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Estate Alvarez v. John Hopkins University

United States District Court, D. Maryland

May 21, 2019




         Currently pending are plaintiffs' Motion to Compel Defendants to Respond to Requests for Production of Documents, Interrogatories, Requests for Admissions, Notice of Designee Depositions, and Requests for Entry and Inspection of Defendants' Archives (“Plaintiffs' Motion to Compel”) (ECF No. 252), defendants' Joint Brief in Opposition to Plaintiffs' Motion to Compel (“Defendants' Joint Opposition”) (ECF No. 264), the Johns Hopkins defendants' Supplemental Brief in Opposition to Plaintiffs' Motion to Compel (“Johns Hopkins' Opposition”) (ECF No. 264-1), The Rockefeller Foundation's Separate Memorandum of Law in Opposition to Plaintiffs' Motion to Compel (“TRF's Opposition”) (ECF No. 264-2), Bristol-Myers Squibb Company's Supplemental Brief in Opposition to Plaintiffs' Motion to Compel (“BMS' Opposition”) (ECF No. 264-3), and plaintiffs' Reply to Defendants' Opposition to Motion to Compel Discovery (“Plaintiffs' Reply”) (ECF No. 274). Also pending are defendants' Motion to Compel (ECF No. 253), plaintiffs' Response to Defendants' Motion to Compel (“Plaintiffs' Opposition”) (ECF No. 265), and defendants' Reply in Support of Defendants' Motion to Compel (“Defendants' Reply”) (ECF No. 273). For the reasons stated below, plaintiffs' Motion to Compel is granted in part and denied in part, and defendants' Motion to Compel is granted in part and denied in part.

         I. Plaintiffs' Motion to Compel

         a. Archive Access and Rule 30(b)(6) Depositions

         Plaintiffs request that the court compel defendants to allow plaintiffs to enter and inspect the archives of the Johns Hopkins defendants and The Rockefeller Foundation (“TRF”) and compel all defendants to produce witnesses to testify about the matters set forth in plaintiffs' Rule 30(b)(6) deposition notices. (ECF No. 252 at 12). Plaintiffs state that they first made informal requests to access these archives in May of 2018 and noted depositions pursuant to Fed.R.Civ.P. 30(b)(6) seeking information about the organization of the archives so that they could serve proper and tailored Rule 34 Notices to Enter and Inspect. (ECF No. 252 at 8). Plaintiffs state that they were unable to reach an agreement with defendants, and re-noted these depositions on February 1, 2019, seeking archival information as well as additional information regarding the activities of defendants' agents in the studies, including “employment practices, reimbursement practices, remuneration, obtainment of grant money, and other tenants of employment for doctors and academics at the time the studies were conceived and performed.” (ECF No. 252 at 9). That day, they also filed formal Requests for Entry to the archives of TRF and the Johns Hopkins defendants. Id.

         Plaintiffs state that no witnesses appeared for the 30(b)(6) depositions, and defendants have only recently agreed to allow plaintiffs access to their archives, subject to conditions which are unacceptable to plaintiffs. (ECF No. 252 at 9-10). Specifically, plaintiffs state, TRF has offered plaintiffs the right to inspect some, but not all, of its archives, if plaintiffs agreed to waive their right to take 30(b)(6) depositions. (ECF No. 252 at 9). Similarly, plaintiffs state, the Johns Hopkins defendants have offered to allow plaintiffs access to some, but not all, of its archives, upon plaintiffs' agreement to conditions including “accomplishing the review in 2 weeks, waiving their 30(b)(6) requests, waiving other rights to discovery, and following a three-page protocol for inspection dictated by Hopkins (including the presence of a ‘babysitter,' limitations on copying of documents, and other self-serving conditions that would be nearly impossible to meet).” (ECF No. 252 at 9-10).

