Case 1:11-cv-00688-JEJ Document 71

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MING WEI Plaintiff v. COMMONWEALTH OF PENNSYLVANIA, et al. Defendants

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No. 1:11-CV-00688 Judge Jones Magistrate Judge Smyser

JURY TRIAL DEMANDED

REPLY BRIEF IN SUPPORT OF SECOND MOTION OF PLAINTIFF TO COMPEL DISCOVERY

1. Plaintiff, Ming Wei, filed his second motion to compel discovery on March 5, 2012 (Doc. 58). and a supporting brief on March 28, 2012 (Doc. 66). Defendants filed a brief in opposition on April 16, 2012 (Doc. 70). Nevertheless, defendants still fail to properly respond the discovery requests of plaintiff . In order to clarify the applicable law and facts, plaintiff submits this reply brief. STATEMENT OF QUESTIONS INVOLVED I. Defendants have not properly filed their documents to correspond to the some categories in the request yet. 2. This Court stated Federal Rule of Civil Procedure 34(b)(2)(E)(i) provides that [a]

party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request. in its order (Doc. 61) dated
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March 14, 2012. 3. The Court ordered the defendants to file a surreply brief addressing the plaintiffs assertion that the documents produced were disorganized and that page numbers for the documents responsive his requests were not provided. Id. 4. Nevertheless, defendants still did not properly organize and label the documents to correspond to some categories in the request. As plaintiff indicated in his brief (Doc. 66), defendants RESPONSE in his question 3 for any minutes and/or records of meetings and communications about the backlog lab data during Nov 2005 and Nov 2006 (In response to the document request, see Bates Numbers 193-230, 234-238, 256-260, 285-288, 326, 514-515, 568, 582-583, 588-592, 593-607, 622, 627-628, 751-755, 756-760, 785-786, 941-945, 979-987, 10141017, 1085-1089, 1102, 1302-1303, 1338, 1390-1392, 1470-1474, 1535-1546 and 1664-1666 of documents previously produced) included a majority of documents that were not in the category. 5. Because defendants responses (Doc. 70-1) to plaintiffs interrogatories (Doc. 43-1) did not properly provide the documents to support their assertions in the responses and did not clarify when and who made each response, plaintiff sent the second set of interrogatories for further information to defendants (Exhibit (Ex.) 1) dated March 16, 2012. On April 19, 2012, defendants responded plaintiffs requests (Ex. 2). However, they continued to improperly include many un-relevant documents to certain categories while they did not have the relevant documents to support their assertions. Here plaintiff focus on analyzing some responses from their most recent document (Ex.2, Questions. 2-4), his comments were also present at end: 6. Question 2. Please provide any documents to support defendants claim that Pennsylvania Department of Health (PADOH) Bureau of Information Technology (BIT) and its PA NEDSS team was not responsible for HIV lab reports from the various file formats rather

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than a single format in 2005. The following PADOH documents showed that BIT and PA NEDSS team should be responsible for HIV lab reports from the various file formats: 1) BIT would develop a process for converting the various file formats of ELR HIV/AIDS reports (DEF000621); 2) Based on ELR samples from all lab provided by Dr. James Rankin, developed pausing rules for each lab and begin extracting data from backlogged reports (DEF000952); 3) Dr. Rankin ordered to send all 2005 files with the various file formats to PA NEDSS team on March 23, 2005 (PLA000122); 4) Mr. Robert Giallo wrote to Ming Wei I know that the ELR lab data will be processed by my ELR team as part of the NEDSS 8.0 plan. (PLA000123) on March 25, 2005 (Ex. 2, page (p) 3). 7. Defendants Response: BIT was developing a format to convert the HARS database to PA NEDSS, but that format was separated and distinct from the format to be developed by Ming Wei, Ming Wei did not need the BIT format in order for him to develop the unification format. Documents that support defendants claims are the following: Bates Numbers 193-230; 234-236; 256-260; 285-288; 326; 514-515; 568; 582-583; 588-592; 593-607; 622; 627-628; 751755; 756-760; 785-786; 941-945; 979-987; 1014- 1017; 1085-1089; 1102; 1302-1303; 1338; 1390-1392; 1470-1474; 1535-1546 and 1664-1666 (Ex.2, p4) 8. Plaintiffs comment: None of the documents in the defendants list was to address that BIT was not responsible for HIV lab reports from the various file formats in 2005. Factually, BIT and its PA NEDSS team were responsible for converting both HARS data and HIV lab data in 2005. 9. Question 3. Please provide any documents support defendants assertion that PADOH assigned Ming Wei to develop a format (layout) as alleged in defendants response to INTERROGATORY NO. 3: that format was separate and distinct from the format to be

