Dariusz DZIADKIEWICZ and Carl G. Durden, on behalf of themselves, persons claiming under their health plans, and all persons similarly situated, Plaintiffs, v. BLUE CROSS & BLUE SHIELD OF RHODE ISLAND, Defendant. Kerrigan HANOIAN, Joseph Triangolo, and Terrence J. Kane, on behalf of themselves, persons claiming under their health plans, and all persons similarly situated, Plaintiffs, v. BLUE CROSS & BLUE SHIELD OF RHODE ISLAND, Defendant No. C.A.96–275S, C.A.96–2579 United States District Court, D. Rhode Island October 13, 2004 Decided On October 21, 2004 Silverstein, Michael A., United States District Judge Order *1 Enclosed please find a very recent decision rendered out of a joint state-federal pretrial proceeding involving both the sate and federal courts in Rhode Island. This joint decision involves a topic—sanctions—and a posture—joint state and federal—that we believe will be of interest to practitioners nationally. Accordingly, we respectfully request that it be published on Westlaw's electronic database. Please feel free to call if you have any questions. Thank you. Best regard. Before the Courts for decision is the motion of Plaintiffs seeking to compel Defendant to produce certain documents that Plaintiffs believe should have been produced during discovery.[1] Plaintiffs also bring a motion for sanctions against Defendant for untrue and misleading information provided to Plaintiffs during discovery, and for Defendant's failure to supplement or correct these untruths. As set forth more fully below, Plaintiffs' motion seeking production of certain documents by Defendant is granted. Plaintiffs' motion for sanctions against Defendant is granted in part, and denied in part. I. Background In 1996, Plaintiffs filed class action lawsuits in the United States District Court for the District of Rhode Island and the Rhode Island Superior Court, alleging, inter alia, claims processing errors in ERISA-governed health plans (in district court) and in non-ERISA health plans (in state court). In 2003, these Courts embarked upon an effort to jointly manage these related cases. The Courts have addressed numerous issues, both procedural and substantive, to date, and the cases are now entering (hopefully) their final stage. On April 29, 2004, Plaintiffs' and Defendant's counsel reached an agreement resolving numerous Rule 37 issues, including Defendant's agreement to produce “documents upon which Milliman U.S.A. [Defendant's expert, hereinafter “Milliman”] had relied and that had not been produced to the plaintiffs.” (Pls.' Mem. Supp. Sanct's at 12.) Subsequently, on the evening prior to Plaintiffs' deposition of Defendant's expert, Phyllis Doran, Defendant produced materials upon which Doran had relied, including “a packet of documents an inch thick and a CD containing thousands of pages of information.” (Id .) The Milliman CD included a data dictionary for the SAFARI claims history database,[2] as well as a complete set of benefit structure tables and a training manual. (Id. at 13, 15). Plaintiffs argue that these materials should have been produced by Defendant years ago, and that their production would have affected their expert's analysis of the SAFARI claims database. (Id.) Defendant argues, inter alia, that Plaintiffs had ample information pointing to these documents but did not fully pursue available opportunities to obtain their discovery. (Def.'s Mem. Obj. Sanct's at 9–13, 16–20.) In addition to Defendant's eleventh-hour production of important explanatory documents relied upon by Defendant's expert, Plaintiffs contend that the deposition of Doran revealed still more information that should have been provided to Plaintiffs earlier—including that Doran had relied on communications with Defendant's employee, Jeremy Brenner, whom Plaintiffs had deposed and thereafter dismissed as having “no useful information about claim processing and claim histories.” (Pls.' Mem. Supp. Sanct's at 8.)[3] Doran admitted relying on (and therefore produced) two emails between herself and Brenner, but Plaintiffs argue that they are entitled to the 400–500 emails that went back and forth between Doran's employer, Milliman, and Defendant. (Id. at 2, 10, 18.) Defendant argues that Plaintiffs are confused about the content and meaning of the emails, that Doran did not rely on these emails, and that, in any event, Plaintiffs did not properly request production of the emails while the discovery period remained open. (Def.'s Mem. Obj. Sanct's at 16, 21–22.) *2 Plaintiffs contend that Defendant's failure to produce certain documents and waiting until the last possible minute to produce others, and Defendant's designation of witnesses who provided “not only misleading, but blatantly false” information, violated Rule 37. (Pls.' Mem. Supp. Sanct's at 2.) According to Plaintiffs, “[c]learer cases of obfuscation, deliberate frustration of discovery, and ‘hide the ball’ tactics are rarely encountered.” (Id. at 16.) Plaintiffs