I. In Camera Review

In her complaint, plaintiff alleges that defendants violated her Fourteenth Amendment “right to be free of sex and race discrimination by forcing her termination because of her sex and for her failure to conform to sex stereotypes regarding women,” among other claims. Am. Compl. ¶ 46, ECF 1. According to plaintiff, “[t]hese stereotypes included stereotypes about women, about women of color, and about strong women who make complaints about discrimination and substandard quality of care.” Id. For factual support, plaintiff cites to a November 12, 2015 email that she received from Dr. Jeffrey Kirsch, the former Chief of Anesthesia, in which he accused her of bullying and harassing the anesthesiology staff and requested that the “director of EEO at OHSU investigate” her bullying and harassment. Id. ¶ 21. Plaintiff alleges that “[t]his harassing email was a result of [her] failing to conform to sex stereotypes and for being too direct in her interactions with staff,” and that “Defendants' sex stereotyping of Plaintiff was a substantial factor in Defendants' decision to terminate Plaintiff's employment.” Id.

Pursuant to the court's order, defendants submitted for in camera review a “winnowed” set of documents from Dr. Kirsch's personnel file describing his “discipline for unprofessional and disrespectful ... communication with other employees.”[2] See Transcript of Oral Argument (November 6, 2020) 23, 25-26, ECF 69. This court ordered the in camera review because evidence that Dr. Kirsch was disciplined for bullying and harassment is “probative of whether he thinks that when a woman does it, it's not okay; but when he did it, it was somehow all right.” Id. at 25.

After reviewing the documents in camera, the court finds that they contain information that is probative of plaintiff's claim of gender and racial discrimination for the reason discussed above. While personnel files often contain highly sensitive and confidential information, they “are discoverable in federal question cases.” Garrett v. City & Cty. of San Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987). Thus, within seven days, defendants shall provide plaintiff with copies of the documents that it provided to the court for in camera review.

However, the court further rules as follows:

(1) The disclosure of these records shall be subject to a protective order, and if no protective order currently covers these records, defendants shall present the court with a protective order that includes these records.

*2 (2) The disclosure of these records in no way reopens the issue of whether Dr. Kirsch is a comparator.

(3) No further document discovery regarding Dr. Kirsch's personnel records or discipline is allowed, as it is not relevant or proportional to the needs of the case. See FED. R. CIV. P. 26(b)(1). To expand discovery beyond these records would invite a mini-trial regarding whether Dr. Kirsch actually engaged in acts of bullying and harassment. As the court previously noted, “this additional inquiry, this additional reopening of the deposition, ... is all related to ... what [Dr. Kirsch] views as bullying and harassing” and it is “fair for the plaintiff to be able to inquire about [Dr. Kirsch's] own case for purposes of fleshing out and questioning—cross-examining him and questioning him about his responses” in that regard. Transcript of Oral Hearing (November 6, 2020) 17-18, ECF 69 (emphasis added). The purpose of the questioning is to inquire into Dr. Kirsch's potential gender biases when he characterized plaintiff's conduct as bullying and harassing, not to litigate the circumstances surrounding his departure from OHSU.

II. Plaintiff's Motion to Compel (ECF 84)

A. Redactions of 12 Documents

Plaintiff seeks unredacted versions of 12 documents that defendants produced in discovery. See Brischetto Supp. Decl., Ex. 3, ECF 86-2. These documents relate to complaints made by another physician, [redacted], in 2014. Plaintiff claims that “[w]ithout access to the redacted matter there is no way to assess the physician's claims or OHSU's response.” Mot. 2-3, ECF 84.

Defendants represent that the redactions contain protected health information and “do not contain details regarding the complaint of discrimination.” Resp. 3-4, ECF 89. Defendants explain that the redactions consist of “sensitive medical information, including descriptions of specific medical processes or procedures in particular cases, that OHSU reasonably believes contain enough detail to render the information ‘individually identifiable.’ ” The redactions are permissible on this basis.

Moreover, contrary to plaintiff's concerns, the documents contain many details describing the nature of [redacted] complaints and OHSU's response. For example, [redacted] discussed his grievances at length in an August 17, 2014 eight-page, single-spaced letter to Linda Strahm. Brischetto Supp. Decl., Ex. 3, at 18-25 (OHSU 2584-2591), ECF 86-2. An email dated August 5, 2014, described the results of [redacted] performance review in detail, as well as a recommendation that “we continue close monitoring and supervision and consider a formal training program/coaching focused around communications skills and staff interactions.” Id. at 26-27 (OHSU 2861-62). In yet another email, Strahm told [redacted] she was “engaging the AAEO office to investigate your concerns about discrimination” and offered to meet with him to “discuss more.” Id. at 16 (OHSI 2581). Therefore, this motion is denied.

B. Redactions of OHSU_RB 821 and 1876A

The redactions in OHSU_RB 821 and 1876A pertain to third-party employees who have no relation to plaintiff's case. Therefore, this motion is also denied.

