United States District Court, D. Colorado
THE PRE-MERITS DISCOVERY PLAN
GORDON
P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE.
This
matter comes before the Court based on multiple filings and
to establish and move forward with a pre-merits discovery
plan. I previously Ordered that Plaintiff was entitled to
take some pre-merits discovery stating:
At this time the Court finds it appropriate to address
pre-merits discovery. Some pre-merits discovery is necessary
prior to a determination of class certification. National
Organization for Women v. Sperry Rand Corp., 88 F.R.D.
272, 276 (D.Conn.1980). It is in the sound discretion of the
Court to impose limits on pre-certification discovery.
Id. at 277. Permitted discovery should be
sufficiently broad to afford plaintiff a fair and realistic
opportunity to obtain evidence which may meet the
requirements of Rule 23, yet not so broad that the discovery
efforts present an undue burden to the defendant.
Id. Merits discovery should not proceed prior to
class certification Id.
ECF #109, p. 8.[1] & [2] Plaintiff filed his pre merits
discovery plan (ECF #116) declining to propose a plan on the
basis that Plaintiff wanted a comprehensive scheduling order
and to submit specific discovery proposals. The Correct Care
Defendants responded (ECF #119) and the Mesa County
Defendants responded (ECF #120). Plaintiff filed a reply to
each (ECFs #122 & 123). The Court determined, by way of
minute Order, that the matter was resolved in that the Court
would not allow simultaneous discovery and the Court Ordered
Plaintiff to file the required plan (ECF #126). Plaintiff
filed a pre-merits discovery plan (ECF #127). The Court has
reviewed the plan, Mesa Defendants' response (ECF #128),
Medical Defendants' response (ECF #129), and
Plaintiff's reply (ECF #131). The Court issued another
Order on the matter (ECF #134) due to concerns over issues
raised by Plaintiff's plan, e.g., lack of definition as
to “serious medical need, ” HIPPA concerns, etc.
The Mesa County Defendants responded (ECF #136), Plaintiff
responded (ECF #137), and the Correct Care Defendants
responded (ECF #138). A status conference was held on the
record on August 3, 2018. The Mesa County Defendants then
responded (ECF #143), Plaintiff responded (ECF #144), the
Mesa County Defendants responded (ECF #146), Plaintiff
responded (ECF #147), and the Correct Care Defendants
responded (ECF #148). The Court has reviewed and considered
each filing. For the reasons that follow, I Order as
specifically set forth below.
Plaintiff
alleges that, “as both a pre-trial detainee and a
prisoner serving a sentence, Mr. Renfro was improperly denied
necessary medical care for a known and serious medical
condition, in violation of his rights under the Eighth and
Fourteenth Amendments to the United States
Constitution.” Plaintiff's amended complaint (ECF
#80, p. 2, para. 5). Plaintiff further states that there
exists “a plaintiff class of pretrial detainees [ ]
composed of past and present pre-trial detainees at the
[j]ail who have been improperly denied proper medical care
for known and serious medical conditions, in violation of
their constitutional rights” and a second class of
“prisoners serving imposed sentences.”
Id. at pp. 2-3, para. 6. Plaintiff purports to be
the class representative. Id. at para. 7. Plaintiff
asserts that the members of the class(es) “are in the
hundreds, and potentially in the thousands.”
Id. at p. 13, para. 60.
Plaintiff
wants to take some pre-merits discovery in order to find his
fellow class members, the hundreds or thousands of
individuals, whom he believes share the attributes applicable
under Rule 23. With regard to these potential class members,
all one time inmates of the Mesa County Detention Facility,
there needs to be analysis as to whether: (1) the person was
an inmate during the appropriate statute of limitations
period; (2) whether the inmate had a medical condition
constituting a serious medical need; (3) was treatment
outside the MCDF required; (4) was the inmate able to pay for
the outside care; and (5) was the inmate denied such
treatment. ECF #88, pp. 9-10.
The
Mesa Defendants assert that “no prisoner has ever been
denied medical care outside the facility for a serious
medical condition due to his inability to pay for such care,
” Mesa Defendants' objection (ECF #128, p.1). The
Medical Defendants similarly oppose Plaintiff's plan.
Plaintiff, on the other hand, proposes discovery which the
Court believes to be far in excess of what is appropriate at
this stage of the litigation.
Discovery
in this putative class action, in the pre-certification
stage, is limited to those matters necessary to prove up the
Rule 23 requirements (numerosity, commonality, typicality,
and adequate-representation (with the last not being at issue
yet)). See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct.
2541, 2550 (2011). Discovery “should be sufficiently
broad that the plaintiffs have a fair and realistic
opportunity to obtain evidence which will meet the
requirements of Rule 23, yet not so broad that the discovery
efforts present an undue burden to the defendant.”
Montano v. Chao, 07-cv-00735-CMA-KMT, 2008 WL
5377745 *3 (D.Colo. Dec. 19, 2008). Here, despite
Defendants' protestations that there are no class members
to be found, it is incumbent upon the Court to allow
Plaintiff the “fair and realistic” opportunity to
which he is entitled. However, this must occur within the
bounds of Rule 26(b)(1), particularly the proportionality
component of that Rule.
At this
juncture, Plaintiff's goal, the legal obligation he must
fulfill if he wants to move forward in a class action, is to
prove that other members of the class in fact exist pursuant
to R. 23. There are a number of potential sources of
information for purposes of this exploration as follows:
Medical
records:
A
status conference was held with the parties on August 3,
2018. During that conference, greater clarity was provided as
to the types of medical records in existence. The Court
summarizes as follows: Upon intake (into the Mesa County
Detention Facility), all potential inmates have an initial
screening with a booking tech (initial intake). This is a
somewhat cursory process as many such inmates will cycle out
of the MCDF rapidly, e.g., within hours. Those individuals
who are present for any greater length of time, more than
perhaps half a day, receive a medical screen (medical
assessment) from nursing staff and then follow-up screening
(periodic health assessment) at intervals and as necessary.
Approximately 4000 individuals per year are so screened and
from July 2016 forward the records were maintained
electronically.
Plaintiff
requests production of all medical records, see ECF
#144-1, p. 4, which includes the initial intake, medical
assessment, and periodic assessment. That request is unduly
burdensome, not proportional, and mathematically unnecessary.
First, the pre-screen reports are not necessary. These are
subsumed within the initial medical screen for any individual
held in the MCDF for more than a ½ a day. Any
individual held for such a brief time could not logically be
a class member. As such, the initial screen periodic
assessments are the relevant documents (all of which are
covered by HIPPA and other potential privileges and statutes
relating to confidentiality).
As set
forth above, Plaintiff believes that the class(es) he
purports exist number in the hundreds if not thousands of
individuals. Mathematics tells us the following: If 200
people (5% of the population of 4000) fit within the
identified class, and if we survey 200 randomly selected
people from the population of 4000, we can say with 95%
confidence that between 4 (2.08%) and 16 (7.96%) class
members will be identified. This means that reviewing one out
of every twenty individual records, randomly selected, will
garner the results set forth above. Thus, reviewing the
entirety of the records is not necessary to find what
Plaintiff seeks-or at least to sufficiently satisfy the Court
that Plaintiff has been afforded a fair opportunity to
identify the class he believes to be in the “hundreds
if not thousands of individuals.” Reviewing an
additional 3800 of 4000 records to close the gap between 95%
and 100% would be unduly burdensome on Defendants. ...