Tanner v. McMurray et al
Filing
85
MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen B. Molzen denying 38 Motion to Compel Defendant Bernalillo County's Response to Plaintiff's Request for Production No. 5 and 52 First Motion to Compel Defendant Correct Care Solutions, LLC's Response to Request for Production No. 12. (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SHAWNA TANNER,
Plaintiff,
v.
CIV 17-0876 JB/KBM
TIMOTHY I. MCMURRAY, M.D.,
ADRIANA LUNA, R.N., AUDREY LEBER, R.N.,
TAILEIGH SANCHEZ, R.N., ELISA MANQUERO, R.N.,
CORRECT CARE SOLUTIONS, LLC,
BOARD OF COUNTY COMMISSIONERS OF
BERNALILLO COUNTY, NEW MEXICO,
THOMAS J. RUIZ, and JOHN AND JANE DOES 1-10,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Plaintiff’s Motion to Compel
Defendant Bernalillo County’s (“BCC”) Response to Request for Production No. 5, filed
April 9, 2018 (Doc. 38), and Plaintiff’s Motion to Compel Defendant Correct Care
Solution, LLC’s (“CCS”) Response to Plaintiff’s Request for Production No. 12, filed
June 4, 2018 (Doc. 52). Having reviewed the parties’ submissions and all pertinent
authority, the Court denies Plaintiff’s Motions to Compel based upon the Stipulated
Confidentiality Orders entered by the Honorable James A. Parker in McClendon, et al.
v City of Albuquerque, et al. (“McClendon”), CIV 95-0024 JAP/KBM, Doc. 1276 (April 4,
2017) and Doc. 1285 (April 28, 2017).
I.
Background
On October 4, 2016, Plaintiff Shawna Tanner, while in the last month of gestation
of her pregnancy, was placed in the custody of the Bernalillo County Metropolitan
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Detention Center (“MDC”) based upon an alleged probation violation. In this action, she
alleges that she was denied appropriate medical care at MDC leading to the stillbirth of
her baby on October 17, 2016.
In the long existing McClendon class action lawsuit, Judge Parker gave
preliminary approval on March 22, 2016 to a settlement agreement entered by the
parties in that litigation. Final approval followed shortly thereafter on June 27, 2016. The
McClendon settlement agreement requires BCC to demonstrate compliance with certain
standards including those in the area of the provision of medical services. Accordingly,
court-appointed medical expert, Dr. Robert Greifinger, visited MDC in April and
November 2016 and produced reports regarding medical care provided at MDC.
In the present case, Plaintiff sent a request for production to both BCC and CCS,
requesting copies of the documents that MDC provided to Dr. Greifinger during certain
of his site visits for the McClendon case. Specifically, Plaintiff requested the BCC and
CCS
[p]roduce the records that officials or agents of the Metropolitan Detention
Center provided to the court-appointed medical expert, Dr. Robert
Greifinger, during his April 2016 and November 2016 site visits, including
but not limited to Continuous Quality Improvement (CQI) and Quality
Assurance (QA) reports, Mortality Reports, matrices or reports regarding
medical care prepared or signed by the County’s contract compliance
officer, and documents prepared or signed by Dr. Ron Shansky and Dr.
Kenneth Ray.
Doc. 38-9 at 2 (Request for Production No. 5 to BCC); see also Doc. 52-1 at 4 (Request
for Production No. 12 to CCS). In response, BCC produced only Dr. Greifinger’s reports
(Doc. 38-8 at 2) and asserted that it had “no additional materials to produce in response
to RFP No. 5” (Doc. 38-9 at 1). CCS provided this response:
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CCS, through counsel, objects to this Request and respectfully directs
Plaintiff to General Objections Nos. 2, 4 through 6 above. [Objections
based on proportionality, relevance, attorney-client privilege and/or workproduct doctrine, and that the request is overly-broad.] CCS, through
counsel, further objects to this Request because it seeks information that
is not relevant to Plaintiff’s claims or CCS’s defenses. CCS, through
counsel, further objects to this Request because the phrase “your agents
or principles” is unclear and calls for a legal conclusion. Without waiving
these or any other objection, CCS states that potential documents
responsive to this Request may be contained in the reports on MDC that
Plaintiff obtained from MDC by IPRA request. Documents submitted to Dr.
Greifinger are subject to a confidentiality order in the McClendon case.
Doc. 52-1 at 4-5.
