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Tanner v. McMurray

United States District Court, D. New Mexico

May 7, 2019

SHAWNA TANNER, individually and as personal representative of JAY HINTON, JR., Plaintiff,
v.
TIMOTHY I. MCMURRAY, M.D.; ADRIANA LUNA, R.N.; AUDREY LEBER, R.N.; TAILEIGH SANCHEZ, R.N.; ELISA MANQUERO, R.N.; CORRECT CARE SOLUTIONS, LLC; BOARD OF COUNTY COMMISSIONERS OF BERNALILLO COUNTY, NEW MEXICO; THOMAS J. RUIZ; JOHN AND JANE DOES 1-10; CHRISTOPHER MERCER; ED KOSSMAN; CLAUDIA RODRIGUEZ-NUNEZ; MARTINA SANCHEZ-FILFRED, and TINA M. MUNOZ, Defendants.

          Nicole Moss The Law Office of Nicole W. Moss Albuquerque, New Mexico and- Paul J. Kennedy Jessica M. Hernandez Arne Leonard Elizabeth Harrison Kennedy, Hernandez & Associates, P.C. Albuquerque, New Mexico Attorneys for the Plaintiff.

          Alfred A. Park Geoffrey D. White Park & Associates, L.L.C. Albuquerque, New Mexico Attorneys for Defendants Timothy I. McMurray, Adriana Luna, Audrey Leber, Taileigh Sanchez, Elisa Manquero, Correct Care Solutions, LLC, Christopher Mercer, and Ed Kossman.

          Jonlyn M. Martinez Law Firm of Jonlyn M. Martinez Albuquerque, New Mexico Attorney for Defendants Board of County Commissioners of Bernalillo County, Thomas J. Ruiz, Claudia Rodriguez-Nuñez, Martina Sanchez-Filfred, and Tina M. Muñoz.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Plaintiff's Motion to Compel Defendant Bernalillo County's Response to Request for Production No. 5, filed April 9, 2018 (Doc. 38)(“Motion to Compel RFP No. 5”); (ii) the Plaintiff's Motion to Compel Defendant Correct Care Solution [sic], LLC's Response to Plaintiff's Request for Production No. 12, filed June 4, 2018 (Doc. 52)(“Motion to Compel RFP No. 12”); (iii) the Plaintiff's Motion to Compel Defendant Correct Care Solution [sic], LLC's Answers and Responses to Plaintiff's First Set of Interrogatories and Requests for Production, and for Sanctions Under Rules 16(F)(1)(C), 26(G)(3), 37(C), and 37(A)(5), filed June 4, 2018 (Doc. 53)(“Motion to Compel Ans. and Resp.”); (iv) the Plaintiffs' Rule 72(A) Objections to Magistrate Judge's Memorandum Opinion and Order on Plaintiff's Motion to Compel Defendant Correct Care Solutions, LLC's Answers and Responses to Plaintiff's First Set of Interrogatories and Requests for Production, and for Sanctions Under Rules 16(F)(1)(C), 26(G)(3), 37(C), and 37(A)(5), filed September 4, 2018 (Doc. 83)(“Tanner's Obj. to Aug. 20, 2018 KBM MOO”); (v) the Opposed Motion for Protective Order, filed September 5, 2018 (Doc. 84)(“Protective Order Motion”); (vi) the Plaintiffs' Rule 72(a) Objections to Magistrate Judge's Memorandum Opinion and Order on Plaintiffs' Motions to Compel Defendant Bernalillo County's Response to Request for Production No. 5 and Defendant Correct Care Solutions, LLC's Response to Request for Production No. 12, filed September 19, 2018 (Doc. 88)(“Tanner's Obj. to Sept. 5, 2018 KBM MOO”); (vii) Correct Care Solutions, LLC's Partial Objections to Memorandum Opinion and Order, filed September 19, 2018 (Doc. 89)(“CCS' Obj. to Sept. 5, 2018 KBM MOO”); and (viii) Correct Care Solutions, LLC's Notice of Objections to Production of McClendon Documents, filed March 12, 2019 (Doc. 159)(“CCS' Obj. to Prod. McClendon Docs.”). The Court will, in this Memorandum Opinion and Order (“MOO”), address the following discovery issues: (i) whether the continuous quality improvement (“CQI”), quality improvement (“QI”), and quality assurance (“QA”) records which Correct Care produced pursuant to its contract with Bernalillo County to provide health care services at Metropolitan Detention, in 2015 and 2016, (the “QI/QA Records”), are relevant to the present litigation and subject to discovery; (ii) whether the documents provided to Dr. Robert Greifinger, the court-appointed medical expert in the McClendon v. City of Albuquerque, No. 95-CV-0024 JAP/ACT (“McClendon”) litigation, during his April, 2016, and November, 2016, site visits to the Metropolitan Detention Center in the County of Bernalillo, New Mexico (“Metropolitan Detention”), (the “Dr. Greifinger Documents”), are subject to discovery and relevant to the present litigation, which involves Plaintiff Shawna Tanner's claims for violations of her civil rights under the Eighth and Fourteenth Amendments to the Constitution of the United States of America, claims for professional negligence and gross negligence under State of New Mexico law, and claims for statutory violations of New Mexico's Inspection of Public Records Act, N.M. Stat. Ann. §§ 14-2-1 to -12 (“IPRA”), all of which allegedly occurred while she was incarcerated at Metropolitan Detention in October, 2016; (iii) whether the QI/QA Records or the Dr. Greifinger Documents are subject to a viable common-law self-critical analysis privilege claim; (iv) whether the QI/QA Records or the Dr. Greifinger Documents are subject to a viable Patient Safety and Quality Improvement Act, 42 U.S.C. §§ 299b-21 to -26 (“PSQIA”), privilege; and (v) whether the QI/QA Records or the Dr. Greifinger Documents are subject to a viable New Mexico Review Organization Immunity Act, N.M. Stat. Ann. §§ 41-9-1 to -7 (“ROIA”), privilege. The Court held a hearing on February 4 and 5, 2019. Bernalillo County provided “a copy of documents that were received by counsel for Bernalillo County in the McClendon litigation that were produced to Dr. Greifinger, the Court appointed expert in that matter.” Letter from Jonlyn M. Martinez to the Court at 1(dated April 2, 2019), filed April 16, 2019 (Doc. 215)(“April 2, 2019 Letter”). Defendant Board of County Commissioners of Bernalillo County (“Bernalillo County”), attaches a log of the Dr. Greifinger Documents and highlights the documents which Bernalillo County already has provided to Tanner -- the Pregnant Woman Studies (dated March 7, 2016, April 7, 2016, and August 16, 2016)(Bates Nos. D000018-20), the Mortality and Morbidity review for Shawna Tanner (dated October 17, 2016)(Bates Nos. D000300-19), and the Report completed by Dr. Kenneth Ray and Dr. Ronald Shansky regarding Shawna Tanner (undated)(Bates Nos. D000341-48) -- as of April 16, 2019. See Log of Documents Provided to Dr. Robert Greifinger, filed April 16, 2019 (Doc. 214-1)(“Dr. Greifinger Documents Log”). The Court has carefully reviewed the Court's Copy of Dr. Greifinger Documents. The Dr. Greifinger Documents include: (i) a CQI Calendar (undated)(Bates Nos. D000001-02); (ii) CQI Meeting Minutes (dated July 16, 2016)(Bates Nos. D000003-04); (iii) a Psychiatry Study (dated July 29, 2016)(Bates Nos. D000005-06); (iv) an HIV Study (dated July 21, 2016)(Bates No. D000007); (v) a Receiving Screen and Med. Verification Study (dated June, 2016)(Bates Nos. D000008-09); (vi) an Alcohol/Benzo Withdrawal Study, (dated June, 2016)(Bates Nos. D000010-11); (vii) a Mental Health Evaluation Study (dated February 15, 2016)(Bates Nos. D000012-14); (viii) Health Assessment Studies (dated February 15, 2016, August 25, 2016, and November 10, 2016)(Bates Nos. D000015-17); (ix) Pregnant Women Studies (dated March 7, 2016, April 7, 2016, and August 16, 2016)(Bates Nos. D000018-20); (x) Evaluations of Care prior to ER Visit (dated March 17, 2016, and May 25, 2016)(Bates Nos. D000021-22); (xi) an X-Rays Study (dated February 15, 2016)(Bates No. D000023); (xii) Chronic Disease Studies for Asthma, Diabetes, Seizure, and Hypertension (dated March 7, 2016, March 8, 2016, April 7, 2016, April 20, 2016, August 25, 2016, September 1, 2016, and November 8, 2016)(Bates Nos. D000024-38); (xiii) Anticoagulant Studies (dated April 19, 2016, August 25, 2016, and October 26, 2016)(Bates Nos. D000039-42); (xiv) a Continuity of Care Study (dated August 25, 2016)(Bates No. D000043); (xv) an Access to Dental Care Study (dated August 23, 2016)(Bates No. D000044); (xvi) Sexually-Transmitted Diseases Studies (dated March 7, 2016, April 7, 2016, August 8, 2016, and November 8, 2016)(Bates Nos. D000045-48); (xvii) Continuity of Medication on Intake Studies (dated February 15, 2016, September 12, 2016, and November 14, 2016)(Bates Nos. D000049-51); (xviii) a Medical Refusal Study (dated April 7, 2016)(Bates Nos. D000052-54); (xix) a January- March 2016 Corrective Action Plan (Bates Nos. D000055-59); (xx) Mortality and Morbidity Reviews for B.G., L.D., M.A., J.O., D.T., and Shawna Tanner (dated May 11, 2016, June 22, 2016, June 24, 2016, July 14, 2016, September 20, 2016, October 17, 2016)(Bates Nos. D000060-319); and (xxi) Reports completed by Dr. Kenneth Ray and Dr. Ronald Shansky regarding K.A., M.S.J., Shawna Tanner, and D.T. (undated)(Bates Nos. D000320-48). Dr. Greifinger Documents Log at 1-4. The Court concludes that: (i) the QI/QA Records are relevant and subject to discovery; (ii) the Dr. Greifinger Documents are relevant and subject to discovery; (iii) the QI/QA Records and the Dr. Greifinger Documents are not subject to a viable common-law self-critical analysis privilege claim; (iv) the QI/QA Records and the Dr. Greifinger Documents are not subject to a viable PSQIA privilege claim; and (v) the QI/QA Records and the Dr. Greifinger Documents are not subject to a valid ROIA claim.

         FACTUAL BACKGROUND

         The Court recited this case's facts and early procedural history in its Memorandum Opinion and Order, 2018 WL 6050675, filed November 19, 2018 (Doc. 115)(“Nov. 19, 2018 MOO”). The Court incorporates that recitation here. The Court includes the Nov. 19, 2018 MOO's footnotes.

