*1 The above actions have been filed by Plaintiffs pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act (“SCTCA”), S.C. Code Ann. §§ 15-78-10 et seq.[1] (Dkt. No. 1-1.) They are a few of the many actions currently before the undersigned that have been filed by Plaintiffs’ counsel concerning inmate violence and understaffing at SCDC. See, e.g. Battle v. SCDC et al., 2:18-cv-719-TMC-MGB; James Bethel, et al. v. SCDC, et al., 4:18-cv-1343; Dexter Crawford v. SCDC, et al., 6:18-cv-2407; Craig Ellerbe v. SCDC, et al., 6:19-cv-96; Jamarcus Murray v. SCDC, et al., 6:19-cv-100. On August 13, 2019, the undersigned held a Global Status Conference, in which counsel in all the cases within this category appeared. (Dkt. No. 90.) Currently before the Court is Defendants’ Motion for Protective Order (Dkt. No. 111), and Plaintiffs’ Motion for Oral Arguments, Expedited Motion for Production of Records, and Motion for Sanctions. (Dkt. No. 114). Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Rule 73.02(B)(2)(d), D.S.C., this matter has been assigned to the undersigned for all pretrial proceedings.

On September 24, 2019, the Court issued a Text Order, in which it ruled on the above Motions. (Dkt. No. 115.) Specifically, the Court denied in part and granted in part Defendants’ Motion for Protective Order, ordering Defendants to produce the following documents upon issuance of the Text Order: all email communications between Tom Roth and SCDC personnel, Bates No. 53001-53305, and all attachments to those emails, Bates No. 001-1689, with the exception of the Implementation Panel Report, Bates No. 531-612. In the same Text Order, the Court denied Plaintiffs’ Motion for Oral Arguments to the extent Plaintiffs seek a hearing on the Motion for Protective Order, granted Plaintiffs’ Expedited Motion for Production of Records that Mr. Roth reviewed in making his report, and held in abeyance Plaintiffs’ Motion for Sanctions. The Text Order advised that a more detailed Order was forthcoming. This Order provides more detailed reasons for the Court's rulings.

Parties to a civil litigation may obtain discovery on “any nonprivileged matter that is relevant to any party's claim or defense” so long as the information is “proportional to the needs of the case....” Fed. R. Civ. P. 26(b)(1). However, the court “must limit the frequency or extent of discovery ... if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). Therefore, the court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” by forbidding the discovery of the material at issue. Fed. R. Civ. P. 26(c)(1).

*2 In addition, Rule 37 of the Federal Rules of Civil Procedure provides that if a party fails to respond to discovery, the party seeking discovery may move for an order compelling production. “The scope and conduct of discovery are within the sound discretion of the district court.” Columbus–Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995); see also Carefirst of Md, Inc. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 402 (4th Cir. 2003) (“Courts have broad discretion in resolution of discovery problems arising in cases before [them].”); Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992) (“On relevancy matters, the trial court has broad discretion.”); LaRouche v. Nat'l Broad. Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (“A motion to compel discovery is addressed to the sound discretion of the district court.” (citation omitted)).

A. Defendants’ Motion for Protective Order (Dkt. No. 111)

Defendants’ Motion for Protective Order asks that the Court protect “certain communications between a non-party witness, Tom Roth, and SCDC.” (Dkt. No. 111 at 6.) The communications at issue in the instant Motion have been provided to the Court for in camera review—they consist of emails exchanged between Tom Roth and SCDC and the attachments to those emails. (Dkt. Nos. 114-1; 144-2.) As background, Tom Roth is the individual who drafted the “Roth Report,” dated March 2018, in connection with a confidential settlement of another case against SCDC (the “Mental Health Settlement”). The Roth Report focuses on staffing levels at SCDC. The admissibility of this Report has been briefed on many occasions, as discussed further below.

In their Motion, Defendants first briefly argue that these communications should be protected under Rule 26(b)(1), Fed. R. Civ. P. because they are “not relevant to the plaintiff's claims in this action.” (Dkt. No. 111 at 6.) However, Defendants offer no argument as to how the communications at issue are not relevant here. Defendants next contend that these communications are “privileged and confidential under Local Rule 16.08(c), Federal Rule of Evidence 501, and South Carolina Alternative Dispute Resolution Rule 8.” (Id.)

Local Civil Rule 16.08 pertains to the “Duties of the Parties, Representatives, and Attorneys at Mediation.” Defendants argue this Rule is relevant here because it provides that

(Local Civil Rule 16.08.) Defendants cite Rule 501 of the Federal Rules of Evidence to argue that “state law governs privilege.” (Dkt. No. 111 at 6.) Defendants further cite SC ADR Rule 8 for its provisions regarding the privilege and confidentiality of the mediation process. (Id.)

