Erickson v. Pope Cnty.
Erickson v. Pope Cnty.
2021 WL 9772304 (D. Minn. 2021)
June 14, 2021
Brisbois, Leo I., United States Magistrate Judge
Summary
The court did not discuss any ESI. The court found that Defendant CentraCare failed to demonstrate that all answers responsive to the deposition questions would be protected by the attorney-client privilege or work product doctrine. The court ordered that CentraCare shall produce its Rule 30(b)(6) deponents in accordance with the present Order, and noted that any ESI must be assessed on an individualized basis to determine if it is protected by the attorney-client privilege or work product doctrine.
Nate Erickson, et al., Plaintiffs,
v.
Pope County, Minnesota, et al., Defendants
v.
Pope County, Minnesota, et al., Defendants
Case No. 19-cv-3061 (SRN/LIB)
United States District Court, D. Minnesota
Filed June 14, 2021
Counsel
Zane A. Umsted, J. Ashwin Madia, Madia Newville LLC, Minneapolis, MN, for Plaintiffs Nate Erickson, Amanda Horn, Susan Bristlin.Jason M. Hiveley, Stephanie A. Angolkar, Aaron Mark Bostrom, Iverson Reuvers, Bloomington, MN, for Defendants Minnesota Pope County, Timothy Riley, Minnesota Todd County, Scott Wright, Steve Och, Grace McCallum, Andrew Mattson.
Stephanie A. Angolkar, Iverson Reuvers, Bloomington, MN, for Defendants Charles Kloos, Connie Spanswick.
Dyan J. Ebert, Cally R. Kjellberg-Nelson, Quinlivan & Hughes, PA, St. Cloud, MN, for Defendants CentraCare Health System, Sandra Nimmo, Lori Sticha, Tom Hock.
Dyan J. Ebert, Quinlivan & Hughes, PA, St. Cloud, MN, for Defendant Deborah Rasmussen.
Brisbois, Leo I., United States Magistrate Judge
ORDER
This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636 and upon Defendant CentraCare Health System–Long Prairie's Motion for a Protective Order. [Docket No. 56]. The undersigned took Defendant's Motion under advisement on the written submissions of the parties. (Order [Docket No. 65]).
For the reasons discussed herein, Defendant CentraCare's Motion for a Protective Order, [Docket No. 56], is GRANTED in part and DENIED in part.
I. Background
Plaintiffs, Nate Erickson, Amanda Horn, and Susan Bristlin—as joint trustees for decedent Todd Erickson—initiated the present action on December 10, 2019, by filing their Complaint. [Docket No. 1].[1] Plaintiffs filed their operative Second Amended Complaint, [Docket No. 32], on August 20, 2020. Plaintiffs' Second Amended Complaint names as Defendants Pope County, Minnesota; Timothy Riley; Todd County, Minnesota; Scott Wright; Steve Och; Grace McCallum; Andrew Mattson; Charles Kloos; Connie Spanswick; CentraCare Health System—Long Prairie; Sandra Nimmo; Tom Hock; Deborah Ramussen; and Lori Sticha. (Second Amended Compl. [Docket No. 32]).
The present action arises out of the May 7, 2017, death of Todd Erickson. (Second Amended Compl. [Docket No. 32]). Todd Erickson was in custody at the Todd County Jail at the time of his death. (See, Id.). Generally speaking, Plaintiffs allege that Defendants' deliberate indifference, negligence, and lack of training caused Todd Erickson's death. (See, Id.). Plaintiffs allege that Todd Erickson's death was caused by “delirium tremens and alcohol withdrawal” which resulted in a fatal seizure. (Id. ¶ 92). “The Medical Examiner attributed Erickson's death to ‘complications of chronic alcoholism.’ ” (Id. ¶ 93).
On the basis of the allegations in their Complaint, Plaintiffs allege four causes of action. (See, Id. ¶¶ 95–145). In Count 1, Plaintiffs allege a “violation of 4th and 14th Amendments” claim against Defendants McCallum, Mattson, Wright, Kloos, Spanswick, Nimmo, Hock, and Sticha based on Defendants McCallum, Mattson, Wright, Kloos, Spanswick, Nimmo, Hock, and Sticha alleged deliberate disregard of Todd Erickson's serious medical need. (See, Id. ¶ 95–113). In Count 2, Plaintiffs allege a Monell[2] claim against Defendants Pope County, Riley, Todd County, CentraCare, Wright, and Och based on Defendant Pope County, Todd County, and CentraCare's failure to provide training, “or provide inadequate training, to their staff regarding the provision of medical treatment for detainees experiencing severe alcohol intoxication and/or withdrawal.” (Id. ¶ 118). In Count 3, Plaintiffs allege a Minnesota state law Negligence and Wrongful Death claim against all Defendants. (Id. ¶¶ 128–35). In Count 4, Plaintiffs allege a Minnesota state law Medical Malpractice claim against Defendants CentraCare, Nimmo, Hock, Rasmussen, and Sticha. (Id. ¶ 136–45).
On January 27, 2021, Plaintiffs served their “Notice of Deposition of Rule 30(B)(6) Deposition of CentraCare.” (Ebert Aff., [Docket No. 59], ¶ 2). The Notice of Deposition contained nineteen deposition topics. (Exhibit A [Docket No. 59-1]). Defendant CentraCare objected to several of the deposition topics, and the parities began discussing those objections. (See, Ebert Aff., [Docket No. 59], ¶¶ 2–9).
