I. Introduction:

*1 This Report with recommendations has been sent to Chief Judge D.P. Marshall Jr., the presiding judge in this case. The parties may file objections with Judge Marshall if they disagree with the findings or conclusions set out in the Report. Objections should be specific and should include the factual or legal basis for the objection.

To be considered, objections must be filed within 14 days, unless Judge Marshall orders otherwise. If parties do not file objections, they risk waiving the right to appeal questions of fact. And, if no objections are filed, Judge Marshall can adopt the recommendations set out in this Report without independently reviewing the record.

II. Background:

Plaintiffs Christina Marziale and Dana McLain, Administrator of the Estate of Elaine Marziale, filed a motion to compel (Doc. No. 150) and a motion for sanctions (Doc. No. 152), alleging widespread discovery misconduct against Defendant Correct Care Solutions LLC n/k/a Wellpath LLC (“CCS”). Plaintiffs suggest striking CCS's Answer as an appropriate sanction; but, in the alternative, they seek other sanctions authorized by Rule 37 of the Federal Rules of Civil Procedure. CCS responded to the motions (Doc. Nos. 156, 158); and the parties have since filed supplemental briefs. (Doc. Nos. 195, 200). Also pending are dueling summary judgment motions. (Doc. Nos. 163, 172) Judge Marshall referred these pending motions to this Court for a report and recommendation. (Doc. No. 196)

For reasons explained below, Plaintiffs' motion to compel should be granted, in part; Plaintiffs' motion for sanctions should be granted, in part. And, both motions for summary judgment should be denied.

III. Findings of Fact:

This case stems from the medical care Defendants delivered to Christine Marziale at the Southeast Arkansas Community Correction Center (“SEACC”) while she was pregnant with twins. The facts surrounding the evening of October 4 and early morning of October 5, 2015 remain in dispute. It is undisputed, however, that on October 5, 2015, Ms. Marziale was transported from SEACC to the Jefferson Regional Medical Center where she gave birth to a baby boy; however, when Ms. Marziale arrived at the hospital, the baby girl had no heartbeat. (Doc. No. 87-1 at p. 5; Doc. No. 109-1 at pp. 3-4; Doc. No. 152-13 at p. 27)

On October 11, 2015, counsel for Plaintiffs sent an email to in-house counsel for CCS requesting preservation of “all servers, emails, electronic files, hard drives, computers used by any personnel at the ADCC facility at which Marziale was confined, as well as all video for the last 6 weeks.” (Doc. No. 195-7) On February 11, 2016, Plaintiffs filed suit against Correct Care Solutions, LLC; Andrea Owens; Makita LaGrant; Karen Holcomb; Nona Farmer; Lola Clary; and Joshua Tatum in Jefferson County Circuit Court and propounded discovery to Defendant CCS as well as to the individual Defendants. (Doc. No. 2)

Plaintiffs' claims against individual defendants include federal claims of deliberate indifference to serious medical needs and state claims of medical negligence and the tort of outrage.[1] (Doc. No. 88) As to CCS, Plaintiffs claim that CCS's policy and pattern of failing to train its employees was a direct cause of Plaintiffs' injuries. (Doc. No. 163 at p. 3) In addition to compensatory damages, Plaintiffs seek punitive damages on a theory that CCS “cut[s] corners on medical care in order to make a profit.” (Doc. No. 203 at p. 47)

*2 On August 16, 2016, CCS responded to Plaintiffs' Third Set of Interrogatories and Requests for Production. (Doc. No. 69-1) On August 29, 2016, Plaintiffs sent a good-faith email to CCS's counsel noting inconsistencies in discovery responses. (Doc. No. 195-9) By October 31, 2016, CCS had produced 123 pages of “Condensed Health Services Encounters,” which CCS represented to be Ms. Marziale's complete medical record. CCS had also produced three pages of Defendant LaGrant's personnel file. (Doc. No. 152 at p. 5; Doc. No. 158 at pp. 4-5; Doc. No. 159-8; Doc. No. 195-5 at p. 8)

In October 2016, Plaintiffs deposed then-defendants Nona Farmer, Lola Clary, Andrea Owens, and Defendant Makita LaGrant, all Licensed Practical Nurses (LPNs). During that month, they also deposed Defendant Karen Holcomb, a CCS employee who was involved in an after-the-fact review of Ms. Marziale's medical care. (Doc. No. 31 at p. 3)

