1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Karina Kepler, et al., No. CV-24-00220-TUC-AMM
10 Plaintiffs, ORDER
11 v.
12 NaphCare Incorporated, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiffs Karina Kepler and Carlin Casey’s Motion to 16 Compel Discovery from the County Defendants. (Doc. 68.) Plaintiffs seek to compel 17 Defendants Pima County and Sheriff Chris Nanos (together “County Defendants”) to 18 supplement or produce discovery. (Id.) The motion is fully briefed. (Docs. 70, 72.) For the 19 reasons addressed below, the Court will grant the motion in part and deny it in part. 20 I. Overview 21 Plaintiffs, on behalf of the estate of Mary Faith Casey (“Ms. Casey”), bring claims 22 pursuant to 42 U.S.C. § 1983 and Arizona state law against County Defendants, NaphCare 23 Incorporated, Registered Nurse Jason Chamberlain, Nurse Practitioner Leo Easley, Dr. 24 Mikell Karsten, mental health professional Matthew Woods (together “NaphCare 25 Defendants”), and Dr. John Samaan. (Doc. 1.) Plaintiffs allege Defendants provided Ms. 26 Casey unconstitutionally deficient medical and mental health services in the Pima County 27 Jail (the “Jail”) that led to her deterioration and eventual death. (Id.) 28 On January 22, 2025, a discovery dispute conference was held to discuss the 1 disputed Requests for Production (“RFP”) pursuant to the Court’s September 27, 2024 2 Scheduling Order. (Doc. 44 at 2–3.) On January 27, 2025, the Court ordered Plaintiffs to 3 file a motion to compel. (Doc. 67.) Thereafter, the present motion was filed.1 (Doc. 68.) 4 II. Discussion 5 A. The Scope of Discovery is Governed by Federal Rule of Civil Procedure 26. 6 Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain 7 discovery regarding any nonprivileged matter that is relevant to any party’s claim or 8 defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). Factors 9 courts consider in determining proportionality are “the importance of the issues at stake in 10 the action, the amount in controversy, the parties' relative access to relevant information, 11 the parties' resources, the importance of the discovery in resolving the issues, and whether 12 the burden or expense of the proposed discovery outweighs its likely benefit.” Id. 13 Importantly, “[i]nformation within this scope of discovery need not be admissible in 14 evidence to be discoverable.” Id. District courts have broad discretion in resolving 15 discovery disputes. See Crawford-El v. Britton, 523 U.S. 574, 598 (1998); Hallett v. 16 Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 17 Here, Plaintiffs request discovery regarding County Defendants’ treatment of other 18 patients at the Jail and Defendants’ response to “adverse events” at the Jail.2 Plaintiffs also 19 seek to clarify that their counsel’s communication with Ms. Casey’s former public defender 20 does not violate Arizona Ethics Rule 4.2. As an initial matter, the Court will deny RFP 14 21 to Pima County and RFP 4 to Sheriff Nanos. The Court finds these requests are duplicative, 22 1 County Defendants join in NaphCare Defendants’ request to deny Plaintiffs’ Motion to 23 Compel arguing that it violates Local Rule 7.2(e) by exceeding the permitted page limit. (Doc. 70 at 2.) Local Rule 7.2(e) prohibits motions and responses from exceeding 24 seventeen (17) pages, excluding attachments and required statements of facts. LRCiv 7.2(e). When a motion is brought pursuant to Federal Rule of Civil Procedure 37(a)(3)(B), 25 as it is here, Local Rule 37.1 requires the moving party provide—separately from a memorandum of law—the discovery requested, the response received, and the reason(s) 26 why the response is deficient. LRCiv 37.1. Plaintiffs’ motion is seventeen pages, excluding attachments. (See Doc. 68.) Therefore, Plaintiffs did not violate LRCiv 7.2(e) and County 27 Defendants’ request is denied. 