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developed by Ming Wei. Please provide where and when who ordered Ming Wei to develop a format (Ex.2, p4). 10. Defendants Response: Documents that support defendants assertion that PADPH assigned Ming Wei to develop a format layout are Bates Numbers 193-230; 234-236; 256-260; 285-288; 326; 514-515; 568; 582-583; 588-592; 593-607; 622; 627-628; 751-755; 756-760; 785-786; 941-945; 979-987; 1014- 1017; 1085-1089; 1102; 1302-1303; 1338; 13901392; 1470-1474; 1535-1546 and 1664-1666 (Ex.2, p4).. 11. Plaintiffs comment: None of the documents in the defendants list was about that PADPH assigned Ming Wei to develop a format to unify HIV lab data in 2005. Defendants failed to respond where and when who ordered Ming Wei to develop a format. 12. Question 4. In 2005, there were many data errors when PA NEDSS team converted about 45,000 HIV/AIDS cases from a HARS format to PA NEDSS format though PA NEDSS team made a tremendous effort and spent a lot of moneys on it. Please provide any document to justify defendants assertion to convert the data into two layouts (a layout first then a PA NEDSS layout later.) rather than a single layout (Ex.2, p4). 13. Defendants Response: Documents that support defendants position that Ming Wei was required to develop the unification layout while BIT was converting the HARS database to the PA NEDSS database are documents Bates Numbered: 193-230; 234-236; 256260; 285-288; 326; 514-515; 568; 582-583; 588-592; 593-607; 622; 627-628; 751-755; 756-760; 785-786; 941-945; 979-987; 1014- 1017; 1085-1089; 1102; 1302-1303; 1338; 1390-1392; 14701474; 1535-1546 and 1664-1666 (Ex.2, p5). 14. Plaintiffs comment: None of the documents in the defendants list was about justifying defendants assertion to convert the HIV lab data into two layouts as they suggested in

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the response to plaintiffs first set of interrogatories (a Ming Wei layout first then a PA NEDSS layout later.) in 2005. 15. Furthermore, a majority of documents in the list (Bates Numbers 193-230; 234-236; 256-260; 285-288; 326; 514-515; 568; 582-583; 588-592; 593-607; 622; 627-628; 751-755; 756760; 785-786; 1085-1089; 1102; 1390-1392) were the emails in 2007 and 2006, they absolutely could not use for the 2005 tasks defined in the first set of interrogatories (Doc. 43-1). 16. For example, numbers 193, 208, 568, 785 (Ex. 3) were the same duplication email that plaintiff communicated with Veronica Urdaneta and Robert Giallo on March 1, 2007. Plaintiff readdressed his estimate about 2,000 new cases and 100,000 new reports after de-duplications with 2006 cumulative HIV/AIDS reports in NEDSS. 17. Moreover, defendants used the same sets of documents to answer the different categories of the questions, it was obvious that they did not properly label them to correspond to the categories in the request. II. Defendants do not provide their documents to some requests from plaintiff yet

