*1 BEFORE THE COURT is Plaintiff's Sealed Third Motion to Compel Production of Documents and Privilege Logs from Providence (ECF No. 178). The matter was submitted for consideration without oral argument. The Court has reviewed the record and files herein and is fully informed. For the reasons discussed below, the Court DEFERS ruling on Plaintiff's motion to compel materials which Providence received from Dr. Yam until it has completed an in camera review of those documents and DENIES Plaintiff's motion to compel materials which Providence allegedly sent to DOJ.

This case arises out of a medical malpractice case brought by Plaintiff Cyde Estes against her treating physician, Defendant Jason Dreyer, and her physician's employer, Defendant Providence Health & Services – Washington (Providence). Plaintiff seeks documents generated by Dr. David Yam, the relator in an underlying qui tam action against Providence, as well as undisclosed documents allegedly provided by Defendants to the Department of Justice (DOJ) during the qui tam lawsuit.

I. Conferral Requirement

As a threshold matter, Defendant Providence asserts that Plaintiff failed to fulfill the “meet and confer” requirement of Rule 37. See Fed. R. Civ. P. 37(a)(1) (“The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.”); see also L.Civ.R. 37 (same).

Plaintiff's attorney avers that she and co-counsel made multiple attempts to “confer in good faith with counsel for Providence via telephone, emails, and letters.” ECF No. 179 at 2, ¶ 2. In support of this assertion, Plaintiff offers various emails as well as a letter sent to defense counsel on December 13, 2023. ECF Nos. 179-9; 186-2. The letter summarizes a conferral teleconference the parties held two days earlier, on December 11, 2023, and the outstanding discovery issues that remained. ECF No. 179-9. The letter concludes by advising, “If you have changed your mind and agree to produce the requested documents ... [or] [i]f you believe any part of this letter is not correct, please call me immediately.” Id. at 4.

Defendant does not deny that a conferral conference took place on December 11 or that it received the December 13 letter from Plaintiff. ECF No. 183 at 4. Instead, Defendant argues that Plaintiff's engagement in conferral on discovery issues thus far has been insincere and that Plaintiff refuses to cooperate with Defendant to narrow the issues before the Court. Id. at 3-4. Defense counsel attests that she called Plaintiff's counsel on January 26, 2024, and expressed “a sincere desire” to narrow the remaining issues. ECF No. 184 at 1-2, ¶ 2. Defense counsel also complains that Plaintiff's attorneys habitually fail to confer in good faith on discovery matters. ECF Nos. 183 at 3; 184 at 2-3, ¶ 4.

The Court was not a party to the parties' private negotiations and has no insight into whether Plaintiff's attempts to narrow the issues before the Court were genuine or not. From the briefings and opposing declarations, it is apparent that multiple conferral conferences did take place. At the very minimum, the December 13 letter establishes that Plaintiff's counsel met with defense counsel on December 11 and forewarned defense counsel that they would seek a court order if the issues presented in the letter were not resolved by further negotiations. Plaintiff's attorneys extended defense counsel the professional courtesy of waiting until January 10, 2024—approximately one week after defense counsel returned from a period of unavailability—to file the motion to compel. See ECF Nos. 147 (notice of unavailability); 178 (sealed motion to compel). The evidence before the Court suggests that defense counsel did not pursue further negotiations in the interim but instead waited until January 26—the same day Defendant's response here was due—to reopen the line of communication. ECF No. 184 at 1-2, ¶ 2.

*2 In view of these facts, it is clear that an independent resolution of the issues by the parties without judicial intervention is unlikely. See U.S. v. Hempfling, 385 F. App'x 766, 768 (9th Cir. 2010). The Court therefore finds the conferral requirement of Rule 37(a)(1) satisfied. For similar reasons, the Court is uninterested in revisiting Plaintiff's alleged failure to confer on issues that were the subject of previous discovery orders.

II. Dr. Yam Materials

Plaintiff contends that Defendant Providence is withholding materials generated by Dr. Yam. ECF No. 178 at 5.[1] Plaintiff claims that just before the deposition of Dr. Yam on November 15, 2023, Defendant gave Plaintiff a 69-page document titled “Yam Thumb Drive Index.” Id.; see ECF no. 179-1. The thumb drive index organizes documents received from Dr. Yam by subject and dates (e.g., “Dreyer Exit, 6/2018 -2/2019”), gives each document a general label (e.g., “Email: Concerns”), gives each document a Bates number, and, where applicable, asserts a privilege. ECF No. 179-1. Several of the documents bear the same label; for instance, “Email: Review” appears forty times. Id.