2 As noted in the Court’s May 20, 2025 Order, the Court infers that the terms “serious 28 adverse event” and “adverse event” are defined by contract or National Commission on Correctional Health Care (“NCCHC”) standard. (See Doc. 96 at 4 n.4.) 1 unduly burdensome, or disproportionate to the needs of the case. County Defendants’ 2 objections to these discovery requests are sustained. The Court addresses the remaining 3 requests below.3 4 B. County Defendants’ Response to Adverse Events Involving Other Patients are Relevant. 5 6 Plaintiffs seek to compel discovery related to six RFPs, all of which go to County 7 Defendants’ response to adverse events in the Jail involving other patients. (Doc. 68.) 8 Because Plaintiffs bring claims pursuant to § 1983, to establish municipal liability, 9 Plaintiffs must show, inter alia, that “a ‘policy or custom’ led to the [plaintiff’s injury].” 10 Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). “Official municipal 11 policy includes the decisions of a government's lawmakers, the acts of its policymaking 12 officials, and practices so persistent and widespread as to practically have the force of law.” 13 Endy v. Cnty. of Los Angeles, 975 F.3d 757, 769 (9th Cir. 2020). 14 Here, Plaintiffs allege “Ms. Casey’s mistreatment and death occurred pursuant to 15 multiple ‘systems, policies, practices, and customs’ under Monell” in violation of County 16 Defendants’ constitutional duty to provide adequate patient care. (Doc. 68 at 10–11.) 17 County Defendants object to the requests as irrelevant, disproportionate to the needs of the 18 case, overly broad, unduly burdensome, or compound. (See Docs. 68-14, 68-15.) County 19 Defendants further object on the bases of work product doctrine, attorney-client privilege, 20 Arizona quality assurance privilege, or the Health Insurance Portability and Accountability 21 Act (“HIPAA”). (Id.) 22 County Defendants attempt to narrow discovery by emphasizing that Ms. Casey did 23 not die until “seven weeks after her release from custody.” (Doc. 70 at 5.) County 24 Defendants, in opposing Plaintiffs’ request for Jail “death reviews,” assert that “neither 25 County Defendant is aware of any other death at the Jail that involved delayed mental 26 health medication or treatment, starvation, or a hunger strike.” (Id.) County Defendants
27 3 Because County Defendants assert Ms. Edminson does not wish to speak with Plaintiffs’ counsel without her counsel present, Defendants assert, and Plaintiffs agree, that the issue 28 of communicating ex parte is moot. (Doc. 70 at 7; Doc. 72 at 2.) As such, the Court will not address this request. 1 further assert that Plaintiffs’ request for Jail “death reviews” should be denied because 2 “they are medical, not custodial claims,” and Plaintiffs’ claims against the County 3 Defendants are “premised solely on a non-delegable duty theory and based solely on the 4 actions of NaphCare.” (Id.) 5 Defendants mischaracterize the scope of discovery in this case. Federal Rule of Civil 6 Procedure 26 is clear that material relevant to “any party’s claim or defense” is 7 discoverable. Fed. R. Civ. P.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Karina Kepler, et al., No. CV-24-00220-TUC-AMM
10 Plaintiffs, ORDER
11 v.
