No. _________

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In The

Supreme Court of the United States --------------------------------- ---------------------------------

DR. JEFFREY D. ISAACS,

Petitioner,

v.

TRUSTEES OF DARTMOUTH COLLEGE, DARTMOUTH-HITCHCOCK MEDICAL CENTER,

MARY HITCHCOCK MEMORIAL HOSPITAL, DR. CHRISTINE T. FINN, AND

DR. JIM YONG KIM,

Respondents.

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On Petition For A Writ Of Certiorari To The United States Court Of Appeals

For The First Circuit

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PETITION FOR WRIT OF CERTIORARI

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JEFFREY ISAACS 3553 West Chester Pike #177 Newtown Square, PA 19073 Telephone: (610) 202-1460 Email: jdi.99@dartmouth.edu

Petitioner

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QUESTIONS PRESENTED

Petitioner commenced medical residency training at Dartmouth in June 2011. Within his first week at Dartmouth, Petitioners deteriorating health would be noticed by Dartmouth colleagues and even his own patients. Sleep polysomnogram studies were conduct-ed to determine why Petitioner had difficulty staying awake more than three hours at a time. Such was a new-onset disability, as prior to Dartmouth Petitioner had worked thirty-hour surgery shifts without such symptoms. Coinciding with this worsening disability, Dartmouth executed Petitioners termination in January 2012 for failure to disclose a sealed academic matter dating back to 2006.

It is alleged the sealed school record, with two corresponding settlement agreements, became the subject of fascination and confusion at Dartmouth. On one hand, the Petitioner felt vindicated to finally be a doctor at Dartmouth after studying for decades, and overcoming significant legal adversity. On the other hand, Dartmouth had misguided counsel and incorrectly viewed Petitioner as someone to be ousted. The exact nature of the settlement agreements is the subject of a coinciding Supreme Court petition, No. 14-1219, Isaacs v. New Hampshire Board of Medicine.

Given the dichotomy of beliefs, it is alleged the situation escalated analogously to the Stanford Prison Experiments. An otherwise well-respected group of physicians at Dartmouth turned against one of their colleagues and began to abuse him, leading to

ii

QUESTIONS PRESENTED Continued

serious medical complications. At its worst, Petitioner was hazed and ordered to conduct heinous acts on hospital patients. Instead of taking responsibility and mitigating damages, Dartmouth is alleged to have used its influence with the New Hampshire Board of Medicine, and even the USDC in Concord, to perma-nently destroy the career of a doctor who had scored higher than the average neurosurgeon on his nation-wide licensing exams.

Upon being told not to return to work, Petitioner sent a request to Respondent Jim Yong Kim to pre-serve electronic evidence under Rule 34 of the Federal Rules of Civil Procedure. Three days later, Dr. Isaacs physician email account disappeared, despite the fact he was actively employed as a doctor at Dartmouth-Hitchcock hospital. In two more days, his medical charts and sleep studies at Dartmouth-Hitchcock would disappear. Recognizing that discarded electron-ic evidence harmed his case and permanently ended his medical career, he sought sanctions for electronic evidence destruction under Rule 37 of the Federal Rules of Civil Procedure.

The District Judge denied sanctions at the time of motion, but allowed Petitioner to re-open the matter for potential forensic data recovery at the end of discovery. Petitioner conducted ten depositions of Dartmouth employees, and terminated the final deposition with notice to opposing counsel that he would be filing for a scheduling conference to discuss

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QUESTIONS PRESENTED Continued

the combined a) ESI destruction, and b) deposition non-compliance/perjury/refusal to answer non-privileged questions.

At that point, Opposing Counsel filed volumes of Summary Judgment motions, in various redacted, non-redacted, and sealed forms. The final Summary Judgment motion was filed April 2, 2014. Petitioner, physically ill and taking antibiotics at the time, was waiting for the Courts response to his Motion for Scheduling Conference, believing the case was stalled due to Dartmouths discovery non-compliance. On April 18, 2014, the New Hampshire District Judge entered summary judgment in a largely fictional Court Order copied directly from Dartmouths attor-neys Motion for Summary Judgment. For example, the Court Order held that Petitioner dishonestly withheld disclosure of frontal brain impairment from his application to Dartmouth in 2010. In fact, Peti-tioner was only diagnosed with frontal brain impair-ment in 2012, after his employment and abuse at Dartmouth. This was, in fact, a question for a jury; did Petitioner have frontal brain impairment at the time he achieved 99th percentile exam scores in 2009, or was this impairment due to the situation at Dart-mouth?

In sum, the decades of studies Petitioner excelled at to become a doctor were rendered worthless by the total deprivation of due process at both Dartmouth and the District Court. No academic probation, written

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QUESTIONS PRESENTED Continued

administrative leave notice, or peer review termina-tion hearing were ever afforded to Petitioner, as required under ACGME & Dartmouth bylaws. When Petitioner challenged this in federal court, his em-ployment records were deleted and summary judg-ment was entered without even permitting his response.

1) In light of the fact that Dartmouth failed to follow due process with respect to probation, academ-ic leave, and/or peer-reviewed termination, did the Summary Judgment improperly grant deference to Dartmouths attorney pleadings, rather than correct administrative procedures?

2) Do the Federal Rules permit Summary Judgment after sixteen days, before allowing a re-sponse from the opposing party?

3) Did Petitioners motion for sanctions under Rule 37, and subsequent motion for scheduling con-ference, serve as a FRCP56(d) showing that he could not present facts essential to justify its opposition?

4) Did the District Judge err in denying Foren-sic Examination of deleted ESI until after Dartmouth filed for Summary Judgment, effectively rendering an important evidence destruction matter as moot?

5) Did the New Hampshire District Judge have authority to void Jim Yong Kims subpoena after it was issued by the USDC for District of Columbia?

v

QUESTIONS PRESENTED Continued

6) Did the First Circuit fail to acknowledge that circumstances of evidence destruction in the present case met or exceeded sanctions under the Zubulake standard, thereby reversing the most widely cited precedent on ESI sanctions.

