Cason-Merenda v. VHS of Michigan, Inc.

Citations: 118 F. Supp. 3d 965; 92 Fed. R. Serv. 3d 480; 2015 U.S. Dist. LEXIS 102855; 2015 WL 4645230Docket: Case No. 06-15601

Court: District Court, E.D. Michigan; August 6, 2015; Federal District Court

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Defendant VHS of Michigan, Inc. filed a motion on July 21, 2015, requesting access to all documents previously produced in the case, citing significant gaps in its own document database and difficulties obtaining documents from co-Defendants and third parties. Plaintiffs opposed the motion, arguing that VHS had delayed its discovery of these gaps, failed to provide sufficient grounds for access, and that granting such access would risk disclosing protected work product. The Court expressed concerns regarding the broad scope of VHS's request and the lack of justification for it. Ultimately, the Court ordered Plaintiffs to provide a more limited and specifically identified set of documents at VHS’s expense. The litigation background notes that VHS, originally known as the Detroit Medical Center, underwent several changes in representation and ownership, impacting the discovery and legal processes throughout the case.

VHS is currently represented by attorneys from Young & Associates and Gibson Dunn as trial approaches. Attorney Sara MacWilliams states that changes in VHS's ownership and legal representation did not prompt any investigation into the record compiled by VHS’s in-house counsel during discovery. When Young & Associates began representing VHS in April 2012, MacWilliams assumed that the document database maintained by in-house counsel was complete, although she did not specify the basis for this assumption. Despite overlapping representation for over six months, Young & Associates did not review the document database due to access restrictions aimed at saving costs, which remained in place during the class certification process and subsequent appeal.

In March 2015, a court order set a trial date for September 15, 2015, leading to the reactivation of VHS's document database, which revealed missing documents. Although VHS contacted former co-defendants to obtain some of these documents, significant gaps remained. By July 2015, VHS counsel concluded that only the Plaintiffs possessed a complete set of documents from the case. VHS then requested access to the discovery record compiled by the Plaintiffs, offering to reimburse costs, but this request was denied. Meanwhile, VHS discovered that Plaintiffs were providing documents to settling co-defendants but refused to extend the same access to VHS.

As a result, VHS filed a motion to compel the Plaintiffs to provide access to all documents produced in the litigation. The motion is characterized as unprecedented in scope, as it seeks access to the entire discovery record from an opposing party after the discovery phase has closed. The Court found VHS's request to be late, inadequately justified, lacking legal support, and dismissive of legitimate work product protections.

The Court grants limited relief to VHS, emphasizing that the responsibility lies with VHS itself. It establishes that documents compiled by Plaintiffs’ counsel during discovery are protected as work product, which is crucial for maintaining attorneys' privacy and independence in case preparation, as outlined in Hickman v. Taylor. The Court references the importance of each party's ability to prepare their case without interference, as noted in the Federal Rules of Civil Procedure. VHS's suggestion that Plaintiffs could provide all documents produced during discovery is flawed, based on unsupported assumptions about the completeness and organization of the documents. The Court refuses to mandate disclosure of Plaintiffs’ strategic decisions regarding document management. Ultimately, VHS's current issues stem from its own actions and not from any failure by Plaintiffs to comply with discovery requests, meaning VHS's motion cannot be seen as a valid discovery compel under Rule 37(a). VHS appears to have had access to all necessary materials but did not retain them.

VHS failed to act with reasonable diligence in notifying the Court about issues with its document database, despite changes in representation and ownership. Plaintiffs noted that VHS assumed its database was complete without investigation, which is implausible given the circumstances. Although VHS claimed its inquiry was prompted by a court order for a September trial, it delayed informing the Court for nearly four months about missing documents. This inaction hinders the Court's ability to provide effective relief, risks postponing the trial, and imposes undue burdens on Plaintiffs as they prepare for litigation. VHS has not clearly identified the missing documents or explained why they were not retained, suggesting that previous counsel may have made strategic choices regarding document retention. The Court concluded that VHS has not proven its entitlement to the extensive relief requested, as there is no evidence of misconduct by Plaintiffs that would warrant such burdens. However, to support VHS's current counsel's trial preparation, the Court ordered Plaintiffs to provide copies of specifically identified documents from discovery, with VHS responsible for the costs of retrieval and copying.

Plaintiffs are required to provide Defendant VHS with copies of all documents on their exhibit list and any other documents they intend to rely on at trial by the August 20, 2015 deadline. This obligation was acknowledged by the Plaintiffs in their response to VHS's motion. The Court has partially granted and denied VHS’s emergency motion to compel the production of documents, as outlined in the order. VHS remains the sole Defendant after settlements with its seven co-Defendants. Plaintiffs indicated that they had previously placed their document database in a "deep freeze" for cost-saving reasons but learned from their vendor that reactivating it would be quick and inexpensive. The timeline of VHS’s requests for documents is somewhat unclear, with initial correspondence noted as dated July 20, 2015, which pertains to a related issue. VHS proposed allowing access to the database through a "firewall" to protect work product; however, Plaintiffs argued that it would be impractical to implement such measures close to trial. Additionally, VHS suggested that Plaintiffs might withhold documents until obtaining authentications from former Defendant hospitals. The Court emphasized that Plaintiffs must provide all relevant documents by the August 20 deadline, regardless of authentication status, and encouraged cooperation between parties in document exchanges prior to this deadline to facilitate the pretrial process.