         Plaintiffs argue that these “partial and conditional offers of [the Johns Hopkins defendants] and [TRF] are not contemplated by the Federal Rules and are not acceptable to [p]laintiffs . . . [p]laintiffs should not have to waive the rights they have under the Federal Rules to utilize other discovery mechanisms in exchange for access to archives . . . [and] [p]laintiffs have the right to take corporate designee depositions noted almost a year ago about the organization of [d]efendants' archives, and about [d]efendants' employees' activities connected with the experiments at issue.” (ECF No. 252 at 10). Plaintiffs further argue that direct access to these archives is essential, as “[a]ll of the individuals who played a role in the Experiments are now deceased . . . [t]here is no one to depose and [p]laintiffs must prove their case through documentary evidence.” Id. They further argue that “[i]t is highly likely that the archives of these institutions contain documentary evidence that will support [p]laintiffs' claims” and argue that “it is apparent that [d]efendants have not performed a thorough search of their own archives for documents responsive to [p]laintiffs' discovery requests.” (ECF No. 252 at 10, 12).

         As to plaintiffs' requests for Rule 30(b)(6) depositions, defendants argue that these requests “are unnecessary and beyond the scope of what is required under the Federal Rules and the guidance of this [c]ourt.” (ECF No. 264 at 6). Defendants note that plaintiffs originally agreed to hold these depositions in abeyance while defendants answered questions about their archives. Id. Defendants state that they provided these answers in July and August of 2018, and that plaintiffs never followed up or raised any deficiencies as to these answers before re-noting new, broader depositions. (ECF No. 264 at 7). Defendants argue that these notices should be quashed. Id. First, defendants state that “[t]o the extent that plaintiffs intend to probe the sufficiency of defendants' earlier document collections, such ‘discovery about discovery' is frequently not permitted.” Id. (citing Fish v. Air & Liquid Sys. Corp., Civil No. GLR-16-496, 2017 WL 697663, at *6 (D. Md. Feb. 21, 2017) (“‘Discovery on discovery' is not an appropriate topic of discovery and numerous courts have disallowed such discovery.”) To the extent that plaintiffs want information about archival organization, defendants state that plaintiffs have already received this information via less burdensome means. (ECF No. 264 at 7-8). With respect to the new topics raised in plaintiffs' February 1, 2019 notices, defendants argue that these inquiries are “ridiculously overbroad, ” go “well beyond what the [c]ourt contemplated when it extended the discovery deadline, ” and that some inquiries are “wholly irrelevant to the issues in this lawsuit.” (ECF No. 264 at 8). Finally, defendants argue that the information sought is not “reasonably available” to defendants. Id. Defendants note that the individuals who might have possessed such information are deceased and argue that “[t]he only relevant information would come from the documents that defendants have already produced, ” and, accordingly, “the depositions are completely unnecessary.” (ECF No. 264 at 8-9).

         As to plaintiffs' request for archival access, although defendants argue that “[t]he Federal Rules do not entitle plaintiffs access to defendants' archives for the purpose of re-doing defendants' discovery efforts, ” the Johns Hopkins defendants and TRF have agreed to allow plaintiffs access to their archives, subject to the conditions set forth in their respective protocols, “solely as an accommodation to plaintiffs.” (ECF No. 264 at 9-10).

         The Johns Hopkins defendants state that they have offered plaintiffs access to the Alan Mason Chesney Medical Archives of the Johns Hopkins Medical Institutions (“Medical Archives”)[1] “on terms consistent with the customary orderly and careful review and processing of archival materials.” (ECF No. 264-1 at 2). Defendants state that plaintiffs “summarily rejected this offer without even responding to the Johns Hopkins [d]efendants directly, ” and instead raised their concerns about the Johns Hopkins defendants' conditions to the court. (ECF No. 264-1 at 2-3). Specifically, the Johns Hopkins defendants state that they sent plaintiffs “1, 879 pages of indices to review and identify folders or boxes of documents that they would like to inspect.” Id. They further state that, within two weeks of receipt of the list of folders or boxes that plaintiffs would like to inspect, they would make those documents available for plaintiffs, and plaintiffs would have two weeks to review the requested material.[2] (ECF No. 264-1 at 3). The Johns Hopkins defendants also asked that an attorney be present during plaintiffs' review at the archives to “liaise between plaintiffs and the archivists, ” comply with Maryland Attorneys' Rule of Professional Conduct 19-304.2[3], and ensure that there was no waiver of the attorney-client privilege or work-product doctrine. (ECF No. 264-1 at 4-5). Additionally, the Johns Hopkins defendants require that any copying be done by the Johns Hopkins archivists' preferred vendor, which they state is necessary to preserve the physical integrity of the papers in the archives. (ECF No. 264-1 at 5). Finally, the Johns Hopkins defendants conditioned access to their archives on plaintiffs' withdrawal of their Rule 30(b)(6) deposition notices. Id. The Johns Hopkins defendants argue that they are merely trying to come to a compromise and accomplish the most efficient path for resolution of the outstanding discovery disputes by allowing plaintiffs access to the archives, which would likely moot their need for such depositions. (ECF No. 264-1 at 6).

