Rutledge v. Elliot Health System et al
ORDER granting in part and denying in part 31 Motion to Compel; granting 38 Motion for Leave to File. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Civil No. 17-cv-110-JD
Opinion No. 2018 DNH 042
Elliot Health System
and Elliot Hospital
O R D E R
Lonnie Rutledge brings claims against her former employer,
Elliot Health System and Elliot Hospital, for age discrimination
and wrongful termination.
Rutledge moves to compel the
defendants to produce a patient chart with personal identifiers
redacted and records generated by the Exceptional Beginnings
Quality Review Committee.
The defendants represent that they
agreed to produce the patient chart at issue after a “Qualified
Protective Order was in place” but object to producing records
of the Exceptional Beginnings Quality Review Committee.
In support of her motion to compel, Rutledge states that
she was a nurse in the labor and delivery department at Elliot
Hospital from 1990 until she was terminated on June 11, 2014.
She states that she had outstanding reviews every year.
reasons given for her termination by Elliot Hospital included
the care given to a patient on May 22, 2014.
Paula Wellde, Elliott Hospital’s Clinical Nurse Educator,
told Rutledge that a review of the care provided to the patient
on May 22 was being done by the Exceptional Beginnings Quality
Review Committee (“Committee”).
The review was begun because of
the length of time the patient’s fetal monitor strip was of poor
quality and the documentation during the second stage of the
Rutledge continued to work full time while the
Committee conducted its review.
On June 11, Rutledge met with Sarah Meade, director of the
women’s and children’s division at Elliot Hospital, and Nicole
Dawson, from the human resources department.
At the meeting,
Rutledge was told that her employment was terminated.
Hospital then sent a report to the New Hampshire Board of
Nursing, accusing Rutledge of unprofessional conduct.
Hospital also opposed Rutledge’s claim for unemployment
benefits, but Rutledge prevailed after a two-day hearing.
This is the third discovery dispute that the parties have
failed to resolve and have instead involved the court.
prior two disputes, the court denied the motions to compel
without prejudice and directed counsel to confer and to use
their good faith efforts to resolve those matters without
further involvement of the court.
One of the issues raised in
the current motion, privilege under RSA 151:13-a, was raised
previously, but not decided, because Rutledge had not complied
with Federal Rule of Civil Procedure 37(a)(1).
court’s expectation that the parties would resolve these
matters, a third motion to compel has been filed.
Standard of Review
“Parties 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 . . . .”
Fed. R. Civ. P.
When disputes arise, a party may move to compel
discovery, after first attempting in good faith to resolve the
problem without court action.
Fed. R. Civ. P. 37(a).
Initially, the party moving to compel bears the burden of
showing that the discovery it seeks is relevant.
Philips N.V. v. Wangs Alliance Corp., 2018 WL 283893, at *1 (D.
Mass. Jan. 2, 2018) (citing Continental Western Ins. Co. v.
Opechee Constr. Corp., 2016 WL 1642626, at *1 (D.N.H. Apr. 25,
If that burden is met, “the objecting party bears the
burden of showing that a discovery request is improper.”
Continental Western, 2016 WL 1642626, at *1.
Rutledge moves to compel the defendants to produce the
patient chart for care provided by Rutledge on May 22, 2014, and
filed a proposed protective order to comply with the
requirements of the Health Insurance Portability and
Accountability Act (“HIPAA”).1
Rutledge also moves to compel
production of records of the Committee’s investigation into her
care provided on May 22, and to require the defendants to
produce a summary of other Committee records.
object to those requests on the grounds that the proposed
protective order does not comply with HIPAA requirements, that
the Committee documents sought are protected by privilege under
RSA 151:13-a, and that the request for a summary is
disproportional to the needs of the case.
The defendants indicate in their response to the current
motion to compel that the first issue, disclosure of the patient
chart, may be resolved with an appropriate protective order.
They also indicate that they agreed to the protective order
proposed by Rutledge’s counsel, as long as the patient number
was removed from the order.