Plaintiff now moves to compel the requested documents from both BCC and
CCS. “When ruling upon a motion to compel, the court generally considers those
objections which have been timely asserted and relied upon in response to the motion.
It generally deems objections initially raised but not relied upon in response to the
motion as abandoned.” Cotracom Commodity Trading Co. v. Seaboard Corp., 189
F.R.D. 655, 622 (D. Kan. 1999). The Court finds that CCS has waived some of its
objections because it did not address them in response to the Motion to Compel.
Additionally, when ruling on a motion to compel, the court generally “deems objections
not initially raised as waived.” Id. BCC did not raise any objections in its discovery
response because it maintains that the requested documents are not in its possession
and “given that [BCC] was unable to review the documents in question, [BCC] was
hardly in a position to assert any objections or privileges.” Doc. 39 at 4. The Court will
therefore address only those objections Defendants initially raised in discovery
responses and relied upon in their responses to the Motions to Compel.
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II.
Analysis
Under Federal Rule of Civil Procedure 26(b)(1), the scope of discovery is as
follows:
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, 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 benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). The scope of discovery is broad, Gomez v. Martin Marietta
Corp., 50 F.3d 1511, 1520 (10th Cir. 1995), but a court is not “required to permit plaintiff
to engage in a fishing expedition in the hope of supporting his claim,” Brown v. Montoya,
No. CIV 10-0081 JB/ACT, 2013 WL 1010390, at *16 (D.N.M. Mar. 8, 2013) (citing
McGee v. Hayes, 43 F. App’x 214, 217 (10th Cir. 2002)).
For the reasons stated below, the Court finds that the while the requested
documents are otherwise discoverable, they are subject to the protection based upon
the confidentiality orders enter in the McClendon case.
a. The requested documents are relevant.
The Court must first consider whether the requested documents are relevant to
any of Plaintiff’s claims. “A discovery request is considered relevant if there is ‘any
possibility’ that the information sought may be relevant to the claims or defense of any
party.” Zuniga v. Bernalillo Cty., No. CIV 11-877 RHS/ACT, 2013 WL 12333609, at *4
(D.N.M. Jan. 10, 2013) (citing Cardenas v. Dorel Juvenile Group, Inc., 232 F.R.D. 377,
382 (D. Kan. 2005)).
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As noted above, Plaintiff alleges that MDC denied her access to adequate
medical care for her pregnancy. See Doc. 50, ¶¶ 34-74. She contends that the
requested documents are relevant to this claim because Dr. Greifinger’s reports
revealed staffing problems at MDC during the relevant time period. Doc. 38 at 2. She
further asserts that the documents Dr. Greifinger reviewed will show the factual basis for
his finding. Doc. 52 at 10. CCS, on the other hand, argues that the documents are not
relevant because Dr. Greifinger found that MDC’s healthcare met constitutional
standards. Doc. 61 at 12.
The Court agrees with Plaintiff and overrules any objection based upon
relevance. Dr. Greifinger’s April 2016 report found that MDC had opportunities for
improvement with regard to pregnancy care (Doc. 43-2 at 3), and his November 2016
report found that “staff vacancies put MDC patients at risk of serious harm,” (Doc. 38-1
at 2). Dr. Greifinger’s reports for these site visits at MDC are temporally connected to
Plaintiff’s allegations. Thus, the documents Dr. Greifinger reviewed to make his findings
may provide Plaintiff with information concerning the medical care, or lack of medical
care, that was available to Plaintiff at the relevant time period. Moreover, those
documents may be relevant to the awareness of officials of any problems with the
delivery of medical care to inmates. Simply because Dr. Greifinger ultimately concluded
the healthcare provided at MDC met constitutional standards does not remove the
relevance of the requested materials in the instant litigation.
b. The requested documents are within the scope of discovery.
CCS objects to production of the requested documents, arguing that they are
outside the scope of discovery and overly broad. First, CCS asserts that Dr. Greifinger
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was appointed to assist the McClendon Court, not to “help Plaintiff prosecute her case.”
Doc. 61 at 12. But as Plaintiff explains, she is not requesting any additional work from
Dr. Greifinger, only copies of the documents that were provided by Defendants to Dr.
Greifinger for his review in preparation of his April and November 2016 Reports to the
McClendon court. And Plaintiff seeks documents only for a specific time period that
roughly overlaps with her incarceration, not all the discovery produced in McClendon.
