isaacs v. dartmouth, united states supreme court

7/21/2019 Isaacs v. Dartmouth, United States Supreme Court

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No. _________

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In The

Supreme ourt of the United States

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DR. JEFFREY D. ISAACS,

Petitioner,

v.

TRUSTEES OF DARTMOUTH COLLEGE,DARTMOUTH-HITCHCOCK MEDICAL CENTER,

MARY HITCHCOCK MEMORIAL HOSPITAL,

and DR. CHRISTINE T. FINN,

Respondents.

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On Petition For A Writ Of CertiorariTo The United States Court Of Appeals

For The First Circuit

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PETITION FOR WRIT OF CERTIORARIAND APPLICATION FOR

INJUNCTION PENDING RESOLUTION

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JEFFREYISAACS3553 West Chester Pike, #177Newtown Square, PA 19073Telephone: (610) 202-1460Email: [email protected]

Petitioner

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QUESTIONS PRESENTED

On January 15, 2012, Petitioner Jeffrey David

Isaacs transmitted to Dartmouth College a request to

preserve electronic evidence under Rule 34 of the

Federal Rules of Civil Procedure. Three days later,Dr. Isaacs physician email account disappeared, de-

spite the fact he was actively employed as a doctor at

Dartmouth-Hitchcock hospital. In two more days, his

medical charts at Dartmouth-Hitchcock would disap-

pear. Isaacs filed a claim against Dartmouth in the

United States District Court for New Hampshire, as-

serting that he witnessed an elaborate fraud carried

out over six months. Recognizing that discarded elec-

tronic evidence harmed his case and permanently

ended his medical career, he sought an injunctionunder Rule 37 of the Federal Rules of Civil Procedure

to return to the program at Dartmouth that ousted

him. When the New Hampshire District denied the

injunction, the Petitioner noticed an appeal to the

First Circuit. The First Circuit blocked the filing of

an appeal brief, citing their lack of jurisdiction over

the matter.

1) Does First Circuit jurisdiction cover an interlocu-

tory injunction seeking redress from discovery non-

compliance, as defined under Rule 37 of the Federal

Rules of Civil Procedure?

2) Does the language of Rule 37 of the Federal Rules

of Civil Procedure, which prescribes just orders up

to default judgment, directly authorize an injunctive

sanction as a remedy?


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QUESTIONS PRESENTED Continued

3) Is it in the public interest to deny the right to

appeal an injunction seeking redress from substantial

and intentional ESI (electronically stored informa-

tion) loss?

4) Were sanctions indicated for Dartmouths overall

pattern of ESI destruction, including data from an

actigraph medical device lost the same week the

hospital physicians email account was deleted?

5) Under 18 U.S.C. 1503, should the New Hamp-

shire District Court or the First Circuit have granted

Petitioners request to investigate this obstruction of

justice?


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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................. i

TABLE OF AUTHORITIES ................................... v

OPINIONS BELOW ............................................... 1

JURISDICTIONAL STATEMENT ........................ 1

CONSTITUTIONAL AND STATUTORY PRO-VISIONS .............................................................. 2

INTRODUCTION ................................................... 3

STATEMENT OF THE CASE ................................ 7

REASONS FOR GRANTING THE PETITIONAND ISSUING AN INJUNCTION PENDINGRESOLUTION IN THE LOWER COURTS ....... 12

I. The First Circuit erroneously barred anappeal citing lack of jurisdiction to reviewan injunctive sanction for E-Discovery non-compliance .................................................... 12

II. The First Circuit set an undesirable prece-dent by failing to recognize that ESI de-struction is a form of civil obstruction ofprocess .......................................................... 21

III. The proposed injunction to return Dr. Isaacs

to his training program was an appropri-ate sanction to address and to discouragewillful ESI discovery noncompliance .......... 23

IV. After the District Court let Dartmouth offthe hook for e-discovery sanctions, ten sub-sequent deponents refused to answer ques-tions or recall any substantive facts ........... 26


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TABLE OF CONTENTS Continued

Page

V. No administrative procedures were fol-lowed nor does an Administrative Recordexist with regard to the termination of Dr.

Isaacs. The All Writs Act allows this Courtto mitigate Applicants loss of career pend-ing resolution ............................................... 34

CONCLUSION ....................................................... 40

APPENDIX

First Circuit Court of Appeals Judgment FiledMarch 31, 2014 ................................................. App. 1

District Court Order Filed November 4, 2013 ...... App. 3

First Circuit Order of Court Filed May 5, 2014 ... App. 12


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TABLE OF AUTHORITIES

Page

CASES

Banks v. Enova Fin., 2012 WL 5995729 (N.D.

Ill. Nov. 30, 2012) .................................................... 24Barnhill v. U.S.,11 F.3d 1360 (7th Cir. 1993) ...........23

Barrette Outdoor Living, Inc. v. Michigan ResinRepresentatives, No. 11-13335, 2013 WL3983230 (E.D. Mich. Aug. 1, 2013) .........................23

Bobrick Washroom Equipment, Inc. v. Ameri-can Specialties, Inc., 2012 WL 3217858 (C.D.Cal. Aug. 8, 2012) ....................................................22

Brown v. Board of Education, 347 U.S. 483(1954) ....................................................................... 38

Communist Party of Indiana v. Whitcomb, 409U.S. 1235 (1972) ...................................................... 38

E.E.O.C. v. Frys Electronics, Inc., 2012 WL1642305 (W.D. Wash. May 10, 2012) ...................... 24

Fishman v. Schaeffer, 429 U.S. 1325 (1976) .............. 38

Lux v. Rodrigues, 131 S. Ct. 5 (2010) ......................... 38

Ohio Citizens for Responsible Energy, Inc. v.Nuclear Regulatory Commn, 479 U.S. 1312

(1986) ....................................................................... 38Pringle v. Adams, 2012 WL 1103939 (C.D. Cal.

Mar. 30, 2012) ......................................................... 25

Scott v. IBM Corporation, 196 F.R.D. 233(D.N.J. 2000) ........................................................... 23

Zubulake V, 2004 WL 1620866 (S.D.N.Y. July20, 2004) ...................................................... 22, 23, 40


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TABLE OF AUTHORITIES Continued

Page

STATUTES

18 U.S.C. 1503 ................................................... 19, 21

28 U.S.C. 1292 ...........................................................2

28 U.S.C. 1651(a) ..................................................... 38

Family Educational Rights and Privacy Act ............. 11

RULES

Rule 34 of the Federal Rules of Civil Pro-cedure ................................................ 5, 13, 14, 15, 17

Rule 37 of the Federal Rules of Civil Pro-cedure .............................................................. 5, 6, 12


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OPINIONS BELOW

The First Circuit decision denying Isaacs appeal

for lack of jurisdiction is reprinted in the Appendix

(App.) 1a-2a. A motion for rehearing en banc is re-

printed at App. 12a-13a. The New Hampshire District

Court order denying an injunctive sanction is re-

printed at App. 3a-11a. These opinions are not re-

ported.

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JURISDICTIONAL STATEMENT

The New Hampshire District Court denied a pre-

liminary structural injunction on June 8, 2012 to

mandate Dartmouths adherence to its due process

bylaws. A preliminary injunction specified in a Mo-

tion for Sanctions was denied on November 4, 2013.

Pursuant to 28 U.S.C. 1292, the First Circuit had

jurisdiction over the District Courts denial of in-

terlocutory injunctions. The First Circuit entered a

Judgment on March 31, 2014 citing lack of jurisdic-

tion and forbidding the Petitioner from filing the

Opening Appellate Brief. A Petition for Rehearing En

Banc was denied on May 5, 2014.

The Supreme Court of the United States hasjurisdiction under 28 U.S.C. 1254(1) to review this

Petition. Under the All Writs Act, 28 U.S.C. 1651,

this Court has authority to grant injunctive relief

pending final resolution of the matters.

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CONSTITUTIONAL AND

STATUTORY PROVISIONS

28 U.S.C. 1292 Interlocutory decisions

(a) Except as provided in subsections (c)and (d) of this section, the courts of appealsshall have jurisdiction of appeals from:

(1) Interlocutory orders of the districtcourts of the United States, the UnitedStates District Court for the District ofthe Canal Zone, the District Court ofGuam, and the District Court of the Vir-gin Islands, or of the judges thereof,granting, continuing, modifying, refus-ing or dissolving injunctions, or refusingto dissolve or modify injunctions, except

where a direct review may be had in theSupreme Court . . .

