Preview
E-FILED
Russell K. Ryan, #139835 2/14/2022 11:28 AM
1 MOTSCHIEDLER, MICHAELIDES, WISHON, Superior Court of California
BREWER & RYAN, LLP County of Fresno
2 1690 West Shaw Avenue, Suite 200 By: Louana Peterson, Deputy
Fresno, California 93711
3 Telephone (559) 439-4000
4 Facsimile (559) 439-5654
E-mail: rkr@mmwbr.com
5
Attorneys for Plaintiff
6 DAVID B. KA YE, M.D.
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF FRESNO
9
DAVID B. KA YE, M.D., Case No.: 17CECG04183
10
Plaintiff, SEPARATE STATEMENT IN
11 SUPPORT OF MOTION TO COMPEL
v. FURTHER RESPONSES TO
12 REQUEST FOR PRODUCTION OF
FRESNO SURGERY CENTER, a DOCUMENTS (SET FOUR) AND
13 California Limited Partnership dba PRODUCTION OF DOCUMENTS
14 FRESNO SURGICAL HOSPITAL, FSC WITH REQUEST FOR IN CAMERA
HOSPITAL, LLC, a Delaware Limited REVIEW OF WITHHELD
15 Liability Company dba FRESNO DOCUMENTS
SURGICAL HOSPITAL, and DOES 1
16 through 100, inclusive, Date: May 5, 2022
Time: 3 :30 p.m.
17 Defendants. Dept: 502
Judge: Honorable Rosemary McGuire
18
19 Plaintiff David B. Kaye, M.D. ("Plaintiff') hereby submits this separate
20 statement in support of his motion to compel further responses to Requests for
21 Production of Documents (Set Four) with Request for Sanctions.
22 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 39:
23 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
24 INFORMATION that REFER TO, REFERENCE or RELATE TO YOUR peer review
25 criteria from 2015 to the present time.
26 RESPONSE TO REQUEST FOR PRODUCTION NO. 39:
27 Objection, this request is vague, ambiguous, and overbroad. The request
28 also seeks information not relevant to this case nor reasonably calculated to lead to the
MOTSCHIEDLER,
MICHA ELIDES, -1-
WISHON, BREWER &
RYAN, LLP
(00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 discovery of relevant information. Further, the request seeks information protected by
2 the attorney-client privilege, attorney-work product doctrine, and Evidence Code
3 section 1157.
4 REASON FOR FURTHER RESPONSE:
5 Defendant's privilege log is insufficient and so it is Plaintiffs best guess
6 that these documents are Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log, these
7 appear to be policies that govern the standards, processes and procedures of the peer
8 review process and are discoverable. The Legislature did not intend to convey a broad
9 general privilege for peer review materials. Fox v. Kramer, 22 Cal.4th 531, 548 (2000).
10 These documents are believed to include FSH's peer review criteria and are requested in
11 Request for Production No. 39, 40 and 41. These documents are sought so that the
12 guidelines and standards to which Dr. Kaye is being held accountable is transparent, so
13 that the scope of FSH' s peer review can be understood, and in order to determine
14 whether the hospital properly conducted a review of Dr. Kaye and followed its own
15 review policies and procedures.
16 Furthermore, According to FSH' s own bylaws, "peer review criteria"
17 include the types of data to be collected for evaluation of medical staff. The bylaws
18 further state that criteria is subject to the approval of the Medical Executive Committee
19 and "approved criteria are updated are made known and accessible to all members."
20 Plaintiff is a member of FSH as a provisional staff member. As a member, he is entitled
21 to review the peer review criteria upon which he is being evaluated. Pertinent excerpts
22 of FSH' s 2014 Medical Staff Bylaws related to peer review criteria is attached to the
23 Ryan Declaration as Exhibit J. It is further unclear how the right of privacy, the
24 attorney-client privilege and attorney work product doctrine applies to these documents,
25 as they do not appear to be subject to any right of privacy nor do they appear to be
26 communications from, to or with a retained attorney.
27 Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log and documents
28 requested in Plaintiffs Request for Production No. 39, 40 and 41 should be produced
MOTSCHIEDLER,
MICHAELIDES, -2-
WISHON, BREWER &
RYAN,LLP
(00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 without redaction. Defendant should be required to provide a full and complete
2 response to Request for Production Nos. 39, 40 and 41 without objection.
3 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 40:
4 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
5 INFORMATION that REFER TO, REFERENCE or RELATE TO the dates on which
6 YOUR peer review criteria was updated from 2015 to the present time.
7 RESPONSE TO REQUEST FOR PRODUCTION NO. 40:
8 Objection, this request is vague, ambiguous, and overbroad. The request
9 also seeks information not relevant to this case nor reasonably calculated to lead to the
1O discovery of relevant information. Further, the request seeks information protected by
11 the attorney-client privilege, attorney-work product doctrine, and Evidence Code
12 section 1157.
13 REASON FOR FURTHER RESPONSE:
14 Defendant's privilege log is insufficient and so it is Plaintiffs best guess
15 that these documents are Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log, these
16 appear to be policies that govern the standards, processes and procedures of the peer
17 review process and when those polices were updated and are discoverable. The
18 Legislature did not intend to convey a broad general privilege for peer review materials.
19 Fox v. Kramer, 22 Cal.4th 531, 548 (2000). These documents are believed to include
20 FSH's peer review criteria and are requested in Request for Production No. 39, 40 and
21 41. These documents are sought so that the guidelines and standards to which Dr. Kaye
22 is being held accountable is transparent, so that the scope of FSH's peer review can be
23 understood, and in order to determine whether the hospital properly conducted a review
24 of Dr. Kaye and followed its own review policies and procedures.
25 Furthermore, According to FSH's own bylaws, "peer review criteria"
26 include the types of data to be collected for evaluation of medical staff. The bylaws
27 further state that criteria is subject to the approval of the Medical Executive Committee
28 and "approved criteria are updated are made known and accessible to all members."
MOTSCHIEDLER,
MICHA ELIDES, -3-
WISHON, BREWER &
RYAN,LLP
(00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 Plaintiff is a member of FSH as a provisional staff member. As a member, he is entitled
2 to review the peer review criteria upon which he is being evaluated. Pertinent excerpts
3 ofFSH's 2014 Medical Staff Bylaws related to peer review criteria is attached to the
4 Ryan Declaration as Exhibit J. It is further unclear how the right of privacy, the
5 attorney-client privilege and attorney work product doctrine applies to these documents,
6 as they do not appear to be subject to any right of privacy nor do they appear to be
7 communications from, to or with a retained attorney.