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TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES ................................. viii

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

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

INTRODUCTION ................................................ 2

STATEMENT OF THE CASE .............................. 4

REASONS FOR GRANTING THE PETITION .... 8

A Rush To Enter Summary Judgment Prevent-ed A Ruling On The Merits Of The Case ............ 8

The District Court Erred By Failing To Recog-nize The Keck Settlement Agreements And Erroneously Faulted Plaintiff For Nondisclo-sure ................................................................... 10

The District Court Erred In Refusing Expert Review Of Unnecessary DRE Exams ............... 14

Because Dartmouth Never Conducted Inves-tigation Of The Unnecessary DREs, The Dis-trict Court Must Permit Discovery To Remedy Title IX Violation .............................................. 15

A Scheduling Conference In March 2014 Was Requested To Address A Pattern Of Discovery Evasion, As Well As To Fulfill The District Courts Prior Promise To Conduct Forensic Recovery Of ESI ............................................... 19

Dartmouth Counsel Repeatedly Instructed Witnessess Not To Answer Non-Privileged Questions .......................................................... 20

vii

TABLE OF CONTENTS Continued

Page

The Order Granting Summary Judgment Ignores Two Years Of Docket Material ............ 25

The First Circuit Erroneously Denied Sanctions For Willful E-Discovery Non-Compliance ........... 32

The First Circuit Set An Undesireable Prece-dent By Failing To Recognize That ESI De-struction Is A Form Of Civil Obstruction Of Process .............................................................. 37

No Administrative Procedures Were Followed Nor Does An Administrative Record Exist With Regard To The Termination Of Dr. Isaacs ................................................................ 39

CONCLUSION ..................................................... 41

APPENDIX

Circuit Court Order ............................................. App. 1

District Court Order ............................................ App. 3

Circuit Court Order Denying Petition for Rehearing ......................................................... App. 6

viii

TABLE OF AUTHORITIES

Page

CASES

Barrette Outdoor Living, Inc. v. Michigan Resin Representatives, No. 11-13335, 2013 WL 3983230 (E.D. Mich. Aug. 1, 2013) ......................... 39

Bobrick Washroom Equipment, Inc. v. Ameri-can Specialties, Inc., 2012 WL 3217858 (C.D. Cal. Aug. 8, 2012), ................................................... 38

Scott v. IBM Corporation, 196 F.R.D. 233 (D.N.J. 2000) ........................................................... 39

Zubulake V, 2004 WL 1620866 (S.D.N.Y. July 20, 2004) .................................................................. 38

STATUTES

18 U.S.C. 1503 ................................................... 36, 37

Family Educational Rights and Privacy Act .... 8, 11, 12

RULES

Federal Rule of Civil Procedure 56(d) ................. 10, 41

Federal Rules of Civil Procedure 34 ............... 4, 33, 34

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OPINIONS BELOW

The First Circuit decision denying Isaacs appeal of summary judgment is reprinted in the Appendix (App.) at 1-2. A motion for rehearing en banc is reprinted at App. 6. The New Hampshire District Court order denying the Petitioners motion for Reconsideration is reprinted at App. 3-5. To the best of Petitioners knowledge, these opinions are not reported.

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JURISDICTIONAL STATEMENT

The New Hampshire District Court granted Summary Judgment to the defendants on April 18, 2014, before Petitioner had an opportunity, or was required by the FRCP timeframe rules, to object. Petitioner filed a motion for reconsideration to the District Judge, permitting him to file an objection to Dartmouths Motion for Summary Judgment. The Motion for Reconsideration was denied on April 29, 2014.

The First Circuit denied Isaacs appeal on Janu-ary 5, 2015. A Petition for Rehearing En Banc was denied on February 18, 2015.

The Supreme Court of the United States has jurisdiction under 28 U.S.C. 1254(1) to review this Petition. Under the All Writs Act, 28 U.S.C. 1651,

2

this Court has authority to grant injunctive relief pending final resolution of the matters.

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INTRODUCTION

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 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 of his clinical rotations. Nonethe-less, he reluctantly resigned from the Arizona pro-gram 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 conduct heinous 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

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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.

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 of Health 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 retaliation lawsuit ensued for two years in the Cen-tral California District. Five years later, someone didnt want Isaacs to become a licensed physician because of his prior litigation and subsequently leaked sealed records to Arizona and Dartmouth.

Realizing the gravity of the situation, Isaacs sent a letter to Dartmouths President Jim Yong Kim requesting an investigation under the Dartmouth

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Business Ethics Code that Kim himself had written. The letter instructed Dartmouth to preserve electron-ic 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 Ethics investigation request. Isaacs began to be suspicious 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 Inter-national Health faculty of Harvard Medical School with the aforementioned NIH defendant. A week after emailing his concern, and several days before Kims nomination to the World Bank became public, Isaacs was terminated from Dartmouths training program. It is believed Dr. Isaacs was the first resident in Dartmouth history to be terminated before the peer review Fair Hearing required under Dartmouth accreditation bylaws.

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STATEMENT OF THE CASE

The Petitioner commenced employment at Dart-mouth in July 2011. During his employment, the Petitioner spent the vast majority of his time working

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with one Dr. Donald West, who gave him pretty much superior evaluations (Isaacs Deposition p. 113). The remainder 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 relatively small portion of Petitioners time at Dartmouth, which was managed by senior Program Directors with knowledge of Keck, that is under dispute in the underlying lawsuit and alleged to have constituted fraud.

On Friday January 13, 2012, the Petitioner was admitted to the Dartmouth-Hitchcock Emergency Room. In the ED, the Plaintiff frantically hand-wrote a criminal complaint:

At approximately 10AM this morning I learned of illegal workplace behavior I have been subjected to by DHMC staff and Dartmouth College professors. (USCA Appendix p. 211).

This is the where the case and understanding how a generally well achieving doctor suddenly succumbed to a medical breakdown becomes com-plicated. 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, despite only ever being asked to do one technical

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procedure at Arizona and doing a perfect job: (Isaacs depo p. 117)

I was only asked to do one technical procedure in surgery, which was suturing a port-a-cath at Ari-zona that was a subcuticular suture they asked me to do. I remember that very well because in the Carib-bean first semester seven years back my anatomy lab tutor, it was Dr. Stam, taught me how to do a subcuticular on a cadaver. I had only done that once. I practiced it four times in front of her, and that was the last subcuticular I did until being asked to do one in Arizona. And I remember being surprised that I remembered the procedure so well that I actually did a very good subcuticular.

