SAMER ALI-HASAN, M.D., Plaintiff, v. ST. PETER'S HEALTH PARTNERS MEDICAL ASSOCIATES P.C. and ST. PETER'S HEALTH PARTNERS, Defendants 1:19-CV-1589 (GTS/DJS) United States District Court, N.D. New York Filed October 14, 2021 Counsel Phillip G. Steck, Cooper, Erving & Savage, LLP, Albany, NY, for Plaintiff. Hannah K. Redmond, Peter A. Jones, Adam P. Mastroleo, Bond Schoeneck & King, PLLC, Syracuse, NY, for Defendants. Stewart, Daniel J., United States Magistrate Judge DISCOVERY ORDER *1 This case was commenced on December 20, 2019 and alleges that Plaintiff was wrongfully terminated from his position as an interventional cardiologist with St. Peter's on July 31, 2019, and taken off the payroll on January 27, 2020. Dkt. No. 26, Am. Compl. at ¶¶ 9-10. The Amended Complaint alleges, inter alia, that the determination to terminate Plaintiff violated 42 U.S.C. § 2000e-2 (Title VII), in that it was based upon an unfounded allegation of sex discrimination against Plaintiff without the employer having conducted an appropriate investigation, thereby establishing gender bias against him. Am. Compl. at ¶¶ 50-59; see Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016); Menaker v. Hofstra Univ., 935 F.3d 20, 33 (2d Cir. 2019). Defendants deny that Plaintiff was discriminated against and assert that any and all employment decisions regarding Plaintiff were made for legitimate, non-discriminatory reasons. Dkt. No. 27. Of note, Plaintiff's counsel indicates that at least one of Defendants’ doctors had noted that while Plaintiff was initially a hard worker, his productivity “trailed off over time.” Dkt. No. 38 at p. 3. As discovery in this case winds to a close, two unresolved disputes remain despite the good faith efforts of counsel. In particular, the outstanding demands are a request for: 8. Reports showing the final recommendations and outcome for all cases presented for all interventional cardiologists including Dr. Ali-Hasan at the monthly cath lab “Morbidity and Mortality Conference,” which is usually held at St. Peter's Hospital, for both Samaritan Hospital cath lab cases and St. Peter's Hospital cath lab cases. 17. Monthly reports and documents showing the number of diagnostic coronary angiograms, coronary interventions, and right heart catheterizations that were performed by Dr. Ali-Hasan at both Samaritan Hospital cath lab and St. Peter's Hospital cath lab. Resolving these disputes requires consideration of the limits of federal discovery. The scope of discovery is set forth in Rule 26 of the Federal Rules of Civil Procedure. That Rule has been amended, on several occasions, to reflect evolving judgments as to the proper scope of discovery, and to create a balance between the need for evidence and the avoidance of undue burden or expense. Hyatt v. Rock, 2016 WL 6820378, at *2 (N.D.N.Y. Nov. 18, 2016). To be discoverable within the scope of Federal Rule of Civil Procedure 26, information must be relevant to a party's claim or defense and must also be proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to the information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Enveloping the interpretation of Rule 26 is the general standard set forth in Rule 1. That Rule, as amended in December of 2015, requires that the Federal Rules of Civil Procedure “be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1; Hyatt v. Rock, 2016 WL 6820378, at *2. *2 In general, “[t]he party seeking the discovery must make a prima facie showing that the discovery sought is more than merely a fishing expedition.” Oliver v. New York State Police, 2019 WL 1324040, at *4-5 (N.D.N.Y. Mar. 22, 2019) (internal quotation marks omitted) (citations omitted). “Once the requesting party has made a prima facie showing of relevance, ‘it is up to the responding party to justify curtailing discovery.’ ” N. Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 48 (E.D.N.Y. 2018) (quoting Fireman's Fund Ins. Co. v. Great Am. Ins. Co. of New York, 284 F.R.D. 132, 134 (S.D.N.Y. 2012)). Turning first to Demand No. 8, Defendants articulate a myriad of objections. They assert that the outcome of the morbidity and mortality conference is protected by the state law quality assurance review privilege. Dkt. No. 40 at p. 2. Second, they maintain that they cannot release patient information without a duly executed HIPAA authorization. Id. Third, they dispute the relevancy of the requested documentation because as part of the discovery process Defendants have already provided Plaintiff with