8 Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log and documents
9 requested in Plaintiffs Request for Production No. 39, 40 and 41 should be produced
1O without redaction. Defendant should be required to provide a full and complete
11 response to Request for Production Nos. 39, 40 and 41 without objection.
12 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 41:
13 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
14 INFORMATION that REFER TO, REFERENCE or RELATE TO the type of data
15 collected for evaluation pursuant to YOUR peer review criteria from 2015 to the present
16 time.
17 RESPONSE TO REQUEST FOR PRODUCTION NO. 41:
18 Objection, this request is vague, ambiguous, and overbroad. The request
19 also seeks information not relevant to this case nor reasonably calculated to lead to the
20 discovery of relevant information. Further, the request seeks information protected by
21 the attorney-client privilege, attorney-work product doctrine, and Evidence Code
22 section 1157.
23 REASON FOR FURTHER RESPONSE:
24 Defendant's privilege log is insufficient and so it is Plaintiffs best guess
25 that these documents are Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log, these
26 appear to be policies that govern the standards, processes and procedures of the peer
27 review process and are discoverable. The Legislature did not intend to convey a broad
28 general privilege for peer review materials. Fox v. Kramer, 22 Cal.4th 531, 548 (2000).
MOTSCHIEDLER,
MICHAELIDES, -4-
WISHON, BREWER &
RYAN, LLP
(00995/00 I 0//642876.DOC} Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 These documents are believed to include FSH's peer review criteria and are requested in
2 Request for Production No. 39, 40 and 41. These documents are sought so that the
3 guidelines and standards to which Dr. Kaye is being held accountable is transparent, so
4 that the scope of FSH's peer review can be understood, and in order to determine
5 whether the hospital properly conducted a review of Dr. Kaye and followed its own
6 review policies and procedures.
7 Furthermore, According to FSH' s own bylaws, "peer review criteria"
8 include the types of data to be collected for evaluation of medical staff. The bylaws
9 further state that criteria is subject to the approval of the Medical Executive Committee
10 and "approved criteria are updated are made known and accessible to all members."
11 Plaintiff is a member of FSH as a provisional staff member. As a member, he is entitled
12 to review the peer review criteria upon which he is being evaluated. Pertinent excerpts
13 of FSH's 2014 Medical Staff Bylaws related to peer review criteria is attached to the
14 Ryan Declaration as Exhibit J. It is further unclear how the right of privacy, the
15 attorney-client privilege and attorney work product doctrine applies to these documents,
16 as they do not appear to be subject to any right of privacy nor do they appear to be
17 communications from, to or with a retained attorney.
18 Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log and documents
19 requested in Plaintiffs Request for Production No. 39, 40 and 41 should be produced
20 without redaction. Defendant should be required to provide a full and complete
21 response to Request for Production Nos. 39, 40 and 41 without objection.
22 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 42:
23 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
24 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to
25 or from Elena Crites regarding Dr. Kaye.
26 RESPONSE TO REQUEST FOR PRODUCTION NO. 42:
27 Objection, this request is vague, ambiguous, and overbroad. The request
28 also seeks information not relevant to this case nor reasonably calculated to lead to the
MOTSCHIEDLER,
MICHAELIDES, -5-
1 WISHON, BREWER &
1
RYAN,LLP
(00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Fmther Responses
to RPD #4 with Request for In Camera Review
1 discovery of relevant information. Further, the request seeks information protected by
2 the right of privacy under the United States and State of California constitutions,
3 attorney-client privilege, attorney-work product doctrine, and Evidence Code section
4 1157.
5 REASON FOR FURTHER RESPONSE:
6 Defendant's privilege log is insufficient and so it is Plaintiffs best guess
7 that these documents may be identified as Item# 5 on Defendant's privilege log. While
8 Dr. Kaye concedes that the statement may contain information protected by Evidence
9 Code § 1157 since they are presumably authored by individuals who shared the
10 operating room with Dr. Kaye on the only date he has been allowed to perform surgery
11 at FSH. However, given the insufficient state of Defendant's privilege log, it is
12 impossible to determine definitively if this is the case and whether the privileges
13 afforded by Evidence Code §1157 have merit. It is further unclear how the right of
14 privacy, the attorney-client privilege or the attorney work product applies to these
15 documents, as they do not appear to be communications from, to or with an attorney.
16 As noted above, Plaintiff cannot determine the merits of Defendant's claims of
17 privileges without a sufficient privilege log.
18 In addition, Dr. Kaye's own memory of these documents in the few short
19 minutes that he was allowed to review them revealed that statements were made that
20 included the following: (a) Dr. Kaye's refusal to shake women's hands (an
21 accommodation of his religious beliefs); (b) the fact that Dr. Kaye asked a patient or
22 another person what language should be spoken; (c) Dr. Kaye's ethnicity, accent or way
23 of speaking; and (d) comments related to Dr. Kaye's age, or that he was slow at surgery.
24 Documents containing this information have no bearing on any medical procedure or
25 quality of care provided by Dr. Kaye to any patient at FSH and are not protected by
26 Evidence Code § 1157, the right to privacy or the attorney-client privilege.
27 Dr. Kaye requests that Item #5 on Defendant's privilege log be reviewed
28 in camera by the Court to determine whether they can and should be produced and/or
MOTSCHIEDLER,
MICHA ELIDES, -6-
WISHON, BREWER &
RYAN, LLP
{00995/0010//642876.DOC} Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 redacted to reveal relevant information regarding Dr. Kaye's claims of discrimination
2 and retaliation.
3 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 43:
4 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
5 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to
6 or from Lynn Sing regarding Dr. Kaye.
7 RESPONSE TO REQUEST FOR PRODUCTION NO. 43:
8 Objection, this request is vague, ambiguous, and overbroad. The request
9 also seeks information not relevant to this case nor reasonably calculated to lead to the
1O discovery of relevant information. Further, the request seeks information protected by
11 the right of privacy under the United States and State of California constitutions,
12 attorney-client privilege, attorney-work product doctrine, and Evidence Code section
13 1157.