Notably, the undersigned has addressed the relevance and discoverability of the Roth Report on numerous occasions in many of the cases that were included in the Global Status Conference. In these rulings, the Court found the Roth Report relevant and admissible. These rulings state, in relevant part:

*3 Battle v. SCDC et al., 2:18-cv-719-TMC-MGB, Dkt. No. 114 at 3.

(Dkt. No. 67 at 2.)

(Dkt. No. 79 at 3.)

Moreover, in a prior ruling, the Court expressly rejected the argument Defendants proffer here that documents should necessarily be privileged if they are created in connection to a settlement agreement:

(Dkt. No. 79 at 4.)

Here, Defendants ignore these prior rulings by the Court in arguing for the protection of the documents at issue in the instant Motion. The Court again finds Defendants’ arguments to be without merit. As an initial matter, Defendants mistakenly contend that state law governs privilege in these cases under Rule 501 of the Federal Rules of Evidence. Precedent mandates that federal privilege law apply here where the sought documents are relevant to both the federal and state claims in these cases. Specifically, the Fourth Circuit has found that “in a case involving both federal and state law claims, the federal law of privilege applies.” Virmani v. Novant Health Inc., 259 F.3d 284, 293 n.3 (4th Cir. 2001) (citing Fed. R. Evid. 501); see also W.S. v. Daniels, 258 F. Supp. 3d 640, 644–45 (D.S.C. 2017) (“The United States Court of Appeals for the Fourth Circuit has resolved the potential conflict between federal and state privilege law in favor of federal privilege law.... Therefore, for resolution of the present discovery dispute, concerning material relevant to both federal and state law claims, the Court will apply federal privilege law.”). Regardless, Defendants have not offered any argument that South Carolina recognizes any sort of “settlement privilege” or that such a privilege is recognized under federal law. The Court's independent research on this issue belies such an argument. See, e.g., ContraVest Inc. v. Mt. Hawley Ins. Co., No. 9:15-CV-00304-DCN, 2018 WL 5281951, at *3 (D.S.C. Oct. 24, 2018) (“Mt. Hawley cites to no South Carolina case law discussing a mediation privilege and the court's own research did not reveal any case law on this issue.”); Nat'l Union Fire Ins. Co., 2012 WL 628493, at *3 (“[T]he Fourth Circuit has not imposed a settlement privilege with respect to discovery.”).

*4 Defendants rely solely on the United States Supreme Court case, Jaffee v. Redmond, 518 U.S. 1 (1996), to argue that the Court should find the communications privileged here. (Dkt. No. 111 at 6–9.) In Jaffee, the Court considered whether it was appropriate for federal courts to recognize a “psychotherapist privilege” under Rule 501, Fed. R. Evid. In deciding to recognize this privilege, the Court noted that “the psychotherapist-patient privilege is ‘rooted in the imperative need for confidence and trust’ ”; “the psychotherapist privilege serves the public interest”; “the likely evidentiary benefit that would result from the denial of the privilege is modest”; and “all 50 States and the District of Columbia have enacted into law some form of psychotherapist privilege.” Jaffee, 518 U.S. at 12.

Here, as noted above, there is no indication that South Carolina recognizes a settlement privilege and the Fourth Circuit also does not recognize a settlement privilege. There is no reason to find that Jaffee compels recognizing a settlement privilege in this instance, as Defendants suggest. Indeed, “privileges are not lightly created, because privileges contravene the fundamental principle that the public ... has a right to every man's evidence.” Virmani, 259 F.3d at 287 (citations omitted). Moreover, courts in this circuit have recently rejected arguments to protect certain discovery under an alleged federal settlement privilege, as mentioned in this Court's prior rulings. (Dkt. No. 79.) In Nat'l Union Fire Ins. Co., the court noted that “the Fourth Circuit has not imposed a settlement privilege with respect to discovery. To the contrary, courts in this circuit have found that ‘relevance not admissibility, is the appropriate inquiry with regard to whether or not the information sought ... is discoverable.’ ” 2012 WL 628493, at *3 (citations omitted). The court went on to permit discovery of the settlement-related materials, noting the information “did not include settlement figures or evidence of negotiations or compromise.” Id. Similarly, in Wilshire, the court stated that “[t]he Fourth Circuit has never recognized a settlement privilege or required a particularized showing that admissible evidence will be generated when confidential settlement documents are sought.... Accordingly, the only question before the Court [is] ... ‘whether any information in the ... agreement is relevant, and not unduly burdensome to produce.’ ” 2015 WL 1643456, at *3 (citations omitted). The court ultimately found the settlement agreement was discoverable. Id.