After leaving Arizona, the Petitioner sent an electronic CV (called ERAS) applying for a residency at Dartmouth. Simultaneously, the Petitioner re-quested that the Accreditation Committee for Gradu-ate Medical Education investigate his time at Arizona. Arizona Surgery had already been on the most serious level of ACGME probation for intimida-tion 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 unfor-tunate dispute with a classmate of his. A relationship

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turned sour rather quickly, and involved dispute resolution with an Associate Dean of Students. Dur-ing the dispute, the classmate had warned Plaintiff I got into medical school through connections, and Ill get a residency through connections. Her father was a director of the National Institutes of Health Neuro-sciences Division (NINDS) and the White House Counterterrorism Office. At some point, Petitioner sent a cease & desist notice to the classmate, 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 Room 101, followed by the classmate obtaining a USC Undergraduate Student Association stay away order 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 and classmates confused by the entire situation.

The Petitioner sought to resolve the issue and back off, so he telephoned Baughman and apolo-gized, essentially taking responsibility for the entire

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dispute. He was disciplined for apologizing, which technically violated the stay away order issued by the school. A year of 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 disciplinary records from Family Educational Rights and Privacy Act (FERPA) disclosure. A subsequent global settle-ment agreement was reached with Keck, in exchange 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 Direc-tors at Arizona and Dartmouth learned about his prior litigation against a Director of the NIH and a California medical school.

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REASONS FOR GRANTING THE PETITION

A Rush To Enter Summary Judgment Prevented A Ruling On The Merits Of The Case.

Defendants filed their final sealed Memorandum in Support of Summary Judgment on April 2, 2014. The Federal Rules allowed Petitioner no less than

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twenty-one days to respond, however, Summary Judgment was entered on April 18, 2014. Petitioner never had an opportunity to enter his evidence and object.

As cited in the Motion for Reconsideration, Petitioner was generally ill for the months following an intense deposition schedule in January 2013. Dartmouth mocked his pro se status by destroying ESI and perjuring testimony. By the end of Finns deposition, he cancelled the remaining 30(b)(6) of DHMC: (Finn depo p. 255)

DR. ISAACS: Just for the record, I be-lieve that theres been excessive perjury to-day and in other depositions. I think Ill probably stop with the depositions or some of them. I will contact you about that later, then let the court intervene, report this to the authorities and see, you know, what the court decides. But I dont see a reason to con-tinue with these depositions before asking the court to intervene or the authorities.

In April 2014 he developed a fever and required antibiotic treatment. This was erroneously ignored by the District Judge and served as good cause for at least minor case rescheduling. Petitioner had already filed a request for a scheduling conference, intending to raise all the discovery violations discussed in this document. As discussed in the Motion for Reconsider-ation, Petitioner believed discovery was still ongoing.

In its order denying the Motion for Reconsidera-tion, the District Court claimed that Isaacs never

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raised any objection under Federal Rule of Civil Procedure 56(d), which states summary judgment is inappropriate if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition. However, Isaacs asked for a scheduling conference to seek discovery of necessary facts. Moreover, the District Judge had promised the opportunity for renewal of the forensic investigation and possible recovery of deleted ESI subject to a Motion for Sanc-tions. Second, the District Judge had promised the opportunity to renew the deposition notice for Jim Yong Kim. Third, (discussed below). Opposing Counsel repeatedly instructed witnesses not to answer ques-tions in depositions that would have yielded im-portant discovery. Finally, Petitioner declared at Finns deposition that a remaining 30(b)(6) deposition would be scheduled after discovery violations were raised with the Court. While Plaintiff didnt caption his requests as FRCP 56(D), there is little question the spirit of the rule applied; the District Court was alerted that critical evidence was not available to the Plaintiff.

The District Court Erred By Failing To Recognize The Keck Settlement

Agreements And Erroneously Faulted Plaintiff For Nondisclosure.

In the Summary Judgment Order, p. 27, the District Court declares:

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Dr. Isaacs has produced no evidence to create a triable issue of fact on the reasons for his discharge. Thus, the court is com-pelled to rule, as a matter of law, that Dr. Isaacs was discharged for the reasons stated in his letter of dismissal, i.e., his poor per-formance as a resident and his dishonesty when applying to Dartmouth-Hitchcock.

The Court made no mention of the settlement agreements. The Court made no reference to Peti-tioners own testimony in the deposition regarding his beliefs. Michael Paynes affidavit was ignored. Two evidentiary investigations by NHES and AAMC were ignored, and the District Judge incorrectly held dishonesty when applying to Dartmouth can be determined as a matter of law. As a matter of law, the second Keck settlement agreement discharged all contracts of any nature whatsoever, including Isaacs Keck matriculation contract. The second settlement agreement acquitted Petitioner of any and all contro-versies, including the stay away violation purported as his reason for termination from Keck. Moreover, the first Keck settlement agreement as the only consideration for Petitioner sealed the disciplinary records from FERPA disclosure. If Keck felt it should waive its disciplinary records disclosure rights and obligations under FERPA, in order to dismiss indi-vidual defendants from a federal lawsuit, then Plain-tiff should benefit accordingly from the decision.

The District Court ignored Defendant Finns (who had authority over the termination) own testimony that

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she didnt know whether or not nondisclosure of Keck constituted dishonesty. Finn testified (Finn depo p. 129) that some two years after terminating Petitioner for nondisclosure of Keck, she didnt have a legal understanding of the settlement agreements:

Q. Have you ever seen the settlement agreement?

A. No.

Q. Can you read what paragraph two says?

A. Sealing of Disciplinary Records. In exchange for the dismissal with prejudice of the individual Defendants referenced above, Defendant, USC, agrees that commencing immediately upon the execution of the set-tlement agreement and receipt of the signed dismissal with prejudice, USC will not re-lease or disclose Isaacs disciplinary records to any third party, including but not limited to other educational institutions and/or po-tential employers unless it receives written consent from Isaacs or a subpoena or court order.