On February 6, 2017, then-counsel for CCS moved to withdraw from the case, and new counsel entered an appearance. (Doc. No. 1 at pp. 109-114) On February 9, 2017, Plaintiffs sent a good-faith email to CCS's new counsel, raising the same discovery issue regarding inconsistencies in the responses to Plaintiffs' Third Set of Interrogatories and Requests for Production. (Doc. No. 195-9 at pp. 4-6)

In April of 2017, Plaintiffs deposed Dr. Robert Floss and Defendant Stephen Cook, an LPN working at SEACC during Ms. Marziale's incarceration there. (Doc. No. 31 at p. 3) During Defendant Cook's deposition, he testified that LPNs at SEACC “might have” used a shift-change book to record patient notes at the end of each shift. (Doc. No. 182-3; Doc. No. 183-28) After further inquiry from Plaintiffs' counsel, however, CCS counsel stated that CCS was unable to locate such a book and that CCS staff at SEACC had used a whiteboard for the same purpose. (Doc. No. 182-3)

On April 6, 2018, Defendants removed the case to federal court. (Doc. No. 1) Judge Marshall promptly entered a Scheduling Order (April 26) that required the parties to “confer in good faith in person before bringing any discovery dispute to the Court.” (Doc. No. 34 at p. 3) (emphasis in original) Joint Reports of Discovery Disputes were to be filed only if “the parties reach a discovery impasse.” (Doc. No. 34 at p. 3)

On June 22, 2018, counsel for Plaintiffs sent another good-faith letter addressing what they deemed to be deficiencies in CCS's responses to discovery requests and asking new counsel to “make sure [previous discovery] responses are complete.” (Doc. No. 195-10 at p. 1) On June 27, 2018, Plaintiffs sent various discovery requests to CCS. (Doc. No. 69-3; Doc. No. 200-2 at pp. 4-15) One request was for production of CCS's document retention policies and “all emails that reference [Ms. Marziale], the treatment of pregnant women in CCS' Jefferson County Facility since January 1, 2013; staffing issues and the use of LPNs or other staffing issues at CCS' Jefferson County Facility.” (Doc. No. 69-3 at p. 1; Doc. No. 200-2 at pp. 4-7)

CCS objected to the production of some of the requested documents based on “peer review” privilege; but on September 5, 2018, CCS did produce emails of several current and former CCS employees, including those of Karen Holcomb, Andrea Owens, and Defendant LaGrant. (Doc. No. 69-3 at pp. 1-2; Doc. No. 207-1 at p. 2) For unexplained reasons, Defendants did not produce Defendant Stephen Cook's emails at that time. (Doc. No. 200 at p. 2)

In January of 2019, unbeknownst to Plaintiffs, CCS began the implementation of a new, nationwide document retention policy. (Doc. No. 195 at pp. 7-8; Doc. No. 195-1 at pp. 7-9; Doc. No. 195-3) And on January 9, 2019,[2] CCS sent an email to various outside counsel who regularly represented CCS. In that email, CCS instructed outside counsel to provide a list of individuals and key witnesses in pending litigation so that CCS could “ensure key information is not being deleted.” (Doc. 195-3 at pp. 7, 36-38) Outside counsel were instructed to send their lists, “no later than 11am CST on 01-15-2018”—that is, less than one week after CCS sent the email to outside counsel. (Doc. No. 195-3 at p. 37)

*3 Defense counsel in this case received a preservation request from CCS but did not inform Plaintiffs of CCS's new retention policy. (Doc. No. 200 at p. 2; Doc. No. 207-1) The new document retention policy, and the consequential nationwide “purge” of CCS employee emails, went into effect, as scheduled, in February of 2019 (Doc. No. 195-3 at p. 5) Documents relevant to this case, including emails, were destroyed after the 2019 policy went into effect.[3]

Meanwhile, on January 10, 2019, the parties had filed a Joint Discovery Report that set out discovery disputes regarding Plaintiffs' Third Set of Interrogatories and CCS's claim of peer-review privilege. (Doc. No. 69) On February 6, 2019, Plaintiffs' counsel again asked counsel for CCS to determine whether previously provided discovery responses were indeed accurate and complete. (Doc. No. 195-11) CCS counsel assured Plaintiffs' counsel that they could rely on the discovery responses that CCS had previously provided. (Doc. No. 195-11 at p. 4)