documentation identifying Dr. Ali-Hasan's complications as compared with other cardiologists. Id. at p. 3. Fourth, they note that production of the documents over a period of five years is extremely time-consuming, as the cases, which number approximately 720, are logged by patient and not by physician. Dkt. No. 45 at p. 2. Accordingly, Defendants’ counsel had requested that Plaintiff identify the names of his patients, but Plaintiff indicated that he is unable to do so. Dkt. Nos. 44 & 45. Plaintiff persists, however, and maintains that there is a person at St. Peter's Hospital who “should be able to run the search and look up all cases for me.” Dkt. No. 44 at p. 2. In general, Plaintiff points to the importance of establishing through discovery that any purported performance-based rationale for his termination was merely a pretext for gender bias. Id. As to the state law privilege assertion, New York Education Law and Public Health Law lay out requirements for reviewing physicians’ credentials, competence, and performance periodically and in certain circumstances. See N.Y. Educ. Law § 6527(3) & N.Y. Pub. Health Law § 2805-m(2). This is done, among other reasons, to evaluate staff privileges and to improve negative health care outcomes. According to the terms of the statute, it is specifically information collected pursuant to the statutory requirements that is shielded from production. However, courts interpret this limitation narrowly. In the present case and on the present record, Defendants have not established the requirements for assertion of the quality review privilege. At a minimum, Defendants would be required to produce an affidavit indicating that the conferences at issue were in fact part of a peer review process. Perry v. Claxton-Hepburn Med. Ctr., 2021 WL 1310456, at *4 (N.D.N.Y. Apr. 8, 2021). The Court must nevertheless consider the proportional relevance of the documents at issue, and the Court takes to heart Defendants’ representation of the burden that would be placed on already taxed Hospital staff by attempting to comply with this demand in its present scope. After considering the competing interests, the Court concludes that Defendants shall comply with Demand No. 8, as hereby modified by the Court. In particular, the demand is limited to only cases involving patients of the Plaintiff.[1] Second, the demand is limited to the 12-month period prior to Plaintiff's termination. *3 With regard to Demand No. 17, to date Defendants have produced the 2018-2019 reports from the Samaritan Hospital Cath Lab and the St. Peter's Hospital Cath Lab. Those reports are in a yearly format, and defense counsel certifies that they do not have the monthly data. Dkt. No. 45. In response, Plaintiff's counsel indicates that one year of data is insufficient because he is requesting information to show Plaintiff's performance did not trail off in the last year prior to his termination. Dkt. No. 44. Considering that argument, defense counsel has now agreed to produce the requested data for the years in question, on an annual basis. In the Court's view, this response is sufficient, as it will provide the information that Plaintiff feels he needs to rebut the claim of declining performance. Defense counsel is not required to create a monthly format that does not presently exist. As a final matter, Defendants’ counsel has requested a 30-day extension to file any motion for summary judgment. That request is granted, and the deadline for filing dispositive motions is now set for November 29, 2021. WHEREFORE, it is hereby ORDERED, that Plaintiff's Letter Motion to Compel Production of certain outstanding documentation, Dkt. No. 44, is GRANTED IN PART AND DENIED IN PART as set forth above; and it is further ORDERED, that Defendants’ Letter Request to extend the time to serve dispositive motions, Dkt. No. 45, is GRANTED, and that deadline is reset for November 29, 2021; and it is further ORDERED, that the Clerk of the Court serve a copy of this Discovery Order upon the parties to this action. SO ORDERED. Footnotes [1] Defendants can comply with this requirement by either reviewing the final reports in detail and determining which patients were those of Dr. Ali-Hasan, or alternatively, they can provide Plaintiff's counsel with a list of all patients reviewed during that 12-month time period, and have Plaintiff identify his patients. Of course, all records produced shall be marked confidential and be held pursuant to the previously issued protective order.