SHERVIN v. PARTNERS HEALTHCARE SYSTEM, INC.

Filing 18

MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/15/2013; that Defendants' Motion to Compel the American Board of Orthopaedic Surgery, Inc. to Produce Records Concerning Plaintiff's Application for Part II of her Board Certification Examination (Docket Entry 1 ) is DENIED. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NINA SHERVIN, M.D.,

)
)
Plaintiff,
)
)
v.
)
)
PARTNERS HEALTHCARE SYSTEM,
)
INC., THE PRESIDENT AND FELLOWS )
OF HARVARD COLLEGE (THE HARVARD )
MEDICAL SCHOOL), MASSACHUSETTS )
GENERAL PHYSICIANS ORGANIZATION,)
INC., JAMES H. HERNDON, M.D.,
)
and HARRY E. RUBASH, M.D.,
)
)
Defendants.
)

1:13MC23

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the Court for disposition of
Defendants’ Motion to Compel the American Board of Orthopaedic
Surgery, Inc. to Produce Records Concerning Plaintiff’s Application
for Part II of Her Board Certification Examination (Docket Entry
1).

For the reasons that follow, the Court will deny the instant

Motion.
BACKGROUND
The instant Motion to Compel arises from an action pending in
the District of Massachusetts.

(See Docket Entry 1 at 1.)

“The

Defendants in this case are the institutions with oversight of [the
Harvard

Combined

Orthopaedics

Residency

Program

(‘HCORP’)],

Partners Healthcare System, Inc. (hereinafter ‘Partners’) and The

President and Fellows of Harvard College (Harvard Medical School)
[], as well as the physicians’ group at Partners’ Massachusetts
General

Hospital

(‘MGH’),

the

Massachusetts

General

Hospital

Physicians Organization (hereinafter ‘MGPO’), and HCORP’s then
Residency Director, James E. Herndon, M.D. [] in addition to the
Chief of the Department of Orthopedics at MGH, Harry E. Rubash,
M.D. [].”

(Docket Entry 3 at 1-2 n.1.)

Plaintiff, “an orthopedic

surgeon who trained as a resident in [HCORP]” (id. at 1), “alleges
the Defendants discriminated against her on the basis of gender
during the course of her residency” (id. at 1-2).
Plaintiff

“alleges

state

and

federal

Specifically,

claims

of

gender

discrimination and retaliation, as well as state law claims for
interference with advantageous/contractual relations.”

(Docket

Entry 1 at 2.)
As part of those claims, Plaintiff “alleges that individuals
associated
information

with

her

about

residency

her

[to

the

may

have

American

contributed
Board

of

negative

Orthopaedic

Surgery, Inc. (‘ABOS’)] (or that they had a negative impact on her
consideration by failing to contribute to her application at all),
affecting [Plaintiff’s] ability to sit for the Part II Boards.”
(Docket Entry 3 at 15.)1

In connection with that allegation, “[i]n

1

“Board
certification
requires,
among
other
qualifications, a written examination (‘Part I’), and oral
examination (‘Part II’), and peer review information and
evaluations from orthopedic surgeons and other hospital staff.”
(continued...)
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June of 2012, two of the Defendants, Partners and [] MGPO[] issued
a third party subpoena seeking a broad range of documents from
[ABOS] concerning [Plaintiff’s] efforts to become Board-certified
in her specialty.”

(Id. at 2.)

Partners and MGPO (hereinafter

collectively referred to as “Defendants”) now “move this Court to
compel [ABOS], which maintains its principal place of business in
Chapel Hill, North Carolina, to produce documents pursuant to
[that] [s]ubpoena.

Specifically, Defendants seek to compel the

production of documents concerning Plaintiff’s application to sit
for Part II of her ABOS Board Certification Exam . . ., which
include

percipient

performance,

based

reports
on

peer

colleagues and supervisors.”
omitted).)
documents

on

Plaintiff’s

review

authored

work
by

ethic
her

and

medical

(Docket Entry 1 at 1-2 (citation

The subpoena purports to require production of those
at

Massachusetts.

the

office

of

Defendants’

counsel

in

Boston,

(See Docket Entry 1-1 at 1.)

The Court held a hearing on the instant Motion.