Judge Marshall held a hearing on the Joint Discovery Report (Doc. No. 69) on March 4, 2019. (Doc. No. 104) Counsel for CCS assured Judge Marshall that every responsive document, other than peer-review documents and those protected by attorney-client privilege, had been produced. (Doc. No. 104 at pp. 86-87) Counsel further promised to immediately supplement the responses as needed. (Doc. No. 104 at p. 87) CCS also agreed to produce the complete medical records of other pregnant inmates in the Arkansas correctional system for 2014 and 2015. (Doc. No. 104 at pp. 102-103)

Following argument on the peer-review privilege, Judge Marshall ordered CCS to submit “all quality-assurance or peer-review documents about incidents involving pregnant inmates between 1 January 2014 and 1 April 2016,” also referred to as Quality Improvement Plan (QI) documents, for his in camera review.[4] (Doc. No. 83 at p. 2)

CCS filed a single document that it deemed responsive to Judge Marshall's order—a 12-page evaluation of the medical care CCS provided to Ms. Marziale (Marziale QI Report). (Doc. No. 89; Doc. No. 152-7) After reviewing the document, Judge Marshall declined to recognize Arkansas's peer-review privilege and ordered CCS to produce the Marziale QI Report to Plaintiffs. (Doc. No. 132) In addition to the Marziale QI Report, CCS eventually produced a QI report for one other pregnant inmate, QI pregnancy studies, and minutes of QI staff meetings at the SEACC facility for the months of October and November 2015. (Doc. No. 159-5; Doc. No. 159-4; Doc. No. 159-1)

Under the original scheduling order, Plaintiffs were required to identify all expert witnesses and produce their experts' opinions by March 25, 2019. (Doc. No. 34 at p. 1) It was not until the May 22, 2019 deposition of Sherri Plumlee, however, that the parties realized that Defendants had given Plaintiffs only a condensed “Health Services Encounters” document concerning Ms. Marziale's medical care. (Doc. No. 152-5 at pp. 43-44)

*4 Plaintiffs deposed Karen Holcomb on June 18, 2019, and Ms. Holcomb produced, for the first time, an incident report completed by Defendant Cook. (Doc. No. 158-2 at pp. 2-3; Doc. No. 152-4) In her deposition, Ms. Holcomb testified that she had reported Defendant LaGrant to the Arkansas State Board of Nursing (ASBN) and that disciplinary actions should appear in Defendant LaGrant's personnel file. (Doc. No. 158-2 at pp. 30, 56) Only a single disciplinary action appears in the three-page LaGrant personnel file CCS provided to Plaintiffs in its response to discovery requests. (Doc. No. 159-8)

After the Holcomb deposition, Plaintiffs' subpoenaed Defendant LaGrant's records from the ASBN. Those records revealed disciplinary actions and complaints against Ms. LaGrant that were made during her time working for CCS but not included in the three-page personnel file CCS produced in discovery. (Doc. No. 159-9; Doc. No. 183-28 at 2) CCS did not retain a complete personnel file for Defendant LaGrant. (Doc. No. 183-28 at 2)

After producing the incident report and Ms. Marziale's non-condensed medical documents, Dona Gordon, regional vice president for CCS, verified that the medical records were “complete to the best of [her] knowledge.” (Doc. No. 152-11 at pp. 5-6; Doc. No. 158-1 at p. 1) At the prodding of Plaintiffs' counsel, however, CCS counsel subsequently located additional medical records for Ms. Marziale, including: an initial assessment by Dr. Floss, dental records, and a Medication Administration Record. (Doc. No. 158 at p. 6; Doc. No. 158-5 at pp. 5, 20, 214-231) Defendants' produced those additional records at Ms. Gordon's July 10, 2019 deposition. (Doc. No. 158-5 at pp. 5, 20, 214-231) Also, during Ms. Gordon's deposition, Defendants revealed, for the first time, that Crystal Chastain, regional care manager for CCS, had reviewed Ms. Marziale's medical records on October 2, 2015 (Doc. No. 158-5 at pp. 168-170) and that CCS had destroyed the paper file of Ms. Marziale's medical records after Plaintiffs had sent a litigation hold notice and after Plaintiffs filed this lawsuit. (Doc. No. 158-5 at pp. 103-113)

During the summer of 2019, Plaintiffs' counsel tried several times to engage CCS counsel in the Joint Discovery Report process contemplated in Judge Marshall's scheduling order. (Doc. No. 195-12 at pp. 9, 11, 12, 14) Counsel for CCS took the position that they were working with Plaintiffs to solve any disputes without court intervention and, thus, had not reached an “impasse.” For that reason, CCS counsel declined to participate in drafting a Joint Discovery Report. (Doc. No. 195-12 at p. 14; Doc. No. 178 at p. 33) In July 2019, Plaintiffs filed the pending motion to compel and motion for sanctions. (Doc. No. 150; Doc. No. 152)