18. Regarding all critical documents about 2005 HIV lab data (Doc. 65-1, Numbers. 2, 4, 6). It should be noted that PADOH has often stressed processing backlog HIV lab data as its top priority in its legal documents, and testified that it could not complete them yet in December 1, 2007 State Civil Service Commission (SCSC) hearing. PADOH also claimed that it terminated plaintiff for his failing to complete 2005 HIV lab data. For these reasons, PADOH, as a government agency, should keep all critical documents related to backlog HIV lab data until it has been completed. In addition, PADOH expected to be a lawsuit with plaintiff even in April 2007, it should not destroy any critical documents related to its completion of backlog HIV lab data.
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19. The defendants did release some meeting minutes from 2004 to 2006 (Many of them were printed from the emails). However, none of them was for 4 key meetings for processing 2005 HIV lab data in 2005 and 2006 (Ex. 4) A) Oct 21, 2005 meeting in which Bureau of Information Technology (BIT) and its PA NEDSS team claimed the processing should be invalid without its new format. B) Nov. 22, 2005 meeting in which PA NEDSS team promised to develop a new format and process backlog HIV lab data. C) August 25, 2006 meeting, PADOH claimed that BIT made some progress and continue to be responsible for backlog HIV lab data in the meeting. D) Dec 1, 2006 meeting, BIT complained that tremendous effort should be needed to process backlog HIV lab data; and Bureau of Epidemiology (BOE) took over processing 2005 HIV lab data in the meeting. BOE and BIT agreed to cooperate testing a sample first, then would process a large-scale annual data. 20. It is common sense that the information in the Cyber could be retrieved from Intranet for a long period of time. Plaintiff assumed that COPA had the capability to retrieve e-mails from intranet. So it should retrieve these critical meeting minutes if there were in the email form. In addition, defendants should keep and provide any records of their processing 2005 HIV data after the termination of plaintiff. 21. During Dec. 1, 2006 meeting, Urdaneta, Giallo and Bonnie Krampe questioned

whether 2005 lab reports had been collected by NEDSS in 2006. Although it was impossible to collect a majority of them (the total raw HIV reports in 2006 were less than 30,000), plaintiff still proposed that HIV team would process a sample of potential cases and send to BIT for testing, BIT should upload them into PA NEDSS and send them to the filed investigation, and get the

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results of the numbers of new cases. Then a large-scale process might be started. The meeting agreed with this proposal. While plaintiff completed the job of the pilot study for HIV team, Giallo admitted that BIT did not upload the data in SCSC hearing. Defendants should provide any documents about the later works on those 158 cases. 22. PADOH never asked plaintiff to show his processed data. When plaintiff voluntarily reported that he had processed about 500,000 reports in his email dated August 27, 2007, PADOH neither scheduled a meeting to verify his information nor responded his email, it just terminated him. Nevertheless, PADOH accused plaintiff failed to show the data in SCSC hearing but it admitted it did not have any written request to ask plaintiff to do that. Then plaintiff suggested that he could come back to his PADOH office and get the data to show them. However, both PADOH and SCSC ignored his suggestion. Based on the Federal Rule of Civil Procedures, defendants had obligation to provide the documents about how to deal with those processed HIV lab reports to plaintiff. 23. Regarding pages from an email communication between Stephen Ostroff and Tiffany Burnhauser dated July 2, 2007 are missing (Doc. 51-2, No 5), the defendants claimed that they no longer had the missing pages of this email to produce. 24. Nevertheless, as the opposition brief of the defendants indicated, the e-mail in question was used in preparation for removing Ming Wei from his position. At that time PADOH had prepared to deal with plaintiffs complaint in Pennsylvania Human Relations Committee, so defendants had an obligation to keep this email for the potential lawsuit based on the Federal Rule of Civil Procedures. 25. In addition, although defendant PADOH has claimed that it does not have the capability to retrieve e-mails from former employees in their brief, defendant COPA may have

