UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

JOHN GILL SMITH,	)

)

Plaintiff,	)

)	No. 03-6494

and	)

)

THE UNITED STATES OF AMERICA,	)

)

Plaintiff-Intervenor,	)

)

v.	)

)

THE CITY OF PHILADELPHIA,	)

)

Defendant.	)

___________________________________	)

UNITED STATES' REPLY TO DEFENDANT'S OPPOSITION TO UNITED

STATES' MOTION TO COMPEL DISCOVERY, AND UNITED STATES'

OPPOSITION TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER

I. Preliminary Statement

After attempting to resolve this discovery dispute without Court intervention, the United States filed a motion to compel the production of certain patient care reports generated by Philadelphia Fire Department ("PFD") paramedics Joni Kuonen and/or Katherine Ceschan for the period 2000 through 2002. Defendant filed a brief in opposition in the form of a motion for protective order. Defendant did not dispute that the patient care reports are relevant to the litigation.1 Rather, Defendant argued that because of the way the reports were electronically stored, production of responsive documents was impossible and a manual search for paper documents would be unduly burdensome. Because Defendant's argument was premised on unsupported factual assertions that had not previously been raised with the United States, the United States sought, and the Court granted, a stay to conduct a Rule 30(b)(6) deposition, previously noticed, regarding the storage and retrieval of patient care reports.2

Pursuant to the Court's Order, Defendant produced Captain Richard Marshall Bossert, head of Continuous Quality Improvement for the PFD Emergency Medical Services division ("EMS"). Captain Bossert's testimony flatly contradicted the factual assertions underlying Defendant's undue burden argument, and demonstrated that responsive computer records generated during the period at issue were identifiable and retrievable through a database search.

Given the absence of any evidentiary basis for Defendant's argument that production of the requested records would be unduly burdensome, the United States respectfully requests that the Court deny Defendant's motion for protective order and direct Defendant to produce the electronically generated patient care reports responsive to the United States' request.3

II. Argument

A party wishing to obtain an order of protection over discovery material must demonstrate that "good cause" exists for the order of protection. Fed. R. Civ. P. 26(c); see also Fort Washington Resources, Inc. v. Tannen, 153 F.R.D. 78, 79 (E.D. Pa. 1994) ("[T]he party seeking the protective order bears the burden of showing good cause.") (citing Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.1986); Trans Pacific Ins. Co. v. Trans-Pacific Ins. Co., 136 F.R.D. 385, 391 (E.D.Pa.1991)).

Discovery in the form of document production will always impose some burden on the party from whom the discovery is sought, thus "good cause" requires a showing of, and Rule 26(c) protects only against, undue burden. See, e.g., Roesburg v. Johns-Manville Corp., 85 F.R.D. 292, 297 (D.C. Pa. 1980) (the fact that discovery will require the objecting party to expend considerable time, effort and expense is not alone sufficient to disallow the discovery unless the requests are "egregiously burdensome or oppressive"). Whether discovery imposes an undue burden depends on such factors as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by the request, the particularity with which documents are described, and the burden imposed.4 Wyoming v. U.S. Dep't of Agriculture, 208 F.R.D. 449, 453 (D.D.C. 2002). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." Pansy, 23 F.3d at 786 (citing Cipollone, 785 F.2d at 1121).

In this case, Defendant's broad allegations of harm, unsubstantiated, and largely refuted, by Defendant's designated agent, will not support the good cause showing required under Rule 26(c), and, accordingly, Defendant's opposition and motion for protective order must fail.

A.	Additional responsive reports were electronically generated and are identifiable

Defendant alleges, generally, that computer-related issues render an electronic search, and subsequent production, of additional responsive records impossible. Defendant asserts that patient care reports from 2000 were not stored on a computer file; that reports prior to late 2001, while possibly electronically generated, could only be searched by date or dispatch number; and that no reports between 2000 and 2002 could be searched by the "prior history" field. Defendant's Opp. at ¶¶ 12-15.

These factual assertions were flatly refuted by Defendant's designated agent. As set out below, Captain Bossert's testimony clearly establishes: (1) that Ms. Kuonen's and Ms. Ceschan's EMS unit, Medic 2, was electronically reporting EMS runs prior to late 2001, and (2) that in any electronically generated patient care report, all database fields are "queryable," or searchable, for terms included on the pre-programmed drop-down boxes for each database field.

