the ADOs demonstrates that they are self-generated for the purpose of critical analysis.
Moreover, the ADOs are utilized by a Patient Care Committee, which is made up of INA nurses
and members of management of the Medical Center, to identify opportunities to improve patient
care. Second, the public has a strong interest in preserving the free flow of such information
because it can result in improved patient care. Third, the ability of litigants to use the forms
against the Medical Center is a legitimate basis for the Medical Center to stop utilizing them.
Finally, the documents are maintained in a confidential manner in that they are only distributed to
employees of the Medical Center who have a need to know the information for purposes of
improving patient care. Accordingly, the ADOs and related documents fit precisely within the
definition of information protected by the privilege.

In addition to the common law privilege, the Medical Center claims that the Illinois
Medical Studies Act (the “Act”) also protects ADOs and related information from disclosure.
The Act states:

[A]ll information, interviews, reports, statements, memoranda, recommendations . . . or

other data of . . . health care delivery entities or facilities . . . used in the course of internal

quality control or of medical study for the purpose of reducing morbidity or mortality, or
for improving patient care . . . shall be privileged, strictly confidential and shall be used
only for medical research, increasing organ and tissue donation, the evaluation and
improvement of quality care, or granting, limiting or revoking staff privileges.

Such information, records, reports, statements, notes, memoranda or other data shall not
be admissible as evidence nor discoverable in action of any kind in any court.

735 ILCS 5/8-2101 et seg. The purpose of the Act is to ensure that members of the medical
profession will engage in self-evaluation in the interest of advancing the quality of health care.
Doe y. Illinois Masonic Med. Ctr., 696 N.E.2d 707, 709 (Ill. App. Ct. 1998). In this case, the Act

is applicable to the ADOs and related documents for the same reasons that the common law Self-



Plaintiff's First Set of Interrogatories

¢ INTERROGATORY NO. 2: With respect to the public hearing on March 13, 2002,
referred to in paragraphs 26 through 37 of the amended complaint, describe what
actions St. Joseph’s Hospital took with respect to any aspect of the hearing (including
contacts with legislators, press or public), who specifically took it, the substance of
related conversations if any such person had, and identify any documents generated
with respect to the hearing.

¢ INTERROGATORY NO. 3: With respect to the Patient Safety Act referred to in
paragraph 26 of the amended complaint, describe what actions St. Joseph’s Hospital
took to encourage or discourage or support or oppose the proposed act, who
specifically took the action, and what legislator if any was contacted and what was
said to him or her.

° INTERROGATORY NO. 10: Identify every meeting, conversation and
communication between any employee or official at St. Joseph’s Hospital and any
person representing the Illinois Department of Public Health or any other state or
federal agency with respect to the letter of June 11, 2002 of Pamela Robbins referred
to in the amended complaint and/or the related petition signed by various nurses at St.
Joseph’s at approximately the same time, and state the time, place and substance of
such conversation or communication, written or oral.

For the reasons above, Robbins’s Motion to Compel Certain Discovery is GRANTED in

part and DENIED in part.

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Plaintiff's First Set of Interrogatories

+ INTERROGATORY NO. 1: With respect to the “assignment despite objections” or
“a.d.o.’s” referred to in paragraphs 17 through 21 of the amended complaint, describe
what actions Provena took in response to each “a.d.o.”, who specifically took the
action, who if anyone (including any nurse) was interviewed, and identify any
documents generated by Provena with respect to the “a.d.o.’s”.

* INTERROGATORY NO. 7: Identify each and every documented “medical error”
(including medication errors) at St. Joseph's Hospital in the three years prior to the
filing of this action and state whether the error involved a nurse.

¢ INTERROGATORY NO. 8: For each of the last five years, state the nurse patient

ratio in each such year separately and respectively for St. Joseph’s and other Provena
hospitals, and identify any documents that evidence such ratio.