RULE 37. FAILURE TO MAKE DISCLOSURES OR

TO COOPERATE IN DISCOVERY; SANCTIONS

(b) FAILURE TO COMPLY WITH A COURT OR-DER.

(2) Sanctions Sought in the DistrictWhere the Action Is Pending.

(A) For Not Obeying a Discovery Order.If a party or a partys officer, director, ormanaging agent or a witness designatedunder Rule 30(b)(6) or 31(a)(4) fails to obeyan order to provide or permit discovery,including an order under Rule 26(f), 35, or


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37(a), the court where the action is pendingmay issue further just orders. They may in-clude the following:

(i) directing that the matters embracedin the order or other designated facts be

taken as established for purposes of the ac-tion, as the prevailing party claims;

(ii) prohibiting the disobedient partyfrom supporting or opposing designatedclaims or defenses, or from introducing des-ignated matters in evidence;

(iii) striking pleadings in whole or inpart;

(iv) staying further proceedings until

the order is obeyed;(v) dismissing the action or proceeding

in whole or in part;

(vi) rendering a default judgment againstthe disobedient party; or

(vii) treating as contempt of court thefailure to obey any order except an order tosubmit to a physical or mental examination.

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INTRODUCTION

Medical residency is difficult. Petitioner Jeffrey

David Isaacs commenced a surgery residency in June

2010 at the University of Arizona. Within several

days, he was told he lacked the technical skills to


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become a surgeon. Peculiarly, Dr. Isaacs had no

difficulty performing the single surgical procedure he

had been assigned at Arizona a subcuticular suture

for a cancer patient. During medical school, Dr. Isaacs

achieved higher national medical board scores than

the average neurosurgeon and honors on most ofhis clinical rotations. Nonetheless, he reluctantly

resigned from the Arizona program after a month, at

the recommendation of his Program Director.

Unable to obtain another surgery post, Dr. Isaacs

accepted a residency position offered by the Dart-

mouth College Department of Psychiatry. Within

days, Dr. Isaacs supervisors at Dartmouth placed

him under informal, then formal, probation. At that

point, Petitioner alleges he was ordered to conductheinous acts that coincided with his own medical

deterioration. Isaacs became a patient at Dartmouth-

Hitchcock, during the six months he worked there as

a doctor. Unable to stay awake more than three hours

at a time, he was prescribed a wearable actigraph

device to monitor his deteriorating health. Cardiac

arrhythmias began at this point; a later study at

the University of Pennsylvania detected ventricular

tachycardia, an often fatal cardiac condition.

Isaacs persevered with his training at Dartmouth

for six months. His primary instructor gave him

above average marks for his work with patients.

However, on January 13, 2012 his Program Director,

Respondent/Defendant Finn, informed him that he

would likely be fired for allegedly forgetting to use his

stethoscope on one patient.


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The Petitioner suddenly realized that for reasons

very different from his medical skills and knowledge,

he was unwanted in the eyes of his Program Direc-

tors at Arizona and Dartmouth. In 2006, Isaacs had

unknowingly intercepted questionable communica-

tions between a Director of the National Institutes ofHealth and The White House Office of Science and

Technology Policy Committee on Counterterrorism,

and the Dean of his medical school. This interception

occurred when Isaacs emails utilized a new return

receipt technology named ReadNotify. This unleashed

fury from the Dean and the NIH Director, and a re-

taliation lawsuit ensued for two years in the Central

California District. Five years later, someone didnt

want Isaacs to become a licensed physician because of

his prior litigation and subsequently leaked sealedrecords to Arizona and Dartmouth.

Realizing the gravity of the situation, Isaacs sent

a letter to Dartmouths President Jim Yong Kim re-

questing an investigation under the Dartmouth Busi-

ness Ethics Code that Kim himself had written. The

letter instructed Dartmouth to preserve electronic

evidence, pursuant to FRCP 34, in the event the

matter went to court. Several days after this evidence

preservation request, Petitioner Isaacs entire Dart-mouth email account was flagged for deletion. That

same week, Dr. Isaacs actigraph results disappeared

from his patient chart at Dartmouth.

In mid-March 2012, Isaacs emailed Dartmouth

relaying his concern about Kims inaction on the Eth-

ics investigation request. Isaacs began to be suspicious


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of Dartmouths silence, particularly as he was never

given any formal notice of Administrative Leave.

Likewise, the person he was imploring for help Jim

Yong Kim worked for ten years at the International

Health faculty of Harvard Medical School with the

aforementioned NIH defendant. A week after email-ing his concern, and several days before Kims nomi-

nation to the World Bank became public, Isaacs was

terminated from Dartmouths training program. It

is believed Dr. Isaacs was the first resident in Dart-

mouth history to be terminated before the peer

review Fair Hearing required under Dartmouth

accreditation bylaws.

As a sanction for deleting important evidence,

Petitioner applied to the District Court for a prelimi-nary injunction that would permit his return to work.

Rule 37 of the Federal Rules of Civil Procedure allow

for sanctions up to and including summary or default

judgment. The District Court refused to investigate

the matter. The First Circuit barred Isaacs from even

filing an appeal, citing lack of jurisdiction. Unable

to participate in the federal Medicare funded residen-

cy training system, Dr. Isaacs has effectively been

banned forever from becoming a practicing physician.

The Supreme Court is the last remaining hope tocorrect nearly a decade of injustice Petitioner faced in

his training to become a doctor.

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STATEMENT OF THE CASE

Chronologically, this case commences with events

that transpired in 1997. The Petitioner suffered a

concussion after being assaulted by an intoxicated

Dartmouth College student. Without any prior medi-

cal history, new concentration difficulties necessitated

that the Petitioner drop his pre-med curriculum,

prompting his professor to write the following to the

Dean of Students:

Im concerned about a 99, one JeffIsaacs, who recently dropped my class(Chemistry 5). He seemed distraught, almostin tears, about having to drop and told meabout having been hit in the head duringbreak I believe, and its subsequent effect on

his studies. I got the impression that this kidreally needs help and thought Id better letyou know. (USCA Appendix p. 66).

The Dartmouth administration failed to inter-

vene despite the warning. Nonetheless Isaacs did

earn an A.B. Honors degree in Computer Science

without delay. The Petitioner ultimately completed

his pre-med studies through a circuitous route span-

ning some seven years, in efforts to fulfill his long-

term goal of becoming a brain surgeon. These sevenyears included obtaining his commercial pilot license,

working as an investment banker at Merrill Lynch in

New York City, working at an internet startup group

in Paris that yielded Europes first Internet IPO,

completing an MBA program at Wharton, and per-

haps most significantly, receiving a full scholarship to


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Vanderbilt Law School where Isaacs was enrolled

for just under a year. Isaacs graduated from medical

school in 2010, where his score of 241/99 on the

United States Medical Licensing Exam surpassed the

average neurosurgeon. As a medical student, he re-

ceived honors in most of his two years of competitiveclinical medical student rotations at the Cleveland

Clinic (orthopedics & emergency medicine), Mount

Sinai School of Medicine (neurosurgery and ophthal-

mology), and St. Georges University of London (der-

matology, obstetrics and radiology).

The Petitioner returned to Dartmouth in July

2011 to pursue neuroscience research and preventa-

tive medicine as a resident physician with the Dart-

mouth College Department of Psychiatry. During hisemployment, the Petitioner spent 90% of his time

working with one Dr. Donald West, who gave him

pretty much superior evaluations (Isaacs Deposition

p. 113). The other 10% of the time comprised of his

first week of employment on the internal medicine

ward, roughly two dozen after-hours on-call shifts, as

well as his final week at Dartmouth, ending January

13, 2012. It is this 10% of Petitioners time at Dart-

mouth, which was managed by senior Program Direc-

tors with knowledge of Keck, that is under disputein the underlying lawsuit and alleged to have consti-

tuted a major fraud against Isaacs and the Medicare

reimbursement system.

On Friday January 13, 2012, the Petitioner was

admitted to the Dartmouth-Hitchcock Emergency


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Room. In the ED, the Plaintiff frantically hand-wrote

a criminal complaint:

At approximately 10AM this morning Ilearned of illegal workplace behavior I havebeen subjected to by DHMC staff and Dart-

mouth College professors. (USCA Appendixp. 211).