The United States first sought information regarding when and how the PFD paramedics – and Ms. Ceschan and Kuonen, particularly – generated patient care reports during the relevant time period. Captain Bossert explained that the United States' document request covered a period of transition for the PFD, in that during the years 2000 through 2002, the PFD EMS was converting to a computerized system. See Bossert Depo. at p. 36.5 Medic units were converted to electronic reporting at different times during this period, and, while some began electronic reporting as early as 2000, others continued to generate paper reports which were then scanned into the computer. Id.

Captain Bossert could not testify as to the exact date when Medic 2 converted to electronic reporting although he admitted that this information is available in his office. Bossert Depo. at pp. 96-97. However, based on a review of Plaintiff John Gill Smith's patient care report, dated February 20, 2001, and marked as Exhibit 2, Captain Bossert testified that Medic 2 was electronic as of, at least, February 20, 2001:

Page 82:

18 Q. Now, can you tell from

19 looking at this [Exhibit 2], was Medic 2

20 electronic at this point?

21 A. This would be, yes, on this

22 report.

23 Q. And the date of this

24 incident was February 20th, 2001.

Therefore, patient care reports were electronically generated by Ms. Kuonen and/or Ms. Ceschan from at least that point forward, and may date back to 2000:

Page 93

7 MS. EINSTEIN: And it's

8 your assumption that if they were

9 electronic in February of 2001, they

10 were electronic from February 2001

11 forward?

12 THE WITNESS: Minus the

13 exceptions when the computer system

14 is down.

15 MS. EINSTEIN: Correct.

16 THE WITNESS: Okay.6

See also Bossert Depo. at p. 97, lines 9 - 14 ("Q. And everything that you just discussed with Miss Einstein, those assertions hold true if they were electronic in 2000 as well, correct? A. Correct.").

Captain Bossert also testified, contrary to Defendant's assertions, that where a patient care report was electronically generated, it could be queried for, and records identified by, any field in the report:

Page 102

11 Q. Your understanding is that

12 any field in a database should be

13 queryable --

14 A. Right.

15 Q. -- if the information is in

16 that field?

17 A. Correct.

Captain Bossert explained that any terms available from the drop-down boxes, or "pick-list" within a database field would be searchable and records including that term would be identifiable. See Bossert Depo., at pp. 103, 115-16. Although the PFD used a number of different database software programs during this period, Captain Bossert testified that he would be able to determine, "with some reliability," which software database program or programs were in use by Medic 2 throughout the period at issue, and, then, determine which terms were available from the pick-list. See id. at 116-17. Significantly, Captain Bossert testified that records wherein the "probable cause" field included "chest pain" would be identifiable since the search term specified in the United States' request – "chest pain" – would be phrased consistently regardless of the software.

Page 28 (Witness)

9 But that's not a problem,

10 because we have a complaint that says

11 "Chief complaint is chest pains," and

12 I can query that, for a particular

13 medic unit, for a particular time.

And, with respect to the HIV-related reports, when presented with Exhibit 2, Plaintiff Smith's report from February 2001, and an additional report from 2002, Captain Bossert confirmed that although the two reports were generated using different software, both included AIDS/HIV among the pick-lists for the prior history field and thus reports during that time frame and generated with those programs would be searchable by that field and that term. See Bossert Depo. at pp. 100-
102, 118-19.7

In sum, contrary to Defendant's allegations, the evidence demonstrates that additional reports responsive to the United States' document production requests are electronically searchable, identifiable and producible.

B.	The HIV/AIDS-related patient care reports

As demonstrated above, some or all of the requested HIV-related records are electronically identifiable and retrievable. See also Bossert Depo. at p. 109, lines 9-12 ("[Q.] Logistically, you could have performed that search, however? [A.] Logistically, yes. . . ."). Captain Bossert admitted, however, that, although contacted about the document request, he never searched the PFD electronic records for the HIV-related reports, and was unaware of whether anyone else did:

Page 107

3 Q. Did you do a search for the

4 requests involving Joni Kuonen and

5 Katie Ceschan, plus HIV/AIDS, prior

6 history?

