*1 Before the Court is Plaintiff's Motion to Compel (R. Doc. 61) filed by Plaintiff Tiffini Woodward[1] seeking an order compelling Defendant Correct Health Jefferson, Inc. (“Correct Health Jefferson”) to produce documents in response to her Third Set of Requests for Production Nos. 49, 50, and 51 and associated with its parent/affiliate company Correct Health, LLC. The motion is opposed. R. Doc. 64. The Court held oral argument on the motion on April 15, 2020. R. Doc. 74.

I. Background

On April 25, 2018, Plaintiff Tiffini Woodward (“Woodward”) filed this suit pursuant to 42 U.S.C. § 1983 and applicable Louisiana state law individually and on behalf of her minor child LW. R. Doc. 1. Specifically, Woodward alleges that while incarcerated at the Jefferson Parish Correctional Center (“JPCC”) in Gretna she was subjected to deplorable conditions, lack of adequate medical care, and suffered deliberate indifference involving the failure of prison staff to provide her appropriate medical treatment when she went into labor and gave birth to her first child in the toilet of her prison cell. Id.

On May 22, 2017, Plaintiff was arrested for a parole violation and transferred to JPCC. R. Doc. 1, p. 4. At the time of the arrest, Woodward was twenty-two years old and thirty-four (34) weeks, or about eight months, pregnant with her first child. Id. Woodward tested positive for opiates and admitted to using heroin daily during her pregnancy along with occasionally using meth and Xanax.[2] R. Doc. 56, p. 1. On May 23, 2017, Plaintiff received treatment from Tulane Medical Center for opioid withdrawal and dependency and was prescribed Suboxone. R. Doc. 1, p. 4. When Woodward was transferred back to JPCC, on May 25, 2017, the prison ceased any treatment. R. Doc. 1, p. 5.

That same day, Woodward complained to the JPCC staff that she was experiencing vaginal bleeding, who, in response, provided her a sanitary pad. Id. Six to seven hours later, Plaintiff was examined by the prison nurse, Nurse Becnel. Id. The nurse, without physical examination or even a check of vital signs, determined that Woodward was experiencing Braxton Hicks contractions.[3] R. Doc.1, p. 6.

In her cell, Woodward called out approximately every twenty minutes for twelve hours. Id. According to Woodward, the nurse told her to “shut the f*** up”. Id. On May 26, 2017, Woodward finally gave birth to her child face up in the toilet. Id. The child did not cry for fifteen minutes. Id. After half an hour after the birth, JPCC staff finally entered her cell and wrapped the baby in a jacket. Id.

*2 Woodward was transferred to Ochsner Medical Center where she delivered the placenta and, thereafter, suffered two seizures. R. Doc. 1, p. 7. Woodward contends that the JPCC is liable where there was no OBGYN on duty, no one qualified to deliver babies on staff, and no specialized medical equipment in case of childbirth and labor in jail. R. Doc. 55-1, p. 1. Woodward also contends that she should have immediately been transferred to a hospital at the first signs of labor because the nurse on duty did not know how to perform a pelvic exam and could not tell the difference between Braxton Hicks and real contractions. Id. at p. 2.

Defendant Correct Health Jefferson refutes Plaintiff's rendition of the facts. See R. Doc. 63-2, p. 2-6. Defendant contends that on May 26, around 7:50 a.m., Nurse Armant noted that Plaintiff had a small amount of blood and called Physician Assistant Juanita regarding the situation. Id. Thirty-seven minutes later, at 8:27 a.m., Plaintiff began screaming that something was wrong and that she was having contraction every five minutes. Id. Six minutes later Plaintiff gave birth, and seven minutes after that, at 8:40 a.m., Plaintiff and her baby were taken to Oschner Westbank Medical Center. Id. Defendant further suggests that the cause of any alleged birthing complication is due to Plaintiff's failure to follow medical advice and continued drug abuse. Id.

Plaintiff now seeks information as to all meeting minutes and agendas for all incidents involving women giving birth to children in jail; any and all Process Quality Improvement Studies and Outcome Quality Improvement Studies completed by the CorrectHealth CQI Program between June 1, 2007 and June 1, 2017 involving women giving birth to children in jail; and any electronically stored information regarding incidents between June 1, 2007 and June 1, 2017 involving women giving birth to children in any jail or correctional facility that CorrectHealth LLC is contracted to deliver medical care. R. Doc. 61-1, p. 2-3.

