DURAND v. CHARLES

Filing 36

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 06/30/2017, that the Motion to Compel (Docket Entry 31 ) is GRANTED IN PART and DENIED IN PART as follows: on or before July 14, 2017, Defendant shall produce to Plaintiff all documents pertaining to the N.C. Medical Board inquiry initiated by Plaintiff. (Garland, Leah)

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

RAYBORN J. DURAND,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ANTHONY G. CHARLES, M.D.,
Defendant.

1:16cv86

MEMORANDUM OPINION AND ORDER
This case comes before the Court for an order on Plaintiff’s
“Motion to Compel” (Docket Entry 31). For the reasons that follow,
the Court will grant in part and deny in part the Motion to Compel.
BACKGROUND
Alleging that Anthony G. Charles, M.D. (the “Defendant”)
committed

acts

and/or

omissions

amounting

to

deliberate

indifference to his serious medical needs in February 2013, Rayborn
J. Durand (the “Plaintiff”) initiated this lawsuit in February
2016.
(per

(See Docket Entry 2 (the “Complaint”).)
United

States

District

Judge

Loretta

C.

After the Court
Biggs)

denied

Defendant’s dismissal motion (see Docket Entry 25), the parties
commenced

discovery

(see

(authorizing discovery)).

Text

Order

dated

Jan.

30,

2017

In May 2017, Plaintiff moved to compel

production of materials responsive to “two document requests” that
“Defendant claims . . . are beyond the scope of permiss[i]ble
discovery under Rule 34 of the [Federal Rules of Civil Procedure
(the “Rules”)] and . . . are protected from discovery by [certain

North

Carolina

privile[g]e.”

statutes

and

the]

.

(Docket Entry 31 at 1-2.)1

.

.

attorney-client

Thereafter, Defendant

served supplemental responses to the relevant document requests
(see Docket Entry 32-2 (the “Supplement”)) and filed “Defendant’s
Response in Opposition to Plaintiff’s Motion to Compel” (Docket
Entry 32 (“Defendant’s Response”)).2
Defendant’s Response.

Plaintiff did not reply to

(See Docket Entries dated June 1, 2017, to

present.)
DISCUSSION
I.

Discovery Standards

“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants,” as “[m]utual
knowledge of all the relevant facts gathered by both parties is
essential to proper litigation.”
committee’s
omitted).

notes,

1983

Fed. R. Civ. P. 26 advisory

Amendment

(internal

quotation

marks

Therefore, “[u]nless otherwise limited by court order,

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 . . . .”

1 Citations herein to Docket Entry pages utilize the CM/ECF
footer’s pagination.
2 On May 15, 2017, Plaintiff submitted his Motion to Compel
(see Docket Entry 31 at 3-4), which the Clerk received on May 22,
2017 (see id. at 1; see also Docket Entry 31-1 at 1). Defendant
served the Supplement on May 26, 2017 (see Docket Entry 32-2 at 23), and filed Defendant’s Response on June 1, 2017 (see Docket
Entry 32 at 7-9).
2

Fed. R. Civ. P. 26(b)(1).3

Relevancy “essentially involves a

determination of how substantively the information requested bears
on the issues to be tried.”

Mills v. East Gulf Coal Preparation

Co.,

131

LLC,

259

F.R.D.

118,

quotation marks omitted).

(S.D.

W.

Va.

2009)

(internal

However, “[e]ven assuming that th[e]

information is relevant (in the broadest sense), the simple fact
that requested information is discoverable . . . does not mean that
discovery must be had.

On its own initiative or in response to a

motion for protective order under Rule 26(c), a district court may
limit [discovery] . . . .”

Nicholas v. Wyndham Int’l, Inc., 373

F.3d 537, 543 (4th Cir. 2004).

Indeed, “[d]istrict courts enjoy

nearly unfettered discretion to control the timing and scope of
discovery.”

Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 426

(4th Cir. 1996); accord Cook v. Howard, 484 F. App’x 805, 812 (4th
Cir. 2012) (observing that “[d]istrict courts are afforded broad
discretion with respect to discovery”).
II.

Analysis

Plaintiff

seeks

to

compel

materials

responsive

to

the

following document production requests:
2. That Defendant provide Plaintiff with a true copy of
(a) any and all documents relating to any type of risk
management or other inquiry(s) pertaining to Plaintiff’s
care at the U.N.C. Medical Center [(the “Care Request”).]
. . . .

3 Such information “need not be admissible in evidence to be
discoverable.” Id.
3

3. That Defendant provide Plaintiff with a true copy of:
(a) any and all documents pertaining to the N.C. Medical
Board inquiry initiated by Plaintiff [(the “Inquiry
Request”)].
(Docket Entry 32-2 at 1-2; accord Docket Entry 31 at 1.)