14 REASON FOR FURTHER RESPONSE:
15 What is believed to be a responsive document is referenced as Item #2 on
16 FSH's Privilege Log #4. The document is named as a summary of encounter from Lynn
17 Sing dated December 13, 2016 which is prior to any procedures performed by Dr. Kaye
18 at FSH. Dr. Kaye does not recall meeting Ms. Sing, has never worked with Ms. Sing
19 and Ms. Sing was not in the surgical room with Dr. Kaye during his procedures at FSH
20 on December 14, 2016. [Declaration of David B. Kaye, M.D., ~2, 3, ("Kaye
21 Declaration")]. Ms. Sing could not comment on the quality of care that was provided
22 by Dr. Kaye at FSH, nor could she evaluate or review his competence. With the
23 information provided by FSH, this statement does not appear to be derived from an
24 investigation into the quality of care administered at the hospital and is not rendered
25 privileged under Evidence Code § 1157 and immune from discovery merely because it
26 was submitted to a medical staff committee. Santa Rosa Memorial Hospital v. Superior
27 Court, supra, 174 Cal.App.3d at 724. As a result, this document is not subject to or
28 protected by Evidence Code § 1157 and should be produced. Furthermore, it is unclear
MOTSCHIEDLER,
MICHA ELIDES, -7-
WISHON, BREWER &
RYAN,LLP
{00995/00 I 0//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 how the right of privacy and the attorney-client privilege applies to these documents, as
2 they do not appear to be communications from, to or with an attorney. Since
3 Defendant's privilege log is insufficient, Plaintiff is at a disadvantage to determine the
4 merits of Defendant's claims of privileges.
5 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 44:
6 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
7 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to
8 or from Annalise Minks regarding Dr. Kaye.
9 RESPONSE TO REQUEST FOR PRODUCTION NO. 44:
1O Objection, this request is vague, ambiguous, and overbroad. The request
11 also seeks information not relevant to this case nor reasonably calculated to lead to the
12 discovery of relevant information. Further, the request seeks information protected by
13 the right of privacy under the United States and State of California constitutions,
14 attorney-client privilege, attorney-work product doctrine, and Evidence Code section
15 1157.
16 REASON FOR FURTHER RESPONSE:
17 Defendant's privilege log is insufficient and so it is Plaintiffs best guess
18 that these documents may be identified as Item #3 on Defendant's privilege log. While
19 Dr. Kaye concedes that the statement may contain information protected by Evidence
20 Code § 1157 since they are presumably authored by individuals who shared the
21 operating room with Dr. Kaye on the only date he has been allowed to perform surgery
22 at FSH. However, given the insufficient state of Defendant's privilege log, it is
23 impossible to determine definitively if this is the case and whether the privileges
24 afforded by Evidence Code § 1157 have merit. It is further unclear how the right of
25 privacy, the attorney-client privilege or the attorney work product applies to these
26 documents, as they do not appear to be communications from, to or with an attorney.
27 As noted above, Plaintiff cannot determine the merits of Defendant's claims of
28 privileges without a sufficient privilege log.
MOTSCHJEDLER,
' MICHAELIDES, -8-
WISHON, BREWER &
RYAN,LLP
(00995/00 I 0//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses
to RPO #4 with Request for In Camera Review
1 In addition, Dr. Kaye's own memory of these documents in the few short
2 minutes that he was allowed to review them revealed that statements were made that
3 included the following: (a) Dr. Kaye's refusal to shake women's hands (an
4 accommodation of his religious beliefs); (b) the fact that Dr. Kaye asked a patient or
5 another person what language should be spoken; (c) Dr. Kaye's ethnicity, accent or way
6 of speaking; and (d) comments related to Dr. Kaye's age, or that he was slow at surgery.
7 Documents containing this information have no bearing on any medical procedure or
8 quality of care provided by Dr. Kaye to any patient at FSH and are not protected by
9 Evidence Code § 1157, the right to privacy or the attorney-client privilege.
10 Dr. Kaye requests that Item #3 on Defendant's privilege log be reviewed
11 in camera by the Court to determine whether they can and should be produced and/or
12 redacted to reveal relevant information regarding Dr. Kaye's claims of discrimination
13 and retaliation.
14 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 46:
15 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
16 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to
17 or from Julie Gresham regarding Dr. Kaye.
18 RESPONSE TO REQUEST FOR PRODUCTION NO. 46:
19 Objection, this request is vague, ambiguous, and overbroad. The request
20 also seeks information not relevant to this case nor reasonably calculated to lead to the
21 discovery of relevant information. Further, the request seeks information protected by
22 the right of privacy under the United States and State of California constitutions,
23 attorney-client privilege, attorney-work product doctrine, and Evidence Code section
24 1157.
25 REASON FOR FURTHER RESPONSE:
26 Defendant's privilege log is insufficient and so it is Plaintiffs best guess
27 that these documents may be identified as Item #4 on Defendant's privilege log. While
28 Dr. Kaye concedes that the statement may contain information protected by Evidence
MOTSCHIEDLER,
MICHA ELIDES, -9-
WISHON, BREWER &
RYAN, LLP
{00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 Code § 1157 since they are presumably authored by individuals who shared the
2 operating room with Dr. Kaye on the only date he has been allowed to perform surgery
3 at FSH. However, given the insufficient state of Defendant's privilege log, it is
4 impossible to determine definitively if this is the case and whether the privileges
5 afforded by Evidence Code § 1157 have merit. It isfurther unclear how the right of
6 privacy, the attorney-client privilege or the attorney work product applies to these
7 documents, as they do not appear to be communications from, to or with an attorney.
8 As noted above, Plaintiff cannot determine the merits of Defendant's claims of
9 privileges without a sufficient privilege log.
10 In addition, Dr. Kaye's own memory of these documents in the few short
11 minutes that he was allowed to review them revealed that statements were made that
12 included the following: (a) Dr. Kaye's refusal to shake women's hands (an
13 accommodation of his religious beliefs); (b) the fact that Dr. Kaye asked a patient or
14 another person what language should be spoken; (c) Dr. Kaye's ethnicity, accent or way
15 of speaking; and (d) comments related to Dr. Kaye's age, or that he was slow at surgery.
16 Documents containing this information have no bearing on any medical procedure or
17 quality of care provided by Dr. Kaye to any patient at FSH and are not protected by
18 Evidence Code § 1157, the right to privacy or the attorney-client privilege.
19 Dr. Kaye requests that Item #4 on Defendant's privilege log be reviewed
20 in camera by the Court to determine whether they can and should be produced and/or
21 redacted to reveal relevant information regarding Dr. Kaye's claims of discrimination
22 and retaliation.