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the capability to retrieve e-mails from its intranet. It is common sense that the information in the Cyber could be retrieved from Intranet for a long period of time. 26. Regarding defendants amended response in Doc. 65-2, No. B for the full names and

addresses of two police officers handled the event of Feb 7, 2011 in PADOH building. Defendants responded: After reasonable inquiry, defendants are without knowledge or information of the names of the Capitol Police Officers present. However, plaintiff have provided a tape to defendants counsel, in which the senior police officer seemed to be identified himself as Powell, COPA certainly could identify those two capitol police officers (By the way, when Capitol polices questioned plaintiff for his SCSC visiting on May 14, 2009, plaintiff told them that his tape was working, they did not mind). 27. Regarding that defendants refused to provide their tape and transcript about July 3, 2007 PDC (Ex. 2, No. 9), defendants also denied that they did tape the PDC. However, Stephen Ostroff helped Tiffany Burnhauser for changing the tape to another side. The plaintiffs tape also recorded their conversations for this act, though in the light voices. Plaintiff admitted that his tape was not in a high quality; and his catastrophic disease with fever and under medications made his hearing, thinking and talking difficult. However, the most speeches of the defendants could be recognized. Enclosed find a page of transcript (Ex 5, p1) from a transcript company in which PADOH kept asking plaintiff to identify Where did you write that you had 400,000 finished? in the emails that they prepared for the PDC. 28. Regarding for defendants response to INTERROGATORY NO. 5. Question 6, defendants claimed "PADOH can provide the following statistics: 3,562 cases were Reported and entered to 2005" in response to INTERROGATORY NO. 5. However, PADOH entered about 6,000 cases in non-Philadelphia residents in 2003 and 2004 (Philadelphia accounted for 55%

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of Pennsylvania cases and did not have name-report for HIV cases until 2005). Furthermore, those 1,600 pre-HARS potential cases generated by HIV team but were brought in PA NEDSS in Dec 2005 were all counted as entering in 2005. Please provide the statistics how many cases were from non-Philadelphia area, and how many cases were from backlogged 1,600 pre-HARs potential cases among those 3,562 cases entered in 2005 (Ex. 2, p6). 29. Defendants RESPONSE: PADOH can no longer generate this information. PADOH maintained a pre-HARS database before migrating all HIV/AIDS cases into the PA-NEDSS database in 2005. The pre-HARS database served only as a temporary holding system for unresolved potential HIV/AIDS cases. During the migration, each and every potential case in pre-HARS was evaluated to determine whether there was any justifiable reason to add it to the PA-NEDSS database. There is no record that exists today to demonstrate which entry in the PANEDSS database came from the pre-HARS database (Ex. 2, p6). 30. Plaintiff would indicate that defendants did not answer whether they could provide the information separately by Philadelphia residents and non-Philadelphia residents. In general, non-Philadelphia residents courted for 45% of cases, PADOH certainly could generate this kind of the information and did similar analyses for data requests frequently separately, PADOH should provide the information.

III.

Defendants have presented the false facts and claims in their responses. 31. Federal Rule of Civil Procedure 11(b) (3) requires the factual contentions

(including to a pleading, written motion, or other paper presented to the court), have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

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32. As indicated in paragraph 2 to 4, defendants falsified that it assigned Ming Wei to develop a format (layout) to unify backlog lab data. Defendants also fluently presented that the documents with numbers 193-230; 234-236; 256-260; 285-288; 326; 514-515; 568; 582-583; 588-592; 593-607; 622; 627-628; 751-755; 756-760; 785-786; 941-945; 979-987; 1014- 1017; 1085-1089; 1102; 1302-1303; 1338; 1390-1392; 1470-1474; 1535-1546 and 1664-1666 were the evidentiary support their claims that PADOH assigned plaintiff to develop a format in 2005. 33. However, neither those documents were for assigning plaintiff to develop a format to unify backlog lab nor those documents indicated that plaintiff have been assigned to develop the format. 34. It should be clear that BIT and its PA NEDSS team were responsible for developing the formats and converting both 2005 HARS HIV/AIDS data and HIV lab reports in 2005. However, defendants falsified that BIT was not responsible for the format to convert various file formats of 2005 HIV lab reports in 2005. 35. PADOH document on Oct 2004 stated that BIT would develop a process for converting various file formats (rather than single file format) of backlogged HIV reports (Ex. 5, p2 for No. 2 Deliverable). 36. Nevertheless, even this falsification did not help them. PADOH has told plaintiff that it would cost $ million to develop a format in the PDC, it assured that even when it sent him out of PADOH door. For a non-discriminatory consideration, defendants could calculate how many years of plaintiffs annual work should be needed even he did not perform his overload routine work in 2005. 37. Regarding question 5 of defendants response to INTERROGATORY NO. 4.