Plaintiff Shawna Tanner, on behalf of herself and as personal representative of her deceased minor child, Jay Hinton Jr., (collectively, “Plaintiffs”) filed the First Amended Complaint for Civil Rights Violations, Tort Claims, Wrongful Death, Statutory Violations, Damages, and Injunctive Relief, filed May 23, 2018 (Doc. 50)(“Amended Complaint”). The Amended Complaint states that the Court “has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343, with supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367.” Amended Complaint ¶ 1, at 1. Plaintiff Shawna Tanner was at all relevant times a New Mexico resident. See Amended Complaint ¶ 3, at 2. All the known Defendants are individuals who resided in the State of New Mexico at all relevant times or are entities who are incorporated or are authorized to do business in New Mexico. See Amended Complaint ¶ 2, at 1 (stating that venue is proper “in this District as Defendants are residents of New Mexico under 28 U.S.C. § 1391 and all of the acts complained of occurred in New Mexico.”). See also Amended Complaint ¶¶ 5-12, at 2-4 (describing the Defendants' residences).
Tanner first brought the Complaint for Civil Rights Violations, Tort Claims, Statutory Violations, Damages, and Injunctive Relief, filed August 25, 2017 (Doc. 1)(“Complaint”) in federal district court against the following Defendants: (i) Timothy I. McMurray, M.D., the Metropolitan Detention Center in the County of Bernalillo, New Mexico (“MDC”)'s Site Medical Director; (ii) Adriana Luna, R.N., an MDC Registered Nurse; (iii) Audrey Leber, R.N., an MDC Registered Nurse; (iv) Taleigh Sanchez, R.N., an MDC Registered Nurse; (v) Elisa Manquero, R.N., an MDC Registered Nurse; (vi) Correct Care Solutions LLC (“CCS”), a Kansas Limited Liability Company with a site office at the MDC, which “employed, contracted with, and exercised direct supervisory control” over McMurray, Luna, Leber, Sanchez, and Manquero, see Complaint ¶ 6, at 2; (vii) Thomas J. Ruiz, the MDC's Administrator; (viii) Board of County Commissioners (“BCC”) of Bernalillo County, which contracted with CCS to provide health-care services to MDC inmates; (viv) additional health-care personnel, identified as Does 1-5; and (x) additional corrections personnel, including corrections officers, employed at the MDC and identified as Does 6-10. Complaint ¶¶ 4-9, at 2-3. In the Amended Complaint, Tanner withdrew the Complaint against Leber, and added the following Defendants: (i) Christopher Mercer, P.A., an MDC Physician Assistant; (ii) Ed Kossman, an MDC Health Services Administrator (“HSA”); (iii) Claudia Rodriguez-Nuñez, an MDC corrections officer; (iv) Martina Sanchez-Filfred, an MDC corrections officer; and (v) Tina M. Muñoz, an MDC corrections officer. See Amended Complaint ¶¶ 6-8 and 12, at 2-4.
According to the Amended Complaint, Tanner began a term of incarceration at the MDC on October 4, 2016, while in the last month of her pregnancy. See Amended Complaint ¶ 34, at 10. Upon intake, Tanner disclosed her pregnancy “as well as her desire and intent to give birth and keep the child” to the MDC and medical personnel. Amended Complaint ¶ 35, at 10. Tanner also disclosed her medical history relevant to diagnosing possible risks associated with her pregnancy, including “prior pregnancies, past substance abuse, and her age (33 years old).” Amended Complaint ¶ 36, at 10-11.
Tanner remained in the MDC's custody from on or about October 4, 2016, until on or about October 20, 2016, aside from a brief emergency visit to Lovelace Women's Hospital in Albuquerque, New Mexico, on or about October 17, 2016. See Amended Complaint ¶ 34, at 10. The Amended Complaint alleges that, while at the MDC:
[Tanner] was dependent on MDC personnel and CCS personnel for access to timely and appropriate prenatal care, medical examinations by a clinician qualified to provide such care, appropriate prenatal laboratory and diagnostic tests, specialized obstetrical services and resources for her pregnancy, transport to an appropriate community facility for delivery and peripartum care, and all emergency medical care.
Amended Complaint ¶ 34, at 10. According to the Amended Complaint, Rodriguez-Nuñez and Muñoz were corrections officers at the MDC during the time that the Amended Complaint addresses, and at all relevant times “were acting under the color of law and within the scope of their duties and employment as corrections officers at MDC.” Amended Complaint ¶ 12, at 4.
Tanner alleges that:
On or about December 9, 2014, Defendant BCC selected, approved, and entered into a written contract between Bernalillo County, New Mexico and Defendant CCS entitled “Medical, Dental, Mental Health, Psychiatric and Methodone Services Agreement” (hereinafter “Medical Services Agreement”). That agreement remains in effect, as amended, for a four-year term.
Amended Complaint ¶ 13, at 4. Tanner alleges that, under the Medical Services Agreement, BCC and CCS represented that healthcare for the MDC inmates would comply with all current and future standards issued by the National Commission on Correctional Health Care (“NCCHC”) and the American Correctional Association (“ACA”). See Amended Complaint ¶ 14, at 4. Tanner alleges that, under the Medical Services Agreement, CCS agreed to train the MDC staff on NCCHC and ACA standards, “including training on recognizing emergencies and procedures for referring inmates for care.” Amended Complaint ¶ 14, at 4. Tanner alleges that the NCCHC standards in effect when CCS and BCC entered into the Medical Services Agreement contain a standard entitled “Counseling and Care of the Pregnant Inmate, ” which requires that: “Pregnant inmates receive timely and appropriate prenatal care, specialized obstetrical services when indicated, and postpartum care. Pregnant inmates are given comprehensive counseling and assistance in accordance with their expressed desires regarding their pregnancy.” Amended Complaint ¶ 15, at 4-5. Tanner alleges that CCS and BCC contracted to add a provision for “bi-weekly onsite OB/GYN clinics at 4 hours per clinic” to the Medical Services Agreement. Amended Complaint ¶ 20, at 6. Tanner alleges that, in addition to the provision for bi-weekly onsite OB/GYN clinics, the Medical Services Agreement
required a staffing pattern with at least two physicians, two physician assistants or other mid-level providers, as well as the site medical director, such that a physician was on-call and available for site visits twenty-four hours, seven days per week, and daily rounds of the facility's Sheltered Housing Unit (SHU) were conducted by a physician, physician assistant, or other mid-level provider seven days a week.
Amended Complaint ¶ 21, at 6. Tanner alleges that the ACA standards in effect when CCS and BCC entered into the Medical Services Agreement require that “[p]regnant inmates have access to obstetrical services by a qualified provider, including prenatal, peripartum, and postpartum care.” Amended Complaint ¶ 18, at 5. Tanner alleges that the Medical Services Agreement contained specific provisions regarding referral of pregnant inmates for prenatal care, identification of patients in need of hospitalization or other off-site services, and other such responsibilities. See Amended Complaint ¶ 22, at 6. Tanner alleges that McMurray's responsibilities under the Medical Services Agreement include “develop[ing] special medical programs for inmates who require close medical supervision, special accommodations, and/or chronic and convalescent care, including a plan of treatment with directions for health care staff and correctional staff regarding their roles in the care and supervision of such inmates.” Amended Complaint ¶ 23, at 6-7. Tanner alleges that Kossman's responsibility under the Medical Services Agreement “is to monitor the performance of all health care personnel rendering patient care and advise the Chief of Corrections, Defendant Tom Ruiz, on specific clinical issues as appropriate.” Amended Complaint ¶ 24, at 7. Tanner alleges that, under the Medical Services Agreement, Ruiz
retained final authority . . . to decide the assignment and utilization of staff to maximize the efficiency of health care delivery at MDC, and to approve hiring of Defendant CCS's Health Services Administrator, as well as physicians and mid-level providers at MDC. (Section 4.1.25.6). Defendant Ruiz was also kept informed of contract compliance and health care issues at MDC through a number of monthly reports, matrices, logs, corrective action plans, and committee meetings required under the Medical Services Agreement. (Sections 4.1.16.5, 4.1.20.1, 4.1.25.27, 4.1.26.7, 4.1.27.4, 4.2.1, 4.2.2.) The Medical Services Agreement specifically provided Defendants BCC and Ruiz with access for inspection of detailed records indicating the date, time and nature of services provided under the agreement. (Section 4.3.2.1.)
Amended Complaint ¶ 25, at 7.
Tanner alleges that CCS stated it recently acquired Correctional Health Companies, and that CCS “truly understands the complexities of McClendon, ” a class-action lawsuit involving conditions of inmate medical care and mental health care at the MDC and its predecessor facilities. Amended Complaint ¶ 26, at 7. Tanner alleges that, on March 22, 2016, the Honorable James A. Parker, Senior United States District Judge for the District of New Mexico, entered a Memorandum Opinion and Order preliminarily approving the McClendon settlement agreement and requiring that notice of the agreement and its terms be posted in both English and Spanish in every MDC housing unit, the medical services unit, the reception, discharge, and transfer unit, and the law library. See Amended Complaint ¶¶ 27-28, at 7-8. Tanner alleges that Judge Parker also required that the MDC allow inmates to review the settlement agreement in full upon request or through a kiosk system. See Amended Complaint ¶ 28, at 8. Tanner alleges that, after allowing sixty days for notice, comment, and objections, Judge Parker gave final approval for the settlement agreement in a Memorandum Opinion and Order dated June 27, 2016. See Amended Complaint ¶ 29, at 8. Tanner asserts that Judge Parker concluded that the settlement agreement “does not bar inmates with individual claims from pursuing damages in separate lawsuits.” Amended Complaint ¶ 29, at 8.
Tanner alleges that the Medical Services Agreement requires BCC to demonstrate compliance with three “Check-Out Audit Agreements corresponding to areas evaluated by court-appointed experts: (1) provision of medical services; (2) provision of mental health services; and (3) general conditions of confinement, including population management.” Amended Complaint ¶ 30, at 8. Check-Out Audit Agreement No. 1 (“CAA No. 1”), pertaining to the MDC's provision of medical services to inmates, specifically references compliance with NCCHC and ACA standards, and requires the court-appointed medical expert to monitor and address “[w]hether MDC inmates who complain orally or in writing of serious acute illness or serious injury are given immediate medical attention, ” and “[w]hether all inmate requests for medical care are timely communicated to medical personnel for appropriate treatment.” Amended Complaint ¶ 30, at 8-9. Tanner alleges that, by June 2016, the MDC staff had not yet achieved compliance with CAA No. 1. See Amended Complaint ¶¶ 31-32, at 9. Tanner alleges that the MDC supervisory personnel, including McMurray, Kossman, and Ruiz, received notice and were aware of the facility's non-compliance with the McClendon settlement agreement and the Check-Out Audit Agreements. See Amended Complaint ¶ 33, at 9. Tanner alleges that the Medical Services Agreement, the McClendon settlement agreement, and CAA No. 1 were all in effect when she began her term of incarceration at MDC in the last month of gestation of her pregnancy. See Amended Complaint ¶ 34, at 10.
Tanner alleges that, during her time in the MDC's custody, she and her fetus, Jay Hinton, Jr., were dependent on the MDC and CCS personnel for “access to timely and appropriate prenatal care, medical examinations by a clinician qualified to provide such care, appropriate prenatal laboratory and diagnostic tests, specialized obstetrical services and resources for her pregnancy, transport to an appropriate community facility for delivery and peripartum care, and all emergency medical care.” Amended Complaint ¶ 34, at 10. Tanner alleges that she could feel Jay Hinton, Jr. “kicking, moving, and exhibiting other signs of life within her.” Amended Complaint ¶ 35, at 10. Tanner alleges that the records she provided to the MDC of her prenatal care pre-incarceration also disclosed the relevant aspects of her medical history. See Amended Complaint ¶ 36, at 10-11.
Tanner alleges that she completed a healthcare request form, countersigned by Manqero two days later, upon her arrival to the MDC on October 4, 2016, stating: “I'm pregnant need meds.” Amended Complaint ¶ 37, at 11. Tanner alleges that Emergency Medical Technician Roger Boydston completed a “Receiving Screening” form for Tanner upon her arrival to the MDC, indicating that she had been treated for her pregnancy before her incarceration, and checking a box for “RN Review/Plan, ” which stated: “CCC pregnancy entered Prenatals ordered; Pregnancy labs ordered per protocol, Off-site coordinator notified via email, pregnancy diet started.” Amended Complaint ¶ 38, at 11. Tanner alleges that Spencer and Mercer electronically signed the Receiving Screening form. See Amended Complaint ¶ 38, at 11. Tanner alleges that Boydston and Mercer signed another form regarding Tanner and referring to her pregnancy and her substance abuse. See Amended Complaint ¶ 39, at 11. Tanner alleges that Spencer and McMurray signed orders for medication, and for a medical diet for Tanner. See Amended Complaint ¶ 40, at 11. Tanner alleges, accordingly, that McMurray, Manquero, and Mercer, all knew of her “serious medical needs as a pregnant inmate in the last trimester who was incarcerated at MDC and in their care as of October 4, 2016.” Amended Complaint ¶ 41, at 12.
Tanner alleges that the MDC personnel never referred her to an OB/GYN clinic or appropriate prenatal care, and that the MDC personnel never attempted to obtain her medical records for her pre-incarceration treatment, despite the mandates in the NCCHC and ACA standards to do so. See Amended Complaint ¶ 42, at 12. Tanner alleges that, upon intake, she was assigned to a housing unit in the MDC (a “pod”) and was required to participate in strenuous physical activities “without due regard to her pregnancy or the risks associated with it. Such activities included gathering her belongings and moving them from one tier of the pod to another.” Amended Complaint ¶ 43, at 12. Tanner alleges that none of the Defendants “provided or followed advice on levels of activity and safety precautions appropriate” for her pregnancy and its associated risks. Amended Complaint ¶ 43, at 12. Tanner alleges that, on October 14, 2016, Manquero saw her and completed a “Medical History and Physical Assessment with Mental Health” form, and that Tanner reported her pregnancy to Manquero and requested prenatal care. Amended Complaint ¶ 44, at 12. Tanner alleges that, on October 15, 2016, McMurray signed the form Manquero had prepared the day before, but that neither McMurray, Manquero, nor any other CCS personnel conducted appropriate follow-up with Tanner regarding her pregnancy and a plan for medical care. See Amended Complaint ¶ 44, at 12-13.
Tanner alleges that she again requested medical attention early on October 16, 2016, while Rodriguez-Nuñez was on duty in Pod F7, a housing unit at the MDC. See Amended Complaint ¶ 45, at 13. Upon information and belief, Tanner alleges that Rodriguez-Nuñez “lacked adequate training or supervision with regard to pregnant inmates such as Plaintiff Tanner, and the facility was understaffed at the time.” Amended Complaint ¶ 45, at 13. Tanner alleges that Rodriguez-Nuñez “declined and delayed responding to Plaintiff Tanner's initial request for medical attention on October 16, 2016.” Amended Complaint ¶ 46, at 13. Tanner alleges that, after Rodriguez Nuñez' delay, she “encountered a roving corrections officer, Rebecca Macias, who escorted her to the medical unit, where she was eventually seen by Defendant Luna.” Amended Complaint ¶ 46, at 13.
Tanner next contends that, after Luna saw her, Rodriguez-Nuñez, along with Luna and Sanchez-Filfred, “sent Plaintiff Tanner back to Pod F7 on Sunday morning, October 16, 2016, without providing timely or adequate medical care.” Amended Complaint ¶ 47, at 13-14. Tanner then avers that, according to records produced to her as of the date she filed the Amended Complaint, “corrections officer Rebecca Macias relieved Defendant Rodriguez-Nuñez of her duties in Pod F7 for a 30-minute break at approximately 9:40 a.m.” on the same day. Amended Complaint ¶ 48, at 14. The records, Tanner asserts, “indicate that Officer Macias had just finished escorting Plaintiff Tanner from the medical unit back to the general housing pod and was aware that she was pregnant.” Amended Complaint ¶ 48, at 14.
During the escort, Macias noticed that Tanner needed “immediate medical attention.” Amended Complaint ¶ 48, at 14. After unsuccessfully calling the MDC's medical unit to “report her observations, ” Macias called a “Code 43” signifying an “immediate medical emergency” and then escorted Tanner to the “front waiting area of the medical unit” where she waited “in the presence of Defendant Sanchez-Filfred . . . .” Amended Complaint ¶ 49, at 14. Tanner contends that Luna “summoned corrections officers to place and hold Plaintiff Tanner in a locked, solitary segregation cell within the medical unit contrary to the NCCHC Standards on Restraint and Seclusion, ” and that Muñoz, “who was posted to the back area of the infirmary, actively participated in placing and holding Plaintiff Tanner in the segregation cell under these circumstances.” Amended Complaint ¶ 50, at 14-15.
Tanner avers that, “in concert with Defendant Luna” and Sanchez-Filfred, Muñoz “caused Plaintiff Tanner to be held in the segregation cell within MDC's medical unit for the rest of the day on October 16, 2016, and into the following day on October 17, 2016, without adequate or timely medical care for her serious medical needs.” Amended Complaint ¶ 52, at 15.
Tanner contends that, when Muñoz, Luna, and Sanchez-Filfred placed Tanner in the “locked, isolated segregation cell, ” they did not provide her with a blanket or drinking cup, despite her requests for those items, and “disregarded her requests for timely and appropriate medical care, as well as several clear and obvious symptoms of her serious medical needs and those of Jay Hinton, Jr., who was a viable fetus in the last month of gestation.” Amended Complaint ¶ 53, at 15. Tanner alleges that:
While isolated in the segregation cell, [she] continued to experience vaginal discharge, cramping, and pressure, and she observed a strong odor coming from the discharge, which indicated an infection. The discharge soaked through numerous sanitary pads while Plaintiff Tanner was in such extreme discomfort that she was unable to sit down or sit on the toilet.
Amended Complaint ¶ 53, at 15.
Tanner alleges that, throughout the day on October 16, 2016, and continuing through the night and early morning hours of October 17, 2016, she “continued to experience and report her acute emotional and physical distress, as well as her urgent concerns about the life of her fetus, to medical and corrections personnel, ” including to Muñoz. Amended Complaint ¶ 57, at 17. Tanner asserts that, during this period, she “repeatedly complained of abdominal pain (cramping), vaginal discharge, and a strong feeling of pressure in her lower abdomen/vaginal area, which interfered with her urination and defecation, and caused great discomfort, fear, and anxiety.” Amended Complaint ¶ 57, at 17. Tanner asserts that she repeatedly informed medical and corrections personnel -- including Muñoz -- that “she believed she was in labor and requested transport to a hospital for delivery of her child.” Amended Complaint ¶ 57, at 17.
Tanner alleges that the personnel -- the named Defendants -- who she informed, including Muñoz, “refused or ignored” her repeated requests both for hospital transport, and “for referral to a clinician qualified to provide appropriate prenatal or peripartum care or obstetric services in accordance with her expressed desires and intent to give birth and to keep the child.” Amended Complaint ¶ 58, at 17. Muñoz, along with other Defendants, “repeatedly declined to provide [her] with appropriate prenatal care in accordance with NCCHC and ACA standards.” Amended Complaint ¶ 58, at 17. Instead, Tanner contends that:
[T]hey responded to her increasingly serious and life-threatening medical needs by cruelly and maliciously isolating her in a locked solitary segregation cell in MDC's Sheltered Housing Unit or (SHU), which had the effect of preventing other corrections officers and inmates in the general housing units from recognizing, witnessing, and seeking further attention for her serious medical needs and those of her fetus.
Amended Complaint ¶ 58, at 17. Tanner contends that, according to medical records produced to her as of May 23, 2018, her fetus, “Jay Hinton, Jr. was a viable fetus whose heart was still beating on October 16, 2016, and proper medical intervention on that date could have saved his life.” Amended Complaint ¶ 59, at 17-18.
Tanner alleges that, BCC, by and through its employees, including Rodriguez-Nuñez and Muñoz, was “aware that she had a serious medical condition which rendered her unable to care for herself or her fetus, and that she was in severe pain . . . [and that BCC, by and through its employees, ] acted negligently and recklessly with respect” to Tanner's and her fetus' serious medical needs, “failed to require Defendant CCS to comply with its contractual obligations under the Medical Services Agreement, and failed to comply with BCC's own obligations under the McClendon[1] settlement agreement under conditions that were certain to result in constitutional violations and tort claims.” Amended Complaint ¶ 70, at 21.
Regarding her state law claims for “Negligent Operation of Public Medical Facilities, Buildings, Equipment, and Furnishings Against All Defendants, ”[2]Amended Complaint at 26, Tanner also requests compensatory damages against Rodriguez-Nuñez and Muñoz, for their alleged negligence, which, Tanner contends, “proximately caused damages and injuries as set forth above, including pain and suffering, psychological and emotional distress, health-care expenses, serious physical injuries, and the death of her fetus, ” Amended Complaint ¶ 102, at 27. Regarding her state law claims for “Negligent Operation of Public Medical Facilities, Buildings, Equipment, and Furnishings Resulting in the Wrongful Death of Jay Hinton, Jr. Against All Defendants, ”[3] Amended Complaint at 32, Tanner also requests compensatory damages against Rodriguez-Nuñez and Muñoz, for their alleged negligence which, Tanner contends, “proximately caused the wrongful death of Jay Hinton, Jr., during the period when he was a viable fetus as described above, ” Amended Complaint ¶ 126, at 33.