C. Reopening Dr. Kilo and Strahm Depositions

*3 Plaintiff seeks to reopen the depositions of Dr. Kilo, former Chief Medical Officer, and Linda Strahm, Director of Human Resources, because of a short email that Dr. Kilo sent to members of the Professional Board on November 13, 2015:

Brischetto Supp. Decl., Ex. 2, at 1, ECF 86-1. At his deposition, Dr. Kilo testified:

Ellis Decl., Ex. 16, at 7 (Kilo Dep. 50:6-12), ECF 65-3.

Plaintiff contends that, in light of the November 13, 2015 email, Dr. Kilo's testimony “now seems untrue.” Mot. 6, ECF 84 (citing Kilo Dep. 49:14-50:12). However, this brief email does not support such suspicion and speculation.

Nor is there justification to reopen the depositions for the vast inquiry that plaintiff wishes to make. See Mot. 5, ECF 84 (seeking to ask “additional questions regarding both the specifics of [plaintiff's] employment and the general policies and practices at OHSU” and a “line of more general questions ... regarding the Professional Board's role in investigating and disciplining physicians for unprofessional communications, bullying and harassment”). “The seven-hour limit imposed by Rule 30(d)(1) encourages efficiency in depositions—while parties may wish to cover a wide breadth of topics in a given deposition, they are necessarily required to prioritize their questions in order to remain within the limitations set by the Federal Rules.” Scott v. Multicare Health Sys., No. C18-0063-JCC, 2019 WL 1505880, at *2 (W.D. Wash. Apr. 5, 2019) (citing FED. R. CIV. P. 30(d)(1)). That a party “wish[es] to develop further areas of inquiry, without more, is not good cause to reopen a deposition.” Id. Therefore, the motion to reopen the depositions of Dr. Kilo and Linda Strahm is denied.

D. Privileged Documents

Plaintiff asks the court to conduct an in camera review of 11 documents that defendants declined to disclose on the basis that they contain work product or are privileged. Defendants have provided valid, detailed explanations as to why these materials are being withheld under the work product doctrine or are protected by privilege. Under these circumstances, no in camera review is necessary, warranted, or a justified use of the court's limited resources.

E. Documents Pertaining to RFP 38 and 39

Plaintiff asks the court to order production of documents responsive to RFP 38 and 39. Mot. 9, ECF 84. Defendants contend the request is untimely; however, it is not even necessary to reach the question of timeliness because the requests are otherwise completely irrelevant to this case or excessively broad.

*4 In RFP 38, plaintiff requests documents related to “Dr. Kaul stepping down as head of Cardiology including any history of complaints, investigations or separation agreements.” Mot. 10, ECF 84. Plaintiff contends that Dr. Kaul was a decision-maker with respect to plaintiff's termination, and his personnel records are “discoverable to establish improper motive and to challenge credibility.” Id. Plaintiff points to “published reports ... that [Dr. Kaul] stepped down ‘in the midst of an internal and external review of the cardiology program and the collapse of the state's only heart transport program.’ ” Id.

This request is denied. Dr. Kaul's resignation and the reasons for it have absolutely nothing to do with plaintiff's claims. They are so collateral to the issues in this case that they could not possibly be used for credibility or impeachment purposes.

In RFP 39, plaintiff asks for “documents relating to any physician accused of disrespectful, abrasive or abrupt communications; unprofessional conduct; harassment or bullying” for the period of 2014 to 2017. As defendants contend, this request is overly broad, unduly burdensome, and disproportionate to the needs of the case. The request references “any physician” at OHSU, yet there are “hundreds of doctors” at OHSU. Transcript of Oral Hearing (October 14, 2020) 31, ECF 68. Additionally, plaintiff's use of undefined terms, including bullying, disrespectful, abrasive, and unprofessional, is too vague and broad in scope.

F. Dr. Henrikson's Deposition

Plaintiff seeks to reopen Dr. Henrikson's deposition based on screen shots of text messages that were produced after Dr. Henrikson was deposed. Mot. 11, ECF 84. Dr. Henrikson was deposed for seven hours. Transcript of Oral Argument (September 15, 2020) 7-8, ECF 67. Before Dr. Henrikson's deposition, defendants produced a spreadsheet that included text messages from Dr. Henrikson's cell phone. For some individuals, all of the messages were delineated as incoming, rather than incoming and outgoing. Yet, according to defense counsel, “witnesses who were asked about the text messages were all able to answer questions about who was sending or receiving texts, except for one instance” where Dr. Henrikson “had difficulty answering a question about a ... text string from Dr. Eric Stecker.” Transcript of Oral Hearing (October 14, 2020) 7-8, ECF 68; see also id. at 21 (“Dr. Henrikson was asked and provided extensive testimony about his text messages ... [B]ecause these were his and he knows his voice, he absolutely was able to answer questions about who was sending him things, what his response was. There was only one text string that he was confused by. Just one.”).

