Opinion
No. C97-0226.
January 15, 1999.
ORDER
This matter comes before the court pursuant to movant's motion for protective order, and to quash subpoena duces tecum (docket number 54), and plaintiff's joinder in movant's motion (docket number 57), defendants' November 25, 1998, motion for extension of time (docket number 59), defendants' December 4, 1998, motion requesting that the court's December 2, 1998, order be placed under seal or alternatively that portions be redacted (docket number 63), plaintiff's December 8, 1998, motion for leave to file second amended and substituted complaint (docket number 64), defendants' December 22, 1998, alternative request that the scheduling order be modified to prevent prejudice to defendants (docket number 70), defendants' December 23, 1998, motion to amend defendants' opposition to plaintiff's motion for leave to file second amended complaint (docket number 71), and plaintiff's December 23, 1998, motion for extension of time to file a reply brief (docket number 72).
MOTION FOR PROTECTIVE ORDER Background
The plaintiff in this case, Dixie Ray (Ray), claims that her termination from her employment with the defendant, Winslow House Care Center (Winslow House) on July 29, 1996 was in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 (ADA); the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA); Iowa Code Chapter 216; and Iowa common law. Winslow House claims it terminated Ray for continuing performance problems, including an incident in which a resident was restrained on the shift for which Ray was the charge nurse. Ray argues that the reasons given by Winslow House for her termination were fabricated.
On July 23 — 25, 1996, the Iowa Department of Inspection and Appeals (the State), conducted a survey/investigation at Winslow House after complaints were filed alleging various deficiencies in the level of care Winslow House provided its residents. The State found the complaint of improper restraint of some patients to be substantiated. On November 11, 1998, Winslow House served the State with a subpoena duces tecum and Notice of Taking Deposition directing the State to produce a copies of any and all documents, notes, reports, and memos relating to or involving the investigation of Winslow House. The State contends that federal and state law require that the State keep its investigative records and files confidential, and therefore moves to quash this subpoena duces tecum and moves for a protective order. The State further argues that its investigation files are not relevant to the issues being litigated in this case. Ray has joined in the State's motion.
Applicable Law
Ray's allegations surrounding her termination raise both federal questions and pendent state law claims. Therefore, the federal law of privileges governs all claims of privilege raised in the litigation where the issue is the discoverability of evidence. Hansen v. Allen Mem'l Hosp., 141 F.R.D. 115, 121 (S.D. Iowa 1992) ("Discovery in civil litigation pending in a federal court is governed by the Federal Rules of Civil Procedure."). Federal Rule of Civil 26(b)(1) provides, in relevant part: "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . ." Federal Rule of Evidence 501, the general rule of privileges provides, in relevant part:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.
However, state law is still relevant and should be considered by federal courts when determining whether a state privilege should be recognized as a matter of federal law. Hansen, 141 F.R.D. at 122; Holland v. Muscatine Gen. Hosp., 971 F. Supp. 385, 389 (S.D. Iowa 1997). This is the case because "[a] strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy." Hansen, 141 F.R.D. at 122, quoting Mem'l Hosp. for McHenry County v. Shadur, 664 F.2d 1058,1061 (7th Cir. 1981). It must also be taken into consideration that evidentiary privileges that serve to exclude potentially relevant evidence, are not favored, and must be narrowly construed. Id. "The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence." United States v. Nixon, 418 U.S. 683, 709 (1974). Thus, in deciding whether to recognize a state privilege, a federal court must weigh the importance of the full disclosure of relevant facts against the importance of the policy sought to be furthered by the state through the existence of the privilege. Hansen, 141 F.R.D. at 122.
Relevancy of Documents at Issue
The State argues that the documents subject to the subpoena are not only confidential, but are also not relevant to the issues being litigated in this case. Ray joins in this argument. Specifically, Ray points to individual defendant Donna Morrissey's deposition testimony that she was solely responsible for the decision to terminate Ray's employment, and that her decision was independent of the incident set forth in the State's investigative file.
Winslow House argues that the documents at issue are necessary to defend themselves against Ray's accusations that the reasons given for her termination were fabrications. Winslow House also argues that the documents at issue are relevant as they may serve to impeach the credibility of Marsh Sandor and Kim Ricklefs. Sandor and Ricklefs, neither of whom are currently employed by Winslow House, both provided statements or other documentation during their course of employment with Winslow House relating to Ray's performance problems. Later, however, Sandor and Ricklefs provided Ray's attorney with affidavits which contradict their former statements and documentation. Ricklefs now claims that any negative reports generated by her regarding Ray were false and the result of duress by her then employers and now individual defendants in this lawsuit. Additionally, Winslow House claims the documentation is relevant because it believes that Norma Anton and Sue Shipman, also former employees, witnessed some of Ray's performance problems, but have since changed their opinions to support Ray's claims. Winslow House believes that the investigative file may contain statements or complaints from these witnesses which will serve to impeach their now favorable statements regarding Ray.
Federal and State Laws Requiring Confidentiality
The State argues that both federal law and Iowa law require that it keep its investigative records and files confidential. Specifically, the State cites to Iowa Code §§ 135C.19 and 135C.37, 481 IAC 50.8(1), 42 U.S.C. § 1396r(g)(5)(A), 42 C.F.R. § 483.10, and 42 C.F.R. § 488.325. The court shall consider each of these provisions in turn.
Iowa Code § 135C.19 calls for the public disclosure of the final findings following a state inspection and the posting of citations. Section 135C.19 provides, in relevant part:
Other information relating to a health care facility obtained by the department which does not constitute the department's findings from an inspection of the facility shall not be made available to the public except in proceedings involving the citation of a facility for a violation under section 135C.40, or the denial, suspension, or revocation of a license under this chapter. The name of a person who files a complaint with the department shall be confidential.
