THOMAS B. McCOUN, III, Magistrate Judge.
THIS MATTER is before the court on
Also before the court is
Regarding the motion for protective order, Defendant makes certain broad assertions in opposition to the discovery of peer review and credentialing files and related committee meeting records. These objections are overruled. Initially, while acknowledging Eleventh Circuit precedent holding that the medical peer review privilege does not apply in federal discrimination cases, Defendant urges this court revisit the issue of the applicability of the peer review privilege in this case and requests that on the basis of the privilege, the court deny much of this discovery.
Substantively, Defendant contends that the requests for peer review and credentialing files, and committee meeting minutes for himself, Drs. Steinhoff and Feinman, and all other physicians accused of disruptive behavior are overbroad, unduly burdensome and not likely to reveal relevant evidence. By its argument, Defendant did not revoke Dr. Awwad's staff membership and clinical privileges because of concerns with his disruptive behavior or quality of care (as he alleges), but rather, it was Dr. Awwad's failure to comply with two simple, inexpensive, and non-punitive requirements of counseling and education on anger management and attending continuing medical education seminars on fluid and electrolyte management and sodium/water balance that lead to the revocation. The request for wide-ranging review of peer review and credentialing files as sought by Plaintiff is a fishing expedition and not likely to lead to the discovery of relevant evidence.
Additionally, Defendant urges that the requirements of preparing a privilege log should be deferred or excused until the court determines whether the requested information is otherwise discoverable. To the extent the court is inclined to allow the discovery, Defendant seeks to redact patient information and the identity of the individuals conducting the doctors' peer review.
In response and by its motion, Plaintiff urges the contrary and seeks to obtain the peer review and credentialing files of all physicians accused of disruptive conduct and quality of care concerns from 2000 to present which is essentially the same time frame in which Dr. Awwad worked at LMC. In support, he urges that his Complaint specifically identifies Drs. Steinhoff and Feinman as having engaged in similarly "disruptive" conduct and engaged in significant quality of care issues and thus the hospital's treatment of them is relevant to his suit. He further urges that the files of any other physicians similarly accused of disruptive conduct and quality of care concerns from 2000 forward are appropriate for his discovery and may lead to relevant evidence. Additionally, he argues that to the extent that Defendant should have already claimed a privilege and it has failed to do so, the privilege should be deemed waived and in any event, Defendant should be required to produce a privilege log for all such matters as it claims a privilege on.
By my consideration, the unredacted peer review and credentialing files of Plaintiff (Request Nos. 37-38) are relevant for discovery as well as any related hospital committee meeting minutes (Request Nos. 42-43). Plaintiff's discovery may extend to any other files kept by the hospital related to an investigation of Plaintiff (Request No. 52). As for Drs. Steinhoff and Feinman (Request Nos. 48-51), I reach the same conclusion at least for the period from January 1, 2006, to the present and insofar as such relate to behavioral issues and quality of care issues. Patient identities may be redacted. As for the peer review and credentialing files of any other physician accused of disruptive behavior from January 2000 to the present (Request Nos. 56-57), I find the requests onerous and unduly burdensome. However, to the extent that such evidence as may exist may be relevant to the discrimination claim, Defendant shall permit Plaintiff to review the "trending logs" referenced in the motion for protective order
As for the particular disputes identified in Plaintiff's motion to compel, Defendant's response indicates that a number of objections have been waived and that production will be made as to Request Nos. 2-3, 5, 16-19. It is so ordered. In addition to those requests addressed above, Plaintiff's motion to compel is granted as to all non-privileged matters responsive to Request Nos. 7-10 insofar as such matters relate to the peer review of Plaintiff; Request Nos. 21-22; Request Nos. 24-25; Request Nos. 26-27, 41; Request No. 30 insofar as it relates to communications concerning the peer review and termination of Plaintiff; Request No. 46; Request No. 47 insofar as such relates to Plaintiff's peer review and termination; Request No. 62 insofar as LMC corporate bylaws address medical staff privileges; and Request No. 63 related to the 1/1/2006 document retention policy. As for all other requests, the motion is, at present, denied, essentially for the reasons set forth in Defendant's opposition.
The Defendant's request that it be excused from the requirements of producing a privilege log is also denied. Any party withholding information otherwise discoverable on the basis of privilege shall comply with the provisions of Fed. R. Civ. P. 26 (b)(5). To the extent that either party has withheld documents from matters already produced on the basis of privilege but has failed to comply with the requirements of Rule 26, it shall produce a privilege log or other such notice for such matters within fourteen (14) days from the date of this Order.
Production required hereby shall be made within fourteen (14) days from the date of this Order or as otherwise agreed by counsel.