Opinion
99-CV-0048E(Sr).
February 12, 2002
MEMORANDUM and ORDER
Plaintiff commenced this action January 21, 1999 and filed an Amended Complaint March 5, 1999. In her Amended Complaint plaintiff asserted eight causes of action against the defendants. Plaintiff's first through fourth causes of action alleged violations of the Sherman Antitrust Act, 15 U.S.C. § 1 et. seq. and her fifth cause of action alleged violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.; this Court dismissed such causes of action by an Order dated October 5, 1999. Plaintiff's remaining causes of action allege that defendants had discriminated against and harassed her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New York's Human Rights Law, N.Y. Exec. Law § 296, and had committed the common law tort of tortious interference with contractual and prospective business relations.
By an Order dated December 8, 1999 this Court set January 19, 2001 as the deadline for the completion of discovery and February 12, 2001 as the deadline for the filing of motions for summary judgment and, in accordance with the practice of the undersigned, stated that all "questions concerning discovery, including the compulsion thereof are to be addressed promptly and informally to the undersigned." Id. at 2. In accordance with such direction, plaintiff mailed a letter brief dated November 14, 2000 to the undersigned with copies to all counsel of record requesting assistance in compelling defendants OLV, Zeplowitz and Davanzo to respond to certain of her document requests; such letter brief was received in chambers November 16, 2000.
On February 12, 2001 all defendants filed motions for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil procedure ("FRCvP"). Plaintiff responded by filing a motion March 1, 2001 to stay defendants' motions for summary judgment pursuant to FRCvP 56(f) on the basis that she needed additional discovery to be able to oppose the motions for summary judgment, as reflected in her November 14, 2000 letter brief requesting assistance in compelling certain defendants to respond to her discovery requests, which had yet to be resolved by this Court. Oral argument was held on plaintiff's FRCvP 56(f) motion April 6, 2001.
By an Order dated May 24, 2001 this Court denied plaintiff's FRCvP 56(f) motion upon the mistaken assumption that plaintiff had not requested this Court's assistance in obtaining discovery until after defendants had filed their motions for summary judgment.
Plaintiff filed a motion for reconsideration of this Court's May 24, 2001 Order on the basis that such Order had overlooked her still-pending motion for assistance in completing discovery and noted that, pursuant to the earlier direction of this Court during a teleconference regarding any motion to compel, none of the defendants had been deposed pending this Court's resolution of such motion. Defendants oppose plaintiff's motion for reconsideration on the basis that her FRCvP 56(f) motion failed to demonstrate that the requested discovery would be sufficient to defeat their motions for summary judgment. Oral argument was had on plaintiff's motion for reconsideration July 13, 2001 and such has thereafter been before this Court for disposition.
Plaintiff's motion for reconsideration of this Court's May 24, 2001 Order denying her FRCvP 56(f) motion will be granted because the undersigned, in issuing such Order, mistakenly overlooked her pending motion for assistance with discovery and such will now be addressed on the merits. In her November 14, 2000 letter brief, plaintiff had requested this Court to order defendants OLV, Zeplowitz and Davanzo to produce the documents which had been requested in paragraphs 9-12, 16-18, 23, 32, 34 and 56-58 of her first request for the production of documents and other things. Such defendants had originally objected to said document requests on the basis that, inter alia, they sought documents and information that are irrelevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence and were overbroad and unduly burdensome. Such defendants also objected on the basis that many of the documents sought are privileged and confidential — pursuant to 42 U.S.C. § 11101, 11137; N.Y. C.P.L.R. 4504; N Y Education Law § 6527(3); N.Y. Public Health Law §§ 2805-j thru 2805-m; and the self-critical analysis privilege — and that some of the requested documents are covered by the attorney-client and/or attorney work-product privilege. In addition, such defendants now object to providing the requested documents on the basis that plaintiff has failed to properly support her FRCvP 56(f) motion by establishing how the requested documents would create a genuine issue of material fact sufficient to defeat their motion for summary judgment which had been made on the grounds that, inter alia, there is no employer/employee relationship between OLV and plaintiff.
If the issue presently before this Court were an ordinary FRCvP 56(f) motion this Court would be inclined to deny such because defendants are correct in their contention that plaintiff has failed to demonstrate how the documentary evidence requested would be sufficient to defeat their motion for summary judgment. However, plaintiff had requested the assistance of this Court in compelling defendants to respond to her document request in November of 2000 — i.e., during the discovery period before defendants had moved for summary judgment — and, upon the direction of this Court, had foregone the taking of defendants' depositions until such was resolved. Inasmuch as plaintiff's present predicament is partly a result of this Court's having overlooked her earlier request for assistance in compelling discovery and because plaintiff may already have or may be able to obtain evidence sufficient to defeat the motion for summary judgment by deposing defendants, this Court will not hold her to the strict requirements of FRCvP 56(f) but will instead shall treat her motion as one brought pursuant to FRCvP 37.