Q. Okay. Do you know what that means legally? Are you comfortable with the full meaning of that?

Q. Did Attorney Kaplan explain to you or give you a legal opinion on the sealing of the records at the point you were deciding whether or not to include USC on the termi-nation letter?

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A. No.

Q. Do you think that in some circum-stances sealed records need not be disclosed?

A. By the institution?

Q. By an individual, by anyone subject to a sealed record.

A. I dont know the specifics of the law that governs that. [continued Finn depo p. 201]

A. I reiterate that our concerns were about the omission of the prior medical school and residency training programs and not to the content as to why you were dis-missed from USC or the Arizona surgery program.

Q. Are you aware that the Plaintiff had settlement agreements with USC?

A. No.

Q. So you never saw, you read earlier the sealing disciplinary records; is that cor-rect? Are you aware there was a second set-tlement agreement?

A. No.

Q. Are you aware that that uses words, Acquitted and discharged all agreements of any nature whatsoever known or unknown?

A. No.

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The District Court Erred In Refusing Expert Review Of Unnecessary DRE Exams.

In his first three days at Dartmouth, Petitioner was ordered to conduct two DRE exams. As Petitioner testified in an Affidavit presented to the Court, anecdotally, I believe the other 7 psychiatry interns didnt conduct any (or possibly one) DRE during their entire month on M2. I was ordered to conduct 2 in three days on M2, under very questionable circum-stances.

At his deposition, Dr. Simon couldnt recall his orders for Petitioner to carry out the DRE[digital rectal] exams: (Simon depo p. 93)

Q: Did you instruct the plaintiff to do a DRE [digital rectal exam] to see if the pa-tient with metastatic cancer had prostate cancer?

A: I dont know. I cant recall. Without the I dont remember every single patient and every single encounter. So . . .

Although Dr. Simon couldnt recall either inci-dent, he appeared to concede that even if they had no medical indication, the prostate exams were an opportunity to learn twice:

Q: If plaintiff believes [the average in-tern conducts] about one [DRE] a month, on average, and he was asked to do two in three days, can you explain that discrepancy?

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MR. KAPLAN: Note my objection to the question.

A: I just look at it as an opportunity to learn twice.

Petitioners cardiac arrythmyias and sleep prob-lems began in the hours and days after this hazing. Plaintiff sought expert review of the DHMC EPIC patient charts for the two inappropriate rectal exams. The District Court refused the discovery request (see Order from October 31st hearing), despite even Dr. Khagis testimony that he needed the records to recall the incident:

(Simon depo p. 91)

Q: If those two patient records were here would you be able to give better an-swers and more authoritative answers re-garding the appropriateness and the indications for the two exams the plaintiff conducted?

A: Yes.

Because Dartmouth Never Conducted

Investigation Of The Unnecessary DREs, The District Court Must Permit Discovery

To Remedy Title IX Violation.

In addition to the District Judge denying discov-ery investigation of the DREs, it is clear from the depositions that Dartmouth failed to investigate. Upon learning this, Petitioner filed a Title IX claim in the Pennsylvania Eastern District (cv-13-5708-PJT).

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At Dartmouth Colleges 30(b)(6) Deposition, they affirmed no investigation took place, and attempted to deflect responsibility to the hospital, despite the fact that Petitioner was a student of the Colleges Department of Psychiatry GME program: (Torrey depo p. 110)

Q: Did Dartmouth investigate those al-legations of hazing and abuse directed to-ward the plaintiff ?

MR. PYLES: Same objection.

A: Not to my knowledge, but it also wouldnt be a Dartmouth issue. It would be a Dartmouth Hitchcock issue.

Q: (BY DR. ISAACS) Well, thats under dispute with the court. So not to your knowledge was your answer?

A: Right.

Q: One of those allegations is that plaintiff was required to do two prostate ex-ams the first two or three days of work. Are you aware of that?

A: I saw it in the list, yes. But no de-tailed knowledge of that? No.

In addition to Dartmouth Colleges inaction, the same issue recurred when Petitioner deposed the DHMC Program Director for Internal Medicine, Harley Friedman. As Khagis supervisor, Friedman claimed he never knew of nor investigated the DRE allegations: (Friedman depo p. 58)

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Q. The second prostate exam that Dr. Khagi ordered me to conduct, he smirked and said this was actually important, do this one. Do you know why he would have smirked and referred to the other one as un-important?

MR. KAPLAN: Note my objection to the question and to the misstatement of facts that are in evidence and others that will never be in evidence. You may answer.

A. I wasnt there. I cant speak to any-ones state of mind or what they were think-ing at the time.

Q. Does that sound concerning to you?

MR. KAPLAN: Objection to the ques-tion. You may answer.

A. I wasnt there. I really cant render an opinion whether thats right or wrong.

Q. So if you were that terminal pa-tients family and you knew that Dr. Khagi smirked and referred to it as an unnecessary exam, you wouldnt be concerned?

MR. KAPLAN: Object to the question. And Doctor, Im telling you, pretty soon Im going to tell him not to answer these ques-tions.

DR. ISAACS: Thats fine, and well deal with it.

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MR. KAPLAN: But these questions are irrelevant. They have nothing to do with whats going on and they make no sense.

DR. ISAACS: According to you.

A. Again, I wasnt there. I dont know the clinical details. Its not a question I can answer.

Q. Shouldnt you know the clinical de-tails if an allegation of this nature was made against your department?

MR. CHABOT: Objection, foundation.

A. The allegation was never made to me.

Dartmouth General Counsel OLeary testified in his deposition that, despite requests to the Dart-mouth College Trustees from the largest benefactor Trust in Dartmouths history, there was no investiga-tion: (OLeary depo p. 38)

Q: Did Mr. Baker Mr. George F. Baker, IV send you a request for investiga-tion? I believe he sent a request to the Col-lege. And to the Trustees, is that correct?

A: Yes, acting in their capacity as trus-tees. I dont differentiate between the trus-tees

Q: And did you write back to Mr. Baker stating that there would be no investigation?

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A: I dont recall that, but I may have. That was the case. There was no investiga-tion.

To conclude, it is irrefutable that this matter was never investigated. The District Court improperly denied critical patient records discovery. To dismiss such a claim of IIED, without ever having permitting discovery, demonstrates the NHDCs abuse of discre-tion.

