# Jackson v. Wexford Health Sources, Inc.

> District Court, S.D. Illinois · July 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10156547

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** July 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10156547

## How later opinions describe it (automated extraction)

- stating the federal common law of privileges applies where the principal claim arises under federal law and there is pendent jurisdiction over a state claim

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR SOUTHERN DISTRICT OF ILLINOIS

YOLANDA JACKSON, )
)
Plaintiff, )
)
vs. )
)
WEXFORD HEALTH SOURCES, INC., )
EVA LEVEN, ) Case No. 3:20-cv-00900-DWD
MOHAMMED SIDDIQUI, )
GAIL WALLS, )
NICKOLAS MITCHELL, )
CHARLIE FRERKING, )
JEREMY FRERICH, and )
ANDREW BENNETT, )

Defendants.

MEMORANDUM & ORDER
DUGAN, District Judge:
Before the Court are Plaintiff’s Supplemental Motions to Compel (Docs. 139 &
142), which are directed at Defendant Wexford Health Sources, Inc. (“Wexford”).
Defendant Wexford filed Responses to the Supplemental Motions to Compel (Docs. 146
& 147), to which Plaintiff replied (Docs. 150 & 151). For the reasons explained below, the
Court GRANTS each Supplemental Motion to Compel (Docs. 139 & 142).
I. Background
Decedent, Kevin Curtis, died while incarcerated at Menard Correctional Center.
(Doc. 1, ¶ 1). Shortly before his death, Decedent allegedly received inadequate medical
care from Defendants after he fell into a catatonic and unresponsive state. (Doc. 1, ¶¶ 26-
30). Plaintiff, as the mother and administrator of Decedent’s estate, filed a 6-count
Complaint against Defendants. (Doc. 1, generally). Specifically, Plaintiff alleged
deliberate indifference by all Defendants under the Eighth Amendment and 28 U.S.C.

§ 1983 (Count I), a conspiracy by all Defendants under § 1983 (Count II), a failure to
intervene by all Defendants under the Eighth Amendment and § 1983 (Count III), a
wrongful death action against all Defendants under 740 ILCS 180/1 (Count IV), a survival
action against all Defendants under 755 ILCS 5/27-6 (Count V), and respondeat superior
liability against Defendant Wexford (Count VI). (Doc. 1, generally). Plaintiff alleged,
“there exist policies and/or widespread practices in IDOC pursuant to which prisoners

receive unconstitutionally inadequate healthcare.” (Doc. 1, ¶¶ 55-61, 68, 73).
Plaintiff initially filed Motions to Compel (Docs. 95 & 106) on September 28 and
November 18, 2022. Thereafter, Defendant Wexford filed its related Responses (Docs. 102
& 110). However, the parties did not comply with the “Discovery Dispute” provisions of
the Court’s Case Management Procedures, which the Court mandates before its

consideration of any motion to compel. (Doc. 121). Therefore, on January 12, 2023, the
parties were ordered to meet and conduct a discovery conference to discuss all
unresolved discovery disputes. (Doc. 121). The parties were given a deadline to submit a
joint written discovery report, related to the unresolved discovery disputes and the
Motions to Compel, to the Court. (Doc. 121). The parties complied with these directives,

so the matter was set for a Discovery Dispute Conference with the Court. (Doc. 136).
At that Discovery Dispute Conference, which was held on March 30, 2023, the
Court considered Plaintiff’s Motions to Compel and the parties’ Joint Written Discovery
Report, which outlined, inter alia, six areas that remained in dispute. At the Discovery
Dispute Conference, four of the six disputed areas were either deferred, resolved by the
Court, or resolved by agreement. (Doc. 138). Therefore, after the Discovery Dispute

Conference, only two areas, related to Plaintiff’s Motions to Compel, remained in dispute.
(Doc. 138). With respect to those two areas of dispute, the Court deferred ruling and
directed the parties to meet and confer about whether the outstanding issues could be
resolved without the involvement of the Court. (Doc. 138). If necessary, after the meet
and confer, Plaintiff was directed to file Supplemental Motions to Compel. (Doc. 138).
On April 14, 2023, Plaintiff filed Supplemental Motions to Compel (Docs. 139 &

142), as permitted by the Court’s Order at Doc. 138.1 Defendant Wexford filed Responses
to the Supplemental Motions to Compel (Docs. 146 & 147) on April 28, 2023. Thereafter,
on May 12, 2023, Plaintiff filed Replies (Docs. 150 & 151) in support of the Supplemental
Motions to Compel. A discussion of these filings is incorporated into the analysis below.
II. Analysis

Under Federal Rule of Civil Procedure 26(b)(1), the scope of discovery, unless
otherwise limited by the Court, is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and [is] proportional to the needs
of the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.

1In the Supplemental Motions to Compel, Plaintiff states: “To reduce the volume of filings this
Court needs to consider…to decide Plaintiff’s motion[s] to compel, Plaintiff has incorporated the relevant
portions of the initial motion[s]…into the body of th[ese] motion[s]. Accordingly, the Court need not review
Plaintiff’s prior motion[s] to assess her position on these issues.” (Docs. 139, pg. 1, n. 1; 142, pg. 1, n. 1).
Therefore, the initial Motions to Compel (Docs. 96 & 106) are TERMINATED.
Fed. R. Civ. P. 26(b)(1).
The Court has “extensive discretion” to decide discovery matters. See Motorola
Solutions, Inc. v. Hytera Comms. Corp., 365 F. Supp. 3d 916, 924 (N.D. Ill. 2019); see also Searls
v. Glasser, 64 F.3d 1061, 1068 (7th Cir. 1995) (“Because the district court is far better
situated to pass on discovery matters, [the Seventh Circuit] review[s] its discovery

decisions for an abuse of discretion.”). Courts may refuse discovery of matters that are
“of ‘marginal relevance,’ ” and it is an assessment of proportionality that is essential.
See Motorola Solutions, Inc., 365 F. Supp. at 924 (citation to internal quotations omitted);
see also Armour v. Santos, No. 19-cv-678, 2022 WL 16572006, *2 (S.D. Ill. Nov. 1, 2022)
(stating “relevancy” is broadly construed to encompass matters bearing on, or reasonably

leading to matters bearing on, issues in the case, and “proportionality” requires a
common sense, experiential, careful, and realistic assessment of the actual need).
Likewise, decisions on motions to compel discovery are within the broad
discretion of the Court. See Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450
(N.D. Ill. 2006) (citing Meyer v. Southern Pacific Lines, 199 F.R.D. 610, 611 (N.D. Ill. 2001)).