The genesis of plaintiff's Amended Complaint is her contention that defendants had conspired to drive her from providing gastroenterological services to the Buffalo Southtowns area due to her gender by, inter alia, subjecting her to an extensive peer review with the intent of damaging her practice as opposed to a genuine concern about the quality of the medical care she was providing. The documents requested by plaintiff are relevant because they are necessary to her attempt to prove such contention by establishing that male physicians in the Division of Gastroenterology at OLV who had higher rates of complications etc. than she were not subjected to such an extensive peer review. Johnson v. Nyack Hospital, 169 F.R.D. 550, 554-556 (S.D.N.Y. 1996). In addition, this Court is perfectly capable of limiting plaintiff's document requests to ensure that compliance therewith is neither overbroad nor unduly burdensome. It accordingly appears to this Court that the main basis upon which defendants OLV, Zeplowitz and Davanzo objected to disclosing the requested documents is their assertion that the requested documents are privileged and confidential as "peer review" documents. However, the federal statutes upon which they rely — 42 U.S.C. § 11101, 11137 — do not apply to the documents sought and the asserted state peer review privileges — i.e., N.Y. C.P.L.R. 4504, N.Y. Education Law § 6527(3), N.Y. Public Health Law §§ 2805-j thru 2805-m and the self-critical analysis privilege — are inapplicable to this action brought in federal court pursuant to 28 U.S.C. § 1331 because they are not recognized under the federal common law. Federal Rule of Evidence 501; University of Pennsylvania v. EEOC., 493 U.S. 182, 190-195 (1990) (unanimously declining to recognize a federal "peer review" privilege); Syposs v. United States, 179 F.R.D. 406, 408-412 (W.D.N.Y. 1998), adhered to on reconsideration, 63 F. Supp.2d (1999); Johnson, at 557-561. To the extent that such defendants allege that certain of the requested documents are covered by the attorney-client and/or work-product privilege, they may of course withhold such documents from production — provided that they produce a proper privilege log instead of boilerplate claims of privilege. FRCvP 26(b)(5); Obiajulu v. City of Rochester, 166 F.R.D. 293, 295 (W.D.N.Y. 1996).
Having carefully considered the documents requested by plaintiff and the objections interposed by defendants, this Court will order defendant to produce the documents requested subject to the following limitations. Defendants shall only be required to produce documents relating to physicians affiliated with OLV's Division of Gastroenterology during the period between September 1, 1994 and the present. Obiajulu, at 296. Any disputes concerning the scope of the below-ordered documentary discovery shall be communicated promptly and informally to the undersigned.
Accordingly, it is hereby ORDERED that plaintiff's motion for reconsideration is granted, that this Court's May 24, 2001 Order is vacated, that plaintiff's FRCvP 56(f) motion is granted, that defendants' motions for summary judgment are denied without prejudice to their being reinstated upon the completion of discovery, that defendants OLV, Zeplowitz and Davanzo shall provide the following documents — to the extent that they possess such documents — to plaintiff's attorney, Mitchell G. Mandell, Esq., under seal pursuant to the November 15, 2000 Confidentiality Order within forty-five days of the filing of this Order: (1) the chart reviews, credentials files, quality assurance files and administrative files for all physicians affiliated with OLV's Division of Gastroenterology from September 1, 1994 through December 31, 1997; (2) the pleadings in any action for malpractice, or other wrongdoing, instituted against OLV involving its Division of Gastroenterology and/or any physician affiliated with OLV's Division of Gastroenterology from September 1, 1994 to the present; (3) any and all documents which refer or relate to chart reviews conducted on any of the cases which formed the basis of any lawsuits identified above, including but not limited to, the minutes of any Department, MEC, and Board of Directors meetings in which such lawsuits were discussed; (4) requests for information served by the New York State Department of Health concerning OLV's Division of Gastroenterology and/or any physician affiliated with OLV's Division of Gastroenterology from September 1, 1994 to the present; (5) the minutes of all Credentials Committee, Division of Gastroenterology, MEC, Quality Assurance Committee and Board of Directors meetings from September 1, 1994 to the present; (6) the minutes of all Department of Surgery and Department of Medicine meetings during which morbidity and mortality rates were discussed from September 1, 1994 to the present and (7) any and all documents which refer or relate to complaints lodged by patients, staff and/or physicians at OLV between September 1, 1994 and the present about any physician affiliated with OLV's Division of Gastroenterology, including but not limited to the complaint itself, that plaintiff shall complete the depositions of defendants within thirty days thereafter and that defendants may then reinstate their motion for summary judgment.
For such request, plaintiff only requested documents through December 31, 1997. Pl.'s Reply Br. in Further Supp. of Mot. to Compel at 13.