therefore request that the Courts grant their motion to compel production of certain documents and their motion for sanctions against Defendant, including, inter alia, their motions to strike all or parts of Defendant's Daubert motion and to reconvene the deposition of Doran. Defendant counters that “[a]t the heart of plaintiffs' request for sanctions is plaintiffs' realization that they have not produced a reliable expert report,” and thus, Plaintiffs' motions for sanctions and to compel the production of certain documents are “transparent efforts to accomplish via discovery motion what they cannot accomplish through a Daubert motion.” (Def.'s Mem. Obj. Sanct's at 26.) II. Holding While the Defendant is partially correct that Plaintiffs' follow-up to evasive and misleading statements by Defendant's employees left much to be desired (see id. at 8–9, 16–20), the problem could have been avoided by common sense and thorough responses to discovery requests and deposition questions. One example should suffice to make this point. In 2000, when Plaintiffs switched fields and requested production of the entire SAFARI database, common sense suggests that the SAFARI database dictionary should have come with it. Plaintiffs' subsequent requests for information relating to the SAFARI database over the next two years further support this conclusion. According to Defendant, in mid–2001, Plaintiffs requested and received five dozen separate “code” tables for use in interpreting the fields within the SAFARI database, and in 2002, Plaintiffs requested and received three sets of encrypted “sample” SAFARI data, together with SAFARI claims data for certain named plaintiffs. (Id. at 5.) Supposing, for the moment, that Defendant's production of the SAFARI database dictionary did not logically follow from Plaintiffs' request for the database itself, production of the dictionary reasonably should have accompanied one of these subsequent requests. Defendant withheld this critical document, however. When Plaintiffs asked about it at the depositions of Jeremy Brenner, Henry Thayer, and Frank Mahoney, they received evasive and misleading answers. (Pls.' Mem. Supp. Sanct's at 11–13.) Some months later, when Defendant turned over the massive document dump of materials relied upon by Milliman, it included the data dictionary. (Id. at 12–13.) Now, the Plaintiffs rightfully contend that they should have received it much earlier so their expert, Dr. Richard Goldstein, could have used it in preparing his report. (Id. at 10–13.) *3 Defendant stands on the claim that Plaintiffs didn't ask just the right follow-up question in response to Defendant's employees' evasive and misleading answers (see Def.'s Mot. Obj. Sanct's at 8–9); if they had, of course Defendant would have produced the data dictionary. These are just the kind of tactics that make complex litigation frustrating and time-consuming. Cf. Murray Int'l, Inc. v. New York Tel. Co., No. 91 Civ. 5975(VLB), 1993 WL 82531, at *2 (S.D.N.Y. Mar. 17, 1993) (“The notion that a party must demand production of individual items by name is contrary to the Federal Rules of Civil Procedure.... If every item had to be designated individually and categorical requests were not recognized, meaningful discovery in litigation of any complexity would be impossible.”). This is only one example, but it is representative of the kind of behavior on the part of Defendant that has prompted this motion. Moreover, Defendant's protestation that this motion is really a thinly veiled attempt to cut the legs out from under Defendant's Daubert motion is itself a diversionary tactic. Plaintiffs' expert may or may not stand up to Defendant's Daubert motion. That determination awaits and these Courts will not grant Plaintiffs' sanction request to strike all or part of that motion. But Defendant's conduct can be addressed without going this far. Thus, while neither party is faultless here, the Defendant must pay the greater price as its tactics have led directly to this situation. Therefore, the Courts hold as follows: A. Plaintiffs' motion to compel the production of documents is granted, subject to the following terms. On or before Monday, October 25, 2004, Defendant is hereby ordered to produce the following documents: (i) all emails between Milliman and Defendant concerning any aspect of the material that makes up the Milliman June 1 Report, which shall be drawn from both Milliman's employees and Defendant's employees so as to minimize the possibility of “lost” or deleted emails; (ii) all internal emails between and among Defendant's representatives concerning any aspect of any inquiry from Milliman or the generation of information sent to Milliman; (iii) all internal emails between and among Milliman's representatives concerning any aspect of any inquiry to Defendant or dissemination of any information received from Defendant; (iv) notes prepared by both Defendant and Milliman with respect to telephone