Notably, when ruling on motions to compel, “ ‘courts have consistently adopted a liberal
interpretation of the discovery rules.’ [Citation].” See id. (quoting Wilstein v. San Tropai
Condo. Master Ass’n, 189 F.R.D. 371, 375 (N.D. Ill. 1999)); accord Traffix USA, Inc. v. Bay,
No. 21-cv-2093, 2022 WL 2046282, *2 (N.D. Ill. June 7, 2022). With these general legal
principles in mind, the Court turns to the separate Supplemental Motions to Compel.
A. Plaintiff’s First Supplemental Motion to Compel (Doc. 139)2
Plaintiff seeks an order compelling Defendant Wexford to produce certain quality
assurance documents, including eight documents named in Defendant Wexford’s

privilege log, peer review documents created by and relating to Defendant Wexford and
its employees, and documents reflecting audits of the healthcare services at Menard
Correctional Center. (Doc. 139, pg. 1). Defendant Wexford is withholding those
documents based on Illinois state-law privileges, namely, the privileges contained in the
Illinois Medical Studies Act (735 ILCS 5/8-2101) and the Illinois Long-Term Care Peer

Review and Quality Assessment and Assurance Protection Act (745 ILCS 55/1 et seq.).
(Doc. 139, pgs. 1, 5). Section 8-201 of the Illinois Medical Studies Act, in part, states:
All information, interviews, reports, statements, memoranda,
recommendations, letters of reference or other third party confidential
assessments of a health care practitioner’s professional competence, or
other data of…[certain public health and other medical entities], used in the
course of internal quality control or of medical study for the purpose of
reducing morbidity or mortality, or for improving patient care or increasing
organ and tissue donation, shall be privileged, strictly confidential and shall
be used only for medical research, increasing organ and tissue donation, the
evaluation and improvement of quality care, or granting, limiting or
revoking staff privileges or agreements for services.

735 ILCS 5/8-2101; see also Green v. Meeks, No. 20-cv-463, 2023 WL 1447817, *2 (S.D. Ill.
Feb. 1, 2023) (“The [Illinois Medical Studies Act, Section 8-2101,] ‘protects the records,
reports, notes, and the like, of hospitals, hospital committees, medical societies, and other

2The parties have agreed to the scope of the requests related to the First Supplemental Motion to
Compel. (Doc. 139, pg. 6). However, the parties continue to dispute the applicability of the Illinois state-
law privileges, which could bar the productions altogether. (Doc. 139, pg. 6).
review groups used in the course of internal quality control or medical study for the
purpose of improving morbidity and mortality, or for improving patient care.’ ”).

Likewise, Section 55/4 of the Illinois Long-Term Care Peer Review and Quality
Assessment and Assurance Protection Act, in part, provides:
All proceedings and communications of a peer review or a quality
assessment and assurance committee shall be privileged and confidential
and shall not be revealed except pursuant to specific written procedures of
the sponsoring organization.

The proceedings and records of such a committee shall be held in
confidence, and shall not be subject to discovery or introduction into
evidence in any civil action against a long-term care professional or facility
arising out of the matters which are the subject of evaluation and review by
such committee….However, information, documents or records otherwise
available from original sources shall not be construed as immune from
discovery or use in any such civil action merely because they were
presented during proceedings of such committee.

745 ILCS 55/4.

Notwithstanding these privileges, Plaintiff argues the above-described documents
must be produced for three reasons: (1) the Illinois state-law privileges do not apply in
this federal question case; (2) even if the Court entertained Defendant Wexford’s
arguments, other courts have rejected requests for a federal peer-review privilege; and
(3) the Illinois state-law privileges do not protect the requested documents. (Doc. 139, pg.
2). The Court limits its analysis to Plaintiff’s first two arguments.
As to those arguments, Plaintiff emphasizes this case involves a violation of
Decedent’s constitutional rights by Defendant Wexford and its employees. (Doc. 139, pg.
7). In other words, the case presents a federal question under 28 U.S.C. § 1331, and claims
of privilege are governed by federal, not state, law. (Doc. 139, pg. 7). Since Defendant
Wexford invokes Illinois state-law privileges, rather than federal common law privileges,
Plaintiff argues this argument, by itself, may end the Court’s inquiry. (Doc. 139, pgs. 7-8).

Further, Plaintiff argues the “rooting out” of violations of federal law, including
through discovery in a § 1983 action that alleges inadequate medical care, outweighs any
interest in the confidentiality of the peer-review process. (Doc. 139, pgs. 8-10). Specific to
this case, Plaintiff argues the balancing of interests “strongly favors access to the
discovery” because “[a] report generated in response to [Decedent]’s death is crucial…in
this case, which not only concerns claims related to [Decedent]…but also a Monell claim

concerning Wexford policy, practices, and procedures.” (Doc. 139, pg. 10). Similarly,
Plaintiff states “documents reflecting Wexford’s evaluation of deaths prior to
[Decedent]’s death (and what, if anything, Wexford did in response to those evaluations),
and documents reflecting Wexford’s own assessment of and changes to its relevant
policies and practices,” is relevant to whether Defendant Wexford maintained inadequate

policies and practices for purposes of a Monell claim. (Doc. 139, pgs. 10-11). Therefore,
Plaintiff argues this Court, like all others, should reject any federal peer-review privilege.
In response to these arguments, Defendant Wexford indicates it has “produced
thousands of records,” including 9,000 emails, 19,000 pages of records, and six days of
surveillance video. (Doc. 146, pg. 1). It seeks to withhold six emails and three documents,

arguing an “undeniable public interest in medical entities performing internal quality
improvement reviews” warrants an application of the Illinois state-law privileges. (Doc.
146, pgs. 1-2). Defendant Wexford characterizes the case as involving medical malpractice
claims, which necessitates an application of the Illinois state-law privileges to ensure
medical professionals effectively engage in self-evaluation of their peers to advance
quality healthcare. Further, Defendant Wexford suggests the requested documents do