This is where the case and understanding how

a generally well achieving doctor suddenly suc-

cumbed to a medical breakdown becomes compli-

cated. In 2010, Isaacs worked as a surgeon at the

University of Arizona and Tucson Veterans Admin-

istration Hospital for six weeks, at which point he

voluntarily resigned. By his third day of work at

Arizona, he was told he was far behind his peers and

faced peculiar criticisms of poor technical ability, de-

spite only ever being asked to do one technical proce-

dure at Arizona and doing a perfect job (Isaacs

depo. p. 117):

I was only asked to do one technical proce-dure in surgery, which was suturing a port-a-cath at Arizona that was a subcuticularsuture they asked me to do. I remember thatvery well because in the Caribbean first se-mester seven years back my anatomy lab tu-

tor, it was Dr. Stam, taught me how to do asubcuticular on a cadaver. I had only donethat once. I practiced it four times in front ofher, and that was the last subcuticular I diduntil being asked to do one in Arizona. And Iremember being surprised that I remem-bered the procedure so well that I actuallydid a very good subcuticular.


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After leaving Arizona, the Petitioner sent an elec-

tronic CV (called ERAS) applying for a residency at

Dartmouth. Simultaneously, the Petitioner requested

that the Accreditation Committee for Graduate Med-

ical Education investigate his time at Arizona. Arizona

Surgery had already been on the most serious level ofACGME probation for intimidation of residents. The

Petitioner was unsure whether the mistreatment he

received there was a result of the general practices

that caused Arizona to be on probation, or another

issue more specific to himself, involving a federal

legal dispute dating back to 2006.

In 2006, Petitioner had enrolled as a medical

student at the University of Southern California Keck

School of Medicine. He became involved in an un-fortunate dispute with a classmate of his, one Amy

Baughman. A relationship turned sour rather quickly,

and involved dispute resolution with an Associate

Dean of Students. In short, Plaintiff claimed that Ms.

Baughman was attempting to repair her reputation

at his expense. During their disputes, Ms. Baughman

had warned Plaintiff I got into medical school

through connections, and Ill get a residency through

connections. Her father was a director of the Na-

tional Institutes of Health Neurosciences Division(NINDS) and the White House Counterterrorism

Office. At some point, Petitioner sent a cease & desist

notice to Baughman, using what was then a new

return receipt email service called ReadNotify. That

same day, the return receipt indicated the email went

to the NIH, and then to an office at USC Zilkha


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Room 101, followed by Baughman obtaining a USC

Undergraduate Student Association stay away or-

der against Petitioner.

A strange scenario occurred where two medical

school classmates had a stay away order in a tight-

knit class of one hundred sharing lectures and labor-

atories. Baughman appeared to leverage the stay

away order to taunt the Petitioner. After some time,

Petitioner discovered that the Zilkha Neurosciences

Institute Room 101 was unoccupied, but had previ-

ously been occupied by the Dean of Keck, one Brian

Henderson. Henderson had been promoted to Dean

after raising tens of millions in NIH funds for the

creation of Zilkha. Petitioner realized that Baughman

had garnered support of the Dean. Classmates werebecoming distressed by the entire situation. Appar-

ently, Baughman did have connections to medical

school and residency (she is now a physician at Har-

vard Massachusetts General Hospital).

The Petitioner sought to resolve the issue and

back off, so he telephoned Baughman and apolo-

gized, essentially taking responsibility for the entire

dispute. He was disciplined for apologizing, which

technically violated the stay away order issued by the

school. A year of nightmare litigation ensued during

which Isaacs continued medical studies at three

different international medical schools, including

the Duke/National University of Singapore, and St.

Georges London. Finally, Petitioner and the Keck

medical school reached an agreement to seal his dis-

ciplinary records from Family Educational Rights and


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Privacy Act (FERPA) disclosure. A subsequent global

settlement agreement was reached with Keck, in ex-

change for discharging all contracts and agreements,

of any nature whatsoever.

Between the two settlement agreements, Peti-

tioner could move on and treat Keck as a nullity. It

was at this point in mid-2008 that Petitioner achieved

the 241/99 on USMLE and commenced his clinical

rotations in neurosurgery related fields. All was

seemingly well, until Dr. Isaacs Program Directors

at Arizona and Dartmouth learned about his prior

litigation against a Director of the NIH and a Cal-

ifornia medical school. They felt they needed to

protect other residents at their hospital from the

Petitioner, and organized a pathologically elaborate

fraud to oust him. The evidence supporting thisassertion was destroyed and buried by ten law firms.

Petitioners only option to recover his medical career

was to seek an injunction, under Federal Rule of Civil

Procedure 37, as a sanction for evidence destruction.

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REASONS FOR GRANTING THE PETITION

AND ISSUING AN INJUNCTION PENDING

RESOLUTION IN THE LOWER COURTSI. The First Circuit erroneously barred an

appeal citing lack of jurisdiction to review

an injunctive sanction for E-Discovery non-

compliance.

On January 15, 2012, Dr. Isaacs sent Jim Yong

Kim an email requesting preservation of key electronic


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evidence, including relevant Dartmouth-Hitchcock

emails:

I shall be requesting expedited discovery.Pursuant to Rule 34 of the Federal Rules ofCivil Procedure, I hereby request that all

electronic records relevant to my employ-ment (including GIM/Psych Program Directoremail/phone logs, Department of Psychiatryinternal communications) be immediately au-dited and preserved. (USCA Appendix p. 238).

Three days later and two months before Dart-

mouths own email policy would allow the DHMC

Outlook account was deleted by Dartmouth employee

Christine Fitts, operating under instruction from

Defendant Christine Finn.

The Rule 34 request prompted a spiteful reaction

to delete Isaacs email account. His litigation history

against Keck already the subject of fascination for six

months, Jim Yong Kim responded to the Rule 34

request (via an intermediary) by instructing Finn to

delete the account. At her deposition, Finn initially

denied ever having communicated with Jim Yong Kim

(Finn depo. p. 137):

Q. Do you remember if Jim Yong Kim re-ceived any letter such as this [the Rule 34request] on January 15th?

MR. CHABOT: Objection, foundation.

A. I dont know what he was provided with,no.


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Q. If he was provided with this letter, didhe tell you to preserve, according to theseinstructions, last paragraph, preserve alle-mails?

MR. CHABOT: Same objection.

A. Ive never had any interactions with Dr.Kim about this or any other matter.

Q. Around that time period, did anyone in-struct you to save all e-mails, not to deleteanything relating to this lawsuit?

A. No, I dont think so.

Finn changed her testimony when presented

with this email she wrote on January 17th, asserting

knowledge of the Rule 34 email to Kim:Today, [Isaacs] sent an email to Jim Kim..Ive not seen the document, but from what Ihear . . . it is completely ridiculous (USCA

Appendix p. 370).

Finn therefore admitted that, at the time she de-

leted his emails, she knew generally about the Rule

34 letter to preserve evidence (Finn depo. p. 165):

Q. Ill rephrase it. Earlier did you testify

that you did not know if Jim Yong Kim re-ceived Exhibit A [the Rule 34 request],wasnt that your testimony earlier?

A. Yes. . . .

Q. Okay. But do you think you generallyknew or there was some communication


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about that e-mail coming into Dr. Kim thatgot to you?

A. Apparently.

Q. Okay. So you want to revise your earliertestimony, is that right?

In short, Finn was evading the question about

her knowledge of the Rule 34 email by changing the

subject to whether or not she personally could con-

firm Jim Yong Kims receipt of the email. Such decep-

tive responses were typical of all deponents behavior

in forty some hours of depositions.

Perhaps more disconcerting than Finns response

was the testimony of Dr. William Torrey, the Harvard

Medical School educated 30(b)(6) deposition designeefor Dartmouth College. Dartmouth simply had no ex-

planation for why three Dartmouth employees (Fitts,

Finn, & Jim Yong Kim) deleted the emails [Torrey

30(b)(6) depo. p. 87]:

Q. So is it correct that on January 16, inthis document, the plaintiff requested e-mailsbe held for litigation, based on what you arereading?

A. Right, right. Thats what this said.

Q. Okay. And is it correct that ChristineFitts, several days later, on or about January17, conveyed or communicated somethingthat led the DHMC IT department to believethey should delete the e-mail account of theplaintiff?


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MR. PYLES: Objection to form.

MS. PEAHL: Objection to form. And I alsoobject its not a 30(b)(6) question.

