John B. v. Goetz
| Decision Date | 26 June 2008 |
| Docket Number | No. 07-6373.,07-6373. |
| Citation | 531 F.3d 448 |
| Parties | JOHN B.; Carrie G.; Joshua M.; Meagan A.; Erica A., by their next friend, L.A.; Dustin P. by his next friend, Linda C.; Bayli S. by her next friend, C.W.; James D. by his next friend, Susan H.; Elsie H. by her next friend, Stacy Miller; Julian C. by his next friend, Shawn C.; Troy D. by his next friend, T.W.; Ray M. by his next friend, P.D.; Roscoe W. by his next friend, K.B.; William B. by his next friend, K.B.; Jacob R. by his next friend, Kim R.; Justin S. by his next friend, Diane P.; Estel W. by his next friend, E.D.; individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. M.D. GOETZ, Jr., Commissioner, Tennessee Department of Finance and Administration; Darin Gordon, Assistant Commissioner, Bureau of TennCare; Viola P. Miller, Commissioner, Tennessee Department of Children's Services, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Michael W. Kirk, Cooper & Kirk, Washington, D.C., for Appellants. Michele M. Johnson, Tennessee Justice Center, Nashville, Tennessee, for Appellees. ON BRIEF: Michael W. Kirk, Charles J. Cooper, Brian S. Koukoutchos, Nicole Jo Moss, Derek L. Shaffer, Cooper & Kirk, Washington, D.C., Linda A. Ross, Office of the Tennessee Attorney General, Nashville, Tennessee, Ronald G. Harris, Aubrey B. Harwell, Jr., Neal & Harwell, Nashville, Tennessee, for Appellants. Michele M. Johnson, G. Gordon Bonnyman,
Jr., Tennessee Justice Center, Nashville, Tennessee, for Appellees. William P. Marshall, Ohio Attorney General Office, Columbus, Ohio, Michael A. Cox, Michigan Department of Attorney General, Lansing, Michigan, Gregory D. Stumbo, Office of the Attorney General, Frankfort, Kentucky, Sarah Somers, Jane Perkins, National Health Law Program, Chapel Hill, North Carolina, Elizabeth A. Alexander, Christopher E. Coleman, Lieff, Cabraser, Heimann & Bernstein, Nashville, Tennessee, Kelly M. Dermody, Allison S. Elgert, Lieff, Cabraser, Heimann & Bernstein, San Francisco, California, for Amici Curiae.
Before: COLE, GIBBONS, and ROGERS, Circuit Judges.
ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. COLE, J. (pp. 461-62), delivered a separate concurring opinion.
State defendants seek mandamus relief from two discovery orders issued by the district court during the course of this class-action litigation. The district court issued the orders after a discovery dispute arose regarding defendants' duty to preserve and produce electronically stored information relevant to the litigation. In the first order, the district court directed plaintiffs' computer expert and a court-appointed monitor to inspect the state's computer system and the computers of 50 key custodians to ascertain whether any relevant information has been impaired, compromised, or removed. The second order denies reconsideration of the first order and directs that the first order be executed forthwith. Both orders allow plaintiffs' computer expert to make forensic copies of the hard drives of identified computers, including not only those at the work stations of the state's key custodians, but also any privately owned computers on which the custodians may have performed or received work relating to the TennCare program. The orders also direct the U.S. Marshal, or his designated deputies, to accompany plaintiffs' computer expert to ensure full execution of the orders. This court entered an emergency stay of implementation of the orders on December 7, 2007. For the reasons stated below, we now grant in part defendants' petition for mandamus.
This case arises from class-action litigation related to Tennessee's TennCare program. In 1993, Tennessee obtained a waiver from the Secretary of Health and Human Services to replace its fee-for-service Medicaid program with a managed care system called TennCare. In 1998, the instant action was filed on behalf of a class of approximately 500,000 children enrolled in the TennCare program, seeking to enforce certain provisions of the Social Security Act. Title XIX of the Social Security Act requires state plans that accept federal funding, like TennCare, to provide Medicaid-eligible persons under the age of 21 with certain Early and Periodic Screening, Diagnosis and Treatment (EPSDT) services. See 42 U.S.C. §§ 1396a(a)(43), 1396d(r). These services include regular medical screening, vision, hearing, and dental services. § 1396d(r).