         Similarly, TRF offered plaintiffs access to the Rockefeller Archive Center (“RAC”), “an independent organization founded in 1974 that houses numerous archival collections, including the Rockefeller Foundation Archives.” (ECF No. 264-2 at 3). TRF notes that it “maintains ownership and control of the documents within its own archival collection, ” but it “does not control the RAC, its physical facilities, or its staff, and has no possession, custody or control of the documents in the RAC's other archival collections.” Id. Accordingly, TRF offered access to its archival records upon terms “developed in collaboration with RAC staff to fashion an orderly process that would allow plaintiffs' counsel to view any documents they requested (within reason, with disputes as to scope to be resolved by the [c]ourt) without disrupting the RAC's regular activities.” (ECF No. 264-2 at 3-4). TRF also notes that “[t]hese terms are nearly identical to the rules applicable to any other researcher who visits the RAC.” (ECF No. 264-2 at 4). Specifically, TRF states that plaintiffs were invited to use a publicly available online finding tool to identify records they wished to review, which would then be retrieved and delivered to plaintiffs by trained archivists. Id. Although plaintiffs would not be permitted to remove documents from the premises, the RAC would arrange for photocopying of any requested pages. Id. As to TRF's condition that plaintiffs withdraw their Rule 30(b)(6) notice, TRF stated that they believed this was reasonable in light of TRF's prior document production and the facts that “(i) TRF provided detailed written information in response to plaintiffs' questions about the policies and procedures of the RAC and the volume of files potentially responsive to plaintiffs' requests; (ii) TRF directed plaintiffs to a comprehensive online finding tool for its archival records; and (iii) pursuant to TRF's offer, plaintiffs would be able to review virtually any TRF records for which there is a good-faith argument as to relevance.” Id. TRF notes that plaintiffs did not respond to their invitations. (ECF No. 264-2 at 5).

         Given that the Johns Hopkins defendants and TRF have offered to allow plaintiffs access to their archives, it appears that there is no dispute remaining between the parties, and plaintiffs' Motion to Compel is moot as to this issue. Plaintiffs' access to these archives, however, is subject to the reasonable conditions set forth by the Johns Hopkins defendants and TRF. After reviewing the pleadings, I find that all conditions requested by the Johns Hopkins defendants[4]and TRF are reasonable, with the exception of the condition that plaintiffs withdraw their Rule 30(b)(6) deposition notices. Although I acknowledge defendants' efforts to avoid the necessity of such depositions, I cannot say at this time that there are no areas of inquiry that may be relevant to plaintiffs' case. As currently drafted, however, Plaintiffs' Rule 30(b)(6) deposition notices (ECF Nos. 264-6, 264-5, 264-6), are clearly overly broad, particularly in view of the upcoming archive visits and defendants' prior document production. Accordingly, plaintiffs' motion to compel compliance with the outstanding Rule 30(b)(6) notices is denied. Plaintiffs shall first conduct their archive visits, and, in the event that plaintiffs believe that there remain narrowed areas of inquiry that need to be addressed via Rule 30(b)(6) depositions, they may revise and reissue their Rule 30(b)(6) deposition notices. I trust that plaintiffs will be judicious in limiting the scope of these deposition notices, given the extensive information already provided by defendants and plaintiffs' upcoming archive visits, both of which should result in a significantly narrowed scope for Rule 30(b)(6) depositions. After plaintiffs serve these narrowed notices, the parties shall use my informal discovery dispute procedure (ECF No. 168) if disputes remain.