A. I just dont have any idea.

Q. Does it appear that Dr. Kim was negli-gent in receiving the Federal Rule of CivilProcedure Rule 34 to preserve electronicallystored information?

MS. PEAHL: Objection to the form and

DR. ISAACS: Im asking the Trustees ifthey have a position on whether anyone, in-cluding Jim Yong Kim was negligent. I dontsee how you can object to that.

MR. PYLES: Respectfully, I do. I objectform.

DR. ISAACS: Well, I can rephrase. I mean,we can narrow down the form, if youd likeme to keep doing that, but maybe give him achance to answer

Q. Okay. That was a question about negli-gence. Do the Trustees have any knowledge,belief or opinion regarding intentional de-struction of e-mails?

A. I wouldnt be able to answer for theTrustees.

Q. No, you are are not you are answer-ing for the Trustees.

A. I dont know the answer.


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Q. Okay. So you heard that the premature you heard that the DHMC e-mail policywas not, for whatever reason, was not fol-lowed?

A. Yeah, thats my understanding.

Q. Okay. But you dont know or you donthave knowledge or opinion whether it wasnegligent or intentional?

MR. PYLES: Object to form.

Q. (BY DR. ISAACS) Was it negligent, thedeletion?

MR. PYLES: Same objection.

A. I dont know anything about it.

The testimony of Finn, and the written evidence,

confirmed that Finn deleted the emails days after the

Rule 34 request. Months before Finns deposition,

Kaplan testified to a vastly different story in the Oc-

tober 31st hearing concerning the Motion for Sanc-

tions. Knowing sanctions are typically exempted for

automatic deletion processes, Kaplan completely fab-

ricated that a PeopleSoft automated process deleted

the emails. This was in stark contrast to the evi-

dence, and Finns own admission to manually delet-

ing the emails. The District Judge turned a blind eye

to the Defendants contradictory excuses:

I deal directly with the folks in the IT groupthere. I asked a series of questions, not theleast of which was if there was absolutely nolimitation on the amount of money that I


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could give you or expend in order to securethose records, how could we do it? And theirIT group came back and told me that theycould not, that there was a write-over, thatsthe way the system works . . . It was an au-tomatic process. A process, I believe its

called PeopleSoft, went into place and 30days thereafter his Outlook account was de-leted. (Statement of Ed Kaplan, Transcriptp. 18).

Attorney Kaplan also negotiated that he wanted

to choose his own forensic investigator in response to

the motion request for forensic analysis of Dart-

mouths IT systems :

MR. KAPLAN: This isnt the first time that

Ive been involved in computer issues. Howabout if the Court is inclined to have ushave an independent individual look at it, Ineed to ask a preliminary question, which is,is the independence of an independent per-son destroyed by, if I can identify somebodyfor the Court? I mean, because weve usedcomputer experts before in other litigation. Imean, I can certainly find an independentperson, but Im not sure if its a person that Ilocate that Ive automatically killed his or

her independence. But if thats okay, if thatswhat the Court wants (Transcript p. 26).

Attorney Kaplan was begging to hire his own

investigator. It is rather disconcerting that the Dis-

trict Judge not only pondered Kaplans request to

investigate himself, but then denied any investigation


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whatsoever. The Motion for Sanctions, pursuant to 18

U.S.C. 1503, sought U.S. Marshal and/or FBI pos-

session of the remaining evidence for forensic analy-

sis. The Defendants were let off scot-free with a

nontrivial obstruction of justice.

At the District Court hearing, Isaacs testified

that the emails evidenced his mistreatment over six

months. Furthermore, Isaacs was concerned that if

Dartmouth improperly deleted his Outlook account,

then they also deleted other smoking gun evidence

about how Dartmouth learned about Keck (Transcript

p. 32):

MR. ISAACS: Theres a problem that threedays after that email to Dr. Kim, a non-

automatic process occurred. And, you know, Ireally feel from what Ive seen of the civilprocedure and civil discovery process, Imean, [the FRCP] its an honor code at a lotof levels, and it appears to me that honorcode was violated.

THE COURT: Let me ask you this. You justsaid earlier to the Court that there reallywasnt anything in there, because youve gotall of it. You saw it all. You basically remem-ber it. You wish you had your email account,thats understandable. But if there were asmoking gun in there, you would have seenit. So what would motivate somebody atDartmouth to delete something that doesntcontain any damning evidence against them?

MR. ISAACS: I also wanted to correct whatI said before. You asked what claims this all


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20

applied to and I said the IIED claims. It alsoapplies to the fraud claim. I think therewould be evidence in those emails that therewas IIED. For sure they were emailing meevery day off. I dont recall all of them, butthere would be a pattern of that I was a

persona non gratathere.

The District Judges denial of sanctions was min-

imal in explanation and simply ignored the dozens of

authoritative case law citations the Petitioner pro-

vided in his Memorandum of Law. She didnt provide

any reasoning, other than stating the emails werent

important, which defies common sense and is dis-

couraged by public policy:

All of plaintiff s requests for sanctions are

DENIED. The defendants have not violatedany court order to compel discovery. Sanc-tions are inappropriate at this time . . .

As plaintiff candidly admitted, plaintiff isgenerally aware of what was in his Outlookaccount, as he previously saw the ingoingand outgoing emails of that account. Plaintiffstated that he cannot recall any smokinggun email evidence in his Outlook account.(USCA Appendix p. 334)

In essence, the judge ignored Isaacs testimony

and the obvious that a hospital physicians emails

would be important to demonstrate a pattern of un-

due criticisms and IIED. The District Judge erred in

concluding that Petitioner testified that the deleted


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21

emails were not critical; he filed a lengthy motion for

sanctions because they were indeed important.

There exists concern that the District Court in

New Hampshire lacked sufficient courage to enforce

laws against the venerable Dartmouth College and

the President of the World Bank. An appeal to the

First Circuit is the legal systems solution to any de-

ficiency that may have existed in the New Hampshire

District. Pursuant to 28 U.S.C. 1292, the First Cir-

cuit had clear jurisdiction over the District Courts

denial of this denied injunction. FRCP 37 in no way

restricts a District Court from issuing an injunctive

sanction. Therefore, the First Circuit erred in refus-

ing to allow the Petitioner to file an appeal.

I. The First Circuit set an undesirable prece-

dent by failing to recognize that ESI de-

struction is a form of civil obstruction of

process.

Petitioner cited 18 U.S.C. 1503 applicability to

discovery, prohibiting obstruction of justice. Section

1503s omnibus or catch-all clause is broadly writ-

ten (USCA Appendix p. 245):

Whoever . . . corruptly or by threats or force,

or by any threatening letter or communica-tion, influences, obstructs, or impedes, or en-deavors to influence, obstruct, or impede, thedue administration of justice, shall be pun-ished as provided in subsection (b).

The Court erred in denying Petitioners request

for forensic analysis and subsequent prosecution of


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22

known evidence destruction. The District Court

simply chose to ignore precedent ESI case law, such

as that Petitioner had cited (Addendum p. 249) in

Bobrick Washroom Equipment, Inc. v. American

Specialties, Inc., 2012 WL 3217858 (C.D. Cal. Aug. 8,

2012), where that court ordered an independent fo-rensics expert, at the Defendants expense, to conduct

a search of the defendants servers.

Petitioner made a direct case for an injunctive

sanction under a well-established ESI sanctions case,

Zubulake V, 2004 WL 1620866 (S.D.N.Y. July 20,

2004). The standard from Zubulake is as follows:

(1) party having control over evidence had duty to

preserve at time it was destroyed; (2) that the records

were destroyed with a culpable state of mind; (3) thatthe destroyed evidence was relevant to partys claim

or defense so that trier of fact could find that it would

support that claim or defense. A culpable state of

mind, underZubulake Second Circuit jurisdiction, in-

cludes either a) negligence when the data is relevant,

or b) intentional destruction.

As shown, Dartmouths 30(b)(6) deponent couldnt

deny negligent deletion at a minimum. There is little

dispute that a six-month Outlook email history was

relevant and could assist a jury in understanding the

evidence. Petitioner testified, based upon his knowl-

edge of the account, it contained evidence for an IIED

claim. There is no question Jim Yong Kim received

formal notice of the duty to preserve, two months be-

fore Petitioners termination. All conditions for sanc-

tions were indisputably met in this clear case of ESI


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23

spoliation; the District Court erred in failing to rec-

ognize thatZubulakeapplied.

