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, on the Motion to Quash Plaintiff's Subpoena and Notice to Take Deposition [Doc. 213] of subpoenaed parties Tennessee Medical Foundation and Roland Gray, M.D., V. Stephen Monroe, Jr., M.D.'s Motion to Quash [Doc. 235], and the plaintiff's Motion to Compel. [Doc. 244] On September 22, 2008, the parties appeared before the Court for a hearing on the instant motions. Attorney John P. Konvalinka appeared on behalf of the plaintiff, attorneys Joseph R. White and Fred H. Moore appeared on behalf of defendant Erlanger, attorney Stephen D. Gay appeared on behalf of defendant Twiest, attorneys J. Bartlett Quinn and Nathaniel S. Goggans appeared on behalf of defendant Monroe, attorney Leah M. Gerbitz appeared on behalf of defendants Mutter, Fisher, and Shumaker, and attorney David L. Steed appeared on behalf of subpoenaed parties Tennessee Medical Foundation ("TMF") and Dr. Gray. After the hearing, the Court took the motions under advisement and they are now ripe for adjudication.
I. TMF and Dr. Gray's Motion to Quash Plaintiff's Subpoena and Notice to Take Deposition [Doc. 213]
Subpoenaed parties TMF and Dr. Gray move the Court to quash the plaintiff's subpoena and notice of deposition, served by the plaintiff on July 29, 2008. The subpoena and notice commanded Dr. Gray to appear for a deposition on August 19, 2008, and also commanded him to produce "[a]ny and all documents relating to Alexander Stratienko, M.D. in [his] possession." [Doc. 213-2] The parties agreed to delay the deposition and execution of the subpoena to allow the Court time to hear Dr. Gray's motion.
As grounds for his motion to quash, Dr. Gray argues that any testimony or documents he might provide were received in conjunction with Dr. Gray's role as Medical Director for TMF, an organization which serves as an impaired physician peer review committee, and he thus argues that such testimony and documents are protected from discovery by Tennessee's peer review privilege, codified at Tennessee Code Annotated § 63-6-219. Dr. Gray further argues that, prior to the instant case's removal to this Court, the Circuit Court for Hamilton County quashed a similar subpoena served by the plaintiff on Dr. Gray on the basis of the peer review privilege. [Doc. 213-3] Additionally, Dr. Gray avers that he is "unaware of having any knowledge relating to Dr. Twiest or Dr. Stratienko that would not fall within the statutory prohibitions against disclosure and exemption from discovery." [Doc. 215 at ¶ 6] The plaintiff, Dr. Monroe, and Dr. Twiest all oppose the motion, arguing that the state privilege does not apply in federal court. The plaintiff further argues that the defendants have listed Dr. Gray as a trial witness, and thus the plaintiff is entitled to depose Dr. Gray to determine the scope of his expected trial testimony.*fn1
As the Court noted in its Order of August 24, 2008 [Doc. 259], in light of the federal questions raised by the plaintiff in this matter, Rule 501 of the Federal Rules of Evidence mandates that federal, not state, privilege law controls in this case. In that same Order, the Court held that there is no federal peer review privilege, and that the Court must therefore apply a balancing test to determine whether the Court should apply the state privilege in this instance. [Doc. 259 at 6-8]
In support of his position that the Court should recognize a state privilege, Dr. Gray relies on a 1999 case from the Eastern District of Tennessee, Kennedy v. Dermatology Associates of Knoxville, P.C., 3:97-CV-534, slip op. (E.D. Tenn. Oct. 20, 1999). In that opinion, Magistrate Judge Murrian applied Tennessee's peer review privilege and granted the TMF's motion to quash. However, in an earlier opinion in that case, Kennedy v. Dermatology Associates of Knoxville, P.C., 183 F.R.D. 619, 621 (E.D. Tenn. Feb. 22, 1999), Magistrate Judge Murrian held that "Jurisdiction in this case is based upon the citizenship of the parties and is not in controversy. 28 U.S.C. § 1332. Therefore, pursuant to Fed. R. Evid. 501 the substantive law of privilege of the State of Tennessee applies in this case." Kennedy, 183 F.R.D. at 621. As the instant case is before the Court under the Court's federal question jurisdiction, and not diversity jurisdiction, thus changing the application of Rule 501, the Kennedy case is inapposite. Therefore, the Court proceeds with the application of the previously established balancing test to the facts and circumstances surrounding Dr. Gray's deposition.
As the Court found in its previous Order, "[t]he purpose of Tennessee's peer review statute is to candidly and objectively evaluate and review a physician's professional conduct, competence, and ability to practice medicine. It goes without saying that confidentially of peer review committee proceedings is important to the process." In re DOJ Subpoena Duces Tecum, No. 04-MC-018 DV, 2004 U.S. Dist. LEXIS 26153 at *5 (W.D. Tenn. 2004). Thus, Tennessee's peer review privilege does promote a very important interest, one which the Court will not lightly disregard. However, as the Court also noted in its previous Order, the parties have a compelling need to obtain probative evidence in this matter.
