2008 U.S. Dist. LEXIS 36101, *

ELLA MAE HOWARD, Administratrix of the Estate of Valeria Whetsall, deceased, o/b/o the Estate of Valeria Whetsall and o/b/o the wrongful death heirs, ET AL., Plaintiffs, vs. RAMON C. RUSTIN, individually and in his official capacity as Warden of the Allegheny County Jail, ET AL., Defendants.

Civil Action No. 06-00200

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

2008 U.S. Dist. LEXIS 36101


April 30, 2008, Decided
April 30, 2008, Filed

MEMORANDUM ORDER

This matter is before the Court on the following motions: (1) Motion to Compel Bruce Dixon M.D. to Answer Questions at Deposition Upon Oral Examination [86]; (2) Motion to Compel Michael Patterson Sr., M.D. to Answer Questions at Deposition Upon Oral Examination[88]; and (3) Motion to Compel Lucille Aiken, M.D. to Answer Questions at Deposition Upon Oral Examination [89], all filed by Plaintiffs Ella Mae Howard on behalf of Valeria Whetsall, Edward Sartori, and Dianne Sartori ("Plaintiffs"). 1 On April 14, 2008, Defendant Ramon C. Rustin, Allegheny County, Dan Onorato, and John and James Doe filed their Response to Plaintiffs' Motions to Compel by Defendants' Rustin Onorato, John Doe, James Doe, and Allegheny County (Docket No. 90), in which they assert said disputes [*3] concern questions directed to individuals represented by separate counsel and hence they decline to substantively respond, except to assert that said motions are "inappropriate and should be denied." On April 18, 2008, Defendants Allegheny Correctional Health Services, Inc. Click for Enhanced Coverage Linking Searches, Bruce Dixon, and Dana Phillips ("Allegheny Health Defendants") filed their respective responses to Plaintiffs' motions. (See Docket Nos. 102, 103, & 105).

FOOTNOTES

1 Plaintiffs filed the initial two motions on April 7, 2008 and the last motion on April 8, 2008.


By way of brief background, Plaintiffs brought this action against all Defendants for wrongful death based on negligence and various civil rights violations, including, inter alia, §§ 1983, 1985, 1986 of Title 42 of the United States Code as well as the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that the decedents Valeria Whetsall and Amy Lynn Sartori were inmates at the Allegheny County jail who contracted methicillin-resistant staphylcoccus aureus ("MRSA") due to substandard medical care at the Allegheny County jail. Whetsall and Sartori died on March 21, 2005 and March 20, 2005, respectively. The Court will address each [*4] motion to compel in turn.

I. Motion to Compel as to Bruce Dixon, M.D.

On December 10, 2007, Plaintiffs' counsel deposed Defendant Bruce Dixon, the Chairman of the Board of Directors of Allegheny Correctional Health Services. Click for Enhanced Coverage Linking Searches2 Counsel for the Plaintiffs seek an order from the Court compelling Defendant Dixon to re-appear for a deposition and answer questions regarding (1) whether he made a request to the Allegheny County legal department as to the release of information about infectious diseases; and (2) whether if Defendant Dana Phillips made a medical decision regarding inmates, the same would violate Allegheny County Health Services' policies and procedures. (Docket No. 86). Counsel for Allegheny Health Defendants objected asserting attorney-client privilege and an improper hypothetical question, respectively.

FOOTNOTES

2 Dr. Dixon never treated either of the Plaintiffs' decedents.


1. Attorney-client privilege

At the deposition, Plaintiffs' counsel asked Defendant Dixon whether, at any time prior to 2005, he had made any request of the Allegheny County legal department to determine whether he could release information about infectious diseases to guards and/or inmates at the Allegheny County jail [*5] according to the parameters of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Counsel for Allegheny Health Defendants objected and instructed the witness not to answer the question based on attorney-client privilege. After counsel clarified the question to be only seeking an answer as to whether Defendant Dixon, in fact, made a request to the Allegheny County legal department, counsel for Allegheny Health Defendants again objected and instructed Dixon not to answer any questions related to his dealings with the Allegheny County legal department because the same posed a hypothetical question.