not contain information, beyond what has already been produced in discovery, regarding
Decedent’s death, so Plaintiff has already received the policy directing the internal
quality improvement review and the blank forms utilized in that review. (Doc. 146, pg.
9). In Defendant Wexford’s view, Plaintiff has failed to meaningfully articulate why that
documentation is insufficient, the reasons she is unable to obtain the requested
information through other means, and the ways in which she will be prevented from

establishing a valid claim without the requested documents. (Doc. 146, pgs. 9-10).
Now, Defendant Wexford, as the party seeking to invoke a privilege and as the
opponent of discovery, has the burden of establishing the applicability of the Illinois
state-law privileges. See Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 86 (N.D.
Ill. 1992) (U.S. v. White, 950 F.2d 426, 430 (7th Cir. 1991)). Under Federal Rule of Evidence

501, “[t]he common law—as interpreted by United States courts in the light of reason and
experience—governs a claim of privilege,” unless provided otherwise by the U.S.
Constitution, a federal statute, or the Supreme Court rules. See Fed. R. Evid. 501; see
also Hamdan v. Indiana University Health North Hospital, Inc., 880 F.3d 416, 421 (7th Cir.
2018) (“[F]ederal courts apply the federal common law of evidentiary privileges—not

state-granted privileges—to claims…that arise under federal law.”); Kodish, 235 F.R.D. at
450 (stating the federal common law of privileges applies where the principal claim arises
under federal law and there is pendent jurisdiction over a state claim); Green, No. 20-cv-
463, 2023 WL 1447817, *2 (“As the Seventh Circuit and other district courts in this circuit
have recognized, ‘the privilege arising under the IMSA is not binding on this Court where
Plaintiff’s principal claims arise under 42 U.S.C. § 1983,’ as they do here.”). While Rule

501 provides the courts with flexibility to develop rules of privilege on a case-by-case
basis, the Supreme Court stated it is “disinclined to exercise this authority expansively,”
especially where Congress considered the competing concerns but did not provide the
privilege. See University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189 (1990) (quoting
Trammel v. U.S., 445 U.S. 40, 51 (1980); Branzburg v. Hayes, 408 U.S. 665, 706 (1972)).
That said, federal courts may still consider the law of the state in which the case

arose to determine if a privilege should be recognized by federal law. See Memorial Hosp.
for McHenry County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). This is because “[a]
strong policy of comity between state and federal sovereignties impels federal courts to
recognize state privileges where this can be accomplished at no substantial cost to federal
substantive and procedural policy.” See id. (quoting U.S. v. King, 73 F.R.D. 103, 105 (E.D.

N.Y. 1976)). Further, if “a ‘state holds out the expectation of protection to its citizens, they
should not be disappointed by a mechanical and unnecessary application of the federal
rule.’ [Citation].” See id. (quoting Lora v. Board of Education, 74 F.R.D. 565, (E.D. N.Y. 1977)).
The Supreme Court has advised that an evidentiary privilege is not created and
applied “unless it ‘promotes sufficiently important interests to outweigh the need for

probative evidence.’ ” See University of Pennsylvania, 493 U.S. at 189 (quoting Trammel, 445
U.S. at 51). Privileges are strictly construed because testimonial exclusionary rules and
privileges contravene the fundamental principle that the public has a right to every man’s
evidence. See id. (quoting Trammel, 445 U.S. at 50). In other words, evidentiary privileges
are disfavored because they impede fact-finding by excluding relevant information from
the case. See Hamdan, 880 F.3d at 421 (citing University of Pennsylvania, 493 U.S. at 189; U.S.

v. Nixon, 418 U.S. 683, 710 (1974); U.S. v. Wilson, 960 F.2d 48, 50 (7th Cir. 1992); Shadur, 664
F.2d at 1061). Therefore, when deciding whether to recognize a privilege, the Court
“should ‘weigh the need for truth against the importance of the relationship or policy
sought to be furthered by the privilege[] and the likelihood that recognition of the
privilege will in fact protect that relationship in the factual setting of the case.’ [Citation].”
See Shadur, 664 F.2d at 1061 (quoting Ryan v. Comm’r of Internal Revenue, 568 F.2d 531, 543

(7th Cir. 1977)); accord Johnson v. Dart, 309 F. Supp. 3d 579, 581 (N.D. Ill. 2018).
Notably, in the context of a prison, safety and efficiency may operate as goals
affecting care. See Johnson, 309 F. Supp. 3d at 582 (quoting Agster v. Maricopa County, 422
F.3d 836, 839 (9th Cir. 2005)). For this reason, a review related to a deceased inmate does
not necessarily involve the straightforward evaluation of medical care that might

otherwise occur in a civilian context. See id. (quoting Jenkins v. DeKalb County, Georgia, 242
F.R.D. 652, 660 (N.D. Ga. 2007)). Such a review “is likely to contain far more ‘nonmedical’
information such as whether and when jail officials notified medical officials of a
particular problem, whether there was a reason for nonmedical officials to have
monitored a situation more closely, and perhaps provide insight into jail customs or

policies.” See id. (citing Jenkins, 242 F.R.D. at 660). Therefore, in a § 1983 case, the Northern
District of Illinois has noted “ ‘it is peculiarly important that the public have access to the
assessment by peers of the care provided.’ ” See id. (quoting Agster, 422 F.3d at 839).
Here, the Court agrees with Plaintiff that the circumstances of this case warrant an
order compelling the documents withheld by Defendant Wexford. In arguing to the

contrary, Defendant Wexford conflates Plaintiff’s claims, which arise under § 1983, the
Eighth Amendment to the United States Constitution, and Illinois law, with medical
malpractice claims. However, ordinary claims of medical malpractice do not involve the
same federal interests as the claims now alleged by Plaintiff. See Johnson, 309 F. Supp. 3d
at 582; see also Green, No. 20-cv-463, 2023 WL 1447817, *3 (finding the recognition of a
peer-review privilege would come at a cost to federal policy, where Defendant Wexford