In light of the foregoing, the controlling question before the Court is whether the communications at issue are relevant and not unduly burdensome to produce. Fed. R. Civ. P. 26(b)(1). Notably, Defendants offer no argument as to why the sought information is not relevant. The Court has reviewed the communications at issue. All of the emails and almost all of the attachments to those emails pertain to: (1) Tom Roth's efforts to gather information needed to draft his Report; or (2) Tom Roth's findings made in the Report relevant to staffing levels. There is one attachment, a December 2017 Implementing Panel Report, Bates No. 531-612, that primarily concerns mental health issues. All of the other documents relate to the Roth Report, which as stated above, “is relevant to the issues in this case—it addresses the understaffing issues faced by the South Carolina Department of Corrections. The Roth Report is only tangentially related to the Mental Health Settlement.” (Dkt. No. 67 at 2.) Moreover, Mr. Roth has provided his Consulting Agreement with SCDC to the Court, and it does not mention the Mental Health Settlement. See Bartlette et al. v. South Carolina Department of Corrections et al. 2:19-mc-00310-RMG-MGB, Dkt. No. 10-1. For the same reasons the Court has previously found the Roth Report to be relevant, the communications and attachments at issue are likewise relevant to this case. Wilshire, 2015 WL 1643456, at *1 (“Relevant information is a broader concept than admissible evidence. To be relevant, information need only be calculated to lead to the discovery of admissible evidence, it need not be admissible itself.”). Further, their production is not unduly burdensome as the documents have already been provided to the Court.

*5 For the above reasons, the Court DENIES IN PART and GRANTS IN PART Defendants’ Motion for Protective Order (Dkt. No. 111). Specifically, the Court finds that Defendants must immediately produce all email communications between Tom Roth and SCDC personnel, Bates No. 53001-53305, as indexed in Exhibit A to their Motion and as provided to the Court. In addition, Defendants must immediately produce all attachments to those emails, Bates No. 001-1689, as indexed in Exhibit B to their Motion, with the exception of the Implementation Panel Report, Bates No. 531-612. The Court has previously ruled such Implementation Panel Reports are subject to confidentiality under the Mental Health Settlement (Dkt. No. 69) and, upon review, the Report at issue primarily concerns mental health issues rather than staffing levels generally. The produced documents are subject to the Confidentiality Order (Dkt. No. 16) in this case. In addition, these documents are for attorneys’ eyes only. Counsel must obtain the Court's permission if they wish to share any of these produced documents with their clients.

B. Plaintiffs’ Motion for Oral Arguments, Expedited Motion for Production of Records, and Motion for Sanctions (Dkt. No. 114)

Plaintiffs’ Motion asks for the “Production of Records, previously ordered, regarding Tom Roth's communications with SCDC and the underlying documents he reviewed in making his Report.” (Dkt. No. 114 at 2.) The production of Tom Roth's communications with SCDC is at issue in Defendants’ Motion for Protective Order. As discussed above, the Court has denied Defendants’ Motion and ordered Defendants to produce those communications to Plaintiff. Accordingly, the only remaining issue here is the production of “the underlying documents [Tom Roth] reviewed in making his Report,” to the extent such documents are not included in the above communications between SCDC and Tom Roth that the Court has ordered be produced.

In their Motion, Plaintiffs provide a detailed account of their efforts to obtain the documents Tom Roth reviewed in making his Report. They assert that Defendants’ conduct detailed herein amounts to “discovery abuses” and move for sanctions pursuant to Local Civil Rule 7.09.[2] (Dkt. No. 114 at 7–8). Plaintiffs first note that Mr. Roth's deposition is noticed for September 30, 2019, and they refer to the various motions Defendants and Mr. Roth filed to prevent that deposition, which the Court has denied. See, e.g., Ellerbe v. South Carolina Department of Corrections et al. 6:19-cv-00096-RMG-MGB, Dkt. No. 32; Bartlette et al. v. South Carolina Department of Corrections et al. 2:19-mc-00310-RMG-MGB, Dkt. No. 22 (denying Mr. Roth's motion to stay the deposition).