A Scheduling Conference In March 2014 Was Requested To Address A Pattern Of

Discovery Evasion, As Well As To Fulfill The District Courts Prior Promise To Conduct

Forensic Recovery Of ESI.

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 plaintiff was enrolled at a surgery program in Arizona?

A: I cant recall. I dont remember that.

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

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

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their residency prior residencies. So, no, I cant exactly recall.

Q: Is it possible that you knew that plaintiff was in Arizona for residency prior to his starting with you?

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

Dartmouth Counsel Repeatedly

Instructed Witnessess Not To Answer Non-Privileged Questions.

As Dartmouths own ESI was spoliated, Petition-er sought to subpoena Defendant Finns mobile phone call logs and her Gmail account. As Google and Verizons ESI preservation is substantially more 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 Plaintiff. As stated in the Emergency Motion for Reconsideration, Coun-sel refused to let her testify:

Q. Okay. Could you state your phone number for the mobile phone.

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

DR. ISAACS: Thats fine. Its just for a subpoena.

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MR. CHABOT: Youre not going to be issuing any subpoenas. Youre past the close of discovery.

DR. ISAACS: Thats not true.

MR. CHABOT: Yes, it is. You are. Youre not going to answer, Im sorry. Were not going to give you her home phone num-ber.

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

MR. CHABOT: You can make whatever motion youd like, Dr. Isaacs. Were not going to get into the irrelevant personal infor-mation.

DR. ISAACS: I thought we agreed to extend discovery until February.

MR. CHABOT: No, I dont think so.

MR. KAPLAN: There was an order is-sued today.

DR. ISAACS: The order must have been different than what we agreed to; is that right?

MR. KAPLAN: No. It was exactly what we agreed to.

DR. ISAACS: Well then, well talk about that later. Thats different than my understanding. What carrier do you have, Verizon or T Mobile?

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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 to know what her cell phone number is. Its all the information that we are going to give you. We are not going to give you the home phone number.

DR. ISAACS: I dont want the home number, I want the cell phone number. Was that a misunderstanding?

MR. CHABOT: Thats exactly it, youre just going to have to make a request to the court if you want that information.

Q. What e-mail and online services do you use?

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

Other than that? I have a Gmail ac-count. What is the Gmail account?

MR. CHABOT: Same objection. Were not going to be giving that information out to you, Dr. Isaacs.

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

MR. CHABOT: Thats not the reason were asserting, Dr. Isaacs. Were asserting

23

because its unduly burdensome given the ex-treme amount of discovery weve provided which despite all of your allegations has never once shown a suggestion of anything improper going on. Theres absolutely no rea-son, based on the discovery youve given, which has been nearly plenary, that you should be able to explore any further e-mail accounts, and thats our objection.

DR. ISAACS: Thats not a privilege.

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

DR. ISAACS: Youre directing her not to answer an unprivileged question.

MR. KAPLAN: Dr. Isaacs, youre run-ning out of time, finish up. Youve got a mi-nute by my watch.

Similarly, Petitioner sought to learn the identity of a graduate from the American University of the Caribbean that Dartmouth, one Dr. Jeremy Whyman, hired the same week they fired Plaintiff. Prior to Isaacs, Dartmouth had never hired an individual from the American University of the Caribbean. The timing of the hiring also suggested that the individu-al was interviewed months before Isaacs termination, which suggested Dartmouth was researching Plain-tiff s past in Arizona and California months before they claim they learned about it. Attorney Kaplan ordered witness Dr. Harley Friedman not to disclose the name of the individual: (Friedman depo p. 92)

24

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

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

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

MR. KAPLAN: Thats fine. What he will do if you want him to answer the ques-tion, he will identify the person by initials and answer the question.

DR. ISAACS: Im not agreeing to that.

MR. KAPLAN: Frankly, Dr. Isaacs, I dont care what you agree to. Its my obliga-tion to direct the witness.

DR. ISAACS: Therell be a motion for sanctions. Whats your objection? Whats your privilege on that?

MR. KAPLAN: My privilege on this is that the resident will maintain his confiden-tial basis, and Im not going to have him dis-close the name. If you want to know about a resident, he will identify him by his initials and you will know exactly who he is.

DR. ISAACS: And not state a privilege. You guys should be sanctioned severely for directing him not to answer a question with-out stating a privilege.

25

MR. KAPLAN: You have my response. Doctor. If you want to talk about a resident, use the initials, not the name.

The Order Granting Summary Judgment

Ignores Two Years Of Docket Material.

Turning to the District Judges Order granting summary judgment, it is clear the Order fails to view the facts in a light most favorable to Isaacs, as re-quired under FRCP. The core allegation of Plaintiff s lawsuit is that the Defendants knew about California and Arizona for the entirety of his training at DHMC, and subjected him to undue pressure to punish him. Problematically, the District Judges sixty-page order neglects to mention or acknowledge the Plaintiff s claims. For example, in dismissing Count IX (IIED), the Court writes:

is that the undisputed factual record demon-strates that that Dr. Finn and others respon-sible for training Dr. Isaacs went to great lengths to help him remain in the program and have a successful residency.

The problem is the entire lawsuit asserts that Finn defrauded Petitioner by pretending to assist him succeed, meanwhile setting him up for termination. Petitioner learned it was a sham when he was told he might be fired for neglecting to check a patient with a stethoscope. The original Complaint is clear that this case is about a sham paper trail. As alleged throughout the majority of pleadings, Defendant Christine Finn learned of Arizona in May 2011 on

26

part of the DHMC application, then, fraudulently fired Isaacs eight months later in March 2012 for purportedly not disclosing Arizona to DHMC (as well as the stethoscope issues). Under deposition oath, Finn in fact admitted that the DHMC application contained notice of training in Arizona. Furthermore, Dr. Amy Waer testified in her deposition that Finn had a duty to have read the application:

Q: Do you think you have a responsibil-ity to look at that [the application] or do you think youre above and beyond to look at that, above and beyond your duties?

MR. CHABOT: Just for the court re-porters benefit, same objection.

MR. PYLES: Join.

