[redacted], (“Defendant”) to provide complete answers to Plaintiff’s First Request for Production of Documents Nos. 4-5 and 60, which seek the employment/personnel files of current and former employees of Defendant whose alleged negligence is at issue in this case.

NATURE OF THE MATTER BEFORE THE COURT

Plaintiff served its First Request for Production of Documents on Defendant on September 9, 2014. Requests 4-5 and 60 stated:

4. The personnel files of all nurses or other staff members, who were responsible for creating and/or updating Plaintiff’s care plan in 2012. The personal files may be redacted to exclude financial, medical or other information unrelated to patient care as long as any such documents are identified in a timely and appropriate privilege log.
5. The personnel files of all nurses or other staff members, who were responsible for supervising and/or training Defendant’s staff about resident care planning and policies and procedures regarding fall prevention in 2012. The personal files may be redacted to exclude financial, medical or other information unrelated to patient care as long as any such documents are identified in a timely and appropriate privilege log.
6. Produce the employee file of any and all employees at Defendant’s facility who provided care to Plaintiff in June of 2012. As it relates to the employee file, you are requested to produce evaluations, performance assessments, suspensions, disciplinary proceedings, termination letters and/or resignation letters.

(Plaintiff’s First Request for Production of Documents, attached as Exhibit A.)

Discovery responses were due on October 24, 2014. Yet, Defendant failed to timely respond. Thus, on October 27, 2014, Plaintiff’s counsel emailed Defendant’s Counsel inquiring about the status of Defendant’s discovery responses. (10/27/14 email, attached as Exhibit B.) Plaintiff’s Counsel informed Defendant’s Counsel that if full and complete responses were not provided or a request for additional time was not made by October 31st, Plaintiff’s Counsel would file a motion to compel the discovery with the Court. (Id.) Not until November 3, 2014, did Defendant finally provide its responses to Plaintiff’s request for production of documents. Unfortunately, Defendant neither objected to, nor produced any documents in response to Plaintiffs requests 4-5, and 60.

Instead, Defendant merely stated the following in response to Request No. 4 which requested the personnel files of all nurses or other staff members, who were responsible for creating and/or updating Plaintiff’s care plan in 2012:

RESPONSE: Upon appropriate order from the Court, the personnel files of Jamie Wallace, the care plan coordinator can be made available to the plaintiff.

(Defendant’s Responses to Plaintiff’s First Request for Production of Documents attached as Exhibit C.)

Likewise, Defendant stated in response to Request No. 5 which requested the personnel files of all nurses or other staff members, who were responsible for supervising and/or training Defendant’s staff about resident care planning and policies and procedures regarding fall prevention in 2012:

RESPONSE: See objection and response to Request No. 4, above. (Id.)

Finally, Defendant stated in response to Request 60 which sought the personnel files of “any and all employees” who “provided care” to Plaintiff:

RESPONSE: See objection and response to Request No. 4, above. (Id.)

Defendant’s response to Request No. 60 ­– purporting to identify [redacted] as the only employee to provide care to Plaintiff ­– ignores the fact that Defendant specifically identified in its interrogatory responses twenty-seven additional employees who provided care to Plaintiff (hereinafter “Relevant Employees”).[1] (See Defendant’s Answer to Plaintiff’s Interrogatories at No. 5, attached as Exhibit D.) Therefore, the personnel files of these twenty-seven additional employees are responsive to Request No. 60. Yet, Defendant refused to produce the personnel file for Jamie Wallace or any other employee.

On November 12, 2014, Plaintiff’s Counsel sent Defendant’s Counsel a “Golden Rule” letter stating that “[i]f you intend to file a motion for a protective order, please do so. Otherwise, please produce a redacted personnel file for [redacted] (assuming these requests apply to no other individual(s)) as Defendant’s response is now long overdue.” (11/12/14 letter, attached as Exhibit D.) To date, Defendant’s counsel has neither responded to this letter, nor filed for a protective order or supplemented its production of documents.

As set forth below, Requests for Production of Document Nos. 4-5 and 60 are appropriate and well within the bounds of permissible discovery. Thus, Defendant should be compelled to produce complete copies of the personnel/employment files of the Relevant Employees.

BRIEF STATEMENT OF CASE

This is a negligence action relating to the care and treatment of Plaintiff received at [redacted]—an assisted living facility owned and operated by Defendants. Specifically, Plaintiff suffered from dementia and fell while being allowed to ambulate/transport herself without assistance on both September 6 and September 19, 2012. On each of these occasions Defendant and its staff failed to implement appropriate intervention to prevent future falls.  As a result, Plaintiff fell again on September 21, 2012, while being allowed to transport/ambulate herself and was discovered by Defendant’s staff lying on her back with her up, screaming in pain, and unable to move. Plaintiff was then transported to Menorah Medical Center where she was diagnosed with an acute T12 fracture caused by her fall earlier in the day. This lawsuit followed.