Before turning to the substance of the Allegheny Health Defendants' argument, as this Court has federal question jurisdiction over the instant matter, the Court will look to federal law. See Fed.R.Evid. 501 cmt. ("In nondiversity jurisdiction civil cases, federal privilege law will generally apply"). "Nonetheless, the Third Circuit and the state of Pennsylvania apply the same test in evaluating attorney-client privilege." Rhone-Poulenc Rorer v. Home Indem. Co., 32 F.3d 851, 861 (3d Cir. 1994) ("No one has argued, however, that there are any principles or rules of law [*6] as to the attorney client privilege unique to Pennsylvania that should control the resolution of our decision on these matters"); see also Gilliland v. Geramita, No. 2:05-CV-01059, 2006 U.S. Dist. LEXIS 65546, 2006 WL 2642525, at *2 n.2 (W.D. Pa. Sept. 14, 2006) (noting the lack of differences between Pennsylvania law and federal common law as to the attorney-client privilege). Thus, the Court will also look to Pennsylvania law for guidance. 3

FOOTNOTES

3 Moreover, while Plaintiffs cite no case law in support of their motion, the Allegheny Health Defendants cite and rely upon Pennsylvania law in support of their assertion of the privilege.


The elements of the attorney client privilege under federal law are:

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance [*7] in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979) (quoting United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358-59 (D. Mass. 1950)). 4 The burden of proving that information is protected by attorney-client privilege is on the party asserting the privilege. Teltron, Inc. v. Alexander, 132 F.R.D. 394 (E.D. Pa. 1994).

FOOTNOTES

4 The Commonwealth of Pennsylvania has codified the attorney client privilege:

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case the privilege is waived upon the trial by the client.

42 Pa. C.S.A. §5928. Furthermore, federal courts interpreting Pennsylvania law of attorney-client privilege have stated:

Under Pennsylvania law, the elements of attorney-client privilege are the following: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made is a member of the bar or [*8] court; (3) the communication relates to a fact of which the attorney was informed by his client without the presence of strangers for the purpose of securing primarily either an opinion of law or legal services or assistance in some legal proceedings, and not for the purpose of committing a crime or tort; and (4) the privilege has been claimed and not waived by the client.

Constand v. Cosby, 232 F.R.D. 494, (E.D. Pa. 2006) (citing 42 Pa.C.S.A. § 5928; Rhone Poulenc v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir. 1994)).


While Defendant argues that the question posed to Dr. Dixon directly addresses a privileged communication between an agent of the county and the county legal department, courts have held that where the question at issue only seeks whether a communication actually occurred and not to the substance of the communication, the attorney-client privilege does not apply. Constand, 232 F.R.D. at 503. In particular, the Court noted the following:

[T]he fact of whether the lawyers' gave plaintiff legal advice is not protected by the attorney client privilege and must be disclosed. Rhone-Poulenc, 32 F.3d at 862. 'Did any of these lawyers whom you talked to give you any advice?' merely [*9] requests a fact and would not reveal any client confidences in violation of the privilege. Therefore, plaintiff is required to answer question 3 of defendant's motion to compel because the fact of advice is discoverable. In the event plaintiff was provided advice by the lawyers, the substance of that communication is protected by the attorney client privilege. Rhone-Poulenc, 32 F.3d at 862 (listing elements of privilege).

Constand, 232 F.R.D. at 503. Here, counsel for Plaintiffs' question pertains only to "the fact of advice" and it does not inquire into the substance of any communication. See Upjohn Co. v. United States, 449 U.S. 383, 395-396, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981) (quoting City of Philadelphia, Pa. v. Westinghouse Elec. Corp., 205 F.Supp. 830, 831 (E.D. Pa. 1962)) ("[T]he protection of the privilege extends only to communications [*10] and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'what did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney") (alteration and emphasis in original); see also Rhone-Poulenc, 32 F.3d at 862 (same). Therefore, Plaintiffs' question pertaining to whether Dixon sought advice from the Allegheny County legal department regarding any potential HIPAA violation in dissemination of information pertaining to infectious diseases is discoverable and Defendant Dixon shall re-appear for a deposition and answer the same. 5

FOOTNOTES

5 At the deposition, Allegheny Health Defendants also asserted that Dr. Dixon need not answer his question insofar as it posed a hypothetical question; however, in their response, the Allegheny Health Defendants do not raise this argument related to this question (but only as to other questions regarding Defendant Phillips).