On March 3, 2021, Plaintiffs served their “Second Amended Notice of Deposition of Rule 30(b)(6) Deposition of Defendant CentraCare.” (Id. ¶ 9). Pursuant to the agreement of the parties, Plaintiffs' “Second Amended Notice of Deposition of Rule 30(b)(6) Deposition of CentraCare” provided that the Rule 30(b)(6) deposition would go forward on only Topics 3–19. (Exhibit G [Docket No. 59-2]). The Deposition Notice specifically noted that Defendant CentraCare intended to move for a protective order regarding Topics 1 and 2, and the parties would reconvene the deposition if need following the disposition of Defendant CentraCare's motion for protective order. (Exhibit G [Docket No. 59-2]). On March 9, 2021, “the depositions of Dan Swenson, Jodi Hillmer, and Dr. Deborah Rasmussen were taken to cover the 30(b)(6) Deposition topics identified by Plaintiffs with the exception of Topics 1 and 2.” (Id.).
On March 26, 2021, Defendant CentraCare filed the present Motion for Protective Order. [Docket No. 56]. Through the present Motion, Defendant CentraCare seeks an Order of this Court preventing Plaintiffs from conducting a Rule 30(b)(6) regarding Topic 1 and Topic 2.
II. Standard of Review
Federal Rule of Civil Procedure 26(b)(1) states:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance 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.
Courts generally have construed Rule 26(b)(1) broadly. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see, Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (Rule 26 “is liberal in scope and interpretation, extending to those matters which are relevant”). Oral depositions are one way parties may obtain said relevant information. See, Fed. R. Civ. P. 30.
A party generally, with certain exceptions, may depose any person without leave of the Court. Fed. R. Civ. P. 30(a)(1); but see, Fed,. R. Civ. P. 30(a)(2). Rule 26(c), however, allows the Court, upon a showing of good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c). “The party seeking the order ... bears the burden of establishing the requisite ‘good cause.’ ” Northbrook Digital, LLC v. Vendio Servs., 625 F. Supp. 2d 728, 734 (D. Minn. 2008); Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 237 (D. Minn. 2013).
“A court has broad discretion in determining whether a protective order is warranted and the appropriate degree of protection.” Medtronic Inc. v. Guidant Corp., Nos. 00-1473, 00-2503 (MJD/JGL), 2001 WL 34784493, at *1 (D. Minn. Dec. 20, 2001), aff'd 2002 WL 171711 (D. Minn. Jan. 29, 2002) (citing May Coating Techs., Inc. v. Ill. Tool Works, 157 F.R.D. 55, 57 (D. Minn. 1994)); see, e.g., Hill v. Sw. Energy Co., 858 F.3d 481, 484 (8th Cir. 2017); Bison Advisors, LLC v. Kessler, No. 14-cv-3121 (DSD/SER), 2015 WL 4509158, at *2 (D. Minn. July 24, 2015); Pavlik v. Cargil, Inc., 9 F.3d 710, 714 (8th Cir. 1993); Inline Packaging, LLC v. Graphic Packaging Int'l, Inc., No. 15-cv-3183 (ADM/LIB), 2018 WL 9919939, at *4 (D. Minn. Jan. 23, 2018).
III. Defendant CentraCare's Motion for a Protective Order. [Docket No. 56].
Defendant CentraCare seeks an Order of this Court quashing Topic 1 and Topic 2 of Plaintiffs' “Second Amended Notice of Deposition of Rule 30(b)(6) Deposition of CentraCare.” Defendant contends that Topics 1 and 2 are improper because the information sought therein requires expert testimony, goes “to the ultimate issue of the case,” requires legal conclusions, has already been asked of other deponents, and seeks information protected by the attorney client-privilege or the work product doctrine. (Defs.' Mem., [Docket No. 58], at 4–17).
A. Topic 1
Topic 1 of Plaintiffs' “Second Amended Notice of Deposition of Rule 30(b)(6) Deposition of CentraCare” seeks deposition testimony on “[t]he factual basis for [Defendant CentraCare's] denials of the following paragraphs of Plaintiff's [sic] Second Amended Complaint in [its] Answer ¶¶ 9, 10, 11, 71, 72, 73, 76, 79, 80, 81, 82, 83, 84, 85, 87, and 91.” (Exhibit 155 [Docket No. 63-16]). In relevant part, Plaintiffs' Second Amended Complaint provides as follows:
9. Defendants CentraCare, Nimmo, Hock, Rasmussen and Sticha withheld medical treatment from Erickson despite knowing of obvious warning signs for alcohol withdrawal. They never examined him, observed him, spoke with him, or reviewed his medical history. They never even asked about his symptoms. Indifferent to Erickson's medical needs, they didn't recommend any medical treatment. In fact, they recommended withholding Erickson's prescribed medication for nearly 12 hours, including a medication known to combat alcohol withdrawal that may have saved his life if timely administered. They ignored the obvious signs of medical need.
10. On numerous occasions, Defendants had every reason to know that Erickson needed medical attention. But on every occasion, they looked the other way. They never provided Erickson with the medical treatment he needed.