(See Docket

Entry dated Jul. 15, 2013.) During said hearing, Defendants agreed
to amend the subpoena to reflect the office of their counsel in

1

(...continued)
(Docket Entry 3 at 11.) In this case, ABOS deferred Plaintiff’s
application for board certification “because the peer review
information received in connection with [Plaintiff’s] application
was insufficient to determine whether [she] demonstrate[s] the
competence in orthopaedic surgery and adherence to acceptable
ethical and professional standards as required by the Rules and
Procedures of [ABOS].” (Docket Entry 3-15 at 2.)
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Chapel Hill, North Carolina, as the place of production.

(Id.)

They further conceded that ABOS preserved its objections to the
subpoena.

(Id.)

At the conclusion of the hearing, the Court

orally ordered that, to the extent Defendants seek discovery of
documents from ABOS for the purpose of uncovering negative reviews
of Plaintiff’s work by persons who dealt with Plaintiff after she
concluded her work with Defendants based on the theory that such
evidence might help show that Plaintiff performed poorly with
Defendants, the Court would deny Defendants’ instant Motion because
such discovery would be cumulative, speculative, unlikely to lead
to admissible evidence, and disproportionately intrusive in light
of its limited probative value.

(Id.)

However, the Court further noted that information concerning
whether the fact of Plaintiff’s probation during her residency at
HCORP or any information submitted to or withheld from ABOS by
Defendants during the peer review process factored into ABOS’s
decision

to

discoverable.

defer
(Id.)

Plaintiff’s

application

might

qualify

as

The Court directed the Parties to attempt to

reach an agreement as to any such information.

(Id.)

The Parties

have now indicated to the Court that they could not reach an
agreement.

(See Docket Entry 17 at 1.)
STANDARD

The Federal Rules of Civil Procedure provide for the issuance
of subpoenas to non-parties.

See Fed. R. Civ. P. 45.

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The scope of

discovery under Federal Rule of Civil Procedure 45 matches that
under Federal Rule of Civil Procedure 26, see Kinetic Concepts,
Inc. v. ConvaTec Inc., 268 F.R.D. 226, 240 (M.D.N.C. 2010) (citing
Fed. R. Civ. P. 45 advisory committee’s notes, 1991 Amend., Subdiv.
(a)), which allows for the discovery of “any nonprivileged matter
that is relevant to any party’s claim or defense,” Fed. R. Civ. P.
26(b)(1). Under this standard, “[r]elevant information need not be
admissible

at

the

trial

if

the

discovery

appears

reasonably

calculated to lead to the discovery of admissible evidence.”

Id.

However,
[e]ven assuming that [] information is
relevant (in the broadest sense), the simple
fact that [it] is discoverable . . . does not
mean that discovery must be had. On its own
initiative or in response to a motion for
protective order under [Federal] Rule [of
Civil Procedure] 26(c), a district court may
limit . . . “discovery methods otherwise
permitted” . . . if it concludes that “(i) the
discovery sought is unreasonably cumulative or
duplicative, or is obtainable from some other
source
that
is
more
convenient,
less
burdensome, or less expensive; (ii) the party
seeking discovery has had ample opportunity by
discovery in the action to obtain the
information sought; or (iii) the burden or
expense of the proposed discovery outweighs
its likely benefit.”
Nicholas v. Wyndham Int’l Inc., 373 F.3d 537, 543 (4th Cir. 2004)
(quoting Fed. R. Civ. P. 26(b)(2)(C)).

Additionally,

[a] court may, for good cause, issue an order
to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or
expense, including [as pertinent here] . . .
(A) forbidding the disclosure or discovery;
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(C) prescribing a discovery method other than
the one requested by the party seeking
discovery; . . . [or] (D) forbidding inquiry
into certain matters, or limiting the scope of
disclosure or discovery to certain matters
. . . .
Fed. R. Civ. P. 26(c)(1).
In sum, when conducting an analysis under Federal Rule of
Civil Procedure 45, the Court “is required to apply the balancing
standards: relevance, need, confidentiality and harm.

