State loses bid to depose hospital in abortion lawsuit

The state will not get to depose a Philadelphia hospital as part of one of Indiana’s multiple abortion-related lawsuits after a federal judge overruled the state’s objection to the grant of the hospital’s motion to quash.

The litigation in Caitlin Bernard v. Individual Members of the Indiana Medical Licensing Board, et al, 1:19-cv-01660, concerns the constitutionality of House Enrolled Act 1211, a 2019 Indiana abortion law that, had it taken effect, would have criminalized a doctor’s performance of so-called “dismemberment abortions,” except where necessary to save a mother’s life or to prevent “serious risk to her.”

“Dismemberment abortion” is not a recognized medical term but encompasses a medical procedure known as “dilation and evacuation,” which is commonly used by doctors to end or abort a pregnancy in the second trimester. The language of the law “prohibits D&E when it is performed, as is customary, before steps are taken to first cause fetal demise.”

In June 2019, just days before the law’s effective date, the Indiana Southern District Court preliminarily enjoined the act’s enforcement on grounds that the fetal demise requirement imposes a substantial undue burden on the right of a woman in Indiana to seek a pre-viability abortion in the second trimester. The state did not appeal that decision.

But in late December 2020, after learning of a 2012 peer-reviewed study authored by doctors affiliated with Thomas Jefferson University Hospital in Philadelphia, “Fetal Intracardiac Chloride Injection to Expedite Second-Trimester Dilation and Evacuation,” the state served a documents subpoena on the hospital, seeking data and patient medical records underlying the study, additional patient medical records where fetal demise was first induced and an abortion performed when the gestational age was less than 18 weeks, and any policies/procedures documents relating to performing abortions where fetal demise is first induced.

The hospital ultimately responded that, other than a single document deemed responsive to the request for policies/procedures, it had no other responsive information. As to the lone document identified as responsive, the hospital refused to produce it on the ground that it was not relevant to the litigation.

The state responded with a deposition subpoena seeking Rule 30(b)(6) testimony related to 13 topics, including the “process” the hospital used to search for potentially relevant documents and to determine it had identified responsive documents, the volume of documents located in attempting to identify responsive documents, whether it searched “all hospital, departmental, individual healthcare provider documents, and individual patient medical records,” and its system for maintaining records about abortions performed at 18 weeks’ or less gestation.

The hospital moved to quash the deposition subpoena, and the state filed a cross-motion to enforce the subpoena and to compel the hospital to produce the policies/procedures document.

In July, Magistrate Judge Debra McVicker Lynch granted the hospital’s request to quash the deposition subpoena but also granted the state’s motion to compel the hospital to produce the single responsive document it had identified but refused to turn over.

In its objection, the state argued the magistrate judge committed clear error in denying it the opportunity to depose the hospital regarding its search for records, but Senior Judge Sarah Evans Barker disagreed and overruled the objection in a Dec. 3 order.

“In reaching her determination, the Magistrate Judge carefully considered and thoroughly addressed each argument advanced by the State regarding the Hospital’s alleged bad faith, including, inter alia, what the State characterizes as the Hospital’s ‘improper’ delay in responding to the subpoena, ‘hostility’ to the State’s position, ‘improper’ objections to discovery, and ‘evasive’ and ‘inconsistent’ statements during the meet and confer process,” Barker wrote. “After a careful review of the facts, we see no clear legal or factual error in the Magistrate Judge’s well-reasoned analysis, and, for the same reasons set forth in the Order, are likewise not persuaded that the Hospital’s conduct evinces a lack of good faith in its efforts to comply with the State’s discovery requests.

“… Far from being clearly erroneous or contrary to law, this conclusion aligns with the broad powers Rule 45 provides courts to protect nonparties from undue burden or expense,” Barker continued. “For these reasons, contrary to Defendants’ contentions, the Magistrate Judge’s Order is a correct exercise of the court’s broad discretion in controlling discovery and is consistent with the Federal Rules of Civil Procedure.”