PEER REVIEW PRIVILEGE

Allen v. Woodford, No. CV-F-05-1104 OWW LJO (E.D. Cal. Jan. 30, 2007)

The United States District Court for the Eastern District of California ordered a physician to produce documents related to the alleged improper treatment of incarcerated patients under a contract with the California Department of Corrections ("CDC"). The court denied the physician's argument that the documents were protected by the state peer review statute, holding that the privilege for medical peer review records is not recognized by the Ninth Circuit in the context of prisons.

In a companion case, the same court largely rejected the attempts of several CDC officials to prevent the discovery of documents and other information related to the same matter. During discovery, the inmate sought documents related to the contract between the surgeon and the CDC as well as documents concerning complaints made by any other person with regard to the surgeon's medical treatment. The CDC officials claimed that the information was protected by "official information" and "deliberative process" privileges, the Eleventh Amendment's immunity clauses, and the discovery requirement that documents be in the "possession, custody, or control" of the responding party. The court found that the asserted privileges did not apply where the information sought was not "policy formulation" and the potential benefits of disclosure outweighed the potential disadvantages. The court further held that the Eleventh Amendment's protections are not so extensive as to preclude discovery where the parties being sued are state officials, as opposed to the state itself. The court granted the CDC ten days to provide a detailed account explaining why the discovery information requested was not in the "possession, custody, or control" of the CDC officials party to the suit.