Plaintiff Mark McDaniel, M.D., a veteran, initiated this action against Loyola University Medical Center (“LUMC”), its parent companies, and various physicians, alleging he was wrongfully terminated from LUMC's five-year orthopaedic residency program and exposed to a hostile work environment in violation of the Uniformed Services Employment and Reemployment Rights Act and his employment contract. According to plaintiff, his relationship with defendants turned sour towards the end of his fourth year of residency when he requested leave for three weeks of Air National Guard obligations as well as a separate ten-day medical leave. Plaintiff further claims that even before the requested leave, attending physicians at LUMC subverted his efforts to receive a fellowship position upon completion of his residency. Plaintiff was terminated from the residency program on September 17, 2012. For their part, defendants contend that misrepresentations in plaintiff's surgical case logs, his attendance, and his professionalism were the factors that lead to his termination.

Plaintiff subpoenaed documents from the Accreditation Council for Graduate Medical Education (“ACGME”) on July 29, 2014. ACGME submitted a letter to plaintiff objecting to the subpoena, in part, because most responsive documents and information were in the possession of LUMC. Plaintiff filed his first motion to compel against ACGME on September 8, 2014, at which time the parties and ACGME were ordered to meet and confer on the issue. According to the October 10 status report, counsel for plaintiff, defendants, and ACGME agreed that: (1) ACGME shall (a) produce non-confidential documents, (b) submit to LUMC documents and information that ACGME holds in confidence solely with LUMC in order that LUMC may decide whether to waive confidentiality as to all or parts of documents, and (c) submit to plaintiff and defendants a log of subpoena responsive documents and information that was not produced or submitted to LUMC; (2) plaintiff may pursue discovery from LUMC of documents and information submitted by ACGME; and (3) the final disposition of the motion to compel should be held in abeyance, pending notice by plaintiff that additional issues relating to the subpoena require attention by the Court. [Dkt. 98.] Following LUMC's production of documents, plaintiff, again, filed a motion to compel ACGME documents [105], this time against LUMC. This Court ruled on plaintiff's motion on February 27, 2015 [124]. On April 15, plaintiff filed his second motion to compel documents from ACGME.

In the instant motion, plaintiff alleges that ACGME did not produce all documents to LUMC as previously agreed. Although counsel for plaintiff and ACGME continued to meet and confer on the matter, plaintiff has concluded they have reached an impasse regarding the following documents: (1) board pass rates and board scores;[1] (2) documents containing Accreditation Data System (“ADS”) data to establish which residency years Dr. McDaniel received credit for according to ACGME and LUMC, as well as when the determinations were made;[2] and (3) electronic case log data submitted to ACGME by Dr. McDaniel between July 1, 2008 and September 17, 2012. Plaintiff requests that the Court compel the production or inspection of the three categories of documents.

*2 According to plaintiff, not only has ACGME delayed discovery of relevant documents, but failure to perform a thorough search for the records has caused questions about whether additional documents are indeed available. Plaintiff also addresses the relevancy of the documents sought, maintaining that the board pass rates are relevant to the defense's claim that one reason for terminating Dr. McDaniel was his poor performance. Plaintiff further explains that the ADS data is “extremely important” to Dr. McDaniel's case, and plaintiff is “entitled to accurate information concerning the residency years for which he was given credit.” (Mot. at 7 and 8.) Additionally, case log information is relevant to defendants' assertion that plaintiff falsified case logs and entered case logs incorrectly. It is plaintiff's position that he should not have to rely on LUMC to produce the information since the case logs were entered into the ACGME system by plaintiff. Moreover, plaintiff states that he has a right to test the data against what defendants produce.

ACGME responded to the motion [147] and subsequently supplemented its response [153]. According to ACGME, almost all of the plaintiff's requests “describe documents or information either sent by ACGME to LUMC, sent to LUMC by ACGME, or [are] otherwise in the possession of LUMC.” (Resp. at 2.) ACGME asserts that parties have a duty under Rule 45(d)(1) to avoid imposing an undue burden on a third party when the information is readily available to a party to the action. In its response supplement, ACGME confirms that relevant documents are now in the possession of LUMC. Specifically, ACGME instructed LUMC on downloading the case logs from ACGME's website and verified that LUMC is willing to produce the spreadsheet data. Further, ACGME determined that “LUMC possesses, and is willing to produce to plaintiff, annual program pass rates from 2008 to 2013 for first time takers and repeat takers (obtained from the American Board of Orthopaedic Surgery), subject to appropriate confidentiality protection.”[3] (Resp. Supp. at 1.) ACGME maintains that it does not possess the initial board scores or pass/fail information for individual residents. Additionally, ACGME reiterated that the ADS system does not capture what residency credit LUMC awarded a particular resident, nor when the credit was awarded.