         b. Plaintiffs' First Set of Requests for Production of Documents and Things

         Plaintiffs ask the court to compel defendants to supplement their responses to plaintiffs' First Set of Requests for Production of Documents and Things (ECF Nos. 264-22, 283-1, 283-2). (ECF No. 252 at 2). Plaintiffs raise several complaints as to all defendants' responses to these requests.

         i. Defendants' Limited Scope of Document Production

         Plaintiffs argue that defendants improperly defined the scope of plaintiffs' discovery requests and placed unreasonable restrictions on their document production. (ECF No. 252 at 13). First, plaintiffs argue that the Johns Hopkins defendants and TRF unilaterally defined the term “Guatemala Experiments” to apply solely to “‘U.S. Government sponsored research,' thereby excluding [their] own participation from [their] self-imposed definition.” (ECF No. 252 at 13, 20). In response, the Johns Hopkins defendants note that, “[c]ontrary to plaintiffs' assertion, the Johns Hopkins [d]efendants did not limit their review or productions only to ‘U.S. Government sponsored research, '” and corrected that misconception in a letter to plaintiffs dated July 26, 2018. (ECF No. 264 at 13 n.8 (citing ECF No. 264-18)). Similarly, TRF states that it did not use the definition “U.S. Government sponsored research” to exclude otherwise responsive documents relating to TRF's alleged involvement in those studies, but rather solely used that definition “to identify the studies in question by tracking the description used by the Presidential Commission.” (ECF No. 264 at 15-16 (citing Presidential Commission for the Study of Bioethical Issues (“PCSBI”) Report at 2 (describing the experiments as “medical research supported by the United States and conducted in Guatemala between 1946 and 1948”)). Given these representations[5] by the Johns Hopkins defendants and TRF, it appears that plaintiffs' claim that defendants' document production was limited in this regard is without merit, and plaintiffs' Motion to Compel is denied as to this issue.

         Next, plaintiffs argue that the Johns Hopkins defendants and TRF improperly limited the scope of production to documents between the years 1946 and 1948. (ECF No. 252 at 13, 20). Plaintiffs argue, however, that “planning for the Guatemala experiments began in 1945, and the last known follow-up testing was done in 1957.” (ECF No. 252 at 13). Plaintiffs also request information from the 1930s and early 1940s relating to defendants' involvement in the Tuskegee and Terre Haute syphilis studies, but this information will be addressed separately after I receive supplemental briefing from the parties. (ECF No. 283). As a result of these restrictions, plaintiffs argue, “information concerning the activities of [defendants'] researchers collaborating on Tuskegee, Terre Haute, and Guatemala; the funding and control of the Guatemala experiments (done prior to 1946), the development of the Guatemala protocol (done prior to 1946), the motivation for Guatemala (spurned by events before 1946), the issue of standard of care for obtaining consent in the Guatemala project (standardized before 1946), follow-up after the Guatemala experiments (lasting well into the 1950s), and many other issues, was shielded from discovery without rationale.” (ECF No. 252 at 13).

         As to the time restrictions, defendants argue that they “limited production of documents in response to certain requests to documents from within [1946-1948] because that is the period during which plaintiffs allege the Guatemala Experiments occurred.”[6] (ECF No. 264 at 13 (citing ECF No. 127 at ¶ 408 (“According to the records currently available, at least 1, 308 psychiatric patients, prison inmates, and soldiers were intentional [sic] infected in the Guatemala Experiments from 1946 to 1948.”)) The Johns Hopkins defendants also argue that “plaintiffs do not articulate a valid basis for why the Johns Hopkins [d]efendants would have any documents related to experimentation that occurred in the 1950s, except that Dr. Cutler was a student at Johns Hopkins for one year during that period, ” and note that they “have already produced all documents in their possession related to Dr. Cutler's studies at their institutions, including his application.” Id. In sum, the Johns Hopkins defendants argue, “[p]laintiffs' request for documents beyond the 1946-1948 time period is thus not proportional to the needs of the case, and there is no justification to impose on defendants the burden of reviewing and producing those documents.” (ECF No. 264 at 14). Nonetheless, they state that they have offered for plaintiffs to identify materials at the Medical Archives and that they will make these documents available for plaintiffs' review, “consistent with the relevance and burden objections that they have made and subject to any rulings by this [c]ourt.” Id.