23 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 47:
24 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
25 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to
26 or from Kristine Kassahn regarding Dr. Kaye.
27 Ill
28 ///
MOTSCHIEDLER,
MICHAELIDES, -10-
WISHON, BREWER &
RYAN, LLP
{00995/0010//642876.DOC} Separate Statement in Support of Motion to Compel Fmther Responses
to RPD #4 with Request for In Camera Review
1 RESPONSE TO REQUEST FOR PRODUCTION NO. 47:
2 Objection, this request is vague, ambiguous, and overbroad. The request
3 also seeks information not relevant to this case nor reasonably calculated to lead to the
4 discovery of relevant information. Further, the request seeks information protected by
5 the right of privacy under the United States and State of California constitutions,
6 attorney-client privilege, attorney-work product doctrine, and Evidence Code section
7 1157. Subject to and without waiving the objections, defendant responds as follows:
8 Non-privileged documents are attached as Exhibit A.
9 REASON FOR FURTHER RESPONSE:
1O Defendant's privilege log is insufficient and so it is Plaintiff's best guess
11 that these documents may be identified as Item # 10 on Defendant's privilege log, which
12 indicates that this document is a communication from Kristine Kassahn, FSH Chief
13 Executive Officer and David Lippert, Cary Tanner, Glenn Cozen and Julie Gresham,
14 none of whom are believed to be attorneys and, as such, the document cannot fall under
15 the attorney-client privilege. Defendant further fails to establish how it is protected
16 under Evidence Code § 115 7 as it is not a record or a proceeding of a medical staff
17 committee.
18 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 48:
19 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED
20 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to
21 or from Daniella Holdridge-Zeuner regarding Dr. Kaye.
22 RESPONSE TO REQUEST FOR PRODUCTION NO. 48:
23 Objection, this request is vague, ambiguous, and over broad. The request
24 also seeks information not relevant to this case nor reasonably calculated to lead to the
25 discovery of relevant information. Further, the request seeks information protected by
26 the right of privacy under the United States and State of California constitutions,
27 attorney-client privilege, attorney-work product doctrine, and Evidence Code section
28 1157.
MOTSCHIEDLER,
MICHA ELIDES, -11-
WISHON, BREWER &
RYAN,LLP
{00995/00 I 0//64 287 6. DOC}Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 REASON FOR FURTHER RESPONSE:
2 Responsive documents relating to this request do not appear to be on
3 Defendant's privilege log. Danielle Holdridge-Zeuner is the Chief Nursing Officer for
4 FSH. Defendant has failed to identify what documents it is withholding and further
5 fails to establish how any such documents are protected under Evidence Code §1157,
6 the right to privacy, attorney-client privilege or attorney work product doctrine.
7 Plaintiff requests that the Court direct Defendant to produce all responsive documents to
8 this request.
9 Dated: February 14, 2022 MOTSCHIEDLER, MICHAELIDES,
WISHON, BREWER & RYAN, LLP
10
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By: /L--,l;Ll..~~~~-,LJ~==-'LÂ
13 ,R ssell K. Ryan, Attorn ys for
Plaintiff David B. Kaye, M.D.
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MOTSCHIEDLER,
MICHAELIDES, -12-
WISHON, BREWER &
RYAN, LLP
{00995/00 I 0//642876.DOC} Separate Statement in Support of Motion to Compel Further Responses
to RPD #4 with Request for In Camera Review
1 PROOF OF SERVICE
2 I, the undersigned, declare:
3 I am a citizen of the United States of America, am over the age of eighteen ( 18) years, and not a party to the within action.
am an employee ofMotschiedler, Michaelides & Wishon, LLP, and my business address is 1690 West Shaw Avenue, Suite
4 200, Fresno, California, 93 711. My email address is crystal@mmwbr.com.
5
On February 14, 2022, I caused to be served the following document(s):
SEPARATE STATEMENT IN
SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF
6
DOCUMENTS (SET FOUR) AND PRODUCTION OF DOCUMENTS WITH REQUEST FOR IN CAMERA REVIEW
7 OF WITHHELD DOCUMENTS on the parties involved addressed as follows:
8 Stephen A. Rosa, Esq.
WEST & ROSA, LLP
1301 Dove Street, Suite 700
9 Newport Beach, California 92660-2470
10
11 D BY PERSONAL DELIVERY: I caused each such envelope to be delivered by hand to the offices of each addressee
above.
12
13 • BY U.S. MAIL: I caused each envelope, with postage thereon fully prepaid, to be placed in the United
States mail at Fresno, California. I am readily familiar with the business practice for collection and processing of mail
in this office; and that in the ordinary course of business said document would be deposited with the U.S. Postal
Service in Fresno, California on that same day.
I understand that service shall be presumed invalid upon motion of a
14
party served ifthe postal cancellation date or postage meter date on the envelope is more than one day after the date
15 of deposit for mailing contained in this declaration.
16
17
• BY ELECTRONIC MAIL: I caused the above-referenced document to be served via electronic mail to counsel
listed above and staff at srosa@westrosallp.com and lnowlin@westrosallp.com on this date.
transmission was reported as complete and without error.
The document
18 D BY FACSIMILE : By use ofa facsimile machine telephone number (559) 439 5654, I served a copy of the within
document(s) on the above interested parties at the facsimile numbers listed above.
The transmission was repo11ed as
19 complete without error.
The transmission report, which is attached to this proof of service, was properly issued by
the transmitting facsimile machine.
20
21 D BY FEDERAL EXPRESS OVERNIGHT DELIVERY: I caused each envelope, with delivery fees provided for,
to be picked up on this date by a Courier employed by Federal Express or deposited in a box regularly maintained by
Federal Express. I am readily familiar with this firm's practice for collection and processing of documents for
22 overnight delivery and know that in the ordinary course of this firm's business practice the document(s) described
above will either be deposited in a box or other facility regularly maintained by Federal Express or delivered to an
23
authorized courier or driver authorized to receive documents on the same date that it is placed for collection.
24
I declare under penalty of pe1jury under the laws of the State of California that the foregoing is true and correct.