According to Plaintiff, from the approximately 21,600 pages of documents listed on the thumb drive index, Defendant only produced 871 pages. ECF No. 178 at 6. She also argues that the Bates numbers described by the index do not match any of the documents that Providence gave her. Id. at 6. Further, Plaintiff asserts that an earlier privilege log compiled by Providence in December 2022 has not been updated since then to reflect the addition of documents in the thumb drive index and to include Bates numbers and document descriptions. Id. at 5-6; see also ECF No. 179-2 (privilege log).

The apparent omissions in the thumb drive index and privilege log have led Plaintiff to believe that Defendant is intentionally withholding non-privileged documents created by Dr. Yam. ECF No. 178 at 7. Plaintiff believes that these materials may be relevant to her subpoena to Dr. Yam as well as numbers 5, 8, 9, 10, 19, 21, 25, 26 and 29 of her requests for production. Id.

Plaintiff requests all documents described in the Yam thumb drive index and all documents described in the 2022 privilege log. ECF No. 178 at 15. Plaintiff contends that no peer review or quality improvement privileges apply to these documents. Id. Alternatively, Plaintiff asks that Defendant be ordered to update its discovery responses and to produce a privilege log with sufficient information to enable Plaintiff to assess the applicability of the asserted privileges and so Plaintiff may know which, if any, documents have already been produced. Id.

Defendant offers three general responses to Plaintiff's claims. First, Defendant argues that the thumb drive index was only offered to Plaintiff as a matter of professional courtesy and not as a waiver of any privilege. ECF No. 183 at 4. According to Defendant, when the thumb drive was received from Dr. Yam, it was extremely disorganized, and Defendant was left to organize those materials itself. Id. at 5. Second, Defendant maintains that it already handed over all requested, non-privileged documents from Dr. Yam, and that the thumb drive index only includes items which are either non-responsive to the subpoena and requests for production and/or privileged. Id. Third, Defendant says that all documents protected by privilege are listed on the December 2022 privilege log. Id. at 8-12.

*3 Defendant believes that Plaintiff should either propound additional, more specific requests for discovery of materials listed on the thumb drive, ECF No. 183 at 6, or that the Court should conduct an in camera review of all the documents to determine what information qualifies as privileged, id. at 11.

Under Rule 26(b)(5), a party withholding information on the basis of an asserted privilege must expressly claim the privilege and describe the nature of the documents or materials “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). Where a significant amount of documents are at issue, as here, then the court may take a more flexible approach in determining whether the privilege log is sufficient. See Fed. R. Civ. P. 26(b)(5) advisory committee's note to 1993 amendment (“The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter ... may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be decided by categories.”). See also Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) (holding that district courts should make a “holistic,” “case-by-case determination” of whether the privilege log was adequate).

The privilege log contains general descriptions of many of the Yam documents and asserted bases of privilege as of December 2022. The log also categorizes a large amount of documents—over 700 pages—as still under examination. ECF No. 179-2 at 3 (“The following documents are still being examined. They are large compilations of patient records, emails, peer review reports, various miscellaneous documents, and duplicative documents.”). While the general document descriptions and asserted privileges may be sufficient to generally appraise Plaintiff and the Court of which documents are being withheld, the privilege log is arguably deficient in the fact that it includes hundreds of pages of documents withheld without any description or asserted privilege. Arguably, the thumb drive index could be said to serve as an independent, updated privilege log as of November 15, 2023, but it was not apparent to the Court from the parties' briefings whether the materials listed on the privilege log were different from the materials listed in the thumb drive index. While Defendant's assertion that all documents listed on the thumb drive index have not been produced explains Plaintiff's concern that the Bates numbers listed on the thumb drive index do not match the documents in her possession, it does not answer whether the privilege log materials list (which lacks Bates numbering) and index documents overlapped. See ECF No. 183 at 5

Nevertheless, given the magnitude of materials in issue and the Court's decision to review certain groups of documents in camera, it would be a waste of time for the Court to order Defendant to create an updated privileged log at this stage. The Court reserves the authority to order Providence to create an updated privileged log at the conclusion of its in camera review.

*4 The Court agrees with Defendant that Plaintiff's request for “all” materials contained on the thumb drive index and privilege log is overbroad, but Plaintiff's suspicion of the materials is not unreasonable. It appears that many of these documents are relevant to Plaintiff's subpoena and requests for production and are unprotected by any asserted privilege.

The subpoena duces tecum to Dr. Yam requests the following:

ECF No. 179-3 at 2, ¶ 1 (emphasis added); see also, e.g., ECF No. 179-7 (request for production number 9, requesting any comments, concerns, or complaints regarding Dr. Dreyer).