In August 2019, Plaintiffs' took several depositions of individuals identified in the Marziale QI Report. During these “QI Depositions,” witnesses identified several relevant documents that Defendants had not produced. Plaintiffs' counsel asked the witnesses to produce certain documents, including emails between individuals who participated in the Marziale QI; documents related to pregnancy studies; CCS's policy and procedures; nursing educational materials; a PowerPoint on pregnant inmates; and a mortality review of the deceased baby Elaine Marziale. (Doc. No. 195-12 at p. 17).

During Carolyn Jackson's August 23, 2019 deposition, she testified that there was a physical shift-change book in use while she worked for CCS. (Doc. No. 159-10 at pp. 20-22, 71-72, 97-98) It is unclear whether medical staff continued to use the shift-change book, however, after Ms. Jackson retired from CCS in April 2015. (Doc. No. 159-10 at p. 8; Doc. No. 183-28 p. at 1) It is undisputed, however, that Defendants have not produced a shift-change book in discovery and that it likely no longer exists. (Doc. No. 183-28 at pp. 1-2)

*5 On August 21, 2019, and again on August 30, 2019, Plaintiffs' counsel requested copies of documents witnesses had identified during QI depositions. CCS did not respond. (Doc. No. 195-12 at p. 17-18) The discovery cutoff date was August 30, 2019. (Doc. No. 137 at p. 1)

On the last two days of discovery, August 29 and August 30, 2019, CCS produced responses to Plaintiffs' fourth, fifth, and seventh sets of discovery requests. (Doc. No. 160-1) Given that the discovery requests were propounded on March 2, March 29, and June 5, 2019, respectively, the responses CCS produced were anywhere from a month-and-a-half to four months after the expiration of any agreed extensions. (Doc. No. 150-2; Doc. No. 150-3; Doc. No. 150-4; Doc. No. 203 at p. 36) At that, CCS objected to many of the requests. (Doc. No. 160-1) These late productions left no opportunity for Plaintiffs to conduct follow-up discovery given that the discovery period ended days later, on August 30.

After the close of discovery, Judge Marshall held a hearing on the pending motion to compel and motion for sanctions. (Doc. No. 178) At that September 30, 2019 hearing, CCS admitted that, contrary to Judge Marshall's instruction to produce the entire medical records of other pregnant inmates, it had in fact produced only condensed versions. (Doc. No. 178 at p. 64) Judge Marshall put CCS on notice that, by producing only two QI reports and two months' worth of staff meeting minutes, it had taken an impermissibly narrow view of the Court's order to produce all relevant QI materials for all pregnant inmates. (Doc. No. 178 at pp. 41-42) Judge Marshall ordered CCS to produce the full medical records of all other pregnant inmates and directed Plaintiffs' counsel to file a notice of all items that CCS still had not produced. (Doc. No. 179) Plaintiffs filed that notice on October 14, 2019 (Doc. No. 181); CCS produced the complete medical records on December 4, 2019, but to date has not produced any additional QI materials (Doc. No. 191).

On June 1, 2020, the United States District Court for the Eastern District of Washington issued an order in a case involving CCS as a defendant.[5] (Doc. No. 195-1) It was only through that order that counsel for Plaintiffs first learned of the February 2019 CCS retention policy. (Doc. No. 192; Doc. No. 200-1; Doc. No. 200-2)

On June 16, 2020, Plaintiffs' counsel sent an email to counsel for CCS requesting information about the document retention policy and its relation to missing emails in this case. (Doc. No. 195 at p. 7) Plaintiffs still seek this information, in addition to the documents identified in their October 14, 2019 Notice. (Doc. No. 181; Doc. No. 203 at pp. 10, 46-47) Trial is currently scheduled to commence on September 14, 2020. (Doc. No. 137 at p. 2)

IV. Recommendations:

CCS repeatedly failed to produce responsive discovery documents; failed to preserve evidence; and failed to faithfully comply with the Court's discovery orders. By its conduct, CCS has left Plaintiffs in an untenable spot. If the Court grants the motion to compel without moving the September 14 trial date, Plaintiffs' lawyers will be required to spend the next month conducting discovery instead of preparing for trial. If the Court denies the motion to compel, Plaintiffs must choose between going to trial not fully prepared or asking for a continuance—a request the Court might or might not grant.