Legal Standard

Rule 26(b)(1) of the Federal Rules of Civil Procedure allows the parties to obtain discovery regarding “any non-privileged matter that is relevant to any party's claim or defense.” “For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action,” including information that is not itself admissible but “is reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). “In ruling on motions to compel discovery, courts have consistently adopted a liberal interpretation of the discovery rules.” Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006) (citation omitted); see Cannon v. Burge, No. 05 C 2192, 2010 WL 3714991, at *1 (N.D. Ill. Sept. 14, 2010) (“The federal discovery rules are liberal in order to assist in trial preparation and settlement.”). “Courts commonly look unfavorably upon significant restrictions placed upon the discovery process,” and the “burden rests upon the objecting party to show why a particular discovery request is improper.” Kodish, 235 F.R.D. at 450.

Pursuant to Rule 45 of the Federal Rules of Civil Procedure, “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1).

Analysis

At the heart of this motion is a disagreement about whether additional documents are available, and if so, who is under a duty to produce them. ACGME remedied part of the issue by instructing LUMC on how to obtain relevant data. Therefore, the matter of whether LUMC or ACGME should produce relevant documents is, for the most part, moot given that the information is already in LUMC's possession and ready to be produced. Plaintiff nonetheless argues that ACGME has not established how his requests create an undue burden on it as the third party. While ACGME does not provide specific details, it is reasonable to conclude that the ten-month process of replying to subpoenas and motions to compel is evidence of a burden. Even though ACGME is not a party in this action, it has been forced to become very involved in the discovery process.

*3 Again, two of the categories of documents have been addressed by ACGME's supplement. Accordingly, LUMC is to produce the case logs and board scores it has obtained through ACGME's instructions. The issue that remains is whether there is documentation detailing plaintiff's residency credits. ACGME explains that the ADS system does not capture the residency credit LUMC's residency program awards a particular resident nor when it was awarded; however, this Court would like clarified whether any documentation is available (either through LUMC or ACGME) to address plaintiff's residency credits. ACGME is best suited to address whether any documentation in its system address which years of residency Dr. McDaniel received credit for and when the determinations were made. On the other hand, LUMC is in the best position to identify when and how residency credits are reported. Consequently, LUMC and ACGME are to work together, as they have done throughout this matter, to determine whether documents regarding residency credits are available.

Additionally, plaintiff has raised issues with documents previously produced by both LUMC and ACGME. Plaintiff argues that ACGME falsely claims that the one-page document it produced is the only relevant residency data, and he attaches documents obtained by his wife through her residency program as evidence that more information is available. In reviewing the documents obtained by plaintiff's wife, this Court first notes that the documents were produced by the hospital's residency program coordinator, who “has the ability to access and search the ACGME database to view resident profiles.” (Reply at Ex. 5, pg. 2.) This means of obtaining documents supports ACGME's position that LUMC has the ability to obtain the data. Further, the “Resident Detail” documents provided by plaintiff's wife do not appear to contain information about her credits and when credit determinations were made. The only confirmation this Court could identify is the comment “Completed All Accredited Training (for this specialty)-successfully promoted.” (Reply at Ex. 5, pg. 4 and 5.) Therefore, plaintiff's exhibit 5 does not prove the availability of the detailed credit documentation that plaintiff seeks.

This Court further observes that plaintiff's exhibits 3 and 5 (LUMC's production of residency information and plaintiff's wife's resident information) both contain the title “Resident Detail.” (Reply at Exs. 3 and 5.) The identical title leads this Court to question whether the information received by plaintiff's wife is, in fact, the same type of document produced by LUMC, but with different formatting. Since ACGME is in the best position to know the information it can produce, ACGME is to determine whether the document produced by plaintiff's wife is an alternative format of Resident Detail that can be produced for Dr. McDaniel. If the document is available, it is to be produced.

Notably, plaintiff takes issue with the Resident Detail documents produced by LUMC. He argues that LUMC produced documents that only address years one through four of his residency, asserting that “clearly one sheet is missing,” and also takes issue with the handwritten dates on the documents. (Reply at 6 and Ex. 3.) Even though the documents contain the ACGME label, the documents were produced by LUMC. Consequently, it should not be the responsibility of ACGME to correct possible errors made by LUMC in its document production. Any issues as to the completeness of the documents produced by LUMC shall still be addressed by LUMC in writing to the plaintiff.

Accordingly, plaintiff's motion is granted in part and denied in part. This Court orders the following production:

The documents shall be produced by 7/17/15. The parties and ACGME are to submit a joint status report regarding the production of documents by 7/23/15. If any documents remain at issue, the documents are to be clearly identified along with a brief description of each party's and ACGME's position on the absence of the document.

According to plaintiff, ACGME produced documents to LUMC but redacted the board pass rates it received from the American Board of Orthopaedic Surgeons.

It is plaintiff's position that “[t]hese records must be obtained from both the ADS database and the case log database.” (Mot. at 5.)

ACGME maintains that the American Board of Orthopaedic Surgery provides it with annual program numbers of first time and repeat examinations. The information does not contain the identities of individual residents and is further subject to a confidentiality agreement.

Even though plaintiff claims a right to determine whether defendants' production is accurate, there is no indication defendants have altered or misrepresented data.