John B. v. Goetz
John B. v. Goetz
2006 WL 8458469 (M.D. Tenn. 2006)
November 21, 2006

Haynes, Jr., William J.,  United States District Judge

Manner of Production
Attorney Work-Product
Failure to Produce
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Summary
The Plaintiffs' motion to compel was granted in part and denied in part, and the Defendants were ordered to produce any responsive information and documents in their possession within ten days. The Plaintiffs were also permitted to obtain assurances on completeness of discovery responses, and the parties were directed to develop and submit a protocol governing electronic discovery. The Defendants were also required to provide documents in electronic format and a written description of the technical specifications of the state electronic data systems.
Additional Decisions
JOHN B., et al., Plaintiffs,
v.
DAVE GOETZ, Commissioner, Tennessee Department of Finance and Administration, et al., Defendants
No. 3:98-0168
United States District Court, M.D. Tennessee
Signed November 21, 2006

Counsel

Andrew Dunlap, Katherine L. McDaniel, Michael H. Reed, Victoria Reznik, Kirkland & Ellis, New York, NY, Barry Leigh Weissman, Leanna Marie Anderson, Robert Thomas Joseph, Sonnenschein, Nath & Rosenthal, Los Angeles, CA, Christopher E. Coleman, George Gordon Bonnyman, Jr., Michele M. Johnson, Tennessee Justice Center, Nashville, TN, Ronald Cantrell Jones, Ronald Cantrell Jones, Tony L. Richardson, for Plaintiffs.
Aubrey B. Harwell, Jr., Charles J. Cooper, Philip D. Irwin, Ronald G. Harris, Neal & Harwell, PLC, Carolyn E. Reed, Janet M. Kleinfelter, Linda A. Ross, Tennessee Attorney General's Office, Nashville, TN, Brian Stuart Koukoutchos, Derek L. Shaffer, Michael W. Kirk, Michael Weitzner, Nicole J. Moss, Cooper & Kirk, PLLC, Charles A. Miller, Covington & Burling, Washington, DC, for Defendants.
Haynes, Jr., William J., United States District Judge

ORDER

*1 On November 6, 2006, the Court conducted a hearing on the parties' motions to compel discovery. (Docket Entry Nos. 706 and 708). Based upon consideration of the arguments and statements of counsel, the parties' exhibits and briefs, and the record as a whole, the Plaintiffs' motion to compel (Docket Entry No. 708) is GRANTED, in part, and DENIED, in part.
Given the Defendants' delegation of some of their responsibilities under Consent Decree to contractors and the Defendants' concessions that responsive information or documents to Plaintiffs' discovery requests are in the custody, possession or control of those contractors and that this information and documents are within the Defendants' control and available to them, it is ORDERED that within ten (10) days from the date of entry of this Order, the Defendants shall produce for the Plaintiffs' discovery requests, any responsive information and documents that are the custody, possession or control of the Defendants' contractors. It is further ORDERED that Plaintiffs' discovery requests are narrowed, as discussed at the conference. The Defendants shall require the contractor(s) to respond fully and accurately to each such request, as modified by the Plaintiffs. The Defendants shall supplement their discovery responses by December 20, 2006, in light of the information and documents provided by their contractors.
Subject to the Defendant's right to “claw-back” privileged documents, the Defendants shall provide responsive documents that are in electronic format. The Plaintiffs shall bear the burden to print any documents from the electronic files produced by the Defendants. The parties shall develop and submit to the Court a protocol governing electronic discovery. The Defendants shall have their computer expert provide the Plaintiffs with a written description of the technical specifications of those state electronic data systems that contain responsive documents, including all “drafts, alterations, modifications, changes and amendments” thereto. The description shall describe the information on those systems in a manner that it can be readily understood by other information technology experts. The description shall include where relevant electronic records are to be found, the software in which the records are produced and the personnel, technological and software resources required to retrieve responsive documents. The description shall include the electronic data systems and documents of the State's contractors from whom the State will be producing information. The Defendants shall provide this description to the Plaintiffs by December 1, 2006. The parties shall then jointly develop a protocol for production of electronic records by December 8, 2006. The protocol shall govern the production of all documents which the State has a duty to produce.
In the event that the parties cannot agree by December 8, 2006 on the protocol for electronic discovery or the allocation of costs of such discovery, the Court will entertain a discovery conference on December 9, 2006 at 10:00 a.m. for which the parties shall produce their computer experts.
*2 Although the Defendants assert that they have fulfilled their discovery obligations, the Defendants concede that some documents were produced in incomplete form and information was omitted. The Court permits the Plaintiffs to obtain assurances on completeness of discovery responses by requesting certification of all persons who were involved in searching the records and making discovery available on the State's behalf. Plaintiffs may use requests for admissions or interrogatories for these assurances.
Plaintiffs' Interrogatory No. 49, as modified, is restricted to disclosures of supervisors who are current and/or former employees. It is further ORDERED that the State and its contractors shall disclose to the Plaintiffs those present or former employees of state agencies or contractors with “substantial responsibility” for some aspect of EPSDT and Consent Decree compliance. The persons shall include any person with substantial responsibility for making policy, developing plans or making decisions regarding requests for EPSDT services, including appeals of members of the plaintiff class, as well as personnel who are required to have clinical credentials to make such decisions, such as physicians, pharmacists, dentists and nursing personnel performing UR functions, but not non-supervisory clerical or administrative personnel involved in the UR process.
Plaintiffs' Document Request No. 9 sought stage agencies' and contractors' records relating to TennCare children who had attempted to obtain medical services from the Title V Children's Special Services program. The Plaintiffs narrowed their request to a randomly selected sample of 100 such cases, plus those involving medical nutrition children with the metabolic disorder known as PKU. The Defendants sought to limit the production to 50 children. Upon consideration, the Court concludes that the records are relevant and that the State has not demonstrated that the additional burdens associated with producing the number of records sought by the Plaintiffs outweigh the records' potential evidentiary value. Therefore, the State is ORDERED to produce records on a randomly selected sample of 100 such children, plus all cases involving children with PKU. The State need only produce these records electronically, and such production shall be subject to the electronic discovery protocol that the parties have been directed to develop.
The Defendants' motion to compel (Docket Entry No. 706) is DENIED. As to the Defendants' Interrogatory No. 2, the Court concludes that the identity of individuals and public entities with whom the Plaintiffs have communicated in confidence is protected by the First Amendment principles recognized in NAACP v. Alabama, 357 U.S. 440 (1958) and finds that this disclosure would have a definite chilling effect on this First Amendment right. The Court also finds that the work product privilege protects those communications between the Plaintiffs' counsel and other attorneys regarding the shared or requested representation of members of the plaintiff class. Those communications conveyed the mental impressions and legal theories of the Plaintiffs' counsel, and such communications are protected as attorney work product. Toledo Edison Co. v. GA Tech., Inc., 847 F.2d 335, 340 (6th Cir. 1988).