Case law prior to Zubulake similarly supported

sanctions against Dartmouth: While a litigant is un-

der no duty to keep or retain every document in its

possession, even in advance of litigation it is under a

duty to preserve what it knows, or reasonably should

know, will likely be requested in reasonably foresee-

able litigation. Scott v. IBM Corporation, 196 F.R.D.

233 (D.N.J. 2000).

The Motion for Sanctions also cited Barrette

Outdoor Living, Inc. v. Michigan Resin Representa-

tives, No. 11-13335, 2013 WL 3983230 (E.D. Mich.

Aug. 1, 2013) (USCA Appendix p. 247), where sanc-

tions were issued solely on the suspicious timing ofthe deletion of the ESI.

III. The proposed injunction to return Dr. Isaacs

to his training program was an appropriate

sanction to address and to discourage will-

ful ESI discovery noncompliance.

The Court has broad discretion to fashion an

appropriate sanction as long as it is proportionate

to the circumstances Barnhill v. U.S.,11 F.3d 1360,1367 (7th Cir. 1993). At the point the Motion for

Sanctions was filed, it was known that Dartmouth

destroyed ESI evidence of Isaacs disability, specific-

ally, the two-week actigraph study. It was known that

electronic mail accounts were spoliated. Similarly,

Dartmouth refused to comply with the American


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Recovery Reinvestment Act provisions requiring pro-

duction of the EPIC audit log. In short, all confidence

in the integrity of Dartmouths electronic discovery

production was lost. Petitioners only remaining hope

to win the case relied upon honest witness testimony

in the forthcoming depositions. Unfortunately, basedupon their pattern of behaviors, Petitioner correctly

surmised Dartmouths deposition witnesses might be

unreliable as well.

Accordingly, he moved for a sanction to return

him to his residency program at Dartmouth. Such an

injunction reflected the importance of destroyed evi-

dence that would have been critical to achieving the

permanent injunction Isaacs sought returning to

residency was the primary motive of the lawsuit.With the evidence destroyed, Isaacs should have been

permitted considerable leeway in arguing what in-

formation might have been gleaned from the com-

puter hard drivers [sic] that were destroyed,

E.E.O.C. v. Frys Electronics, Inc., 2012 WL 1642305

(W.D. Wash. May 10, 2012). This leeway that ESI

was destroyed implicating mistreatment motivated

by the Keck lawsuit would have paved the way for

an injunction returning to Dartmouth.

An injunction would not have been the most

heightened form of sanctions available. Given the

broad discretion to enforce due process via sanc-

tions, the District Court may order a preliminary

injunction, summary judgment presumption, and/or

jury instruction appropriate to the scope of the case.

In Banks v. Enova Fin., 2012 WL 5995729 (N.D. Ill.


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25

Nov. 30, 2012), the magistrate judge sanctioned the

defendant with a presumption at the summary judg-

ment stage about a critical voicemail, and if the case

went to trial, the magistrate recommended that the

jury be instructed with a spoliation charge. In

Pringle v. Adams, 2012 WL 1103939 (C.D. Cal. Mar.30, 2012), the District Court granted summary dis-

missal of a claim after it was proven that evidence

was spoliated. Intentionally spoliated evidence may

be cause for dismissal or default judgment, on the

rationale that the lost evidence may have been the

critical smoking gun required to prove or disprove

a claim. In sum, an argument could be made that

Dartmouth should have lost the entire case based on

its suspicious ESI deletions. Isaacs, a pro selitigant,

didnt wish to make that case; he merely asked toreturn to his job.

Petitioners medical symptoms lead Dartmouth

Psychiatrys Sleep Center to prescribe an actigraph

device study, a wearable medical diagnostic device

placed on his arm for two weeks in October 2011. In

January 2012, two weeks after Petitioner noticed this

lawsuit, Dr. Glen Greenough wrote in Isaacs DHMC

Patient Chart that the actigraph suffered device

failure and data was irretrievably lost three monthsafter the study. The actigraph device would have

provided forensic level evidence of Isaacs disabil-

ity. This data was inexplicably lost the same week

Isaacs email account disappeared. The District

Court erred in failing to recognize an impermissible

pattern of ESI deletion that occurred in the days


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26

following Jim Yong Kims receipt of the Rule 34 re-

quest.

As required by ARRA, DHMCs computer system

(EPIC) maintains audit records detailing who and

when any DHMC staff accesses a patients electronic

medical chart. Petitioners motion for sanctions sought

to immediately compel production of this audit trail.

To elaborate, when the Petitioner was a patient in

the DHMC ED on January 13, 2012, he began to

receive numerous emails and pager messages from

colleagues regarding his hospitalization. This sug-

gested a HIPAA violation of his patient records, but of

more concern was obtaining the evidence of the

apparent curiosity to his medical chart in relation to

his mistreatment. This is the third type of ESI, inaddition to emails and actigraph data, that Dart-

mouth did not produce.

IV. After the District Court let Dartmouth off

the hook for e-discovery sanctions, ten

subsequent deponents refused to answer

questions or recall any substantive facts.

The depositions in this lawsuit began quite

strangely, with Dr. Khagi not able to recall whether

or not he knew, on Petitioners first day of work,

about the prior training in Arizona Surgery (Khagi

depo. p. 15):

Q: You have no knowledge that the plaintiffwas enrolled at a surgery program in Arizona?

A: I cant recall. I dont remember that.


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Q: Wouldnt that be something youd re-member, if someone was in a surgery resi-dency?

A: My focus is on patient care, not so muchas knowing where all my residents did their

residency prior residencies. So, no, I cantexactly recall.

Q: Is it possible that you knew that plain-tiff was in Arizona for residency prior to hisstarting with you?

A: Im sorry. Could you please Is it possi-ble What do you mean by possible?

Chair of the Dartmouth College Department of

Psychiatry Alan Green was initially scheduled as the

30(b)(6) deponent in this case. Green was deposedindividually because Dr. Torrey was substituted in

for Green at the 30(b)(6). Strangely, Green professed

to have no understanding of the lawsuit:

Q: Do you know in your own words, couldyou briefly summarize what you believe thislawsuit is about?

A: Actually, I I really dont know. I under-stand that theres a question about your ter-

mination from Dartmouth-Hitchcock residency.But more than that, I really dont knowmuch about it.

Green was alleged to have had knowledge about

USC and AZ and to have stared at Petitioner for

nearly 30 minutes during an orientation day speech,

which he didnt recall:


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Q: Do you recall if you gave a speech on theplaintiff s first my being the plaintiff firstor second day of orientation?

A: I dont recall that.

Q: Okay. So you wouldnt recall what theplaintiff has alleged to be abnormal eye con-tact, 25 minutes, approximately, of eye con-tact directed at the plaintiff during yourspeech?

A: No.

As stated in the fraud claim against the depart-

ment, the unexpected attrition of four residents cre-

ated an incentive to keep the Petitioner employed for

six months, pending the hiring of his replacement. To

prove this claim, Petitioner required detailed knowl-edge of how the Department receives funds from Med-

icare. Despite being a 30(b)(6) topic, Dr. Torrey was

unable to answer. When Department Chair Green

was asked, he, also, had no idea (Green depo. p. 32):

Q: And if a resident or four residents, inthe case of Dartmouth Psychiatry if fourresidents were unexpectedly vacant, wouldthat [Medicare] money still come in?

A: That I dont know.

Q: Okay. Who would know that question atDartmouth?

A: I dont know that, either. I dont know.

Likewise, Green had never inquired why his

own department abandoned Isaacs as a patient and


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29

lost actigraph data documenting his sleep disorder

(Green depo. p. 55):

Q: Are you aware of any investigation thatyour department conducted as to why the pa-tient was abandoned as a patient and why

his actigraph watch disappeared or malfunc-tioned?

A: No.

Finally, Green was asked a central question of

the case did Defendant Finn know about Arizona

Surgery from a May 2011 document she signed

(p. 73):

Q. Do you know if Dr. Finn saw the NewHampshire Board application that I filled

out in May of 2011?

A: No.

Q: You dont know whether she saw it ornot?

A: No.

Q: Do you think its worth investigatingwhether or not she saw it?

A: I have no way of assuming that no.

The answer is, I dont know whether it isworth investigating. I dont know.

