Ediscovery Can Get Personal When Defendants Are Sued as Individuals

Sunderland v. Suffolk Cty., No. CV 13-4838 (JFB)(AKT), 2016 WL 3264169 (E.D.N.Y. June 14, 2016).

In a civil rights action alleging deliberate indifference to medical needs, the magistrate judge granted the plaintiff’s motion to compel, ordering the individual defendants, physicians sued in their individual capacities, to search their personal computers and e-mails for evidence of any bias or motivation to deny the plaintiff medical treatment.

The plaintiff, Jeremy Sunderland, was a transgender individual diagnosed with gender dysphoria, for which she had been prescribed hormone therapy. After she was incarcerated at Suffolk County Correctional Facility, the county’s physicians denied her that therapy, finding it a “‘non-essential’ treatment.” Sunderland sued the county, two officials, and three physicians for failing to treat her transgender medical needs. Sunderland alleged that the physicians “acted with deliberate indifference to her serious medical needs” and “were dismissive of [her] condition,” which they “consistently treated…as frivolous.”

During discovery, Sunderland demanded that the physicians provide all “documents and correspondence sent to, sent from, or created or possessed” by them “concerning gender dysphoria, gender identity, transgender status, or sexual preference,” including a host of specific search terms. While the parties “agreed on the search terms” in general, they disagreed as to whether the physicians had to search their personal computers and personal e-mail accounts.

The court began by noting that the physicians “have been sued in their individual capacities, not in their official capacities as medical personnel employed by the County.” The fact that the county represented the individual physicians in the litigation did not excuse them “from complying with their obligations as individual defendants to produce responsive, non-privileged documents and electronically stored information in their ‘possession, custody, or control.’”

The court reminded the parties that under Federal Rule of Civil Procedure 26, “relevance is still to be construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any party’s claim or defense.” Here, to make a case for deliberate indifference to medical needs, “the plaintiff must show that the defendant acted with ‘a sufficiently culpable state of mind.’” In short, Sunderland must prove that the physicians had some improper motivation in refusing her treatment. “To the extent such documents exist” within the physicians’ personal accounts, the court noted, “they may contain information going to bias or motivation which may show why a personal computer was used for such communications.”

Therefore, the court concluded that e-mails and other correspondence that discussed Sunderland or “issues related to gender dysphoria” were relevant and discoverable both as to the claims against the individual physicians and against the county for its alleged practice of refusing treatment to transgender individuals. The court ruled that the request was not “unduly intrusive or burdensome,” given the limited time period for the search and the parties’ agreement to the search terms to be used. The court also required the physicians to provide affidavits if they concluded, after searching, that no responsive documents existed and to submit any correspondence they deemed “private” for an in camera review along with an explanation of the asserted privilege.

Sunderland v. Suffolk Cty., No. CV 13-4838 (JFB)(AKT), 2016 WL 3264169 (E.D.N.Y. June 14, 2016).


In concluding the order, the court reminded the individual defendants’ counsel “that she is obliged to supervise and oversee the search for and production of electronically stored information” and that “simply handing over the search terms to the [physicians] to run on their own is not sufficient.” Counsel are not obligated to supervise every step of discovery; however, they are required to ensure their clients identify, preserve, collect, and produce relevant information.

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