United States District Court, E.D. North Carolina, Western Division
ELIZABETH LOBOA and M. TODD RIDGEWAY, Plaintiffs,
WOMEN'S HEALTH ALLIANCE, P.A. f/k/a Atrium Obstetrics & Gynecology, P.A. d/b/a Atrium Obstetrics & Gynecology, UWH OF NORTH CAROLINA, LLP, ZOE BEATTY, M.D., a/k/a Zoe Pietrus, and TARA SEMLER Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter comes now before the court on defendants' motion
to stay the court's October 10, 2019, order compelling
disclosure of statements made by defendant Zoe Beatty
(“Beatty”) and Tara Semler (“Semler”)
(DE 88), defendants' motion for extension of time to
comply with the court's order compelling disclosure (DE
90), and plaintiffs' consent motion to amend the
court's case management order (DE 91). The issues raised
have been fully briefed, and in this posture are ripe for
ruling. For the reasons that follow, defendants' motion
to stay is denied, defendants' motion for extension of
time is allowed, and plaintiffs' consent motion for
extension of time is allowed.
case concerns whether defendants were negligent or committed
medical malpractice. During plaintiff Elizabeth Loboa's
(“Loboa”) routine gynecological appointment on
September 29, 2015, defendant Dr. Zoe Beatty
(“Beatty”) applied a solution to plaintiff Loboa
that defendant Tara Semler (“Semler”), a medical
assistant, handed to her. It is alleged that, as part of the
procedure, defendant Beatty should have applied a solution
with an acid concentration of 3-5%, but instead used a
solution with an acid concentration of around 80%.
after the incident, Ruth White (“White”),
defendant Women's Health Alliance, P.A.'s
(“Atrium”) office manager, asked both defendants
Beatty and Semler to prepare written statements about the
incident. Plaintiffs filed motions to compel production of
the statements. Defendants refused to produce the statements
or answer questions regarding the contents of the statements
at deposition, filing a protective order and invoking the
work product doctrine. Upon full consideration of deposition
testimony and other evidence shedding light on the creation
of the statements, the court determined that defendants
failed to establish that the statements were prepared in
anticipation of litigation, rather than in the ordinary
course of business. In pertinent part, the court ordered that
defendants produce the statements by October 24, 2019, denied
defendants' request for protective order to avoid
deposition questions on the written statements, and allowed
plaintiffs' request for additional deposition time.
response to the court's order, defendants jointly filed
the instant motion to stay the court's ruling. Defendants
intend to petition the United States Court of Appeals for the
Fourth Circuit for writ of mandamus and ask this court to
stay its ruling until the Fourth Circuit rules on the
petition. In conjunction with the motion to stay, defendants
jointly filed a motion for extension of time to respond to
the court's October 10, 2019, order, asking for five days
from the date the court disposes of the motion to stay to
the deadline for fact discovery had elapsed when the court
entered its order on October 10, 2019, the court directed the
parties to jointly propose amendments to the case management
order. Plaintiffs filed the parties' proposed amendments
to the court's case management order in its consent
motion dated October 17, 2019.
Defendants' Motion to Stay (DE 88)
Standard of Review
determining whether to grant a stay pending appeal, the court
must consider four factors: “(1) whether the stay
applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of
the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies.” Nken v. Holder, 556 U.S. 418,
434 (2009) (quoting Hilton v. Braunskill, 481 U.S.
770, 776 (1987)). “There is substantial overlap between
these and the factors governing preliminary injunctions, . .
. not because the two are one and the same, but because
similar concerns arise whenever a court order may allow or
disallow anticipated action before the legality of that
action has been conclusively determined.” Id.
(citing Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 22-24 (2008)).
respect to the first stay factor, defendants are not likely
to succeed on the merits. The basis for defendants'
motion for stay is an anticipated petition for mandamus to
the Fourth Circuit. “The remedy of mandamus is a
drastic one, to be invoked only in extraordinary
situations.” Kerr v. U.S. Dist. Court for N. Dist.
of California, 426 U.S. 394, 402 (1976). “To
ensure that mandamus remains an extraordinary remedy,
petitioners must show that they lack adequate alternative
means to obtain the relief they seek, and carry the burden of
showing that [their] right to issuance of the writ is clear
and indisputable.” Mallard v. U.S. Dist. Court for
S. Dist. of Iowa, 490 U.S. 296, 308-09 (1989) (internal
citations and quotations omitted). “[E]ven if the first
two prerequisites have been met, the issuing court, in the
exercise of its discretion, must be satisfied that the writ
is appropriate under the circumstances.” Cheney v.
U.S. Dist. Court for D.C., 542 U.S. 367, 381 (2004).
to the first element of adequate alternative means,
defendants cite the United States Supreme Court's
decision in Mohawk Industries v. Carpenter for the
proposition that mandamus is the appropriate avenue for
challenging a court's discovery order rejecting a claim
of privilege. 558 U.S. 100, 111 (2009). Mohawk
undermines, rather than supports, defendants' request for
stay. There, the Court held that “the collateral order
doctrine does not extend to disclosure orders adverse to the
attorney-client privilege. Effective appellate review can be
had by other means.” Mohawk, 558 U.S. at 114.
The Court explained that “[a]ppellate courts can remedy
the improper disclosure of privileged material in the same
way they remedy a host of other erroneous evidentiary
rulings: by vacating an adverse judgment and remanding for a
new trial in which the protected material and its fruits are
excluded from evidence.” Id. at 109. While the
court does mention mandamus as an avenue for immediate
relief, the import of Mohawk is that