Paragraphs 15-18 of Plaintiff’s Petition allege that Defendant was negligent in the following respects:

• Failing to ensure that the facility was operated in a manner so that Plaintiff received care and services in accordance with an appropriate and accurate resident’s functional capacity screening and negotiated service agreement;

• Failing to implement and enforce policies and procedures to ensure the proper care for and treatment of residents such as Plaintiff;

• Failing to have sufficient and qualified staff to ensure the proper care for and treatment of residents such as Plaintiff; and

• Failing to ensure that their nurses and other staff were properly educated and trained with regard to the care for and treatment of residents such as Plaintiff.

(See Petition, at page 3-4). Furthermore, Kansas law imposes upon Defendant an obligation to provide orientation and in-service education regarding the treatment of dementia because Plaintiff suffered from the condition. See K.A.R. 21-41-103(c) (“if a facility admits residents with dementia, the administrator or operator shall ensure the provision of staff orientation and in-service education on the treatment and appropriate response to person who exhibit behaviors associated with dementia.”) Put simply, only the Relevant Employee’s personnel files can establish if Defendant complied with this duty or otherwise breached its legal obligations as alleged in the Petition.

Given that the discovery in question is relevant and that Defendant never objected; Plaintiff is entitled to discovery on the Relevant Employees background, training, capabilities, skill and experience and other matters that may influence (1) the oversight, direction, and supervision of these employees and (2) the overall care and treatment of patients such as Plaintiff.   Therefore, the Court should compel Defendant to produce the personnel files of the Relevant Employees.

ARGUMENTS AND AUTHORITY

Plaintiff is entitled to the personnel/employment files of the Relevant Employees. K.S.A. 60-226(b) governs the scope of discovery and provides that “[p]arties may obtain discovery of any matter, not privileged, that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter . . . . Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”

Relevancy in the discovery context is broadly construed, and a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to the claim or defense of any party. Cardenas, et al. v. Dorel Juvenile Group, Inc., et al. 232 F.R.D. 377 (D. Kan. 2005). A request for discovery should be allowed unless it is clear that information sought can have no possible bearing on the claim or the defense of a party. Cory v. Aztec Steel Building, Inc., 225 F.R.D. 667 (D. Kan. 2005); Scott v. Leavenworth Unified School District No. 453 190 F.R.D. 583 (D. Kan. 1999).

Directly at issue in this matter is the care and treatment provided to Plaintiff by Defendant’s employees, including but not limited to the Relevant Employees. Accordingly, the information contained in the employee/personnel files of the Relevant Employees is directly relevant and related to the claims asserted herein. In particular, Plaintiff is entitled to discovery on the Defendant’s employees’ background, training, capabilities, skill and experience and other matters that may have influenced (1) the oversight, direction, and supervision of the Relevant Employees and (2) the overall care and treatment of patients such as Plaintiff.

The Federal District Court of Kansas has consistently found that employment/personnel files of individuals involved in a particular controversy before the Court are relevant and/or reasonably calculated to lead to the discovery of admissible evidence, and therefore discoverable. See Jones v. Wet Seal Retail, Inc. 245 F.R.D. 724 (D. Kan. 2007); Scott v. Leavenworth Unified School District No. 453 190 F.R.D. 583 (D. Kan. 1999); see also Stewart v. Mitchell Transp., Civ. A. No. 01-2546-JWL, 2002 WL 1558210 (D. Kan. July 8, 2002) (unpublished) (personnel file of defendant tractor-trailer driver relevant in personal injury action where personnel file may reveal history of defendant driver’s accidents or safety violations).

For instance, in Jones, a shopper brought suit against a mall retail store and a provider of security services alleging false imprisonment and battery, among other things. The plaintiff sought production of the personnel files of the individuals that she alleged were involved either directly or indirectly in the incident that gave rise to the suit. The defendants asserted that the requested documents and material were not relevant and were confidential. Contrary to defendants’ objections, the Court found that the requested personnel files were relevant and discoverable.

Plaintiff’s Request for Production of Documents Nos. 4-5, and 60 are clearly relevant to the claims made and defenses asserted given the standard for discovery and allowable scope of discovery governed by K.S.A. 60-226(b). For that reason, Defendant should be compelled to produce the personnel records of the Relevant Employees.

CERTIFICATION

Plaintiff’s counsel, Tom Pickert, pursuant to K.S.A. 60-237 hereby certifies that he has made a good faith attempt to confer with defense counsel regarding the issues raised herein. Plaintiff’s counsel has made numerous written requests regarding the discoverability of the requested employee files which addressed the matters raised herein.

WHEREFORE, based on the above and foregoing Plaintiff respectfully requests the Court enter an Order granting Plaintiff’s Motion to Compel Discovery, order Defendant to fully comply with Plaintiff’s Request for Production of Documents No. 4-5, and 60 as described above and produce the requested documents and materials within 10 days of the entry of the Order, and for such other and further relief the Court deems just and proper.