Relevance

In addition to seeking information from the Medical Center, Robbins seeks information
from Provena’s corporate entity and all Provena health care facilities because “all hospitals in the
Provena system are under the common control of Provena.” However, Robbins was only
employed by the Medical Center and not by Provena Health, Inc. or any other related entity. The
only people involved in the decision-making process with respect to Robbins’s hiring,
performance evaluations, disciplinary issues, and termination were managers and supervisors of
the Medical Center. Second, the Medical Center is the only defendant that has appeared in this
case. Thus, Provena’s corporate entity and other health care facilities are not subject to
Robbins’s interrogatories and document requests. Accordingly, I deny Robbins’s Motion to
Compel as to information related to entities other than the Medical Center because such

information is not relevant to Robbins’s claims against the Medical Center. Furthermore, to the



Critical Analysis Privilege applies. The ADOs constitute confidential information that is self-

generated and used for the purpose of evaluating and improving patient care. Robbins contends

that the Medical Studies Act does not apply because the Act only protects patient records, but I

see no such limitation in the Act.

Accordingly, I deny Robbins’s Motion to Compel as to the following discovery requests

on the grounds that the information requested is protected by the Self-Critical Analysis Privilege

and/or the Illinois Medical Studies Act or because the requests themselves are so over broad, that

they include information protected by the Self-Critical Analysis Privilege and/or the Illinois

Medical Studies Act :

Plaintiff's First Request for Production

REQUEST NO. 4: All documents relating to the “assignment despite objections” or
“ado’s” filed by various nurses of St. Joseph’s Hospital in the years 2001, 2002, and
2003, and any and all investigations by St. Joseph’s Hospital as to their complaints.

REQUEST NO. 5: All documents relating in any way to attempts to ensure there is
adequate nurse staffing at St. Joseph’s Hospital.

REQUEST NO. 6: All documents related in any way to any complaints received by
Provena with respect to the adequacy of nurse staffing at St. Joseph’s Hospital.

Plaintiff's Third Request for Production

.

REQUEST NO. 3: All documents that show or explain or describe any shortfalls or
difficulties that Provena has had in connection with recruiting or hiring or retaining
nurses at St. Joseph’s or for Provena generally.

REQUEST NO. 6; All documents containing studies and internal memoranda relating
to the problem of nurse understaffing or to the claims of alleged nurse understaffing at
Provena by the plaintiff Robbins or by the Illinois Nurses Association or by the
Illinois Department of Public Health.


* INTERROGATORY NO. 11: Identify every contact conversation or communication
between any officer of Provena and any person representing the Illinois Department of
Public Health with respect to the issue of nurse understaffing or nursing issues
generally in the 2000-03 time period and state the time, place and substance of each
such conversation or communication.

Remaining Requests

Having addressed each of the Medical Center’s grounds for objecting to the contested
discovery requests, I grant the Motion to Compel as to the following discovery requests because I
see no reason not to:?

Plaintiff's First Request for Production of Documents

« REQUEST NO. 8: All non-privileged documents relating to any government
investigation or government inquiry of any kind as to delays in treatment of patients at
St. Joseph’s or as to nurse understaffing at St. Joseph’s Hospital.

* REQUEST NO. 10: All non-privileged documents relating to any inquiries or
correspondence from the Department of Professional Registration or the linois
Department of Public Health with respect to any matter relating to nursing practice at
St. Joseph’s Hospital.

Plaintiff's Third Request for Production of Documents

¢ REQUEST NO. 1: All non-privileged documents showing the number of so-called
“agency” nurses and non-staff nurses used by St. Joseph’s Hospital on an annual
basis.

« REQUEST NO. 2: All non-privileged documents showing the number and type of
nurse vacancies existing at St. Joseph’s Hospital on an annual basis,

¢ REQUEST NO. 5: All non-privileged documents showing the nurse-to-patient
“ratios” in the various principal units at St. Joseph’s Hospital.

3 The parties should note that I have altered these requests in accordance with my ruling
that only the Medical Center itself is subject to discovery in this case.

8


‘Minute Order Form (06/97) ,

United States District Court, Northern District of Illinois

Sitting er
vane Magitrate Judge James B. Zagel than Assigned Judge
CASE NUMBER 03 C 1371 DATE 3/10/2004
CASE PAMELA ROBBINS V. PROVENA SAINT JOSEPH MEDICAL CENTER
TITLE

[In the following box (a) indicate the party filing the motion, ¢g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.)