conference calls in which technical matters were discussed, including those in which counsel was involved, and to the extent that such notes reflect the comments of counsel, these comments can be redacted, with the redaction clearly marked; and (v) all Milliman billings to Defendant for work conducted on this case. B. Plaintiffs' motion for sanctions against Defendant is granted with respect to Plaintiffs' right to reconvene the deposition of Phyllis Doran, subject to the following terms. On or before Monday, November 8, 2004, Plaintiffs may reconvene the deposition of Phyllis Doran if, in Plaintiffs' reasonable discretion, the information disclosed in the above-referenced emails and other documents produced pursuant to this Order suggests additional lines of questions. *4 C. Because Defendant did not produce during discovery certain documents upon which its expert relied, Plaintiffs' expert, Dr. Richard Goldstein, is entitled to review these documents and to modify his report accordingly, subject to the following terms. On or before Tuesday, November 30, 2004, Plaintiffs' expert, Dr. Richard Goldstein, may, in his reasonable discretion, modify “Expert Report No. 3,” dated Tuesday, December 31, 2003, based on the information disclosed in the above-referenced emails and other documents produced pursuant to this Order, and on the information disclosed in the reconvened deposition of Phyllis Doran, if applicable. D. As previously agreed, the hearing on Defendant's Daubert motion, at which Defendant seeks to exclude the proffered expert witness testimony of Dr. Richard Goldstein, shall commence on Wednesday, December 8, 2004. E. The parties shall strictly comply with the time limits set forth in this Order, absent a showing of good cause. F. Plaintiffs' separate motion pertaining to cross-use of state and federal discovery in the state and federal proceedings is GRANTED. The parties' written discovery and depositions taken in connection with the state and/or the federal case shall, for all purposes, be treated as though taken in both cases. G. Although the testimony of Defendant's witnesses was less than forthcoming, and despite the fact that Defendant waited to produce several important explanatory documents relied upon by Defendant's expert until the day before Plaintiffs' deposition of such expert, Plaintiffs' allegations of “obfuscation, deliberate frustration of discovery, and ‘hide the ball’ tactics” are not sufficiently supported by the facts to warrant the Courts' granting of certain sanctions proposed by Plaintiffs. Plaintiffs' motion for sanctions is therefore denied with respect to Plaintiffs' motion to strike all or a portion of Defendant's Daubert motion. No further relief with respect to sanctions or fees and costs is applicable at this time. The Courts reserve the right to revisit these issues as circumstances change. III. Conclusion The Plaintiffs' motion seeking production of certain documents by Defendant is GRANTED. Plaintiffs' motion for sanctions against Defendant is GRANTED in part, and DENIED in part. IT IS SO ORDERED. Footnotes [1] For purposes of this Order, the Courts interpret Plaintiffs' motion for general “Rule 37” relief as a motion (i) for sanctions under Fed.R.Civ.P. 37(c), arising out of Defendant's failure to disclose certain documents relied upon by Defendant's expert, and (ii) to compel the production of certain documents under Fed.R.Civ.P. 37(a)(3) and Super. R.I. Civ. P.R. 37(a)(3). Although Federal Rule 37(c) has no counterpart under Rhode Island state law, the Courts recognize trial courts' inherent power to craft discovery orders that will “protect the integrity of the judicial system.” Lett v. Providence Journal, 798 A.2d 355, 365 (R.I.2002) (concluding that “trial courts possess the inherent authority to protect their integrity by sanctioning any fraudulent conduct by litigants that is directed toward the court itself or its processes, as informed by the procedures and sanctions available to the court and to the parties under Rules 11 and 37”). In addition, because the parties' written discovery and depositions taken in connection with the state or the federal case will, for all purposes, be treated as though taken in both cases, pursuant to section II.F. of this Order, the Courts do not see the necessity of addressing the issue of whether sanctions arising out of activity that took place solely in the federal court action can be imposed in the state court action. (Def.'s Mem. Obj. Sanct's at 6, 23.) It is enough that Plaintiffs' motion for sanctions was properly brought in the federal proceeding. [2] Plaintiffs rely on the SAFARI database for the calculation of damages in this action. [3] Plaintiffs' memorandum in support of their motion for sanctions is replete with examples of Brenner's “obstructive, evasive and even ridiculous” answers to questions posed to him by Plaintiffs' counsel at his deposition on July 26, 2000. (Pls.' Mem. Supp. Sanct's at 8.)