Defendant Correct Health Jefferson has objected to each of these requests on the grounds that overbroad, not relevant, violative of attorney-client and work-product privilege, and that it is not in possession of responsive documents. Id. Notwithstanding, Defendant maintains it has no responsive documents. Id.

II. Standard of Review

Discovery of documents, electronically stored information, and things is governed by Federal Rule of Civil Procedure (“Rule”) 34. Rule 34 allows a party to request the production of “any designated documents or electronically stored information” or “any tangible things.” Id. Rule 34 allow a party to ask for request production of documents and things to the extent of Rule 26(b). Fed. R. Civ. P. 34(a).

Rule 26(b)(1) provides that parties may obtain discovery regarding relevant information to any claim or defense as long as it is nonprivileged. Fed. R. Civ. P. 26. Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not be admissible in evidence to be discovered.” Id. Rule 26(b)(1) also specifies that discovery must be “proportional to the needs of the case, considering the important of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

III. Analysis

A. Possession

Plaintiff Woodward claims that Defendant Correct Health Jefferson, LLC has an obligation to have its affiliated company and nonparty Correct Health LLC search through its files for other instances of women giving birth in jail. R. Doc. 61-1, p. 1. Plaintiff Woodward further claims that, because Correct Health Jefferson can easily obtain the requested information from Correct Health LLC, the requested information is actually in the “possession” of Correct Health Jefferson within the meaning of the Federal Rule of Civil Procedure 34. R. Doc. 61-1, p. 5-7.

*3 In support of her possession argument, Plaintiff claims Correct Health Jefferson and Correct Health LLC are interdependent and co-related entities as all facilities that are serviced by Correct Health share the same audits, according to policies and practices, and all policies and advisory opinions on policy are promulgated by the Correct Health LLC headquarters from whom Plaintiff now seeks documents. R. Doc. 61-1, p. 9. Plaintiff Woodward buttresses this claim with testimony garnered in Correct Health Jefferson's 30(b)(6) deposition by Yolanda James, employee of Correct Health LLC, wherein she testified that all Correct Health facilities share the same remote accessibility network for its file and email storage, known as the S-Drive.[4] R. Doc. 61-1, p. 9.

Defendant, in opposition, contends that Plaintiff inaccurately characterizes Correct Health LLC as the parent company of Correct Health Jefferson. R. Doc. 64, p. 3. Defendant further contends that Correct Health Jefferson is an affiliate company of Correct Health LLC over which Correct Health Jefferson has no control or authority, and, as such, Correct Health Jefferson cannot have possession of the documents within the meaning of the Federal Rules of Civil Procedure. R. Doc. 64, p. 3.

In consideration of Rule 34, the Eastern District follows the applicable test which dictates “[t]ypically what must be shown is a relationship, either because of some affiliation, employment or statute, such that a party is able to command release of certain documents by the non-party person or entity in actual possession. The applicable test is whether the litigant has the ability to obtain the documents on request to a related party, either as a matter of law or as a matter of practical fact.” U.S. ex rel. Stewart v. Louisiana Clinic, No. CIV.A. 99-1767, 2003 WL 21283944, at *12 (Knowles, M.J.) (E.D. La. June 4, 2003).

When finding that affiliates have the practical ability to obtain the documents, courts have considered whether the requests are sufficiently narrowed to just those issues relevant in the pending litigation. See, e.g., Marine Power Holding, LLC v. Malibu Boats, LLC, No. CV 14-912, 2016 WL 9412853, at *3 (Roby, M.J.) (E.D. La. June 23, 2016); cf. Oy v. Sikorsky Aircraft Corp., No. Misc. 08-3185, 2008 WL 2509821, at *2 (Knowles, M.J.) (E.D. La. June 18, 2008) (finding it is doubtful at best that the parent-affiliate, a non-party company has either the authority or practical ability to obtain documents without engaging in the very same exercise the propounding plaintiff party—a costly, cumbersome and slow process—seeks to avoid).