As

relevant to the Motion to Compel, the Supplement states:
[Care Request] Supplemental Response:
The only documents potentially responsive to this
Request are communications between Defendant and his
attorneys regarding said attorneys’ investigation into
this matter, and documents concerning Defendant’s
response to the NC Medical Board Complaint lodged by
Plaintiff against Defendant. Such documents are being
withheld because they are not subject to discovery. No
other documents are being withheld with respect to this
Request.
. . . .
[Inquiry Request] Supplemental Response:
Documents associated with Defendant’s response to
the NC Medical Board complaint lodged against Defendant
by Plaintiff are not subject to discovery and are being
withheld.
(Docket Entry 32-2 at 1-2 (bold font and all-cap font omitted).)
Defendant’s Response elaborates “that he has no documents
responsive to [the Care Request] aside from communications with
undersigned

counsel

in

connection

inquiry into this matter.

with

undersigned

See [Supplement].

counsel’s

Defendant is only

withholding documents responsive to Plaintiff’s request for all
documents pertaining to Plaintiff’s N.C. Medical Board complaint
against Defendant.”

(Docket Entry 32 at 2.)

further asserts that
4

Defendant’s Response

Plaintiff’s request to compel documents associated
with “risk management or other inquiry(s) pertaining to
Plaintiff’s care at U.N.C. Hospital” must be denied
inasmuch as it seeks communications between Defendant and
his attorneys. Plaintiff’s motion to compel any other
responsive material to this request is moot because
Defendant has no such documents.
(Id. at 3 (citing the Supplement).)
In light of the foregoing, Defendant appears to possess
(i) documents purportedly covered by the attorney-client privilege
that qualify as responsive to the Care Request and (ii) documents
regarding

“Plaintiff’s

N.C.

Medical

Board

complaint

against

Defendant” (id. at 2) that qualify as responsive to the Inquiry
Request as well as the Care Request (to the extent it encompasses
the Inquiry Request).
at 1-2.)

(See id. at 2-3; see also Docket Entry 32-2

In regard to the first category of documents, Defendant

maintains that he withheld “communications between Defendant and
his attorneys regarding said attorneys’ investigation into this
matter.”

(Docket Entry 32-2 at 1.)4

As a general rule, the

attorney-client privilege protects from disclosure confidential
communications between a client and attorney regarding efforts to
obtain legal services.

See Chaudhry v. Gallerizzo, 174 F.3d 394,

4 Defendant identified the withheld documents after Plaintiff
filed the Motion to Compel. Given that he declined to file a reply
after receiving the Supplement and Defendant’s Response, Plaintiff
appears to dispute neither Defendant’s description of these
documents nor Defendant’s assertion that he does not possess any
documents responsive to the Care Request other than those
(i) subject to the attorney-client privilege or (ii) also
responsive to the Inquiry Request.
5

402 (4th Cir. 1999).

As described, the withheld documents appear

subject to the attorney-client privilege and thus merit protection
from disclosure.

See id. at 402-03.

Accordingly, the Court will

not compel production of those communications.
Defendant does not assert the attorney-client privilege for
any of the documents withheld regarding the Inquiry Request.
Docket Entry 32-2 at 2; see also Docket Entry 32 at 3-6.)

(See

Instead,

Defendant argues that “the material that Plaintiff seeks is not
relevant to his claim in the instant matter, and [that] the
interests associated with maintaining the confidentiality of the
North

Carolina

Medical

Board’s

confidential

investigations

outweighs [sic] any limited benefit the Plaintiff could gain
through obtaining these documents.” (Docket Entry 32 at 4.) These
arguments lack merit.
The Inquiry Request relates to a complaint Plaintiff submitted
“against Defendant to the North Carolina Medical Board in November
2015.

This complaint arises out of Defendant’s treatment of the

Plaintiff

in

February

2013.”

(Id.

at

2.)

Likewise,

the

“[C]omplaint arises out of Defendant’s treatment of . . . Plaintiff
in February 2013” (id.).
Moreover,

Defendant

(See, e.g., Docket Entry 2 at 4-6.)

disputes

key

issues

in

this

litigation,

including whether he spoke with Physician Assistant Kurian on
February 21, 2013, or treated Plaintiff on February 19, 2013. (See
Docket Entry 30-1 at 2-4; see generally Docket Entry 34 (concluding

6

that material factual disputes precluded award of summary judgment
to Plaintiff).)

Accordingly, materials such as “the written

response to Plaintiff’s complaint that Defendant submitted to the
Medical Board” (Docket Entry 32 at 4) plainly qualify as “relevant
to any party’s claim or defense,” Fed. R. Civ. P. 26(b)(1).

The

Court therefore rejects Defendant’s relevance objection.
Defendant also argues that confidentiality concerns warrant
denial

of

compelled

production

(See Docket Entry 32 at 4, 6.)

of

the

requested

materials.