11. If not for Defendants' deliberate indifference, Erickson would be alive today. Instead, as a result of individual failures (the Individual Defendants) and institutional shortcomings (the County Defendants and CentraCare), Erickson died a senseless death in his jail cell. Defendants must be held liable.
71. Defendant Nimmo didn't ask Defendant Spanswick about Erickson's condition or symptoms. She didn't examine him, observe him, speak with him, or review his medical history. Nor did she recommend that jail staff monitor Erickson for worsening symptoms, inquire about any history of alcohol-related seizures, or otherwise gauge Erickson's risk of severe or fatal alcohol withdrawal.
72. All Defendant Nimmo did was review Erickson's prescriptions, which included Lorazepam. She told Defendant Spanswick that Lorazepam was not an appropriate medication for seizures.
73. In fact, Lorazepam is a well-known treatment for alcohol withdrawal, the seizures associated with alcohol withdrawal, and “delirium tremens” or “DTs.”
76. Defendant Hock didn't ask about Erickson's condition or symptoms. He didn't examine him, observe him, speak with him, or review his medical history. Nor did he recommend that jail staff monitor Erickson for worsening symptoms, inquire about any history of alcohol-related seizures, or otherwise gauge Erickson's risk of severe or fatal alcohol withdrawal.
79. At 12:19 p.m. on May 7, 2017, Defendant Kloos apparently observed Erickson showing symptoms of delirium tremens—the most severe form of alcohol withdrawal. After observing Erickson's symptoms, Defendant Kloos called Defendant Sticha at CentraCare to request “advice on DT's”—referring to delirium tremens.
80. Defendant Kloos told Defendant Sticha that Erickson registered a .00 BAC but showed signs of withdrawal as the alcohol left his system.
81. Defendant Kloos did not tell Defendant Sticha that Erickson was a chronic alcoholic, had a history of alcohol-related offenses, had been drinking for days before his arrest, was previously too intoxicated to stand, experienced “seizure activity” ten hours earlier, and received no prior medical examination or treatment despite being deemed too intoxicated for standard jail procedures.
82. Defendant Sticha didn't ask about Erickson's condition or symptoms. She didn't examine him, observe him, speak with him, or review his medical history. Nor did she recommend that jail staff monitor Erickson for worsening symptoms, inquire about any history of alcohol-related seizures, or otherwise gauge Erickson's risk of severe or fatal alcohol withdrawal.
83. Based on the information communicated by Defendant Kloos, Defendant Sticha instructed Defendant Kloos to keep Erickson hydrated and administer his prescribed medications.
84. Defendant Sticha further stated that Erickson's Lorazepam prescription was a sufficient treatment for alcohol withdrawal, contradicting the earlier information given by Defendant Nimmo.
85. In fact, while Lorazepam is a well-known treatment for alcohol withdrawal and delirium tremens, it is insufficient by itself when administered in the low dosage prescribed to Erickson. And it is particularly insufficient when the medication has been delayed or withheld for a prolonged period of time.
87. The CentraCare Defendants violated CentraCare's detailed procedures for assessing intoxicated patients for alcohol withdrawal. The procedures require periodic visual observations of the patient, whereas the CentraCare Defendants performed no observation whatsoever.
91. The CentraCare Defendants failed to collect information about Erickson's medical condition and medical history and recommended a non-individualized course of treatment (which, at least initially, overrode treatments prescribed by Erickson's doctors). As such, they deviated from the standard of care they owed Erickson. Indeed, they demonstrated deliberate indifference to Erickson's obvious medical needs by providing grossly incompetent care and by choosing an easier and less efficacious course of treatment. By their deliberate indifference, they ensured Erickson wouldn't receive competent medical care elsewhere.
(Plfs.' Second Amended Compl. [Docket No. 32]). Defendant CentraCare, in its joint answer with Defendant Sandra Nimmo, Tom Hock and Lori Sticha, specifically denied the allegations in each of the at issue paragraphs in Plaintiffs' Second Amended Complaint quoted above. (Def. CentraCare Answer, [Docket No. 48], ¶¶ IV, XIX, XXI, XXIV, XXVI, XXVII).
1. Paragraphs 9, 10, 87, and 91
Defendant CentraCare contends that Rule 30(b)(6) deposition testimony regarding the denial of paragraphs 9, 10, 87, and 91 of Plaintiffs' Second Amended Complaint is improper because such deposition testimony would require expert testimony which is improper for a Rule 30(b)(6) deposition. Defendant's argument here is unpersuasive because it is based on an improperly limited reading of Plaintiffs' deposition notice.
Defendant CentraCare argues that paragraphs 9, 10, 87, and 91 as deposition topics seek expert testimony and legal conclusions, and therefore these paragraphs are not proper topics for Rule 30(b)(6) deposition testimony. Defendant CentraCare asserts that testimony regarding its denial of paragraph 9 requires expert opinion testimony and legal conclusions because it concerns the effectiveness of medication and whether there were “obvious signs” of medical need. (Def.'s Mem., [Docket No. 58], at 5–6). Defendant CentraCare argues that deposition testimony regarding the denial of paragraph 10 would require expert opinion testimony and legal conclusions because it concerns whether or not “Defendants had every reasons to know that Erickson needed medical attention ....” (Id. at 6). Defendant CentraCare contends that deposition testimony regarding its denial of paragraph 91 would involve expert testimony because paragraph 91 involves discussion of the correct “standard of care.” (Id. at 10).