25 Executed at Fresno, California on February 14, 2022.
26
27
0rt:;;:, /LtJ::~
28
MOTSCHIEDLER,
MICHAELIDES, -13-
WISHON, BREWER &
RYAN, LLP
{00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses
to RPO #4 with Request for In Camera Review
Preview
E-FILED Russell K. Ryan, #139835 2/14/2022 11:28 AM 1 MOTSCHIEDLER, MICHAELIDES, WISHON, Superior Court of California BREWER & RYAN, LLP County of Fresno 2 1690 West Shaw Avenue, Suite 200 By: Louana Peterson, Deputy Fresno, California 93711 3 Telephone (559) 439-4000 4 Facsimile (559) 439-5654 E-mail: rkr@mmwbr.com 5 Attorneys for Plaintiff 6 DAVID B. KA YE, M.D. 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF FRESNO 9 DAVID B. KA YE, M.D., Case No.: 17CECG04183 10 Plaintiff, SEPARATE STATEMENT IN 11 SUPPORT OF MOTION TO COMPEL v. FURTHER RESPONSES TO 12 REQUEST FOR PRODUCTION OF FRESNO SURGERY CENTER, a DOCUMENTS (SET FOUR) AND 13 California Limited Partnership dba PRODUCTION OF DOCUMENTS 14 FRESNO SURGICAL HOSPITAL, FSC WITH REQUEST FOR IN CAMERA HOSPITAL, LLC, a Delaware Limited REVIEW OF WITHHELD 15 Liability Company dba FRESNO DOCUMENTS SURGICAL HOSPITAL, and DOES 1 16 through 100, inclusive, Date: May 5, 2022 Time: 3 :30 p.m. 17 Defendants. Dept: 502 Judge: Honorable Rosemary McGuire 18 19 Plaintiff David B. Kaye, M.D. ("Plaintiff') hereby submits this separate 20 statement in support of his motion to compel further responses to Requests for 21 Production of Documents (Set Four) with Request for Sanctions. 22 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 39: 23 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 24 INFORMATION that REFER TO, REFERENCE or RELATE TO YOUR peer review 25 criteria from 2015 to the present time. 26 RESPONSE TO REQUEST FOR PRODUCTION NO. 39: 27 Objection, this request is vague, ambiguous, and overbroad. The request 28 also seeks information not relevant to this case nor reasonably calculated to lead to the MOTSCHIEDLER, MICHA ELIDES, -1- WISHON, BREWER & RYAN, LLP (00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 discovery of relevant information. Further, the request seeks information protected by 2 the attorney-client privilege, attorney-work product doctrine, and Evidence Code 3 section 1157. 4 REASON FOR FURTHER RESPONSE: 5 Defendant's privilege log is insufficient and so it is Plaintiffs best guess 6 that these documents are Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log, these 7 appear to be policies that govern the standards, processes and procedures of the peer 8 review process and are discoverable. The Legislature did not intend to convey a broad 9 general privilege for peer review materials. Fox v. Kramer, 22 Cal.4th 531, 548 (2000). 10 These documents are believed to include FSH's peer review criteria and are requested in 11 Request for Production No. 39, 40 and 41. These documents are sought so that the 12 guidelines and standards to which Dr. Kaye is being held accountable is transparent, so 13 that the scope of FSH' s peer review can be understood, and in order to determine 14 whether the hospital properly conducted a review of Dr. Kaye and followed its own 15 review policies and procedures. 16 Furthermore, According to FSH' s own bylaws, "peer review criteria" 17 include the types of data to be collected for evaluation of medical staff. The bylaws 18 further state that criteria is subject to the approval of the Medical Executive Committee 19 and "approved criteria are updated are made known and accessible to all members." 20 Plaintiff is a member of FSH as a provisional staff member. As a member, he is entitled 21 to review the peer review criteria upon which he is being evaluated. Pertinent excerpts 22 of FSH' s 2014 Medical Staff Bylaws related to peer review criteria is attached to the 23 Ryan Declaration as Exhibit J. It is further unclear how the right of privacy, the 24 attorney-client privilege and attorney work product doctrine applies to these documents, 25 as they do not appear to be subject to any right of privacy nor do they appear to be 26 communications from, to or with a retained attorney. 27 Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log and documents 28 requested in Plaintiffs Request for Production No. 39, 40 and 41 should be produced MOTSCHIEDLER, MICHAELIDES, -2- WISHON, BREWER & RYAN,LLP (00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 without redaction. Defendant should be required to provide a full and complete 2 response to Request for Production Nos. 39, 40 and 41 without objection. 3 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 40: 4 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 5 INFORMATION that REFER TO, REFERENCE or RELATE TO the dates on which 6 YOUR peer review criteria was updated from 2015 to the present time. 7 RESPONSE TO REQUEST FOR PRODUCTION NO. 40: 8 Objection, this request is vague, ambiguous, and overbroad. The request 9 also seeks information not relevant to this case nor reasonably calculated to lead to the 1O discovery of relevant information. Further, the request seeks information protected by 11 the attorney-client privilege, attorney-work product doctrine, and Evidence Code 12 section 1157. 13 REASON FOR FURTHER RESPONSE: 14 Defendant's privilege log is insufficient and so it is Plaintiffs best guess 15 that these documents are Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log, these 16 appear to be policies that govern the standards, processes and procedures of the peer 17 review process and when those polices were updated and are discoverable. The 18 Legislature did not intend to convey a broad general privilege for peer review materials. 19 Fox v. Kramer, 22 Cal.4th 531, 548 (2000). These documents are believed to include 20 FSH's peer review criteria and are requested in Request for Production No. 39, 40 and 21 41. These documents are sought so that the guidelines and standards to which Dr. Kaye 22 is being held accountable is transparent, so that the scope of FSH's peer review can be 23 understood, and in order to determine whether the hospital properly conducted a review 24 of Dr. Kaye and followed its own review policies and procedures. 25 Furthermore, According to FSH's own bylaws, "peer review criteria" 26 include the types of data to be collected for evaluation of medical staff. The bylaws 27 further state that criteria is subject to the approval of the Medical Executive Committee 28 and "approved criteria are updated are made known and accessible to all members." MOTSCHIEDLER, MICHA ELIDES, -3- WISHON, BREWER & RYAN,LLP (00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 Plaintiff is a member of FSH as a provisional staff member. As a member, he is entitled 2 to review the peer review criteria upon which he is being evaluated. Pertinent excerpts 3 ofFSH's 2014 Medical Staff Bylaws related to peer review criteria is attached to the 4 Ryan Declaration as Exhibit J. It is further unclear how the right of privacy, the 5 attorney-client privilege and attorney work product doctrine applies to these documents, 6 as they do not appear to be subject to any right of privacy nor do they appear to be 7 communications from, to or with a retained attorney. 