“wrongfully compare[d]” the plaintiff’s § 1983 claims, related to inadequate care
stemming from deliberate conduct and widespread practices and policies impacting the
medical care of all IDOC prisoners, which were described as more difficult to prove and
entirely separate from tort liability, to medical malpractice claims). Indeed, it defies
reason to suggest that the exclusion of the evidence at issue, which Plaintiff argues is

relevant to Defendant Wexford’s actions both before and after Decedent’s death, would
not come at a substantial cost to Plaintiff’s ability to prove her claims and vindicate
alleged violations of Decedent’s rights under federal law. See Shadur, 664 F.2d at 1061-63
(Seventh Circuit declining to apply the privilege contained in the Illinois Medical Studies
Act, where, inter alia, the policy behind that privilege was substantial but, in an antitrust

case as opposed to a medical malpractice case, an application of the privilege could deny
evidence necessary to bringing the action); Johnson, 309 F. Supp. 3d at 581 (finding “[t]he
very existence” of a quality assurance review committee, as well as its evaluations and
recommendations in a mortality review, was important in deciding whether defendants
were providing adequate medical care to inmates, as “ ‘[a]dequate medical care is not
only measured by remedial steps after injury but also by evaluation and affirmative steps

taken by quality assurance committees’ ”).
Further, it is unclear to the Court that Plaintiff could merely “obtain the same
information through other means,” as suggested by Defendant Wexford. See Johnson, 309
F. Supp. 3d at 582 (declining to apply the privilege contained in the Illinois Medical
Studies Act, in § 1983 case involving a post-death investigation ordered by a jail, where,
inter alia, it did not appear the plaintiff could obtain the requested information regarding

medical care from other sources and that information was important, if not critical, to the
plaintiff’s deliberate indifference claims, Monell claims, and state law indemnification
claims). In short, the Court now FINDS the policy furthered by the Illinois state-law
privileges does not outweigh the need for Defendant Wexford to disclose all probative
evidence in discovery. See University of Pennsylvania, 493 U.S. at 189; Shadur, 664 F.2d at

1061; Johnson, 309 F. Supp. 3d at 581. Accordingly, the Court will not allow the Illinois
state-law privileges, which have also been rejected by other courts in this circuit, to block
the production of the evidence withheld by Defendant Wexford. See Hamdan, 880 F.3d at
421 (Seventh Circuit noting “[t]his court has declined to recognize a federal peer-review
privilege, reasoning that the need for truth outweighs the state’s interest in supplying the

privilege”); Green, No. 20-cv-463, 2023 WL 1447817, *3 (stating the court would not allow
the peer-review privilege to block the production of relevant evidence in a § 1983 case,
where “[t]he federal interest in providing constitutionally adequate medical care to those
incarcerated ‘overrides the state interest animating the IMSA privilege.’ [Citation].”).
Therefore, the First Supplemental Motion to Compel (Doc. 139) is GRANTED.
Defendant Wexford is DIRECTED to produce the disputed documents within 7 days.
B. Plaintiff’s Second Supplemental Motion to Compel (Doc. 142)

Now at issue are four spreadsheets, tendered by Defendant Wexford to Plaintiff,
that are not in a “native, usable format.” (Doc. 142, pg. 3). Also at issue are five documents
that Defendant Wexford has partially redacted on the basis of relevance. (Doc. 142, pgs.
2-3). Plaintiff seeks an order compelling the production of the four spreadsheets in a
“native, usable format,” and the five documents without redactions. (Doc. 142, pg. 3).3

1. Controlling Legal Principles
Whether a party may unilaterally redact nonresponsive or irrelevant portions of
responsive documents, before producing them to the opposing party, is a question that
has divided the courts. See Hansen v. Country Mutual Ins. Co., No. 18-cv-244, 2020 WL
5763588, *4 (N.D. Ill. Sept. 28, 2020) (citing Shell Offshore, Inc. v. Eni Petroleum US LLC, No.

16-cv-15538, 2017 WL 11536165, *3-4 (E.D. La. Aug. 28, 2017)); Vasquez v. Indiana
University Health, Inc., No. 21-cv-1693, 2023 WL 3450809, *2 (S.D. Ind. May 15, 2023); see
also U.S. Equal Emp’t Opportunity Comm’n v. Dolgencorp, LLC, No. 13-cv-4307, 2015 WL
2148394, *2 (N.D. Ill. May 5, 2015) (noting courts have allowed such redactions but that is
“the exception rather than the rule”); A+ Auto Serv., LLC v. Republic Servs. of South Carolina,

LLC, No. 21-cv-1492, 2022 WL 2903314, *1 (D. S.C. July 14, 2022) (“District courts have

3Since the Discovery Dispute Conference, the parties have reached an agreement, without the
Court’s involvement, about the documents and testimony related to the Lippert matter. (Doc. 142, pgs. 1-2).
Further, the parties have reached partial agreements as to Defendant Wexford’s redactions on the basis of
relevance and the format of its spreadsheets. (Doc. 142, pgs. 2-3). As such, only the five partially redacted
documents and the four spreadsheets, referenced above, remain in dispute.
both permitted and prohibited redactions of unresponsive portions of relevant
documents.”). The decisions of those courts, however, “are not irreconcilable.” See A+

Auto Serv., LLC, No. 21-cv-1492, 2022 WL 2903314, *1; accord U.S. ex rel. Simms v. Austin
Radiological Ass’n, 292 F.R.D. 378, 386 (W.D. Tex. 2013) (quoting Beverage Distribs., Inc. v.
Miller Brewing Co., No. 8-cv-1112, 2010 WL 1727640, *4 (S.D. Ohio April 28, 2010)).
The courts that have refused to allow unilateral redactions have reasoned: (1) the
producing party is not harmed by the production of irrelevant or sensitive information
that is subject to a protective order, restricting the dissemination and use of information,

and the protective order renders the redactions unnecessary and potentially disruptive
to the orderly resolution of the case; (2) courts should not be burdened with in camera
reviews of redacted documents for the purpose of confirming the relevance or irrelevance
of redacted information as opposed to protecting material that could waive a privilege;
(3) redactions alter potential evidence, such that a party should not be allowed to take it

upon him or herself to decide, unilaterally, the context necessary for the unredacted
portions of the document and the uselessness of redacted information to the case; and
(4) unilateral redactions breed suspicion, especially where there is a lack of trust between
the parties. See Hansen, No. 18-cv-244, 2020 WL 5763588, *4 (quoting Beverage Distribs.,
Inc., No. 8-cv-1112, 2010 WL 1727640, *4; Simms, 292 F.R.D. at 385-87; Bartholomew v.