Defendant CentraCare, however, ignores the other portions of paragraphs 9, 10, 87, and 91 in which Plaintiffs make specific factual allegations. (Plfs.' Second Amended Compl., [Docket No. 32], ¶ 9) (“They never examined him, observed him, spoke with him, or reviewed his medical history. They never even asked about his symptoms.... [T]hey didn't recommend any medical treatment. In fact, they recommended withholding Erickson's prescribed medication for nearly 12 hours ....”); (Id. ¶ 10) (“They [(Defendants)] never provided Erickson with the medical treatment he need”) (emphasis in original); (Id. ¶ 87) (“The CentraCare Defendants ... procedures requires period visual observations of the patient ... the CentraCare Defendants performed no observations whatsoever.”); (Id. ¶ 91) (The CentraCare Defendants failed to collect information about Erickson's medical condition and medical history and recommended a non-individual course of treatment ....”). Defendant CentraCare denied these factual assertions, and Plaintiffs now seek to depose Defendant CentraCare regarding the factual allegations underlying these denials.[3] Rule 30(b)(6) deposition testimony regarding Defendant CentraCare's factual basis for denying these factual assertions does not require expert testimony nor deposition testimony regarding legal conclusions.[4]
That is not to say that paragraphs 9, 10, 87, and 91 contain only factual assertions. Each of these paragraphs contain assertions which if responded to in deposition testimony could require either expert testimony or discussion of legal conclusions. (See, e.g., Plfs.' Second Amended Compl., [Docket No. 32], ¶ 9) (discussing Defendants' allegedly being “[i]ndifferent to Ericksen's medical needs”); (Id. ¶ 10) (“Defendants had every reason to know that Erickson needed medical attention.”); (Id. ¶ 91) (alleging that Defendants “deviated from the standard of care they owed Erickson” and “demonstrated deliberate indifference to Erickson's obvious medical needs by providing grossly incompetent care”). Defendant CentraCare's Rule 30(b)(6) deponents will not be required to answer any questions regarding Defendant CentraCare's denial of any legal conclusion or regarding the denial of any assertion in the at issue paragraphs which would require an expert opinion. See, e.g., Ingersoll v. Farmland Foods, Inc., No. 10-cv-6046 (SJ/FJG), 2011 WL 1131129, at *6 (W.D. Mo. Mar. 28, 2011); Johnson v. Charps Welding & Fabricating, Inc., No. 14-cv-2081 (RHK/LIB), 2017 WL 9516243, at *17 (D. Minn. Mar. 3, 2017); Coleman v. Nat'l Life Ins. Co., No. 13-cv-2536 (JNE/FLN), 2014 WL 4540760, at *2 (D. Minn. Sept. 11, 2014); United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001).
Simply put, deposition testimony regarding paragraphs 9, 10, 87, and 91 is limited to only factual information. Plaintiffs may only inquiry into the facts underlying Defendants' denial of paragraphs 9, 10, 87, and 91. Defendant CentraCare specifically denied these paragraphs and it is reasonable to assume that its denials were based on at least some underlying facts. Even if Defendant CentraCare's denials of these paragraphs were not based on any underlying facts, Plaintiffs are entitled to inquire.
Therefore, to the extent Defendant CentraCare's present Motion seeks an Order of this Court precluding Plaintiffs from seeking any Rule 30(b)(6) deposition testimony related to Defendant CentraCare's denial of paragraphs 9, 10, 87, and 91 of Plaintiffs' Second Amended Complaint, Defendant CentraCare's Motion for a Protective Order, [Docket No. 56], is DENIED. Plaintiffs may depose Defendant CentraCare regarding Defendant CentraCare's factual basis for denying paragraphs 9, 10, 87, and 91, as limited by this Order.
2. Paragraphs 11 and 85.
Defendant CentraCare also contends that Rule 30(b)(6) deposition testimony regarding its denial of paragraphs 11 and 85 of Plaintiffs' Second Amended Complaint is improper because such deposition testimony would require expert testimony which is improper for a Rule 30(b)(6) deposition. The Court agrees.
Plaintiffs assert that they seek to depose Defendant CentraCare regarding its denial of the factual assertions in paragraphs 11 and 85 of Plaintiff's Second Amended Complaint. However, neither paragraph 11 nor paragraph 85 contain any factual assertions. Instead, paragraphs 11 and 85 contain legal conclusions and other assertions which would require an expert opinion to deny.
For example, paragraph 11 of Plaintiffs' Second Amended Complaint contains three sentences. (Plfs.' Second Amended Compl., [Docket No. 32], ¶ 11). The first sentence alleges that “[i]f not for Defendants' deliberate indifference, Erickson would be alive today.” (Id.). This is a legal conclusion, and the denial of this sentence is beyond the purview of a lay witness, i.e., expert testimony. The second sentence of paragraph 11 reads, “Instead, as a result of individual failures (the Individual Defendants) and institutional shortcomings (the county Defendants and CentraCare), Erickson died a senseless death in his jail cell.” (Id.). Here again, this assertion is a legal conclusion, and denying this sentence would require an expert opinion testimony. The third sentence of paragraph 11 reads, “Defendants must be held liable.” (Id.). This is a textbook example of a legal conclusion.
