United States District Court, S.D. Indiana, Indianapolis Division
WILLIAM I. BABCHUK, M.D. and WILLIAM I. BABCHUK, M.D., P.C. doing business as COMPREHENSIVE MEDICAL IMAGING, Plaintiffs,
INDIANA UNIVERSITY HEALTH, INC., INDIANA UNIVERSITY HEALTH TIPTON HOSPITAL, INC., MICHAEL L. HARLOWE, JOELLEN SCOTT, CARL M. PAFFORD, DIANNA ANDREWS, KEVIN W. CONDICT, MICHAEL E. HARPER, and RICHARD J. YOUNG, Defendants.
PLAINTIFFS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS
DEBRA McVICKER LYNCH, Magistrate Judge.
Before the court is a motion by plaintiffs, Dr. William Babchuk and the corporate entity through which he practices medicine (together, "Dr. Babchuk"), to compel the defendants to produce certain documents and "further and fully respond" to Dr. Babchuk's second document requests. (Dkt. 82). For the reasons stated below, the motion is DENIED. Under the court's order dated September 22, 2014 (Dkt. 80), Dr. Babchuk's response to the defendants' motion for summary judgment is due within 30 days of the entry of this order.
Dr. Babchuk's complaint alleges that the defendants violated his right to due process under the Fourteenth Amendment in connection with the termination of his clinical privileges at defendant IU Health Tipton Hospital (the "Tipton Hospital") on June 26, 2012. The termination of his clinical privileges led to the termination of a contract his medical practice had with the Tipton Hospital to provide radiology services and led to reports of his suspension being made to the National Practitioner Data Bank and to the Office of the Indiana Attorney General Licensing Enforcement Unit. The other defendants are Indiana University Health, Inc. ("IU Health Corporation"), which is alleged to own the Tipton Hospital, and seven individuals alleged to have participated in some way in the decision process that culminated in the termination of Dr. Babchuk's clinical privileges. ( See Complaint, Dkt. 1).
Dr. Babchuk seeks relief under 42 U.S.C. § 1983, which provides a civil remedy against a person who, under color of law, violates another's federal constitutional rights. The Fourteenth Amendment applies only to state actors, and not to conduct by private actors, but under some circumstances conduct by private actors can be characterized as state action for purposes of a constitutional claim via section 1983. E.g., Brentwood Academy v. Tennessee Secondary School Athletic Ass'n., 531 U.S. 288, 295 (2001); Hallinan v. Fraternal Order of Police, 570 F.3d 811, 815 (7th Cir. 2009). The defendants consistently have asserted that the section 1983 claims fail because they are not state actors and therefore could not have violated the Fourteenth Amendment. They first raised this argument in a Rule 12(b)(1) motion to dismiss, which the district court denied because the absence of state action does not deprive the court of subject matter jurisdiction to decide this case; rather, state action is an element of the plaintiffs' cause of action. ( See Dkt. 50). The court also ruled that the state action issue would not be decided in the context of a Rule 12(b)(6) motion to dismiss but must be raised, if before trial, by summary judgment motion. ( Id. ).
The magistrate judge held a conference with the parties and ordered that the defendants could bring an early motion for summary judgment directed at the state action element, and set a status conference for the parties to address any discovery necessary to complete briefing of such a motion. At that status conference, held on June 23, 2014, Dr. Babchuk was directed to serve written discovery relevant to the state action issues by June 30, and the parties were required to address the depositions needed by Dr. Babchuk before responding to the defendants' summary judgment motion, which they had filed on June 19, 2014. The court heard nothing from the parties regarding discovery disputes a month after the defendants' written responses would have been due and set a date certain (September 26, 2014) for Dr. Babchuk's summary judgment response. Only when that deadline was about to expire was the court advised-by an email-of discovery disputes. ( See Dkt. 81). The court directed Dr. Babchuk to file a motion to compel. He did so on October 6, 2014; the motion is fully briefed and before the court for resolution.