*6 The federal discovery rules are intended to allow parties access to relevant information so that they can fairly resolve their disputes and avoid trial by ambush. In complex cases such as this, wheels turn slowly—even when all parties abide by the rules. In this case, CCS has thrown sand in the gears by violating the spirit of the rules and, in some instances, directly violating both rules and court orders.

CCS regularly appears in litigated matters in the Eastern District of Arkansas. In fact, CCS is a named defendant in twenty-eight cases currently pending in this district. Unlike this case where Plaintiffs are represented by zealous advocates, in most cases in this district, CCS opposes plaintiffs who are litigating their claims pro se. CCS must be given to understand that this Court will require it to comply with the letter and spirit of discovery rules and court orders. Considering CCS's multiple abuses of the discovery process in this case, the Court recommends the following action on the pending motions:

A. Motion to Compel

1. QI Documents

CCS should be compelled to produce all documents identified in the 2019 QI depositions that were not produced. These documents include, but are not limited to, the documents Plaintiffs identified in paragraphs 24 through 33 of their October 14, 2019 Notice. (Doc. No. 181)

2. Interrogatories and Requests for Production

CCS failed to timely respond to Plaintiffs' fourth, fifth, and seventh[6] sets of interrogatories and requests for production. It offered no reason for its failure. CCS has waived its right to object; and the Court would be fully justified in requiring CCS to supply responses, without objection, to each set. FED. R. CIV. P. 33(b)(4). For the sake of efficiency, however, the Court recommends instead a scaled-down production.

a. Plaintiffs' Fourth Set of Interrogatories and Requests for Production (Doc. No. 183-23)

Requests for Production Nos. 1-3, 5, 6 and Interrogatory No. 6: Plaintiffs seek documents reflecting the net worth of CCS. (See Doc. No. 181, ¶¶ 1-4)

Recommendation: CCS provided a consolidated financial statement and various insurance policies in response (Doc. No. 183-23 at pp. 1-6), but Plaintiffs are unable to interpret them without a Rule 30(b)(6) deposition (Doc. No. 205-1 at p. 7). Plaintiffs should be allowed to conduct a Rule 30(b)(6) deposition, at CCS's expense, regarding CCS's net worth. The Court will submit the issue of punitive damages to the jury only if justified by the evidence at trial, of course; but based on this record, it would be difficult to rule out the possibility that punitive damages will be submitted. Plaintiffs are entitled to have accurate information about net worth.

b. Plaintiffs' Fifth Set of Interrogatories and Requests for Production (Doc. No. 183-24)

Request for Production No. 2: Plaintiffs seek records of any communications between the Arkansas Department of Community Correction and CCS regarding medical costs, transportation costs, and decisions about when to send inmates to outside medical specialists. (See Doc. No. 181, ¶ 5)

Recommendation: To prevail on their federal claim of deliberate indifference, Plaintiffs bear a substantial burden to show that CCS had a policy or custom of providing inadequate care to inmates, or at least to pregnant inmates. In Request for Production No. 2, Plaintiffs seek information relevant to CCS's policy and intentions for providing medical care to inmates, including its policy and custom for determining when inmates can receive treatment from outside providers and whether transportation costs affected treatment decisions. Plaintiffs' motion to compel a response to this request should be GRANTED.

*7 Requests for Production No. 3, 5, 7: Plaintiffs seek all documents reflecting changes, alterations, or removal of medical records for Ms. Marziale, Latoya Wren, and Christina Strickland, including all documents reflecting whether records were sent to third-party vendors for digitization. (See Doc. No. 181, ¶¶ 6, 7, 9)

Recommendation: The requested information goes to the issues of sanctions, including whether Plaintiffs are entitled to an adverse inference instruction on the destruction of Ms. Marziale's medical records. CCS did not object to these requests for production; rather, it stated that no such documents existed. Given the testimony surrounding the destruction of Ms. Marziale's medical records, it is difficult to believe that CCS does not have any documents responsive to this request. (See Doc. No. 158-5 at 103-113) Plaintiffs' motion to compel a response to this request should be GRANTED. If, upon further inquiry, CCS still cannot locate responsive documents, CCS should be required to verify its response, to show cause why the documents no longer exist, and if requested by Plaintiffs, to produce a Rule 30(b)(6) witness, at CCS's expense, to testify about the destruction of medical records.