Nov. 19, 2018 MOO at 2-14, 2018 WL 6050675, at **1-7.

         PROCEDURAL BACKGROUND

         The Court incorporates the early procedural background from the Nov. 19, 2018 MOO.

The Amended Complaint raises claims against the Defendants under the Constitution of the United States of America -- specifically the Eighth and Fourteenth Amendments to the United States Constitution -- New Mexico state law, and the New Mexico Inspection of Public Records Act, N.M. Stat. Ann. §§ 14-2-1 to 14-2-12 (“IPRA”). See Amended Complaint at 1. The Amended Complaint raises two counts against Rodriguez-Nuñez and against Muñoz. See Amended Complaint at 26, 32. Count IV raises state law claims for negligent operation of public medical facilities, buildings, equipment, and furnishings against all Defendants, including against Rodriguez-Nuñez and Muñoz. See Amended Complaint at 26. Count VII raises state law claims for negligent operation of public medical facilities, buildings, equipment, and furnishings resulting in the wrongful death of Jay Hinton, Jr. against all the Defendants, including against Rodriguez-Nuñez and Muñoz. See Amended Complaint at 32. Both Rodriguez-Nuñez and Muñoz filed separate Motions to Dismiss. See Rodriguez-Nuñez Motion; Muñoz Motion. Tanner filed a Response to each Motion. See also Plaintiffs' Response in Opposition to Defendant Rodriguez-Nunez's Motion to Dismiss and Brief in Support, filed July 31, 2018 (Doc. 71)(“Response to Rodriguez-Nuñez Motion”); Plaintiffs' Response in Opposition to Defendant Munoz's Motion to Dismiss and Brief in Support, filed July 31, 2018 (Doc. 72)(“Response to Muñoz Motion”). Both Defendants filed Replies. See also Defendant Rodriguez-Nunez' Reply Memorandum in Support of her Motion to Dismiss, filed August 7, 2018 (Doc. 76)(“Rodriguez-Nuñez Reply”); Defendant Muñoz' Reply Memorandum in Support of her Motion to Dismiss, filed August 15, 2018 (Doc. 78)(“Muñoz Reply”).

Nov. 19, 2018 MOO at 14-15, 2018 WL 6050675, at *7.

         1. The Motion to Compel RFP No. 5 Briefing.

         On April 9, 2018, Tanner filed the Motion to Compel RFP No. 5, requesting that the Court compel Bernalillo County to timely produce known records responsive to Plaintiff's Request for Production (“RFP”) No. 5. See Motion to Compel RFP 5 at 1. Tanner's RFP No. 5 states:

Please produce the records that officials or agents of the Metropolitan Detention Center provided to the court-appointed medical expert, Dr. Robert Greifinger, during his April 2016 and November 2016 site visits, including but not limited to Continuous Quality Improvement (CQI) and Quality Assurance (QA) reports, Mortality Review Reports, matrices or reports regarding medical care prepared or signed by the County's contract compliance officer and documents prepared or signed by Dr. Ron Shansky and Dr. Kenneth Ray.

         Defendant Board of County Commissioners of Bernalillo County's Response to Plaintiff's First Set of Requests for Production at 2, filed April 9, 2018 (Doc. 38-8)(“Bernalillo County RFP Resp. to Plaintiff's First Set”). Bernalillo County responded: “The following was produced on January 24, 2018: 000554-000566 Report on MDC and 000567-000578 Report on MDC.” Bernalillo County RFP Resp. to Plaintiff's First Set at 2. Tanner contends that Bernalillo County's response is “not responsive” to her RFP No. 5, because Dr. Greifinger's reports “fail to include the records reviewed by Dr. Greifinger during his April 2016 and November 2016 site visits.” Motion to Compel RFP No. 5 at 4-5. Tanner contends that the Bernalillo County RFP Resp. to Plaintiff's First Set are untimely, because Bernalillo County filed them more than 30 days after the Rule 26(f) discovery conference, held pursuant to rule 26(f) of the Federal Rules of Civil Procedure on February 6, 2018. See Motion to Compel RFP No. 5 at 4.

         a. The Motion to Compel RFP No. 5.

         Tanner contends that RFP No. 5 seeks the Dr. Greifinger Documents -- records which Dr. Greifinger reviewed during his April, 2016, and November, 2016, site visits as the court-appointed medical expert in the McClendon litigation -- and that the Dr. Greifinger Documents informed the written reports Dr. Greifinger prepared after each site visit, in which Tanner alleges that Dr. Greifinger documented “serious problems with medical care at MDC which are relevant to Plaintiff's claims in this litigation.” Motion to Compel RFP No. 5 at 1-3. Tanner argues that Judge Parker entered an order in McClendon granting the plaintiffs' class counsel access to the Dr. Greifinger Documents, subject to a confidentiality order.

The records subject to the discovery order in the McClendon litigation include: “(1) the Continuous Quality Improvement and quality assurance reports; (2) the Mortality Review Reports; . . . (3) the Stellman Matrix, [4] a report prepared by the County's contract compliance officer, Dr. Roberta Stellman, ” and “several documents prepared by Dr. Ron Shansky and Dr. Kenneth Ray, the County's compliance contractors, ” See McClendon v. City of Albuquerque et al., No. 95 CV 024 JAP/ACT, Doc. 1275, at 2-3 (D.N.M. memorandum opinion and order filed Mar. 20, 2017).

         Motion to Compel RFP No. 5 at 3. Tanner contends that Judge Parker rejected Bernalillo County's “claim that such documents are privileged or exempt from disclosure.” Motion to Compel RFP No. 5 at 3.

         Tanner contends that the Dr. Greifinger Documents are relevant for a number of reasons. See Motion to Compel RFP No. 5 at 2-3. Tanner argues that Dr. Greifinger's reports and the Dr. Greifinger Documents “indicate that county officials were on notice of the problems with medical care at MDC and failed to take timely action to remedy them” before Tanner's incarceration while pregnant, and that Tanner alleges that “the stillbirth of her baby during delivery in the MDC infirmary resulted from her lack of access to adequate medical care during her incarceration.” Motion to Compel RFP No. 5 at 2. Tanner also argues that the Bernalillo County officials' “awareness of the problems with medical care at MDC during the period from April 2016 to November 2016 is highly relevant to the claims Plaintiff asserts against the County Defendants in this litigation.” Motion to Compel RFP No. 5 at 2. Tanner seeks further discovery on the subject of the officials' awareness, so that she “can properly identify each individual County Defendant with the requisite degree of culpability by the deadline for amending her pleadings, ” and so that she can “obtain records necessary to meet the deadline for her expert disclosures.” Motion to Compel RFP No. 5 at 2-3.

         Tanner avers that she has “repeatedly sought production” of the Dr. Greifinger Documents. Motion to Compel RFP No. 5 at 3. According to Tanner, her counsel submitted an IPRA request for the Dr. Greifinger Documents on August 25, 2017, and Bernalillo County provided no records, and responded that Dr. Kenneth Ray's and Dr. Ron Shansky's[5] reports, which comprise a subset of the Dr. Greifinger Documents, “were privileged from disclosure.” Motion to Compel RFP No. 5 at 3. On November 30, 2017, Tanner submitted another IPRA request for records relating to “the quality management committee for medical care at the Metropolitan Detention Center (MDC) during the calendar year 2016” and “the McClendon Committee at MDC during the calendar year 2016.” Motion to Compel RFP No. 5 at 3-4. Bernalillo County responded, on January 9, 2018, that Metropolitan Detention could not locate information on either a quality management committee or a McClendon committee. See Motion to Compel RFP No. 5 at 4. Tanner clarified to what types of committees her request referred, in a letter to Bernalillo County's record custodian and to all of the Defendants' counsel, on January 10, 2018, and also served, on September 22, 2017, an RFP for the records at issue. See Motion to Compel RFP No. 5 at 4.Tanner alleges that Bernalillo County has made conclusory assertions that “it does not have any responsive records to produce” in response to RFP No. 5. Motion to Compel RFP No. 5 at 5. Tanner contends that, before Bernalillo County can withstand discovery based solely on that contention, it must make “[d]iligent efforts to search all reasonable sources within” its “possession, custody, or control.” Motion to Compel RFP No. 5 at 5. Here, Tanner contends, the records responsive to RFP No. 5 “do in fact exist” and “are in the County's possession, custody, or control, because those records were already identified and produced in the McClendon litigation within the past year.” Motion to Compel RFP No. 5 at 5-6. Tanner contends, furthermore, that Bernalillo County knew of the records' relevance to this litigation, because of Tanner's “IPRA requests and her discovery requests at the outset of this case.” Motion to Compel RFP No. 5 at 6. Tanner argues that the burden falls on Bernalillo County to show why it cannot timely produce the responsive records and moves to compel Bernalillo County to timely produce all responsive records. See Motion to Compel RFP No. 5 at 6.

         b. The Response to Motion to Compel RFP No. 5.

         Bernalillo County and Defendant Thomas J. Ruiz[6] (the “County Defendants”) responded. See The County Defendants' Response in Opposition to Plaintiff's Motion to Compel Defendant Bernalillo County's Response to Request for Production No. 5 [Doc. 38] at 1, filed April 23, 2018 (Doc. 39)(“Response to Motion to Compel RFP No. 5”). The County Defendants contend that Bernalillo County did not provide the Dr. Greifinger Documents in McClendon, but that, instead, “they were provided by Defendant CCS, [7] and they were provided pursuant to the provisions of a Confidentiality Order.” Response to Motion to Compel RFP No. 5 at 2. The County Defendants argue that, although, in McClendon, Bernalillo County's counsel “was provided a copy of materials produced by CCS during that litigation pursuant to the [Stipulated Confidentiality Order, No. CIV 95-0024 JAP/KBM, filed April 4, 2017 (Doc. 1276)(“First Confidentiality Order”)] in that case to view the records, ” producing the Dr. Greifinger Documents here would violate the First Confidentiality Order's terms prohibiting distribution of the documents other than as prescribed therein.[8] Response to Motion to Compel RFP No. 5 at 2. The County Defendants also inquire why Tanner does not seek “the relevant documents from CCS” directly. Response to Motion to Compel RFP No. 5 at 3. The County Defendants contend that, pursuant to the First Confidentiality Order, they are prohibited from reviewing the Dr. Greifinger Documents to effectively debate their relevance or the applicability of any privileges, and that Tanner should seek the Dr. Greifinger Documents directly from Defendant Correct Care Solutions, LLC (“Correct Care”). See Response to Motion to Compel RFP No. 5 at 3.

         c. The Reply to the Motion to Compel RFP No. 5.

