Smith v. AHS Oklahoma Heart, LLC

Filing 39

OPINION AND ORDER by Magistrate Judge Frank H McCarthy , setting/resetting deadline(s)/hearing(s): ( Miscellaneous Deadline set for 4/12/2013) (jcm, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
REBECCA SMITH, M.D,
Plaintiff,
vs.

Case No.11-CV-691-TCK-FHM

AHS OKLAHOMA HEART, LLC d/b/a
OKLAHOMA HEART INSTITUTE
Defendants.
OPINION AND ORDER
The Motions to Quash Subpoenas Duces Tecum filed by Non-Parties Hillcrest
Medical Center (HMC), SouthCrest Hospital (SouthCrest), and Bailey Medical Center
(Bailey), [Dkt. 25, 26], have been referred to the undersigned United States Magistrate
Judge for decision.
The non-parties seek to quash subpoenas primarily on the basis of the Oklahoma
Peer Review Privilege found in 63 Okla. Stat. §1-1709.1. Alternatively, the non-parties ask
the court to find a federal self-critical analysis privilege under Fed.R.Evid. 501. Finally, the
non-parties question the relevancy of the subpoenaed documents.
Fed.R.Evid. 501 provides:
The common law – as interpreted by United States courts in
the light of reason and experience – 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.
But in a civil case, state law governs privilege regarding a claim
or defense for which state law supplies the rule of decision.

In this case Oklahoma state law does not supply the rule of decision for any claim or
defense. The Oklahoma peer review privilege embodied in 63 Okla. Stat. §1-1709.1 is
therefore inapplicable to this case.
The clear weight of authority has rejected the recognition of a federal peer review
or self critical analysis privilege under Fed.R.Evid. 501 in this context. See Adkins v.
Christie, 488 F.3d 1324, 1330 (11th Cir. 2007); Agster v. Maricopa County, 422 F.3d 836,
839 (9th Cir. 2005); Virmani v. Novant Health, Inc., 259 F.3d 284, 293 (4th Cir. 2001);
Memorial Hosp. for McHenry County v. Shadur, 664 F.2d 1058 (7th Cir. 1981);Williams v.
University Medical Center of Southern Nevada, 760 F.Supp.2d 1026 (D. Nev. 2010);
Jenkins v. DeKalb County, Georgia, 242 F.R.D. 652 (N.D. Ga. 2007); Cohlmia v. Ardent
Health Services, LLC., 448 F.Supp.2d 1253 (N.D. Okla. 2006); In re Administrative
Subpoena Blue Cross Blue Shield of Massachusetts, Inc., 400 F.Supp.2d 386 (D. Mass.
2005); Weiss ex rel. Estate of Weiss v. County of Chester, 231 F.R.D. 202 (E.D. Pa. 2005);
Nilavar v. Mercy Health System-Western Ohio, 210 F.R.D. 597 (S.D. Ohio 2002); but see
Weekoty v. U.S., 30 F.Supp.2d 1343 (D. N.M. 1998). Therefore, the non-parties have
failed to establish that any privilege supports quashing the subpoenas.
The question of whether the documents sought are relevant is not well developed
in the briefs. Plaintiff relies on the relevancy determination by the arbitrator, while the nonparties make general arguments and point to the fact that they are not parties to the case
and are not accused of discriminatory conduct. Additionally, it appears that through the
meet and confer process some responsive information has been provided. The court is
thus left without a clear understanding about what documents remain in dispute or how,

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specifically, Plaintiff maintains the documents are relevant to the arbitration.1 In addition,
the court is not willing to completely defer to the relevancy determination of the arbitrator
for the following reasons: the documents are sought from non-parties; the question of
relevancy involves a balancing process; and it is not clear whether the arbitrator considered
the non-parties’ interest in maintaining the confidentiality of the documents in light of the
policy of the State of Oklahoma as expressed in 63 Okla. Stat. §1-1709.1.
IT IS THEREFORE ORDERED that by April 12, 2013, the non-parties shall file a
supplemental brief generally describing the documents still at issue and specifically
drawing the court’s attention to any documents that are particularly sensitive. By April 19,
2013, Plaintiff shall file a supplemental brief detailing the relevance of the documents still
at issue.
SO ORDERED this 3rd day of April, 2013.

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The court notes that no one has questioned whether, or to what degree, the court should be
involved in m aking relevancy determ inations in a m atter com m itted to arbitration.

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