         TRF argues that, unlike the Johns Hopkins defendants, it did not limit its production to the years 1946-1948. (ECF No. 264 at 15). TRF notes that, in response to various requests with no time limit, it produced responsive records between 1945 and 1950 or 1940 and 1950. Id. TRF further argues that its offer for plaintiffs to conduct their own search for relevant documents by inspecting its archives moots plaintiffs' critiques of TRF's earlier production. (ECF No. 264 at 16).

         In their Reply, plaintiffs argue that “[t]here is no justification for the Hopkins [d]efendants to unilaterally refuse to produce documents before 1946 and after 1948, ” and note that “no other [d]efendant has made such a limitation.” (ECF No. 274 at 6). Plaintiffs further argue that the experiments “continued in the form of tissue sampling and analysis until 1957, meaning that documents directly related to the experiments likely exist well beyond even 1957.” (ECF No. 274 at 6-7). Accordingly, plaintiffs argue that the Johns Hopkins defendants' time limitation “is self-serving, illogical, and unrelated to the actual facts of this case, ” and should be expanded. (ECF No. 274 at 7).

         Plaintiffs' objection regarding defendants' limited time frame is well-founded. At the outset, any documents related to defendants' involvement in the Guatemala experiments are relevant, including any planning done prior to the start of the actual experimentation, as well as any follow-up testing performed after the conclusion of the experiments. Accordingly, it is proper for defendants to produce documents responsive to plaintiffs' requests for the time frame between the years 1945 (when plaintiffs allege that planning for the Guatemala experiments first began) and 1957 (when plaintiffs allege that the last known follow-up testing was completed). While the Johns Hopkins defendants briefly argue that it is unduly burdensome and not proportional to the needs of the case to require defendants to produce documents beyond the 1946-1948 time range (ECF No. 264 at 14), they have failed to articulate any particular burden. It is also noteworthy that the other defendants, TRF and BMS, did not apply such a narrow span of time when answering similar document requests. (ECF Nos. 264 at 15, 264-3 at 4). Finally, while defendants have offered to allow plaintiffs access to their archives, this does not excuse defendants' obligation to fully respond to all properly issued discovery requests. Accordingly, defendants[7] are ordered to supplement their responses to plaintiffs' First Set of Requests for Production of Documents and Things and produce documents responsive to plaintiffs' requests for the timeframe between 1945 and 1957 within 21 days of this order.[8]

         ii. Defendants' Deficient Document Production

         Plaintiffs also argue that defendants have refused to produce documents that plaintiffs “know are in [defendants'] possession and control, and directly responsive to [p]laintiffs' requests.” (ECF No. 252 at 13). As to the Johns Hopkins defendants, plaintiffs state that, “based on what they have obtained from third party sources, including the U.S. Government, the notes of their own expert, and from their review of the recently-produced indexes and indexes that are publicly available regarding Hopkins' archives, it is apparent to [p]laintiffs that Hopkins has either performed a very limited review of documents in its possession, has produced documents subject to inappropriate and self-imposed restrictions on what is relevant, or is purposefully withholding documents.” (ECF No. 252 at 19). Plaintiffs similarly argue that TRF has failed to produce documents responsive to discovery requests seeking information regarding activities of key employees at issue in the case, which plaintiffs argue “are calculated towards uncovering information that supports their theory that Dr. Soper, Dr. Parran, and other agents of The Rockefeller Foundation are directly liable and liable for aiding and abetting on account of its employees' assistance with designing, funding, and providing personnel to support the experiments.” (ECF No. 252 at 21). Plaintiffs provide non-exhaustive lists of materials that they believe the Johns Hopkins defendants and TRF have in their possession and control and ask that these defendants be compelled to produce these documents, along with a document index for the materials already produced, and any additional ones to be provided. (ECF No. 252 at 15-22).