The same is true of paragraph 85 of Plaintiffs' Second Amended Complaint. (Id. ¶ 85). Paragraph 85 contains only assertions regarding whether or not “Lorazepam is a well-known treatment for alcohol withdrawal and delirium tremens,” and the general effectiveness of Lorazepam. Defendant CentraCare's denial of this assertion would necessarily be expert testimony.
As alluded to above, a party is not permitted to seek Rule 30(b)(6) deposition testimony in the form of expert opinions or legal conclusions. See, e.g., Ingersoll v. Farmland Foods, Inc., No. 10-cv-6046 (SJ/FJG), 2011 WL 1131129, at *6 (W.D. Mo. Mar. 28, 2011); Johnson v. Charps Welding & Fabricating, Inc., No. 14-cv-2081 (RHK/LIB), 2017 WL 9516243, at *17 (D. Minn. Mar. 3, 2017); Coleman v. Nat'l Life Ins. Co., No. 13-cv-2536 (JNE/FLN), 2014 WL 4540760, at *2 (D. Minn. Sept. 11, 2014); United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001). Defendant CentraCare's Rule 30(b)(6) deponents will not be required to answer any questions regarding Defendant CentraCare's denial of paragraphs 11 or 85 of Plaintiffs' Second Amended Complaint because those paragraphs contain only legal conclusion and/or assertions, the denial of which would require an expert opinion.
Therefore, to the extent Defendant CentraCare's present Motion seeks an Order of this Court precluding Plaintiffs from seeking Rule 30(b)(6) deposition testimony related to Defendant CentraCare's denial of paragraphs 11 and 85 of Plaintiffs' Second Amended Complaint, Defendant CentraCare's Motion for a Protective Order, [Docket No. 56], is GRANTED.
3. Paragraphs 71, 72, 76, 79, 80, 81, 82, 83, and 84.
Defendant CentraCare contends that Rule 30(b)(6) deposition testimony regarding its denial of paragraphs 71, 72, 76, 79, 80, 81, 82, 83, and 84 of Plaintiffs' Second Amended Complaint is improper because the factual allegations in these paragraphs regard “specific actions of the individual defendants and requiring further inquiry would be no more than an annoyance and undue burden on CentraCare to recollect answers already given to Plaintiffs.” (Def. CentraCare Mem., [Docket No. 58], at 10–13). The Court finds unpersuasive Defendant CentraCare argument here.
Paragraphs 71 and 72 involve the actions of Defendant Nimmo. Paragraph 76 involves the actions of Defendant Hock. Paragraphs 79, 80, and 81 involve the information Defendant Sticha learned from Defendant Kloos and allegations regarding information Defendant Sticha did not receive from Defendant Kloos. Paragraphs 82, 83, and 84 involve actions taken by Defendant Sticha. Defendants Nimmo, Hock, and Sticha are all employees of Defendant CentraCare; Defendants Nimmo and Sticha are nurses at Defendant CentraCare, and Defendant Hock is a physician assistant at Defendant CentraCare. (Plfs.' Second Amended Compl., [Docket No. 32], ¶¶ 28, 30).[5] Defendant CentraCare asserts that Defendants Nimmo, Hock, and Sticha have already been individually deposed. (Def. CentraCare's Mem., [Docket No. 58], at 12).
Defendant CentraCare contends that Rule 30(b)(6) deposition examination of its Rule 30(b)(6) deponents on paragraphs 71, 72, 76, 79, 80, 81, 82, 83, and 84 would be an undue burden and “annoyance” because it “will essentially require CentraCare to interview Defendants Hock, Nimmo, and Sticha as they are mentioned in each paragraph to retrieve sufficient answers—answers which Plaintiffs already have from deposing these individuals previously.” (Id.). Defendant CentraCare's argument here, however, overlooks that neither Defendant Hock, Nimmo, nor Sticha was designated as a Rule 30(b)(6) corporate designee, and therefore, the testimony of those other witness is not directly binding on Defendant CentraCare in the same manner as the testimony of a Rule 30(b)(6) deponent. See, e.g., Rule 30(b)(6); Patterson v. Pace, No. 19-cv-1940 (JNE/LIB) Order, [Docket No. 430], at 29 (D. Minn. May 6, 2021).
Defendant CentraCare also contends that because preparation for a deposition on the at issue paragraphs would require it to interview Defendants Hock, Nimmo, and Sticha, it creates an undue burden on Defendant CentraCare. A party opposing discovery may prevent discovery by showing that the discovery request creates an undue burden. See, e.g., Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 610 (D. Neb. 2001); St. Paul Reinsurance Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000); Inline Packaging, LLC v. Graphic Packaging International, Inc., No. 15-cv-3183 (ADM/LIB), 2016 WL 7042117, at *8 (D. Minn. July 25, 2016). “The standard is whether the burden or expense is ‘undue’ and whether the ‘hardship is unreasonable in the light of the benefits to be secured from the discovery.’ ” Wagner, 208 F.R.D. at 610 (quoting Wright, Miller, & Marcus, Federal Practice Procedure § 2214, p. 435 (1994)); Inline Packaging, 2016 WL 7042117, at *8. A party claiming requests are unduly burdensome cannot rely on mere conclusory allegations; rather, it must provide some evidence regarding the time or expense required to respond to said discovery requests. See, e.g., Horizon Holdings, LLC v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan. 2002).
