[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Khan v. County of Cook, 2024 WL 3984263 (N.D. Ill. Aug. 29, 2024), rejected “oceanic” discovery requests, while permitting reasonable ones.
In Khan, the hospital for the Cook County jail had terminated a dentist, alleging malfeasance. The dentist disputed the allegation, claimed racial bias was the cause, and sued. The court wrote: “Not surprisingly, discovery in this case, like ‘the course of true love, [has been anything but] smooth.’ Shakespeare, A Midsummer Night’s Dream, Act I, Scene 1.”
Discovery is the lawyer’s x-ray: “Discovery procedure serves much the same function in the field of law as the X-ray in the field of medicine and surgery; and if its use can be sufficiently extended and its methods simplified, litigation will largely cease to be a game of chance.” Stephen N. Subrin, “Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules,” 39 B.C. L. Rev. 691, 717 (1998)(citation omitted).
“The fundamental objective of discovery is to advance the sound and expeditious administration of justice by eliminating, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to the litigation.” Rodriguez v. Clarke, 400 Md. 39, 57 (2007)(cleaned up; citation omitted).
“X-ray discovery” is focused, reasonable, and proportionate discovery. A main benefit of x-rays is that they are quick and relatively inexpensive. Of course, while generally safe, they do expose a patient to radiation so there must be a justification for the procedure. Mr. Subrin reports of a pre-1929 case in which 2,258 interrogatories were filed. Id. at 707.
However, sometimes an x-ray is not enough. Doctors may suggest an MRI when appropriate. While MRI’s may detect some injuries or problems that are missed by x-rays, and may present more detailed images of certain areas of the body, MRI’s are more expensive and time-consuming. For a cost comparison, see MRI vs. X-Ray: Pros, Cons, Costs & More (healthline.com).
Some discovery – like the “oceanic” discovery in Khan – is more akin to an MRI than an x-ray.
MRI-type requests, instead of cost-efficient and effective x-ray discovery, was impermissible in Khan, because “discovery, like all matters of procedure, has ultimate and necessary boundaries.” Khan v. County of Cook, 2024 WL 3984263 (N.D. Ill. Aug. 29, 2024), quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947).
In short: “X-rays and MRIs are both valuable diagnostic tools that can help doctors diagnose and treat a range of conditions…. [T]hey work in different ways and are best suited for different types of conditions….” MRI vs X-Ray: What’s The Difference? (medicalimagingsource.com)
In the context of civil discovery, it is important to know the differences. You cannot shoot a mouse with an elephant gun.[1] “The discovery rules are not an excursion ticket to an unlimited, never-ending exploration of every conceivable matter that captures an attorney’s interest. Parties are entitled to a reasonable opportunity to investigate the facts – and no more.” Id., quoting Vakharia v. Swedish Covenant Hosp., 1994 WL 75055, at *2 (N.D. Ill. 1994); see Fed.R.Civ.P. 26(b)(1)(scope of discovery is the claims and defenses, proportionality); Md. Rule 2-401 (scope of discovery is the subject matter of the action).
THE KHAN PARTIES’ VIEWS
After informal discussions, the dentist filed a motion to compel “with a miscellany of what she contends are proper – even ‘modest’ – requests for production.”
In response: “The defendants have a very different view of things and insist there has been perfect fidelity to their obligations under the Rule.” Id. at *1 (emphasis added).
“Perfect” is a dangerous word in the discovery context and perfection has never been the standard.[2] For example, in Khan, one dispute arose over a request that purportedly required producing plaintiff’s W-2 forms twice. The Khan court wrote:
The Hospital has refused to produce the W2s issued to Dr. Khan on the ground that she has previously received them. This is an instance where the book is not worth the candle. The defendants’ objection is overruled, and the requested documents are to be produced within the next 14 days. If this constitutes a second production of the same material, so be it. [emphasis added].
Id. at *7.
One may reasonably question the tactical wisdom of placing that dispute before the court. There may have been better alternative strategies. See, e.g., Accurate and Complete Discovery Responses Can Be Strategically Advantageous (May 13, 2024).