The defendants state that they
Rutledge appended part of the patient chart to her motion
for leave to file a reply but did not appear to cite the chart
in her memorandum. Doc. no. 38-3. It is not clear how Rutledge
obtained the chart, whether the chart has been produced by the
defendants, or whether it was produced only in part.
object to the proposed order attached to Rutledge’s motion to
compel because the patient number was not removed.
Contrary to the defendants’ objection, the proposed
protective order attached to the motion to compel as Exhibit 5,
document no. 31-6, does NOT include the patient number.
reference, the patient is identified as “Patient D.P.
Therefore, the defendants’ objection to the protective order, in
which counsel finds fault with Rutledge’s counsel for including
the patient number, appears to be a mistake.
The parties seem to agree to the proposed protective order,
without the patient number, and agree that the patient chart may
be produced once the proposed protective order is approved by
the court and docketed.
Counsel shall confer and then file a
joint motion for approval of an appropriate protective order.
Rutledge also references the deposition of Nurse Midwife
Christine Isabelle and suggests that the patient chart is a
necessary predicate to the deposition.
For that reason,
apparently, the deposition was cancelled, with an intent to
reschedule it when the chart is produced.
Rutledge’s motion to
compel pertains to production of the chart, not to compelling
Therefore, no action is requested or
necessary with respect to the deposition.
Documents Requested in Interrogatories
Rutledge moves to compel the defendants to produce
documents requested in two sets of interrogatories.
Specifically, in her first set of interrogatories, Rutledge
requested documents from “[t]he investigation into the events of
May 22, 2014, and the decision to terminate the employment of
Lonnie Rutledge, including but not limited to the investigation
and meetings associated with the EB Quality Board.”
The defendants responded:
“Elliot objects to Request No.
3 on the basis of RSA 151:13-a.”
In her third set of interrogatories, Rutledge asked the
defendants to provide summaries of investigations done by the
Interrogatory 3 asked the defendants to “[p]rovide a
summary, with identifiers redacted as necessary and appropriate,
of all cases investigated by the Exceptional Beginnings Quality
Committee that resulted in discipline of a nurse, physician or
The interrogatories in the third set are numbered 1., 1.,
and 3. Both the second interrogatory, which is numbered “1.”,
and the third interrogatory, which is numbered “3.”, ask for a
summary of cases investigated by the Committee that resulted in
discipline of providers or employees. The second interrogatory
is limited to “discipline of a nurse” while the third
interrogatory includes discipline of a nurse, physician, and
other individuals associated with the hospital. Because
Interrogatory 3 appears to include the information requested in
the second interrogatory, the court addresses only Interrogatory
other individual associated with the Elliot Hospital.”
31-4, at 3.
Rutledge also asked for additional information
about each incident included in the summary.3
ANSWER: Objection. There is no Exceptional Begi nnings
Quali ty Board. If you are referring to the
Exceptional Beginnings Quality Review Committee,
review of clinical situations where there is a concern
or question regarding the care of a patient by the
Except ional Beginnings Quality Review Committee is
protected by the Peer Review Privilege set forth in
RSA 151:13(a). The Exceptional Beginnings Quality
Review Committee does not take disciplinary action
against prov iders, nor does it make recommendations
for discipline. See attached Exceptional Beginnings
Quality Review Committee Charter, provided at DEF OOOH8 to DEF 000-121. Elliot further objects to this
Interrogatory as requiring information not relevant to
Plaintiff’s claims of wrongful termination and/or age
discrimination and not proportional to the needs of
the case as it wou ld arguably require review of the
approximately fifty to eigh ty incidents reviewed by
the Quality Review Committee each year for an
ind efinite period of time and wo uld then involve
com parison of the Quality Review Committee's records
against the personnel records of any providers
identified in the Quali ty Review Committee's records
to determine wheth er any disciplinary actio n was
Doc. No. 31-4, at 4.
In addition, the third set of interrogatories included
document requests as Part B, which again are not consecutively
numbered. Although the defendants reference their objection to
the request for production of documents “related to your
response to Interrogatories 2 and 3 above,” Rutledge did not
move to compel that production.
