Harris v. Kernan

          ORDER

          KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding without counsel. This action proceeds on plaintiff's Eighth Amendment medical claims against defendant Dr. Kuersten. (ECF No. 22 at 9-10.) As discussed below, counsel for defendant Kuersten is ordered to provide additional briefing on plaintiff's motion to compel further production (ECF No. 76).

         Background

         On August 1, 2019, plaintiff's motion to compel further production of documents was partially granted, and the court ordered, in pertinent part:

1. Within thirty days, in response to Request No. 8, defendant shall provide plaintiff with a copy of documents addressing plaintiff's medical transfers from 2014 through 2017, and provide a declaration to the court attesting to such production.

2. Within thirty days, in response to Request Nos. 9 and 19, defendant shall provide plaintiff with a copy of any RFS or orders pertaining to plaintiff's GI specialty appointment from November 1, 2016, through December 31, 2016, including any orders that were cancelled, modified or voided, and file a declaration attesting to such production. If counsel for defendant does not have such medical records in her current physical possession, counsel for defendant shall make a good faith effort to locate such records from plaintiff's electronic medical file as well as any hard copy physical file at both CSP-Solano and Old Folsom State Prison. If counsel for defendant is unable to locate such documents, she shall file a declaration setting forth her efforts to locate such documents.

3. Within thirty days, in response to Request No. 13, defendant is directed to file a declaration advising whether or not any documents have, to date, been received and, if so, what date they were produced to plaintiff.

4. Further, counsel for defendant shall work with the litigation coordinator and medical records supervisor, Mr. Weeks, at CSP-Solano, to provide plaintiff with meaningful access to his medical file, both on the computer and in hard copy format, along with a contemporaneous ability to obtain copies of pertinent documents, including those marked cancelled, voided, or modified, particularly in response to Request Nos. 9, 15, 16, 17, and 18. Meaningful access includes an ability to review the medical records and determine which record he needs to copy, as well as sufficient time to review and copy such records.

(ECF No. 66 at 17-18.) On August 29, 2019, defendant filed a response, noting counsel contacted both defendant and the litigation coordinator, who contacted M. Weeks, Health Records Technician II Supervisor at California State Prison, who copied all of plaintiff's medical records from October 28, 2008, through July 31, 2019, consisting of plaintiff's medical file maintained in paper format, stored electronically, and maintained on the CERNER computer system. (ECF No. 71 at 2.) Plaintiff was provided two banker's boxes of such medical records on August 14, 2019, “in the manner in which they are maintained by the medical department.” (Id.)

         On October 24, 2019, defendant filed an opposition to plaintiff's motion for further compliance confirming that after plaintiff again complained that documents were missing, counsel contacted Mr. Weeks to determine if there were any additional documents. Mr. Weeks confirmed that all of plaintiff's medical records had been produced, over 6, 000 pages, and provided a screenshot of the filters allegedly used when printing the medical records. The filters were set to include “all inactive orders, such as discontinued, canceled, or voided orders.” (ECF No. 77 at 2, 4.)

         In addition, counsel notes that in response to a discovery request, defendant advised plaintiff that documents entered into the computer system cannot be changed, based on defendant's statement under oath: “if a medical record is altered there is an addendum to the record, or a strike out with the initials of the person who changed the record. Once the record is scanned into the system it cannot be altered.” (ECF No. 77 at 9.) Because defendant provided all of plaintiff's medical records from October 28, 2008, through July 31, 2019, defendant contends there are no other documents in the computer system to produce. (ECF No. 77 at 2.)

         On November 12, 2019, plaintiff filed a reply complaining that defendant's production was not responsive to the court's August 1, 2019 order and refused to provide plaintiff access to review his medical records on the computer. (ECF No. 81.) Plaintiff argues that some of the records provided have been edited, and that the screenshot template and email from Mr. Weeks fails to demonstrate Mr. Weeks used such filter when printing the medical records provided to plaintiff, and fail to address plaintiff's claim that some of the records have been modified. (Id.)

         On December 6, 2019, defendant filed a notice of errata filing the inadvertently omitted declaration signed by M. Weeks on August 23, 2019. (ECF No. 83.) Mr. Weeks confirms he received the court's August 1, 2019 order, and provided plaintiff with two bankers boxes of medical records on August 14, 2019, “irrespective of whether they were stored in paper format, electronic format, or on the CERNER medical computer system at CSP-Solano.” (ECF No. 83 at 5.) Mr. Weeks understood that plaintiff believed that certain medical records cannot be printed, but “[t]hat is incorrect.” (Id.) Mr. Weeks explained that while sometimes restrictions preclude the release of certain types of sensitive information without approval of the mental health team, all records in the electronic health record can be printed. (Id.) Finally, Mr. Weeks states that: “[a]fter ...