As Dartmouths own ESI was not intact, Peti-

tioner sought to subpoena Defendant Finns mobile

phone call logs and her Gmail account. As Google

and Verizons ESI preservation is substantially more


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30

reliable than Dartmouths, this would likely show

whether or not she discussed Arizona and USC with

any related individuals, and could also establish a

timeline for when she decided to terminate the Peti-

tioner. As stated in the Emergency Motion for Recon-

sideration, Counsel refused to let her testify:

Q. Okay. Could you state your phone num-ber for the mobile phone.

MR. CHABOT: Only if youre going to agreeto seal this portion of the record.

DR. ISAACS: Thats fine. Its just for a sub-poena.

MR. CHABOT: Youre not going to be issu-ing any subpoenas. Youre past the close of

discovery.

DR. ISAACS: Thats not true.

MR. CHABOT: Yes, it is. You are. Youre notgoing to answer, Im sorry. Were not going togive you her home phone number.

DR. ISAACS: Thats not privileged though,so she has to answer it or I will move forsanctions.

MR. CHABOT: You can make whatever mo-tion youd like, Dr. Isaacs. Were not going toget into the irrelevant personal information.

DR. ISAACS: I thought we agreed to ex-tend discovery until February.

MR. CHABOT: No, I dont think so.


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MR. KAPLAN: There was an order issuedtoday.

DR. ISAACS: The order must have beendifferent than what we agreed to; is thatright?

MR. KAPLAN: No. It was exactly what weagreed to.

DR. ISAACS: Well then, well talk aboutthat later. Thats different than my under-standing. What carrier do you have, Verizonor T Mobile?

MR. CHABOT: Same objection. Dr. Finn,you dont need to answer that.

DR. ISAACS: Thats ridiculous. If you want

to come back about it.

MR. CHABOT: Dr. Isaacs, you appear toknow what her cell phone number is. Its allthe information that we are going to giveyou. We are not going to give you the homephone number.

DR. ISAACS: I dont want the home num-ber, I want the cell phone number. Was thata misunderstanding?

MR. CHABOT: Thats exactly it, youre justgoing to have to make a request to the courtif you want that information.

Q. What e-mail and online services do youuse?


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32

A. I have an e-mail account through workthrough Hitchcock and Dartmouth.

Other than that? I have a Gmail account. What is

the Gmail account?

MR. CHABOT: Same objection. Were notgoing to be giving that information out toyou, Dr. Isaacs.

DR. ISAACS: Because you dont want anysubpoenas to break your cover up. Thats nota good reason, thats not a privilege.

MR. CHABOT: Thats not the reason wereasserting, Dr. Isaacs. Were asserting be-cause its unduly burdensome given the ex-treme amount of discovery weve provided

which despite all of your allegations hasnever once shown a suggestion of anythingimproper going on. Theres absolutely no rea-son, based on the discovery youve given,which has been nearly plenary, that youshould be able to explore any further e-mailaccounts, and thats our objection.

DR. ISAACS: Thats not a privilege.

MR. CHABOT: Unduly burdensome is anobjection. Youre right, its not a privilege, its

an objection.

DR. ISAACS: Youre directing her not toanswer an unprivileged question.

MR. KAPLAN: Dr. Isaacs, youre runningout of time, finish up. Youve got a minute bymy watch.


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33

Similarly, Petitioner sought to learn the identity

of a graduate from Isaacs medical school who was

hired the same week Isaacs was terminated. Prior to

Isaacs, Dartmouth had never hired an individual

from his international medical school. The timing of

the hiring also suggested that the individual wasinterviewed months before Isaacs termination, which

suggested Dartmouth was researching Petitioners

past in Arizona and California well before they claim

they learned about it. Attorney Kaplan ordered wit-

ness Dr. Harley Friedman not to disclose the name of

the individual: (Friedman depo. p. 92)

Q: Whats the name of the [DHMC resi-dent] that went to my school, AUC?

MR. KAPLAN: No. Im not going to let himidentify other individuals.

DR. ISAACS: If you dont answer thatyoure going to be under penalty of not an-swering.

MR. KAPLAN: Thats fine. What he will doif you want him to answer the question, hewill identify the person by initials and an-swer the question.

DR. ISAACS: Im not agreeing to that.MR. KAPLAN: Frankly, Dr. Isaacs, I dontcare what you agree to. Its my obligation todirect the witness.

DR. ISAACS: Therell be a motion for sanc-tions. Whats your objection? Whats yourprivilege on that?


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34

MR. KAPLAN: My privilege on this is thatthe resident will maintain his confidentialbasis, and Im not going to have him disclosethe name. If you want to know about a resi-dent, he will identify him by his initials andyou will know exactly who he is.

DR. ISAACS: And not state a privilege. Youguys should be sanctioned severely for direct-ing him not to answer a question withoutstating a privilege.

MR. KAPLAN: You have my response. Doc-tor. If you want to talk about a resident, usethe initials, not the name.

In sum, Petitioners case relied upon electronic

records to prove a rather complex fraud. By denying

sanctions substantiated by willful ESI destruction,

the New Hampshire District Court signaled to Dart-

mouth that it was turning a blind eye on discovery

noncompliance. Indeed, ten depositions were conducted

where Dartmouth witnesses inexcusably had no rele-

vant information or refused to provide information.

V. No administrative procedures were fol-

lowed nor does an Administrative Record

exist with regard to the termination of Dr.Isaacs. The All Writs Act allows this Court

to mitigate Applicants loss of career pend-

ing resolution.

Dartmouth executed a termination of the Peti-

tioner without following any of Dartmouths own

internal administrative policies. No written record of


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35

Administrative Leave was ever issued; as Petitioner

testified, he was informally blackmailed to resign on

January 13, 2012, leading to a breakdown diagnosed

the same day in the DHMC ED. Two months later,

Dartmouth issued a termination letter in mid-March

2013, skipping the peer review Fair Hearingprocessrequired at Dartmouth. There is no ambiguity in De-

fendant Finns testimony regarding the complete lack

of written administrative documents (Finn Depo

p. 252)

Q. There was no written notice of this.There was no administrative leave documentor notice of hearing offered to me that Isigned, right?

A. Correct.The administrative leave matter had been dis-

cussed specifically on p. 247 of Finns Deposition:

Q. Okay. So when did you place the Plain-tiff on administrative leave?

A. I need to review the exact date.

Q. Did you ever give the Plaintiff writtennotification of administrative leave?

A. I dont recall.Q. Isnt that a required part of administra-tive leave, to give written notice?

A. I wasnt sure of the GME policies andprocedures.


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36

Q. If you were blackmailing someone or co-ercing them to resign, might you not give anadministrative leave document to them?

MR. CHABOT: Objection, calls for specula-tion, states facts not in evidence.

Dartmouths seemingly absurd position is that in

the meeting where they blackmailed the Petitioner,

they handed him a generic copy of the Dartmouth

rule book, including the pages discussing the Fair

Hearing process.

A. On the day [Jan. 13 2012] that we met inJanuary you were provided with a printedcopy of the GME policies and proceduresaround the grievance process which details

the fair hearing process.Q. So by handing me that sheet of paper,you were offering me a fair hearing?

A. Yes, and I encouraged you to follow upwith the GME office which you indicated youwere going to do apparently and then can-celled.

The fact, based on the written record, is that Dr.

Isaacs never received any notice of Fair Hearing or

administrative leave prior to termination. His emailaccount disappeared while he was actively treating

patients, before he was ever formally placed on ad-

ministrative leave. In addition to evidence of his

abuse by his supervisors, the email account contained

important information about the ongoing medical

care Dr. Isaacs provided to his patients. One can only


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37

conclude that the Respondents never had any serious

intention of giving Dr. Isaacs a proper fair hearing.

The termination occurred one week before Jim

Yong Kims nomination to the World Bank, in efforts

to discredit Isaacs. It is well established that a Dis-

trict Court must offer considerable deferral to the

administrative findings of an educational institution.

In this case, the District Court erred in accepting

Plaintiff s administrative termination as legitimate.

Plaintiff never participated in theFair Hearingwhich

stipulates that nine fellow physicians must vote and

achieve a quorum for proper termination. As a matter

of law, Isaacs termination was faulty.

Early in the litigation, the Petitioner filed a mo-

tion seeking to enjoin certain defendants from ter-minating [Isaacs] employment and enrollment in

their graduate medical education program, prior to

satisfying due process requirements. Plaintiff thought

this to be a straightforward injunction merely requir-

ing Dartmouth maintain his employment until proper

due process, i.e., the Fair Hearing, occurred. The

court denied the injunction (see Docket Item #35):

The problem or one of them, anyway is

that DHMC has already terminated Isaacsfrom its graduate medical education programand published the information in question.