Request for Production No. 6, 8: Plaintiffs seek the healthcare audit trail for Ms. Wren and Ms. Strickland's medical records. (See Doc. No. 181, ¶¶ 8, 10)

Recommendation: The requested information goes to the issue of policy and custom and, possibly, whether Plaintiffs are entitled to an adverse inference instruction about the destruction or loss of Ms. Marziale's medical records. Plaintiffs' motion to compel a response to this request should be GRANTED. The audit trails should be produced at CCS's expense. (See Doc. No. 152-2 at 2) (According to Plaintiffs, CCS “unilaterally declared that if the court orders production, it will be plaintiff that bears the costs.”)

Request for Production No. 9: Plaintiffs seek all documents reflecting any CCS staffing deficiencies. (See Doc. No. 181, ¶ 11)

Recommendation: The requested information would inform the issues of policy and custom, and whether punitive damages remain on the table. Plaintiffs' motion to compel a response to this request should be GRANTED, in part. CCS objected to this request as overly board in time and scope because there was no time limitation. The point is well taken. CCS should be required to produce documents reflecting CCS staffing deficiencies, but only from September and October of 2015.

Request for Production No. 10: Plaintiffs seek all documents pertaining to communications with the State of Arkansas regarding the number of employee hours CCS provided versus the number of employee hours required by contract. (See Doc. No. 181, ¶ 12)

Recommendation: The requested information would inform the issues of policy and custom, and whether the jury will be instructed on punitive damages. Plaintiffs' motion to compel a response to this request should be GRANTED.

Interrogatory No. 1: Plaintiffs seek the identity of all persons drafting the response to the Request for Proposals that resulted in the contract to provide medical services between CCS and State of Arkansas. (Doc. No. 181, ¶ 13)

Recommendation: CCS is bound by the information contained in its response to the state's Request for Proposals. The identity of the persons drafting such response is not sufficiently relevant at this point of litigation. Plaintiffs' motion to compel a response to this request should be DENIED.

c. Plaintiffs' Seventh Set of Interrogatories and Requests for Production (Doc. No. 183-26)

*8 Interrogatory No. 2 and Request for Production No. 2: Plaintiffs seek the factual basis for, and all documents which, support each of Defendant's objections or denials to Request for Admissions. (Doc. No. 181, ¶¶ 14, 17; Doc. No. 183-26 at p. 2)

Recommendation: Plaintiffs have propounded over 361 requests for admission in this matter. (Doc. No. 183-26 at p. 2) Plaintiffs' motion to compel a response to this interrogatory should be DENIED.

Interrogatory No. 3 and Request for Production No. 1: Plaintiffs seek the identification and description of all written statements obtained by the Defendants in relation to this case. (Doc. No. 181, ¶¶ 15, 16)

Recommendation: In response, CCS stated “none other than the documents produced in litigation to date that can be construed as a statement.” (Doc. No. 160-1 at p. 8) CCS should be instructed to reexamine its files and produce any responsive documents. If no such documents are found, CCS should verify its response.

Request for Production No. 3: Plaintiffs seek all documents, emails, texts, recordings that relating to the Marziale QI process. (Doc. No. 181, ¶ 18)

Recommendation: To the extent that any QI documents, emails, texts, or recordings have not been produced, or destroyed, CCS should be required to produce them. Plaintiffs' motion to compel a response to this interrogatory should be GRANTED.

3. Requests for Admission

In their motion to compel, Plaintiffs ask the Court to overrule Defendants' objections to certain requests for admission and to deem each request admitted. (Doc. No. 151 at p. 4) The requests in question essentially ask Defendants to admit that their conduct fell below the standard for medical providers in this locality. (Doc. No. 153-13) Although requests for admission may pertain to the application of law to fact, parties are not permitted to seek an admission as to pure conclusions of law. FED. R. CIV. P. 36(a); Thomas v. Beasley, 309 F.R.D. 236, 241 (N.D. Miss. 2015); P.L.U.S. Brokerage, Inc. v. Jong Eun Kim, 908 F. Supp. 2d 711, 715 (D. Md. 2012). Plaintiffs' counsel argues that the requests for admission are proper under Rule 36. (Doc. No. 178 at p. 31) This argument, however, stretches Rule 36 beyond its intended purpose. Because Plaintiffs ask CCS to admit a pure conclusion of law, the requests for admission should not be deemed admitted. Further, Plaintiffs have not “prove[d]...the matter true” as required for imposition of sanctions. FED. R. CIV. P. 36(c)(2).