Even if the

information sought is relevant, discovery is not allowed where no
need is shown, or where compliance is unduly burdensome, or where
the potential harm caused by production outweighs the benefit.”
Insulate Am. v. Masco Corp., 227 F.R.D. 427, 432 (W.D.N.C. 2005)
(citations omitted).
DISCUSSION
Defendants’ subpoena requests:
1. Any and all evaluations, recommendations,
references, or communications from Goodall
Hospital or its affiliates or its physicians
working at Goodall Hospital to [ABOS] relating
to [Plaintiff] including any documents,
correspondence,
notes,
evaluations
or
communications
relating
to
[Plaintiff’s]
application to sit for Part II of the Boards.
2. Any and all evaluations, recommendations,
references,
or
communications
from
any
physician or other person to [ABOS] relating
to [Plaintiff] including any evaluations,
recommendations, references, or communications
relating to [Plaintiff’s] application to sit
for Part II of the Boards.

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(Docket Entry 1-1 at 2.)

Defendants argue that the requested

records “will go substantial lengths to unsheathing Plaintiff’s
claims of trumped up charges based on gender discrimination and
other

illicit

activities.”

(Docket

Entry

1

at

9.)

More

specifically, they contend that Plaintiff “has put these matters at
issue by claiming that she exhibited no deficiencies as a resident
at HCORP, but was instead placed on probation based on illicit
discriminatory motives[, yet] it has been discovered, in part, that
Plaintiff’s [sic] exhibited similar behavior at Goodall as that
which resulted in her probation at HCORP.”

(Id. at 15.)

ABOS, on the other hand, contends that Defendants already
possess

the

relevant

information,

that

they

have

failed

to

articulate a need for the requested documents, and that the
resulting harm to ABOS’s certification process that disclosure
would cause outweighs any benefit Defendants might gain from
obtaining the requested documents.

(Docket Entry 2 at 1-2.)

The

Court agrees with ABOS.
Defendants want communications from individuals associated
with Goodall Hospital to ABOS in order to show that Plaintiff’s job
performance while at Goodall Hospital suffered from deficiencies
similar to those Defendants allege occurred during her residency.
(See Docket Entry 1 at 15.)

Defendants already have deposed an

official from Goodall Hospital. (See Docket Entry 1-3.) Moreover,
they

have

Plaintiff’s

application

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to

ABOS,

which

lists

her

supervisors at Goodall Hospital (see Docket Entry 1-4 at 2) and
individuals at Goodall Hospital familiar with Plaintiff’s work (id.
at 3-4).

Defendants also possess the names of the individuals

Plaintiff listed as references.

(See Docket Entry 1-5.)

In

addition, attorneys for ABOS confirmed which individuals listed on
Plaintiff’s application in fact submitted responses.
Entry 2-2 at 32-40.)

(See Docket

Defendants can obtain information concerning

Plaintiff’s performance at Goodall Hospital and related reports
made to ABOS directly from Goodall Hospital and its relevant
personnel.
Furthermore, information regarding Plaintiff’s performance at
Goodall Hospital would provide Defendants with little information
of value to the resolution of issues legitimately raised in this
case.

Evidence of Plaintiff’s alleged deficiencies at her job

subsequent to her residency likely would not qualify as admissible
to show that Plaintiff exhibited similar deficiencies during her
residency. See Fed. R. Evid. 404(a). On the other hand, requiring
ABOS

to

disclose

documents

it

obtained

under

a

promise

of

confidentiality “would likely adversely affect the willingness of
peers to provide such information in the future.”
at 8.)

(Docket Entry 2

Such a chilling effect on ABOS’s peer review process could

undermine its “ability to fulfill its mission to protect the public
by

evaluating

the

initial

and

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continuing

qualifications

of

orthopaedic surgeons.”

(Id.)2

Under these circumstances, the

Court will not compel a response to either of Defendants’ requests
based

on

the

theory

that

negative

information

concerning

Plaintiff’s subsequent job performance would show how she performed
during her residency.
Defendants present two additional theories of relevance for
the requested peer review materials.

First, they argue that

Plaintiff has alleged as part of her retaliation claim that
Plaintiff’s residency director (see Docket Entry 1-4 at 5) told
Plaintiff that challenging her probation would put her “at risk for
[] being able to sit for [her] oral boards” (Docket Entry 1-2 at 2)
and

Defendants

should

have

access

to

the

materials

anyone

associated with them provided to ABOS in order to rebut the
inference that Defendants sabotaged Plaintiff’s application (Docket
Entry 1 at 5-9).