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Please provide any documents within 2006 that defendants ordered Ming Wei to process 2005 HIV lab data in 2006; and the documents that Ming Wei refused to process 2005 HIV lab data in 2006 in support defendants' assertion "PADOH was not able to process any of the backlogged HIV lab data in 2006 because Ming Wei's continuous refusal to complete his assignment." in the response of INTERROGATORY NO. 4 (Ex. 2, p6). 38. Defendants RESPONSE: Defendants do not have any documents responsive to this request. The assignment requiring Ming Wei to complete the backlog laboratory files was made in 2005, and defendants have provided the plaintiff with that documentation. Once the assignment was made in 2005, there were no new memoranda to him making the assignment again in 2006. After the original assignment of the work was made in 2005 it was not necessary to initiate another assignment (Ex. 2, p6). 39. Plaintiff would condemn the defamation of the defendants in here. On Sept.14, 2005, Godwin Obiri, as a new team leader, asked Michael Allen (Allen), James Lehman (Lehman) and Plaintiff to converted 2005 lab data, he finally set that the task should be completed before Nov. 30, 2005. 40. Then plaintiff spent many hours to prepare the task in addition to take care of his Busy routine work, he assumed a layout that PA NEDSS team used for the lab data as the useful layout and converted thousands of records into the layout. Nevertheless, in an Oct. 21, 2005 meeting (Ex. 4, p1); PA NEDSS team stated that processing 2005 data should be invalid without its new layout. It would develop a format and a plan to process 2005 data soon. 41. On Oct 28, 2005. PADOH assigned plaintiff to a top priority of re- conciliating LMRO databases by December 12, 2005 (Ex. 5, p4-6). Reconciliation of the cases from monthly transfers were the regular jobs of three staffs in ES (Ex 5, p3). However, the amount of workload for the

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reconciliation of whole databases (about 49,000 updated cases) was more than 100 times larger than that of regular transfers (about 400 updated cases). Plaintiff spent weekends and holidays to complete this task on time. 42. On Nov. 22, 2005, PADOH held a kickoff meeting for processing 2005 data (Ex. 4, p2). Giallo promised to develop a format to bring all lab data into NEDSS. PADOH assigned Allen as the person in HIV team to work with BIT for processing backlog HIV data. Although Plaintiff was still busy on the LMRO reconciliation project for resolving the differences in each variable of each case between 17 databases, he sent an email to congratulate them (Ex. 4, p3). Obiri did not respond the email. Plaintiff also asked Obiri whether they completed processing backlog lab data by Nov. 30, 2005 as the deadline, Obiri said that the work was too large and BIT would continue doing that. Plaintiff did complete his reconciliation plan by Dec 12, 2005. 43. This falsification did not help them either. PADOH asked 3 more full-time employees (FTE) to fulfill its duty of processing HIV lab reports in addition to the original HIV team work (at least 4 staffs) in July 2004 (Ex 5. p10) with a total 8 FTEs in HIV team (Ex. p8, p9), how could it do not use 3 more FTEs in 2006 to process backlog lab data but cut a team into single staff? 44. PADOH has estimated that Epidemiology of Data Management (EDM) work needs 4.46 FTEs and remaining works needs 6.80 FTEs (Ex. 5, p9). There were 11 FTEs in the team in 2006. PADOH testified that plaintiff was assigned to handle EDM alone. Why PADOH did not assign other 10 FTEs to do some jobs of backlog lab data? 45. Regarding INTERROGATORY NO. 11: PADOH and SCSC have repeatedly claimed that plaintiff failed to convert HARS HIV/AIDS data files as the main reason to terminate him. Defendants admitted that plaintiff was not assigned to covert HARS HIV/AIDS data files now. However, they did defame plaintiff. They cited a part of Robert Giallo letter dated May 18, 2006 and

