Kraft v. Essentia Health

Decision Date08 July 2022
Docket Number3:20-cv-121
PartiesJessica Kraft, et al., Plaintiffs, v. Essentia Health, et al., Defendants.
CourtU.S. District Court — District of North Dakota

Peter D. Welte, Chief Judge United States District Court

Before the Court is an objection and notice of appeal from court's order (Doc. No. 181) filed by Defendants Essentia Health and Innovis Health, LLC, d/b/a Essentia Health West (collectively, Essentia) on May 23, 2022. Essentia appeals United States Magistrate Judge Alice R Senechal's May 9, 2022, order regarding a discovery dispute (the May 9 Order”). Docs. No. 188, 190. On May 31, 2022, Plaintiffs Jessica Kraft, et al (Plaintiffs), filed a response in opposition. Doc. No. 193. For the following reasons, Essentia's appeal is denied.


The Court is quite familiar with the allegations and claims in this case. Indeed, this is the second appeal from a discovery dispute this Court has addressed. In short, Plaintiffs brought this putative class action alleging that Essentia sold and administered injectable pharmaceuticals- time and temperature sensitive pharmaceutical products-that had been stored outside the proper temperature range.[1] See Doc. No. 92. Plaintiffs assert multiple claims and seek to recover for economic loss. Id.

This case is still in discovery. Plaintiffs served various discovery requests on Essentia, including requests for production of documents. As part of its response to these discovery requests, Essentia asserted various privileges to several documents, including “the peer review/quality assurance privilege.”[2] Doc. No. 57-1, pp. 5, 7. Under Federal Rule of Civil Procedure 26(b)(5)(A)(ii), a party withholding documents on the basis of privilege must describe the withheld documents with enough detail to “enable other parties to assess the claim” but need not reveal “information itself privileged or protected.”

As Judge Senechal fittingly explained, [s]triking this balance has proved difficult.” Doc. No. 181. By way of review, Judge Senechal issued a discovery order on August 2, 2021, addressing the sufficiency of Essentia's privilege and supplemental privilege log (the August 2 Order”). Doc. No. 79. Pursuant to the August 2 Order, Essentia was directed to produce a more specific privilege log that included:

(1) the date on which it was created, (2) identity of the person who created it and the position held by that person at the time the document was created, (3) identity of persons who received the document and their positions, (4) a description of the subject matter of the document, (5) inclusive document identification numbers, and (6) specific reference to the portion of the North Dakota or Minnesota privilege the document is asserted to meet.

Id., p. 12-13. Essentia appealed the August 2 Order to this Court, and it was affirmed. Doc. No. 109. Essentia then filled an interlocutory appeal and sought a writ of mandamus in the United States Court of Appeals for the Eighth Circuit, both of which were dismissed and denied respectively. Doc. No. 113.

With the first appeal resolved, discovery continued. During a status conference, Plaintiffs argued, among other things, that the privilege log provided by Essentia contained insufficient detail as to the subject matter descriptions. Doc. No. 128. Recognizing the August 2 Order did not include a specific directive regarding the level of detail required as to the subject matter descriptions, Judge Senechal issued an order on October 14, 2021, directing Essentia to “provide additional detail, specific to each document over which it claims the privilege.” Doc. No. 129. Essentia complied. See Doc. No. 161-1.

Still unsatisfied with Essentia's supplemental privilege log, Plaintiffs filed a motion to compel production of documents withheld as privileged on January 24, 2022 (the Motion to Compel) and requested sanctions. Doc. No. 161. In that motion, Plaintiffs argued that Essentia failed to establish that any of the withheld documents are privileged. See id. In response, Essentia argued it “complied with this Court's previous Orders requiring it to produce additional detail in its supplemental privilege logs” and that there is no basis on this record to require disclosure of the documents that Essentia has withheld as privileged. Doc. No. 169. Essentia further argued, in the alternative, that the Court should conduct an in-camera review of the documents identified in Essentia's supplemental privilege log “should the Court require additional information.” Id.

After briefing on the Motion to Compel was concluded but before the Court issued an order, the North Dakota Supreme Court issued a decision in St. Alexius Medical Center v. McKibbage, 2022 ND 65, 971 N.W.2d 878. In that case, St. Alexius Medical Center challenged a state district court's order that compelled disclosure of allegedly privileged information, under North Dakota's peer review privilege, on a privilege log. Considering McKibbage, Judge Senechal ordered supplemental briefing. Doc. No. 175.

