Keenan v. Maricopa County Special Health Care District

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE

         Joint Motion to Resolve Discovery Dispute ^[1]

         Plaintiff Jack B. Keenan and defendant Maricopa County Special Health Care District (MIHS) jointly move for a resolution of disputes over the terms of the Protocol Agreement. Oral argument was requested but is not deemed necessary.

         Background

         Plaintiff was a first-year resident in MIHS's surgical residency program. Plaintiff was placed on probation and then terminated from the residency program. He is asserting breach of contract and due process claims against MIHS. He contends that in order to prove his claims against MIHS it is critical that he discovers “communications among the various MIHS administrators and attendings relating to his performance, reflecting their reasoning for meting out discipline and establishing whether MIHS afforded him due process. . . .”^[2]

         In August 2019, the parties agreed to retain an independent forensic expert to conduct a forensic examination, and they worked toward drafting an Agreement Protocol for Neutral Forensic Expert Computer Examination and Report(s) (“the Protocol Agreement”). The parties have exchanged various draft proposals of the Protocol Agreement but have been unable to agree to all of its terms. They now request that the court resolve their disputes as to the terms of the Protocol Agreement.

         Discussion

         First, the parties cannot agree as to the scope of the search terms. Plaintiff proposes searching for documents that contain any of the following eight terms: 1) Keenan 2) Jack 3) probation 4) termination 5) due process 6) hearing 7) appeal and 8) recording.^[3] MIHS proposes searching for documents that contain “‘Keenan' OR ‘Jack” AND any of the following terms: 1) probation 2) termination 3) due process 4) hearing 5) appeal and 6) recording.^[4]

         Plaintiff argues that MIHS's proposed search terms are too limited because they will not capture documents which may involve plaintiff but do not expressly mention him by name. Plaintiff argues that using his proposed search terms will not produce an excessive number of documents and that his proposal contains a provision that would allow irrelevant documents to be quickly disregarded. The parties have agreed that “[n]o [d]ocuments or other information created, revised or otherwise in existence prior to April 1, 2016 shall be subject to this Examination, unless received or hav[ing] a Last Modified date after April 1, 2016.”^[5] Plaintiff would further add that any document located that does not contain either “Jack” or “Keenan” but does contain one of the other six proposed search terms would only be examined if it were “created on or after April 1, 2017.”^[6] Plaintiff contends that this would allow the parties and the expert to quickly disregard any irrelevant documents.

         The parties shall use MIHS's proposed search terms in the Protocol Agreement. Plaintiffs' proposed search terms will result in the return of an excessive number of documents, many, if not all, of which will be irrelevant. The court is not convinced that there are likely to be relevant documents that do not contain either “Jack” or “Keenan.”

         Secondly, the parties cannot agree as to whether the forensic expert should be allowed to recommend modifications to the search term list. Plaintiff wants to include in the Protocol Agreement a provision that reads: “The parties shall work with the Expert to determine whether any modifications to this list of search terms or other perimeters is warranted.”^[7] The court sees no need for this provision in the Protocol Agreement. It shall not be included in the Protocol Agreement.

         Thirdly, the parties cannot agree as to which desktop computers will be forensically imaged. The parties have agreed that the desktop computer of Dr. Elizabeth Ferguson will be imaged. The parties also agree that the desktop computers of Xoe Mcalecee and Phyllis Thackrah which are “regularly used in performance of their duties and responsibilities for MIHS” will be imaged.^[8]

         There is not agreement however as to desktop computers of Dr. Eric Katz, Dr. Chandrika Shankar, Dr. Patricia Habak, Liza Mirza, Dr. Eric Goldberg, Dr. Carol Olson, and Dr. Tammy Kopelman. Plaintiff has proposed imaging the desktop computers of all seven of these custodians.^[9] MIHS wants to limit the imaging of desktop computers to those “issued by MIHS” and has excluded Dr. Olson and Dr. Kopelman from the list of custodians whose desktop computers would be imaged.^[10] “Desktop computer” for purposes of the Protocol Agreement is defined as “any desktop computer stationed in the custodians' office and regularly used by the custodian in performance of their respective duties and responsibilities for MIHS[.]”^[11]

         MIHS wants to limit the imaging to desktop computers to those “issued by MIHS” because the custodians are District Medical Group, Inc. (“DMG”) employees, not MIHS employees. DMG is “a not-for-profit entity consisting of over 750 medical providers, ” which “staffed teaching positions for the MIHS residency program” and which “is a distinct legal entity.”^[12] MIHS contends that it does not have “‘possession, custody or control'” of DMG computers. United States v. Int'l Union of Petroleum and Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) (quoting Fed.R.Civ.P. 34(a)). “A party is only obligated to produce during discovery those documents ‘which are in the possession, custody, or ...