A. I personally feel, as the program director, that I need to read these forms, yes.

Plaintiff submits that, as a matter of law, Finn was notified and had a duty to have read the notice of Arizona training she signed in May 2011. Therefore, as a matter of law, the termination letter (amongst other reasons) is facially invalid. The result is that a jury must examine the motives of why Dartmouth waited until March 2012 to raise the Arizona issue and whether or not mistreatment occurred.

Without much ESI, what is left is a termination letter not supported by proper administrative procedures with serious flaws. The District Judges

27

conclusion of an undisputed factual record is not based upon logic.

In the case of Count IX, a case for IIED exists based upon a) unrelenting criticism leading to a medical breakdown diagnosed in the DHMC ED, b) sham tests including unnecessary DRE exams, and c) requiring Isaacs to work despite repeated requests for medical leave. Each of these becomes an issue for a jury to decide.

At least three items of evidence obtained in discovery contradicted Finn and Friedmans paper trail. First, Dr. Wests evaluations of 90% of Isaacs work at DHMC concluded his work at Dartmouth was at or above average. Similarly, Dr. Cynthia Schwartz wrote an email (introduced and discussed in Finns deposition) to Finn questioning the need for Isaacs to be on any sort of probation. Finally, Dr. Simon (who worked under Dr. West) specifically raised concern about the impact of stress from the current situa-tion. By disallowing a jury to interpret conflicting evidence, the Judge erred.

The record is clear that Isaacs developed serious symptoms, diagnosed by experts, shortly after arriv-ing at Dartmouth. Thus, it appears the Court was suggesting that no experts were disclosed proving a link between the symptoms and Dartmouths actions. This is also problematic. Isaacs requested that his doctors at the Dartmouth Sleep Center investigate the causes for his new-onset sleep disorder. At that point, he was abandoned as a patient. As Dr. Greens

28

testimony was clear, this abandonment was never investigated. Second, Petitioner sought expert review of the unnecessary DRE rectal exams, for the exact reason of substantiating IIED and NIED claims. The District Judge declined this request. In short, by denying forensic analysis of the DRE exam records and deleted emails, the District Judge prevented any chance for the events under controversy to undergo expert assessment.

With regards to Claim I (ADA), the District Court rendered a most inaccurate decision. The first issue raised is how and when Dartmouth learned of a disability requiring accommodation. Isaacs disclosed his traumatic brain injury in his pre-hire health questionnaire. Isaacs did not claim a disability at time of application; after achieving top levels on the USMLE and honors level performance in medical school, Isaacs felt optimistic the head injury was a no longer an issue. Following his first few days of work at Dartmouth, during which he felt abused and was ordered to conduct unnecessary rectal exams, Isaacs health rapidly deteriorated. He experienced cardiac arrythmias upon returning home from work his third day at Dartmouth. From that point forward, until recently, he had difficulty staying awake more than three hours at a time. As he testified, the year prior at Arizona he worked thirty-hour shifts without any major complications. As the evidence shows, Chief Resident Dr. Nick Bus remarked that Isaacs ap-peared on the verge of a nervous breakdown his first week. Another chief resident emailed Harley Friedman

29

I really feel bad for Jeff. Simon was the wrong per-son to assign to a fragile intern. Attending physician Brian Krawich wrote that Isaacs suffered from inca-pacitating anxiety the first week. Two months later, an actigraph study would have documented a serious sleep/wake disturbance, however, this ESI was de-stroyed. Nonetheless, the sleep center diagnosed Isaacs in October 2011 with a new moderate-severe sleep disorder. In sum, witness statements and Dartmouths own medical records prove Dartmouth knew about Isaacs disability.

When the District Court states

For one thing, it is undisputed that Dr. Isaacs himself concealed his alleged disabil-ity from Dartmouth-Hitchcock in the paper-work he completed in connection with the start of his residency

it has gone beyond fair bounds and truly issued a fictional Order. Isaacs frontal brain impairment was diagnosed in late 2012. Ventricular tachycardia was diagnosed in early 2013. It is truly a shameful Dis-trict Court determination, that as a matter of law, in April 2011 Isaacs purportedly concealed a disability that didnt develop or get diagnosed until a year or so later.

Likewise, the Court erroneously determined the matter of Isaacs request for accommodation. Isaacs deposition testimony was unambiguous in that he asked Finn for medical leave on at least two occa-sions. A witness affidavit by Isaacs father, William,

30

affirmed his recollection of the Plaintiff asking for medical leave. Nonetheless, the District Court placed full credence in Finns written notes:

[Isaacs] expressly declined to ask for any ac-commodation. Beyond that, the only evidence in the record concerning Dr. Isaacs alleged requests for an accommodation is this, drawn from a note to the file written by Dr. Finn on November 29, 2011 . . . Dr. Finns note demonstrates neither a properly framed request for an accommodation, under Jones, nor a denial of such a request.

Again, whether Isaacs and his father (who in-structed medical ethics to residents) are to be be-lieved, or Finn, is not a matter of law; it is a matter for a jury to deliberate.

Count II, for Wrongful Termination, was likewise improperly dismissed based on the District Courts statement (USCA Addendum p. 30) that there was no genuine dispute of 1) [Isaacs] poor performance as a resident; and (2) his dishonesty during the applica-tion process that a reasonable jury could resolve in favor of the Defendants. Such is patently false. Two evidentiary hearings determined that Isaacs commit-ted no fault with regards to his non-disclosure of Keck. A jury could reasonably determine the same as these two evidentiary hearings. Likewise, there is no question a reasonable jury could attribute Isaacs performance issues to hazing, unfair scrutiny, and other fraudulent activity. As Dr. Wear testified, Finn had a duty to read the disclosure. Of course a jury

31

could find that Finn carried out her duty and read the disclosure that she signed.

Count IV is a breach of contract claim, in essence stating that Dartmouth failed to follow contractual obligations and due process. This matter should have been summary judgment in Plaintiff s favor; it is undisputed that Isaacs was never given written administrative leave, a Fair Hearing, or any other due process. The District Court simply chose to ignore facts it was aware of dating back to the first request for a structural injunction.