Application of RSA 151:13-a
Federal common law governs claims of privilege in federal
courts except in civil cases in which state law provides the
rule of decision.
Fed. R. Evid. 501.
When, as here, a case is
proceeding under federal subject matter jurisdiction with
supplemental jurisdiction over state law claims, federal common
law governs evidentiary privileges.
In re TFT-LCD (Flat Panel)
Antitrust Litig, 835 F.3d 1155, 1158 (9th Cir. 2016); Virmani v.
Movant Health Inc., 259 F.3d 284, 286 n.3 (4th Cir. 2001)
(citing cases) Davine v. Golub Corp., 2017 WL 517749, at *2 (D.
Mass. Feb. 8, 2017); Tep v. Southcoast Hosps. Gr., 2014 WL
6873137, at *2 (D. Mass. Dec. 4, 2014); Smith v. Alice Peck Day
Mem. Hosp., 148 F.R.D. 51, 53 (D.N.H. 1993).
As is noted above,
the party asserting a privilege bears the burden of showing that
the privilege applies, and if the privilege is established, the
opposing party must show that an exception would preclude
application of the privilege.
United States v. Breton, 740 F.3d
1, 9 (1st Cir. 2014).
The defendants assert that the Committee’s investigation
records and the requested summary are protected by RSA 151:13-a.
RSA 151:13-a provides in pertinent part:
II. Records of a hospital committee organized to
evaluate matters relating to the care and treatment of
patients or to reduce morbidity and mortality and
testimony by hospital trustees, medical staff,
employees, or other committee attendees relating to
activities of the quality assurance committee shall be
confidential and privileged and shall be protected
from direct or indirect means of discovery, subpoena,
or admission into evidence in any judicial or
administrative proceeding. However, information,
documents, or records otherwise available from
original sources are not to be construed as immune
from discovery or use in any such civil or
administrative action merely because they were
presented to a quality assurance program, and any
person who supplies information or testifies as part
of a quality assurance program, or who is a member of
a quality assurance program committee, may not be
prevented from testifying as to matters within his or
her knowledge, but such witness may not be asked about
his or her testimony before such program, or opinions
formed by him or her, as a result of committee
participation. Further, a program's records shall be
discoverable in either of the following cases:
(a) A judicial or administrative proceeding brought by
a quality assurance committee to revoke or restrict
the license, certification, or privileges of a
physician or hospital staff member; or
(b) A proceeding alleging repetitive malicious action
and personal injury brought against a physician or
hospital staff member.
Under New Hampshire law, the quality assurance privilege
provided by RSA 151:13-a is construed narrowly.
Newland v. N.
Country Healthcare, Inc., 2017 WL 6397723, at *1 (D.N.H. Dec.
14, 2017) (citing In re K., 132 N.H. 4, 13 (1989)).
In Smith v. Alice Peck Day Mem. Hosp., cited by Rutledge
and the defendants, the court explained the application of New
Hampshire’s quality assurance privilege in the context of a
federal question case with supplemental state law claims.
F.R.D. at 53.
In that case, the plaintiff asserted that her
discovery request fell within the exception to the privilege as
provided in RSA 151:13-a, II(a).
Based on the analysis required
to determine whether a state privilege should be recognized
under federal common law, the court found that New Hampshire
state courts would not apply the privilege in the circumstances
of that case and also held that the privilege was not
“intrinsically meritorious” in the context of a case involving
revocation of physician privileges.
Id. at 54-56 (citing by In
re Hampers, 651 F.2d 19, 22-23 (1st Cir. 1981)).
As a result,
the court did not recognize the state law privilege under
federal common law.
Id. at 54-55.
Because RSA 151:13-a is state law, it does not apply in
this federal question case.
The defendants do not argue that
RSA 151:13-a, as it would be applied in this case, should be
recognized under federal common law and do not identify an
applicable privilege under federal common law.
Since Smith was
decided, other courts have declined to find a federal common law
quality assurance or peer review privilege.