In the present case, Defendant CentraCare has failed to satisfy its threshold burden of demonstrating that preparing for Rule 30(b)(6) deposition testimony regarding its denial of paragraphs 71, 72, 76, 79, 80, 81, 82, 83, and 84 of Plaintiffs' Second Amended Complaint would create any undue burden upon Defendant CentraCare. Other than its conclusory allegations that interviewing these three employees would create an undue burden, Defendant CentraCare fails to offer any factual allegations demonstrating said undue burden. (See, Def. CentraCare's Mem. [Docket No. 58]). For example, Defendant CentraCare fails to provide any evidence demonstrating the time or expense requires to interview these three discrete persons or the time and expense required to prepare a Rule 30(b)(6) deponent to provide testimony on the at issue paragraphs.
Here again, the at issue paragraphs of Plaintiffs' Second Amended Complaint contain factual allegations, and Defendant CentraCare denied those factual allegations. It is undisputed that these factual allegations are relevant to Plaintiffs' claims, and thus, the underlying factual basis for Defendant CentraCare's denial of those allegations is relevant to the present case. Plaintiffs are entitled to depose Defendant CentraCare's Rule 30(b)(6) deponents regarding Defendant CentraCare's denial of these factual allegations.[6]
Therefore, to the extent Defendant CentraCare's present Motion seeks an Order of this Court precluding Plaintiffs from seeking any Rule 30(b)(6) deposition testimony related to Defendant CentraCare's denial of paragraphs 71, 72, 76, 79, 80, 81, 82, 83, and 84 of Plaintiffs' Second Amended Complaint, Defendant CentraCare's Motion for a Protective Order, [Docket No. 56], is DENIED. Plaintiffs may depose Defendant CentraCare regarding the factual basis for Defendant CentraCare's denial of paragraphs 71, 72, 76, 79, 80, 81, 82, 83, and 84, in accordance with this Order.
B. Topic 2
Topic 2 of Plaintiffs' Second Amended Notice of Rule 30(b)(6) Deposition of CentraCare seeks deposition testimony on “[t]he factual basis for the following affirmative defenses in [Defendant CentraCare's] Answer to Plaintiffs' Second Amended Complaint: ¶¶ LX and LXII.” (Exhibit 155 [Docket No. 63-16]). Defendant CentraCare's relevant affirmative defenses are as follows:
LX.
CentraCare Defendants allege, as and for an affirmative defense, that if Decedent Erickson and/or Plaintiffs sustained any injury or damage, it was caused by the negligence of others or was caused by reason of factors and circumstances all of which were beyond the control of CentraCare Defendants.
...
LXII
CentraCare Defendants allege, as and for an affirmative defense, that any of CentraCare Defendants' acts or omissions, including those of their agents and employees, if any, were not the proximate cause of any losses or damages alleged in Plaintiffs' Second Amended Complaint and that the superseding cause of any such losses or damages consisted of intervening actions or inactions of Decedent Erickson or other third parties over whom CentraCare Defendants had no control.
(Def. CentrCare's Answer, [Docket No. 48], ¶¶ LX, LXII).
Defendant CentraCare argues that Rule 30(b)(6) deposition testimony regarding Topic 2 is improper because it “would be an invasion of both the attorney-client privilege and work product privilege.” (Def. CentraCare's Mem., [Docket No. 58], at 13). Defendant CentraCare argues that “[w]hile Plaintiffs may argue that they are only asking for the factual basis for these defenses, providing this information would in reality provide Plaintiffs with CentraCare Defendants' theory of the case and mental processes.” (Id. at 15).
Plaintiffs contend that Topic 2 is proper because inquiry into Topic 2 would not encroach on information protected by the attorney-client privilege or work product doctrine. (Plfs.' Mem., [Docket No. 62], at 20–24). Regarding Defendant CentraCare's affirmative defense at paragraph LX, Plaintiffs allege that Defendant “CentraCare refuses to provide basic information on this defense, including: What negligence? By who? When? How? What factors? What circumstances?” (Id. at 20). Regarding Defendant CentraCare's affirmative defense at paragraph LXII, Plaintiffs allege that Defendant “CentraCare refuses to provide basis for the defense, such as: Who or what caused Erickson's death? How? When? What is your factual basis for that assertion?” (Id. at 21). Plaintiffs contend they are permitted to seek Rule 30(b)(6) deposition testimony into these “very basic, fundamental, and fair areas of inquiry” to properly litigation this action. (Id. at 20).