Dr. KHAN GOT HER “X-RAY” DISCOVERY
Dr. Khan did get – – in my words – – x-ray discovery.
For example, one issue presented was whether peer review materials were discoverable where the grounds for termination were alleged malfeasance by a dentist at a hospital. Cook County Hospital said “no,” relying on the Illinois Medical Studies Act.
The Khan court disagreed and wrote that: “The [peer review] Act is premised on the belief that, absent the privilege, physicians might be reluctant to sit on peer review committees and engage in frank evaluations of their colleagues.… Notwithstanding those laudatory goals, the Illinois Act is not an obstacle to discovery in the instant case.” That is because, in this Title VII case, the evidence considered by a peer review committee lay “at the heart” of the claim. Id. at *5 (citation omitted).
The [peer review] Act is premised on the belief that, absent the privilege, physicians might be reluctant to sit on peer review committees and engage in frank evaluations of their colleagues.… Notwithstanding those laudatory goals, the Illinois Act is not an obstacle to discovery in the instant case.
Khan v. County of Cook, 2024 WL 3984263, at *5 (N.D. Ill. Aug. 29, 2024).
Further, x-ray discovery was not precluded by boilerplate objections that requests were “overly broad, unduly burdensome, disproportionate to the needs of the case,” and were “neither relevant [nor] reasonably likely to lead to the production of admissible evidence.” Those objections were immediately overruled:
These kinds of overly generalized, undifferentiated, undeveloped objections are tantamount to no objection at all, as every court considering what are often termed “lightening objections” has held.… They are not an appropriate basis on which to base a discovery objection.
Id. at *5; see, e.g., General Objections, Dracula, and “Whac a Mole” (Apr. 16, 2024); Court Excused Party From Waiver by Failure to Provide Specific Objections (Aug. 7, 2022).
The Khan court explained that: “To merely conclude, as do the defendants, that the sought-after discovery would be ‘disproportionate’ to the needs of this case is effectively to say nothing of legal significance. Reasoned and incisive arguments, not merely tendentious conclusions, are required to support a claim of disproportionality – or any claim for that matter.” Id. at * 6.
“Bull’s Eye” discovery, like an x-ray, is appropriate. New Sedona Primer Implements the “Bull’s Eye View” of Discovery Requests (Dec. 8, 2021). In the words of Professor Steven Gensler and the Hon. Paul W. Grimm (ret.): “No one shoots at a target by aiming for the outermost circles. You aim first for the bull’s-eye. Discovery should be approached in the same way—go first for what is most important, then follow up (if needed) with the information of lesser value. . . The goal is to avoid the ‘I want everything— and a pony!’ approach to discovery. . .” That is x-ray discovery.
SOME ISSUES REQUIRED ADDITIONAL DEVELOPMENT
Whether to order an x-ray is a medical decision that must be made by a physician, based on facts. Some issues in Khan required further development before the court would enter an order: “Dr. Khan contended that there were ‘significant technical deficiencies’ with the documents actually produced by the defendants that she contends ‘obscure their substance,’ such as: supposedly incomplete’ email chains, emails that are allegedly missing attachments, claims of privilege which are argued to be inapplicable, and production ‘without electronically stored information.’ ….”
Concerned with a possibly unneeded x-ray, the Khan court ordered: “If necessary, counsel are to immediately have a Local Rule 37.2 conference to discuss what particular documents are claimed to be affected. Hopefully, this conference will achieve a better result than its predecessor.” Id. at *8, 10.
In some instances, courts do more than “hope” for fruitful discussions. They order that the discussions be transcribed or recorded. Felder: Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024). Then, the “x-ray” may be “read” by the court.
A DECADE OF DISCOVERY?
Dr. KHAN DID NOT GET, IN MY WORDS, “MRI” DISCOVERY
However, the Khan court determined that Dr. Khan overreached. She also sought “vast amounts of information, including, but not limited to, every document and communication regarding every ‘practitioner’ brought before the Peer Review and EMS Committees over the past decade.” [emphasis added].