12 NaphCare Incorporated, et al.,
13 Defendants. 14 15 Pending before the Court is Plaintiffs Karina Kepler and Carlin Casey’s Motion to 16 Compel Discovery from the County Defendants. (Doc. 68.) Plaintiffs seek to compel 17 Defendants Pima County and Sheriff Chris Nanos (together “County Defendants”) to 18 supplement or produce discovery. (Id.) The motion is fully briefed. (Docs. 70, 72.) For the 19 reasons addressed below, the Court will grant the motion in part and deny it in part. 20 I. Overview 21 Plaintiffs, on behalf of the estate of Mary Faith Casey (“Ms. Casey”), bring claims 22 pursuant to 42 U.S.C. § 1983 and Arizona state law against County Defendants, NaphCare 23 Incorporated, Registered Nurse Jason Chamberlain, Nurse Practitioner Leo Easley, Dr. 24 Mikell Karsten, mental health professional Matthew Woods (together “NaphCare 25 Defendants”), and Dr. John Samaan. (Doc. 1.) Plaintiffs allege Defendants provided Ms. 26 Casey unconstitutionally deficient medical and mental health services in the Pima County 27 Jail (the “Jail”) that led to her deterioration and eventual death. (Id.) 28 On January 22, 2025, a discovery dispute conference was held to discuss the 1 disputed Requests for Production (“RFP”) pursuant to the Court’s September 27, 2024 2 Scheduling Order. (Doc. 44 at 2–3.) On January 27, 2025, the Court ordered Plaintiffs to 3 file a motion to compel. (Doc. 67.) Thereafter, the present motion was filed.1 (Doc. 68.) 4 II. Discussion 5 A. The Scope of Discovery is Governed by Federal Rule of Civil Procedure 26. 6 Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain 7 discovery regarding any nonprivileged matter that is relevant to any party’s claim or 8 defense and proportional to the needs of the case . . . .” Fed. R. Civ. P. 26(b)(1). Factors 9 courts consider in determining proportionality are “the importance of the issues at stake in 10 the action, the amount in controversy, the parties' relative access to relevant information, 11 the parties' resources, the importance of the discovery in resolving the issues, and whether 12 the burden or expense of the proposed discovery outweighs its likely benefit.” Id. 13 Importantly, “[i]nformation within this scope of discovery need not be admissible in 14 evidence to be discoverable.” Id. District courts have broad discretion in resolving 15 discovery disputes. See Crawford-El v. Britton, 523 U.S. 574, 598 (1998); Hallett v. 16 Morgan, 296 F.3d 732, 751 (9th Cir. 2002). 17 Here, Plaintiffs request discovery regarding County Defendants’ treatment of other 18 patients at the Jail and Defendants’ response to “adverse events” at the Jail.2 Plaintiffs also 19 seek to clarify that their counsel’s communication with Ms. Casey’s former public defender 20 does not violate Arizona Ethics Rule 4.2. As an initial matter, the Court will deny RFP 14 21 to Pima County and RFP 4 to Sheriff Nanos. The Court finds these requests are duplicative, 22 1 County Defendants join in NaphCare Defendants’ request to deny Plaintiffs’ Motion to 23 Compel arguing that it violates Local Rule 7.2(e) by exceeding the permitted page limit. (Doc. 70 at 2.) Local Rule 7.2(e) prohibits motions and responses from exceeding 24 seventeen (17) pages, excluding attachments and required statements of facts. LRCiv 7.2(e). When a motion is brought pursuant to Federal Rule of Civil Procedure 37(a)(3)(B), 25 as it is here, Local Rule 37.1 requires the moving party provide—separately from a memorandum of law—the discovery requested, the response received, and the reason(s) 26 why the response is deficient. LRCiv 37.1. Plaintiffs’ motion is seventeen pages, excluding attachments. (See Doc. 68.) Therefore, Plaintiffs did not violate LRCiv 7.2(e) and County 27 Defendants’ request is denied. 2 As noted in the Court’s May 20, 2025 Order, the Court infers that the terms “serious 28 adverse event” and “adverse event” are defined by contract or National Commission on Correctional Health Care (“NCCHC”) standard. (See Doc. 96 at 4 n.4.) 1 unduly burdensome, or disproportionate to the needs of the case. County Defendants’ 2 objections to these discovery requests are sustained. The Court addresses the remaining 3 requests below.3 4 B. County Defendants’ Response to Adverse Events Involving Other Patients are Relevant. 5 6 Plaintiffs seek to compel discovery related to six RFPs, all of which go to County 7 Defendants’ response to adverse events in the Jail involving other patients. (Doc. 68.) 