In its supplemental brief, Essentia argued that the Court's August 2 Order and October 14 Order “requiring the disclosure of additional details in Essentia's privilege logs for documents for which Essentia asserted application of the [peer review privilege] are inconsistent with the North Dakota Supreme Court's decision in McKibbage.” Doc. No. 178, p. 2. Without formally moving, Essentia asked that the Court, given McKibbage:

vacate its August 2, 2021, and October 14, 2021, Orders, order Plaintiffs' destruction of Essentia's supplemental privilege logs, precluding their further use in this case or otherwise, and seal any reference to the privileged information contained in Essentia's supplemental privilege logs already filed or of record to prevent further dissemination of such privileged information. Essentia also seeks a stay of this Court's August 2, 2021, and October 14, 2021, Orders as they relate to the requirement to produce supplemental privilege logs pursuant to the Court's Order Governing Discovery of Electronically Stored Information.

Id. Plaintiffs argued that McKibbage is inapplicable because this case is governed by Minnesota's peer review privilege law, not North Dakota's peer review privilege. Doc. No. 180, p. 3.

With the supplemental briefing concluded, Judge Senechal issued the May 9 Order, which resolved the motion to compel, as well as issues raised by the parties as to the impact of McKibbage. Doc. No. 181. In the May 9 Order, Judge Senechal conducted a thorough choice of law analysis and ultimately found that Minnesota's (rather than North Dakota's) peer review privilege applied. Id. Thus, Judge Senechal determined that that McKibbage did not apply and was distinguishable. Id. Additionally, as to the motion to compel, Judge Senechal found “it necessary to conduct in-camera review to determine whether documents Essentia has withheld are privileged under Minnesota's peer review privilege or under any other asserted privilege.” Id., p. 32. She invited the parties to each select up to fifty (50) of the documents listed on Essentia's privilege log for the Court's review, with Plaintiffs selecting their documents by May 23, 2022, and Essentia selecting its documents by June 13, 2022.[3] Id. Judge Senechal also denied Plaintiffs' motion to compel, to the extent that Plaintiffs' requested the Court order Essentia to disclose all documents over which it had claimed privilege, and denied Plaintiffs' request for an award of fees and costs incurred in connection with that dispute. Id., p. 31. Essentia appealed.


Pursuant to Federal Rule of Civil Procedure 72(a) and District of North Dakota Civil Local Rule 72.1(B), a magistrate judge is permitted to hear and determine non-dispositive matters in a civil case. Any party may appeal the determination to the district court judge assigned to the case who “must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed.R.Civ.P. 72(a); see also D.N.D. Civ. L. R. 72.1(D)(2). “A district court conducts an ‘extremely deferential' review of a magistrate judge's ruling on a nondispositive issue.” Carlson v. BNSF Ry. Co., No. 19-CV-1232, 2021 WL 3030644, at *1 (D. Minn. July 19, 2021). As such, a magistrate judge's decision will not be disturbed unless the “clearly erroneous” or “contrary to law” standards are met. See Fed.R.Civ.P. 72(a); see also Jones v. City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013). A magistrate judge's finding is clearly erroneous when, although there may be some evidence to support it, the reviewing court, after considering the entirety of the evidence, is “left with the definite and firm conviction that a mistake has been committed.” Dixon v. Crete Med. Clinic, P.C., 498 F.3d 837, 847 (8th Cir. 2007) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “A decision is contrary to law when a court fails to apply or misapplies relevant statutes, case law or rules of procedure.” Shank v. Carleton Coll., 329 F.R.D. 610, 613 (D. Minn. 2019). The burden of showing a ruling is clearly erroneous or contrary to law rests with the party filing the appeal. Marks v. Struble, 347 F.Supp.2d 136, 149 (D.N.J. 2004).


As part of its argument that the May 9 Order is “erroneous and contrary to law,” Essentia raises several issues on appeal. Doc. No. 188. Essentia first argues that the May 9 Order “improperly determined that North Dakota law does not apply to Essentia's assertion of [the peer review privilege].” Id. Essentia next asserts that, contrary to the North Dakota Supreme Court's recent decision in McKibbage, “the May 9 Order declined to vacate prior orders requiring...

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