2. Hypothetical questions

At the deposition, Plaintiffs' counsel also asked Dr. Dixon whether it [*11] would a violation of Allegheny County Health Services' policies if Defendant Phillips made a medical decision regarding the care of inmates. Counsel for Allegheny Health Defendants objected on grounds that the question was hypothetical in nature and that the witness did not have to answer. Plaintiffs contend that they are entitled to this information as it is relevant to reckless indifference and is within the scope of discovery.

Because Dr. Dixon has not been declared an expert witness to this point, his opinion testimony is governed by Federal Rule of Evidence 701:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Fed.R.Evid. 701. A lay witness "cannot be asked to give an opinion in response to a question posed during discovery depositions unless it is based upon a complete statement of all relevant facts." Williams v. Thomas Jefferson University, 54 F.R.D. 615, 617 (E.D. Pa. 1972). [*12] The hypothetical question posed must be based upon facts of record (i.e., testimony of another deponent or a document related to the testimony). Id. at 617.

Here, Plaintiffs fail to demonstrate that the question is "rationally based on the perception of the witness" and Plaintiffs fail to point to any facts of record upon which their counsel bases his hypothetical question. Hence, the question appears to call for an answer beyond the proper purview of this lay witness. See also Wilburn v. Maritrans GP Inc., 139 F.3d 350, 356 (3d Cir. 1998) ("The essential difference between [Rule 701 and 702 testimony] ? is that a qualified expert may answer hypothetical questions") (citing Teen-Ed, Inc. v. Kimball Int'l Inc., 620 F.2d 399, 404 (3d Cir. 1980)). Cases in accord Asplundh Mfg. Div., a Div. of Asplundh Tree Expert Co. v. Benton Harbor Engineering, 57 F.3d 1190, 1213 (3d Cir. 1995); Pelican Bait, Inc. v. CNA Ins. Co., No. CIV. A. 99-468, 2000 U.S. Dist. LEXIS 10699, 2000 WL 1056452, at *3 n.6 (E.D. Pa. Aug. 1, 2000). As such, Plaintiffs' motion to compel Dr. Dixon to respond to this hypothetical question is denied, based on the record before this Court.

II. Motion to Compel Michael Patterson

On December 14, 2007, Plaintiffs' [*13] counsel deposed Michael Patterson, Sr., M.D., an employee of Allegheny Correctional Health Services. Click for Enhanced Coverage Linking Searches6 Counsel for the Plaintiffs seek an order from the Court compelling Dr. Patterson to re-appear for a deposition and answer questions regarding (1) whether standing water in the Allegheny County jail could spawn the development of MRSA; and (2) various questions related to the medical care given to Plaintiff decedent Amy Sartori. (Docket No. 88). Counsel for Allegheny Health Defendants objected asserting that, as to the former, the question calls for an expert opinion, and, as to the latter, the questions call for professional opinions. However, in its response brief, the Allegheny Health Defendants clarify that said questions call for an expert opinion. (Docket No. 105 at PP8-9).

FOOTNOTES

6 According to the Allegheny Health Defendants, Dr. Patterson was not involved with the treatment of Ms. Sartori. Plaintiffs do not argue to the contrary.


First, Plaintiffs' counsel asked whether standing water present in the jail could spawn the development of MRSA or other diseases. Counsel for Allegheny Health Defendants objected stating that said question sought expert testimony and that the witness was [*14] not an expert. The Court agrees. This question calls for "scientific, technical, or other specialized knowledge" as to MRSA that falls under Federal Rule of Evidence 703 and Dr. Patterson has not been offered as an expert witness.

Second, Plaintiffs' counsel asked Dr. Patterson to interpret a pulse oxygen reading on Sartori's medical chart and whether, given the pulse oxygen levels of Sartori and, if those were the only readings relating to that individual "prior to her going into arrest," said individual received adequate medical care between 3:25 p.m. and 6:00 p.m. on March 20, 2005. Counsel for Allegheny Health Defendants again objected asserting expert opinion. However, Plaintiffs' counsel rephrased the second question and asked Dr. Patterson for his opinion, based on a review of Sartori's medical records and in his position as medical supervisor, regarding the medical care she received between 3:25 p.m. and 6:00 p.m. on March 20, 2005, which drew another objection.

