Rice v. St. Louis Univ., Case No. 4:19-cv-03166 SEP

MANDY RICE, Plaintiff, v. ST. LOUIS UNIVERSITY, et al., Defendants.

Case No. 4:19-cv-03166 SEP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

October 21, 2020

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff Mandy Rice's ("Dr. Rice") Motion for Discovery (Doc. [55]) and Defendant St. Louis University's ("SLU") request for a discovery conference (Doc. [56]).¹ This Court held a teleconference on July 1, 2020, at which counsel for both parties were present.

I. Background

Dr. Rice and SLU previously conducted extensive discovery in a related action in Missouri state court. The parties agree that discovery in this case will be limited to those claims that were not raised in the previous action—namely, Dr. Rice's Title VII claims. The parties disagree about the appropriate extent of that additional discovery and whether certain privileges apply. The Court will consider below the parties' respective requests and objections.²

II. Discussion

A. Dr. Rice's Interrogatories Nos. 11, 12, 23, and 24

Dr. Rice seeks information regarding surgical residents at SLU who were placed on probation or assigned a unique rotation schedule between 2014 and 2018. Doc. [55] ¶¶ 4-7; Hearing Tr. 9:22-10:4. SLU contends that these requests should be restricted to residents in the General Surgery Program between 2016 and 2018. Doc. [57] at 1-2. The Court agrees that Dr. Rice's requests should be confined to residents in the General Surgery program but sees no basis for excluding information from the years 2014 and 2015. See Lyoch v. Anheuser-Busch Co., 164 F.R.D. 62 (E.D. Mo. 1995) (limiting scope of document production related to age or sex discrimination to five years).

SLU also contends that the requests, as phrased, would require it to produce irrelevant documents, such as those containing mundane patient-care matters. Doc. [57] at 3. The Court is sensitive to these concerns, especially considering the voluminous discovery that already took place in state court. SLU will be required to identify only those documents that directly address decisions to place residents on probation or assign them a unique rotation schedule.

B. Lisa Israel's Executive Analysis

In 2019, SLU's Director of Professional Oversight prepared a report (the "Executive Analysis" or "Analysis") on bullying and harassment in the General Surgery program. Dr. Rice seeks to discover the names of all individuals interviewed for the purposes of the Analysis, as well as all related documents. Doc. [55] ¶ 11. SLU objects on the grounds that the Executive Analysis is irrelevant to Dr. Rice's claims because it was not prepared until one year after Dr. Rice's residency had ended. Doc. [57] at 3-4; Doc. [73] at 7-9. SLU also argues that theAnalysis and related information are protected under the self-critical analysis privilege. Doc. [57] at 4.

1. Relevance

The Court finds that the Executive Analysis is relevant to Dr. Rice's Title VII claims. According to Dr. Rice, the Executive Analysis describes a residency program fraught with bullying and harassment of the very kind Dr. Rice alleges here. Doc. [55] ¶ 11; Doc. [59] at 2-3. The Analysis—and by extension the information on which it was based—satisfies the relevance standard for discovery in civil cases. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (requiring only a "threshold showing of relevance . . . before parties are required to open wide the doors of discovery . . . .").

SLU's efforts to downplay the Analysis's relevance are betrayed by its own briefing. For example, SLU cites the Southern District of Ohio's opinion in Jones v. St. Jude S.C., Inc. for the proposition that "me too" evidence is irrelevant in harassment suits. Doc. [73] at 8 (citing 823 F. Supp. 2d 699 (S.D. Ohio 2011)). But as that very court observed, such evidence can be relevant when "the same actors, reasons, and circumstances [are] involved." 823 F. Supp. 2d at 734; see also Sallis v. Univ. of Minn., 408 F.3d 470, 478 (8th Cir. 2007) ("Courts have frequently tailored discovery requests, as to historic company records, to encompass a reasonable time period, both before and after the discriminatory event being alleged.") (internal quotation marks and citation omitted).

As far as the Court can tell, the Executive Analysis involves the same actors, reasons, and circumstances as Dr. Rice's claims. SLU has not alleged wholesale program changes in the year following Dr. Rice's termination, nor a mass exodus of faculty members during that time. And contrary to SLU's assertions, a one-year difference is not so remote as to render the ExecutiveAnalysis irrelevant to Dr. Rice's claims—especially when the Analysis makes specific reference to Dr. Rice's lawsuit. Doc. [59] at 2.