Avalon Capital Group, Inc., 278 F.R.D. 441, 451 (D. Minn. 2001)); see also A+ Auto Serv., LLC,
No. 21-cv-1492, 2022 WL 2903314, *2 (quoting this reasoning and noting “in cases where
redactions were approved by a court, ‘the number of redacted documents appeared to be
small[] and the content of the redactions was readily apparent’ ”);
Bonddesk Group, LLC, No. 15-cv-1085, 2017 WL 4863202, *2 (E.D. Wisc. Oct. 26, 2017)
(noting similar reasoning and that the practice of redacting for unresponsiveness and

irrelevance finds no expressed support in the Federal Rules of Civil Procedure).
However, redacting documents in discovery is sometimes appropriate. See RBS
Citizens, N.A., 291 F.R.D. at 222 (citing Abbott v. Lockheed Martin Corp., No. 6-cv-0701, 2009
WL 511866, *3 (S.D. Ill. Feb. 27, 2009); Nauman v. Abbott Labs., No. 4-cv-7199, 2006 WL
1005959, *8 (N.D. Ill. April 12, 2006); Beauchem v. Rockford Prods. Corp., No. 1-cv-50134,
2002 WL 1870050, *2 (N.D. Ill. Aug. 13, 2002); McCurdy v. Wedgewood Capital Mgmt. Co.,

No. 97-cv-4304, 1998 WL 961897, *3 (E.D. Pa. Dec. 31, 1998); Makowski v. SmithAmundsen
LLC, No. 8-cv-6912, 2012 WL 1634832 (N.D. Ill. May, 9, 2012)). For example, if a document
contains unresponsive information that is particularly sensitive, e.g., information
violating a third-party’s privacy, then redactions or production under an “attorneys’ eyes
only” provision may be appropriate. See Vasquez, No. 21-cv-1693, 2023 WL 3450809, *2

(quoting F.F.T., LLC v. Sexton, No. 19-cv-3027, 2020 WL 3258623, *4 (S.D. Ind. June 15,
2020)). In this instance, redactions may be permissible if the redacted information is not
necessary to the context of the unredacted information and the redacting party “provides
‘an adequate explanation as to exactly what was redacted for relevance, which
permits…challenge[s] [to] any of those redactions if she does not believe that they are

irrelevant.’ ” See id. (quoting Greenbank v. Great Am. Assurance Co., No. 18-cv-239, 2019 WL
6522885, *12 (S.D. Ind. Dec. 4, 2019)). It has been recognized, though, that some redaction
cases involve the redaction of sensitive information that is also irrelevant. See Dolgencorp,
LLC, No. 13-cv-4307, 2015 WL 2148394, *2 (citing Diak v. Dwyer, Costello & Knox, P.C., 33
F.3d 809, 813 (7th Cir. 1994); Kirsch v. Brightstar Corp., No. 12-cv-6966, 2014 WL 4560978,
*6 (N.D. Ill. Sept. 11, 2014); RBS Citizens, N.A., 291 F.R.D. at 222-23) (Emphasis added).

Notably, in this case, the Court’s HIPAA-Qualified Protective Order (Doc. 95)
“governs all discovery related to the exchange or dissemination of information or the
production of documents designated as” protected health information (“PHI”), including
that of third parties.4 (Doc. 95, pgs. 11-12). “The parties may seek the PHI for non-parties
from any covered entity or entities identified in any disclosure or discovery response,
medical record, inmate file, or testified to at any deposition, or identified by any other

discovery tool.” (Doc. 95, pg. 13). The HIPAA-Qualified Protective Order requires, inter
alia, disclosures to be designated as “Attorneys’ Eyes Only” or “Attorneys’ Eyes Only:
Confidential Document Produced Pursuant to Protective Order Entered in 20-cv-900-
DWD,” used only in this proceeding, stored in accordance with the Privacy Standards,
read by only the attorneys and certain other identified individuals, and returned or

disposed of at the termination of this proceeding. (Doc. 95, pgs. 11-14).
Further, a party may redact information, produced in discovery, when it believes
necessary. (Doc. 95, pgs. 9, 14-15). The HIPAA-Qualified Protective Order states:
To the extent that a party believes it has a right to redact information, it may
redact such information, provided that, if a party redacts information from
an “Attorneys’ Eyes Only” matter and the face of the document itself does
not make clear and obvious the nature of the information redacted, the
party shall provide in writing a specific category of information redacted
(for example, social security number).

4“ ‘PHI’ shall mean protected health information as that term is used in HIPAA and the Privacy
Standards. ‘PHI’ includes, but is not limited to, health information, including demographic information,
relating to (a) the past, present, or future physical or mental condition of an individual, (b) the provision
of care to an individual, or (c) the payment for care provided to an individual, which identifies the
individual or which reasonably could be expected to identify the individual. (Doc. 95, pg. 10).
(Doc. 95, pgs. 14-15). The HIPAA-Qualified Protective Order also expressly states nothing
contained therein “shall be deemed a waiver of the right of any party to object to a request
for discovery on the basis of relevance, materiality, privilege, overbreadth, undue burden
or expense, or any other recognized objection to discovery.” (Doc. 95, pg. 15).
In light of this HIPAA-Qualified Protective Order, the Court would be remiss not

to mention that Defendant Wexford has been in a similar situation before another Judge
in this District. See Green v. Meeks, No. 20-cv-463, 2021 WL 3631264 (S.D. Ill. July 14, 2021).
In that case, the Court reconsidered its prior finding that a qualified protective order,
substantially similar to that entered in the present case, sufficiently protected the PHI of
non-parties from unauthorized disclosures. See id. at *1, (Doc. 122). On reconsideration,