Once again, the Court finds that these questions call for an expert opinion in that they ask Dr. Patterson to comment on the medical care provided to Sartori on the day in question, which requires "scientific, technical, [*15] or other specialized knowledge" and Dr. Patterson has merely been offered as a fact witness. Hence, Dr. Patterson's opinion as to the level of medical care received by Ms. Sartori on the date in question is beyond the scope of his testimony as a fact witness.

Third and finally, Plaintiffs' counsel asked Dr. Patterson whether, within his position as a supervisor for Allegheny County Health Services, he investigated the medical care given to Ms. Sartori. At the deposition, counsel for Allegheny Health Defendants objected as "asked and answered," but, in response to the pending motion, counsel asserts that the same calls for an expert opinion. The Court disagrees. Said question is factual in nature (i.e., did he investigate the medical care given to Ms. Sartori) and thus, considering that Dr. Patterson is a fact witness, the Court orders that he re-appear for his deposition and answer said question.

III. Motion to Compel Louise Aiken

On December 12, 2007, Plaintiffs' counsel deposed Lucille Aiken, M.D., a treating physician for Ms. Sartori at the Allegheny County jail. Counsel for the Plaintiffs seek an order from the Court compelling Dr. Patterson to re-appear for a deposition and answer [*16] questions regarding the following: (1) whether in her opinion as a physician at the Allegheny County jail infirmary, there were enough staff members to assist her in her duties; 7 (2) whether the likelihood of contracting MRSA infections increased in individuals with symptoms of open sores or a history of abscesses; (3) whether it is unexpected that there would be no entries in the medical chart of Ms. Sartori for approximately a two hour period; (4) whether a pulse ox level of 77% constituted an emergency situation; (5) whether, if Dr. Aiken had been notified of Ms. Sartori's medical condition earlier in the evening, she would have sent her to the hospital immediately upon being advised of said condition; (6) whether the length of time in the delay of care to a patient who suffers from chest pains and shortness of breath and vomits blood increases the risk of harm to that patient; and (7) whether certain people are more susceptible to contracting MRSA than other individuals. (See Docket No. 89; Docket No. 102 at P10). In response to each question, counsel for Allegheny Health Defendants asserts that the same calls for an expert opinion beyond the parameters of Dr. Aiken, a fact witness. [*17]

FOOTNOTES

7 After counsel for Allegheny Health Defendants objected, counsel for Plaintiffs followed up with the same question but in her capacity as a supervisor of the infirmary, to which counsel for Allegheny Health Defendants also objected.


First, as to counsel for Plaintiffs' questions regarding Dr. Aiken's opinion as to the amount of staffing as well as to the lack of entries on Ms. Sartori's chart for a two hour period, because these questions call for answers rationally based on her perception as a witness, are helpful to her testimony as well as to facts at issue, and do not require scientific, technical, or other specialized knowledge within the meaning of Rule 702, 8 see Fed.R.Evid. 701, Dr. Aiken may provide her opinion as a lay witness in response to said questions.

FOOTNOTES

8 Counsel for Allegheny Health Defendants argues that said questions call for specialized knowledge as to staffing and chart entries. The Court disagrees that such expert opinion is required; on the contrary, Dr. Aiken may testify, based on her knowledge of the infirmary practices and underlying facts as Ms. Sartori's treating physician, as to the level of staffing on the day in question and her chart.


Second, as to the remaining [*18] questions posed by Plaintiffs' counsel to Dr. Aiken and in dispute here, the Court finds that the same call for an expert opinion and thus, said questions are beyond the purview of Dr. Aiken, a fact witness. These questions require Dr. Aiken to provide specialized knowledge as to MRSA and to comment and to draw conclusions on hypothetical situations with the benefit of hindsight, i.e., if Dr. Aiken would have known of Sartori's medical condition, she would have sent her to the hospital earlier in the evening. These questions are more properly posed to an expert in the appropriate field, not to a treating physician offered as a fact witness. See Calhoun v. Klingensmith, Civil Action No. 07-86, 2007 U.S. Dist. LEXIS 87184, 2007 WL 4205818 at *2 (W.D. Pa. Nov. 27, 2007) (citing Frederick v. Hanna, 2007 U.S. Dist. LEXIS 18626, 2007 WL 853480 at *5-6 (W.D. Pa. Mar. 16, 2007)) (providing that "treating physicians may testify as fact witnesses regarding things 'within their knowledge, as opposed to offering expert opinion' such as 'their treatment, examination, and diagnosis of' the plaintiff"). While counsel may pose hypothetical questions to a lay witness, said questions must be based on facts of record, e.g., the testimony of a prior witness [*19] who has been subjected to cross-examination. See Williams v. Thomas Jefferson University, 54 F.R.D. 615, 617 (E.D. Pa. 1972). However, Plaintiffs' counsel has failed to point to any facts of record upon which he bases the foregoing proposed hypothetical questions to Dr. Aiken. See Coxe v. Putney, 26 F.R.D. 562, (E.D. Pa. 1961) (allowing hypothetical questions to treating physician as fact witness where the assumed state of facts posed in the question were based on facts of record from prior testimony).

