United States District Court, D. Arizona
Jack B. Keenan, M.D., an individual, Plaintiff,
v.
Maricopa County Special Health Care District, d.b.a. Maricopa Integrated Health System, a political subdivision of the State, et al., Defendants.
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
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