8 Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log and documents 9 requested in Plaintiffs Request for Production No. 39, 40 and 41 should be produced 1O without redaction. Defendant should be required to provide a full and complete 11 response to Request for Production Nos. 39, 40 and 41 without objection. 12 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 41: 13 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 14 INFORMATION that REFER TO, REFERENCE or RELATE TO the type of data 15 collected for evaluation pursuant to YOUR peer review criteria from 2015 to the present 16 time. 17 RESPONSE TO REQUEST FOR PRODUCTION NO. 41: 18 Objection, this request is vague, ambiguous, and overbroad. The request 19 also seeks information not relevant to this case nor reasonably calculated to lead to the 20 discovery of relevant information. Further, the request seeks information protected by 21 the attorney-client privilege, attorney-work product doctrine, and Evidence Code 22 section 1157. 23 REASON FOR FURTHER RESPONSE: 24 Defendant's privilege log is insufficient and so it is Plaintiffs best guess 25 that these documents are Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log, these 26 appear to be policies that govern the standards, processes and procedures of the peer 27 review process and are discoverable. The Legislature did not intend to convey a broad 28 general privilege for peer review materials. Fox v. Kramer, 22 Cal.4th 531, 548 (2000). MOTSCHIEDLER, MICHAELIDES, -4- WISHON, BREWER & RYAN, LLP (00995/00 I 0//642876.DOC} Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 These documents are believed to include FSH's peer review criteria and are requested in 2 Request for Production No. 39, 40 and 41. These documents are sought so that the 3 guidelines and standards to which Dr. Kaye is being held accountable is transparent, so 4 that the scope of FSH's peer review can be understood, and in order to determine 5 whether the hospital properly conducted a review of Dr. Kaye and followed its own 6 review policies and procedures. 7 Furthermore, According to FSH' s own bylaws, "peer review criteria" 8 include the types of data to be collected for evaluation of medical staff. The bylaws 9 further state that criteria is subject to the approval of the Medical Executive Committee 10 and "approved criteria are updated are made known and accessible to all members." 11 Plaintiff is a member of FSH as a provisional staff member. As a member, he is entitled 12 to review the peer review criteria upon which he is being evaluated. Pertinent excerpts 13 of FSH's 2014 Medical Staff Bylaws related to peer review criteria is attached to the 14 Ryan Declaration as Exhibit J. It is further unclear how the right of privacy, the 15 attorney-client privilege and attorney work product doctrine applies to these documents, 16 as they do not appear to be subject to any right of privacy nor do they appear to be 17 communications from, to or with a retained attorney. 18 Item #s 1, 9, 11, 12 and 13 of Defendant's privilege log and documents 19 requested in Plaintiffs Request for Production No. 39, 40 and 41 should be produced 20 without redaction. Defendant should be required to provide a full and complete 21 response to Request for Production Nos. 39, 40 and 41 without objection. 22 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 42: 23 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 24 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to 25 or from Elena Crites regarding Dr. Kaye. 26 RESPONSE TO REQUEST FOR PRODUCTION NO. 42: 27 Objection, this request is vague, ambiguous, and overbroad. The request 28 also seeks information not relevant to this case nor reasonably calculated to lead to the MOTSCHIEDLER, MICHAELIDES, -5- 1 WISHON, BREWER & 1 RYAN,LLP (00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Fmther Responses to RPD #4 with Request for In Camera Review 1 discovery of relevant information. Further, the request seeks information protected by 2 the right of privacy under the United States and State of California constitutions, 3 attorney-client privilege, attorney-work product doctrine, and Evidence Code section 4 1157. 5 REASON FOR FURTHER RESPONSE: 6 Defendant's privilege log is insufficient and so it is Plaintiffs best guess 7 that these documents may be identified as Item# 5 on Defendant's privilege log. While 8 Dr. Kaye concedes that the statement may contain information protected by Evidence 9 Code § 1157 since they are presumably authored by individuals who shared the 10 operating room with Dr. Kaye on the only date he has been allowed to perform surgery 11 at FSH. However, given the insufficient state of Defendant's privilege log, it is 12 impossible to determine definitively if this is the case and whether the privileges 13 afforded by Evidence Code §1157 have merit. It is further unclear how the right of 14 privacy, the attorney-client privilege or the attorney work product applies to these 15 documents, as they do not appear to be communications from, to or with an attorney. 16 As noted above, Plaintiff cannot determine the merits of Defendant's claims of 17 privileges without a sufficient privilege log. 18 In addition, Dr. Kaye's own memory of these documents in the few short 19 minutes that he was allowed to review them revealed that statements were made that 20 included the following: (a) Dr. Kaye's refusal to shake women's hands (an 21 accommodation of his religious beliefs); (b) the fact that Dr. Kaye asked a patient or 22 another person what language should be spoken; (c) Dr. Kaye's ethnicity, accent or way 23 of speaking; and (d) comments related to Dr. Kaye's age, or that he was slow at surgery. 24 Documents containing this information have no bearing on any medical procedure or 25 quality of care provided by Dr. Kaye to any patient at FSH and are not protected by 26 Evidence Code § 1157, the right to privacy or the attorney-client privilege. 27 Dr. Kaye requests that Item #5 on Defendant's privilege log be reviewed 28 in camera by the Court to determine whether they can and should be produced and/or MOTSCHIEDLER, MICHA ELIDES, -6- WISHON, BREWER & RYAN, LLP {00995/0010//642876.DOC} Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 redacted to reveal relevant information regarding Dr. Kaye's claims of discrimination 2 and retaliation. 3 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 43: 4 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 5 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to 6 or from Lynn Sing regarding Dr. Kaye. 7 RESPONSE TO REQUEST FOR PRODUCTION NO. 43: 8 Objection, this request is vague, ambiguous, and overbroad. The request 9 also seeks information not relevant to this case nor reasonably calculated to lead to the 1O discovery of relevant information. Further, the request seeks information protected by 11 the right of privacy under the United States and State of California constitutions, 12 attorney-client privilege, attorney-work product doctrine, and Evidence Code section 13 1157. 