the Wexford Defendants argued the operative ESI Protocol required the disclosure of a
significant amount of non-party PHI. See id. at *2. For example, “many of the
documents…produced to Plaintiff [we]re spreadsheets that contain[ed] only one entry
regarding the decedent and the information for hundreds, and in some cases thousands,
of other inmates.” See id. Since the plaintiff’s claims pertained to “a niche of medical care,”

the Wexford Defendants argued “a broad exposure of [PHI] of other inmates with
conditions that do not pertain to the treatment of…[the “niche medical care”] would not
advance the resolution of this case. See id. Therefore, the Wexford Defendants requested
that the Court limit the amount of non-party PHI that could be exposed. See id.
Specifically, the Wexford Defendants requested that “they only be ordered to disclose

information on inmates who were diagnosed with…diseases [related to “the niche
medical care”] at Menard Correctional Center from the date when [the decedent] arrived
until his death.” See id. The IDOC Defendants similarly requested for the Court to limit

the disclosure of individually identifiable health information from the PHI of any current
and former IDOC inmate, other than the decedent, through redactions. See id.
The Court rejected the Defendants’ arguments, finding “the Qualified Protective
Order entered pursuant to [HIPAA]…adequately protect[ed] the health information of
non-parties from unauthorized disclosure.” See id. at *4. (citing Haywood v. Wexford Health
Sources, Inc., No. 16-cv-3566, 2021 WL 2254968, *5-6 (N.D. Ill. 2021), for the proposition

that it “allow[ed] the disclosure of [PHI] of non-parties pursuant to a protective order
that met the requirements under HIPAA,” and Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923,
925 (7th Cir. 2004), for the proposition that “HIPAA does not create a privilege against
production or admission of evidence…[but] a procedure for obtaining protected medical
records in litigation”). See id. at *4. Moreover, in light of the fact that the plaintiff

presented a Monell claim, i.e., a claim the decedent died due to the widespread customs
and practices of Defendant Wexford, “she [wa]s entitled to a ‘broad and substantial
amount of discovery.” See id. at *4 (citing Hildreth v. Butler, 960 F.3d 420 (7th Cir. 2020)).
The Court emphasized that the plaintiff was “required to show ‘systemic and gross
deficiencies’ that…impacted others in IDOC custody.” See id. at *4. Ultimately, the Court

declined to limit discovery to information relating to inmates with decedent’s disease at
Menard Correctional Center or to the disclosure of information of non-party inmates via
the redaction of individual identifiers. See id. at *4. (citing Hildreth, 960 F.3d at 426).
2. Arguments as to the Four Spreadsheets
Now, Plaintiff argues the four spreadsheets, produced by Defendant Wexford, are
“completely indecipherable.” (Doc. 142, pg. 10). Exhibits C and D purportedly show

information only as to Decedent, “with other individuals excised from the list,” and mere
headings of charts, respectively. (Doc. 142, pg. 10). Plaintiff suggests this is “patently
inappropriate” since, under Federal Rule of Civil Procedure 34, the documents must be
produced as they are kept in the course of business and/or in a reasonably useful form.
(Doc. 142, pg. 10). Further, Plaintiff argues the Court’s HIPAA-Qualified Protective Order

supports an order for the spreadsheets, which are “highly relevant to her claims,” to be
produced with all information viewable. (Doc. 142, pgs. 10-11, 13). Three spreadsheets
purportedly track money Defendant Wexford spent on prisoners who were sent offsite
for evaluation or treatment, which Plaintiff argues is “directly relevant” to her Monell
claims and the treatment of patients when “dollars are directly on the line.” (Doc. 142,

pgs. 11-13). The fourth spreadsheet tracks prisoners who, like Decedent, were prescribed
antipsychotic medication. (Doc. 142, pg. 13). Finally, as discussed above, Plaintiff notes
Defendant Wexford was recently required to produce “scores of spreadsheets…[,]
reflecting medical care for patients at Menard and the IDOC in both unredacted PDF and
native Excel format,” in Green. (Doc. 142, pg. 11). She seeks the same result here.

In response, Defendant Wexford argues Plaintiff is seeking the PHI of over 100,000
prisoners across multiple states, which it has objected to based on disproportionality and
the fact that the information may be privileged or barred from disclosure. (Doc. 147, pgs.
1, 4). Further, Defendant Wexford states Plaintiff’s requests were not made with
particularity under Federal Rule of Civil Procedure 34. (Doc. 147, pgs. 2-3). Although she
claims that the PHI is related to her Monell claim, Defendant Wexford argues none of the

information is responsive to her discovery requests or related to the facts of Decedent’s
care. (Doc. 147, pgs. 1. 4). Defendant Wexford emphasizes its belief that it “is abiding by
state and federal laws not to frivolously disclose an essentially complete database of [PHI]
of non-parties, including HIV status, mental illness, etc., wholly and completely
irrelevant to this case” and protected by law. (Doc. 147, pgs. 4, 8). Defendant Wexford
also stresses, “[t]he only information Plaintiff does not have is the medical and mental

health information of other prisoners,” including their “specific conditions, medications,
and names.” (Doc. 147, pgs. 5-6) (Emphasis in original). Defendant Wexford also notes
the HIPAA-Qualified Protective Order was not a discovery order and the parties did not
waive their objections. (Doc. 147, pgs. 7-8). Defendant Wexford asks the Court to take on
the burden of reviewing the requested information in camera in order to show that the

requested information is disproportionate, a disclosure would constitute “a gross
disregard” for third-party PHI, and a disclosure would put it at an unnecessary risk of
unlawful disclosures. (Doc. 147, pgs. 2, 4, 13).5
3. Arguments as to the Five Documents Containing Redactions
Next, Plaintiff emphasizes that Defendant Wexford does not invoke a privilege or

the work-product doctrine to support its redactions. (Doc. 142, pg. 5). Further, Plaintiff
argues the redacted documents are “unquestionably responsive” to discovery requests