Second, Defendants contend that Plaintiff could

claim the fact of her deferral by ABOS as part of her damages

2

Federal law does not recognize any absolute privilege
against discovery of medical peer review records. See Virmani v.
Novant Health Inc., 259 F.3d 284 (4th Cir. 2001). However, “[a]s
Congress has recognized [in other contexts], [medical] peer review
materials are sensitive and inherently confidential, and protecting
that confidentiality serves an important public interest.” United
States v. Harris Methodist Fort Worth, 970 F.2d 94, 103 (5th Cir.
1992). In light of “the sensitive nature of the information in
[medical] peer review records . . ., while clearly no federally
recognized privilege stands in the way of obtaining this
information, the shield of confidentiality that normally protects
this information justifies greater caution for the Court in
exercising its discretion regarding exposing the records to public
scrutiny.” Zamorano v. Wayne State Univ., No. 07-12943, 2008 WL
2999546, at *3 (E.D. Mich. Aug. 1, 2008) (unpublished) (internal
quotation marks omitted) (quashing subpoena to nonparty).
-9-

against Defendants and that the requested materials therefore could
help Defendants show that they did not in fact cause Plaintiff’s
deferral.

(Id. at 8 n.7.)

The first of these two theories fails because Plaintiff’s
Amended

Complaint

contains

no

allegation

connection with her ABOS application.

of

retaliation

in

(See Shervin v. Partners

Healthcare Sys., Inc., et al., CA No. 1:10-cv-10601-RWZ, Docket
Entry 38.)

In fact, Plaintiff filed her Amended Complaint on July

13, 2010 (see id. at 34), over three months before she submitted
her application to ABOS (see Docket Entry 1-4 at 5).

Thus, to the

extent Defendants seek to use the requested materials to defend
against a retaliation claim, they have no significant need.
As to the second of the foregoing theories, if Plaintiff could
prove ABOS deferred her application because of her probation or
negative reviews from Defendants, she theoretically could collect
damages

as

a

result.

However,

the

materials

Defendants would not shed much light on this issue.

requested

by

First, ABOS

has proffered, and the Court has no reason to doubt, that “no one
associated with [Plaintiff’s] residency program or [Defendants]
Partners [], Harvard Medical School, [MGH] and the individual named
Defendants [] submitted any adverse peer review information to the
Board.” (Docket Entry 2 at 4.) Furthermore, at the hearing before
the Court, counsel for ABOS proffered (and, again, the Court has no
basis to question) that no one associated with Defendants submitted

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any

peer

review

information

whatsoever

concerning

Plaintiff.

Moreover, Plaintiff notified ABOS of the fact of her probation in
her application (see Docket Entry 1-4 at 5), a document which
Defendants already have.
not

need

the

Under these circumstances, Defendants do

substance

of

the

responses

ABOS

received

from

individuals lacking any affiliation with Defendants to establish
that responses from Defendants failed to cause ABOS to defer
Plaintiff’s application.
As

a

final

matter,

in

her

filing

partially

supporting

Defendants’ instant Motion, Plaintiff suggested that the fact that
no one associated with her residency program submitted peer review
materials to ABOS may have adversely affected her application.
(Docket Entry 3 at 15-16.)

However, the records Defendants seek

via the instant subpoena would not aid them in defending against
such an assertion because the requested items would not show what
factors led ABOS to defer Plaintiff’s application.

Moreover, ABOS

has a strong interest in maintaining the confidentiality of the
peer review responses it received. Given these considerations, the
Court will not compel production of such materials.
CONCLUSION
Under the applicable balancing standard, the potential harm
caused by compelling discovery of the requested documents outweighs
any legitimate benefit Defendants would derive.

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IT IS THEREFORE ORDERED that Defendants’ Motion to Compel the
American Board of Orthopaedic Surgery, Inc. to Produce Records
Concerning

Plaintiff’s

Application

for

Part

II

of

her

Certification Examination (Docket Entry 1) is DENIED.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 15, 2013

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Board