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Nash v. Connections CPS Inc.

United States District Court, D. Delaware

April 30, 2018

ANTHONY A. NASH, Plaintiff,
CONNECTIONS CSP, INC., et al., Defendants.


         The plaintiff, Anthony A. Nash ("Nash"), an inmate at the Howard R. Young Correctional Institution, Wilmington, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I. 3.) Nash appears pro se and has paid the filing fee. The operative fifth amended complaint is found at D.I. 83. Presently before the court are several motions filed by Nash. (D.I. 165, 169, 177, 217, 223.)

         I. DISCOVERY

         The court entered a scheduling and discovery order on October 23, 2017, that provided for all discovery to be initiated so that it would be completed on or before January 22, 2018. (D.I. 143.) On January 1, 2018, Nash mailed a motion for leave to exceed the interrogatory limit to serve additional interrogatories upon the defendant CO. Clark due to his limited discovery tools. (D.I. 165.) The motion is opposed. (D.I. 169.)

         The discovery deadline has not been extended and the motion is untimely. Therefore, the motion will be denied. (D.I. 165.)


         Nash served discovery requests upon the defendants on June 20, 2017. (See D.I. 108, 109.) The record reflects that the State defendants provided Nash responsive documents on August 1, 2017 (D.I. 124, 125) and the medical defendants provided medical records to Nash in mid-August 2017 following the execution of a confidentiality agreement (D.I. 129, 133). On January 18, 2018, Nash filed a motion to compel for the defendants to fully respond to the discovery requests after he had contacted defense counsel in what he deemed an unsuccessful attempt to obtain all the discovery he sought. (See D.I. 144, 148, 169.) Nash argues that the defendants have waived their objections by their failure to timely respond to his requests and the discovery he seeks is relevant to his claims. (D.I. 169.) The defendants oppose the motion (D.I. 172, 188.)

         After Nash filed the motion to compel, Connections responded to the discovery requests on January 22, 2018 (D.I. 173, 174) and the State defendants responded to the discovery requests on February 22, 2018 (D.I. 205, 206, 207, 208, 209).' Connections argues that Nash's requests demanded the production of voluminous information not proportional to his claim of deliberate indifference and negligence regarding his dental needs, and several requests asked for the disclosure of private health information of other inmates as well as information privileged under medical peer-review, but, nonetheless it provided responses and appropriate objections on January 22, 2018. (D.I. 188.)

         Connections made many objections to the discovery requests, including that requested confidential health information of other inmates is protected from disclosure under federal law, l Other than as will be discussed when ruling on Nash's amended motion to compel, it appears that the State defendants have adequately responded to Nash's discovery requests. Delaware, and DOC policy. It also asserted the peer-review privilege. Connections acknowledges that it responded and objected to discovery beyond the required time-frame, but argues its untimeliness should be excused for good cause noting that Nash "requested a swath of information that includes sensitive private information of inmates and personnel" and it is not permitted to disclose this protected information under both federal and Delaware law. (Id. at 4.) Connections further argues that Delaware law, 24 Del. C. § 1768, protects peer-review material from dissemination in discovery. (Id.) Nash replies that Connections' objections should be deemed waived, that the peer-review privilege is not recognized, and asks that Connections be reasonable and redact documents by limiting them to Nash's dental service report and near-miss report and substitute inmates' names with "John Does." (D.I. 192.)

         Upon review of Nash's discovery requests, the court finds that Connections has shown good cause for its failure to timely respond to the requests. And, for the most part, Connections objections are sustained, particularly those that relate to medical records and information protected by federal and Delaware law.

         Connections has also asserted a peer -review privilege under Delaware law, 24 Del. C. § 1768. The statute provides, in part, as follows:

the records and proceedings of committees and organizations described in subsection (a) of this section are confidential and may be used by those committees or organizations and the members thereof only in the exercise of the proper functions of the committee or organization. The records and proceedings are not public records and are not available for court subpoena, nor are they subject to discovery. A person in attendance at a meeting of any such committee or organization is not required to testify as to what transpired at the meeting. A person certified to practice medicine, or a hospital, organization, or institution furnishing, in good faith and without gross or wanton negligence, information, data, reports, or records to such a committee or organization or a member thereof with respect to any patient examined or treated by a person certified to practice medicine or examined, treated, or confined in the hospital or institution is not, by reason of furnishing such information, data, reports, or records, liable in damages to any person or subject to any other recourse, civil or criminal.

         Assertions of privilege in federal court are governed by Federal Rule of Evidence 501, which states that "the common law-as interpreted by United States courts in the light of reason and experience-governs a claim of privilege unless any of the following provides otherwise: • the United States Constitution; • a federal statute; or • rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision." Fed.R.Evid. 501. Here, Nash raises both federal and state law claims in the case. "[T]he federal rule favoring admissibility, rather than any state law privilege, is the controlling rule." Pearson v. Miller, 211 F.3d 57, 66 (3d Cir. 2000). Therefore, "the mere fact that state law claims and federal law claims coexist in this action does not by itself justify application of [Delaware's] peer-review privilege." Weiss ex rel. Estate of Weiss v. County of Chester, 231 F.R.D. 202, 205 (E.D. Pa. 2005) ("federal privileges apply to federal law claims, and state privileges apply to claims arising under state law"). In Weiss, the court declined to extend the state statutory peer- review privilege into federal common law, finding that the Third Circuit disfavors privilege, and that the U.S. Congress has considered, but declined to extend, a similar peer-review privilege to federal courts. Weiss, 231 F.R.D. at 205. In its opposition, Connections made no reference to Third Circuit law. Instead, it relied upon authority from the Western District of Michigan. (D.I. 188 at 5.)

         The peer-review privilege is not available in this case, and Connections cannot withhold discovery on this ground. See e.g., Crawford v. Corizon Health, Inc., 2018 WL 1863022 (W.D. Pa. 2018). The objections are overruled. Therefore, the court will grant this portion of Nash's motion to compel. Connections shall respond to those discovery requests wherein it invoked the peer-review privilege. The discovery includes Nash's request for production of documents Nos. 2, 6, 7, 8, 9, 10, 25, 26, 27, 28, 29, 31, 32, and 33.

         Nash recently filed an amended motion to compel. (D.I. 223.) Therein, he seeks relevant insurance agreements, noting on the one hand that the defendants did not provide them as required under Fed.R.Civ.P. 26(a)(1)(A)(iv), while on the other hand, that proceedings brought by inmates are exempt from initial disclosures under Rule 26(a)(l)(B)(iv). Nash did not seek a copy of the insurance policy in his discovery requests and, as he ...

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