The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), the Rules of this Court, and by the referral of the Honorable Curtis L. Collier, United States District Judge, for the resolution of a discovery dispute between the parties. By its Order [Doc. 133] dated April 4, 2008, the Court directed the parties to meet and confer as to the possibility of second depositions of individuals previously deposed in this matter. The parties have complied with the Court's Order, but informed chambers that they were unable to reach agreement as to whether certain topics were appropriate areas of inquiry for a second deposition. On May 29, 2008, the Court conducted a telephonic hearing to entertain argument as to the scope of second depositions of previously deposed individuals. During the hearing, the parties identified several specific areas of concern. The Court will address each of these areas in turn.
I. Inconsistent Testimony
The first issue raised by the parties is whether the plaintiff should be allowed to question a deponent about topics addressed in the deponent's previous deposition, so that the plaintiff can resolve alleged inconsistencies between the testimony of the deponent and that of another individual, or individuals, deposed by the plaintiff.
The Court finds that, to the extent that such questions relate to the amended complaint's allegations of conspiracy, the Court will allow limited questioning based on the allegedly prior inconsistent testimony of the deponent. However, the Court does not condone, nor will the Court allow, a general reopening of all topics previously covered simply because of another witness' allegedly contradictory testimony.
The next issue raised by the parties is whether the plaintiff should be able to inquire as to disciplinary matters involving other individuals. During the hearing, the parties advised the Court that the plaintiff had inquired into this area during past depositions, but that the defendants had objected on the basis of Tennessee's peer review privilege, and further advised the Court that such objections had not yet been resolved. The Court finds that until the defendants' objections as to this issue have been resolved, the plaintiff shall not be allowed to inquire into the area of disciplinary actions involving other individuals during the depositions at issue. Rather, the plaintiff should file a motion to compel as to the previous objections, so that those objections can be resolved.
III. Legal Representation
The next issue raised is whether the plaintiff should be able to inquire as to legal advice given to the leadership of the medical staff. The plaintiff contends that, because the plaintiff is a member of the medical staff, any legal advice given to the medical staff is not privileged as to the plaintiff. The defendants disagree, arguing that the plaintiff was not a member of the medical staff leadership, and thus any advice given to the medical staff leadership, as opposed to the general medical staff, is privileged as to the plaintiff.
As to this issue, the Court finds that the plaintiff shall be allowed to make general inquiries into this area so that he can determine whether the legal advice at issue was being offered to the general medical staff, or only to the medical staff leadership. Accordingly, the plaintiff shall be able to inquire: as to the constituencies of any such meetings where legal advice was provided; as to the identify of the individual(s) who offered the advice; whether legal advice was offered to the deponent, and, if so, whether the deponent received such advice in his or her role as a member of the leadership staff or as a member of the general medical staff. If the defendants feel that such questioning delves into the actual contents of the legal advice at issue, and the defendants continue to maintain that such advice is privileged as to the plaintiff, then the defendants may raise the appropriate objection at that time. In the event of such an objection, the defendants shall prepare the equivalent of a privilege log, setting forth the specific information necessary to identify the areas as to which the privilege is being claimed. Should the plaintiff continue to believe that the matters are not privileged, he may file a motion to compel at that time, seeking resolution of the claimed privilege.
IV. Indemnification Issues
The next issue raised by the parties is whether the plaintiff should be allowed to inquire as to whether the deponents are being indemnified by any other individual, or entity, as to any potential loss in this matter. Defendants contend that the plaintiff should have addressed the issue of indemnification during the prior depositions. The defendants further oppose this area of inquiry, arguing a lack of relevance. The plaintiff contends that the matters are relevant, arguing that the defendants at issue were originally sued in their official capacity. Plaintiff contends that these defendants were not added in their individual capacities until after they had been deposed, and thus that the issue of indemnification would not have been relevant during the original depositions, but has now become relevant because of the individual capacity claims.
The Court notes that the Federal Rules of Civil Procedure provide that all parties must include in their initial disclosures "any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment." Fed. R. ...