Iowa Code § 135C.37 governs the procedure for an individual to file a complaint and request an inspection of a heath care facility. This section provides, in relevant part:
The name of the person who files a complaint with the department, care review committee, or the long-term care resident's advocate shall be kept confidential and shall not be subject to discovery, subpoena, or other means of legal compulsion for its release to a person other than department employees involved in the investigation of the complaint.
The policy furthered by this provision is the curtailment of any discrimination or retaliation in any form against a resident or an employee who has filed a complaint or participated in the investigative process. Iowa Code § 135C.46 (1997). Winslow House has no objection to the names of any complainants being redacted prior to being produced.
Iowa Admin. Code r. 481-50.8(1) provides, in relevant part:
The department maintains information about long-term care facilities in files which are organized by facility name, city, and county. No information is retrievable by personal identifier. Each long-term care facility record contains both open and confidential information.
a. Open information includes:
(3) Final findings of state and Medicaid survey investigations
b. Confidential information includes:
(1) Survey or investigation information which does not comprise a final finding. Survey information which does not comprise a final finding may be made public in a proceeding concerning the citation of a facility, denial, suspension or revocation of a license . . .,
(2) Names of all complainants . . .,
(3) Names of patients in all facilities, identifying medical information and the address of anyone other than an owner. . . .
Title 42 of the United States Code, section 1396r (5)(A) sets forth what information shall be disclosed to the public following the inspection of a nursing facility. Specifically, this section provides, in relevant part:
Each State, and the Secretary, shall make available to the public — information respecting all surveys and certifications made respecting nursing facilities, including statements of deficiencies, . . . and approved plans of correction,
copies of cost reports of such facilities . . .
copies of statements of ownership. . . .
42 U.S.C. § 1396r(5)(A). Likewise, 42 C.F.R. § 488.325 calls for public disclosure of the results of surveys and other information, upon public request. Finally, this court notes the State's reliance on 42 C.F.R. § 483.10, which mandates a certain level of privacy and confidentiality for nursing home residents. Specifically, it states that a "resident has the right to personal privacy and confidentiality of his or her personal and clinical records." 42 C.F.R. § 483.10(e). It also calls for a certain level of personal privacy for the residents as it relates to resident communications, visits, accommodations, and the like. 42 C.F.R. § 483.10(e).
With the exception of ensuring confidentiality to those individuals who file complaints against nursing homes, the various statutes cited by the State do not provide a guarantee of confidentiality nor provide a real expectation of privacy to those individuals involved in the investigation/survey process. See Hansen, 141 F.R.D. 115 at 124 (noting that express guarantees of confidentiality create an expectation of privacy that weighs in favor of upholding state privilege). Granted, the Iowa Admin. Code r. 481-50.8(1) states that "survey or investigation information which does not compromise a final finding" is considered confidential. However, it also provides for instances which this same information may be made available to the public. Iowa Admin. Code r. 481-50.8(1)(b)(1). See Burka v. New York City Transit Authority, 110 F.R.D. 660, 665 (S.D.N.Y. 1986) (expectation of privacy created New York law which limits disclosure of personal information by a public agency is undercut by the numerous circumstances set forth in the statute where disclosure is permitted).
It is very difficult to resolve this motion without viewing the state's investigative file in camera. Because the defendants have not seen these materials, they can only speculate as to what might be in the file that would assist them in their defense. It may be that there is little information helpful to the defendants. It could also be the case that certain employees and residents are entitled to strong protection and confidentiality. These questions are very difficult to decide in the abstract. Accordingly, the court will order their production for in camera inspection.
MOTION TO AMEND
Fed.R.Civ.P. 15(a) provides that leave to amend shall be freely given when justice so requires. The Supreme Court has stated that the granting of leave to amend is within the discretion of the district court. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). However, in the absence of a good reason for the denial of the motion, such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the defendant or futility of the amendment, denial of leave to amend is an abuse of discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). Delay alone in amending the complaint is insufficient justification for a denial of leave to amend. Prejudice of the nonmovant must also be shown. Bell v. All State Life Ins. Co., 160 F.3d 452 (8th Cir. 1998). This court does not believe that significant additional discovery will be required as a result of this amendment to this already very acrimonious case.
Upon the foregoing,
IT IS ORDERED
1. Ruling is reserved on movant's motion for protective order, and to quash subpoena duces tecum (docket number 54) and plaintiff's joinder in movant's motion (docket number 57). The State shall submit the investigative file at issue to the court for in camera inspection. It should be placed in a sealed envelope or box and mailed to the court's chambers.
2. Defendants' November 25, 1998, motion for extension of time (docket number 59) is granted.
3. Defendants' December 4, 1998, motion requesting that the court's December 2, 1998, order be placed under seal or alternatively that portions be redacted (docket number 63) is denied.
4. Plaintiff's December 8, 1998, motion for leave to file second amended and sustituted complaint (docket number 64) is granted.
5. Defendants' December 22, 1998, alternative request that the scheduling order be modified to prevent prejudice to defendants (docket number 70) is granted. The time for the completion of discovery is extended to and including July 1, 1999. All dispositive motions shall be filed on or before July 15, 1999.
6. Defendants' December 23, 1998, motion to amend defendants' opposition to plaintiff's motion for leave to file second amended complaint (docket number 71) is granted.
7. Plaintiff's December 23, 1998, motion for extension of time to file a reply brief (docket number 72) is granted.