United States District Court, S.D. California
ORDER RESOLVING JOINT MOTION REGARDING PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS [ECF No. 21]
DAVID H. BARTICK, Magistrate Judge.
On August 28, 2014, the parties filed a joint motion regarding Defendant the United States of America's responses to Plaintiff Melissa Soto's requests for production of documents. (ECF No. 21.) As part of Defendant's responses to the document requests, Defendant produced a privilege log identifying eleven documents as being privileged under the quality assurance privilege found in 25 U.S.C. § 1675. Plaintiff contends that all, or at least some, of the documents fall outside the scope of the quality assurance privilege. The parties have met and conferred in an effort to resolve this dispute. However, they have been unable to reach agreement as to whether Defendant must produce the documents at issue. Thus, the parties seek the Court's assistance in resolving this dispute. For the reasons set forth below, the Court finds that all of the documents listed in Defendant's privilege log are indeed privileged pursuant to the quality assurance privilege set forth in 25 U.S.C. § 1675, and that Defendant is not required to produce them.
Plaintiff alleges in her First Amended Complaint (ECF No. 10) that Dr. Rocio D. Guzman, D.M.D., committed dental malpractice on February 1, 2012, when he negligently severed Plaintiff's right lingual nerve while performing a surgical extraction of two of Plaintiff's teeth. Plaintiff alleges Dr. Guzman, an employee of the Southern Indian Health Council, Inc. ("SIHC"), which is itself deemed part of the Public Health Service of the United States Department of Health and Human Services, failed to adequately explain to Plaintiff the risks associated with the surgery. Plaintiff further alleges that as a result of the severed lingual nerve, she has lost all sensation in the right side of her tongue, including her ability to taste.
II. LEGAL STANDARD
As noted, by withholding the disputed documents, Defendant relies on the quality assurance privilege contained in 25 U.S.C. § 1675. This statute defines "medical quality assurance program" as:
any activity carried out before, on, or after the date of enactment of the Indian Health Care Improvement Reauthorization and Extension Act of 2009 [enacted March 23, 2010] by or for any Indian health program or urban Indian organization to assess the quality of medical care, including activities conducted by or on behalf of individuals, Indian health program or urban Indian organization medical or dental treatment review committees, or other review bodies responsible for quality assurance, credentials, infection control, patient safety, patient care assessment (including treatment procedures, blood, drugs, and therapeutics), medical records, health resources management review, and identification and prevention of medical or dental incidents and risks.
25 U.S.C. § 1675(a)(2).
The statute defines "medical quality assurance record" as "the proceedings, records, minutes, and reports that (A) emanate from quality assurance program activities described [above]; and (B) are produced or compiled by or for an Indian health program or urban Indian organization as part of a medical quality assurance program." 25 U.S.C. § 1675(a)(3). Medical quality assurance records under the statute are "confidential and privileged" and, subject to certain exceptions which the Court finds inapplicable here, they "may not be disclosed to any person or entity." 25 U.S.C. § 1675(b). Further, subject to certain exceptions which, again, do not apply here, medical quality assurance records cannot "be subject to discovery or admitted into evidence in any judicial or administrative proceeding." 25 U.S.C. § 1675(c)(1).
A. Parties' Arguments
As noted above, the parties dispute whether various documents identified in Defendant's privilege log fall within the Quality Assurance privilege. The documents, which have been provided to the Court for an in camera review, consist of emails, handwritten notes, information printed from an internet site, and reports.
Plaintiff first contends that the emails, handwritten reports, and the information obtained from the internet do not qualify as privileged under 25 U.S.C. § 1675 because, under the doctrine of expression unius est exclusio alterius, it is presumed that "when a statute designates certain persons, things, or manners of operation, all omissions should be understood as exclusions." Silvers v. Sony Pictures Entm't, Inc., 402 F.3d 881, 885 (9th Cir. 2005) (quoting Boudette v. Barnette, 923 F.2d 754, 756-57 (9th Cir. 1991)). The statute defines privileged medical quality assurance records as "proceedings, records, minutes, and reports." 25 U.S.C. § 1675(a)(3). According to Plaintiff, this list is exclusive and does not identify communications, notes, or information found on an internet site as being privileged.
Plaintiff next contends that the remaining documents, which consist of three reports, should not qualify under the quality assurance privilege because it is not clear from the privilege log whether the reports "emanate" from medical quality assurance program activities as contemplated by the statute or whether one of ...