The balance in this circumstance is further affected by the fact that Dr. Twiest is willing to waive any privilege as to his conversation with Dr. Gray. Similarly, plaintiff's counsel stated at the hearing that if the plaintiff intended to present evidence at trial as to Dr. Stratienko's conversation with Dr. Gray, counsel would alert opposing counsel and would waive the privilege as to that communication. In light of the parties' positions, coupled with the need to obtain probative evidence in this matter regarding the actions of Dr. Twiest and others on or about September 16, 2004, as such actions relate to the plaintiff, the Court finds that the Court should not apply Tennessee's peer review privilege in this instance, as the need for probative evidence in this matter outweighs the interest promoted by the privilege. Accordingly, Dr. Gray's motion [Doc. 213] is DENIED in part, to the extent that the Court will not, in this instance, recognize Tennessee's peer review privilege as to the conversation between Dr. Gray and Dr. Twiest that occurred on or around September 16, 2004, as it relates to the plaintiff and the events at issue in this case.
In addition, with regard to a later conversation between the plaintiff and Dr. Gray, the plaintiff shall have ten days from the entry of this Order (and prior to any deposition of Dr. Gray) to advise opposing counsel as to whether the plaintiff may present any evidence at trial as to the September 2004 conversation between the plaintiff and Dr. Gray. Should the plaintiff indicate that he may seek to introduce such evidence, then the Court will not recognize the privilege as to the conversation between the plaintiff and Dr. Gray as such conversation relates to the events at issue in this case. Should the plaintiff indicate that he will not rely on such evidence, then the court will recognize and enforce Tennessee's peer review privilege as to the conversation between the plaintiff and Dr. Gray. Additionally, the Court will allow the plaintiff to make limited inquiry at the deposition of Dr. Gray to determine whether Dr. Gray had any conversations with any other parties to this lawsuit relating to the events of September 16 and 17, 2004, at issue in this matter. Such inquiry shall be limited to ascertaining whether Dr. Gray did, or did not, have any such conversations, and if so, with whom. In the event that Dr. Gray did have such conversations with other parties to the litigation, the parties may then seek leave of the Court to inquire into the nature and details of those conversations, but the Court would necessarily need to hear argument as to the circumstances surrounding such conversations so that the Court could apply the proper balancing test. Any evidence obtained from Dr. Gray, whether testimonial or documentary, shall be deemed to fall within the scope of the Protective Order [Doc. 160] entered in this matter as "Confidential Information." The parties may also make general inquiry into non-privileged matters, including the five numbered items set forth in the defendants' response. [Doc. 221] Dr. Gray's motion is GRANTED in part, to the extent that any discovery as to Dr. Gray is limited as set forth above.
II. Dr. Monroe's Motion to Quash [Doc. 235] and Dr. Stratienko's Motion to Compel [Doc. 244]
Dr. Monroe moves the Court to quash a subpoena served by the plaintiff upon CardioVascular Group, P.C. ("CVG") on September 5, 2008. The subpoena seeks the production of: all applications for employment of Dr. Monroe; the personnel file of Dr. Monroe; and any and all applications for staff privileges filed by, or on behalf of, Dr. Monroe with any hospital or medical facility including, but not limited to, Erlanger, Memorial, Memorial Northpark, Parkridge, and Hutcheson Medical Center. [Doc. 235-2] The subpoena required that the documents be produced on September 17, 2008. On September 12, 2008, the Chief Executive Office of CVG, Paul Farmer, through counsel, submitted an affidavit in response to the request. [Doc. 244-3] The affidavit states that: CVG has no responsive documents as to the request for employment applications; and that Dr. Monroe's personnel files consists of the following documents: employment agreement; shareholder agreement; 401k information; insurance election information; payroll documents; disability insurance policy(s); life insurance policy(s); and medical malpractice insurance policy(s). The affidavit further states that CVG was in possession of Dr. Monroe's application for staff privileges at Erlanger, but that CVG would await the Court's ruling on pending motions before producing either Dr. Monroe's application to Erlanger for staff privileges or his personnel file. That same day, the Court entered an Order staying execution of the subpoena to allow the Court time to hear argument on the instant motion. [Doc. 236]
In support of his motion, Dr. Monroe argues that the information sought by the plaintiff is not relevant to the litigation and that the information is protected by Tennessee's peer review privilege. Dr. Monroe further argues that he has a personal right and interest in the application, and thus has standing to oppose production of the documents. The plaintiff opposes Dr. Monroe's motion and has filed a motion seeking to compel CVG to produce the documents in question. The plaintiff argues that CVG has not complied with the subpoena and has not sought the Court's intervention, and thus should be compelled to produce the ...