Almost immediately after the case was filed, the parties entered into a Consent Decree. The decree recognized a number of deficiencies in the TennCare program and set goals and time frames for compliance with federal law. Pursuant to the decree, the state retained an expert to evaluate EPSDT services for children. After the expert submitted a report in late 1998, the parties submitted two proposed agreed-upon orders and entered into a remedial plan. The district court approved the orders in May 2000. Eventually, the state encountered difficulty implementing the remedial plan and moved to stay implementation of the plan and modify the agreed-upon orders. In response, plaintiffs moved to hold defendants in contempt for violating both the Consent Decree and the May 2000 orders.
In December 2001, the district court, with Judge Nixon then presiding, ruled on the motions after three weeks of hearings. The court noted that "[t]he record demonstrates that the Defendants have been, for the most part, well-intentioned and diligent in attempting to comply with both the Consent Decree and federal EPSDT requirements," but expressed that "from the beginning, the State's efforts have been hampered by institutional inefficiencies and fundamental problems associated with the TennCare system." John B. v. Menke, 176 F.Supp.2d 786, 790, 791 (M.D.Tenn. 2001). Ultimately, the district court concluded that the state had not established compliance with federal EPSDT requirements, and held in abeyance consideration of whether defendants were in contempt for violating the Consent Decree. Id. at 791, 800, 806-07. As a remedy, the district court appointed a special master to confer with the parties and to submit a plan to address the deficiencies in the TennCare program. Id. at 807-08.
In 2004, the Governor of Tennessee proposed TennCare reform to control the mounting costs of the program. On account of these reforms, the parties again began to dispute issues related to the state's compliance with the Consent Decree. In June 2004, plaintiffs moved for an order to show cause why defendants should not be held in contempt for violating the decree. On October 22, 2004, the district court issued a second order finding the state noncompliant and instructing the special master to create a remedial plan.
On November 18, 2004, defendants moved for leave to take discovery on the ground that the court's October 22, 2004 order and plan were the product of allegedly improper ex parte communications between the court and the special master.1 Thereafter, the case was held in abeyance for a time. On December 13, 2005, the court, at the proposal of both plaintiffs and defendants, vacated its October 22, 2004 order and denied as moot defendants' discovery requests. However, on December 21, 2005, defendants renewed their motion for discovery, contending that the vacatur of the October 22, 2004 order did not eliminate the potential prejudice resulting from the ex parte communications between the judge and the special master.
In response to defendants' renewed motion for discovery, Judge Nixon recused himself from the case. In his order of recusal of February 3, 2006, Judge Nixon wrote that he recused himself "to remove any barrier — perceived or real — to the ultimate goal of increasing the State's compliance with EPSDT requirements." The case was then transferred to Judge Haynes, who had handled another branch of TennCare litigation. Judge Haynes held a status conference on February 10, 2006, to discuss outstanding issues with the parties' counsel. After review of the record, Judge Haynes decided to retain the special master as a technical advisor and appoint monitors to assist the parties and the court in identifying issues remaining in the case.
At the February 10, 2006 conference, defendants took the position that the state had achieved compliance with the Consent Decree. In response, plaintiffs propounded discovery requests in March 2006 seeking information and documents, including electronically stored information ("ESI"), relevant to the state's compliance. Defendants responded on May 15, 2006, but converted responsive ESI to hard paper copies. Between May and August 2006, the parties disputed whether the state was required to produce ESI as opposed to hard copies, and also disputed whether the state was required to provide responsive documentation from managed care contractors ("MCCs").2 When the parties could not resolve these issues, plaintiffs filed a motion to compel discovery on October 13, 2006. Prior to the dispute over ESI production, defendants had produced massive amounts of information by hard paper copy.
On November 21, 2006, the district court granted the plaintiffs' motion to compel in part. The court ordered defendants to provide responsive documents to plaintiffs in electronic format, subject to defendants' right to "claw-back" privileged documents. The court also ordered defendants to provide a written description of the technical specifications regarding the state's electronic data, and further provided that the parties were to create a protocol for production of electronic records. Because defendants conceded that some hard documents provided were produced in incomplete form, the court permitted the plaintiffs to obtain assurances on the completeness of discovery responses by requesting certification of all persons who were involved in searching the records and making...
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