Expressing concern that the data from Dr. Henrikson's phone had been corrupted, plaintiff asked to conduct a forensic examination of Dr. Henrikson's phone, id. at 14, or obtain the data from it, id. at 16. The court declined those requests, observing the data file would contain “all kinds of other personal matters” and finding it would be “overly intrusive.” Id. However, because the court had concerns that the text messages were not “in a meaningful format,” it found “it's fair for the plaintiff to get additional information about this” to ensure “reliability.” Id. at 22. The court ordered the parties to “start with some screenshots of these conversations,” and noted to plaintiff's counsel, “perhaps that would provide you with the information that you want.” Id. at 15. The court elaborated, “I am going to require that certain screenshots be disclosed so that plaintiff can have confidence as to the data,” id. at 24, and advised the parties, “[i]f you cannot resolve it, then you can come back and we can talk about it.” Id. at 25.

*5 Defendants have now provided those screenshots, and it appears they correlate with the information in the spreadsheet. Moreover, Dr. Henrikson, who was deposed for seven hours, was questioned about the text messages and was able to testify about them, except for one string. No additional time is “needed to fairly examine” Dr. Henrikson. See Fed. R. Civ. P. 30(d)(2). Therefore, the request to reopen Dr. Henrikson's deposition is denied.

III. Motion to Strike (ECF 96) and Motion for Leave to File Overlength Brief (ECF 97)

The court has discretion to expand the page limit set forth in the local rules. As plaintiff observes, the preferred practice is to request leave to file an overlength brief before the motion deadline. Nevertheless, here, plaintiff's motion to compel contains numerous requests: she moved for unredacted copies of 12 documents, sought to reopen three depositions, asked for in camera review of 11 documents, and requested production of documents from two RFPs. Under the circumstances, allowing a few extra pages of briefing is justified and has caused no prejudice to plaintiff. Therefore, the Motion to Strike (ECF 96) is denied and the Motion for Leave to File Overlength Brief (ECF 97) is granted.

IV. March 30, 2021 Submission

In a recent written submission to the court, the parties outline further disputes they are unable to resolve. The court treats these as an informal motion and rules as follows:

A. Dr. Kirsch's Deposition

The parties dispute the time allowed for the reopening of Dr. Kirsch's deposition. This issue was already discussed at length and resolved during the November 6, 2020 hearing:

Transcript of Oral Hearing (November 6, 2020) 30, ECF 69. Rehashing issues that have already been decided is not a good use of the court's valuable and limited resources. As the court previously held, any further deposition of Dr. Kirsch is limited to two hours.

The parties also dispute the scope of Dr. Kirsch's deposition. This too was already discussed at length and decided by the court. Dr. Kirsch may be questioned as described above in Section I. Also, as previously decided, plaintiff may inquire about bylaws that she did not have prior to Dr. Kirsch's deposition “to the extent that any of these policies talk about or address or define ... or prohibit unprofessional or disrespectful communication.” Id. at 34.

The parties shall coordinate to provide Dr. Kirsch with a redacted copy of this order, including the court's rulings pertaining to the length and scope of the reopened deposition. Additionally, Dr. Kirsch is entitled to have his own attorney represent him during the deposition. Defense counsel shall contact Dr. Kirsch regarding scheduling. The court encourages the use of video-conferencing for the reopened deposition in light of ongoing pandemic conditions and the fact the reopened deposition is limited to two hours.

B. Rule 30(C)(2)

Plaintiff seeks an order requiring defense counsel to comply with Rule 30(c)(2), which provides that, while an attorney may object at a deposition, the “examination still proceeds” and “the testimony is taken subject to any objection.” Rule 30(c)(2) also provides that “[a]n objection must be stated concisely in a nonargumentative and nonsuggestive manner,” and a “person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”

*6 The court sees no need for such an order in this case.

In sum, but as further elaborated in this order:

(1) Within seven days, defendants shall disclose to plaintiff the documents they provided to the court for an in camera review.

(2) Plaintiff's Motion to Compel (ECF 84) is DENIED.

(3) Plaintiff's Motion to Strike (ECF 96) is DENIED.

(4) Defendants' Motion for Leave to File Overlength Brief (ECF 97) is GRANTED.

(5) The parties' informal March 30, 2021 motion regarding discovery issues is resolved as set forth in this order.

(6) Plaintiff's Motion to Extend Discovery (ECF 39) is now fully resolved for the reasons set forth in this order, as well as in other rulings by the court.

Thus, discovery is complete, except for Dr. Kirsch's two-hour reopened deposition. This case must progress to the next stage of litigation. Therefore, dispositive motions, if any, shall be filed within 30 days after Dr. Kirsch's reopened deposition is conducted.

IT IS SO ORDERED.