For this same reason, Plaintiff’s request is not unduly burdensome. Plaintiff has
“limited [RFP No. 5 to BCC and RFP No. 12 to CCS] to a particular subset of materials
already produced in the McClendon litigation.” Doc. 65 at 4-5; see Mem. Op. & Order
Granting Pls.’ & Pl. Intervenors’ Joint Mot. for Enforcement of Interim Order Regarding
Access to the MDC, McClendon, 2017 WL 3405588 (Mar. 20, 2017) (“McClendon
MOO”). Thus, once again gathering and providing copies of those documents should
not require undue effort.
CCS further argues that the requested documents are outside the scope of
discovery because the instant is a medical malpractice case, not a class action case
generally based on alleged deficiencies in MDC’s conditions of confinement. Doc. 61 at
4-5. However, Plaintiff not only asserts medical malpractice, but a Section 1983 claim
based upon inadequate medical care while detained. She further argues, “the qualitycontrol and compliance measures mandated by both the McClendon consent decree
and CCS’s public contract with the County were deficient in the months leading up to
the incident.” Doc. 65 at 4. Though this is not a class action, documents concerning the
medical care available at MDC are nonetheless relevant to Plaintiff’s claims and within
the scope of discovery.
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c. A self-critical analysis privilege from disclosure does not apply.
CCS also objects to disclosure of the requested documents on the ground that
they are quality improvement documents that are protected by the federal common law
privilege of self-critical analysis. Doc. 61 at 8. Common law “governs a claim of privilege
unless any of the following provides otherwise: the United States Constitution; a federal
statute; or rules prescribed by the Supreme Court.” Fed. R. Evid. 501. When
determining federal common law privileges, “[t]he Supreme Court has cautioned that
evidentiary privileges should not be recognized or applied unless it ‘promotes
sufficiently important interests to outweigh the need for probative evidence.’” Weekoty v.
United States, 30 F. Supp. 2d 1343, 1345 (D.N.M. 1998) (citing Jaffee v. Redmond, 518
U.S. 1, 9-10 (1996)).
Plaintiff first argues that CCS waived this objection because CCS did not assert it
in its initial response to discovery requests. Doc. 65 at 10-11. The Court will
nevertheless address the objection because it finds that the documents are not
protected by the self-critical analysis privilege.
“The question of whether the self-critical analysis privilege should be recognized
as a matter of federal law has not been settled by the Supreme Court.” Bravo v. Bd. of
Cty. Comm’rs for Cty. of Doña Ana, No. CIV 08-0010 WJ/ KBM, 2009 WL 10706756, at
*2 (D.N.M. Nov. 24, 2009). In Weekoty, a decision from this District, the court
recognized the self-critical analysis privilege in the context of morbidity and mortality
conferences conducted by physicians for the purpose of peer review of the care and
treatment of patients. 30 F. Supp. 2d at 1345. However, in Bravo, the undersigned
declined to extend that privilege to self-evaluation records concerning medical care in a
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prison. 2009 WL 10706756, at *2-3. There, the court examined four requirements a
party asserting the self-analysis privilege must demonstrate: “(1) the information results
from a critical self-analysis performed by the party seeking production; (2) the public has
a strong interest in preserving the free flow of the type of information sought; . . . (3) the
information is of the type whose flow would be curtailed if discovery were allowed” and
(4) the document “was prepared with the expectation that it would be kept confidential,
and has in fact been kept confidential.” Id. at *2. Citing to a Ninth Circuit case, the court
explained that the third requirement is not met in the prison context:
Whereas in the ordinary hospital it may be that the first object of all
involved in patient care is the welfare of the patient, in the prison context
the safety and efficiency of the prison may operate as goals affecting the
care offered. In these circumstances, it is peculiarly important that the
public have access to the assessment by peers of care provided. Given
the demands for public accountability, which seem likely to guarantee that
such review take place whether they are privileged or not, we are not
convinced by the County’s argument that such reviews will cease unless
kept confidential by a federal peer review privilege.
Id. at *3 (citing Agster v. Maricopa Cty., 422 F.3d 836, 839 (9th Cir. 2005)).
CCS contends that “failure to protect CCS’s [quality improvement] efforts will
have a chilling effect on those efforts and could, in reality or in effect, terminate them.”
Doc. 61 at 15. But as explained in Agster, the “demand for public accountability” will
ensure that self-analysis continues, whether that information is kept confidential or not.