IV. Conclusion

Accordingly, based on the foregoing, the Court orders the following:

(1) Plaintiffs' Motion to Compel Bruce Dixon M.D. to Answer Questions at Deposition Upon Oral Examination [86] is granted in part and denied in part. The Court grants the same to the extent that it seeks Dr. Dixon to re-appear for deposition and answer counsel for Plaintiffs' question whether he made any request of the Allegheny County legal department regarding the release of information about infectious diseases and HIPAA. The Court denies the same in all other respects.

(2) Plaintiffs' Motion to Compel Michael Patterson Sr., M.D. to Answer Questions at Deposition Upon Oral Examination [88] is granted in [*20] part and denied in part. The Court grants the same to the extent it seeks Dr. Patterson to re-appear for deposition and answer counsel for Plaintiffs' question regarding whether he investigated the medical care given to Ms. Sartori. The Court denies the same in all other respects.

(3) Plaintiffs' Motion to Compel Lucille Aiken, M.D. to Answer Questions at Deposition Upon Oral Examination [89] is granted in part and denied in part. The Court grants the same to the extent it seeks Dr. Aiken to re-appear for deposition and answer counsel for Plaintiffs' questions regarding Dr. Aiken's opinion as to the amount of staffing as well as to the lack of entries on Ms. Sartori's chart for a two hour period. The Court denies the same in all other respects.

As to all the above motions, the Court denies Plaintiffs' requests for costs related to the same. The Court also orders that the above depositions be scheduled and concluded by May 30, 2008.

/s/ Nora Barry Fischer

Nora Barry Fischer

United States District Judge

Dated: April 30, 2008.

2008 U.S. Dist. LEXIS 37235, *

ELLA MAE HOWARD, Administratrix of the Estate of Valeria Whetsall, deceased, o/b/o the Estate of Valeria Whetsall and o/b/o the wrongful death heirs, ET AL., Plaintiffs, vs. RAMON C. RUSTIN, individually and in his official capacity as Warden of the Allegheny County Jail, ET AL., Defendants.

Civil Action No. 06-00200

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

2008 U.S. Dist. LEXIS 37235


May 2, 2008, Decided
May 2, 2008, Filed

MEMORANDUM ORDER

This matter is before the Court on a Motion to Compel Directed to Defendants Allegheny County Correctional Health Services, Inc. Click for Enhanced Coverage Linking Searches, Bruce Dixon and Dana Phillips [91], filed by Plaintiffs Ella Mae Howard, Administratrix of the Estate of Valeria Whetsall, deceased, on behalf of the estate of Valeria Whetsell and on behalf of the wrongful death heirs, as well as Edward Sartori and Dianne Sartori (consol Plaintiffs) (collectively, "Plaintiffs") on April 18, 2008. Attached to their motion, Plaintiffs' Discovery Dispute Certificate lists the documents that they have allegedly not received from the Allegheny Health Defendants. On April 28, 2008, Defendants Allegheny County Correctional Health Services, Inc. Click for Enhanced Coverage Linking Searches, Bruce Dixon and Dana Phillips ("Allegheny Health Defendants") filed [*3] their Reply to Motion to Compel Discovery (Docket No. 108).

Attached to their motion, Plaintiffs' Discovery Dispute Certificate lists the documents that they have allegedly not received from the Allegheny Health Defendants. 1 (Docket No. 92). In a counter Discovery Dispute Certificate, the Allegheny Health Defendants address each document request, in turn. (Docket No. 108-2). The Court will do the same here.