B. Motion for Sanctions

1. Default Judgment

In addition to requiring the production of documents, some sanctions are appropriate under the circumstances of this case. When a party fails to cooperate in discovery, the Court may impose various sanctions, including the entry of default judgment. FED. R. CIV. P. 37(b)(2)(A)(i)-(vi). Default judgment, however, is a drastic sanction and is not favored. Allen v. Tobacco Superstore, Inc., 475 F.3d 931, 936 (8th Cir. 2007) (citing Chrysler Corp. v. Carey, 186 F.3d 1016, 1020 (8th Cir. 1999)). It is appropriate only when there is an order compelling discovery, a willful violation of that order, and prejudice to the other party. Everyday Learning, Corp. v. Larson, 242 F.3d 815, 817 (8th Cir. 2001) (citing reference omitted).

*9 Although CCS took impermissibly narrow interpretations of the Court's discovery orders, the conduct does not rise to the willful conduct necessary to obviate “the sound public policy of deciding cases on their merits.” Edgar v. Slaughter, 548 F.2d 770, 772 (8th Cir. 1977). Further, before imposing the sanction of dismissal, this Court is required to consider whether a lesser sanction is available or appropriate. Keefer v. Provident Life & Acc. Ins. Co., 238 F.3d 937, 941 (8th Cir. 2000).

2. Spoliation Instruction

In lieu of a default judgment or striking Defendants' Answer, Plaintiffs suggest that the Court consider adverse-inference instructions as a sanction for improperly destroyed documents including: emails, logbooks, medical records, and personnel files. “A spoliation-of-evidence sanction requires a finding of intentional destruction indicating a desire to suppress the truth.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). While intent is “rarely proved by direct evidence,” the Court has “substantial leeway” to infer intent from the totality of the circumstances, including: “evidence, witness credibility, motives of the witnesses in a particular case, and other factors.” Id.

As the moving parties, the Plaintiffs are obliged to demonstrate that they are unfairly prejudiced by the absence of the spoiled evidence. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 748 (8th Cir. 2004). To demonstrate prejudice, they must establish the spoiled evidence is relevant to the issues of the case. Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir. 1993).

a. Employee Emails

CCS admits it destroyed the emails of Maria Agunga under its February 2019 retention policy, even though Ms. Agunga was involved in the CCS internal investigation of the death of the Marziale child. The destruction of the Agunga emails is particularly vexing because CCS had notice of its obligation to retain documents relevant to Ms. Marziale's claims of poor medical care in 2015 for more than three years before the 2019 destruction of the documents. Under these circumstances, Plaintiffs are entitled to an adverse inference instruction as to Ms. Agunga's destroyed emails.

There is also circumstantial evidence suggesting that the email accounts of Karen Holcomb, Nona Farmer and Defendant LaGrant were deleted under the February 2019 retention policy. (See Doc. No. 192-2 at p. 10) (explaining a spreadsheet of CCS employees whose email address were preserved for litigation); (Doc. No. 192-4 at pp. 9, 11-12) (spreadsheet showing Karen Holcomb, Nona Farmer and Defendant LaGrant's email accounts were “Not Found” rather than “On Lit Hold”) Unlike Ms. Agunga's emails, however, CCS produced the relevant – or at least what it deemed to be the relevant – emails of Karen Holcomb, Nona Farmer and Defendant LaGrant. On this record, Plaintiffs are not entitled to an adverse inference instruction on these emails.

Separate and apart from the 2019 destruction of emails under the new document retention policy, CCS admits that it has not produced the emails of Defendant Cook and it has provided no reasons for its failure. Defendant Cook's email are highly relevant to the circumstances and events that took place the evening of October 4 and morning of October 5, 2015, because he was there. CCS should be required to produce Defendant Cook's emails. If it is unable to do so, Plaintiffs are entitled to an adverse inverse instruction.

b. Paper Medical File; Personnel File of LaGrant; Shift-Change Book

*10 Unlike the employee emails, there is no indication that either Ms. Marziale's paper medical file or Defendant LaGrant's personnel file were destroyed in a manner “indicating a desire to suppress the truth.” Greyhound Lines, Inc., 485 F.3d at 1035. When Ms. Marziale was released on parole, her paper medical file was sent to a third-party vendor to be digitalized under routine policy. This negligent destruction does not entitle Plaintiffs to an adverse inference instruction. See Auer v. City of Minot, 896 F.3d 854, 858 (8th Cir. 2018); see also Sherman v. Rinchem Co., 687 F.3d 996, 1007 (8th Cir. 2012); Stepnes v. Ritschel, 663 F.3d 952, 965 (8th Cir. 2011) (“Severe spoliation sanctions, such as an adverse inference instruction, are only appropriate upon a showing of bad faith.”).