DOCKET ENTRY:

q@) QO Filed motion of [ use listing in “Motion” box above.]

(2) im Brief in support of motion due

(3) oO Answer brief to motion due . Reply to answer briefdue___.

(4) a] Ruling/Hearingon__setfor___at

(5) a Status hearing[held/continued to] (set for/re-set for]on__—ssetfor_—aat.

(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_ sat.
) oO Trial[set for/re-set for]on_at

(8) Qa [Bench/Jury trial} [Hearing] held/continued to__—__at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QFRCP4m) ClLocal Rule 41.1 COFRCP41(a)(1) [ FRCP41(a)(2).

qo) = (Other docket entry] Motion (14-1) to compel is granted in part and denied in part. Enter
Memorandum Opinion and Order.

(il) @ [For further detail see order attached to the original minute order.}

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.
X | Docketing to mail notices.
Mail AO 450 form.

Lund 13iYLsia “sn
wwa19

Copy to judge/magistrate judge.

“stom £035 Hd Of avg
WW deputy Gil 4002

Date/time received in
conwat Cletk’s Office _:

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extent that the Medical Center is compelled to respond to any of the discovery requests here, it is

ordered to do so as to itself, and not as to any other Provena entity or facility.

Along with this limitation, I deny the Motion to Compel as to the following portions or

the entirety of the following requests on the grounds that they are irrelevant:

Plaintiff's First Request for Production

REQUEST NO. 8: All documents relating to any government investigation or
government inquiry of any kind as to delays in treatment of patients at . . . any other
Provena hospital or as to nurse understaffing at . . . any other Provena hospitals.

REQUEST NO. 11: All documents relating to St. Joseph’s Hospital’s labor policies
with respect to nurses, including but not limited to its use of labor consultants or non
attorney consultants of any kind with respect to unionization of nurses or issues
relating to the bargaining unit represented by the Illinois Nurses Association.

Plaintiff's Third Request for Production

REQUEST NO. 1: All documents showing the number of so-called “agency” nurses
and non-staff nurses used by Provena in general . . . on an annual basis.

REQUEST NO. 2: All documents showing the number and type of nurse vacancies
existing at Provena in general . . . on an annual basis.

REQUEST NO. 5: All documents showing the nurse-to-patient “ratios” in the various
principal units at . .. other hospitals operated by Provena.

Plaintiff's First Set of Interrogatories

.

INTERROGATORY NO. 9: For each of the last five years, state the number of
patients who have died respectively at St. Joseph’s Hospital or other Provena
hospitals.

INTERROGATORY NO. 10: Identify every meeting, conversation and
communication between any employee or official . . . of Provena and any person
representing the Illinois Department of Public Health or any other state or federal
agency with respect to the letter of June 11, 2002 of Pamela Robbins referred to in the
amended complaint and/or the related petition signed by various nurses at St. Joseph’s
at approximately the same time, and state the time, place and substance of such
conversation or communication, written or oral.



F.R.D, 261, 264 (N.D. Ill. 1998) (presuming that federal common law recognizes the privilege).
The purpose of the Self-Critical Analysis Privilege is to “protect from disclosure documents
containing candid and potentially damaging self-criticism.” Donald P. Vondergraft, Jr., Legal
Development: The Privilege of Self-Critical Analysis: A Survey of the Law, 60 Alb. L. Rev. 171,
175-76 (1996). The privilege is granted on the premise that disclosure of documents reflecting
candid self-examination will deter or suppress socially useful investigation and evaluations.
Sheppard y. Consol. Edison Co,, 893 F. Supp. 6, 7 (E.D.N.Y. 1995). Thus, “courts generally
acknowledge that determining whether the privilege applies requires the court to balance the
public interest in protecting candid corporate self-assessments against the private interest of the
litigant in obtaining all relevant documents through discovery.” Morgan, 182 F.R.D. at 264. In
determining whether the privilege applies, I must look at whether the party asserting the privilege
establishes that: (1) the information resulted from a critical self-analysis taken by the party
seeking protections; (2) the public has a strong interest in preserving the free flow of the type of
information sought; (3) the information is of the type of information whose flow would be
curtailed if discovery were allowed; and (4) the documents were prepared with the expectation
that they would be kept confidential.” Jd, at 264.