         Similarly, plaintiffs argue that, based upon a review of documents produced by BMS and what plaintiffs understand BMS to possess, they have a good faith basis to believe that BMS withheld documents regarding 1) penicillin used during the relevant time period; 2) Dr. Delmas Kitchen, a BMS employee who met and corresponded with Dr. Soper, the Lead Investigator of the Experiments; 3) Dr. Shannon, a BMS researcher who “who was involved in conducting malaria research on human test subjects in Guatemala at the same time as the Guatemala syphilis experiments at issue in this case, and who was updated and informed about the Guatemala experiments by others at the time;” 4) BMS employee Dr. Rake, who researched syphilis prophylaxis at the time of the Experiments; and 5) BMS employee Dr. Oskar Wintersteiner, “who sat on the Antibiotic Study Section, which allocated the use of penicillin at the time of the Guatemala experiments.” (ECF No. 252 at 22). Plaintiffs also ask the court to “compel production of these documents and others that have been referenced in previous correspondence between counsel relating to this discovery dispute, as well as a proper document index.” (ECF No. 252 at 23).

         In response, the Johns Hopkins defendants argue that the list provided by plaintiffs of potentially responsive documents is misleading, as they have already produced some of these items, and many are facially irrelevant. (ECF No. 264 at 13-14). As to plaintiffs' request that a document index be produced, the Johns Hopkins defendants argue that “[t]he Federal Rules do not require that an index be produced, and defendants' cover letters have indicated to which request the productions are responsive.” (ECF No. 264 at 11 n.6). TRF notes that it first provided responses and objections to these requests on June 11, 2018, and that, to date, plaintiffs have failed to confer about these responses and objections. (ECF No. 264 at 14-15). TRF further argues that plaintiffs' critiques of its production are without merit, and that it has repeatedly demonstrated to plaintiffs that it has complied with all discovery obligations. (ECF No. 264 at 15-16). TRF also notes that, like the Johns Hopkins defendants, it assisted plaintiffs in identifying what documents are responsive to each request by letters dated September 6 and 11, October 8, and November 19, 2018. (ECF No. 264 at 15).

         BMS similarly notes that plaintiffs failed to raise these concerns in accordance with the court's order by January 4, 2019, and instead waited until after the close of fact discovery to address these issues. (ECF No. 264 at 16-17). BMS further argues that plaintiffs' concerns are unfounded. Specifically, BMS argues that plaintiffs have offered no support for their assertion that BMS has withheld documents, and that BMS cannot produce documents that do not exist. (ECF No. 264-3 at 2). BMS notes that plaintiffs' own expert, Dr. Reverby, testified that “despite researching the issues, she knew of no basis for concluding that BMS was involved in conducting the Guatemala Experiments.” (ECF No. 264-3 at 3). BMS further notes that Professor Lombardo, who served as a senior advisor to the Presidential Commission for the Study of Bioethical Issues that studied the Guatemala experiments, similarly “testified that despite affirmatively looking for the involvement of a pharmaceutical company, he found none.” Id. BMS also represents that it has provided documents related to Dr. Wintersteiner and its penicillin during the relevant time period. (ECF No. 264-3 at 4).

         While both the Johns Hopkins defendants and TRF argue generally that they have fully complied with their discovery obligations in responding to plaintiffs' document requests, the parties have not provided me with sufficient information to make this determination. Specifically, when addressing plaintiffs' non-exhaustive list of requested documents, the Johns Hopkins defendants merely state that they have produced some and that others are irrelevant (ECF No. 264 at 14), while TRF fails to address the list of requested documents altogether. Similarly, BMS has stated that it produced documents relating to Dr. Wintersteiner and BMS' penicillin during the relevant time frame (ECF No. 264-3 at 4), but for the remaining five categories, merely that “it is unclear what the alleged deficiencies are, ” and that “BMS cannot produce documents that do not exist.” (ECF No. 264-3 at 2, 4). Accordingly, within 21 days of this order, defendants are directed to either: 1) produce plaintiffs' requested documents, identify those documents that it has already produced to plaintiffs, and identify those documents that it is withholding on the basis of irrelevance; or 2) certify that defendants do not possess the ...

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