Hamdan v. Ind.
Univ. Health N. Hosp., Inc., 880 F.3d 416, 421 (7th Cir. 2018)
The defendants bear the burden of showing that a privilege
applies to protect the documents Rutledge seeks.
carried that burden.
They have not
Therefore, the defendants shall produce
the Committee’s investigation records requested in the first set
The summary requested in the third set of
interrogatories also is not protected by the privilege provided
through RSA 151:13-a, but the defendants assert another
objection to that request so that the privilege issue does not
resolve the motion as to the third set of interrogatories.
Scope of Request
The defendants contend that they should not be required to
produce the summary requested in Interrogatory 3 of the third
set of interrogatories because the work involved in compiling
the requested summary would be disproportional to the needs of
The defendants also charge that counsel for Rutledge
did not make any effort to resolve the proportionality issue
before filing the motion to compel.
Rutledge addressed the defendants’ proportionality
objection in the motion to compel only in passing, instead
focusing on the application of privilege under RSA 151:13-a.
She states that without the summary requested in Interrogatory 3
she “is hard-pressed to obtain ‘comparator’ evidence showing
that plaintiff was treated differently than other employees.”
Doc. 31-1, at 5. In her reply, Rutledge contends that the
requested summary is needed to put the defendants’ decision to
terminate her employment in “a fair context.”
Doc. 38-1, at 3.
Discovery must be 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 importance
of the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
Fed. R. Civ. P. 26(b)(1).
In that determination, the
court must make common sense judgments about the actual need for
Fed. Energy Reg. Comm’n v. Silkman, 2017 WL
6597510, at *6-*7 (D. Me. Dec. 26, 2017).
The party seeking
discovery bears the burden of showing that the information
sought is important to resolving issues in the case, and the
party opposing the request must show why the request entails
undue burden or expense.
In Interrogatory 3, Rutledge is not seeking existing
documents or records from the defendants.
Instead, she is
asking that the defendants be compelled to review all of the
Committee’s records and investigations, without any date
restriction, to determine whether any investigation ever led to
discipline for a nurse, physician, or any other person
associated with Elliot Hospital.
The defendants make a credible
argument that significant work would be required to compile the
summary of disciplinary actions that Rutledge requests.
Rutledge asserts that the requested summary must be
produced because “it is important to know if the committee has
ever considered a case in which there is no complication to a
patient, or if the committee has ever found a nurse to be unsafe
because of imperfect fetal monitor records (something that
Doc. no. 38-1, at 3.
Further, she states
that “[i]t is also important to know if the committee
interviewed anyone as part of its evaluation.”
In support, Rutledge provides an excerpt from the
deposition testimony of Sarah Meade who testified that Ann
Hebert made the decision to terminate Rutledge’s employment.
is not clear why that testimony shows Rutledge needs a summary
of Committee investigations or why she is unable to obtain the
information she seeks through other means.
Rutledge has not
shown that the information she is asking the defendants to
prepare is necessary for her case, and it appears that the
information may be available through other discovery.
For the foregoing reasons, the motion to compel (document
no. 31) is granted in part and denied in part.
motion for leave to file a reply (document no. 38) is granted,
and the reply was considered.
Counsel shall confer and file a joint motion for a
protective order, with the proposed protective order attached,
that will allow disclosure of the patient chart.
The defendants shall produce the Committee’s records of its
investigation into Rutledge’s actions and patient care on May
The motion is denied as to the summaries sought in the
third set of interrogatories.
Before either party files a fourth discovery motion,
counsel shall confer about the matters in dispute, making every
good faith effort to resolve the issues without further
involvement of the court.
If another motion to compel is filed
which demonstrates counsel have not made that effort, the court
may impose appropriate sanctions.
Joseph A. DiClerico, Jr.
United States District Judge
March 7, 2018
Debra Weiss Ford, Esq.
Samuel V. Maxwell, Esq.
Leslie C. Nixon, Esq.
David P. Slawsky, Esq.
Martha Van Oot, Esq.
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