7 A. No.

* * *

Page 119

21 Q. So you don't know what ACS8

22 did with respect to this document

23 request?

24 A. This particular one, no.

Captain Bossert offered two explanations for why he did not do the requested search, neither of which justifies, or is relevant to, the failure to produce the requested documents. Captain Bossert explained that he did not do the requested search because, in his opinion, the patient care records identified and obtained from such a search would not be "reliable," the "most probable" reason being that not all patients with the HIV virus identify themselves as such to paramedics. See Bossert Depo., at p. 110. He was also concerned that variances in the software programs from 2000 to 2002 might result in less than complete identification of records falling within the requested parameters because the pick-list might not have included HIV/AIDS (a concern proven to be less important given his concession that HIV/AIDS was, indeed, on the pick-
list in February, 2001, and in 2002, and likely during the intervening time period). See id. at 108. Captain Bossert shared his opinions with his superiors in the PFD and was then told not to do the search:

Page 109

5 Q. And so you were told not to

6 do the search?

7 A. From my recollection, yes.

Defendant's motion for a protective order, on undue burden grounds, must fail where Defendant has not presented evidence that it took even the minimal steps that would have demonstrated that the relevant documents were searchable and would have indicated the number of documents responsive to the request.9 Cf. Fort Washington Resources, 153 F.R.D. at 79 ("The burden is not met by 'the recitation of expense and burdensomeness [which are] merely conclusory' statements.") (citing Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir.1985)).

C.	The "chest pain" patient care reports

With respect to the United States' request for patient care reports involving Joni Kuonen or Katie Ceschan where the nature of the 911 call, as documented in the "probable cause" field, includes "chest pain," Defendant produced 126 responsive reports from the "latter part" of 2001 through 2002, covering approximately 13 to 15 months of the three-year period at issue. The United States seeks production of responsive reports for the period from January 1, 2000 up to the latter part of 2001.

In view of Captain Bossert's admission, discussed above, that responsive reports were identifiable at least by February 20, 2001, but had not been produced, the United States asked Captain Bossert whether he had searched for responsive reports for January, 2001 forward. Captain Bossert could not recall:

Page 92

4 MS. EINSTEIN: Well, let me

5 ask you specifically.

6 Did you query for the time

7 period January 2001 forward?

8 THE WITNESS: I queried for

9 whatever I could query for. And

10 whoever asked for it was told that.

11 And outside that...

12 MS. EINSTEIN: Well, I

13 asked if you queried for the period

14 January 2001 forward. Do you recall?

15 THE WITNESS: I don't

16 know. No, I don't recall exactly.

17 MS. EINSTEIN: Okay.

18 THE WITNESS: I couldn't

19 tell you.

Nonetheless, Captain Bossert admitted that if a search had been done for the period 2000 forward, all electronically generated reports would be identified in the search. Since he had already conceded that Ms. Kuonen and Ms. Ceschan were "electronic" as of February 20, 2001, this meant that as of at least February 20, 2001, and going forward, all of the reports generated by Ms. Kuonen and Ms. Ceschan were electronically generated and retrievable under the criteria specified by the United States:

Page 92

20 MS. EINSTEIN: And if you

21 had queried January 2001 forward, the

22 report in Exhibit 2 would have shown

23 up?10

24 THE WITNESS: As far as I

Page 93

1 can tell, yes.

2 MS. EINSTEIN: And any

3 other report that was electronic

4 would have shown up?

5 THE WITNESS: That's

6 correct.

Given the established existence of electronically generated reports prior to "latter 2001," Captain Bossert had no explanation for Defendant's failure to produce the electronically generated records from that period:

Page 93

17 MS. EINSTEIN: And so do

18 you have any explanation why in

19 producing the reports the City did

20 not produce reports for any time

21 prior to what they have characterized

22 as late 2001?

23 THE WITNESS: The only

24 explanation I could give you would

Page 94

1 be, those reports aren't

2 electronically done and they're on

3 paperwork and they're archived. That

4 would be the only -- I --

5 MS. EINSTEIN: No. But

6 these particular reports, for Joni

7 Kuonen and Katherine Ceschan for

8 chest pains --

9 THE WITNESS: Okay.

10 MS. EINSTEIN: -- which

11 we've already agreed were

12 electronically generated.