The heart of the discovery dispute between the parties concerns whether the defendants are required to produce additional documents regarding their relationships with Indiana University, a state institution. Dr. Babchuk frames that issue by asking the court to overrule a "nexus" objection interposed by the defendants. In response to many of Dr. Babchuk's second discovery requests, the defendants objected that the "request is not limited in time and has no nexus to the challenged 2012 decision regarding Babchuk." The court will first address this issue. It will then reach Dr. Babchuk's other complaints about certain general objections and alleged boilerplate objections, and about the defendants' compliance with Rule 26(b)(5) to provide a privilege log.
I. General Discovery Principles
Rule 26(b)(1) provides that parties may obtain discovery regarding any matter relevant to a claim or defense, yet the court must also limit the extent of discovery otherwise allowable where, for example, the burden or expense of providing it outweighs its likely benefit, "considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Rule 26(b)(2)(C)(iii). See also Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (internal citations omitted) (although strong public policy favors disclosure of relevant materials, court should weigh "the value of the material sought against the burden of providing it and taking into society's interest in furthering the truthseeking function in the particular case before the court"). To apply these basic discovery principles, the court must necessarily review the legal claim at issue for which discovery is sought. The court does so not to express a view on the state action question in this case, but rather to explore the scope of discovery pertinent to the issue as presented in this case.
II. State Action and "Nexus"
The discovery issue before the court asks whether the defendants have failed to produce documents Dr. Babchuk is entitled to discover to support his allegation that the termination of his clinical privileges was the result of state action. Tipton Hospital and IU Hospital Corporation (and the individual defendants alleged to have acted in capacities as employees of these entities) are not Indiana state agencies, but the ambit of the Fourteenth Amendment extends beyond a state and formal government organizations. It does so "when it can be said that the State is responsible for the specific conduct of which the plaintiff complains.'" Brentwood Academy v. Tennessee Secondary School Athletic Ass'n., 531 U.S. 288, 295 (2001) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in original)). "[S]tate action may be found if, though only if, there is such a close nexus between the State and the challenged action' that seemingly private behavior may be fairly treated as that of the State itself.'" Brentwood Academy, 531 U.S. at 295 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
As explained in Brentwood Academy, "a host of facts... can bear on the fairness of such an attribution, " and no single fact is always required for finding state action and no set of circumstances can be said to be "absolutely sufficient, for there may be some countervailing reason against attributing activity to the government." Id. The range of circumstances where state action may be found have included when a challenged action "results from the State's exercise of coercive power, ' when the State provides significant encouragement, either overt or covert, ' or when a private actor operates as a willful participant in joint activity with the State or its agents.'" Id. at 296 (internal citations omitted). A private entity may be a state actor also when "it is controlled by an agency of the State, ' has been delegated a public function by the State, is entwined with government policies, ' or when government is entwined in [its] management or control.'" Id. (internal citations omitted). In Brentwood Academy, the Court found that a nominally private entity was "overborne by the pervasive entwinement of public institutions and public officials in its composition and workings" so that it was not unfair to apply constitutional standards. Id. at 298.
One of Dr. Babchuk's state action theories is the "pervasive entwinement" explored in Brentwood, so it is useful to review the facts of that case. Brentwood Academy concerned the 1997 enforcement of a regulation concerning athlete recruitment adopted by the Tennessee Secondary School Athletic Association ("Association") against a private parochial high school. The Association regulated interscholastic sports among the public and private high schools that were members of the Association, including Brentwood Academy. The Association's history revealed its close ties to the State of Tennessee. At its incorporation in 1925, the Tennessee State Board of Education had recognized the Association's role in enacting and enforcing rules and regulations for athletic competition among the "public schools of Tennessee." Id. at 292. Later, in 1972, the State Board had by rule even "designated" the Association to regulate athletic activities among Tennessee public schools and specifically approved its regulations while retaining the authority to review any changes to regulations. Over the next 20 years, the State Board had on several occasions "reviewed, approved, or reaffirmed" the very Association regulation that was being challenged in the litigation by Brentwood Academy. Id. In 1996, the State Board-after ...