COOK v. WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER et al

Filing 29

MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 2/16/2021; that the defendant's motion to compel, Doc. 21 , is GRANTED and Ms. Cook SHALL produce copies of all documents and make all recordin gs available to the defendant to inspect and copy no later than February 26, 2021. Upon filing of a verification signed by the plaintiff subject to penalties for perjury, the Court expects to grant the motion for voluntary dismissal and enter judgment dismissing the plaintiff's claims with prejudice. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TONYA COOK,
Plaintiff,
v.
WAKE FOREST UNIVERSITY
BAPTIST MEDICAL CENTER,

Defendant.

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1:20-CV-193

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
The plaintiff, Tonya Cook, filed this lawsuit against her employer, Wake Forest
University Baptist Medical Center, for allegedly discriminating and retaliating against her
in violation of federal law. Ms. Cook moves to dismiss her case with prejudice under
Rule 41(a)(2) of the Federal Rules of Civil Procedure. The Medical Center moves to
compel discovery and objects to dismissal unless Ms. Cook is ordered to disclose and
return documents and recordings belonging to the Medical Center.
Given the unusual circumstances here, the Court will require Ms. Cook to make
the materials belonging to the Medical Center available for its review and will condition
the dismissal upon compliance. But the Court will not order Ms. Cook to return all
copies of the documents or the recordings, as that is outside the scope of discovery and
raises questions not appropriate for resolution in these proceedings in the current
procedural posture.

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Facts
In August 2020, the Medical Center served Ms. Cook with requests for production
of documents. In Document Request Two, the only request at issue here, the Medical
Center asked Ms. Cook to:
Produce any and all documents (including copies thereof) that are the
property of the Defendant or that you have ever removed or directed to be
removed from Defendant’s premises, including, but not limited to, copies of
any schedules, calendars, or schedule notebooks.
Doc. 21-1 at 18. In her initial response on October 20, 2020, Ms. Cook stated that she
was withholding responsive documents protected by the attorney-client privilege and
work-product rule. Doc. 21-2 at 19–20.
After the Medical Center requested a privilege log, see Doc. 21-3 at 2, and
identified other deficiencies, id. at 3–9, Ms. Cook supplemented her response in late
November, maintaining her previous objections and asserting a third objection based on a
federal regulation concerning disclosure of protected health information by
whistleblowers. Doc. 21-6 at 11 (citing 45 C.F.R. § 164.502(j)(1)(ii)(B)). Ms. Cook also
produced a privilege log with her supplemental responses; in that log, she claimed a
privilege for “Audio Recordings, Video Recordings, and Other Documents of Defendant”
in her possession and asserted that they were “not relevant to this action and can only be
disclosed to those authorized by statute.” Doc. 21-5 at 2. These materials are the subject
of the Medical Center’s pending motion. See, e.g., Doc. 27 at 7.
Immediately after receiving her supplemental responses and the privilege log, the
Medical Center requested a phone conference to discuss their deficiencies, Doc. 21-7 at
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4–5, as required by Local Rule 37.1. During that phone conference, counsel for Ms.
Cook refused to produce the “Audio Recordings, Video Recordings, and Other
Documents of Defendant,” despite the Medical Center’s assertion that the objections
were improper. See id. at 2. Soon thereafter, Ms. Cook told the Medical Center that she
planned to voluntarily dismiss her case. Doc. 21-8.
Ms. Cook filed her motion for voluntary dismissal under Rule 41 of the Federal
Rules of Civil Procedure on December 10, 2020. Doc. 19. The parties continued to
discuss whether Ms. Cook would voluntarily disclose the information at issue despite her
motion for dismissal. See Doc. 26-1. But they were unable to agree, and the Medical
Center filed this motion to compel disclosure and the return of its property on December
31, 2020. Doc. 21.
Discussion
I.

Are the materials discoverable?
Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, parties may obtain

discovery of “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. 26(b)(1). Relevance has been
“broadly construed to encompass any possibility that the information sought may be
relevant to the claim or defense of any party.” Shackleford v. Vivint Solar Dev. LLC, No.
CV ELH-19-954, 2020 WL 3488913, at *5 (D. Md. June 25, 2020) (citation omitted).
If a party refuses to make a disclosure required by Rule 26, the party seeking
discovery may move to compel disclosure under Rule 37. Fed. R. Civ. P. 37(a)(1). “The
party seeking discovery has the burden to establish its relevancy and proportionality, at
3