         Tanner replied. See Plaintiff's Reply to Defendant Bernalillo County's Response to Motion to Compel Regarding Request for Production No. 5 at 1, filed May 7, 2018 (Doc. 43)(“Reply to Motion to Compel RFP No. 5”). Tanner argues that Bernalillo County has possession, custody, or control of at least some of the Dr. Greifinger Documents, although Correct Care may also have possession, custody or control over some. See Reply to Motion to Compel RFP No. 5 at 2. Tanner avers that she requests the Dr. Greifinger Documents from both Correct Care and the County Defendants, but that no Defendant has “provided a privilege log or other description identifying the types or categories of records involved or which Defendant has custody of which particular records.” Reply to Motion to Compel RFP No. 5 at 2. Tanner argues that the Court may take judicial notice of some basic information from the McClendon court filings, including that Bernalillo County “is a party to the McClendon litigation, but CCS is not.” Reply to Motion to Compel RFP No. 5 at 2. Tanner contends that Judge Parker entered an order in which

the Court ordered the County and its medical contractor . . . to provide the following documents to Plaintiff Intervenors: (1) the Continuous Quality Improvement and quality assurance reports; (2) the Mortality Review Reports; and (3) the Stellman Matrix, a report prepared by the County's contract compliance officer, Dr. Roberta Stellman.

McClendon, No. 95 CV 024 JAP/ACT, 2017 WL 3405588, at *1 (D.N.M. March 20, 2017)(Parker, J.)(referencing the Order on Renewed Objections). Tanner contends that Judge Parker concluded that the “same types of documents were reviewed by Dr. Greifinger for his April 2016 and November 2016 site visits.” Reply to Motion to Compel RFP No. 5 at 2 (citing McClendon, 2017 WL 3405588, at *1). Tanner notes that Judge Parker rejected Bernalillo County's and its medical contractor at the time, Correctional Healthcare Companies', claim of privilege for the Dr. Greifinger Documents. See Reply to Motion to Compel RFP No. 5 at 2.

         Regarding the First Confidentiality Order and the Stipulated Confidentiality Order, No. CIV 95-0024 JAP/KBM, filed April 28, 2017 (Doc. 1285)(“Second Confidentiality Order”)(collectively, the “Confidentiality Orders”), Tanner contends that the Confidentiality Orders do not cover all of the records which RFP No. 5 requests. Reply to Motion to Compel RFP No. 5 at 3. The First Confidentiality Order covers “Continuous Quality Improvement and Quality Assurance reports (Quality Reports), and reports on deaths of class and subclass members (Mortality Review Documents), ” First Confidentiality Order at 1, and the Second Confidentiality Order covers “documents prepared by Drs. Ray and Shansky, ”[9] Second Confidentiality Order at 1. See Reply to Motion to Compel RFP No. 5 at 3 (citing Confidentiality Orders). Tanner notes that neither confidentiality order references the Stellman Matrix or any other record provided to Dr. Greifinger not encompassed by Confidential Information as each Confidentiality Order defines that term, but, Tanner avers, Dr. Greifinger must have reviewed records in addition to those covered by the Confidentiality Orders, based on the terms of the settlement agreement that preceded his November, 2016, site visit. See Reply to Motion to Compel RFP No. 5 at 3.

         Tanner then addresses the records specifically identified in the Confidentiality Orders. See Reply to Motion to Compel RFP No. 5 at 4. Tanner contends that, pursuant to its “Medical Services Agreement with the County, Defendant CCS is required to prepare and submit reports regarding staffing patterns and staffing vacancies to the County's contract compliance officer.” Reply to Motion to Compel RFP No. 5 at 4. See also Medical, Dental, Mental Health, Psychiatric, and Methadone Services Agreement §§ 4.1.26.1-.8, at 44-45, filed May 7, 2018 (Doc. 43-1)(“Medical Services Agreement”).[10] Tanner notes that the Medical Services Agreement also requires Correct Care to “provide a monthly staffing matrix report by the 15th of each month.” Reply to Motion to Compel RFP No. 5 at 4. See Medical Services Agreement § 4.1.26.7, at 45. Tanner argues that the contract compliance officer is a Bernalillo County employee, and not a Correct Care employee. See Reply to Motion to Compel RFP 5 at 4. See also Medical Services Agreement at 5 (stating that the term “Contract Compliance Officer, ” for the Medical Services Agreement's purposes, means “the County employee who will provide contract oversight). Tanner argues that, pursuant to Bernalillo County's policy on administrative meetings and reports, Correct Care must also produce “monthly statistical reports, ” “data necessary to complete the HSU[11] data matrix, ” and “other records to be distributed” to Metropolitan Detention's upper-level administrative staff (collectively, the “Administrative Meetings and Reports Records”). Reply to Motion to Compel RFP No. 5 at 4. Tanner contends that Bernalillo County has possession, custody, or control of all the Administrative Meetings and Reports Records, because they are “specified in contractual requirements and County policies, ” and the Confidentiality Orders define none of the Administrative Meetings and Reports Records as Confidential Information. Reply to Motion to Compel RFP No. 5 at 4-5. Tanner contends that the Administrative Meetings and Reports Records are relevant, because they are “likely to reveal the basis for Dr. Greifinger's finding that” Metropolitan Detention staff vacancies put Metropolitan Detention patients at risk of serious harm during the period preceding and overlapping with Tanner's incarceration. Reply to Motion to Compel RFP No. 5 at 5. See Report on the Medical Care at the Bernalillo County Metropolitan Detention Center (MDC) at 2 (dated November 21, 2016), filed April 9, 2018 (Doc. 38-1)(“Nov. 21, 2016 Dr. Greifinger Report”)(stating that “staff vacancies” attributable to “several practitioner resignations in July 2016, . . . put MDC patients at risk of serious harm.”).

         Tanner contends that the Medical Services Agreement also requires Correct Care to produce the QI/QA Records, and, therefore, Correct Care's QI/QA Records produced pursuant to the Medical Services Agreement are subject to Bernalillo County's possession, custody, or control. Reply to Motion to Compel RFP No. 5 at 6. Tanner argues that the QI/QA Records “likely form the basis” for Dr. Greifinger's reports' findings that there was opportunity for improvement at Metropolitan Detention with respect to pregnancy, and that there were numerous deficiencies “with respect to pregnancy, mortality review, and failure to timely implement remedies for same.” Reply to Motion to Compel RFP No. 5 at 6. Tanner contends that the QI/QA Records are “relevant to prove Defendants' negligence and deliberate indifference, as well as causation and the existence of unwritten customs or policies at MDC.” Reply to Motion to Compel RFP No. 5 at 6.

         Tanner contends that the Medical Services Agreement defines a contract monitor as “a health care professional hired by the County of Bernalillo to monitor the quality of clinical performance of the Contractor and review the systems of health care delivery, ” and that the contract monitor is not a Correct Care employee. Reply to Motion to Compel RFP No. 5 at 6-7. Tanner argues, therefore, that Bernalillo County has possession, custody, or control over the reports its contract monitor prepared or distributed. See Reply to Motion to Compel RFP No. 5 at 7. Tanner contends that Dr. Greifinger need not have relied on the documents which Drs. Ray and Shansky prepared; the fact that “they were provided to Dr. Greifinger for the site visits in question is enough to meet the threshold of relevance.” Reply to Motion to Compel RFP No. 5 at 7. Tanner argues that the Defendants waive any claim to privilege by failing to timely assert one. See Reply to Motion to Compel RFP No. 5 at 7.

         Tanner avers that, by phrasing RFP No. 5 in terms of records already produced to Dr. Greifinger, Tanner focused the request on the records most likely to be relevant, the Dr. Greifinger Documents, and minimized the burden on the Defendants of producing those records in this litigation. See Reply to Motion to Compel RFP No. 5 at 7-8. Tanner argues that the Confidentiality Orders do not preclude Bernalillo County from producing records responsive to RFP No. 5, because the Confidentiality Orders do not cover all of the Dr. Greifinger Documents. See Reply to Motion to Compel RFP No. 5 at 9. Tanner contends that, to read the Confidentiality Orders as applying to every record which Dr. Greifinger received or on which he relied “would produce absurd results, because his reports already reference and rely upon several public records which the County has already produced in discovery or in its response to IPRA requests.” Reply to Motion to Compel RFP No. 5 at 10. Tanner argues that “[i]f any document became ‘confidential' merely because Dr. Greifinger received, reviewed, referenced, or relied upon it in preparing his reports, then everyone including the Court itself would already be in violation of the McClendon confidentiality orders due to past public disclosures of such documents.” Reply to Motion to Compel RFP No. 5 at 10. Tanner argues that, even if the Court determines the Confidentiality Orders cover more than Tanner contends that they are intended to cover, “the logical response to such a mistake would be to amend the orders, ” rather than deny Tanner access to the records. Reply to Motion to Compel RFP No. 5 at 11. Tanner avers that nothing in the Confidentiality Orders precludes amendment. See Reply to Motion to Compel RFP No. 5 at 11.

         Tanner next asserts that she will pursue any alternative remedies or procedural formalities necessary to obtain the records she requests. See Reply to Motion to Compel RFP No. 5 at 11. Tanner avers that, without a privilege log, or specific and complete description of the records that are responsive to RFP No. 5 -- which the Defendants are unwilling to produce -- “she is unable to evaluate what type of confidentiality order, if any, is appropriate for those records.” Reply to Motion to Compel RFP No. 5 at 11. Tanner therefore requests that the Court assist her in identifying which Defendant possesses the responsive records and in requiring that Defendant to provide a log or descriptive tool to identify the responsive records by category. See Reply to Motion to Compel RFP No. 5 at 11. Tanner also informs the Court that she stands ready to intervene in McClendon to amend the Confidentiality Orders as necessary, but that she has not intervened, so that the Court can address whether intervening is the most efficient avenue for resolving the issue. See Reply to Motion to Compel RFP No. 5 at 12.

         2. The Motion to Compel RFP No. 12 Briefing.

         On June 4, 2018, Tanner filed a second Motion to Compel, a companion motion to the Motion to Compel RFP No. 5. See Motion to Compel RFP No. 12 at 1. Tanner's RFP No. 12 states:

Please produce the records in your possession, custody, or control that you or your agents or principals provided to the court-appointed medical expert in the McLendon [sic] litigation, Dr. Robert Greifinger, during his April 2016 and November 2016 site visits, including but not limited to Continuous Quality Improvement (CQI) and Quality Assurance (QA) reports, Mortality Review Reports, matrices or reports regarding medical care, and documents prepared or signed by Dr. Ron Shansky and Dr. Kenneth Ray.

         Correct Care Solutions, LCC's [sic] Responses and Objections to Plaintiff's First Requests for Production at 11, filed June 4, 2018 (Doc. 53-2)(“CCS' Resp. and Obj. to Plaintiff's First RFPs”). Correct Care responded:

CCS, through counsel, objects to this Request and respectfully directs Plaintiff to General Objections Nos. 2, 4 through 6[12] above. CCS, through counsel, further objects to this Request because it seeks information that is not relevant to Plaintiff's claim or CCS's defenses. CCS, through counsel, further objects to this Request because the phrase “your agents or principals” is unclear and calls for a legal conclusion.

         CCS' Resp. and Obj. to Plaintiff's First RFPs at 11. In RFP No. 12, Tanner reiterates the same request for the Dr. Greifinger Documents but directs the request to Correct Care rather than to Bernalillo County. See Motion to Compel RFP No. 12 at 1. Tanner incorporates her prior briefing on the Motion to Compel RFP No. 5 and states additional grounds for granting the Motion to Compel RFP No. 12. See Motion to Compel RFP No. 12 at 2.

         a. The Motion to Compel RFP No. 12.

         First, Tanner states that she has “corresponded and conferred” with Correct Care several times “in an attempt to informally resolve” the issues in the Motion to Compel RFP No. 12 and in other discovery motions. Motion to Compel RFP No. 12 at 2-5. Tanner avers that, as “a result of the conferencing and correspondence to date, ” and because the issues are intertwined with those in the Motion to Compel RFP No. 5, she decided to separate the Motion to Compel RFP No. 12 from the Motion to Compel Ans. and Resp. Motion to Compel RFP No. 12 at 5. Tanner contends that there is or may be overlap between the records in Correct Care's possession, custody, or control responsive to RFP No. 12, the records in Bernalillo County's possession, custody, or control responsive to RFP No. 5, and the records subject to the Confidentiality Orders. See Motion to Compel RFP No. 12 at 5. Tanner argues that allowing Tanner to intervene in McClendon to amend the Confidentiality Orders would not disrupt the McClendon parties' efforts to achieve prospective relief at Metropolitan Detention pursuant to their settlement agreement. See Motion to Compel RFP No. 12 at 6. However, to mitigate any potentially disruptive impact that Tanner's intervention might have on the McClendon parties, Tanner asks the Court to first issue a threshold ruling regarding whether the records in question are relevant, nonprivileged, and subject to the Confidentiality Orders, before Tanner petitions for any relief in McClendon. See Motion to Compel RFP No. 12 at 7. Tanner proposes that, if the Court determines the requested records are relevant and nonprivileged, but determines that Tanner need not intervene in McClendon to secure access to them, the Court “can simply enter an appropriate confidentiality order in the present case which directs both Defendant CCS and Defendant Bernalillo County to produce the records at issue to Plaintiff's counsel with sufficient protections for any subcategories of those records which are lawfully subject to restrictions on disclosure.” Motion to Compel RFP No. 12 at 7. Tanner proposes that, if, however, the Court determines that the Confidentiality Orders require amendment, the Court first rule that the records are relevant to this case and that Correct Care's objections to their production are overruled, and second, that the Court refer the issue of amending the Confidentiality Orders to the McClendon court by means of a sua sponte order to show cause or that Tanner refer the issue to the McClendon court by a motion to intervene. See Motion to Compel RFP No. 12 at 8.