Here, I find that the ADOs and related information satisfy the four-prong standard for

protection under the Self-Critical Analysis Privilege. First, Robbins’s own characterization of

2 Robbins contends that the documents are not privileged because they are not
government mandated reports. She is correct that in the context of employment discrimination
cases, the materials at issue must have been prepared for mandatory government reports in order
for the privilege to apply. Tice v. Am. Airlines, Inc., 192 F.R.D. 270, 272 (N.D. Ill. 2000).
However, this case involves two claims for the common law tort of retaliatory discharge, and in
the context of a tort case, there is no requirement that the materials sought must have been
prepared for mandatory government reports. /d.

3



Federal Rule of Civil Procedure 26(b) provides that “[p]arties may obtain discovery
regarding any matter, not privileged, that is relevant to the claim or defense of any party,” and
that “[flor good cause, the court may order discovery of any matter relevant to the subject matter
involved in the action.” The rule also permits discovery of information, which although not
admissible at trial, appears reasonably calculated to lead to the discovery of admissible evidence.
The rule thus permits a broad range of discovery and vests the court with “wide discretion in
determining the scope and effect of discovery.” Amey, Inc. v. Gulf Abstract & Title, Inc., 758
F.2d 1486, 1505 (11th Cir. 1985). “In general terms [Rule 26] poses a very low hurdle — it
permits ‘discovery regarding any matter, not privileged, which is relevant to the subject matter
involved in the pending action.” Eirhart v, Libbey-Owens-Ford Co., 93 F.R.D. 370, 371 (N.D.
Ill. 1981). As to the discovery requests at issue here, the Medical Center objects on the grounds

that the materials requested are privileged and/or not relevant.

Privilege

In her various discovery requests, Robbins requested information regarding intra-
company complaints, such as Assignment Despite Objection Forms (“ADOs”) filed by staff
nurses, pertaining to nurse understaffing and related issues at the Medical Center. Robbins also
requested other intra-company information pertaining to such complaints, such as follow-up
correspondence, investigations, and conclusions. The Medical Center first objects to the
disclosure of ADOs and related information on the grounds that they are protected from

discovery by the Self-Critical Analysis Privilege. See Morgan v. Union Pac. R.R. Co., 182

to address them, I would not compel the Medical Center to answer them.

2



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAMELA ROBBINS,
Plaintiff,

v. No. 03 C 1371 bo
Judge James B. Zagel j:-, ,
Bead

PROVENA SAINT JOSEPH MEDICAL tL 2ce4

CENTER,

Defendant.

MEMORANDUM OPINION AND ORDER

On June 7, 2002, Defendant Provena Saint Joseph Medical Center (“Medical Center”)
terminated Plaintiff Pamela Robbins. Robbins subsequently filed a charge with the National
Labor Relations Board claiming that her termination was in retaliation for engaging in protected
union activity. Robbins also filed the instant lawsuit, which initially alleged that her termination
was for opposing fraud with respect to Medicare and Medicaid reimbursement. That claim was
dismissed on June 23, 2003 because there was no factual basis for the claim.- Robbins’s suit now
alleges that her termination was in retaliation for reporting to the Illinois Department of Public
Health (“IDPH”) that the Medical Center was understaffed with registered nurses, and because
she participated in a legislative hearing about perceived understaffing. Robbins now moves,
pursuant to Federal Rule of Civil Procedure 37, to compel the Medical Center to respond to
certain discovery requests in her (1) First Request for Production of Documents, (2) Third

Request for Production of Documents, and (3) First Set of Interrogatories.'

' In its brief in opposition to Robbins’s motion, the Medical Center states its basis for not
answering Interrogatories No. 6 and 7 in her First Set of Interrogatories, but these are not
included within Robbins’s motion to compel. Accordingly, I will not address them, but if 1 were