Plaintiffs state that their April 15, 2019 discovery requests to Defendants asked for, inter alia, “all documents which were produced to Tom Roth.” (Dkt. No. 114 at 3.) They state that Defendants provided an untimely response to these requests and told Plaintiffs “we do not have any materials accumulated that were provided to Tom Roth.... It appears evident from his report that he visited each institution but we do not have a list of materials he reviewed in preparing his report.” (Id.) The July 12, 2019 Order from Judge Gergel on Plaintiff Wilson's Motion to Compel, stated, “To the extent Plaintiff seeks underlying facts and data from Roth, that information is best secured through a subpoena under Rule 45.” See Wilson v. Eagelton et al., 1:18-cv-00050-RMG-MGB, Dkt. No. 126 at 7.

Accordingly, on July 24, 2019, Plaintiffs served a subpoena on Tom Roth for his deposition along with a request for certain documents including “copies of all materials used in the preparation of your report.” (Dkt. No. 114 at 4.) According to Plaintiffs, Defendant SCDC informed them on August 13, 2019 that Mr. Roth “was not provided any documents from SCDC and that he (Roth) went institution to institution.” (Id. at 5.) Plaintiffs state they were then informed by Mr. Roth that “all documents requested in his subpoena were duplicative and were in the possession of the South Carolina Department of Corrections.” (Id.) The Court held a status conference on September 18, 2019, to discuss the parties’ discovery disputes as to the documents related to Thomas Roth's subpoena. (Dkt. No. 104.) Following that Status Conference, the Court entered a Text Order, ordering both parties to provide “a Status Report on the production of records that Mr. Roth states he relied on in creating the Roth Report, as outlined on pages 9 through 10 of the Roth Report, and as discussed at the Sept. 18, 2019 Status Conference.” (Id. at 5.)

*6 Plaintiff filed a Status Report on September 23, 2019, stating that they “have not received any documents responsive to their request for records that Mr. Roth states he relied on in creating the Roth Report nor have the Plaintiffs received any update by the Defendants regarding the status of the above referenced production since the Status Conference.” (Dkt. No. 110.) Defendants filed a Status Report that same day, stating only, “Defendants move for an extension to file a status report pursuant to ECF 162. Defendants have had insufficient time to confer with their clients to determine what Tom Roth considered in his assessment other than what has been listed in the Roth Report, p. 9-10.” (Dkt. No. 112 (emphasis added).) Notably, Defendants’ Status Report did not address any efforts to produce the documents that Mr. Roth stated he relied on as listed in the Roth Report, pages 9-10.

At this point, the Court cannot discern why Defendants have failed to produce the documents Mr. Roth relied on in making his Report, particularly the documents listed on pages 9 and 10 of the Report. The record is inconsistent as to whether these documents are unavailable to SCDC. While Defendants have maintained that SCDC did not keep a list of the materials Mr. Roth reviewed, the documents are detailed on pages 9-10 of the Roth Report and Defendants have been able to produce certain communications between SCDC and Mr. Roth. The Court therefore GRANTS Plaintiffs’ Motion for Production of Records that Mr. Roth reviewed in making his Report. Accordingly, Defendants are ORDERED to produce, immediately, to Plaintiffs’ counsel all documents Mr. Roth relied on from SCDC to draft his Report. The produced documents are subject to the Confidentiality Order (Dkt. No. 16) in this case. In addition, these documents are for attorneys’ eyes only. Counsel must obtain the Court's permission if they wish to share any of these produced documents with their clients. To the extent Defendants cannot identify the materials that Mr. Roth reviewed in making his Report, that will be explored at a hearing on Plaintiffs’ Motion for Sanctions, to be scheduled at a later date. The Court HOLDS IN ABEYANCE Plaintiffs’ Motion for Sanctions, to be decided after a hearing is held on the Motion. Finally, the Court DENIES Plaintiffs’ Motion for Oral Arguments to the extent Plaintiffs seek a hearing on the Motion for Protective Order.

Also, with respect to Mr. Roth's deposition on September 30, 2019, the Court finds that the parties are permitted to question Mr. Roth fully about matters potentially relevant to their claims and defenses. Any testimony given by Mr. Roth is covered by the Confidentiality Order in this case, including his report, his conclusions, any data collected, and any witnesses interviewed.

For the foregoing reasons, the Court DENIES IN PART and GRANTS IN PART Defendants’ Motion for Protective Order (Dkt. No. 111). The Court further DENIES Plaintiffs’ Motion for Oral Arguments to the extent they seek a hearing on the Motion for Protective Order, GRANTS the Motion for Production of Records that Mr. Roth reviewed in making his report, and HOLDS IN ABEYANCE Plaintiff's Motion for Sanctions (Dkt. No. 114).

IT IS SO ORDERED.