Powers v. Memorial Sloan Kettering Cancer Center

Background

The parties jointly sought more time for fact and expert discovery and filed several letters about discovery disputes. The scheduling order had set September 25, 2020, as the deadline for completing fact discovery and November 9, 2020, as the deadline for completing expert discovery. The court found that the requests and pre-motion letters at Docket Nos. 51, 60, 62, 63, 64, 65, 69, 73, 74, 76, 77, 78, 79, and 80 were untimely because they were filed after the fact-discovery deadline.

Rulings on Discovery Deadlines and Expert Disclosures

The court nevertheless granted in part the parties’ request to extend the discovery deadlines. The parties were ordered to complete fact discovery by November 25, 2020, and expert discovery by January 29, 2021. A revised civil case management plan and scheduling order was to issue separately. The parties were required to serve expert disclosures, other than disclosures for Ms. Zak’s treating physicians, by October 14, 2020.

Before deposing Ms. Zak’s treating physicians, Plaintiff was not required to provide the expert disclosures ordinarily required by Federal Rule of Civil Procedure 26(a)(2)(B). If Plaintiff intended to use a treating physician at trial for testimony beyond what the physician observed as a fact witness during treatment, Plaintiff had to provide supplemental disclosures within two weeks after that physician’s deposition. Defendants’ request to limit the scope of the treating physicians’ depositions was denied.

Audit Trails, Depositions, and Interrogatories

Plaintiff’s pre-motion letter seeking to compel Memorial Sloan Kettering to produce audit trails and other metadata about the creation, retrieval, updating, and destruction of Erika Zak’s electronic medical records was treated as a motion to compel. The motion was denied as untimely and not proportional to the needs of the case.

Plaintiff’s request for permission to take more than ten depositions was also treated as a motion. It was denied as untimely and because Plaintiff had not shown that the proposed depositions would not be cumulative. Plaintiff was limited to ten depositions, including depositions of damages witnesses but excluding depositions of Defendants’ retained experts.

Plaintiff’s request for a finding that Defendants had waived privileges asserted in response to Interrogatory 11 and Requests for Production 5, 13, and 14 was denied without prejudice to renewal. The court cited the request’s untimeliness and held that, under the circumstances, failure to provide a privilege log alone was not a sufficiently flagrant violation of the federal and local rules to warrant waiver of privilege.

The court required Defendants by October 14, 2020, to produce a privilege log identifying each withheld document’s type, date, author, addressees, other recipients, relationships where not apparent, and asserted privilege. Defendants also had to file an affidavit addressing whether they had an official review procedure, whether the withheld statements or reports were made during that procedure, and whether the procedure evaluated an individual physician. Defendants had to produce statements or reports for which they could not truthfully make those required attestations and for which no other privilege applied.

Defendants’ portions of the joint letters concerning Dr. Stephen Solomon were treated as a motion to cancel his subpoena. Judge Lorna G. Schofield granted that motion because Plaintiff could obtain information about Defendants’ practices and procedures through document requests and other fact-witness depositions, the deposition would be cumulative and not proportional to the needs of the case, and the Society of Interventional Oncologists’ best practices were not relevant to the applicable standard of care.

For the proposed Rule 30(b)(6) witness responsible for information-technology issues, the parties were ordered to meet and confer by October 14, 2020, to narrow the topics, and Plaintiff was ordered to serve an amended notice limited to topics relevant to the claims. Any future Rule 30(b)(6) notice concerning Defendants’ policies and procedures was quashed because Plaintiff could obtain that information through other fact-witness depositions and such a deposition would be cumulative and not proportional to the needs of the case.

Plaintiff’s request to compel supplemental interrogatory responses was denied. The court relied on Local Rule 33.3, which generally limits interrogatories at the beginning of discovery to specified categories, including identifying knowledgeable witnesses, calculating damages, and identifying relevant documents and other evidence.

Additional Orders and Disposition

Plaintiff was ordered to produce relevant audio recordings in his possession by October 14, 2020. Defendants were ordered to complete their review of responsive photographs, videos, and art produced by Plaintiff in September by October 30, 2020, and to meet and confer about whether they would stipulate to the authenticity of those materials.

Plaintiff was ordered by October 14, 2020, to provide authorizations needed for Defendants to inspect original pathology slides or obtain re-cuts of pathology specimens from Ms. Zak’s liver ablation procedure at Cleveland Clinic on August 22, 2019. Plaintiff could condition consent to Defendants’ interview of the Cleveland Clinic pathologist on Plaintiff’s counsel being present; if Plaintiff did not consent, Defendants could instead depose the pathologist. The clerk was respectfully requested to close Docket Nos. 51 and 78.