Clark v. S. Broward Hosp. Dist.
Clark v. S. Broward Hosp. Dist.
2013 WL 11318866 (S.D. Fla. 2013)
October 21, 2013
Snow, Lurana S., United States Magistrate Judge
Summary
The Court granted the Plaintiff's Motion to Compel Regarding ESI (DE125) in part, requiring the Defendant to identify the nature of the redactions, to the extent not readily apparent, stating which redactions are HIPAA-related, which redactions were made to shield private information, and which are owing to an assertion of privilege. The Court also required the parties to brief the issue of when an employment discrimination action commences for purposes of whether a privilege log must be provided.
Cheryl Clark, M.D., Plaintiff,
v.
South Broward Hospital District, d/b/a Memorial Healthcare System, Defendant
v.
South Broward Hospital District, d/b/a Memorial Healthcare System, Defendant
CASE NO. 12-61164-CIV-DIMITROULEAS/Snow
United States District Court, S.D. Florida
Signed
October 18, 2013
Filed October 21, 2013
Counsel
Jennifer E. Daley, William Robert Amlong, Karen Coolman Amlong, Patrice Peter DiLorenzo, Amlong & Amlong, PA, Fort Lauderdale, FL, for Plaintiff.Jenna Rinehart Rassif, Kelly D. Gemelli, Jackson Lewis, LLP, Miami, FL, for Defendant.
Snow, Lurana S., United States Magistrate Judge
OMNIBUS ORDER
*1 THIS CAUSE is before the Court on the Plaintiff, Cheryl Clark's Motion to Compel Better Responses to Plaintiff's Seventh Request for Production (DE 110), Plaintiff's Motion to Compel Better Responses to Plaintiff's Ninth (Incorrectly Named Eighth) Request for Production (DE 113), Plaintiffs Motion to Compel Regarding Electronically Stored Information (ESI) (DE 125), and Plaintiff's Corrected Motion Pursuant to Rule 37(c) to Exclude Testimony of Witnesses not Timely Disclosed Pursuant to Rule 26(a)(1) (DE 191), which were referred to Lurana S. Snow, United States Magistrate Judge. The motions are all ripe for consideration and a hearing was held before the undersigned on October 16, 2013. This Order memorializes the Court's ruling from the bench.
The Plaintiff, Cheryl Clark, M.D. (Clark), a physician formerly employed by the Defendant, South Broward Hospital District (SBHD), filed this action against SBHD alleging gender discrimination, hostile environment, and retaliation.
A. Plaintiff's Motion to Compel Better Responses to Plaintiff's Seventh Request for Production (DE 110)
The Defendant objected to Request 12 which seeks:
Documents from the human resources, departmental, medical staff or other files, including documents evidencing complaints or investigations, relating to the reasons that Ray Kendrick, the hospital CEO and Director of Medical Affairs and others met as testified to by Ray Kendrick during his deposition taken May 24, 2013 to discuss:
a. a physician at Joe Dimaggio Children's hospital who was sent for sexual harassment training;
b. a surgeon who made inappropriate comments and was sent for intensive training outside memorial.
The Defendant responded:
Defendant objects to this request as it is overbroad in scope, seeking information not pertaining to Plaintiff or the allegations contained in Plaintiff's Amended Complaint. Furthermore, this request seeks information which is irrelevant, immaterial and not reasonably calculated to lead to the discovery of admissible evidence to the extent: 1) the request seeks confidential information about individuals who are not parties to this litigation; and 2) the request is not limited to those physicians that are similarly situated to Plaintiff as an “employed physician at Memorial Regional Hospital”. See Magistrate Snow's Order [DE 75], entered on May 1, 2013, limiting comparator group to “Employed Physicians at Memorial Regional”. This request is also overbroad in time. Pursuant to Magistrate Snow's Order [DE 75], entered on May 1, 2013, the Court set a temporal limit of five years. Finally, Defendant objects to this request to the extent it calls for documents protected by the attorney-client and work-product privileges.
The Plaintiff argues that discovery has revealed that SBHD executives have met only three times concerning the conduct of employed physicians. The Plaintiff was one of the physicians. The other two were male physicians employed by Joe Dimaggio's Children's Hospital who were accused of sexually inappropriate behavior, and were given the opportunity to remediate through training. The Plaintiff was not afforded such an opportunity.
*2 The Defendant argues that the two physicians for whom the Plaintiff seeks information, work for a different hospital, had different supervisors, and were accused of different conduct. Although two of the decision makers in the case of the Joe Dimaggio doctors were involved in the decision to terminate the Plaintiff, the remaining decision makers were different.
This Court has previously defined the comparator group regarding how complaints against other physicians have been handled, for discovery purposes, as all physicians employed at Memorial Regional Hospital. (DE 75) The Defendant is correct that discovery of the handling of complaints pertaing to doctors at a different hospital, accused of different conduct, with different supervisors, and subject to different decision makers, is only tenuously relevant to the issues in this case. Accordingly, the Defendant's objections with respect to Request 12 are sustained.
B. Plaintiff's Motion to Compel with Respect to Ninth (Incorrectly Named Eighth) Request for Production (DE 113)
The Plaintiff complains that the Defendant made formulaic objections, followed by answers, to Requests 1, 3, and 5. After reviewing the discovery responses at issue and hearing the arguments of counsel, the Court finds that the Defendant's objections are particularized rather than forumulaic. However, the Plaintiff is correct that the Defendant has not made clear exactly what has been produced. Therefore, on or before October 25, 2013, the Defendant shall clearly identify what documents have been produced with respect to Requests 1, 3 and 5.