The District Court misconstrued the record with regards to Count V, breach of the covenant of good faith, and Count VIII, fraud. Plaintiff was, at all times, under the impression that he was a bona fide participant in Dartmouths Medicare funded GME program. The funds Dartmouth received from Medi-care to train Plaintiff, approximately $100,000, are now unrecoverable. This effectively prevents Isaacs from gaining another residency, as that program would lose out on $100,000 in Medicare GME fund-ing. Had Plaintiff known that Dartmouth knew all along about Keck and Arizona, and were merely having him go through the motions (and hazing him while doing so), he certainly would not have contin-ued participation in the program. In short, he be-lieved that he had a chance to complete training at Dartmouth, but was in fact being outcast the first week. The District Courts sixty page decision simply never addresses the sham. It never addresses the

32

documents Finn signed, but claimed she didnt notice, which would prove fraud. It is incorrect.

The First Circuit Erroneously Denied Sanctions

For Willful E-Discovery Non-Compliance.

On January 15, 2012, Dr. Isaacs sent Jim Yong Kim an email requesting preservation of key electron-ic evidence, including relevant Dartmouth-Hitchcock emails:

I shall be requesting expedited discovery. Pursuant to Rule 34 of the Federal Rules of Civil Procedure, I hereby request that all electronic records relevant to my employ-ment (including GIM/Psych Program Direc-tor email/phone logs, Department of Psychiatry internal communications) be im-mediately audited and preserved. (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

33

denied ever having communicated with Jim Yong Kim (Finn depo p. 137):

Q. Do you remember if Jim Yong Kim received any letter such as this [the Rule 34 request] on January15th?

MR. CHABOT: Objection, foundation.

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

Q. If he was provided with this letter, did he tell you to preserve, according to these instructions, last paragraph, preserve all e-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 instruct you to save all e-mails, not to delete anything 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 I hear . . . it is completely ridiculous (Appen-dix p. 370).

Finn therefore admitted that, at the time she deleted his emails, she knew generally about the

34

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

Q. Ill rephrase it. Earlier did you testi-fy 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 general-ly knew or there was some communication about that e-mail coming into Dr. Kim that got to you?

A. Apparently.

Q. Okay. So you want to revise your earlier testimony, 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.

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 October 31st hearing concerning the Motion for Sanctions. Knowing sanctions are typically exempted for automatic deletion processes, Kaplan completely fabricated that a PeopleSoft automated process deleted the emails. This was in stark contrast to the

35

evidence, and Finns own admission to annually deleting the emails. The District Judge turned a blind-eye to the Defendants contradictory excuses:

I deal directly with the folks in the IT group there. I asked a series of questions, not the least of which was if there was absolutely no limitation on the amount of money that I could give you or expend in order to secure those records, how could we do it? And their IT group came back and told me that they could not, that there was a write-over, thats the way the system works . . . It was an automatic process. A process, I believe its called PeopleSoft, went into place and 30 days thereafter his Outlook account was deleted. (Statement of Ed Kaplan, Transcript p. 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. How about if the Court is inclined to have us have an independent individual look at it, I need to ask a preliminary question, which is, is the independence of an independent person destroyed by, if I can identify some-body for the Court? I mean, because weve used computer experts before in other litiga-tion. I mean, I can certainly find an inde-pendent person, but Im not sure if its a person that I locate that Ive automatically killed his or her independence. But if thats

36

okay, if thats what the Court wants (Tran-script 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 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: (Tran-script p. 32)

MR. ISAACS: Theres a problem that three days after that email to Dr. Kim, a non-automatic process occurred. And, you know, I really feel from what Ive seen of the civil procedure and civil discovery pro-cess, I mean, [the FRCP] its an honor code at a lot of levels, and it appears to me that hon-or code was violated.

The District Judges denial of sanctions was minimal in explanation and simply ignored the dozens of authoritative case law citations the Peti-tioner provided in his Memorandum of Law. She didnt provide any reasoning, other than stating the

37

emails werent important, which defies common sense and is discouraged by public policy:

All of plaintiff s requests for sanctions are DENIED. The defendants have not vio-lated any court order to compel discovery. Sanctions are inappropriate at this time . . .

As plaintiff candidly admitted, plaintiff is gener-ally 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. (Appendix p. 334)

The First Circuit Set An Undesireable Precedent By Failing To Recognize That ESI Destruction

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: (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, the due administration of justice, shall be pun-ished as provided in subsection.

The Court erred in denying Petitioners request for forensic analysis and subsequent prosecution of known evidence destruction. The District Court simply chose to ignore precedent ESI case law, such

38

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 forensics 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 pre-serve at time it was destroyed; (2) that the records were destroyed with a culpable state of mind; (3) that the 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, under Zubulake Second Circuit jurisdiction, includes either a) negligence when the data is rele-vant, or b) intentional destruction.

All conditions for sanctions were indisputably met in this clear case of ESI spoliation; the District Court erred in failing to recognize that the Zubulake applied.

Case law prior to Zubulake similarly supported sanctions against Dartmouth: While a litigant is under 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

39

foreseeable 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) (Appendix p. 247), where sanctions were issued solely on the suspicious timing of the deletion of the ESI.

No Administrative Procedures Were Followed Nor Does An Administrative Record Exist With

Regard To The Termination Of Dr. Isaacs.

Dartmouth executed a termination of the Peti-tioner without following any of Dartmouths own internal administrative policies. No written record of 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 Hearing process required at Dartmouth. There is no ambiguity in Defendant 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 document or notice of hearing offered to me that I signed, right?

A. Correct.

40

The administrative leave matter had been dis-cussed specifically on p. 247 of Finns Deposition:

Q. Okay. So when did you place the Plaintiff on administrative leave?

A. I need to review the exact date.

Q. Did you ever give the Plaintiff writ-ten notification of administrative leave?

A. I dont recall.

Q. Isnt that a required part of admin-istrative leave, to give written notice?

A. I wasnt sure of the GME policies and procedures.

Q. If you were blackmailing someone or coercing them to resign, might you not give an administrative leave document to them?

MR. CHABOT: Objection, calls for speculation, states facts not in evidence.

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 email account 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

41

conclude that the Respondents never had any serious intention of giving Dr. Isaacs a proper fair hearing.