In this regard, Defendant maintains

that North Carolina privilege rules would preclude disclosure of
these materials.

(See id. at 6 (citing N.C. Gen. Stat. § 90-16).)

As Defendant concedes, however, North Carolina privilege rules do
not govern resolution of the instant dispute.

(See id. at 3, 6.)5

5
Additionally, Defendant appears to overstate the
protections afforded the requested information under North Carolina
law. The statute upon which Defendant relies protects materials in
the possession of the North Carolina Medical Board from
(i) treatment as public records and (ii) compelled production from
the Medical Board. See, e.g., N.C. Gen. Stat. § 90-16(c) (“All
records . . . and other documents containing information in the
possession of or received or gathered by the Board . . . shall not
be considered public records within the meaning of Chapter 132 of
the General Statutes and are privileged, confidential, and not
subject to discovery, subpoena, or other means of legal compulsion
for release to any person other than the Board, . . . except as
provided in subsections (d) and (e1) of this section.”); N.C. Gen.
Stat. § 90-16(e1) (“Upon written request of a patient, the Board
may provide the patient a [doctor’s] written response to a
complaint filed by the patient with the Board regarding the
patient’s care. . . . Any information furnished to the patient or
complainant pursuant to this subsection shall be inadmissible in
evidence in any civil proceeding. However, information, documents,
or records otherwise available are not immune from discovery or use
in a civil action merely because they were included in the Board’s
7

Similarly, the rationale Defendant offers for such rule does
not apply

here.

According

to

Defendant,

the

rule

“prevents

unsubstantiated allegations against health care providers from
becoming public.”

(Id. at 6.)

The instant lawsuit already

rendered public Plaintiff’s allegations against Defendant.

See,

e.g., Hamilton v. Pallozzi, 848 F.3d 614, 618 n.1 (4th Cir. 2017)
(explaining that a court filing constitutes “a matter of public
record”); Virginia Dep’t of State Police v. Washington Post, 386
F.3d 567, 575 (4th Cir. 2004) (explaining that the public possesses
both a

common-law

and

a

first-amendment

right

of

documents or materials filed in a district court”).
the

extent

Defendant

confidentiality

concerns

possesses

additional

regarding

“access

to

Finally, to
(undisclosed)

dissemination

of

these

materials, he remains free to seek a protective order from this
Court

or

Plaintiff.

to

enter
See

into

Fed.

R.

a

confidentiality

Civ.

P.

26(c);

see

stipulation
also

with

Innovative

Therapies, Inc. v. Meents, 302 F.R.D. 364, 382 (D. Md. 2014) (“To
address [the party’s] confidentiality concerns, the appropriate
remedy would be a confidentiality stipulation limiting use of the

review or were the subject of information furnished to the patient
or complainant pursuant to this subsection.”). Furthermore, for
months after Plaintiff commenced this lawsuit, the relevant statute
obliged the Medical Board to produce materials it planned to use as
evidence in its case in chief in a contested hearing against a
doctor to such doctor.
(See Docket Entry 32-3 at 1-2.)
That
material remains “subject to discovery or subpoena between and
among the parties in a civil case in which the [doctor] is a
party.” N.C. Gen. Stat. § 90-16(e).
8

information, rather than preventing its production altogether.”).
Under

the

circumstances,

the

Court

rejects

Defendant’s

confidentiality objection.
CONCLUSION
The

Court

sustains

Defendant’s

attorney-client

privilege

objection, but overrules his objection to producing “documents
pertaining to Plaintiff’s N.C. Medical Board complaint against
Defendant” (Docket Entry 32 at 2).6
IT IS THEREFORE ORDERED that the Motion to Compel (Docket
Entry 31) is GRANTED IN PART and DENIED IN PART as follows:

on or

before July 14, 2017, Defendant shall produce to Plaintiff all
documents pertaining to the N.C. Medical Board inquiry initiated by
Plaintiff.
This 30th day of June, 2017.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

6
If, upon receipt and review of the produced discovery,
Plaintiff concludes in good faith that information contained
therein warrants exploration via further discovery, he may file a
motion, on or before August 4, 2017, requesting leave to conduct
such discovery, notwithstanding the discovery deadline of July 31,
2017.
Any such motion shall describe in detail the specific
additional discovery Plaintiff would conduct and the nature and
source of information from the discovery produced by Defendant in
response to this Order that led Plaintiff to seek further
discovery. Lastly, where (as here) the Court grants in part and
denies in part a motion to compel, the Court “may, after giving an
opportunity to be heard, apportion the reasonable expenses for the
motion.” Fed. R. Civ. P. 37(a)(5)(C). In this case, the Court
exercises its discretion not to order any such apportionment.
9