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which point the burden shifts to the party resisting discovery to demonstrate why the
discovery should not be permitted.” Shackleford, 2020 WL 3488913, at *5.
Here, the information sought in Document Request Two had obvious relevance,
and Ms. Cook did not object on relevance grounds. Calendars and schedules could
confirm or refute other evidence about when events happened, and the complaint
specifically asserts that the Medical Center failed make reasonable accommodations
related to Ms. Cook’s work schedule. See, e.g., Doc. 1 at ¶¶ 25–28. Ms. Cook
apparently signed a confidentiality agreement, Doc. 21-9, so responsive materials might
provide evidence to support a defense of employee misconduct, which can limit damages
even if acquired after the employee was terminated for a discriminatory reason. See
McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 359–363 (1995); Miller v. AT &
T Corp., 250 F.3d 820, 837 (4th Cir. 2001). Ms. Cook did not object to the request as
burdensome or disproportionate to the needs of the case, and the request was limited in
scope, focusing only on property belonging to the Medical Center. The request was
relevant, and Ms. Cook had a duty to produce responsive materials absent a valid
exception.
Ms. Cook refused to produce the materials based on claims that they were either
privileged or protected under the work-product rule, or, in her late-filed objections, that
disclosure would violate 45 C.F.R. § 164.502(j)(1). These objections are without merit
and border on the frivolous.
First, it is well established that “attorney-client privilege protects only the
disclosure of client communications, and not the disclosure of any underlying facts,” and
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that “a client cannot possibly hide information simply by communicating it to his
lawyer.” In re Allen, 106 F.3d 582, 604 (4th Cir. 1997). Second, the work-product rule
shields only documents that are “prepared in anticipation of litigation” by a party or its
representative. See Fed. R. Civ. P. 26(b)(3)(A); Nat'l Union Fire Ins. Co. v. Murray
Sheet Metal Co., 967 F.2d 980, 985 (4th Cir. 1992). Ms. Cook does not have attorneyclient privilege or work-product privilege in documents and recordings belonging to the
Medical Center just because she shared the materials with her attorney. She has offered
no valid basis for asserting these privileges.
Her HIPPA objection fares no better. First, it was untimely. See TJF Servs. v.
Transp. Media, Inc., No. 5:17-CV-00626-RN, 2019 WL 7599942, at *2 (E.D.N.C. Jan.
22, 2019). Second, the regulatory provision concerning disclosures by whistleblowers
that she claims prohibits her from disclosing the materials to the Medical Center does no
such thing. That provision, 45 C.F.R. § 164.502(j)(1), provides that a covered entity—
like the Medical Center—“is not considered to have violated the requirements of this
subpart” prohibiting disclosure of protected health information when, inter alia, “a
member of its workforce”—like Ms. Cook—“discloses protected health information” to a
health oversight agency or an attorney.1 The regulation does not prohibit employees from
disclosing to their employer protected health information in materials belonging to their
employer. Nor has Ms. Cook identified any authority suggesting disclosure in this
context is prohibited, no doubt because such an interpretation is nonsensical.

1

The Court expresses no opinion on whether a HIPPA breach has occurred, and if so,
whether 45 C.F.R. § 164.502(j)(1) applies here.
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Ms. Cook points out that § 164.502(j) “allows whistleblowers to disclose
otherwise private health information” to “a retained attorney” under certain
circumstances. Doc. 26 at 7. But the provision says nothing about whether such private
health information is discoverable in litigation, and she does not explain why this section
prohibited her from responding to a legitimate discovery request. Indeed, HIPPA
regulations specifically authorize disclosure in judicial proceedings, including in response
to discovery requests. See 45 C.F.R § 164.512(e)(1)(ii).2
Ms. Cook’s objections were without merit and not substantially justified. She
should have produced responsive documents to the Medical Center long before she asked
the Court to voluntarily dismiss the case. Had she not filed her motion for voluntary
dismissal, an order compelling disclosure would unquestionably be appropriate, as would
an order requiring her to pay the Medical Center’s expenses. See Fed. R. Civ. P.
37(a)(5)(A).
II.

What is the appropriate remedy?
Ordinarily, outstanding discovery requests become moot, unnecessary, or

inappropriate when a plaintiff files a motion for voluntary dismissal with prejudice. See,
e.g., Boudreaux Grp., Inc. v. Clark Nexsen, Owen, Barbieri, Gibson, P.C., No. 8:18-CV1498-TMC, 2018 WL 9785308, at *6 (D.S.C. Nov. 20, 2018) (denying motion to compel

2

Ms. Cook never expressed concerns that the Medical Center would disclose any protected
health information in violation of federal regulations. Even if she had, those concerns could
have been resolved by suggesting a protective order, as is routinely done in civil litigation, not by
an outright refusal. Fed. R. Civ. P. 26(c); LR 26.2. The Court does not suggest a protective
order is necessary. The Medical Center is a covered entity, as it admits, Doc. 22 at 12, and is
subject to whatever the relevant regulations require and prohibit even without a protective order.
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and staying discovery until disposition of a motion to dismiss); Bioxy, Inc. v. Birko Corp.,
935 F. Supp. 737, 744–45 (E.D.N.C. 1996) (granting Rule 41 motion and denying
pending discovery motions as moot). But the filing of a motion for voluntary dismissal,
even with prejudice, does not deprive the Court of its authority to examine the facts and
circumstances surrounding the motion. Nor does it strip the Court’s authority to decide
pending discovery motions. Courts have substantial discretion in dealing with discovery
issues and in ruling on motions for voluntary dismissal. Bost v. Wexford Health Sources,
Inc., No. CV ELH-15-3278, 2020 WL 1890506, at *9 (D. Md. Apr. 15, 2020) (noting that
district courts have “a wide berth to control discovery.”); see Davis v. USX Corp., 819
F.2d 1270, 1273 (4th Cir. 1987) (“The decision to grant a voluntary dismissal under Rule
41(a)(2) is a matter for the discretion of the district court . . . .”); see also La Rouche v.
Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to compel discovery is
addressed to the sound discretion of the district court.”)
Here, under these fairly unusual facts, it would be inappropriate to allow Ms. Cook
to dismiss her case without requiring compliance with a valid discovery request in which
the Medical Center has a current, legitimate interest. Based on what Ms. Cook has
disclosed so far, there is a very high likelihood that the documents and recordings at
issue, which by Ms. Cook’s own characterization belong to the Medical Center,3 contain
protected health information of patients at the hospital; she affirmatively asserts as much
by claiming the HIPPA regulations apply. See discussion supra at 5–6. If so, the