14 REASON FOR FURTHER RESPONSE: 15 What is believed to be a responsive document is referenced as Item #2 on 16 FSH's Privilege Log #4. The document is named as a summary of encounter from Lynn 17 Sing dated December 13, 2016 which is prior to any procedures performed by Dr. Kaye 18 at FSH. Dr. Kaye does not recall meeting Ms. Sing, has never worked with Ms. Sing 19 and Ms. Sing was not in the surgical room with Dr. Kaye during his procedures at FSH 20 on December 14, 2016. [Declaration of David B. Kaye, M.D., ~2, 3, ("Kaye 21 Declaration")]. Ms. Sing could not comment on the quality of care that was provided 22 by Dr. Kaye at FSH, nor could she evaluate or review his competence. With the 23 information provided by FSH, this statement does not appear to be derived from an 24 investigation into the quality of care administered at the hospital and is not rendered 25 privileged under Evidence Code § 1157 and immune from discovery merely because it 26 was submitted to a medical staff committee. Santa Rosa Memorial Hospital v. Superior 27 Court, supra, 174 Cal.App.3d at 724. As a result, this document is not subject to or 28 protected by Evidence Code § 1157 and should be produced. Furthermore, it is unclear MOTSCHIEDLER, MICHA ELIDES, -7- WISHON, BREWER & RYAN,LLP {00995/00 I 0//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 how the right of privacy and the attorney-client privilege applies to these documents, as 2 they do not appear to be communications from, to or with an attorney. Since 3 Defendant's privilege log is insufficient, Plaintiff is at a disadvantage to determine the 4 merits of Defendant's claims of privileges. 5 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 44: 6 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 7 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to 8 or from Annalise Minks regarding Dr. Kaye. 9 RESPONSE TO REQUEST FOR PRODUCTION NO. 44: 1O Objection, this request is vague, ambiguous, and overbroad. The request 11 also seeks information not relevant to this case nor reasonably calculated to lead to the 12 discovery of relevant information. Further, the request seeks information protected by 13 the right of privacy under the United States and State of California constitutions, 14 attorney-client privilege, attorney-work product doctrine, and Evidence Code section 15 1157. 16 REASON FOR FURTHER RESPONSE: 17 Defendant's privilege log is insufficient and so it is Plaintiffs best guess 18 that these documents may be identified as Item #3 on Defendant's privilege log. While 19 Dr. Kaye concedes that the statement may contain information protected by Evidence 20 Code § 1157 since they are presumably authored by individuals who shared the 21 operating room with Dr. Kaye on the only date he has been allowed to perform surgery 22 at FSH. However, given the insufficient state of Defendant's privilege log, it is 23 impossible to determine definitively if this is the case and whether the privileges 24 afforded by Evidence Code § 1157 have merit. It is further unclear how the right of 25 privacy, the attorney-client privilege or the attorney work product applies to these 26 documents, as they do not appear to be communications from, to or with an attorney. 27 As noted above, Plaintiff cannot determine the merits of Defendant's claims of 28 privileges without a sufficient privilege log. MOTSCHJEDLER, ' MICHAELIDES, -8- WISHON, BREWER & RYAN,LLP (00995/00 I 0//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses to RPO #4 with Request for In Camera Review 1 In addition, Dr. Kaye's own memory of these documents in the few short 2 minutes that he was allowed to review them revealed that statements were made that 3 included the following: (a) Dr. Kaye's refusal to shake women's hands (an 4 accommodation of his religious beliefs); (b) the fact that Dr. Kaye asked a patient or 5 another person what language should be spoken; (c) Dr. Kaye's ethnicity, accent or way 6 of speaking; and (d) comments related to Dr. Kaye's age, or that he was slow at surgery. 7 Documents containing this information have no bearing on any medical procedure or 8 quality of care provided by Dr. Kaye to any patient at FSH and are not protected by 9 Evidence Code § 1157, the right to privacy or the attorney-client privilege. 10 Dr. Kaye requests that Item #3 on Defendant's privilege log be reviewed 11 in camera by the Court to determine whether they can and should be produced and/or 12 redacted to reveal relevant information regarding Dr. Kaye's claims of discrimination 13 and retaliation. 14 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 46: 15 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 16 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to 17 or from Julie Gresham regarding Dr. Kaye. 18 RESPONSE TO REQUEST FOR PRODUCTION NO. 46: 19 Objection, this request is vague, ambiguous, and overbroad. The request 20 also seeks information not relevant to this case nor reasonably calculated to lead to the 21 discovery of relevant information. Further, the request seeks information protected by 22 the right of privacy under the United States and State of California constitutions, 23 attorney-client privilege, attorney-work product doctrine, and Evidence Code section 24 1157. 25 REASON FOR FURTHER RESPONSE: 26 Defendant's privilege log is insufficient and so it is Plaintiffs best guess 27 that these documents may be identified as Item #4 on Defendant's privilege log. While 28 Dr. Kaye concedes that the statement may contain information protected by Evidence MOTSCHIEDLER, MICHA ELIDES, -9- WISHON, BREWER & RYAN, LLP {00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 Code § 1157 since they are presumably authored by individuals who shared the 2 operating room with Dr. Kaye on the only date he has been allowed to perform surgery 3 at FSH. However, given the insufficient state of Defendant's privilege log, it is 4 impossible to determine definitively if this is the case and whether the privileges 5 afforded by Evidence Code § 1157 have merit. It isfurther unclear how the right of 6 privacy, the attorney-client privilege or the attorney work product applies to these 7 documents, as they do not appear to be communications from, to or with an attorney. 8 As noted above, Plaintiff cannot determine the merits of Defendant's claims of 9 privileges without a sufficient privilege log. 10 In addition, Dr. Kaye's own memory of these documents in the few short 11 minutes that he was allowed to review them revealed that statements were made that 12 included the following: (a) Dr. Kaye's refusal to shake women's hands (an 13 accommodation of his religious beliefs); (b) the fact that Dr. Kaye asked a patient or 14 another person what language should be spoken; (c) Dr. Kaye's ethnicity, accent or way 15 of speaking; and (d) comments related to Dr. Kaye's age, or that he was slow at surgery. 16 Documents containing this information have no bearing on any medical procedure or 17 quality of care provided by Dr. Kaye to any patient at FSH and are not protected by 18 Evidence Code § 1157, the right to privacy or the attorney-client privilege. 