Indeed, in the McClendon case, Judge Parker has twice determined that the exact
same documents that Plaintiff now seeks are not protected by the self-analysis
privilege. See McClendon MOO at 6 (“In the context of prison reform, however, these
types of quality assurance reports are not protected by the self-critical analysis
privilege.”) (citing McClendon v. City of Albuquerque, No, 95-0024 JAP/KBM, 2015 WL
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13667177, at *6 (D.N.M. Oct. 13, 2015)). For all these reasons, the Court finds that the
self-critical privilege does not apply to the documents at issue and overrules CCS’s
objection on this ground.
d. The McClendon Confidentiality Orders prohibit disclosure.
Finally, both BCC and CCS assert that they cannot produce the requested
documents because they are protected by confidentiality orders entered in the
McClendon case. The Court agrees.
In McClendon, Judge Parker ordered the County and its medical contractor to
provide the plaintiffs and plaintiff-intervenors in that case with the same documents
Plaintiff Tanner requests from BCC and CCS here: reports that officials at MDC
provided to Dr. Greifinger during his April and November 2016 site visits, including the
continuous quality improvement and quality assurance reports, the mortality review
reports, a report prepared by the County’s contract compliance officer (“Stellman
Matrix”), and documents prepared by the County’s compliance contractors, Dr. Shansky
and Dr. Ray. McClendon MOO at 2-3.
Judge Parker authorized disclosure of these documents in McClendon because
“[a] complete set of documents provided to the Court’s experts is vital to counsel for
Plaintiffs and Plaintiff Intervenors in monitoring compliance with the Court’s extant
orders as incorporated into a recently-approved SETTLEMENT AGREEMENT. . . .”
McClendon, Doc. 1275 at 3 (Mar. 20, 2017). To accommodate production, Judge Parker
entered two Stipulated Confidentiality Orders. See Stipulated Confidentiality Orders,
McClendon, Doc. 1276 (Apr. 4, 2017) and Doc. 1285 (Apr. 28, 2017). Both
Confidentiality Orders identify the “Confidential Information” subject to the Orders as
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including “all documents physically or electronically given to Dr. Robert Greifinger M.D.,
a court appointed expert, and documents referenced or relied upon him, prior to and in
connection with the preparation of his compliance reports from his April and November
2016 visits. . . .” McClendon, Docs. 1276 and 1285 at 2. The first Order also specifically
makes clear that two documents at issue – Continuous Improvement and Quality
Assurance Reports (Quality Reports) and reports on the deaths of class and subclass
members (Mortality Review Documents) – fall within the reference to “Confidential
Information.” McClendon, Doc. 1276 at 1-2). The second Order specifies that all
documents prepared by Dr. Ray and Dr. Shansky also fall within “Confidential
Information.” McClendon, Doc. 1285 at 1-2.
Both Orders contain substantially the same provisions for the accomplishing
disclosure of the “Confidential Information” including:
The confidential information may only be shared with counsel for a
party to the McClendon action, court reporters transcribing a
proceeding in McClendon, and independent experts retained by a
party in the McClendon case for the purpose of addressing
methodology used by Dr. Greifinger.
No person granted access to the confidential information shall
make copies, take notes, or otherwise summarize the contents of
the information.
“If a dispute arises as to whether a particular person should be
granted access to Confidential Information, the party seeking
disclosure may move the Court to permit the disclosure and must
obtain an order of the Court before disclosing information.”
“Confidential Information may be used only for the purposes of [the
McClendon] litigation.”
CO Doc. 1276 at 3-4; CO Doc. 1285 at 3-4.
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By these terms, the documents requested by Plaintiff Tanner are covered by the
Confidentiality Orders and cannot be disclosed to her without a further order from the
McClendon Court. Plaintiff suggests that the Confidentiality Orders are “limited in scope
and subject to amendment.” Doc. 65 at 9. But this Court cannot make amendments to
an Order entered by Judge Parker in a separate case. Plaintiff also offers to enter into
the same type of confidentiality order in this case as the ones governing disclosure in
the McClendon case. But again, this Court cannot order disclosure of documents
protected in another case. Until the McClendon Court amends its Confidentiality Orders
or makes a further order, neither BCC nor CCS is permitted to disclose the documents
protected in the Orders. Therefore, Plaintiff’s Motions to Compel (Docs. 38 and 52) must
be denied.
IT IS SO ORDERED.
__________________________________
UNITED STATES MAGISTRATE JUDGE
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