While Defendant Correct Health Jefferson contends that Correct Health LLC is not a parent company in the traditional sense of a parent-subsidiary relationship, Correct Health LLC is still a parent company to numerous affiliate companies. As a parent to affiliate companies, Correct Health LLC owns less than fifty percent (50%) of the shares in these affiliate companies, to include Correct Health Jefferson, despite each affiliate company having some other separate third-party ownership interest. Only owning the minority stake in its affiliates Correct Health LLC, as the parent company, is able to guide its affiliates and provide it a uniform system of management and shared electronic information storage,[5] but it does not allow for Correct Health LLC to exercise much control in the day to day operations of its affiliates. Thus, given the companies’ structure, there is no evidence that the affiliate, Correct Health Jefferson, can obtain documents that belong to different facilities, through the parent, Correct Health LLC, whereby its business structure the other affiliate companies have different ownership interests. As it relates to Correct Health Jefferson's own information that may be in possession of the parent, Correct Health LLC, it appears to the Court Correct Health Jefferson would have the practical ability to command those documents from Correct Health LLC if those documents are not already in Correct Health Jefferson's possession.

*4 Notwithstanding, the Court finds, because Correct Health Jefferson can obtain its own documents from Correct Health LLC, as well as potentially obtaining to documents issued on affiliate-wide basis, the Court will proceed to review the requests’ breadth and whether the information sought is sufficiently narrowed to those issues implicated in the case currently pending before the Court. See Marine Power Holding, 2016 WL 941285 at *3; see also R. Doc. 64, p. 5.

B. Breadth and Relevance

In an attempt to establish relevance, Plaintiff Woodward next claims that this information is relevant to show that Correct Health Jefferson had a persistent and widespread practice that constitutes a policy for purposes of entity liability under § 1983. R. Doc. 61-1, p. 5. Plaintiff Woodward further contends that this information is relevant where CorrectHealth's policy contemplates at least two Process Quality Improvement Studies and two Outcome Quality Improvement Studies each year where: (1) a facility problem is identified through audits, (2) a study is completed, (3) a plan is developed and implemented, (4) results are monitored and tracked, and (5) improvement is demonstrated or the problem is restudied. R. Doc. 61-1, p. 12. According to Plaintiff, her emergency delivery, and any other births, at the JPCC, or other CorrectHealth serviced facilities, constitutes a “sentinel event”[6] that needed to be evaluated and reviewed pursuant to these improvement studies. Id.

Defendant, in opposition, contends that Plaintiff's request is overbroad, as it seeks information over a vast ten-year period (June 1, 2007 – June 1, 2017) as well as information pertaining to “any jail, correctional center or other facility that primarily houses pretrial detainees where Correct Health is contracted to deliver medical care for that facility.” R. Doc. 64. Defendants’ counsel further contends that, as a representative separately of both Correct Health Jefferson and Correct Health LLC, that he informally reached out to Correct Health LLC to inquire about as to Plaintiff's request. In response, Correct Health LLC stated that there were no responsive documents. R. Doc. 64, p. 5; see also R. Doc. 61-1, p. 7. As such, Defendants maintain that this is a frivolous motion by Plaintiff where she knows the requested information simply does not exist. Id.

The Court first notes that while Correct Health Jefferson cites Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984), as the authority that an entity may be found liable under § 1983 because of persistent and widespread practices, that opinion was limited in its authority to municipal liability.[7] The Court further notes that while Defendant contends that the filing of this motion is frivolous, as the Court, explained in contemplation of Plaintiff's first Motion to Compel, the absence of information can be just as probative as the actual production of the requested documents. See R. Doc. 59, p. 10-11.

*5 It is uncontested that since Correct Health Jefferson has been the health provider at JPCC that there have been four (4) instances of in-jail birth. See R. Doc. 61-1, see also R. Doc. 56. Still, the Court questions the relevance of births at facilities that are not JPCC—the facility in question. Correct Health LLC has affiliate companies and services numerous facilities across multiple parishes and states. As written, Plaintiff's request would likely neither yield the information Plaintiff claims to desire nor result in information directly relevant to the case at hand. As such, because Plaintiff's all-encompassing requests are not limited to any facility(ies), the Court finds these requests overbroad and more indicative of an impermissible fishing expedition.