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

CONCLUSION

Petitioner spent decades diligently preparing to work as a doctor. His career was ended by his alma mater, Dartmouth College, in efforts to shield their liability for a situation gone awry. Due process was not upheld by Dartmouth, the Concord District Court, nor the First Circuit. The rules granted Petitioner at least twenty-one days to respond to a Motion for Summary Judgment. However, the District Judge granted judgment, against a disabled and ill Plaintiff, after only eighteen days.

Moreover, there should have been interaction between Rule 56(d) and Petitioners Rule 37 and scheduling conference requests. When Dartmouth intentionally deleted Isaacs entire Dartmouth email account and medical charts, an impartial District Court would have seen that he could not, in the words of Federal Rule 56(d), present facts essential to justify opposition to the Summary Judgment.

Precedent from the highest court of the land is needed regarding email destruction. In this case, the President of Dartmouth (and later, World Bank) was either negligently or directly responsible for ESI evidence destruction. We see daily references in the mainstream media to the most senior political figures deleting emails after subpoena notice. In an age

42

where emails could, and should, reduce corruption, we are seeing the opposite. Penalties and sanctions for email deletion seem far less than those tradition-ally enforced for physical (i.e., Watergate tapes, paper records, etc.) evidence destruction.

For the foregoing reasons elaborated upon in this petition, Dr. Isaacs respectfully requests this Honora-ble Court issue an appropriate writ to uphold justice and, at the very least, return him to work at Dart-mouth.

Respectfully submitted,

JEFFREY ISAACS Petitioner Pro se 3553 West Chester Pike #177 Newtown Square, PA 19073 Telephone: (610) 202-1460 Email: jdi.99@dartmouth.edu

App. 1

United States Court of Appeals For the First Circuit

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

No. 141544

J.D. ISAACS,

Plaintiff, Appellant,

v.

DARTMOUTH HITCHCOCK MEDICAL CENTER; MARY HITCHCOCK MEMORIAL HOSPITAL;

DR. CHRISTINE T. FINN; TRUSTEES OF DARTMOUTH COLLEGE, d/b/a Dartmouth

Medical School,

Defendants, Appellees,

DARTMOUTH COLLEGE TRUSTEES; JIM YONG KIM; DR. DOUGLAS NOORDSY; JOHN DOE,

Defendants.

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

Before

Howard, Thompson and Barron Circuit Judges.

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

JUDGMENT

Entered: January 5, 2015

We have carefully reviewed the record in this case, including the briefs of the parties. We find no abuse of discovery in the district courts handling of

App. 2

discovery nor in its grant of summary judgment to the defendants.

Therefore, essentially for the reasons given by the district court in its order, dated April 18, 2014, the judgment of the district court is affirmed.

By the Court:

/s/ Margaret Carter, Clerk

cc: Jeffrey David Isaacs Edward M. Kaplan Christopher James Pyles Kathleen C. Peahl Pierre A. Chabot

App. 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dr. J.D. Isaacs

v. Civil No. 12-cv-040-LM

Dartmouth-Hitchcock Medical Center, Mary Hitchcock Memorial Hospital, Dr. Christine T. Finn, and the Trustees of Dartmouth College

ORDER

(Filed Apr. 29, 2014)

Before the court is an emergency motion for reconsideration filed by Dr. J.D. Isaacs. In it, he takes issue with the courts statement, in its order on defendants motions for summary judgment, that he did not object to those motions. He did not. To be sure, Dr. Isaacs did file a motion for a scheduling conference in which he asked the court to:

(1) Appoint counsel to review the 40 hours of deposition tapes for irregularities and suggest follow-up discovery provisioning.

(2) Re-schedule ESI discovery[.]

(3) [A]ny other action this Court deems just.

Doc. no. 140, at 3. Dr. Isaacs, however, did not move the court to extend the deadline for responding to the two summary judgment motions, nor did he seek relief under Rule 56(d) of the Federal Rules of Civil Procedure. While the Federal Rules are intended to

App. 4

protect the rights of plaintiffs, such as Dr. Isaacs, to the fair resolution of their civil claims, they are also intended to protect defendants from the dilatory and haphazard litigation of claims against them. Here, the balance tips in favor of enforcing against Dr. Isaacs the consequences of his failure to: (1) object to defendants motions for summary judgment; (2) seek an extension of the deadline for doing so; and/or (3) seek relief under Rule 56(d).

In his emergency motion for reconsideration, Dr. Isaacs states: If Plaintiff was not clear, his motion for [an] emergency scheduling conference inherently requested a stay on the motion for summary judg-ment, in light of Plaintiff s unintentional delays and inability to focus on the litigation. Doc. no. 147, at 2. Courts are not in the business of ruling on inherent requests for relief, and for good reason. An opposing party has no meaningful opportunity to respond to an inherent request, and if a court were to take the steps necessary to frame a partys inherent request for relief as an express request, then it would run the risk of acting as that partys lawyer, which is most certainly out of bounds.

In sum, Dr. Isaacs has identified no good reason for the court to reconsider its order on defendants motions for summary judgment and, as a conse-quence, his emergency motion for reconsideration, doc. no. 147, is denied.

App. 5

SO ORDERED.

/s/ [Illegible] Landya McCafferty

United States District Judge April 29, 2014

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

App. 6

United States Court of Appeals For the First Circuit

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

No. 141544

J.D. ISAACS,

Plaintiff, Appellant,

v.

DARTMOUTH HITCHCOCK MEDICAL CENTER; MARY HITCHCOCK MEMORIAL HOSPITAL;

DR. CHRISTINE T. FINN; TRUSTEES OF DARTMOUTH COLLEGE, d/b/a Dartmouth

Medical School,

Defendants, Appellees,

DARTMOUTH COLLEGE TRUSTEES; JIM YONG KIM; DR. DOUGLAS NOORDSY; JOHN DOE,

Defendants.

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

Before

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

Circuit Judges.

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

ORDER OF COURT

Entered: February 18, 2015

The petition for rehearing having been denied by the panel of judges who decided the case and the petition for rehearing en banc having been submittal to the active judges of this court and a majority of the

App. 7

judges not having voted that the case be 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: Jeffrey David Isaacs Edward M. Kaplan Christopher James Pyles Kathleen C. Peahl Pierre A. Chabot

31331 Isaacs cv 0131331 Isaacs in 0331331 Isaacs br 0431331 Isaacs aa 02