Based on the limited record, it is unclear how, when, or why CCS lost or destroyed Defendant LaGrant's personnel file. The personnel file seems highly relevant in determining whether Defendant LaGrant performed her duties during the days leading up to the death of the Marziale baby. CCS should be required to produce, upon Plaintiffs' request, a Rule 30(b)(6) witness to testify about the destruction of personnel records. All deposition costs, including travel expenses, should be borne by CCS. If further discovery reveals an unreasonable retention policy or bad faith, Plaintiffs should be permitted to renew their request for an adverse inference instruction on Ms. LaGrant's personnel file.

Finally, Plaintiffs have not met their burden to show they were prejudiced by the destruction of the shift-change book. There is no conclusive evidence that a shift-change book was used at the time of Ms. Marziale's incarceration or that, if it was, it would contain relevant evidence. Plaintiffs are not entitled to an adverse inference instruction on the shift-change book.

3. Other Rule 37 Sanctions

Plaintiffs should be awarded reasonable attorneys' fees and costs for work on the motion to compel and motion for sanctions. FED. R. CIV. P. (b)(2)(C). This is an appropriate way to address CCS's failures. Plaintiffs should be required to submit an itemized statement of fees and expenses within fourteen days of an order granting Plaintiffs' motion for fees and costs.

In their motion for sanctions, Plaintiffs cite to 28 U.S.C. § 1927, which provides sanctions for unreasonable and vexatious conduct by counsel. (Doc. No. 152 at p. 15; Doc. No. 153 at p. 7) Although there is no doubt that CCS acted unreasonably and vexatiously, there is insufficient evidence that counsel for CCS engaged in vexatious conduct. Plaintiffs are not entitled to sanctions under 28 U.S.C. § 1927. CCS counsel would have had no compelling reason to notify Plaintiffs of the 2019 change in the CCS retention policy because CCS was already on notice to preserve all information relevant to Ms. Marziale's medical care while she was incarcerated at SEACC.

C. Defendants' Motion for Summary Judgment

Defendants request summary judgment on the Plaintiffs' claims of deliberate indifference against Defendants LaGrant and Cook; and on claims that CCS had a custom, practice or policy of exhibiting deliberate indifference to inmates' healthcare needs and of failing to adequately train LPNs. In response to the motion, Plaintiffs filed a Rule 56(d) motion and affidavit (Doc. Nos. 204, 205) extensively outlining the outstanding discovery documents that, once produced, could help rebut CCS's motion.

Due to CCS's discovery abuses, Plaintiffs do not have the information necessary to respond to Defendants' motion for summary judgment. Plaintiffs' Rule 56(d) motion (Doc. No. 204) should be granted; and Defendants' Motion for Summary Judgment (Doc. No. 172) should be denied.

*11 Defendants' motion for summary judgment on the issue of punitive damages should be denied as premature. Judge Marshall will determine whether to submit punitive damages to the jury after he evaluates the evidence presented at trial. Regardless of how thorough discovery has been, trials never go exactly as parties expect. And in this case, discovery has fallen short of “thorough,” as noted.

D. Plaintiff's Motion for Summary Judgment

Plaintiffs filed a motion seeking summary judgment as to the applicable standard of care for LPNs; that Ms. Marziale suffered from a serious health condition; and that CCS failed to properly train LPNs. The parties agree – and therefore should stipulate – that LPNs are not healthcare providers under CCS protocol and that LPNs are not permitted to diagnose or make health assessments under Arkansas law.

That said, there remains a dispute about the standard of care applicable in this case. Defendants have offered the testimony of an expert witness, Dr. Thomas Fowlkes, rebutting Plaintiffs' interpretation of the standard of care. Further, the circumstances surrounding Ms. Marziale's medical care are still in dispute. Because factual disputes remain, Plaintiff's motion for summary judgment should be denied.

V. Conclusion:

The Court recommends that Plaintiffs' motion to compel (Doc. No. 150) be GRANTED, in part; and the Plaintiffs' motion for sanctions (Doc. No. 152) be GRANTED, in part. Both pending motions for summary judgment (Doc. Nos. 163, 172) should be DENIED.

DATED this 28th day of July, 2020.