Hyams v. CVS Health Corporation

Background

Ryan Hyams and CVS Health Corporation and other defendants had raised discovery disputes. The disputes concerned (1) whether 71 withheld documents qualified as patient-safety work product under the Patient Safety and Quality Improvement Act (PSQIA), and (2) whether CVS had shown that responding to Hyams’s Interrogatories Nos. 1–4 and 19 would be unduly burdensome or disproportionate.

Patient-Safety Work Product

The PSQIA protects certain information created or used within a patient-safety evaluation system. CVS relied on the statute’s protection for “deliberations or analysis” within such a system. The court held that this protection covers the deliberations or analysis themselves, not automatically the underlying facts or documents considered during that process. It also held that a document is not necessarily protected in its entirety merely because part of it contains protected analysis; nonprotected factual material must be produced, subject to appropriate redactions.

The court further held that the protection applies only to deliberations or analysis of a patient-safety evaluation system, not to all patient-safety-related activity throughout an organization. The court questioned whether CVS’s proposed system was defined too broadly and noted that CVS’s own description included requirements involving document markings and secure maintenance. The court did not decide whether a system complying with those requirements would qualify as a proper patient-safety evaluation system.

The court ordered CVS to immediately produce all surveillance video and still photographs among the 71 withheld documents. It stated that videos and photographs collected from store cameras operating in the regular course of business could not reasonably be treated as deliberations or analysis and were not protected patient-safety work product.

For the remaining documents, CVS had to produce underlying facts and documents that were not separately protected. Documents containing genuine deliberations or analysis could be redacted. The court specifically identified, based on Hyams’s descriptions, possible examples of nonprotected material: human-resources and manager records of disciplinary investigations, instructions and information given to personnel not involved in patient-safety activities, and employee-discipline records. The court had not reviewed the documents themselves and directed CVS to apply the court’s guidance when reexamining them.

CVS had to complete that reexamination by December 19, 2019, and promptly produce documents required by the order. If CVS continued to claim protection, it had to provide an updated privilege log identifying all individuals with access to each document and all places or systems where the document was located or distributed. If disputes remained, the parties had to meet in person for at least one hour, after which the court could consider reviewing a sample of documents privately.

Burden and Proportionality Objections

The disputed interrogatories sought information about people selected for audits of CVS’s Drug Utilization Review system since August 23, 2015; those individuals’ race or color; whether their employment was terminated based on audit results; who selected Hyams for the audit; and whether the identified individuals failed to follow audit procedures or expectations.

The court overruled CVS’s burden and proportionality objections and ordered CVS to respond. It stated that Interrogatory No. 4 concerned Hyams specifically rather than comparator discovery. For the other interrogatories, the court rejected CVS’s position that it could refuse to provide information about employees unless CVS itself first determined that they were similarly situated to Hyams. Whether employees are similarly situated was a factual question, and discovery was not limited to evidence already admissible at trial.

The court also found CVS’s burden showing inadequate. CVS relied on a declaration from litigation counsel that was not based on personal knowledge and had not provided meaningful support for the claimed burden. The court noted that CVS had received the interrogatories months earlier and had not timely or meaningfully raised the burden objection.

Disposition

The court ordered production and reexamination of the disputed patient-safety materials, subject to the limits and procedures described above. It overruled CVS’s burden and proportionality objections and ordered CVS to respond to Hyams’s interrogatories. Laurel Beeler signed the order as United States Magistrate Judge.