         Turning to the relevance question, Tanner asserts that “generic, boilerplate objections” do not excuse Correct Care complying with Tanner's discovery request. Motion to Compel RFP No. 12 at 8. Tanner asserts that RFP No. 12 seeks information relevant to Tanner's claims “that she was denied access to necessary medical care for her serious medical needs due to inadequate staffing -- as well as inadequate training and supervision of existing staff -- during the period leading up to and including her incarceration at MDC.” Motion to Compel RFP No. 12 at 9. Tanner also contends that the deficiencies Dr. Greifinger's report identified, which the Dr. Greifinger Documents likely substantiated, “are relevant to prove Defendants' negligence and deliberate indifference, as well as causation and the existence of unwritten customs or policies at MDC.” Motion to Compel RFP No. 12 at 9.

         Tanner next avers that RFP No. 12 “is not overbroad, unduly burdensome, oppressive, or excessive, and does not embark on an improper or speculative ‘fishing expedition.'” Motion to Compel RFP No. 12 at 10. Tanner contends that RFP No. 12 imposes no undue burden on Correct Care where it simply asks Correct Care “to reproduce the same set of records that were already compiled and produced to other counsel in the McClendon litigation.” Motion to Compel RFP No. 12 at 10-11. Tanner argues RFP 12 is not overbroad, because “it is limited to the time period most likely to uncover evidence relating to Plaintiff's claims.” Motion to Compel RFP No. 12 at 11. Tanner argues that, without a privilege log or specific description showing the volume or categories of records responsive to RFP No. 12, “there is no basis in the record to exclude any portion of the requested records as too voluminous or lacking in probative value, ” and there is no way to reasonably determine whether privileges apply to the specific records. Motion to Compel RFP No. 12 at 11. Regarding privilege, Tanner also argues that, under Judge Parker's reasoning in McClendon, “no viable claim of privilege could apply to the requested records, because any holder of that privilege has already waived it by disclosing the records at issue to Dr. Greifinger, who is a court-appointed expert and not a party representative in that case.” Motion to Compel RFP No. 12 at 12. Tanner also contends that Correct Care waived any claim of privilege by failing to timely assert them in response to RFP No. 12, and that Judge Parker rejected application of the self-critical analysis privilege and similar statutory privileges in McClendon. See Motion to Compel RFP No. 12 at 12.

         Tanner addresses Correct Care's objection to RFP No. 12 that the phrase “your agents or principals” is unclear and asks for a legal conclusion. Motion to Compel RFP No. 12 at 12. Tanner contends that she clarified the meaning of that phrase in a letter to CCS, see Letter from Arne R. Leonard to the Defendants' Counsel (dated May 7, 2018), filed June 4, 2018 (Doc. 52-2)(“May 7 Letter”), and that RFP No. 12 “does not ask for a legal conclusion when it merely calls for the responding party to state its application of the law to a particular set of facts, ” Motion to Compel RFP No. 12 at 13. Tanner avers that records responsive to RFP No. 12 are in part in Correct Care's possession and in part in Bernalillo County's possession, and that discovery requests are not objectionable “merely because they call for production of records which may be available from another source.” Motion to Compel RFP No. 12 at 13-14. Tanner argues that not all responsive records are subject to the Confidentiality Orders and that Tanner offered to enter a confidentiality order for any subcategory of responsive records “that lawfully requires restrictions on disclosure.” Motion to Compel RFP No. 12 at 15. Finally, Tanner requests that the Court impose sanctions if the records are not timely produced. See Motion to Compel RFP No. 12 at 15.

         b. The Response to Motion to Compel RFP No. 12.

         Correct Care responds. See Correct Care Solutions, LLC's Response in Opposition to Plaintiff's First Motion to Compel, filed July 2, 2018 (Doc. 61)(“Response to Motion to Compel RFP No. 12”). Correct Care argues that the Dr. Greifinger Documents are outside discovery's scope, a court order protects them from discovery, and, even if they are within discovery's scope and a court order does not protect them from discovery, the Court should recognize Correct Care's self-critical analysis privilege and foreclose the Dr. Greifinger Documents' discovery. See Response to Motion to Compel RFP No. 12 at 1. Correct Care contends that court-appointed expert reports and the materials incorporated in them “are not automatically discoverable, if they are discoverable at all, by an individual litigant in separate litigation.” Response to Motion to Compel RFP No. 12 at 1-2. Specifically, Correct Care contends that “discovery that might be permitted in a class action to ensure the safety of all inmates” may not be permitted in “an individual inmate's lawsuit seeking monetary damages for inadequate health care.” Response to Motion to Compel RFP No. 12 at 2. Correct Care argues, furthermore, that where a non-class plaintiff has access to underlying medical records, he or she does not need the healthcare providers' QI documents. See Response to Motion to Compel RFP No. 12 at 2.

         Correct Care contends:

A stipulated confidentiality order in McClendon, et. al. v. City of Albuquerque, et. al., No. 6:95-cv-00024-JAP-KBM, Document 1276, requires CCS, by virtue of its contract with Bernalillo County, to produce to a court-appointed expert information that otherwise would be immune from discovery or barred from evidence under the Patient Safety and Quality Improvement Act of 2005 (the “PSQIA”), 42 U.S.C. § 299b-21 et. seq.; the New Mexico Review Organization Immunity Act (“ROIA”), NMSA 1978, §§ 41-9-1 to -7, or the self-critical analysis privilege partially recognized in Weekoty v. United States, 30 F.Supp.2d 1343, 1347-48 (D.N.M. 1998)[(Hansen, J.)].

         Response to Motion to Compel RFP No. 12 at 6. Correct Care argues the First Confidentiality Order is narrowly drafted; does not waive any claim that the Dr. Greifinger Documents are confidential, protected, privileged, and proprietary; permits disclosure only to “three narrow categories of people” for limited purposes; does not permit persons granted access to make notes, copies, or summaries of the documents; requires recipients to make reasonable efforts to safeguard against accidental disclosure; and requires recipients to return all documents within 30 days of the McClendon litigation's termination. Response to Motion to Compel RFP No. 12 at 7. In summary, Correct Care argues that, “absent an order from the McClendon Court directing it to produce documents, or an Order of this Court directing it to violate the McClendon order, CCS is compelled to withhold documents because they are and continue to be subject to another court's protection.” Response to Motion to Compel RFP No. 12 at 7-8. Correct Care avers that the Court should not negate the McClendon court's orders. See Response to Motion to Compel RFP No. 12 at 14.

         Correct Care requests that, based on public policy, congressional intent in enacting the PSQIA, and this case's particular circumstances, the Court should deny Tanner's motion and protect the Dr. Greifinger Documents from discovery. See Response to Motion to Compel RFP No. 12 at 14. Correct Care contends that the Court should recognize a “fuller version” of the self-critical analysis privilege than the Honorable C. LeRoy Hansen, then-United States District Judge for the United States District Court for the District of New Mexico recognized in Weekoty v. United States, 30 F.Supp.2d 1343, 1347-48 (D.N.M. 1998)(Hansen, J.)(“Weekoty”), because Tanner's lawsuit contains only individual claims, and no class claims, and “the public importance of protecting the QI process at the MDC outweighs” Tanner's private interest. Response to Motion to Compel RFP No. 12 at 15. Correct Care avers that every state has some evidentiary privilege for medical peer review information. See Response to Motion to Compel RFP No. 12 at 15. Correct Care asserts that if the Court fails to protect Correct Care's QI efforts from discovery, the threat of discovery will chill those efforts, and that harm outweighs the benefit of disclosure, because withholding QI information in an individual lawsuit alleging individual harm has no deleterious effect on the party seeking discovery. See Response to Motion to Compel RFP No. 12 at 15.

         c. The Reply to Motion to Compel RFP No. 12.

         Tanner replies. See Plaintiff's Reply to Defendant Correct Care Solutions, LLC's Response to Plaintiff's First Motion to Compel Response to Plaintiff's Request for Production No. 12 (Doc. 61), filed July 16, 2018 (Doc. 65)(“Reply to Motion to Compel RFP No. 12”). Tanner first asserts that Correct Care abandoned, waived, or forfeited certain issues “by failing to specifically support them with citation to relevant authority or evidence in its response.” Reply to Motion to Compel RFP No. 12 at 1. Tanner contends that Correct Care has thereby waived the following objections: that RFP No. 12 unduly burdens it; that the Dr. Greifinger Documents are subject to attorney-client privilege, work product privilege, or a privilege for materials created in anticipation of litigation; that RFP No. 12 is unclear; that RFP No. 12 asks for a legal conclusion; and that records responsive to RFP No. 12 are in Metropolitan Detention reports that Tanner already obtained from Metropolitan Detention by IPRA request. See Reply to Motion to Compel RFP No. 12 at 1-2. Tanner addresses Correct Care's self-critical analysis privilege but notes that she requests the Court deem it waived, because the privilege “was not specifically raised in Defendant's original objections served concurrently with its response to RFP No. 12.” Reply to Motion to Compel RFP No. 12 at 2.

         Tanner argues that the requested records are within discovery's scope, because, rather than asking for unfettered access to all of the McClendon litigation discovery, she requests only the Dr. Greifinger Documents, a “discrete category of records in a specific time period based on specific concerns raised in Dr. Greifinger's public reports for that time period.” Reply to Motion to Compel RFP No. 12 at 2-3. Tanner argues that the caselaw which Correct Care cites in the Response to Motion to Compel RFP No. 12 is inapposite, because it addresses medical negligence tort claims that did not arise in a correctional facility subject to a federal civil-rights consent decree. See Reply to Motion to Compel RFP No. 12 at 3. Tanner argues that, in the context of federal civil-rights claims arising in a correctional facility, and where the peer-review process about which records are requested is at issue, courts have allowed discovery. See Reply to Motion to Compel RFP No. 12 at 4. Tanner contends that both circumstances are present in her litigation, because she raises federal civil-rights claims arising in a correctional facility, and because she alleges that the peer-review process and QI measures which the McClendon consent decree and Correct Care's public contract with Bernalillo County mandated were deficient in the time period preceding and overlapping with Tanner's incarceration at Metropolitan Detention. See Reply to Motion to Compel RFP No. 12 at 4.

         Tanner advances several reasons that federal civil-rights claims differ from ordinary medical negligence claims such as those that Correct Care's cited caselaw addresses. See Reply to Motion to Compel RFP No. 12 at 5. First, she contends that federal civil rights claims involve deliberate-indifference allegations and “not just negligence.” Reply to Motion to Compel RFP No. 12 at 5. Because a plaintiff must make a more substantial showing to allege deliberate indifference than that required to show negligence, Tanner contends that more permissive discovery is appropriate where claims involve deliberate indifference. See Reply to Motion to Compel RFP No. 12 at 5. Tanner argues that correctional health care is a subset of medical care with particular records that are relevant to the litigation. See Reply to Motion to Compel RFP No. 12 at 5. Tanner argues that, in the caselaw which Correct Care cites, the parties resisting discovery provided privilege logs or affidavits specifically identifying privilege issues for each document or record requested, whereas here, Correct Care has not produced a privilege log identifying specific responsive records that are privileged or outside of discovery's scope. See Reply to Motion to Compel RFP No. 12 at 6. Tanner avers that, in contrast to Correct Care's general assertions, Tanner identified and attached the relevant portions of Dr. Greifinger's reports to her motions, and that the Dr. Greifinger Documents, which he used to prepare those reports, are not self-critical-analysis or peer-review materials. See Reply to Motion to Compel RFP No. 12 at 7. Tanner argues that, by disclosing the records to Dr. Greifinger in McClendon, Bernalillo County already waived their confidentiality. See Reply to Motion to Compel RFP No. 12 at 7. Tanner also avers that, although portions of Dr. Greifinger's reports demonstrate Metropolitan Detention's compliance with constitutional standards, other portions of the reports demonstrate deficiencies. See Reply to Motion to Compel RFP No. 12 at 7.

         Tanner contends that the Confidentiality Orders' existence is not dispositive, because they are limited in scope and subject to amendment. See Reply to Motion to Compel RFP No. 12 at 8. Tanner reasserts her suggestion that the parties enter into a confidentiality order in this case similar to that entered in McClendon, to resolve Correct Care's concerns by limiting the Dr. Greifinger Documents' disclosure. See Reply to Motion to Compel RFP No. 12 at 9. Regarding the self-critical analysis privilege, Tanner asserts that, in McClendon, Judge Parker rejected application of that privilege to the Dr. Greifinger Documents. See Reply to Motion to Compel RFP No. 12 at 10. Finally, Tanner avers that the parties informally conferenced before filing the discovery motions. See Reply to Motion to Compel RFP No. 12 at 12.

         3. The Motion to Compel Ans. and Resp. Briefing.

         On June 4, 2018, Tanner filed another motion to compel. See Plaintiff's Motion to Compel Ans. and Resp. at 1. In the Motion to Compel Ans. and Resp., Tanner moves the Court to compel Correct Care to timely answer and respond to Plaintiff's First Set of Requests for Admission, Interrogatories, and Requests for Production, filed March 6, 2018 (Doc. 30)(“Plaintiff's First Set”), to overrule Correct Care's objections to Plaintiff's First Set, and to award sanctions as deemed appropriate. See Motion to Compel Ans. and Resp. at 1. The Motion to Compel Ans. and Resp. focuses on Correct Care's use of general objections and other problems that Tanner notes as common to several of Correct Care's discovery responses. See Motion to Compel Ans. and Resp. at 2. In this MOO, the Court focuses on the portions of the Motion to Compel Ans. and Resp. specific to the issues this MOO addresses.

         a. The Motion to Compel Ans. and Resp.

