings Clinic's responses are "obstructive, in bad
faith, and not based on any reasonable interpretation of applicable law." (Doc. 4 7
at 18). Considering that Osborne moved to compel responses to discovery requests
that he already had, failed to acknowledge Billings Clinic's repeated assertions that
it did not possess responsive documents to other responses, and requested a
privilege log when Billings Clinic did not assert any privileges, sanctions and
attorneys' fees against Billings Clinic are certainly not appropriate. Osborne's
request for sanctions and attorneys' fees is denied.

III.

Conclusion
For the foregoing reasons, Osborne's Second Motion to Compel (Doc. 46) is

GRANTED in part and DENIED in part.
It is so ORDERED.

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DATEDthisJl~ofMarch

015.

SUSANP. WATTERS
United States District Judge

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