8 Because Plaintiffs bring claims pursuant to § 1983, to establish municipal liability, 9 Plaintiffs must show, inter alia, that “a ‘policy or custom’ led to the [plaintiff’s injury].” 10 Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016). “Official municipal 11 policy includes the decisions of a government's lawmakers, the acts of its policymaking 12 officials, and practices so persistent and widespread as to practically have the force of law.” 13 Endy v. Cnty. of Los Angeles, 975 F.3d 757, 769 (9th Cir. 2020). 14 Here, Plaintiffs allege “Ms. Casey’s mistreatment and death occurred pursuant to 15 multiple ‘systems, policies, practices, and customs’ under Monell” in violation of County 16 Defendants’ constitutional duty to provide adequate patient care. (Doc. 68 at 10–11.) 17 County Defendants object to the requests as irrelevant, disproportionate to the needs of the 18 case, overly broad, unduly burdensome, or compound. (See Docs. 68-14, 68-15.) County 19 Defendants further object on the bases of work product doctrine, attorney-client privilege, 20 Arizona quality assurance privilege, or the Health Insurance Portability and Accountability 21 Act (“HIPAA”). (Id.) 22 County Defendants attempt to narrow discovery by emphasizing that Ms. Casey did 23 not die until “seven weeks after her release from custody.” (Doc. 70 at 5.) County 24 Defendants, in opposing Plaintiffs’ request for Jail “death reviews,” assert that “neither 25 County Defendant is aware of any other death at the Jail that involved delayed mental 26 health medication or treatment, starvation, or a hunger strike.” (Id.) County Defendants
27 3 Because County Defendants assert Ms. Edminson does not wish to speak with Plaintiffs’ counsel without her counsel present, Defendants assert, and Plaintiffs agree, that the issue 28 of communicating ex parte is moot. (Doc. 70 at 7; Doc. 72 at 2.) As such, the Court will not address this request. 1 further assert that Plaintiffs’ request for Jail “death reviews” should be denied because 2 “they are medical, not custodial claims,” and Plaintiffs’ claims against the County 3 Defendants are “premised solely on a non-delegable duty theory and based solely on the 4 actions of NaphCare.” (Id.) 5 Defendants mischaracterize the scope of discovery in this case. Federal Rule of Civil 6 Procedure 26 is clear that material relevant to “any party’s claim or defense” is 7 discoverable. Fed. R. Civ. P. 26(b)(1) (emphasis added). Further, the fact that Ms. Casey 8 was discharged in a condition that necessitated direct release to hospice is reasonably 9 comparable to cases in which death occurred while in custody. These allegations cast a 10 broader net than Ms. Casey’s personal medical records and warrant broader discovery. See 11 Wright v. S. Arizona Children's Advoc. Ctr., No. CV-21-00257-TUC-JGZ, 2023 WL 12 3595714, at *1 (D. Ariz. May 23, 2023) (quoting 6 James Wm. Moore et al., Moore's 13 Federal Practice § 26.46 (3d ed. 2023)) (“In civil-rights actions alleging violations of 14 § 1983, federal policy favors broad discovery.”). As such, records involving patients who 15 died in the Jail or who sustained an adverse event at or near the time frame alleged in this 16 case are relevant. County Defendants response to those adverse events is equally relevant 17 due to its deliberate indifference defense. (Doc. 81 at 25.) 18 To the extent that County Defendants object to discovery based on HIPAA, 19 Defendants’ objections are overruled. While HIPAA prohibits a covered entity from 20 disclosing patients’ protected health information (“PHI”), HIPAA allows for disclosure 21 pursuant to a protective order in this type of situation. See 45 C.F.R. § 164.512(e) (a 22 covered entity may disclose PHI in any judicial proceeding pursuant to a court order or in 23 response to a discovery request with a qualified protective order). 24 Likewise, County Defendants’ objections based on Arizona state privileges, such as 25 quality assurance, are overruled. The Ninth Circuit has made clear that federal privilege 26 law governs in federal cases, even when state law claims are involved. See Agster v. 27 Maricopa Cnty., 422 F.3d 836, 839 (9th Cir. 2005) (affirming the district court’s order to 28 produce the mortality review in a case involving the death of a prisoner and declining to 1 create a federal peer review privilege because “[i]n these circumstances, it is peculiarly 2 important that the public have access to the assessment by peers of the care provided”); 3 Fed. R. Evid. 501, Advisory Committee Notes 1974 Addition (where there are federal 4 question claims and pendent state law claims present, the federal law of privilege applies); 5 In re TFT-LCD (Flat Panel) Antitrust Litig., 835 F.3d 1155, 1158 (9th Cir. 2016) (quoting 6 Wilcox v. Arpaio, 753 F.3d 872, 876 (9th Cir. 2014)) (“Where, as here, the same evidence 7 relates to both federal and state law claims, we are not bound by Arizona law on privilege. 