5Ironically, Defendant Wexford makes this request while also bemoaning the prospect that it
“would be required to review the contents of over 100,000 prisoner’s information to redact for privilege
and incur the risk of legal consequences if any unintentional disclosures [we]re made.” (Doc. 147, pg. 8).
because they each discuss Decedent and/or his death and there is “good reason” to
believe the redacted information itself renders the documents responsive to discovery

requests. (Doc. 142, pgs. 8-9). For example, Exhibit A “withhold[s] information regarding
other prisoners who were sent offsite for care—information that Plaintiff has expressly
requested” and is covered by the HIPAA-Qualified Protective Order. (Doc. 142, pgs. 8-9).
In response, Defendant Wexford notes the HIPAA-Qualified Protective Order
“foresees and allows for objections and redactions” to documents requested in discovery.
(Doc. 147, pg. 11). In addition, Defendant Wexford believes it has complied with that

Order by identifying the nature of the information redacted, i.e., the PHI of third parties.
(Doc. 147, pg. 11). Defendant Wexford then addresses the redactions.6 With respect to 181
of the 182 pages of patient information relevant to page 2 of Exhibit A, pertaining to
outpatient reports throughout Illinois, Defendant Wexford adopts the arguments made
above with respect to the four spreadsheets. (Doc. 147, pgs. 11-12).7 Page 3 of Exhibit A is

relevant to a 94-page document that outlines the inpatient PHI of prisoners throughout
Illinois. (Doc. 147, pg. 12). The redactions are to the PHI of the other prisoners and not to
that of Decedent. (Doc. 147, pg. 12). Page 4 of Exhibit A is relevant to a 6-page document
that notes the procedures performed at Menard Correctional Center. (Doc. 147, pg. 12).
The redactions are to the services provided to other prisoners, as well as to a charge for

the service provided to Decedent. (Doc. 147, pg. 12).8 Page 5 of Exhibit A is relevant to a

6To Plaintiff’s surprise, Defendant states the pages produced in discovery were “an excerpt of a
larger document reflecting” that third-party PHI. (Docs. 147, pgs. 11-12; 151, pgs. 1-2).
7With respect to 1 of the 182 pages relevant to page 2 of Exhibit A, Defendant Wexford states it will
remove the redaction and produce that page to Plaintiff. (Doc 147, pg. 11).
8Defendant Wexford agreed to remove this redaction. (Doc. 147, pg. 12).
23-page document of approved authorizations for medical conditions of prisoners at
various facilities. (Doc. 147, pg. 12). The redactions are to services provided to other

prisoners and not to those provided to Decedent. (Doc. 147, pg. 12). Pages 6 and 7 of
Exhibit A are a marketing email containing publications from throughout the country,
one of which that involves Decedent and was produced. (Doc. 147, pg. 12). The redactions
were made due to unresponsiveness and irrelevance to Decedent. (Doc. 147, pg. 12).
4. Application of Controlling Legal Principles
Here, upon reviewing the Exhibits attached to the Second Supplemental Motion

to Compel, the Court finds Defendant Wexford’s productions are inadequate under the
above-discussed legal authorities. Exhibits C and D, which relate to the four spreadsheets
at issue, largely comprise blank pages with column headings as the only produced
information. (Docs. 142-4, pgs. 2-14; 142-5, pgs. 2-16). The column headings include the
phrases, to name a few, “inpatient” and “MENARDI,” “MEMORIAL HOSP

(CHESTER),” “INITIAL HOSPITAL CARE,” “TRAUMA,” “Outpatient” and
“MENARDI,” “AMBULANCE RSPN & TREATMENT NO TRNSPRT,” multiple pages
with Decedent’s name, “Diagnosis Description,” and “Procedure Description.” (Docs.
142-4, pgs. 2-3, 5-7, 9-12; 142-5, pgs. 4-5, 9-10). Based on these terms, and the others not
referenced, the Court finds the information not produced falls within Plaintiff’s discovery

requests. See, e.g., (Doc. 142-3, pgs. 6-10). The Court also finds those requests are
particularized and proportional to the needs of this case. See Fed. R. Civ. P. 26(b)(1);
Motorola Solutions, Inc., 365 F. Supp. at 924; Armour, No. 19-cv-678, 2022 WL 16572006, *2.
Further, while certain productions related to “Inmates on Anti-Psychotics” include
the “drug name” and prescribing “doctor name” in an unredacted form, the “medical

record #” and “inmate name” are redacted. (Doc. 142-4, pgs. 15-23). Another production,
depicting the same information, is blank. (Doc. 142-5, pg. 16). Similarly, Defendant
Wexford admits Exhibit A, relating to the five redacted documents for which Defendant
Wexford does not invoke a privilege, contains redactions to outpatient reports
throughout Illinois, the inpatient PHI of prisoners in Illinois, the medical procedures
performed at Menard Correctional Center, authorizations for medical conditions of

prisoners at various facilities, and a marketing email with news publications. (Doc. 147,
pgs. 11-12). The redactions are made to the PHI and services provided to other prisoners
or, in the case of the email, based on relevance or responsiveness. (Doc. 147, pgs. 11-12).
However, in light of the above authorities, the Court’s HIPAA-Qualified
Protective Order, and the fact that Plaintiff brings Monell claims, the Court finds

Defendant Wexford’s redactions to or withholding of information from Exhibits A, C,
and D is unnecessary and inappropriate. Defendant Wexford spills a large amount of ink,
unnecessarily, arguing its productions are appropriately limited to Decedent and need
not extend to third-party prisoners. (Doc. 147, pgs. 4-8). That is obviously not the case, as
the third-party PHI in Defendant Wexford’s possession is, without a doubt, critical to

Plaintiff’s claims under Monell. Further, due to the nature of those claims, Plaintiff is
entitled to a broad and substantial amount of discovery. See Awalt v. Marketti, No. 11-cv-
6142, 2012 WL 6568242, *3 (N.D. Ill. Dec. 17, 2012); accord Green, No. 20-cv-463, 2021 WL
3631264, *4. In short, Defendant Wexford may not “excise” other individuals “from the
list” or merely provide the headings from the spreadsheets. (Doc. 142, pgs. 10, 11-13).

