RULING ON DISCOVERY REQUEST REQUIRED IN CAMERA INSPECTION AT OUTSET

August 25, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

Although discovery rulings are usually protected by the abuse-of-discretion standard, a trial judge abused his discretion by refusing to conduct an in camera inspection of documents before ordering the defendant to hand them over to the plaintiff. Youle v. Ryan, 2004 WL 1462289 (4th Dist., June 25).

Molly Youle filed a complaint against Raymond Ryan M.D. alleging negligence during gallbladder surgery. During Ryan's deposition, Youle's counsel learned that Ryan had an electronic database covering all the surgeries he performed over his career. Among other things, the surgical database listed the type of surgery and any complications.

Ryan's attorney, Kevin M. Miller, refused to provide a copy of the database. Ruling on a motion to compel, the trial judge declined a request from Miller for an in camera inspection, and ordered Ryan to hand over the entire database, minus information that would identify patients. However, the judge accommodated the defense by holding Miller in contempt and imposing a small fine, to provide a vehicle for immediate appeal of the discovery order.

The Appellate Court reversed in part, vacated in part and remanded with directions. Here are some highlights of Justice John T. McCullough's opinion (with various omissions not noted in the quoted text):

"Miller first contends that the trial court abused its discretion in failing to conduct an in camera inspection of the database contents prior to ordering production of the information. We agree.

"Supreme Court Rule 201(b)(1) limits discoverable material to that 'relevant to the subject matter involved in the pending action.' Trial courts may supervise any or all parts of the discovery process. Rule 201(c)(2). This power includes the authority to review discovery materials in camera to determine any possible relevance.

"Here, the trial court had the prerogative to conduct a firsthand inspection of the disputed document to determine the relevance, if any, of the database information. The failure to do so resulted in the court's making a decision as to relevance without all of the pertinent facts before it. Further, because the court did not examine the document, defendants were unfairly limited in making their case that the material was irrelevant for all purposes or was otherwise protected from disclosure.

"Applying the liberal discovery definition of 'relevance,' we question how hundreds of medical records of third-party patients could have any bearing on whether Dr. Ryan committed medical malpractice in this particular case or how such information would lead to relevant matters. See, e.g., Hilgenberg v. Kazan, 305 Ill.App.3d 197, 205 (1999) (medical records of testifying expert's patient were properly excluded as a collateral matter and did not interfere with opposing party's right to cross-examination); Leeson, 190 Ill.App.3d at 366, 546 N.E.2d at 787 (rejecting argument that 2,100 unrelated medical claims were material and relevant to the reasonableness and necessity of medical expenses in the case at bar).

"The fact that Dr. Ryan might testify as an expert witness on his own behalf would not make the information any more or less relevant.

"However, should the trial court conclude, after conducting such an inspection of the document, that the information contained therein, or a portion thereof, is relevant for discovery purposes, the court should state the grounds of relevance of that information.

"Even if the trial court deems the database contents to be relevant upon inspection, a privilege may apply to the extent the information contains third- party medical records. See Glassman v. St. Joseph Hospital, 259 Ill.App.3d 730, 745-46, 631 N.E.2d 1186, 1198-99 (1994) (affirming denial of motion to compel discovery of medical records of third-party patients who underwent surgery by the same surgeons and who experienced difficulties similar to the plaintiff); In re D.H., 319 Ill.App.3d 771, 774, 746 N.E.2d 274, 277 (2001) (rejecting argument for exception to physician-patient privilege of third-party patients where physician is sued for malpractice); Ekstrom v. Temple, 197 Ill.App.3d 120, 130, 553 N.E.2d 424, 430 (1990) (statutory privilege barred disclosure of medical records of third-party patients even where names and identification numbers were redacted).

"While defendants did not explicitly claim that the database contents were privileged, the record shows that they couched a privilege argument in terms of the need for confidentiality of the records of third-party patients' medical treatment.

"A party claiming that discovery material is privileged may not merely assert that the matter is confidential and privileged; rather, he should support such a claim either by producing the materials for an in camera inspection or by submitting affidavits setting forth facts sufficient to establish the applicability of the privilege to the particular documents.

"Accordingly, even if the trial court had properly determined that the information was relevant, it should have reviewed the document in camera to determine whether defendants' privilege claim had merit. Only by making a fully informed decision could the court fashion an appropriate discovery order by balancing the interests of plaintiff in obtaining relevant non-privileged information against the need to promote effective professional self-evaluation by members of the medical profession in the interest of improving the quality of health care.

"Under the circumstances, the trial court abused its discretion in failing to conduct an in camera inspection of the requested document prior to denying defendants' motion to reconsider. Accordingly, we reverse the court's judgment granting plaintiff's motion to compel and remand with directions that the court examine the database contents in camera.

"As a final matter, we address the trial court's contempt order. Requesting the court to enter a contempt order is an appropriate method by which a party may test the correctness of a discovery order. Here, the court concluded, as do we, that Miller's decision not to comply with the court's order to produce the contents of Dr. Ryan's database was made in good faith. Miller was not contemptuous of the court's authority but merely sought appellate review of the order to produce.

"We therefore vacate the court's contempt order and fine."

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