Notwithstanding, this Court has already found that information about the other births that occurred in the JPCC relevant and discoverable. That issue was the subject of Plaintiff's first Motion to Compel. See R. Doc. 55 (noting the Eastern District of Louisiana has previously recognized that the “data on the amount and frequency of attempted suicides under CorrectHealth's care is relevant to Plaintiffs’ causes of action [because] [t]his data would demonstrate whether and to what extent CorrectHealth was put on notice and if CorrectHealth acted proportionately to any suicide problems that may have been flourishing under its care.” Belcher v. Lopinto, No. CV 18-7368, 2019 WL 5860744, at *3 (E.D. La. Nov. 8, 2019)).

Given Correct Health LLC's role in the development of recommended company practices and policies and the trouble shooting of common problems across its affiliates, it is conceivable to the Court that Correct Health LLC may have issued an affiliate wide communication regarding pregnant inmates. As such, the Court is of the opinion that this information is both in “possession” of Correct Health Jefferson within the meaning of the Federal Rules of Civil Procedure as well as relevant to the underlying issue in this litigation. The Court, therefore, grants Plaintiff's motion to the extent that Plaintiff seeks Correct Health Jefferson produce the meeting minutes and agendas for incidents involving women giving birth to children in jail as well as the Process Quality Improvement Studies and Outcome Quality Improvement Studies completed by the Correct Health CQI Program between June 1, 2007 and June 1, 2017 involving women giving birth to children in jail issued by Correct Health LLC on affiliate-wide basis. See Belcher, 2019 WL 5860744, at *3 (finding “[t]en years is a manageable and reasonable period of time for which to collect data.”).

IV. Conclusion

Accordingly,

IT IS ORDERED that the Plaintiff's Motion to Compel (R. Doc. 61) is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that the motion is GRANTED to the extent Plaintiff seeks Correct Health Jefferson produce the meeting minutes and agendas for incidents involving women giving birth to children in jail as well as the Process Quality Improvement Studies and Outcome Quality Improvement Studies completed by the Correct Health CQI Program between June 1, 2007 and June 1, 2017 involving women giving birth to children in jail issued by Correct Health LLC on an affiliate-wide basis.

IT IS FURTHER ORDERED that the motion is DENIED to the extent Plaintiff sought meeting minutes and agendas, CQI documents, and all other electronically stored information involving women giving birth in any jail, correctional center or other facility that primarily houses pretrial detainees where CorrectHealth is contracted to deliver medical care for that facility.

IT IS FURTHER ORDERED that Defendant Correct Health Jefferson shall produce these documents no later than April 29, 2020.

New Orleans, Louisiana, this 15th day of May 2020.

The Court notes the inconsistency in the spelling of Plaintiff's name and adopts the one heading this pleading.

Xanax is a benzodiazepine and prescription medication used to treat anxiety and panic disorders. https://www.webmd.com/drugs/2/drug-9824/xanax-oral/details.

“Braxton Hicks contractions are sporadic contractions and relaxation of the uterine muscle. Sometimes, they are referred to as prodromal or ‘false labor’ pains.” Deborah A. Raines & Danielle B. Cooper, Braxton Hicks Contractions, National Center for Biotechnology Information Bookshelf (last update: Nov. 11, 2019), accessed at: https://www.ncbi.nlm.nih.gov/books/NBK470546/.

Plaintiff explains that any search of Correct Health email is not partitioned by location, but instead is done via a company-wide search. R. Doc. 61-1, p.10. As such, and due to the way that Defendant maintains its electronic communications and emails, Plaintiff contends it would be more burdensome for Correct Health to separate out Correct Health Jefferson's emails from the rest of the company search. Id.

In Correct Health Jefferson's Rule 30(b)(6) deposition, Yolanda James testified, inter alia, that all Correct Health facilities share the same remotely accessible network for file and email storage, known as the “S-Drive.” See R. Doc. 61-9.

CorrectHealth defines sentinel event as a hospitalization, suicide attempt, illness outbreak, emergencies, and facility deaths. See R. Doc. 61-1, p. 13. Plaintiff believes an emergency in-jail birth that required hospitalization for delivery of the placenta qualifies as both a hospitalization and an emergency to be reviewed as part of the overall CQI program. Id.

The Court, here, notes that the Webster opinion on municipal liability extended only to analysis of the City of Houston's actions as a municipality, and not to the State of Texas. Analogizing Webster to Plaintiff's request would then necessarily require the extension of that holding beyond the JPCC and Correct Health Jefferson's actions as parties to Correct Health, LLC and all correctional facilities Correct Health services broadly as non-parties.