         Tanner notes that Interrogatory No. 4 and RFP No. 4 request “information and records regarding committee work which implicates the supervisory Defendants in this action and serves as a forum for identifying systemic or pre-existing problems regarding access to health care at MDC during the relevant time period.” Motion to Compel Ans. and Resp. at 7. Tanner contends that, in the McClendon litigation, Judge Parker rejected Correct Care's contentions that a self-critical analysis privilege or PSQIA privilege protects these records from disclosure, and that the recent caselaw Tanner cites in the Motion to Compel RFP No. 5 rejects application of these privileges to the Dr. Greifinger Documents. See Motion to Compel Ans. and Resp. at 7. Tanner avers, furthermore, that, even if a privilege applies to a subset of the requested materials, it “could never blanket all committee work, ” or excuse Correct Care from producing a privilege log to enable the parties and the Court to properly evaluate its privilege claims for specific records. Motion to Compel Ans. and Resp. at 8. Tanner argues, for instance, that her discovery requests ask for information from meetings other than CQI committee meetings -- at least some of which seem like policymaking body meetings subject to the Open Meetings Act, N.M. Stat. Ann. §§ 10-15-1 to -4, rather than private, self-critical analysis meetings -- at which “health care staff, other health care providers and the jail administration meet regularly to promote communication, information sharing, and to identify and resolve issues.” Motion to Compel Ans. and Resp. at 8. Tanner reiterates the relevance arguments and her willingness to enter into a confidentiality order in this litigation. See Motion to Compel Ans. and Resp. at 8-9. Tanner also reiterates that, because Correct Care asserts different types of privilege which may not be co-extensive -- such as the PSQIA and the self-critical analysis privileges -- in response to the same discovery requests, they must “identify with particularity which specific privilege applies to which specific information or records.” Motion to Compel Ans. and Resp. at 22. Tanner contends that, at the very least, Correct Care should identify meetings by date, subject, and participants, because these pieces of information “could not be subject to a colorable claim of privilege.” Motion to Compel Ans. and Resp. at 22.

         b. The Response to Motion to Compel Ans. and Resp.

         This MOO focuses on the portions of Correct Care's Response to Motion to Compel Ans. and Resp. relevant to the issues that the MOO addresses. See Correct Care Solutions, LLC's Response in Opposition to Plaintiff's Second Motion to Compel at 10, 20-21, filed July 2, 2018 (Doc. 62)(“Response to Motion to Compel Ans. and Resp.”). Correct Care withdraws its objections to Interrogatory No. 4, which requests information and documents about Correct Care's patient safety and quality improvement practices at Metropolitan Detention and clarifies its assertion of the PSQIA privilege. See Response to Motion to Compel Ans. and Resp. at 10. Correct Care asks that the Court rule

on whether it will recognize CCS's evidentiary privilege under the PSQIA; whether, if it does not recognize that privilege, it nonetheless will protect CCS's quality improvement process under the federal common law's self-critical analysis privilege; whether the Court will order CCS to produce in this litigation documents that are subject to a protective order in the McClendon litigation; and whether (and if so, how) the Court will order CCS to produce third-party medical records otherwise protected under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), 42 U.S.C. § 1320d to d-8, and its implementing regulations.

         Response to Motion to Compel Ans. and Resp. at 21.

         c. The Reply to the Motion to Compel Ans. and Resp.

         The MOO focuses on the portions of Tanner's Reply to Motion to Compel Ans. and Resp. relevant to the issues that the MOO addresses. See Plaintiff's Reply to Defendant Correct Care Solutions, LLC's Response to Second Motion to Compel and for Sanctions (Doc. 62) at 6-8, filed July 16, 2018 (Doc. 66)(“Reply to Motion to Compel Ans. and Resp.”). Tanner argues that, in addition to providing no privilege log, Correct Care presents no legal arguments to support applying a PSQIA privilege, a self-critical analysis privilege, the Confidentiality Orders' terms, or a Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d to d-8 (“HIPAA”), protective order to the records responsive to the discovery requests at issue. See Reply to Motion to Compel Ans. and Resp. at 6-7. Regarding the PSQIA privilege argument, Tanner argues that Correct Care has not met its burden of showing that PSQIA applies, because PSQIA is not a blanket protection for any information or communications created for quality control purposes. See Reply to Motion to Compel Ans. and Resp. at 7. Regarding the self-critical analysis privilege argument, Tanner contends that Correct Care attempts only to assert that privilege in response to RFP No. 12. See Reply to Motion to Compel Ans. and Resp. at 7. Tanner incorporates her arguments on the self-critical analysis privilege from the Motion to Compel RFP No. 5 and the Motion to Compel RFP No. 12 briefing. See Reply to Motion to Compel Ans. and Resp. at 7-8. Tanner contends that Correct Care has not responded to her attempts to establish an appropriate protective order for inmate medical records under HIPAA. See Reply to Motion to Compel Ans. and Resp. at 8.

         4. The Aug. 20, 2018 KBM MOO.

         The Honorable Karen B. Molzen, United States Magistrate Judge for the United States District Court for the District of New Mexico, granted the Motion to Compel Ans. and Resp. in part. See Memorandum Opinion and Order at 1, 2018 WL 3972912, at *1, filed August 20, 2018 (Doc. 81)(“Aug. 20, 2018 KBM MOO”). In the Aug. 20, 2018 KBM MOO, Magistrate Judge Molzen orders Correct Care to supplement its answers and responses to the Plaintiff's First Set within one week of the entry of the Aug. 20, 2018 KBM MOO. See Aug. 20, 2018 KBM MOO at 6. Magistrate Judge Molzen notes that Correct Care does not specify to which discovery requests its issues apply, and that Correct Care already agreed to supplement its answers and responses. See Aug. 20, 2018 KBM MOO at 5. Magistrate Judge Molzen reminds Correct Care, pursuant to rule 26(b)(5) of the Federal Rules of Civil Procedure, to include a privilege log specifically describing discoverable information that it believes is privileged or subject to protection. See Aug. 20, 2018 KBM MOO at 2. Magistrate Judge Molzen orders that, after Correct Care supplements its discovery responses, the parties confer on any actual remaining objections, and, if unable to resolve issues after conferring, the parties agree to seek informal resolution with the Court's help or to brief the remaining issues. See Aug. 20, 2018 KBM MOO at 3.

         a. Tanner's Obj. to Aug. 20, 2018 KBM MOO.

         Tanner filed objections to the Aug. 20, 2018 KBM MOO. See Tanner's Obj. to Aug. 20, 2018 KBM MOO. Tanner objects to the portions of the Aug. 20, 2018 KBM MOO “which declined to rule on the merits of Plaintiffs' [Motion to Compel Ans. and Resp.] on the grounds that doing so would constitute an advisory opinion, and which declined to impose the sanctions requested in Plaintiffs' motion at this juncture.” Tanner's Obj. to Aug. 20, 2018 KBM MOO at 1. Tanner requests that the Court “modify and set aside” those portions of the Aug. 20, 2018 KBM MOO, and either rule on the merits of the Motion to Compel Ans. and Resp. and on the matter of sanctions, or otherwise remand the matter to Magistrate Judge Molzen for rulings on those issues in light of the current record, which includes Correct Care's supplemental responses, see Correct Care Solutions, LLC's Second Supplemental Answers and Objections to Plaintiff's First Set of Interrogatories, filed September 4, 2018 (Doc. 83-1)(“CCS' Second Supp. Ans. and Obj. to Plaintiff's First Set”); Correct Care Solutions, LLC's First Supplemental Responses and Objections to Plaintiff's First Requests for Production, filed September 4, 2018 (Doc. 83-2)(“CCS' First Supp. Resp. and Obj. to Plaintiff's First RFPs”); and its privilege log, see Correct Care Solutions, LLC's First Privilege Log, filed September 4, 2018 (Doc. 83-3)(“First Privilege Log”), attached to Tanner's Obj. to Aug. 20, 2018 KBM MOO as exhibits, Tanner's Obj. to Aug. 20, 2018 KBM MOO at 1. Tanner also attached a Letter from Arne R. Leonard to Alfred A. Park and Geoffrey D. White (dated August 31, 2018), filed September 4, 2018 (Doc. 83-4)(“Aug. 31, 2018 Letter”), and a Summary of Parties' Positions on Plaintiff's Discovery Requests to CCS as of August 31, 2018, filed September 4, 2018 (Doc. 83-4)(“Aug. 31, 2018 Status Summary Table”). See Tanner's Obj. to Aug. 20, 2018 KBM MOO at 1. Tanner contends that the record is sufficient for Magistrate Judge Molzen to rule. See Tanner's Obj. to Aug. 20, 2018 KBM MOO at 1-3. Tanner contends that the First Privilege Log does not support its privilege claims or cover all of the records for which it asserts a privilege or protection from disclosure. See Tanner's Obj. to Aug. 20, 2018 KBM MOO at 9. Tanner notes that the First Privilege Log describes rosters, agendas, minutes, and notes for CQI meetings, QI meetings, Medical Advisory Committee meetings, team meetings, staff (team) meetings, use-of-force-policy-training attendance, and attendance. See Tanner's Obj. to Aug. 20, 2018 KBM MOO at 10. Tanner notes “there is no admissible evidence before the Court that these types of meetings were for purposes of reporting to a [Patient Safety Organization (‘PSO')] under the PSQIA or consist of deliberations or analysis of a patient safety evaluation system which qualifies under the PSQIA.” Tanner's Obj. to Aug. 20, 2018 KBM MOO at 10. Tanner avers that the records which Correct Care describes do not meet the foundational requirements for records qualified for protection under the PSQIA privilege. See Tanner's Obj. to Aug. 20, 2018 KBM MOO at 10.

         b. CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO.

         Correct Care responds to Tanner's Obj. to Aug. 20, 2018 KBM MOO. See Correct Care Solutions, LLC's Response Opposing Plaintiff's Rule 72(A) Objections to Magistrate Judge's Memorandum Opinion and Order [Document 83], filed October 31, 2018 (Doc. 106)(“CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO”). Correct Care argues that the Court should summarily deny Tanner's Obj. to Aug. 20, 2018 KBM MOO, because Tanner has not made a good-faith effort to meet and confer with the Defendants, pursuant to rule 37(a) of the Federal Rules of Civil Procedure and Local Rule 7.1. See CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 5-6. Correct Care notes that Tanner's repeated offer to enter into a qualified protective order under HIPAA is not sufficient evidence of Tanner's willingness to negotiate with the Defendants, because HIPAA “requires such a protective order before protected health information may be disclosed. Thus, Plaintiff is merely ‘offering' to comply with federal law.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 5-6 (internal quotation marks in original, signifying emphasis and not quotation). Correct Care contends that a good-faith effort to meet and confer pursuant to federal and local procedural rules requires more than “a single letter that restates a party's positions on the items of discovery.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 6. Correct Care cites to Benavidez v. Sandia National Laboratories, 319 F.R.D. 696 (D.N.M. 2017)(Browning, J.)(“Benavidez”), in which the Court held that, to satisfy the good-faith meeting-and-conference requirement, “there must be some simultaneous, or sufficiently detailed, comparison of views.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 6 (internal quotation marks omitted)(quoting Benavidez, 319 F.R.D. at 724). Correct Care contends that, in Benavidez, the Court concluded that the plaintiff did not confer in good faith where the plaintiff “waited until near the end of the meet-and-confer deadline to raise discovery issues, ” raised discovery issues in a single letter, and declined the defendant's suggestion to extend the deadline so the parties could discuss discovery issues. CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 6 (citing Benavidez, 319 F.R.D. at 724). Correct Care also cites to Zuniga v. Bernalillo County, No. CIV 11-0877 RHS/ACT, 2013 WL 12333609 (D.N.M. Jan. 10, 2013)(Torgerson, M.J.)(“Zuniga”), in which the Honorable Alan C. Torgerson, United States Magistrate Judge for the United States District Court for the District of New Mexico, held that, in the District of New Mexico, the meet-and-confer requirement “cannot be complied with by merely exchanging letters setting forth each parties [sic] position.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 6-7 (internal quotation marks omitted)(alterations added by CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO)(quoting Zuniga, 2013 WL 12333609, at *2 n.1). Here, Correct Care asserts that Tanner “wrote one (1) letter and agreed to extend the deadline to file motions to compel one (1) time. Substantively, that is all she did.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 11. Correct Care continues:

Plaintiff did engage in one (1) discussion with CCS about supplementation, but Plaintiff took the hardline position that CCS's only recourse would be to produce everything Plaintiff demanded, after which Plaintiff would decide whether any privilege, immunity, or objection applied. CCS declined to let Plaintiff assume the Court's role but agreed to work with Plaintiff to try to craft a protective order. However, Plaintiff filed her [Motion to Compel Ans. and Resp.] three (3) days before the deadline to file motions to compel was set to expire, and without checking back with CCS about the protective order.

         CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 11. Correct Care argues that Tanner's efforts do not meet the Benavidez criteria, because Tanner “simply wrote a letter restating her position, ” and, although Tanner “met telephonically with CCS, Plaintiff simply maintained her position . . . . More is required.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 12.

         Correct Care avers that boilerplate discovery objections are permissible, and the Court should uphold them, “where the discovery at issue is facially objectionable.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 10 (citing Cotracom Commodity Trading Co. v. Seabord Corp., 189 F.R.D. 655, 666 (D. Kan. 1999)(Rushfelt, M.J.)(upholding objections to requests for “all documents relating to” and “all documents reflecting” various issues). Correct Care argues that, when faced with objections which a litigant finds overbroad or boilerplate, the proper approach is to meet and confer pursuant to the federal and local procedural rules, and not to file motions to compel. See CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 11. Correct Care also argues that Tanner relies on two cases “for her position that CCS' objections” are “wrongly asserted, ” and that these cases -- Liguria Foods, Inc. v. Griffith Laboratories, Inc., 320 F.R.D. 168 (N.D. Iowa 2017)(Bennett, J.), and Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014)(Horan, M.J.) -- are not authoritative, and “articulate approaches to discovery objections that do not appear consistent with Supreme Court precedent.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 13.