Several of the categories listed on the thumb drive index appear relevant to this subpoena/request, such as “Re: Dreyer” and “Dreyer Exit.” Similarly, several other categories seem to be responsive to Plaintiff's related requests for production to Providence.[2] For example, request number 5 asks for information pertaining to St. Mary's RVU rates, and one category of materials on the index lists “RVU's Neurosurgery Compensation.” ECF Nos. 179-1 at 16; 179-7 at 6. Therefore, Defendant's claim that the index documents are nonresponsive to the Yam subpoena and related requests for production appears dubious. Similarly, many descriptions of documents listed on the privilege log—to the extent they differ from materials on the thumb drive—also appear potentially relevant. See, e.g., ECF No. 179-2 at 1 (capturing emails from Dr. Yam that Defendant classifies as “for use during peer review” during times when Dr. Yam was not on any committee but raising concerns about Defendant Dreyer).

Moreover, many of the asserted privileges seem inapplicable. Defendant resurrects the same arguments regarding the quality improvement privilege, peer review privilege, attorney client privilege, and work product privilege as it made in previous discovery disputes. For instance, Defendant claims that the material is protected because “Dr. Yam consistently brought to defendant's attention the problems he had with Dr. Dreyer's work, sparking both peer and quality improvement reviews.” ECF No. 183 at 10. However, this Court has now explained to Defendant on multiple occasions that information generated outside of a peer review or quality improvement committee is discoverable, even if that information sparks certain committee or review investigations. See ECF No. 165 at 6, 8; see also, e.g., Lowy v. PeaceHealth, 174 Wash. 2d 769, 787 (2012) (the quality improvement privilege “does not protect what goes into or comes out of the quality improvement committees”) (emphasis added). Dr. Yam testified at his deposition that he conducted the reviews of Defendant Dreyer's practice “on [his] own time” and that he was not on any peer review or quality improvement committee at the time of his investigations. ECF No. 179-4 at 4-5, 8. Indeed, Dr. Yam's attorney even explicitly stated at the beginning of his deposition that “Dr. Yam does not believe and does not have any basis to believe that anything he was doing that pertains to this case is subject to any peer review privilege.” Id. at 2. Therefore, the Court has serious doubts as to the applicability of the asserted privileges.

*5 Rather than ordering Defendant to produce all documents on the thumb drive index, the Court will conduct an in camera review of certain potentially relevant categories of materials on the index to determine whether they are relevant to Plaintiff's subpoena request, requests for production, and/or privileged. See In re Grand Jury Investigation, 974 F.2d 1068, 1075 (9th Cir. 1992) (the court may conduct an in camera inspection where the factual basis reasonably supports that information in the materials may not be privileged). This in camera review is intended to protect irrelevant or otherwise privileged documents from disclosure to Plaintiff and to reduce the burden of production on the parties. Defendant will provide the Court with the following categories of documents listed on the thumb drive index for in camera review:

For the same reasons, the Court will defer ruling on whether items on the privilege log are subject to disclosure until it has had an opportunity to conduct an in camera review of those documents. The documents on the privilege log are less compartmentalized than those on the Yam index drive. See ECF No. 179-2. The Court therefore orders Defendant to produce all documents on the privilege log authored by Dr. Yam or suspected of being authored by Dr. Yam, including those documents by Dr. Yam or suspected of being authored by Dr. Yam which the log asserts “are still being examined.” Id. at 3. Pending the outcome of that decision, the Court will determine whether an updated privilege log needs to be circulated and the propriety of requiring Defendant to pay Plaintiff's attorney's fees and expenses in bringing this motion. See Fed. R. Civ. P. 37(a)(5)(A).

III. DOJ Documents

As a final matter, Plaintiff presses that Defendant has failed to produce all documents it provided to DOJ in the underlying qui tam action. ECF No. 178 at 12-14. Plaintiff believes that Defendant is withholding documents because Defendant refuses to provide an index or the record of cover communications it transmitted with the materials originally sent to DOJ in the qui tam. ECF No. 185 at 9-10. Defendant, on the other hand, protests that it handed over all materials sent to DOJ in the qui tam per the Court's order at ECF No. 120., and says that there is no index or cover communication showing all the documents it sent to DOJ. ECF No. 183 at 6-7.

Plaintiff's submission that Defendant did not follow this Court's order at ECF No. 120 is entirely speculatory. In the absence of any evidence establishing that Defendant did not send all qui tam DOJ materials within its possession to Plaintiff, the Court assumes that Defendant followed the Court's order. Accordingly, the motion to compel as to this issue is denied.

*6 ACCORDINGLY, IT IS HEREBY ORDERED: