United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF'S MOTION TO COMPEL
PHAM UNITED STATES MAGISTRATE JUDGE.
the court by order of reference is Margaret Allgood's
motion to compel certain discovery responses from Baptist
Memorial Medical Group, Inc. and Baptist Memorial Health Care
Corporation (collectively “Baptist”). (ECF Nos.
32 & 33.) For the reasons outlined below, the motion is
GRANTED in part and DENIED in part.
a False Claims Act retaliation suit. Allgood alleges that she
was suspended with pay for four months by Baptist because she
reported Medicare billing fraud by Dr. John King, a doctor at
Baptist. Baptist contends Allgood was suspended as part of an
investigation into whether she accessed patient records in
violation of the Health Insurance Portability and
Accountability Act (“HIPAA”). Allgood concedes
she accessed HIPAA-protected records but argues she did so
only to report fraud internally, which is allowed by HIPAA,
and that the suspension was pretextual. The parties disagree
about whether certain discovery requests are relevant and
proportional to the needs of the case. Most of the disputed
discovery requests can be grouped into two categories: (1)
requests about whether Baptist committed billing fraud and
(2) requests about Baptist's investigation into
Allgood's purportedly unauthorized access to patient
records. Allgood contends that this information is relevant
because it goes to pretext while Baptist argues otherwise.
The parties also dispute various other discovery issues,
including: (1) requests about the termination of another
employee, Kathy Long, who allegedly also reported misconduct
by Dr. King; (2) requests about Dr. King's background and
subsequent resignation from Baptist; (3) requests about HIPAA
and False Claims Act compliance training; and (4) a request
for all communications about Allgood from the date Allgood
claims she learned of the billing fraud to shortly before her
Scope of Discovery
scope of discovery is governed by Federal Rule of Civil
Procedure 26(b)(1), which provides that “[p]arties may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case[.]” Fed.R.Civ.P. 26(b)(1). The
party seeking discovery is obliged to demonstrate relevance.
Johnson v. CoreCivic, Inc., No. 18-CV-1051-STA-tmp,
2019 WL 5089086, at *2 (W.D. Tenn. Oct. 10, 2019). Upon a
showing of relevance, the burden shifts to the party opposing
discovery to show, with specificity, why the requested
discovery is not proportional to the needs of the case.
William Powell Co. v. Nat'l Indem. Co., No.
1:14-CV-00807, 2017 WL 1326504, at *5 (S.D. Ohio Apr. 11,
2017), aff'd sub nom. 2017 WL 3927525 (S.D. Ohio
June 21, 2017), and modified on reconsideration,
2017 WL 4315059 (S.D. Ohio Sept. 26, 2017). Six factors are
relevant to proportionality: (1) “the importance of the
issues at stake in the action;” (2) “the amount
in controversy;” (3) “the parties' relative
access to relevant information;” (4) “the
parties' resources;” (5) “the importance of
the discovery in resolving the issues;” and (6)
“whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed.R.Civ.P.
False Claims Act Retaliation
False Claims Act “‘is an anti-fraud statute
prohibiting the knowing submission of false or fraudulent
claims to the federal government.'” Fakorede v.
Mid-S. Heart Ctr., P.C., 182 F.Supp.3d 841, 848 (W.D.
Tenn. 2016). It is unlawful to retaliate against an employee
who engages in “lawful acts” to attempt to stop
what the employee believes in good faith to be a violation of
the False Claims Act. Miller v. Abbott Labs., 648
Fed.Appx. 555, 560 (6th Cir. 2016). “[C]ollecting
information about potential fraud” is protected
activity under this provision. Id.
claims under the False Claims Act “proceed under the
same rules applicable to other employment-related retaliation
claims.” Jones-McNamara v. Holzer Health Sys.,
630 Fed.Appx. 394, 397-98 (6th Cir. 2015). “To
establish a prima facie case, the plaintiff must show the
following elements: (1) she was engaged in a protected
activity; (2) her employer knew that she engaged in the
protected activity; and (3) her employer discharged or
otherwise discriminated against the employee as a result of
the protected activity.” Id. After the
plaintiff establishes a prima facie case, the burden of
production shifts to the defendant to give a legitimate,
non-discriminatory reason for the adverse employment action.
Id. The plaintiff then has the burden to show that
the defendant's proffered reason is pretextual.
State Privilege Law
first argues that T.C.A. § 68-11-272(c)(1) protects much
of the requested discovery from disclosure. T.C.A. §
68-11-272(c)(1) creates a state law privilege for Quality
Improvement Committees (“QICs”) created by
healthcare providers to, among other things, make sure
healthcare providers are in compliance with state and federal
law. It protects the “records” of QICs, as well
as statements made to QICs during an investigation. T.C.A.
§ 68-11-272(c)(1). The purpose of this privilege is to
allow healthcare organizations to freely examine how they can
improve their services without fear that candid statements
will be used against them. Pinkard v. HCA Health Servs.
of Tennessee, Inc., 545 S.W.3d 443, 452 (Tenn. Ct. App.
federal question cases, state privilege law does not
apply.” LeMasters v. Christ Hosp., 791 F.Supp.
188, 189 (S.D. Ohio 1991). Baptist has not identified any
caselaw that suggests federal privilege law recognizes a
parallel privilege to the one established by T.C.A §
68-11-272(c)(1). Indeed, federal courts have repeatedly held
no parallel federal privilege exists. Coone v.
Chattanooga-Hamilton Cty. Hosp. Auth., No. 1:16-CV-481,
2017 WL 9476830, at *4 (E.D. Tenn. May 18, 2017); Levans
v. Saint Francis Hosp.-Bartlett, Inc., No.
15-CV-2142-SHL-tmp, 2015 WL 11017962, at *3 (W.D. Tenn. Sept.
18, 2015); United States v. Jackson Madison Cty. Gen.
Hosp., No. 12-2226, 2012 WL 12899055, at *3 (W.D. Tenn.
Oct. 16, 2012). Because this is a federal question case,
T.C.A. § 68-11-272(c)(1) does not apply.