         Correct Care also requests that the Court overrule Tanner's Obj. to Aug. 20, 2018 KBM MOO, because Tanner “is using discovery motions as a tool of strategic gamesmanship, ” which the fact that Tanner “would only consider an agreement not to pursue CCS's self-critical analysis if CCS showed her the self-critical analysis first” exemplifies. CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 16. Correct Care requests that the Court “overrule Plaintiff's Objections and uphold [the Aug. 20, 2018 KBM MOO] granting in part and denying in part Plaintiff's [Motion to Compel Ans. and Resp.] and sanctions request.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 19. Correct Care also requests that the Court decline to “reward Plaintiff with additional discovery, or sanctions, where she persists in withholding relevant and discoverable information from CCS.” CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 20.

         c. Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO.

         Tanner replies. See Plaintiffs' Reply to Correct Care Solutions, LLC's Response to Rule 72(A) Objections (Doc. 106), filed November 14, 2018 (Doc. 113)(“Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO”). Tanner argues that, in the Aug. 20, 2018 KBM MOO, Magistrate Judge Molzen “did not sustain any of CCS's objections to the discovery requests at issue” and that Magistrate Judge Molzen “granted Plaintiff's motion to compel by ordering CCS to supplement its discovery responses.” Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 2. Tanner contends that the portion of the Aug. 20, 2018 KBM MOO to which she objects “is the proposition that CCS can be excused from supplementing its discovery responses until after the Court ruled on Plaintiff's motion because issuing a ruling before such supplementation occurs would amount to an advisory opinion.” Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 2. Tanner reiterates her argument that “requiring full briefing on a motion to compel and a ruling from the Court on every discovery request as a precondition for supplementation of discovery responses” is inefficient. Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 3. Tanner avers that, although the parties informally conferenced before Tanner filed the Motion to Compel Ans. and Resp., Correct Care never withdrew any of its objections or supplemented its discovery responses; Tanner was, thus, justified in filing the Motion to Compel Ans. and Resp. See Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 3-4.

         Tanner acknowledges that the general rule is that “a district court's review of a magistrate judge's ruling on Rule 72(a) objections is limited to the record presented to the magistrate judge at the time of her ruling.” Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 4. Tanner contends, however, that two unusual circumstances exist in her case that may counsel a different form of review. See Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 4. First, Tanner asserts that Magistrate Judge Molzen, in the Aug. 20, 2018 KBM MOO, invited the parties to brief the remaining issues after Correct Care supplements its discovery responses, and Tanner contends that she accepted that invitation “by filing her Rule 72(a) objections within the requisite time period.” Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 4. Second, Tanner avers that the Court indicated a willingness to resume hearing discovery motions instead of delegating them to a Magistrate Judge. See Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 4. Tanner contends that the parties have conferenced and briefed the issues extensively, and yet Correct Care has not produced supplemental discovery responses or identified responsive records for Tanner's discovery requests. See Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 6. Tanner requests that the Court hold a hearing on the discovery issues, and that the Court issue a ruling on Tanner's Obj. to Aug. 20, 2018 KBM MOO. See Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 7. Tanner also contends that there is “no deficiency in Plaintiff's conferencing efforts which justifies the denial of Plaintiff's motion for discovery sanctions.” Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 7. Regarding the self-critical analysis issue, Tanner asserts:

[I]t appears that CCS is trying to expand some form of self-critical analysis privilege beyond its lawful boundaries to avoid disclosure of evidence documenting problems at MDC which are identified in public reports and contract-compliance records that Plaintiff obtained through IPRA. These efforts to avoid discovery cannot withstand judicial scrutiny for the reasons stated in prior briefing.

         Tanner's Reply to Tanner's Obj. to Aug. 20, 2018 KBM MOO at 12.

         5. The Protective Order Motion Briefing.

         Correct Care filed a motion for a protective order. See Opposed Motion for Protective Order, filed September 5, 2018 (Doc. 84)(“ Protective Order Motion”). Correct Care contends that the Court “should enter a protective order forbidding Plaintiff from demanding third parties' medical records or other health information protected by federal or state law, including but not limited to HIPAA.” Protective Order Motion at 18. Correct Care contends that the Court should not ask Correct Care to produce a privilege log, or to seek, review, and redact these documents, in response to Tanner's written discovery, because to do so would take a significant amount of time, and would render some of the documents incomprehensible, because of HIPAA's Privacy Rule's compliance requirements for de-identifying medical records. See Protective Order Motion at 18-19.

         a. The Protective Order Motion.

         In the Protective Order Motion, Correct Care requests that the Court “enter a protective order forbidding Plaintiff from demanding information and documents Congress granted an evidentiary privilege through PSQIA.” Protective Order Motion at 19. Correct Care contends that it maintains a patient safety evaluation system pursuant to PSQIA and implemented through its integrated QI program. See Protective Order Motion at 19. Correct Care contends:

The CQI program incorporates a variety of committees, studies, reports, educational materials, and other activities and documents. These activities and documents include clinical mortality reviews (also known as morbidity and mortality reviews); patient safety and error reporting systems, and subsequent analyses; and quality improvement studies. Clinical mortality reviews; patient safety and error reporting systems, and subsequent analyses; and quality improvement studies are generated as part of CCS's patient safety evaluation system.

         Protective Order Motion at 19-20. Correct Care argues that these documents, generated through its QI initiatives, “are maintained as Patient Safety Work Product, ” and “are developed for the conduct of patient safety activities designed to improve patient safety, health care quality, and health care outcomes.” Protective Order Motion at 20. Correct Care contends that “data, reports, records, memoranda, analyses, and statements concerning patient safety or quality of care” which Bernalillo County “requires CCS to provide” as part of promulgating various policies applicable to Correct Care's functions at Metropolitan Detention, are “generated initially through the CQI program (patient safety evaluation system) for reporting to Center for Patient Safety.” Protective Order Motion at 20. Correct Care also contends that “information sought from experts, court-appointed monitors, or county employees, ” if generated pursuant to Correct Care's patient safety evaluation system under PSQIA, “would still be privileged despite its retention by someone outside CCS.” Protective Order Motion at 20.

         Correct Care also requests that the Court enter a protective order to forbid Tanner “from demanding information and documents unrelated to her claims or CCS's defenses, and further forbid[] Plaintiff from demanding CCS create documents.” Protective Order Motion at 20-21. Finally, the Court “should protect CCS' quality improvement efforts from discovery, ” even if the Court declines to recognize Correct Care's immunity under the PSQIA, because of “public policy, Congressional intent as demonstrated by PSQIA, the New Mexico Legislature's intent as demonstrated by ROIA, and the particular circumstances of this case.” Protective Order Motion at 21-22. Tanner contends that the District of New Mexico recognized the self-critical analysis privilege in the past, and that the Court “should recognize a fuller version of it here, ” because the public importance of protecting Correct Care's QI efforts from discovery “outweighs Plaintiff's private interest in her lawsuit.” Protective Order Motion at 22. Tanner argues that, like all other states, the State of New Mexico “enacted an evidentiary privilege for medical peer review information, ” recognizing the importance of protecting such information from discovery. Protective Order Motion at 22. Tanner argues that, if the Court does not protect Correct Care's quality improvement information from discovery, those efforts will be chilled or terminated, whereas, if they are protected from discovery, Tanner's lawsuit suffers no harm. See Protective Order Motion at 22.

         b. The Protective Order Motion Response.

         Tanner responded. See Plaintiff's Response to Defendant Correct Care Solutions, LLC's Motion for Protective Order (Doc. 84), filed October 31, 2018 (Doc. 105)(“Protective Order Motion Response”). Tanner begins by arguing that the Court should deny the Protective Order Motion “because CCS failed to confer as required by Rule 26(c)(1) before filing it.” Protective Order Motion Response at 1. Tanner contends that Correct Care's position “that it is not required to meet a conferencing requirement for its motion for protective order” is the opposite of the position it took in the CCS' Resp. to Tanner's Obj. to Aug. 20, 2018 KBM MOO. Protective Order Motion Response at 3. Tanner contends that judicial estoppel “precludes CCS from arguing one version of the conferencing requirement to resist Plaintiff's discovery motion and then, having obtained the benefit of a favorable ruling on that argument, ” in the Aug. 20, 2018 KBM MOO, “arguing just the opposite with respect to CCS's own, subsequently filed motion.” Protective Order Motion Response at 3.

         Tanner also argues that the Protective Order Motion is untimely, because “CCS did not file its motion for protective order concurrently with its original objections to Plaintiff's discovery requests, or by the deadline for filing discovery motions regarding those requests under Local Rule 26.6, or by the deadline for responding to Plaintiff's discovery motion.” Protective Order Motion Response at 5. Tanner contends that Correct Care did not file the Protective Order Motion until after the deadline that Magistrate Judge Molzen imposed for supplementing Correct Care's discovery responses and after Magistrate Judge Molzen issued her ruling in the Aug. 20, 2018 KBM MOO. See Protective Order Motion Response at 5. Tanner contends that, furthermore, the Protective Order Motion “attempts to raise new evidence and arguments which were not timely raised in earlier rounds of briefing, ” contrary to the Aug. 20, 2018 KBM MOO's express provisions. Protective Order Motion Response at 5-6.

         Tanner reminds that she “has stated from the outset that she will agree to more limited confidentiality orders governing certain categories of documents which are disclosed in discovery, including those for which such an order is required under HIPAA.” Protective Order Motion Response at 7. First, Tanner avers that it is less burdensome for Correct Care to produce a privilege log identifying which records pertaining to third parties' medical records or health information protected by federal or state law are at issue, than for the parties to litigate through several rounds of briefing over several months “just to find out what records and information CCS is talking about.” Protective Order Motion Response at 8. Second, Tanner argues that Correct Care “admits that disclosure is permitted under HIPAA so long as satisfactory efforts have been made to secure a qualified protective order.” Protective Order Motion Response at 8. Tanner contends that she circulated a revised draft of a proposed confidentiality agreement to all parties, but that Correct Care refuses to participate in crafting a confidentiality order to set terms upon which all parties agree. See Protective Order Motion Response at 8-9.

         Tanner contends that Correct Care “has already produced a privilege log of sorts which appears to list records responsive to Interrogatory No. 4 and RFP No. 4.” Protective Order Motion Response at 9 (citing First Privilege Log at 1). Tanner contends that, of the records listed on the First Privilege Log, Correct Care raises a HIPAA confidentiality claim only for the CQI meeting agendas for August 27, 2015, September 24, 2015, October 22, 2015, April 26, 2016, and December 29, 2016, and for the QI committee meeting minutes for February 18, 2015, August 27, 2015, September 24, 2015, and April 26, 2016. See Protective Order Motion Response at 9. Tanner contends that it would not be unduly burdensome to either place these identified documents under a confidentiality order's terms or to redact patient information from them. See Protective Order Motion Response at 9. Tanner contends the same is true for the records responsive to RFP No. 12, which the Motion to Compel RFP No. 12 and related briefing previously discussed, and which Plaintiffs' Rule 72(a) Objections to Magistrate Judge Memorandum Opinion and Order on Plaintiffs' Motions to Compel Defendant Bernalillo County's Response to Request for Production No. 5 and Defendant Correct Care Solutions, LLC's Response to Request for Production No. 12, filed September 19, 2018 (Doc. 88)(“Tanner's Obj. to Sept. 5, 2018 KBM MOO”), and related briefing, also discussed. See Protective Order Motion Response at 9. Tanner argues that, “[u]nless CCS is withholding additional responsive records from both Plaintiff's counsel and the County Defendants' litigation counsel in McClendon, the County's production of its existing compilation of records pursuant to amended confidentiality orders in McClendon imposes no significant burden on CCS.” Protective Order Motion Response at 9-10.

         Turning to RFP No. 13, Tanner avers:

Plaintiffs' RFP No. 13 requests records which document communications from the court-appointed expert in the McClendon litigation, Dr. Robert Greifinger, to CCS or its agents or principals during the period from April 2016 to the present. Plaintiff anticipates that records responsive to this request may include reports, findings, or testimony of the type that have already been produced in response to Plaintiff's IPRA requests, and that already appear in the record in this case. [See Nov. 21, 2016 Dr. Greifinger Report; Report on the Medical Care at the Bernalillo County Metropolitan Detention Center (MDC) (dated April 22, 2016), filed May 7, 2018 (Doc. 43-2)(“April 22, 2016 Dr. Greifinger Report”).] No. one has claimed that these types of reports contain third-party health information protected by HIPAA. CCS's motion makes no specific allegation that records responsive to this request are particularly voluminous or that it would be unduly burdensome to prepare a log identifying which ones require a HIPAA confidentiality order or some form of redaction to de-identify patients.

         Protective Order Motion Response at 10. Tanner avers that Correct Care, in its supplemental response to Tanner's RFP No. 15, “states that CCS keeps an internal log of pregnant inmates which is responsive to this request and supplies the basis for its supplemental answer to Interrogatory No. 12.” Protective Order Motion Response at 10. Tanner contends that a HIPAA confidentiality order would address Correct Care's concerns regarding redactions and de-identifying patients listed on the log. See Protective Order Motion Response at 10.

         Next, Tanner argues that the records she seeks are not privileged from disclosure in this litigation. See Protective Order Motion Response at 10. Tanner addresses Correct Care's federal statutory peer-review privilege claim under PSQIA, Correct Care's New Mexico statutory peer-review privilege assertion under ROIA, and Correct Care's proposed federal common-law self- critical-analysis privilege assertion. See Protective Order Motion Response at 10-11. Tanner argues that Correct Care has not adequately supported any of its three privilege claims, where:

With respect to Interrogatory No. 4 and RFP No. 14, CCS's original objections only asserted these privilege claims in a conclusory manner, without supplying a privilege log or foundational materials necessary to evaluate whether any of the requirements for asserting a privilege were satisfied. [See Correct Care Solutions, LCC's [sic] Answers and Objections to Plaintiff's First Set of Interrogatories, filed June 4, 2018 (Doc. 53-1)(“CCS' Ans. and Obj. to Plaintiff's First Set”); CCS' Resp. and Obj. to Plaintiff's First RFPs.] CCS did not supply any additional basis for asserting its privilege claims during the informal conferencing that preceded the filing of Plaintiff's discovery motion regarding those discovery requests, even though Plaintiff's counsel pointed out the absence of any basis for these claims in the letter of May 11, 2018. [See Letter from Arne R. Leonard to Alfred A. Park and Geoffrey D. White at 6-7, 12-13, 15-16 (dated May 11, 2018), filed June 4, 2018 (Doc. 53-3)(“May 11, 2018 Letter”).]