13 THE WITNESS: Right.

14 MS. EINSTEIN: So do you

15 have any explanation for why those

16 reports were not produced for prior

17 to late 2001?

18 THE WITNESS: Off the top

19 of my head, I -- all I remember is

20 give me the number of calls under

21 these parameters, tell us what we

22 have, blah, blah, blah. From that

23 point on, it went back and forth

24 multiple times through the --

Page 95

1 MS. EINSTEIN: I just asked

2 you a yes or no question.

3 Maybe you should read it

4 back.

5 THE WITNESS: Okay. No.

In sum, given that Captain Bossert's testimony demonstrates that responsive chest pain reports are electronically identifiable and retrievable as of at least February, 2001, thereby refuting the factual basis for Defendant's undue burden argument, Defendant's motion must fail.

D.	Production of the reports is not unduly burdensome

Defendant alleged that the only reasonable means to locate the responsive reports would be to conduct a manual search of storage boxes, at an approximate cost of $164,160. Defendant's Opp. at ¶¶ 20-24. Now that Defendant's designated agent has testified that the documents can be identified and produced through a computer document search, Defendant's assertions of burdensomeness are moot. Given that it takes approximately five minutes to produce each report, Defendant's Opp. ¶ 17, and that the number of responsive documents is, likely, around 120,11 Defendant cannot show that production would be burdensome.

First, it bears repeating that the United States' request is relevant and narrowly tailored to the facts in this case. Moreover, the reports at issue already reflect a compromise reached by the parties to limit the initial request, which covered the time period 2000 to the present, to a three year period from 2000 through 2002, precisely because Defendant's counsel expressed concerns about the time it would take to produce the reports. Indeed, at five to ten minutes per report (giving Defendant every benefit of the doubt) Defendant could produce 120 reports in ten to twenty hours. The United States was unable to find any reported cases in which a court held that the expenditure of ten to twenty hours to produce relevant documents was unduly burdensome. See, e.g., Fort Washington Resources, 153 F.R.D. at 79 (Defendant failed to meet burden of showing good cause; assertion that producing documents would take too much time and expense was unsupported by the necessary particularized facts and details regarding the amount of time or expense and why such amounts are unduly burdensome); Klausen v. Sidney Printing & Pub. Co., 271 F. Supp. 783 (D.Kan.1967) (mere fact that interrogatories are lengthy or that defendant will be put to some trouble and expense in preparing requested answers is not alone sufficient to warrant protective order relieving defendant from burden of answering).12

III. Conclusion

For the foregoing reasons, and based upon the entire record herein, the United States' motion to compel should be granted and Defendant's motion for a protective order should be denied.

Respectfully submitted this ____ day of July, 2005.

ALBERTO R. GONZALES

Attorney General of the United States

PATRICK L. MEEHAN	BRADLEY J. SCHLOZMAN

United States Attorney	Acting Assistant Attorney General

Eastern District of Pennsylvania	Civil Rights Division

NANCY GRIFFIN	JOHN L. WODATCH, Chief

Assistant United States Attorney	PHILIP L. BREEN, Special Legal Counsel

Eastern District of Pennsylvania	ALLISON J. NICHOL, Deputy Chief

615 Chestnut Street, Suite 1250	Disability Rights Section

Philadelphia, PA 19106	Civil Rights Division

Telephone: (215) 861-8200

/s/ Kathleen P. Wolfe

LAURA F. EINSTEIN

KATHLEEN P. WOLFE

Trial Attorneys

Disability Rights Section

Civil Rights Division

U.S. Department of Justice - NYA

950 Pennsylvania Avenue NW

Washington, D.C. 20530

Telephone: (202) 307-0663

CERTIFICATE OF SERVICE

I hereby certify that on July ___, 2005, I electronically filed with the Clerk of the Court, using the Electronic Case Management System, the United States' . . . .

I further certify that copies of this filing were mailed via First-Class Mail on July __, 2005, to the following non-ECF participants:

Ronda Goldfein

AIDS Law Project of Pennsylvania

1211 Chestnut Street, Suite 600

Philadelphia, PA 19107

By:

Kathleen P. Wolfe

Trial Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice - NYA

950 Pennsylvania Avenue NW

Washington, D.C. 20530

Telephone: (202) 307-0663