The Plaintiff also asks the Court to overrule the Defendant's objection to Request 2, which seeks documents reflecting the date and reasons why Dr. Rosenbloom, a cardiac surgeon, was separated from employment. According to the Plaintiff, she learned during discovery that Dr. Rosenbloom was one of the physicians who complained about her. The Plaintiff contends that in order to attack Dr. Rosenbloom's credibility, she should be permitted to discover the reasons for, and circumstance behind Dr. Rosenbloom's departure from SBHD.
The Defendant argues that Request 2 is overbroad because is seeks information regarding a physician outside of the comparator group previously defined by the Court. Dr. Rosenbloom is not employed by SBHD, and apparently left its employ more than five years preceding the Plaintiff's termination. The Court agrees with the Defendant that the information the Plaintiff seeks is too far removed from the issues in this case to be discoverable. Defendant's objections with respect to Request 2 are sustained.
The Court did not enter a ruling from the bench with respect to the Plaintiff's arguments concerning Requests 4, 6 and 8. After considering the arguments contained in the parties' papers, the Court makes the following rulings. With respect to Request 4, the Defendant shall amend its response to clarify whether the document produced by the Defendant (MHS 3586) is the only document responsive to the request, and if not, identify any other responsive documents. With respect to Requests 6 and 8, the Defendant shall amend its response to advise the Plaintiff whether its investigation has located any responsive documents. If so, the Defendant shall produce the documents or if already produced, identify them.
C. Plaintiff's Motion to Compel Regarding Electronically Stored Information (ESI) (DE125)
*3 This motion concerns Electronically Stored Information (ESI) responsive to the Sixth, Seventh and Ninth (incorrectly named Eighth) Requests to Produce. The Plaintiff complains that the ESI made available does not identify what documents are responsive to which requests, and Defendant has redacted portions of a number of documents without producing a privilege log.
At the hearing, the parties agreed that the Defendant will identify which ESI documents are responsive to each specific request. The Defendant explained that the redactions fall into three categories: HIPAA related, personal e-mail addresses and cellular telephone numbers, and privileged communications generated after the commencement of the action. The parties agree that a privilege log need not be provided for documents generated after the commencement of the action, but disagree about when the action commenced.
Accordingly, on or before October 25, 2013, the Defendant shall identify the nature of the redactions, to the extent not readily apparent, stating which redactions are HIPAA-related, which redactions were made to shield private information, and which are owing to an assertion of privilege. The Court reserves ruling on whether the Defendant must provide a privilege log. On or before October 23, 2013, the parties shall brief the issue of when an employment discrimination action commences for purposes of whether a privilege log must be provided. The Defendant shall also state the number of redactions based on privilege for documents generated prior to the commencement of the instant lawsuit.
D. Plaintiff's Motion to Exclude Testimony of Witnesses Not Timely Disclosed Pursuant to Rule 26(a)(1)
The Plaintiff identifies 15 witnesses who she asserts were not timely disclosed and should be excluded from testifying at trial. The Defendant argues that each of the witnesses was known to the Plaintiff and/or disclosed during the discovery process[1]. In fact, the Plaintiff deposed two of the witnesses, Zeff Ross and Wayne Black. Although the Defendant concedes that Zeff Ross should have been listed as one of the decision makers in Response to Plaintiff's Interrogatory 4, the omission was inadvertent, and has since been corrected.
Rule 26 requires a party to supplement disclosures “if the party learns that some material respect of the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed.R.Civ.P. 26(e) (emphasis supplied). The Plaintiff argues she has been prejudiced because had she known sooner that the Defendant was planning to call these individuals as witnesses, she might have chosen to depose different individuals, and definitely would have deposed them in a different order. In particular, Zeff Ross, whose purported role as final decision maker was not evident to the Plaintiff earlier in the litigation, would have been among the first to be deposed.
Although the Court acknowledges that the Plaintiff's sophisticated discovery tactics may have been impacted, the purpose of Rule 26 is to frame the issues and provide a starting point for discovery. There has been no showing that the Plaintiff has been blind-sided by the existence of these witnesses, nor has there been a showing of bad faith on the part of the Defendant. Accordingly, the Plaintiff's motion to exclude the witnesses is denied.
*4 Being fully advised, it is hereby
ORDERED AND ADJUDGED as follows:
1. Plaintiff's Motion to Compel Better Responses to Plaintiff's Seventh Request for Production (DE 110) is DENIED.
2. Plaintiff's Motion to Compel Better Responses to Plaintiff's Ninth (Incorrectly Named Eighth) Request for Production (DE 113) is GRANTED IN PART as more fully set forth in this Order.
3. Plaintiff's Motion to Compel Regarding Electronically Stored Information (ESI) (DE 125) is GRANTED IN PART as more fully set forth in this Order. The Court defers ruling on whether the Defendant must provide a privilege log until after the parties have briefed the issue.
4. Plaintiff's Corrected Motion Pursuant to Rule 37(c) to Exclude Testimony of Witnesses not Timely Disclosed Pursuant to Rule 26(a)(1) (DE 191) is DENIED.
DONE AND ORDERED at Fort Lauderdale, Florida, this 18th day of October, 2013.
Footnotes
The Defendant's response to the motion describes in detail how and when the Plaintiff learned of each of the witnesses, as well as their involvement in the events leading up to the Plaintiff's termination.