FOOTNOTES

1 In support of their motion, Plaintiffs assert that the Allegheny Health Defendants have failed to comply with the Court's September 24, 2008 Order. (Docket No. 91 at P10). However in that Order, considering the parties' representations made at the August 14, 2007 motion hearing as well as the September 19, 2007 telephonic status conference, the Court denied as moot (without prejudice and with leave to re-file) Plaintiffs' Motion to Compel. (See Docket No. 77).


As to document requests numbered 1 (correspondence between the Defendants, their insurers, agents, adjusters, and attorney "relating to this claim or cause of action in any way whatsoever") and 2 (a copy of the insurance claims file and/or risk management file with regard to the incident upon which the Plaintiffs' Complaint [*4] is based), the Court finds while said requests lack specificity and appear unnecessarily duplicative (i.e., should be combined into one request), Defendants have failed to establish the applicability of the work product privilege save its blanket assertion that it applies here. 2 See McCrink v. Peoples Benefit Life Ins. Co., No. Civ.A.2:04CV01068LDD, 2004 U.S. Dist. LEXIS 23990, 2004 WL 2743420, * 1 (E.D. Pa. Nov. 29, 2004) (providing that the party asserting the work product doctrine and hence resisting discovery bears the burden to establish its application) (citation omitted). Hence, Plaintiffs may revise said request to include reasonable limitations as to the scope of the request and serve the same upon the Allegheny Health Defendants on or before May 9, 2008 and said Defendants shall respond on or before May 23, 2008. 3 The Court opines that at least some responsive documents will fall outside of the protection of the work product privilege and will be discoverable. See Lyvan D.D.S. v. Harleysville Ins. Co. et al., No. CIV. A. 93-6145, 1994 U.S. Dist. LEXIS 13981, 1994 WL 5 33 907, at *3 (E.D. Pa. Sept. 29, 1994) ("An insurance company cannot reasonably argue that the entirety of its claims files are accumulated in anticipation of litigation [*5] when it has a duty to investigate, evaluate and make a decision with respect to claims made on it by its insureds"); see also Fed.R.Civ.P. 26 advisory committee notes (1970 Amendments) (discussing favorably the disclosure of insurance policies in discovery).

FOOTNOTES

2 The Court notes that any objection to a document request based on privilege should have been made and explained initially in response to said discovery requests.

3 Further, without the benefit of the responsive documents or any briefing as to the law, the Court is unable to make a determination as to the potential application of the work product doctrine. However, to the extent that the parties cannot resolve their discovery dispute as to the document requests numbered 1 and 2, the Court may order the Allegheny Health Defendants to submit responsive documents to the Court for an in camera review.


As to document requests numbered 3 (contractual agreements, including contract between Dr. Dixon and Allegheny County, contract between Allegheny Correctional Health Services and area hospitals, and initial contract between Correctional Health Solutions, Inc. and Mercy Hospital of Pittsburgh), 5 (minutes of "Infectious Disease Control CQI [*6] Committee"), 4 6 (Allegheny County Health Department's Guidance Documents on MRSA and related illnesses), 5 12 (accreditation documents performed by the National Commission on Correctional Health Care), 22 (documents related to training, seminars, and handbooks regarding diagnosis of staph infections and/or MRSA), and 25 ("Extended Practitioner's Protocol"), 6 based on the Allegheny Health Defendants' representation that they will respond to the same, Plaintiffs' motion to compel is moot. The Allegheny Health Defendants shall respond to said requests on or before May 23, 2008.

FOOTNOTES

4 The Allegheny Health Defendants clarify that no such committee exists, but the Warden of the Allegheny County Jail keeps said minutes, and they will nevertheless provide the same.

5 The Allegheny Health Defendants indicate that only one document is responsive to said request.

6 The Allegheny Health Defendants indicate that they will produce the same pursuant to the current confidentiality order in this case.


As to document request numbered 7 (statistics on all deaths at the Allegheny County Jail dating back three years), the Court agrees with the Allegheny Health Defendants' that said request is overbroad insofar [*7] as the instant matter only concerns two deaths caused by MRSA and/or staph infections and Plaintiffs' request would garner responsive documents regarding inmate deaths as a result of causes wholly irrelevant to the instant matter. Thus, Plaintiffs may revise said request to include reasonable limitations as to the scope of the request and serve the same upon the Allegheny Health Defendants on or before May 9, 2008 and they shall respond on or before May 23, 2008. 7

FOOTNOTES

7 As to document request 4, Plaintiffs request statistics on MRSA and MRSA-related illnesses kept by Allegheny County Health Department. While the Court opines that the responses to document request 4 are duplicative of document request 7 insofar as the latter will (most likely) recover documents responsive to the former, the Court nevertheless agrees with the Allegheny Health Defendants that a document request seeking statistics of the Allegheny County Health Department is best served upon it.