2. The Self-Critical Analysis Privilege

SLU's attempt to invoke the self-critical analysis privilege is unavailing. Evidentiary privileges are governed by Federal Rule of Evidence 501. Rule 501 does not provide for any specific privileges but instead instructs courts to look to "[t]he common law—as interpreted by United States courts in the light of reason and experience . . . ." Fed. R. Evid. 501. "Federal common law recognizes a privilege only in rare situations." In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 (8th Cir. 1997). Indeed, courts generally will not recognize a privilege unless the reasons for doing so outweigh the need for truth. See United States v. Nixon, 418 U.S. 683, 709-10 (1974); Jaffee v. Redmond, 518 U.S. 1, 9 (1996).

While some courts have fashioned a privilege for self-critical analyses, the Eighth Circuit has displayed "a marked reluctance to accept the [] privilege." Capellupo v. FMC Corp., CIV. No. 4-85-1239, 1988 WL 41398, at *4 (D. Minn. May 3, 1988) (citing In re Burlington Northern Inc., 679 F.2d 762, 767 (8th Cir. 1982)); see also In re Burlington Northern Inc., 679 F.2d at 765 n.4 (observing that "courts have appeared reluctant to enforce even a qualified 'self-evaluation' privilege"). This reluctance appears to have calcified over the last four decades. See, e.g., Capellupo, 1988 WL 41398, at *7 (finding magistrate judge's application of the privilege erroneous as a matter of law); West v. Marion Labs. Inc., No. 90-0661-CV-W-2, 1991 WL 517230, at *2 (W.D. Mo. Dec. 12, 1991) ("Considering the general reluctance of the 8th Circuit to acknowledge the 'self-critical analysis' privilege . . . this Court will grant plaintiff's motion to compel discovery . . . ."); Tharp v. Sivyer Steel Corp., 149 F.R.D. 177, 182 (S.D. Iowa 1993) ("[T]he court concludes that the 'self-critical analysis' privilege should not be recognized in thefield of employment discrimination litigation."); LeClere v. Mutual Trust Life Ins. Co., No. C99-0061, 2000 WL 34027973, at *3 (N.D. Iowa June 14, 2000) (refusing to apply "this relatively novel theory of privilege."). See generally Tanner v. McMurray, 405 F. Supp. 3d 1115, 1195-99 (D.N.M. 2019) (recounting the self-critical analysis privilege's "checkered existence in the federal courts") (quoting Mitchell v. Fishbein, 227 F.R.D. 239, 251 (S.D.N.Y. 2005)).

The Court is inclined to follow the majority of federal courts in declining to recognize a self-critical analysis privilege. See Tanner, 405 F. Supp. 3d at 1195 ("The Courts of Appeals that have faced the question directly have not recognized the privilege."). SLU has not cited any precedent of the Eighth Circuit or any district court therein, nor has it shown that "reason and experience" compel this Court to recognize a novel privilege despite that lack of precedent.³ Fed. R. Evid. 501. Accordingly, the Court will grant Dr. Rice's requests for information and documents relating to the Executive Analysis.

C. Dr. Rice's Request for Production No. 3

Dr. Rice requests "any and all communications, reports, or other documents concerning or related to any investigation by SLU into any complaint made by [Dr. Rice] or other residents from January 1, 2017, to the present concerning bullying, harassment, other disruptive behavior, or retaliation engaged in by Dr. Grace Montenegro and/or Dr. Theresa Schwartz." Doc. [55] ¶ 9.SLU objects that such information is privileged under the Missouri peer review statute and the federal Patient Safety and Quality Improvement Act ("PSQIA"). Doc. [73] at 3.

1. Missouri Peer Review Privilege

Section 537.035 of the Missouri Revised Statutes provides that "interviews, memoranda, proceedings, findings, deliberations, reports, and minutes of peer review committees, or the existence of the same, concerning the health care provided any patient are privileged and shall not be subject to discovery . . . ." Mo. Rev. Stat. § 537.035.4. Federal courts are not required to apply state law privileges in federal question cases. Fed. R .Evid. 501. Nonetheless, SLU asks the Court to apply the state law privilege as an exercise of its discretion under the "in the light of reason and experience" component of Rule 501. See Doc. [73] at 3-6. The Court declines that invitation.

As already explained, the creation of new privileges is generally disfavored. Section B., supra. This is especially true in cases of discrimination. See Univ. of Pa. v. E.E.O.C., 493 U.S. 182, 193 (1990) (refusing to recognize academic peer review privilege in Title VII case because "ferreting out this kind of invidious discrimination is a great, if not compelling, governmental interest"). What's more, invocations of medical peer review privileges carry little weight in employment discrimination cases. See Holland v. Muscatine Gen. Hosp., 971 F. Supp. 385, 389 (S.D. Iowa 1997) ("Disclosure of documents and information bearing primarily on employment issues does not materially conflict with the fundamental objective of promoting quality health care served by the peer review privilege.").

SLU notes that Dr. Rice's complaint to SLU was styled as a patient safety complaint rather than a human resources complaint, but that formality does not alter...