Moreover, the reasoning underpinning other courts’ refusals to allow unilateral
redactions in discovery fully applies to Exhibits A, C, and D in this case. See Hansen, No.
18-cv-244, 2020 WL 5763588, *4; A+ Auto Serv., LLC, No. 21-cv-1492, 2022 WL 2903314, *2;
IDC Fin. Pub., Inc., No. 15-cv-1085, 2017 WL 4863202, *2; Vasquez, No. 21-cv-1693, 2023
WL 3450809, *2. First, the Court has entered a HIPAA-Qualified Protective Order. (Doc.
95). And, even if a relevant document contains unresponsive but “particularly sensitive”

information, it is appropriate to allow redactions or the production of the information
under an “attorneys’ eyes only” provision. See Vasquez, No. 21-cv-1693, 2023 WL 3450809,
*2. Based on the specific provisions of that HIPAA-Qualified Protective Order, which are
described in detail above, the irrelevant or sensitive information produced by Defendant
Wexford in relation to Exhibits A, C, and D will be protected from improper

dissemination and use.9 See Hansen, No. 18-cv-244, 2020 WL 5763588, *4; A+ Auto Serv.,
LLC, No. 21-cv-1492, 2022 WL 2903314, *2; see also Green, No. 20-cv-463, 2021 WL 3631264,
*1-2, 4 (presenting similar circumstances to this case). That being the case, and due to the
relevancy of the information to Plaintiff’s claims, the Court finds Defendant Wexford’s
redactions are unnecessary and disruptive to an orderly resolution of the case. See Hansen,

No. 18-cv-244, 2020 WL 5763588, *4 (ordering the defendant to produce unredacted copies

9In light of these specific provisions, it is only through the attorney’s own oversight or lack of
diligence that the Court’s HIPAA-Qualified Protective Order, which neither party claims does not comport
with HIPAA, would prove ineffective to protect third-party PHI. If such a situation arises, through the fault
of the attorneys, the Court’s response will be swift and the consequences will be severe.
of documents redacted in discovery, in a case where a confidentiality order was entered,
after finding the line of authority that precludes a producing party from unilaterally

redacting responsive documents on the basis of unresponsiveness or irrelevancy was
persuasive); Dolgencorp, LLC, No. 13-cv-4307, 2015 WL 2148394, *2 (finding the defendant
failed to establish redacted information was sufficiently sensitive on the basis of
relevance, especially where a confidentiality order was entered in the case and the
information, as described, did not seem to be particularly susceptible to misuse); Simms,
292 F.R.D. at 387 (ordering the defendant to produce unredacted versions of its

documents, where, inter alia, “[a]ny concerns regarding confidentiality [we]re sufficiently
addressed by the protective order in th[e] suit”).
Second, despite Defendant Wexford’s request, the burden of reviewing redacted
documents, in camera, to confirm the relevance or irrelevance of information, is ordinarily
not a task for the Court. See Hansen, No. 18-cv-244, 2020 WL 5763588, *4; A+ Auto Serv.,

LLC, No. 21-cv-1492, 2022 WL 2903314, *2. Indeed, here, Defendant Wexford has not
claimed a privilege relating to the Second Supplemental Motion to Compel, so the Court
declines to conduct an in camera review that further serves to keep Plaintiff “in the dark”
about its unilateral redactions. See RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 223 (N.D.
Ill. 2013) (noting courts should not conduct in camera document reviews, to decide mere

relevancy issues in discovery, absent extraordinary circumstances).
Third, by its own admissions, Defendant Wexford’s redactions alter potential
evidence related to third-party prisoners and Plaintiff’s Monell claims. See Hansen, No. 18-
cv-244, 2020 WL 5763588, *4; A+ Auto Serv., LLC, No. 21-cv-1492, 2022 WL 2903314, *2.
The Court agrees with the authority stating it is not for Defendant Wexford, without any
participation by Plaintiff, to decide the context necessary for unredacted information or

to determine the uselessness of the redacted information, especially where each category
of information is arguably relevant to Plaintiff’s claims. See Hansen, No. 18-cv-244, 2020
WL 5763588, *4; A+ Auto Serv., LLC, No. 21-cv-1492, 2022 WL 2903314, *2; see also Vasquez,
No. 21-cv-1693, 2023 WL 3450809, *2 (stating redactions are disfavored since what
constitutes relevant information is often a matter of judgment, and irrelevant information
in a relevant document may be highly useful to the context of relevant information).

Fourth, it should come as no surprise to the parties that Defendant Wexford’s
redactions have likely precipitated a certain level of suspicion and a lack of trust in this
case. See Hansen, No. 18-cv-244, 2020 WL 5763588, *4; A+ Auto Serv., LLC, No. 21-cv-1492,
2022 WL 2903314, *2. Defendant Wexford’s redactions are substantial and made to a large
swath of relevant information. See A+ Auto Serv., LLC, No. 21-cv-1492, 2022 WL 2903314,

*2. Further, the issues related to the Supplemental Motions to Compel, which have been
the subject of multiple discovery conferences and a hearing before the Court, have
lingered for months. Still, the parties remain at an impasse. Even Defendant Wexford
notes it “is not a question about whether the context is responsive, it is instead that
Plaintiff’s counsel does not believe what she has been told.” (Doc. 147, pg. 13). But, as

discussed in this Memorandum & Order, Plaintiff’s counsel need not blindly take
Defendant Wexford at its word. See IDC Fin. Pub., Inc., No. 15-cv-1085, 2017 WL 4863202,
*3 (finding there was a potential for abuse in the practice of redacting for
unresponsiveness or irrelevance, where the defendants did not assert any privilege, but
instead objected based on a blanket assertion that the redacted information did not apply
to the plaintiff, and the plaintiff could disagree with the defendants’ relevance decisions
without taking their “word for it”).
Therefore, the Second Supplemental Motion to Compel (Doc. 142) is GRANTED.
Defendant Wexford is DIRECTED to fully produce the disputed documents, in an
unredacted form that comports with Rule 34(b)(2)(E), the other authorities discussed
herein, and the Court’s HIPAA-Qualified Protective Order (Doc. 95), within 7 days.!°
III. Conclusion
For the foregoing reasons, the Court GRANTS the First and Second Supplemental
Motions to Compel (Docs. 139 & 142).
SO ORDERED.
Dated: July 5, 2023. Nae L A Ls gue

DAVID W. DUGAN
United States District Judge

parties may also stipulate to certain production procedures. See Fed. R. Civ. P. 34(E).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10156547. Public record. Not legal advice.