Plaintiffs brings claims under both federal and state law. (Second Amended Compl. [Docket No. 32]). Some Courts, including Courts in this District, have found that “the Eighth Circuit has suggested that federal privilege law applies to federal question cases that include both federal and state claims.” Heilman v. Waldron, 287 F.R.D. 467, 473 (D. Minn. 2012); see, Evantigroup, LLC v. Mangia Mobile, LLC, No. 11-cv-1328 (CEJ), 2013 WL 141605, *2 (E.D. Mo. Jan. 11, 2013) (“The Eighth Circuit has not provided a definitive answer on how to apply Rule 501 to cases in which both federal and state claims are raised. However, courts have generally applied federal privilege law if the material sought is relevant to both federal and state claims.”); In re Bieter, 16 F.3d 929, 935 (8th Cir. 1994). Other courts faced with privilege questions arising in cases that include both federal and state law claims have analyzed the privilege issue under both federal common law and state law. See, Ewald v. Royal Norweigan Embassy, No. 11–cv–2116 (SRN/SER), 2014 WL 1309095, *5 (D. Minn. April 1, 2014).
Under both federal and Minnesota law, confidential communications between an attorney and his or her client ‘are absolutely privileged from disclosure against the will of the client.’ A party invoking privilege bears the burden of proving the factual basis for the assertion.
In the Eighth Circuit, attorney-client privilege applies when a communication is: (1) confidential; (2) between an attorney and client; and (3) for the purposes of obtaining legal services or advice. In Minnesota, the privilege applies:
(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to the purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
Id. at *6. (citation omitted).
Under both Minnesota and federal law, it is well-established that the party asserting the attorney-client privilege bears the burden of establishing it. United States v. Williams, 720 F.3d 674, 686 (8th Cir. 2013); Hollins v. Powell, 773 F.2d 191, 196 (8th Cir. 1985); Ewald, 2014 WL 1309095, at *6 (citing Minnesota state courts for the same assertion). The determination of whether or not the attorney-client privilege applies is an individualized determination that must be made for each discrete, individual discovery request or deposition question. See, UltiMed, Inc. v. Becton, Dickinson & Co., No. 6-cv-2266 (DSD/JJG), 2008 WL 4849034, at *3 (D. Minn. Nov. 6, 2008); In re Milk Prod. Antitrust Litig., 84 F. Supp. 2d 1016, 1028 (D. Minn. 1997), aff'd, 195 F.3d 430 (8th Cir. 1999).
Documents and information can also be protected by the work product doctrine which was established in Hickman v. Taylor, 329 U.S. 495 (1947). The doctrine is now outlined in Federal Rule of Civil Procedure 26(b)(3), which states, “ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Excluded from work product are “[m]aterials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purpose.” Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 501 (1970).
To establish that it anticipated litigation at the time that it created the work product, a party need not demonstrate that litigation was already in progress. See, Hickman, 329 U.S. at 498, 514. Determining whether a document was created in anticipation of litigation is a fact-driven assessment. Banks v. Wilson, 151 F.R.D. 109, 112 (D. Minn. 1993). To determine whether a document or information was prepared in anticipation of litigation:
The test should be whether, in light of the nature of the document [or information] and the factual situation in the particular case, the document [or information] can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.
Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987), cert. denied, 484 U.S. 917 (1987). The party asserting the privilege bears the burden of establishing that the information it seeks to protect was prepared in anticipation of litigation. PepsiCo, Inc. v. Baird, Kurtz & Dobson LLP, 305 F.3d 813, 817 (8th Cir. 2002). Like attorney-client privilege, the determination as to the applicability of the work product doctrine is an individualized assessment that must be made as to each individual document, question, or discovery request. See, Fed. R. Civ. P. 26(b)(3); Banks v. Wilson, 151 F.R.D. 109, 112 (D. Minn. 1993) (making individualized determination as to the applicability of the work product doctrine); UltiMed, Inc. v. Becton, Dickson, and Co., 6-cv-2266 (DSD/JJG), 2008 WL 4849034, at *3 (D. Minn. Nov. 6, 2008).
The individualized assessments related to the applicability of the attorney-client privilege and the work product are critical in the context of deposition testimony. That is because “[w]hen it is clear that a deponent is not being asked to reveal communication between client and lawyer or attorney work product, but rather to discuss facts, the claim of privilege is improper.” UltiMed, Inc. v. Becton, Dickson, and Co., 6-cv-2266 (DSD/JJG), 2008 WL 4849034, at *3 (D. Minn. Nov. 6, 2008).
In the present case, Defendant CentraCare generally asserts that any questioning into the facts underlying the two at issue affirmative defenses is improper.[7] On the record now before the Court, however, Defendant CentraCare has failed to demonstrate that Plaintiffs' Topic 2 seeks only information protected by attorney-client privilege or work product doctrine. Although there may be some information responsive to inquiry into Topic 2 which may be protected by the attorney-client privilege or the work product doctrine, that is not the same as finding that all answers responsive to Topic 2-questions will be protected by the attorney-client privilege or work product doctrine. Defendant CentraCare's “blanket assertion of privilege” simply “does not allow the court to assess the applicability of the privilege on a question-by-question basis.” UltiMed, Inc. v. Becton, Dickson, and Co., 6-cv-2266 (DSD/JJG), 2008 WL 4849034, at *3 (D. Minn. Nov. 6, 2008) (citing In Re Milk Prod. Antitrust Litig., 84 F. Supp. 2d 1016, 1028 (D. Minn. 1997)). Defendant CentraCare's assertion of privilege is too speculative at this time. See, In Re Milk Prod. Antitrust Litig., 84 F. Supp. 2d 1016, 1028 (D. Minn. 1997) aff'd, 195 F.3d 430 (8th Cir. 1999).
