by Matt Clarke

On June 3, 2021, a federal court in Illinois granted a state prisoner’s motion for sanctions against Wexford Health Sources for responding to a specific discovery request by providing 272,000 pages of documents it had converted into a nearly useless format.

With the assistance of Oakbrook attorney Daniel R. Flynn and his Pittsburgh co-counsel, Alec B. Wright, both with the law firm Leech Tishman Fuscaldo & Lampl, the prisoner, Donald Haywood, filed suit under 42 U.S.C. § 1983 in U.S. District Court for the Northern District of Illinois on March 23, 2016, accusing the state Department of Corrections (DOC) and Wexford, its privately contracted healthcare provider, of deliberate indifference to his serious mental health needs.

Defendants’ motion to dismiss Haywood’s original claim was granted by the Court on March 1, 2017. See: Haywood v. Wexford Health Sources, 2017 U.S. Dist. LEXIS 28416 (N.D. Ill.). His first amended complaint also succumbed to a motion for summary judgment by Defendants on June 5, 2019. See: Haywood v. Wexford Health Sources, 387 F. Supp. 3d 877 (N.D. Ill. 2019).

After his next amended complaint was filed, Haywood served a request on Wexford for production of documents, including “all those relating to the timeliness of all mental health treatment and evaluations provided to plaintiff, including all mental health databases” and “all correspondence relating to alleged rule violations, disciplinary violations, or diagnosis, and treatment of plaintiff’s mental illness, including without limitation letters to and from plaintiff, emails, text messages, and all other electronically stored information.”

In response to the request, Wexford converted the documents from Excel to PDF format. Haywood objected, complaining that the PDF is nearly impossible to search. Further, the headers of many columns were cut off. The 272,000 PDF pages included hundreds of blank pages, a binder from a prison where Haywood had never been incarcerated, and hundreds of pages on out-of-state prisoners. The titles and bookmarks used to organize the PDFs into binders were also indecipherable.

Wexford claimed the documents were converted to redact them in compliance with privacy requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPPA). Haywood replied that the Court’s protective order did not permit redacting and filed a motion for sanctions, citing discovery abuse.

The Court ruled that neither HIPPA nor state law required redacting, since the Court had already issued a protective order covering any other patient’s information that might inadvertently be disclosed. Also, because this is a federal-question case, Illinois privilege law does not apply. Thus, there was no legal basis to Wexford’s claim that it needed to convert the files.

The Court then found that the spreadsheets were not reasonably usable in PDF format. Further, converting them to PDF format eliminated Haywood’s ability to sort and organize the spreadsheet data. Thus, the production in PDF format violated Federal Rule of Civil Procedure 34, which requires production of electronically stored information in its native format or a mutually-agreed-upon and reasonably usable format.

Finding Wexford’s position was not substantially justified, the Court ordered the firm to produce the spreadsheet in Excel format within ten days. As sanctions, it also granted Haywood $25,311.50 in attorney fees and costs spent litigating the discovery dispute. See: Haywood v. Wexford Health Sources, Inc., 2021 U.S. Dist. LEXIS 104363 (N.D. Ill.).

The case then resumed discovery, including the recording of numerous depositions, where it remains as we go to press. PLN will provide updates as they become available. See: Haywood v. Wexford Health Sources, Inc., USDC (N.D. Ill.), Case No. 1:16-cv-03566.

Meanwhile a separate suit Haywood filed against Wexford in U.S. District Court for the Central District of Illinois ground to a halt on October 7, 2021, when the U.S. Court of Appeals for the Seventh Circuit affirmed the denial of his request to proceed in forma pauperis, which the lower court had refused “when it found that Haywood lied and manipulated his funds to avoid paying a filing fee.” Haywood v. Wexford Health Sources, Inc., 2021 U.S. App. LEXIS 30167 (7th Cir.). 

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