A request for injunctive relief to preventactions that have already occurred is moot.See, e.g., Newspaper Guild of Salem v.Ottaway Newspapers, Inc., 79 F.3d 1273,1275 (1st Cir. 1996).


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38

It is asserted that the District Court had clear

authority to require that Dartmouth follow its own

administrative procedures. An injunction merely or-

dering a GME student return to training, pending

a Fair Hearing, would seem to meet any possible

sliding-scale threshold requirements. The DistrictCourt has vast powers to grant equitable relief.

Surely, an injunction requiring a school adhere, or

correct its own violation of its administrative rules

falls within the realm of possibility for an injunction.

As best as Plaintiff can ascertain, the District Court

erred in citingNewspaper Guild. Certainly the Court

was aware that, no later than Brown v. Board of Ed-

ucation, 347 U.S. 483 (1954), it was commonplace for

District Courts to issue so-called structural injunc-

tions mandating adherence to a schools own adminis-trative regulations.

The All Writs Act, 28 U.S.C. 1651(a), authorizes

the Court to issue an injunction when (1) the circum-

stances presented are critical and exigent; (2) the

legal rights at issue are indisputably clear; and

(3) injunctive relief is necessary or appropriate in aid

of [the Courts] jurisdictio[n]. Ohio Citizens for Re-

sponsible Energy, Inc. v. Nuclear Regulatory Commn,

479 U.S. 1312 (1986) (Scalia, J., in chambers) (quot-ingFishman v. Schaeffer, 429 U.S. 1325, 1326 (1976)

(Marshall, J., in chambers); Communist Party of In-

diana v. Whitcomb, 409 U.S. 1235 (1972) (Rehnquist,

J., in chambers); and 28 U.S.C. 1651(a)) (alterations

in original). This extraordinary relief, see Lux v.

Rodrigues, 131 S. Ct. 5, 6 (2010) (Roberts, C.J., in


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39

chambers), is warranted in cases involving the immi-

nent and indisputable violation of civil rights.

The Petitioner has spent over two years seeking

an injunction to return to federally funded graduate

medical education. His career had been delayed two

years in 2006 as a result of the controversy involving

the National Institutes of Health. A head injury set

back his medical career at least an additional two

years. There is not unlimited time to begin the in-

tense training of a physician; neurosurgery training

requires a minimum of seven years. Petitioners col-

leagues from medical school are now years ahead of

him. In short, if Petitioner is held back any more

years in training, there is the likelihood that he will

never be able to pursue his training.Furthermore, Petitioner has suffered and con-

tinues to suffer serious medical ailments diagnosed

by the Respondents themselves. It is unknown but

seemingly likely that three or four more years of pro

se legal battles with Dartmouth could more per-

manently damage Petitioners health and/or career. If

the Court finds that the First Circuit indeed had

indisputably clear jurisdiction to hear an appeal,

Petitioner hereby requests the issuance of an injunc-

tion pending what could be a lengthy resolution in

the First Circuit and New Hampshire District.

------------------------------------------------------------------


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CONCLUSION

The past decade witnessed a surge in global

connectivity that fundamentally changed how we, as

a society, communicate and interact with one another.

The long-term social and health implication of ubiqui-

tous email and mobile device use raises a multitude

of important questions. Within the realm of civil

discovery and evidence preservation, this increased

connectivity presents a genuine opportunity to im-

prove the discovery of truth and the efficient en-

forcement of law. Written records now exist, in the

form of computer data, for a vast majority of commu-

nications at schools, workplaces, and social gather-

ings.

Zubulake has, for a decade, served as the mostcited framework concerning sanctions for e-discovery

violations. Nonetheless, Zubulake is not binding au-

thority outside of its circuit. Many courts, including

the First Circuit, remain confused or unaware of their

jurisdiction to remedy obstruction of due process

related to electronically stored information. This is an

unfortunate result in that a judicial system that

might be improved by technology thus far failed to

realize that potential.

This Petition seeks affirmation by the Supreme

Court of the United States that when relevant elec-

tronic evidence is intentionally destroyed, the Courts

have unambiguous jurisdiction to invoke specific

remedy, including injunctions. In the present case,

the Petitioner sought an injunction to return to his


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medical residency, under the premise that ESI would

have demonstrated unjustifiable behavior by leaders

in medical academia at an Ivy League hospital. One

can imagine vast public policy benefits, reaching far

beyond the Petitioners unique circumstances, that

would result from a Supreme Court opinion on thismatter. The courts would have a powerful tool to

combat what seems to be an epidemic of tragedies

stemming from schoolyard bullying, workplace har-

assment, and other social ills that were more difficult

to discover prior to the advent of widespread elec-

tronic communications. An advocate for any such

victim should be able to send a reasonable Rule 34

letter to a school or workplace, as Petitioner did, and

expect readily available ESI to shed light, one way or

another, on the allegations.

Respectfully submitted on this 1st day of August,

2014.

Dr. Jeffrey D. IsaacsPetitioner,pro se


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App. 1

United States Court of Appeals

For the First Circuit

-----------------------------------------------------------------------

No. 14-1085

J.D. ISAACS,Plaintiff, Appellant

v.

DARTMOUTH HITCHCOCKMEDICAL CENTER, ET AL.,

Defendants, Appellees,

-----------------------------------------------------------------------

DARTMOUTH COLLEGE TRUSTEES, ET AL.,

Defendants.-----------------------------------------------------------------------

Before

Torruella, Howard and Thompson,Circuit Judges.

-----------------------------------------------------------------------

JUDGMENT

Entered: March 31, 2014

Plaintiffs appeal from the district courts Novem-ber 4, 2013 order is dismissed for lack of jurisdiction.

Appeal dismissed.

By the Court:

/s/ Margaret Carter, Clerk.


50/61

App. 2

cc:Jeffrey IsaacsEdward KaplanChristopher PylesPierre ChabotKathleen Peahl


51/61

App. 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

J. D. Isaacs

v.

Dartmouth Hitchcock MedicalCenter, et al.

1

Civil No. 12-cv-40-JL

ORDER

(Filed Nov. 4, 2013)

Pending before the court are numerous motions

concerning discovery and other related matters (doc.

nos. 71, 72, 75-77, 79, 86, 89, 93, 98, and 100-102).

The district judge has referred all pending motions in

this case to this magistrate judge for ruling. I held ahearing on October 31, 2013, concerning all pending

motions in this matter. I issued oral rulings from the

bench on all but one of the motions, plaintiff s motion

for a subpoena for PACER records (doc. no. 89). What

follows is a summary of my oral rulings and resolu-

tion of the motion for a subpoena for PACER records.

1 The defendants in this matter are the Dartmouth Hitch-

cock Medical Center and Mary Hitchcock Memorial Hospital

(collectively the Hitchcock defendants), and the Trustees of

Dartmouth College and Dr. Christine Finn (collectively the

College defendants).


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App. 4

1. Joint Motion for Hearing for Emergency Sched-

uling Conference (Doc. No. 72) and Plaintiff s

Motion to Strike Motion for Hearing (Doc. No.

75)

The defendants motion (doc. no. 72) is DENIED

as moot, as a hearing was held On October 31, 2013.The plaintiff s motion to strike (doc. no. 75) is also

DENIED.

2. College Defendants Motion for Protective Order

(Doc. No. 76) to prevent deposition of Dr. Jim

Yong Kim

The motion (doc. no. 76) is GRANTED. Once all

of the other depositions are complete in this matter,

plaintiff may renew his request for Dr. Kims deposi-tion, if he can demonstrate that Dr. Kim possesses

discoverable information not obtained or obtainable

from any other source.

3. Hitchcock Defendants Motion for Protective

Order (Doc. No. 79) and College Defendants

Motion to Quash Subpoena (Doc. No. 98) to

change the location of depositions of Drs.

Riblet, Friedman, and Green

The motions (doc. nos. 79 and 98) are GRANTED.

Depositions will be held at a neutral location in

Lebanon with an off-duty law enforcement officer

present. As agreed to by defendants, the costs associ-

ated with obtaining a neutral location and hiring the

officer will be borne by defendants.