To be clear, the Court is not ordering that Defendant CentraCare's Rule 30(b)(6) deponents must provide information protected by the attorney-client privilege or the work product doctrine. Rather, the Court finds that Defendant CentraCare has failed to establish that said privilege applies to all information which could possibly be responsive to Topic 2. If there is underlying factual information responsive to Plaintiffs' deposition questions under Topic 2 then that is not protected, and Defendant CentraCare's Rule 30(b)(6) deponents must provide that responsive information, if asked.
Therefore, to the extent Defendant CentraCare's present Motion seeks an Order of this Court precluding Plaintiffs from seeking Rule 30(b)(6) deposition testimony related to facts underlying Defendant CentraCare's affirmative defenses at paragraphs LX and LXII, Defendant CentraCare's Motion for a Protective Order, [Docket No. 56], is DENIED.
IV. Conclusion
Therefore, for the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:
1. Defendant's Motion for a Protective Order, [Docket No. 56], is GRANTED in part and DENIED in part, as set forth herein;[8] and
2. Defendant CentraCare shall produce its Rule 30(b)(6) deponents in accordance with the present Order.
Footnotes
Nate Erickson is decedent Todd Erickson's son, Amanda Horn is decedent Todd Erickson's daughter, and Susan Bristlin is decedent Todd Erickson's “former wife.” (Second Amended Compl., [Docket No. 32], ¶¶ 14–16). Prior to the initiation of the present action, Nate Erickson, Amanda Horn, and Susan Bristlin were appointed as joint trustees to prosecute civil claims on Todd Erickson's behalf. (Id.).
Monell v. Dept. of Social Services of City of New York, 436 U.S. 658 (1978).
Moreover, during the discussions between Plaintiffs' counsel and Defendant's counsel prior to the filing of the present Motion, Plaintiffs' counsel specifically noted that it sought only the “factual basis for the denials” of the paragraphs at issue. (Exhibit F, [Docket No. 59-2], at 6–7). In those discussions, Plaintiffs' counsel reiterated that it was not seeking expert opinions and he “agree[d] CentraCare doesn't need to answer questions about legal conclusions or questions of law.” (Id.). In response to the present Motion, Plaintiffs continue to assert that they seek deposition testimony on only the facts underlying Defendant CentraCare's denial of the at issue paragraphs. (Plfs.' Mem., [Docket No. 62], at 15–19).
As a threshold matter, the Court notes that the factual assertions in paragraphs 9, 10, 87, and 91, which Defendant CentraCare denied, are at the heart of Plaintiffs' claims in the present case. Thus, information related to these factual assertions, and Defendant CentraCare's denial thereof, are relevant for purposes of discovery. See, Fed. R. Civ. P. 26.
Defendant “Kloos is a jailer for Defendant Todd County.” (Id. ¶ 24).
Defendant CentraCare also argues that it cannot provide Rule 30(b)(6) testimony regarding the alleged actions of Defendant Kloos in paragraphs 80 and 81 because Defendant Kloos is an employee of Todd County not CentraCare. Here again, Defendant CentraCare overlooks that it specifically denied these allegations in its Answer. (Answer, [Docket No. 48], ¶ XXIV). Defendant CentraCare's Answer does not contain any caveat regarding alleged actions taken by Defendant Kloos as described in those paragraphs; the Answer simply says “CentraCare Defendants deny the allegations contained in paragraphs 79-81 of Plaintiffs' Second Amended Complaint.” (Id.). If Defendant CentraCare had a factual basis underlying that denial, then Plaintiffs are entitled to discovery into that factual basis. In any event, the record now before the Court indicates that Plaintiffs seek to depose Defendant CentraCare's Rule 30(b)(6) deponents on CentraCare's understanding of the information its employees received from Defendant Kloos not the information Defendant Kloos alleges to have given CentraCare's employees.
In support of its generalized argument here, Defendant CentraCare relies on Inline Packaging, LLC v. Graphic Packaging Int'l, Inc., No. 15-cv-3183 (ADM/LIB), 2018 WL 9919939, at *9 (D. Minn. Jan. 23, 2018), and Elsherif v. Mayo Clinic, No. 18-cv-2998 (DWF/KMM), 2020 WL 5015825, at *2 (D. Minn. Aug. 25, 2020). Defendant CentraCare's reliance on these cases is, however, misplaced because each of these cases is materially distinguishable from the present case. In Inline, Graphic sought to depose Inline's Rule 30(b)(6) deponent regarding, among other things, all of Inline's legal contentions regarding claims in the case and the factual basis for those contentions, Inline, 2018 WL 9919939, at *9, and in Elsherif, Dr. Elsherif sought to depose defendant's Rule 30(b)(6) deponents regarding the “factual and legal bases” for all of the defendant's affirmative defenses. Elsherif, 2020 WL 5015825, at *2. In both Inline and Elsherif, the deposing party specifically sought to depose a Rule 30(b)(6) deponent regarding the legal bases for certain contentions and affirmative defenses. That is plainly not the circumstances of the present case.
To the extent relief is not expressly provided for herein, the request for that relief is denied.