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stated this (backlog lab) project never did begin, therefore it was never completed. The project never began because Ming Wei never completed the unification of the backlog data. Nevertheless, when plaintiff asked What is the progress for last-year backlog lab data? Robort Giallo responded this project is bigger than originally anticipated and required a complete NEDSS team evaluation and effort for this project..He never responded We did not receive unification data yet. 46. Furthermore, Robert Giallo stated that they had run into a numbers of formats (layouts) in the backlog lab data on December 1, 2006 meeting. Especially those HL7 files were garbage, and could not process. They originally thought that they could complete the backlog lab data. After they tried to do that, they found that tremendous effort was needed to do that. 47. There were too many falsifications in the defendants responses, plaintiff would not list them further in here. Defendants had 5 PADOH lawyers to assist their responses (Doc. 70-1, p 2), they should not committee these severe mistakes. 48. If defendants continued their defamation against plaintiff without evidentiary support, plaintiff will file a separate motion under rule 11 to sanction them. IV Others 49. Plaintiff welcomes that defendants corrected the errors in their responses documents have been produced in Doc. 51-2, No. 2 and Doc. 51-3 No. D to unable to locate these documents yet in Doc. 65-1, No. 2 and Doc. 65-2 No. D. after plaintiff (Doc. 56, 561).complained that he did not find all documents specific for each question from 1823 pages of defendants documents yet and the Court order (Doc. 61). 50. Plaintiff also welcomes defendants is going to release the Copies of all documents Mr. Remain provided to the PADOH legal office (Exhibit 2, No. 8) though he has not received those documents yet.

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51.

PADOH stated that the total number of Philadelphia records that were manually

entered into PA-NEDSS was 362 in 2006 (Doc. 70-1, p 10) for the interrogatory 6. The numbers of cases should be wrong. From Jan, 2006 to March 3, 2006, the staffs had already documented to input 567 cases into PA NEDSS, and plaintiff identified 558 + ?12 Philadelphia cases in the PA NEDSS (Ex. 5, pages 11-12). Nevertheless, the task still continued until May 3, 2006.

CONCLUSION 52. For the foregoing reasons, defendants should be required to fully answer the

document requests and interrogatories in the proper way based on Fed. R. Civ. P. 37.

Respectfully Submitted:

_________________________________ Ming Wei 3910 Silver Brook Dr. Mechanicsburg, PA 17050 (717) 732-2040 mingweiebct@yahoo.com 04/22/2012

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MING WEI Plaintiff v. COMMONWEALTH OF PENNSYLVANIA, et al. Defendants

) ) ) ) ) ) ) )
)

No. 1:11-CV-00688 Judge Jones Magistrate Judge Smyser

JURY TRIAL DEMANDED

) PROOF OF SERVICE

I hereby certify that on April 22, 20l2, I electronically file a REPLY BRIEF IN SUPPORT OF SECOND MOTION OF PLAINTIFF TO COMPEL DISCOVERY pro se with CM/ECF system, which will send notification of such filing(s) to all parties including defendants counsel of record.

Respectfully Submitted:

Ming Wei 3910 Silver Brook Dr. Mechanicsburg, PA 17050 (717) 732-2040 mingweiebct@yahoo.com 04/22/2012

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