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App. 5

4. Plaintiff s Motion for a Protective Order (Doc. No.

86) concerning the deposition of the plaintiff

The motion (doc. no. 86) is DENIED as unneces-

sary because defendants have agreed that the deposi-

tion of the plaintiff can be held on one day and will

last less than six hours. The deposition will be con-ducted in two three-hour sessions, to take place on

the same day, with at least one hour in between the

sessions.

5. Defendants Motion for Protective Order (Doc.

No. 102) Concerning Depositions of New Jersey

and California Witnesses (Drs. Guez and Simon)

The motion (doc. no. 102) is DENIED as unneces-

sary because plaintiff has agreed that the depositionsof witnesses Guez and Simon will be conducted in the

city or town where the witnesses live or work, or as

otherwise agreed by the parties.

6. Plaintiff s Motion for Subpoena (Doc. No. 89) for

PACER Service

The motion (doc. no. 89) is DENIED without

prejudice to plaintiff renewing his motion if he is

unable to obtain the information he seeks in discov-ery.


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App. 6

7. Plaintiff s Motion for Sanctions and Injunctive

Order (Doc. No. 71) and Addendum (Doc. No. 77)

The plaintiff s motion (doc. no. 71) is GRANTED

in part and DENIED in part, as specified herein:

A. Sanctions

All of plaintiff s requests for sanctions are DE-

NIED. The defendants have not violated any court

order to compel discovery. Sanctions are inappropri-

ate at this time.

B. Admissions

Plaintiff s request to have any fact deemed

admitted by any defendant is DENIED, as it is moot-ed by the scheduling order issued today.

C. Email

i. Keyword Searches

Plaintiff s request for Keyword Searches of the

email systems of the Hitchcock and College defen-

dants for the term Isaacs is GRANTED in part and

DENIED in part. As discussed at the hearing, the

defendants will provide to plaintiff the results of

Keyword Searches for certain individuals email

accounts for the period beginning January 1, 2011,

and ending March 19, 2012.

The College defendants have agreed to produce to

plaintiff, on or before November 14, 2013, search


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App. 7

results for the keyword Isaacs for the email ac-

counts of: Attorney OLeary, Dr. Jim Yong Kim, and

Dr. Alan Green. The Hitchcock defendants have

agreed to produce to plaintiff, on or before November

14, 2013, search results for the keyword Isaacs for

the email accounts of: Dr. Christine Finn, Dr. MarcBertrand, and Dr. Harley Friedman. To the extent

that defendants assert a privilege as a reason not to

disclose any results of these searches, a privilege log

will also be provided to plaintiff by November 14,

2013.

ii. Forensics Expert

Plaintiff s request for a forensics expert to at-

tempt to recover plaintiff s Outlook email account isDENIED at this time, without prejudice to renewal

should the information he seeks not be produced

during the Keyword Searches to be conducted by

defendants pursuant to this order.

The court notes that plaintiff made clear during

the hearing that he was less concerned with the

production of his Outlook account than he is with the

Keyword Search (for Isaacs) of certain employees of

defendants. As plaintiff candidly admitted, plaintiff is

generally aware of what was in his Outlook account,

as he previously saw the ingoing and outgoing emails

of that account. Plaintiff stated that he cannot recall

any smoking gun email evidence in his Outlook

account.


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App. 8

D. Patient Records

Plaintiff, in the addendum to his motion for

sanctions and an injunction order (doc. no. 77), asks

the court to compel defendants to produce medical

records of certain patients he treated during his

internal medicine rotation. The request is DENIED

as plaintiff has not demonstrated the materiality of

those records to any issue in this matter.

8. Plaintiff s Motion to Quash Subpoenas (Doc.

No. 93) for USC and American University of the

Caribbean records

The motion to quash (doc. no. 93) is DENIED.

The relevance of educational records has been

demonstrated by defendants. Plaintiff s argumentthat the confidential settlement concerning the USC

records precludes discovery is not accurate. The

settlement agreement exempts from its purview any

court-ordered disclosure.

9. Defendants Motion to Compel (Doc. No. 100)

Answers to Interrogatories 11, 17, 18 and 21

The motion (doc. no. 100) is GRANTED. The

defendants have demonstrated the relevance of therequested information. Plaintiff is directed to respond

to interrogatories numbered 11, 17, 18 and 21 on or

before November 14, 2013.


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App. 9

10. Defendants Motion for a Protective Order (Doc.

No. 101)

Because the parties have extreme difficulty

agreeing on simple matters of discovery, and because

so much of the discovery in this case concerns confi-

dential matters (such as medical records; audit trails;quality assurance information; personnel records,

including evaluations and testing; educational rec-

ords; and employment records), the court believes a

broad confidentiality order is appropriate. The motion

for a protective order (doc. no. 101) is therefore

GRANTED. The court has issued this date, a protec-

tive order in this matter substantially similar to the

proposed order (doc. no. 101-1) submitted by the

Hitchcock defendants. The court notes that the pro-

tective order applies to all of the parties in this case.

11. Scheduling

A. Each party will have until December 2, 2013,

to submit a request to any other party to produce any

interrogatory response, document, or other item in

discovery, or to notice any depositions yet to be taken.

B. The parties will then have until January 2,

2014, to either produce the discovery requested,produce privilege logs, or submit to the requesting

party any objection, in writing, to providing the

requested item.

C. Any motions to compel, or other motions to

resolve any outstanding discovery dispute, must be

filed by January 16, 2014. These motions must be in


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App. 10

compliance with the Federal Rules of Civil Procedure

and this courts Local Rules.

The court reminds plaintiff that pro se parties

must follow the rules of court and the Federal Rules

of Civil Procedure. As just one example, with any

motion to compel, our local rules require the movant

to attach an exact copy of the request and the re-

sponse. Failure to abide by the rules of court may

result in sanctions, such as the court denying a

motion that fails to so comply.

D. Discovery will close on February 3, 2014.

E. The deposition of the plaintiff will take place

on or before December 19, 2013.

F. All experts will be disclosed in compliancewith Fed. R. Civ. P. 26(a)(2)(B). The plaintiff must

disclose expert witnesses by December 13, 2013.

Defendants must disclose expert witnesses by Janu-

ary 10, 2013. Plaintiff s supplementations under Fed.

R. Civ. P. 26(e) are due December 27, 2013, and

defendants supplementations are due January 24,

2014. Challenges to expert testimony must be made

by February 28, 2014.

G. Motions for summary judgment are dueFebruary 17, 2014.

H. A final pretrial conference will be held June

27, 2014, at 2:00 p.m.

I. Trial is continued to the two-week trial period

beginning July 8, 2014.


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App. 11

SO ORDERED.

/s/ [Illegible]

Landya McCaffertyUnited States

Magistrate Judge

November 4, 2013

cc: Christopher James Pyles, Esq.Edward M. Kaplan, Esq.Kathleen C. Peahl, Esq.Pierre A. Chabot, Esq.Jeffrey D. Isaacs, M.D., pro se


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App. 12

United States Court of Appeals

For the First Circuit

-----------------------------------------------------------------------

No. 14-1085

J.D. ISAACS,Plaintiff, Appellant

v.

DARTMOUTH HITCHCOCKMEDICAL CENTER, ET AL.,

Defendants, Appellees,

-----------------------------------------------------------------------

DARTMOUTH COLLEGE TRUSTEES, ET AL.,

Defendants.-----------------------------------------------------------------------

Before

Lynch, Chief Judge.Torruella, Howard and Thompson, and Kayatta,

Circuit Judges.

-----------------------------------------------------------------------

ORDER OF COURT

Entered: May 5, 2014

Petitioner J.D. Isaacs has filed an untimely

petition for rehearing en banc, and a motion to extend

time. Petitioners motion to extend time is granted.

Pursuant to this Courts Internal Operating

Procedure X.C., we treat a petition for rehearing en


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App. 13

banc also as a petition for rehearing before the origi-

nal panel. The petition for rehearing having been

denied by the panel of judges who decided this case,

and the petition for rehearing en banc having been

submitted to the active judges of this court, and a

majority of the judges not having voted that the casebe heard en banc, it is ordered that the petition for

rehearing and petition for rehearing en banc be

denied.

By the Court:

/s/ Margaret Carter, Clerk.

cc:Pierre A. ChabotJeffrey David Isaacs

Edward M. KaplanKathleen C. PeahlChristopher James Pyles

isaacs v. dartmouth, united states supreme court

Documents