See Doc. 21-5 at 2 (plaintiff’s privilege log identifying materials as “Audio Recordings,
Video Recordings, and Other Documents of Defendant”).
3

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Medical Center will almost certainly have obligations under those regulations requiring
notice of a breach of privacy. 45 C.F.R. §§ 164.400–414. The Medical Center thus has a
legitimate need to know what protected health information Ms. Cook has in her
possession. Ms. Cook avoided disclosing these legitimate discovery materials for months
only by imposing meritless objections, including after the Medical Center initiated the
required meet-and-confer. The timing of Ms. Cook’s motion for voluntary dismissal is
suspicious, suggesting her decision was influenced at least in part by a wish to avoid
disclosure. Finally, Ms. Cook has not identified, much less shown, that she will be
prejudiced or unduly burdened if she is required to produce the documents and
recordings. These materials are in her possession, there is nothing to indicate they are
voluminous or contain any private information about Ms. Cook, and they can easily be
made available to the Medical Center.
Taken together, these constitute exceptional circumstances sufficient to condition
the motion for voluntary dismissal on compliance with the reasonable discovery request,
which the Medical Center made months ago. It is appropriate to order Ms. Cook to make
these documents and recordings available to the Medical Center, both under Rule 37 and
as a condition of her voluntary dismissal. See Amick v. Am. Elec. Power Co., No. 2:13CV-06593, 2014 WL 3750017, at *2 (S.D.W. Va. July 29, 2014) (noting that
extraordinary circumstances are a basis for denying motions for voluntary dismissal).
The Court will order Ms. Cook to produce copies of all documents and make available all
recordings for inspection and copying by the Medical Center.

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The Medical Center asks for other remedies, but those remedies are either
premature or inappropriate. For example, the Medical Center asks that Ms. Cook return
all copies of all documents and return any such recordings, but discovery orders only
require litigants to share information, not to completely give up possession of responsive
items and documents in their possession. Such an order would not be appropriate as a
sanction under Rule 37, as sanctions beyond expenses are usually appropriate only when
a litigant fails to comply with a court order or completely fails to respond to discovery
requests. See Sines v. Kessler, No. 3:17-CV-00072, 2020 WL 7028710, at *1 (W.D. Va.
Nov. 30, 2020); Hughley v. Leggett, No. DKC 11-3100, 2013 WL 3353746, at *2 (D.
Md. July 2, 2013).
This is not the best forum to decide whether Ms. Cook wrongfully took the
materials or whether she has any right or interest sufficient to maintain possession of
these materials. See, e.g., Cabotage v. Ohio Hosp. for Psychiatry, LLC, 2:11-CV-50,
2012 WL 3064116, at *4 (S.D. Ohio July 27, 2012) (declining to decide any potential
claims about the plaintiff’s possession of the defendant’s data, which was wrongfully
obtained, but precluding the plaintiff from using the data in the pending action). The
Court declines to decide the merits of any potential legal claims related to Ms. Cook’s
possession of the Medical Center’s property or to otherwise sanction Ms. Cook for
removing the documents. Such determinations are outside the scope of this case and are
not ripe.

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III.

Reasonable Expenses & Attorney’s Fees

When a motion to compel is granted, Rule 37(a)(5)(A) provides that absent an
exception, the party whose conduct necessitated the motion must pay the movant’s
reasonable expenses and fees. Fed. R. Civ. P. 37(a)(5)(A). If none of the rule’s
exceptions apply, this relief is mandatory. Valle v. Wolff, No. BR 19-15518, 2021 WL
294513, at *4 (D. Md. Jan. 28, 2021) (collecting cases). The Medical Center shall file a
supplemental motion with a supporting brief and evidence related to the amount of the
fees and expenses no later than March 12, 2021, if it wants to pursue this remedy. Ms.
Cook may file a response no later than March 31, 2021.
It is ORDERED that:
1. The defendant’s motion to compel, Doc. 21, is GRANTED and Ms. Cook
SHALL produce copies of all documents and make all recordings available to
the defendant to inspect and copy no later than February 26, 2021.
2. Upon filing of a verification signed by the plaintiff subject to penalties for
perjury, the Court expects to grant the motion for voluntary dismissal and enter
judgment dismissing the plaintiff’s claims with prejudice.
This the 16th day of February, 2021.

__________________________________
UNITED STATES DISTRICT JUDGE

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