19 Dr. Kaye requests that Item #4 on Defendant's privilege log be reviewed 20 in camera by the Court to determine whether they can and should be produced and/or 21 redacted to reveal relevant information regarding Dr. Kaye's claims of discrimination 22 and retaliation. 23 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 47: 24 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 25 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to 26 or from Kristine Kassahn regarding Dr. Kaye. 27 Ill 28 /// MOTSCHIEDLER, MICHAELIDES, -10- WISHON, BREWER & RYAN, LLP {00995/0010//642876.DOC} Separate Statement in Support of Motion to Compel Fmther Responses to RPD #4 with Request for In Camera Review 1 RESPONSE TO REQUEST FOR PRODUCTION NO. 47: 2 Objection, this request is vague, ambiguous, and overbroad. The request 3 also seeks information not relevant to this case nor reasonably calculated to lead to the 4 discovery of relevant information. Further, the request seeks information protected by 5 the right of privacy under the United States and State of California constitutions, 6 attorney-client privilege, attorney-work product doctrine, and Evidence Code section 7 1157. Subject to and without waiving the objections, defendant responds as follows: 8 Non-privileged documents are attached as Exhibit A. 9 REASON FOR FURTHER RESPONSE: 1O Defendant's privilege log is insufficient and so it is Plaintiff's best guess 11 that these documents may be identified as Item # 10 on Defendant's privilege log, which 12 indicates that this document is a communication from Kristine Kassahn, FSH Chief 13 Executive Officer and David Lippert, Cary Tanner, Glenn Cozen and Julie Gresham, 14 none of whom are believed to be attorneys and, as such, the document cannot fall under 15 the attorney-client privilege. Defendant further fails to establish how it is protected 16 under Evidence Code § 115 7 as it is not a record or a proceeding of a medical staff 17 committee. 18 REQUEST FOR PRODUCTION OF DOCUMENTS NO. 48: 19 ANY and ALL DOCUMENTS and ELECTRONICALLY STORED 20 INFORMATION that REFER TO, REFERENCE or RELATE TO communications to 21 or from Daniella Holdridge-Zeuner regarding Dr. Kaye. 22 RESPONSE TO REQUEST FOR PRODUCTION NO. 48: 23 Objection, this request is vague, ambiguous, and over broad. The request 24 also seeks information not relevant to this case nor reasonably calculated to lead to the 25 discovery of relevant information. Further, the request seeks information protected by 26 the right of privacy under the United States and State of California constitutions, 27 attorney-client privilege, attorney-work product doctrine, and Evidence Code section 28 1157. MOTSCHIEDLER, MICHA ELIDES, -11- WISHON, BREWER & RYAN,LLP {00995/00 I 0//64 287 6. DOC}Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 REASON FOR FURTHER RESPONSE: 2 Responsive documents relating to this request do not appear to be on 3 Defendant's privilege log. Danielle Holdridge-Zeuner is the Chief Nursing Officer for 4 FSH. Defendant has failed to identify what documents it is withholding and further 5 fails to establish how any such documents are protected under Evidence Code §1157, 6 the right to privacy, attorney-client privilege or attorney work product doctrine. 7 Plaintiff requests that the Court direct Defendant to produce all responsive documents to 8 this request. 9 Dated: February 14, 2022 MOTSCHIEDLER, MICHAELIDES, WISHON, BREWER & RYAN, LLP 10 11 12 By: /L--,l;Ll..~~~~-,LJ~==-'L 13 ,R ssell K. Ryan, Attorn ys for Plaintiff David B. Kaye, M.D. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTSCHIEDLER, MICHAELIDES, -12- WISHON, BREWER & RYAN, LLP {00995/00 I 0//642876.DOC} Separate Statement in Support of Motion to Compel Further Responses to RPD #4 with Request for In Camera Review 1 PROOF OF SERVICE 2 I, the undersigned, declare: 3 I am a citizen of the United States of America, am over the age of eighteen ( 18) years, and not a party to the within action. am an employee ofMotschiedler, Michaelides & Wishon, LLP, and my business address is 1690 West Shaw Avenue, Suite 4 200, Fresno, California, 93 711. My email address is crystal@mmwbr.com. 5 On February 14, 2022, I caused to be served the following document(s): SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF 6 DOCUMENTS (SET FOUR) AND PRODUCTION OF DOCUMENTS WITH REQUEST FOR IN CAMERA REVIEW 7 OF WITHHELD DOCUMENTS on the parties involved addressed as follows: 8 Stephen A. Rosa, Esq. WEST & ROSA, LLP 1301 Dove Street, Suite 700 9 Newport Beach, California 92660-2470 10 11 D BY PERSONAL DELIVERY: I caused each such envelope to be delivered by hand to the offices of each addressee above. 12 13 • BY U.S. MAIL: I caused each envelope, with postage thereon fully prepaid, to be placed in the United States mail at Fresno, California. I am readily familiar with the business practice for collection and processing of mail in this office; and that in the ordinary course of business said document would be deposited with the U.S. Postal Service in Fresno, California on that same day. I understand that service shall be presumed invalid upon motion of a 14 party served ifthe postal cancellation date or postage meter date on the envelope is more than one day after the date 15 of deposit for mailing contained in this declaration. 16 17 • BY ELECTRONIC MAIL: I caused the above-referenced document to be served via electronic mail to counsel listed above and staff at srosa@westrosallp.com and lnowlin@westrosallp.com on this date. transmission was reported as complete and without error. The document 18 D BY FACSIMILE : By use ofa facsimile machine telephone number (559) 439 5654, I served a copy of the within document(s) on the above interested parties at the facsimile numbers listed above. The transmission was repo11ed as 19 complete without error. The transmission report, which is attached to this proof of service, was properly issued by the transmitting facsimile machine. 20 21 D BY FEDERAL EXPRESS OVERNIGHT DELIVERY: I caused each envelope, with delivery fees provided for, to be picked up on this date by a Courier employed by Federal Express or deposited in a box regularly maintained by Federal Express. I am readily familiar with this firm's practice for collection and processing of documents for 22 overnight delivery and know that in the ordinary course of this firm's business practice the document(s) described above will either be deposited in a box or other facility regularly maintained by Federal Express or delivered to an 23 authorized courier or driver authorized to receive documents on the same date that it is placed for collection. 24 I declare under penalty of pe1jury under the laws of the State of California that the foregoing is true and correct. 25 Executed at Fresno, California on February 14, 2022. 26 27 0rt:;;:, /LtJ::~ 28 MOTSCHIEDLER, MICHAELIDES, -13- WISHON, BREWER & RYAN, LLP {00995/0010//642876.DOC) Separate Statement in Support of Motion to Compel Further Responses to RPO #4 with Request for In Camera Review