While x-ray discovery was proper, an MRI, which the court described as “oceanic” discovery, was not warranted:
Dr. Khan’s insistence on a decade’s worth of discovery is, under the circumstances presented by this case, excessive and thus improper. By not limiting the requests to information relating to those “professionals” involved who were “similarly situated” to Plaintiff, the request is arguably excessive and overbroad…. But more importantly, neither the allegations in the Complaint or Amended Complaint justify Dr. Khan’s extensive request for discovery. Courts have routinely rejected similar, temporally expansive claims…. The kind of oceanic demand exemplified by Dr. Khan’s request for ten year’s worth of information relating to any “practitioner” who has been accused of misconduct underlies the all too common refrain that much of modern day discovery is “a monster on the loose….”
Id. at *8-9 (emphasis added).
There was additional overreaching. For example, Dr. Khan sought MRI-type discovery, asserting “that the defendants are hiding evidence and thus have failed to comply with discovery requests.” The court rejected the allegation because no foundation was provided:
But, saying that production is so scanty that there must be more is insufficient to warrant the granting of a Motion to Compel.… Speculation is never a substitute for proof, and merely insisting that there must be more information than has been produced in discovery is not adequate…. “Mere suspicion or speculation that an opposing party may be withholding discoverable information is insufficient.” …. “Certitude is not the test of certainty. We have been cocksure of many things that were not so.”.… Here, as in any other context, merely “saying so does not make it so.”
Id. at *6 (citations omitted; emphasis added).
Other courts have reached the same conclusion. See Where Producing Party Represents That It Fulfilled Its Duty to Produce, a Motion to Compel Additional Production Cannot Be Based on Speculation (Jul. 27, 2021)(with no credible evidence to support that speculation, a court will usually not compel a producing party to do more work).
The equation is simple: no factual predicate = no MRI-type discovery. Discovery requests must be factually supported, within the scope of discovery under applicable rules, and proportional to the needs of the case.
COOPERATION, GOOD FAITH NEGOTIATIONS, AND EVIDENTIARY SUPPORT OF DISCOVERY ISSUES IS NEEDED
Perhaps the final issue resolved in Khan summarizes the entire case.
The court wrote that Dr. Khan “contends that her request [for a report by Dr. Murphy] went unanswered – a charge denied by the defendants. Deciding who is the more accurate reporter, on the present record, is an impossible task. Thus, the Report must be produced. If it is being produced for the second time, so be it.” Id. at *10 (emphasis added). In short: “Mere assertions, without more, in a motion or brief that something is or is not so, is not decisive.” Id. at n. 3.
Deciding who is the more accurate reporter, on the present record, is an impossible task. Thus, the Report must be produced. If it is being produced for the second time, so be it.
Khan v. County of Cook, 2024 WL 3984263, at * 10 (N.D. Ill. Aug. 29, 2024) (emphasis added).
Specificity is required in discovery requests, discovery objections, and in “good faith”[3] negotiations. See, e.g., Fiskars II: Vague Challenge to Privilege Log Entries Deemed Defective (Aug. 25, 2024); Proportionality Analysis in Vanessa Bryant’s Emotional Distress Case (Nov. 18, 2021), citing Wright & Miller, 8 Fed. Prac. & Proc. Civ. § 2008.1 (3d ed.).
Factual support is required for successful motions. See Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007)(emphasis added).
Notes
[1] Categorical Privilege Logs: Don’t Shoot a Mouse with an Elephant Gun (Mar. 25, 2021).
[2] See What Does “The Making of a Surgeon” Have to Do With ESI and “Software Glitches?” (Jul. 15, 2021)(“Courts cannot and do not expect that any party can meet a standard of perfection.” [citation omitted]); Requests for “Any and All” Documents Are Obsolete – Update (Jul. 6, 2024)(courts condemn “any and all” document requests).
[3] “Good faith” requires both give and take. One court recently wrote that: “Chatting for a bit about a dispute…. is not engaging in a good faith meet and confer.” There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024).