8 Rather, federal privilege law governs.”). 9 Further, to the extent that County Defendants object based on attorney-client 10 privilege or work product doctrine under the Federal Rules, Defendants failed to follow the 11 proper procedure to invoke these privileges. Defendants did not produce a privilege log 12 specifically identifying what documents or pieces of information to which attorney-client 13 privilege applies. Nor did Defendants submit evidence supporting what material it believes 14 is protected by the work product doctrine. Burlington N. & Santa Fe Ry. Co. v. Dist. Ct. 15 for Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) (“[B]oilerplate objections or blanket 16 refusals inserted into a response to a Rule 34 request for production of documents are 17 insufficient to assert a privilege.). Thus, Defendants’ blanket objections are improper and 18 overruled. 19 Finally, County Defendants request the Court enter a protective order to “prevent 20 the continued misuse of discovery.” (Doc. 70 at 2.) While the Court may for good cause 21 issue a protective order pursuant to Federal Rule of Civil Procedure 26(c) to protect a party 22 from “annoyance, embarrassment, oppression, or undue burden or expense,” a protective 23 order is not necessary at this time. Fed. R. Civ. P. 26(c)(1). County Defendants’ request is 24 denied. Nevertheless, the Court is mindful that County Defendants have spent substantial 25 time meeting, conferring, and responding to Plaintiffs’ requests, some of which are likely 26 covered by ESI searches or overlap with other RFPs or Interrogatories. (See Doc. 70 at 3– 27 4.) Plaintiffs are advised that while they may face a steep evidentiary burden to prove their 28 Monell claims, the Court is not inclined to allow a fishing expedition disguised as a 1 discovery request. See Webb v. Trader Joe’s Co., 999 F.3d 1196, 1204 (9th Cir. 2021). As 2 such, the Court narrows Plaintiffs’ discovery as follows: 3 RFP 3 to Pima County: Any documents produced to John Washington regarding 4 adverse patient outcomes in the Pima County Jail between January 1, 2022 and January 1, 5 2023. 6 RFP 5 to Pima County: The underlying patient files reviewed by Pima County for 7 the audits of NaphCare’s services at the Pima County Jail completed between April 1, 2022 8 and October 1, 2022. 9 RFP 14 to Sheriff Nanos: All Pima County Jail “death review” reports conducted 10 by the Pima County Sheriff’s Office between January 1, 2022 and January 1, 2023. 11 RFP 21 to Sheriff Nanos: Messages on GTL (the “inmate tablet communication 12 software”) from April 1, 2022 to August 30, 2022 that contain the phrase “need my 13 medicine,” “need medication,” or “need my medication,” and messages that contain the 14 terms “prescription” and “urgent.” 15 Accordingly, 16 IT IS ORDERED that Plaintiffs’ Motion to Compel Discovery from the County 17 Defendants is GRANTED IN PART and DENIED IN PART. (Doc. 68.) 18 IT IS FURTHER ORDERED that Plaintiffs’ motion is DENIED with regard to 19 RFP 14 to Pima County and RFP 4 to Sheriff Nanos. 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED that County Defendants shall have up to and || including June 13, 2025 to provide Plaintiffs with full and complete responses, as modified || by the Court above, to RFP Nos. 3 and 5 to Pima County, and 14 and 21 to Sheriff Nanos. 4|| When necessary to protect PHI, the production shall be pursuant to a protective order. Any 5 || documents or information withheld from County Defendants’ discovery responses based 6 || on privilege must be identified in their discovery responses and/or privilege log. 7 IT IS FURTHER ORDERED that the results of all ESI searches shall be produced || by June 13, 2025. 9 Dated this 20th day of May, 2025. 10 M1 bw 2 Ywucte 12 Honorable Angela M. Martinez B United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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