         Protective Order Motion Response at 11. Tanner contends that, although Correct Care, in its Response to Motion to Compel Ans. and Resp., stated that it would “clarify its assertion of privilege under the PSQIA” as to Interrogatory No. 4 and RFP No. 4, Correct Care's Response to Motion to Compel Ans. and Resp. provides no clarification. Protective Order Motion Response at 11 (internal quotation marks omitted)(quoting Response to Motion to Compel Ans. and Resp. at 10, 13). Tanner alleges that, in the Response to Motion to Compel Ans. and Resp., Correct Care identified no specific discovery request to which it asserts its PSQIA or self-critical analysis privilege. See Protective Order Motion Response at 11 (citing Response to Motion to Compel Ans. and Resp. at 21). Tanner avers that Correct Care's discussion of RFP Nos. 13 and 14 similarly does not discuss any privilege claims. See Protective Order Motion Response at 11 (citing Response to Motion to Compel Ans. and Resp. at 16-17). Tanner argues that Magistrate Judge Molzen ruled in the Memorandum Opinion and Order, 2018 WL 4222384, filed September 5, 2018 (Doc. 85) (“Sept. 5, 2018 KBM MOO”), that records responsive to RFP No. 12 are not privileged. See Protective Order Motion Response at 11.

         Regarding timing, Tanner suggests that the deadline for Correct Care to file the Protective Order Motion “should have been” the deadline for Correct Care's responses to Tanner's discovery motions and that Correct Care exceeded that deadline when it reasserted privilege claims after Magistrate Judge Molzen issued the Aug. 20, 2018 KBM MOO and the Sept. 5, 2018 KBM MOO. Protective Order Motion Response at 11-12. Tanner argues that, in CCS' Second Supp. Ans. and Obj. to Plaintiff's First Set, and in Correct Care Solutions, LLC's First Supplemental Responses and Objections to Plaintiff's First Requests for Production (dated Aug. 27, 2018), filed September 4, 2018 (Doc. 83-2)(“CCS' First Supp. Resp. to Plaintiff's First RFPs), Correct Care withdrew its objections to Interrogatory No. 4 and RFP No. 4, and asserted PSQIA privileges for both. See Protective Order Motion Response at 12 (citing CCS' Second Supp. Ans. and Obj. to Plaintiff's First Set at 5-6; CCS' First Supp. Responses to Plaintiff's First RFPs at 3-4). Tanner avers that, in support of Correct Care's supplemental answer to Interrogatory No. 4 and supplemental response to RFP No. 4, Correct Care provided the First Privilege Log, and the Federally-Listed PSOs, filed September 5, 2018 (Doc. 84-3)(“PSO Listing”)(an agency listing of PSOs). See Protective Order Motion Response at 12. Tanner avers that Correct Care raises no privilege claim in response to RFP No. 13, and that, in response to RFP No. 14, asserts a PSQIA privilege claim only as to “mortality reports and internal investigation records.” Protective Order Motion Response at 12 (internal quotation marks omitted)(quoting CCS' First Supp. Resp. to Plaintiff's First RFPs at 12, 15).

         Tanner contends that only Correct Care's PSQIA privilege claim remains and that Correct Care lacks good cause to excuse what Tanner argues is Correct Care's untimely assertion of privilege claims in the Protective Order Motion. See Protective Order Motion Response at 12. Tanner avers that Correct Care's PSQIA privilege claim remains where Correct Care raised it in its original discovery responses, referred to it in Response to Motion to Compel Ans. and Resp., and did not expressly waive it in either CCS' Second Supp. Ans. and Obj. to Plaintiff's First Set or in CCS' First Supp. Resp. to Plaintiff's First RFPs. See Protective Order Motion Response at 12. Tanner argues that, in the Protective Order Motion, Correct Care “provides no authority or evidence . . . to show good cause why it should be allowed to resurrect or add more privilege claims, . . . or why it could not have stated the basis for asserting its privileges more fully in its previous filings.” Protective Order Motion Response at 12. Tanner argues, furthermore, that Correct Care waived or forfeited all privilege claims aside from the PSQIA claim in response to Interrogatory No. 4, where Tanner provided Correct Care with a rule 37 letter and with time extensions in which to timely assert its privilege claims, and Correct Care did not do so. See Protective Order Motion Response at 12-13.

         On the merits of the PSQIA privilege as asserted against Interrogatory No. 4, Tanner refers to prior briefing on the subject. See Protective Order Motion Response at 13. Tanner also asserts that in Plaintiff's Response to Defendant Correct Care Solutions, LLC's Partial Objections to Memorandum Opinion and Order (Doc. 85) on Plaintiff's First Motion to Compel Response to Plaintiff's Request for Production No. 12 (Doc. 61), filed October 19, 2018 (Doc. 100)(“Tanner's Resp. to CCS' Partial Obj. to Sept. 5, 2018 KBM MOO”), Tanner “distinguished each of the authorities CCS previously cited in support of its privilege claims and explained why this federal civil-rights case against governmental defendants and a government contractor differs significantly from state-law negligence cases against a private health-care provider.” Protective Order Motion Response at 13.

         Tanner addresses what the Protective Order Motion adds in support of Correct Care's PSQIA privilege assertion -- an affidavit from Dawn Ducote, CCS' Director of CQI. See Protective Order Motion Response at 13 (citing Affidavit of Dawn Ducote in Support of Defendant Correct Care Solutions, LLC's Opposed Motion for Protective Order (executed August 30, 2018), filed September 5, 2018 (Doc. 84-2)(“Ducote Aff.”)). Tanner states that the Ducote Aff. attests that Correct Care currently has a contract with the Center for Patient Safety, listed as a PSO, see PSO Listing at 2, and that Correct Care maintains a patient safety evaluation system pursuant to PSQIA, but neither the Ducote Aff. nor the PSO Listing demonstrate that Correct Care contracted with a listed PSO in the time period around 2016 which Tanner's Interrogatory No. 4 and RFP No. 4 cover, see Protective Order Motion Response at 13-14. Tanner argues, accordingly, that documents such as the Ducote Aff., the First Privilege Log, and the PSO Listing do not satisfy the requirements for the PSQIA privilege to apply; for example, they do not indicate on which dates the documents they reference were entered into the patient safety evaluation system, and they do not expressly state that any particular document to which they refer was created for the express purpose of reporting to a PSO, both prerequisites to qualify for the PSQIA privilege. See Protective Order Motion Response at 14. Tanner argues that, by omitting important details regarding the timeline of the documents' submission to the PSO, the Ducote Aff. “gives rise to the reasonable inference that the documents in question were reported to the PSO at some later time, after they had already been utilized or commingled for other purposes such as contract compliance, use in the McClendon litigation, or preparation for other litigation.” Protective Order Motion Response at 14. Tanner posits that various factors support the reasonable inference that the documents in question were created for multiple or other purposes and are therefore outside the scope of the PSQIA privilege. See Protective Order Motion Response at 14. Tanner points to “the provisions in CCS's contract with the County, the ongoing monitoring activities in the McClendon case, and the apparent participation or collaboration between CCS's quality-assurance staff and a court-appointed expert, various County personnel including contract monitors, and alleged ‘litigation consultants.'” Protective Order Motion Response at 13-14. Tanner also contends that this case is distinguishable from other cases in which courts have granted PSQIA privileges, because Correct Care has not identified any specific documents as candidates for the PSQIA privilege or provided documents to the Court for in camera review, and the First Privilege Log does not indicate whether the records and meetings at issue were for purposes other than those for which the PSQIA provides protection. See Protective Order Motion Response at 15. Tanner argues that a party may not raise the PSQIA privilege as a blanket privilege over a general category of documents. See Protective Order Motion Response at 16 (citing Quimbey v. Community Health Sys. Prof'l Servs. Corp., No. CIV 14-0559 KG/KBM, 2017 WL 5634111, at *4, *7 (D.N.M. Nov. 22, 2017)(Molzen, M.J.)(“Quimbey”)).

         Turning to the ROIA privilege claim, Tanner avers that Quimbey's ROIA analysis is inapposite, because Quimbey applied ROIA “in the context of a diversity case involving negligence claims brought under state law.” Protective Order Motion Response at 16. Tanner argues that, because federal civil-rights law provides the rule of decision for Tanner's claims, federal law preempts ROIA, a state statutory privilege, and that the state privilege does not apply. See CCS' Protective Order Motion Response at 16-17. Tanner avers that, to the extent that federal law does not preempt the ROIA, the ROIA still does not apply for the reasons Quimbey articulates. See CCS' Protective Order Motion Response at 17.

         Tanner also states that federal courts are reluctant to create federal common-law privileges such as Correct Care's purported self-critical analysis privilege, when Congress has expressly spoken on the subject, as it has done in the PSQIA. See Protective Order Motion Response at 17. Tanner contends that the Court should preclude Correct Care from simultaneously raising a PSQIA privilege and a self-critical analysis privilege. See Protective Order Motion Response at 18. Tanner contends that, where Correct Care limited its objections to the PSQIA privilege in prior briefing, the Court should not allow Correct Care to raise the self-critical analysis privilege again in the Protective Order Motion. See Protective Order Motion Response at 18. Tanner contends that the Court should not allow Correct Care to add a privilege log to the record presenting more specific arguments at this juncture, because to allow the addition of a privilege log now “would also be unfair and contrary to the discovery rules.” Protective Order Motion Response at 18. Tanner requests that the Court deny the Protective Order Motion, award Tanner sanctions pursuant to rules 26(c)(3) and 37(a)(5) of the Federal Rules of Civil Procedure and grant such further relief as is fair and just, without prejudice to entry of limited and lawful confidentiality orders requiring production of records and information subject to lawful restrictions. See Protective Order Motion Response at 22.

         c. The Protective Order Motion Reply.

         McMurray, Luna, Sanchez, Manquero, Mercer, Kossman, and Correct Care (the “Health Care Defendants”) reply. See Reply in Support of Opposed Motion for Protective Order, filed November 14, 2018 (Doc. 111)(“Protective Order Motion Reply”). The Health Care Defendants contend that, after Tanner filed the Protective Order Motion Response, another question arises: “Did Plaintiff give the Court sufficient reason to deny the Health Care Defendants a protective order?” Protective Order Motion Reply at 1. The Health Care Defendants reiterate arguments from the Protective Order Motion that Correct Care attempted to discuss discovery with Tanner, but that Tanner refused to negotiate and instead demanded that Correct Care produce everything. See Protective Order Motion Reply at 2. The Health Care Defendants contend that Correct Care exceeded rule 26(c)'s requirements, by sending Tanner the Protective Order Motion for her review, although Tanner filed her Motion to Compel RFP No. 5 and Motion to Compel RFP No. 12 “unexpectedly before the end of the deadline for negotiations.” Protective Order Motion Reply at 2. The Health Care Defendants also contend that the meet-and-confer requirement does not require litigants to engage in futile conference, where the opposing party seeks to change a party's clearly stated position regarding discovery. See Protective Order Motion Reply at 3. The Health Care Defendants argue, accordingly, that the Court should “reject the Plaintiff's assertion that the Healthcare Defendants failed to attempt to confer with her.” Protective Order Motion Reply at 3. The Health Care Defendants also contend that Correct Care timely filed the Protective Order Motion, where rule 26(c) prescribes no deadline in which to file a protective order motion. See Protective Order Motion Reply at 3 (citing Fed.R.Civ.P. 26(c)). The Health Care Defendants argue that, even if the Court determines that the Protective Order Motion “should have been filed earlier, ” Correct Care showed good cause, because it filed the Protective Order Motion “after it was clear Plaintiff would reject the Court's advice to confer in good faith and seek informal resolution, ” and “after it was clear that Plaintiff was determined to perpetuate a discovery dispute.” Protective Order Motion Reply at 4. The Health Care Defendants also contend that Tanner misapprehends judicial estoppel, which is inappropriate “where the party's change of position is based on inadvertence or mistake.” Protective Order Motion Reply at 4-5. The Health Care Defendants argue that none of the three factors to consider when applying judicial estoppel apply here. See Protective Order Motion Reply at 5. First, the Health Care Defendants argue there is no inconsistent later position issue, because only Correct Care took an earlier position, and the rest of the Health Care Defendants did not. See Protective Order Motion Reply at 5. The Health Care Defendants aver that Correct Care's position has consistently been that the “Plaintiff's discovery exceeds the bounds set out in Federal Rules of Civil Procedure 1, 11(b), and 26(b)(1).” Protective Order Motion Reply at 5. Second, the Health Care Defendants note that Magistrate Judge Molzen granted the Motion to Compel Ans. and Resp. “in part, thus rejecting, not accepting, CCS' earlier position.” Protective Order Motion Reply at 5. Last, the Health Care Defendants argue that Tanner “does not show, and cannot show, harm to her should the Court limit her discovery to nonprivileged matter that is relevant to her claims and proportional to the needs of the case.” Protective Order Motion Reply at 5.

         The Health Care Defendants aver that the Court should reject Tanner's claim that she agrees to follow federal law, because, where parties do not agree to a HIPAA-qualified protective order, it is Tanner's obligation to ask the Court to enter one, and Tanner has not asked for such a protective order. See Protective Order Motion Reply at 6. The Health Care Defendants argue that Tanner's stated position that Correct Care must voluntarily waive its patients' HIPAA-protected health information is incorrect and, furthermore, that Tanner's statement that she will agree to entry of a HIPAA-qualified protective order is no more than Tanner agreeing to comply with federal law. See Protective Order Motion Reply at 5-6.

         The Health Care Defendants argue that Tanner does not contest that a PSQIA evidentiary privilege exists or ...


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