As to document requests numbered 8 (infection control protocol and infectious disease policies of the Allegheny Health Department, Allegheny County Correctional Health Services, and the Allegheny County Jail infirmary, particularly [*8] as to staph infections, mold or mildew), 17 (treatment protocol for a situation in which an inmate is diagnosed and/or displays symptoms of a staph infection and/or MRSA), and 24 (MRSA protocol), the Allegheny Health Defendants respond that they have previously provided documents responsive to said requests to Plaintiffs. Plaintiffs shall confirm (in writing submitted to the Allegheny Health Defendants) on or before May 9, 2008, whether they have been provided all documents responsive to said requests. Thereafter, to the extent that the Allegheny Health Defendants have not yet responded to said requests, including document request 8 regarding protocols and policies related to mold and mildew, they shall do so by May 23, 2008.

As to document request numbered 9 (Administrative Directive # 86 of the Allegheny County Jail), the Allegheny County Defendants assert that the same was made an exhibit to the deposition of Warden Ramon Rustin and thus Plaintiffs have access to it. Thus, Plaintiffs' request is moot.

As to document requests numbered 10 (inspection reports of the Allegheny County Jail, Allegheny County Jail Infirmary performed by Dr. Bruce Dixon, the Allegheny County Health Department, [*9] the Allegheny County Health Services' employees, and the Pennsylvania Board of Health), 11 (Dr. Dixon's air quality study at the Allegheny County Jail), 28 (2005 monthly health care audits performed by Michael Patterson, Sr., M.D.), 29 (health care audits performed prior to 2005), and 30 (documents related to requests by Dr. Patterson for influenza vaccine funding), considering the Allegheny Health Defendants' representation that they have no responsive documents to the same, they shall provide an affidavit/declaration reciting the same and indicating with particularity their good faith attempts to retrieve and discover any responsive documents. The Allegheny Health Defendants shall serve said affidavit/declaration upon Plaintiffs on or before May 9, 2008.

As to document request numbered 13 (minutes of quarterly meetings of Medical Administration Committee of the Allegheny County Jail), the Court finds that the lack of temporal limitations renders said request overbroad and unduly burdensome. Accordingly, Plaintiffs may revise said request to include a reasonable temporal parameter and serve the same upon the Allegheny Defendants on or before May 9, 2008 and they shall respond on or [*10] before May 23, 2008.

As to document requests numbered 14 (names and addresses of medical directors, officials, physicians, nurses, etc. employed at Allegheny County Jail infirmary on specific dates in March of 2005) and 15 (names and addresses of all employees of Allegheny Correctional Health Services within one year preceding and following the deaths of Plaintiffs' decedents), 8 in the interests of the privacy, security, and safety of said individuals, the Court orders that the parties shall agree upon and execute a confidentiality agreement related to said request on or before May 9, 2008 and the Allegheny Health Defendants shall subsequently respond to said request on or before May 23, 2008.

FOOTNOTES

8 The Allegheny Health Defendants also object to said request as "being unlimited in time and scope and not a request which will lead to discoverable evidence." (Docket No. 108-2 at P15). However, because document request 15 contains express limitations as time (one year before and one year following Plaintiffs' decedents' deaths) as well as scope (only employees of Defendant Allegheny Correctional Health Services), said objection is overruled.


As to document requests numbered 16 (any and all documents, [*11] information and/or records relative to the prior diagnosis of staph infections and/or MRSA in either inmates or any employees, volunteers, agents, and/or servants of the Allegheny County Jail system), 21 (any and all prescription records regarding dosages of antibiotics used in the treatment of staph infections and/or MRSA prescribed in the six months before the deaths of Plaintiffs' decedents) and 31 (any and all records of hospitalizations of inmates related to MRSA), counsel for Allegheny Health Defendants object asserting that said requests seek medical records protected by HIPAA. The Court finds that while these requests seek information relevant to the instant matter, neither of the parties have properly briefed the potential impact of HIPAA (or related privacy rights) and thus, the Court is unable to make an informed decision. As such, the Court denies without prejudice Plaintiffs' motion to the extent it seeks to compel responses to document requests numbered 16, 21, and 31. However, Plaintiffs may re-file a motion along with case law as to the potential impact of HIPAA and other privacy concerns, if they so wish, and the Defendants may respond to same. 9

FOOTNOTES

9 As this information [*12] is plainly relevant to Plaintiffs' claims, the Court strongly encourages the parties to reach agreement in the form of a protective order or confidentiality agreement as to the discovery of this information.


As to document request numbered 18 ("[a]ny and all electronically stored information, documents, reports, logs and/or memorandums contained in any and all of the electronic databases and/or computer systems of Allegheny County Jail, Allegheny Correctional Health Services, Inc. Click for Enhanced Coverage Linking Searches, Bruce Dixon, and Dana Phillips"), the Court finds that said request is overbroad, unreasonably cumulative, and unduly burdensome. For example, on its face, Plaintiffs seek all electronically stored information of the Allegheny County Jail and the Allegheny Correctional Health Services, which would produce thousands of irrelevant documents and impose an expensive burden not only on the Allegheny Health Defendants but ultimately on Plaintiffs. While Plaintiffs may certainly discover electronically stored information, said request imposes no limits (time or otherwise) on the same. Thus, Plaintiffs may revise said request to include reasonable limitations including but not limited time and scope and serve the [*13] same upon the Allegheny Health Defendants on or before May 9, 2008 and they shall respond on or before May 23, 2008.

As to document requests numbered 19 ("Morbidity Report" and all documents referring, relating or corresponding to the same) and 20 (copies of "Mortality Reviews"), the Court finds that Plaintiffs' requests are vague and overbroad. A fair reading of Plaintiffs' requests seeks all morbidity reports and mortality reviews from Allegheny County Jail, which may encompass thousands of documents wholly irrelevant to the instant matter. 10 Accordingly, Plaintiffs may revise said requests to include reasonable limitations as to time and scope and serve the same upon the Allegheny Defendants on or before May 9, 2008 and they shall respond on or before May 23, 2008. Along the same lines, as to document request numbered 27 (a file of all inmates who have died at Allegheny County Jail as kept by Allegheny Correctional Health Services), the Court finds that Plaintiffs' request is overbroad and unduly duplicative of document requests numbered 19 and 20.

FOOTNOTES

10 In response to a broad discovery request for electronic discovery (such as the one at issue here) and to the extent that the sources [*14] of requested information are not reasonably accessible, a cost-sharing agreement between the parties may be appropriate. See Fed.R.Civ.P. 26 advisory committee notes (2006 Amendments).


As to document request numbered 23 (personnel files of Bud Dickum, Joan Stack, Sharon Klivenworth, and Cindy Collins), the Allegheny Health Defendants respond that said information is not relevant and would not lead to discoverable evidence. Considering the broad standard as to the scope of discovery, the Court disagrees. As nurses employed by the Allegheny Correctional Health Services and in a case regarding the deaths of two inmates while incarcerated, said information is relevant to Plaintiffs' claims and may lead to the discovery of admissible evidence, even if the personnel files themselves are inadmissible, as argued by the Allegheny Health Defendants. Accordingly, the Allegheny Health Defendants shall respond to said request on or before May 23, 2008. 11

FOOTNOTES

11 To the extent the Allegheny Health Defendants assert that production of said personnel files would violate privacy rights, they may seek a protective order or a confidentiality agreement.


As to document request numbered 26 (in-service schedules), [*15] the Court agrees with counsel for the Allegheny Health Defendants' objection that said request (as it currently reads) is overbroad and unduly burdensome. However, Plaintiffs may revise said request to include reasonable limitations as to time and scope of "in-service schedules" and serve the same upon the Allegheny Defendants on or before May 9, 2008 and they shall respond on or before May 23, 2008.

Accordingly, the Court GRANTS in part and DENIES in part Plaintiffs' Motion to Compel Directed to Defendants Allegheny County Correctional Health Services, Inc. Click for Enhanced Coverage Linking Searches, Bruce Dixon and Dana Phillips [91] and the parties shall proceed in accordance with the foregoing.

/s/ Nora Barry Fischer

Nora Barry Fischer

United States District Judge

Dated: May 2, 2008