By Order dated April 4, 2005, Magistrate Judge Frank Maas denied Plaintiff's application for additional discovery concerning discrepancies between patient data on Defendant Lenox Hill Hospital's (the "Hospital") Invision system ("Invision") and the Mediware system ("Mediware") maintained by an independent contractor for the Hospital. (Discovery Order, dated Apr. 4, 2005 ("Disc. Order") at 1-2.)
Plaintiff contends that there are 1,498 Mediware files that do not have corresponding Invision files. (Memorandum of Law in Support of Plaintiff's Rule 72 Motion, dated Apr. 15, 2005 ("Pl. Mem.") at 2.) Pursuant to Rule 72 of the Federal Rules of Civil Procedure, Plaintiff objects to the Magistrate Judge's ruling and seeks an Order directing the Hospital to locate each of those Invision files for which a Mediware file exists. (Pl. Mem. at 2-3.) For the reasons set forth below, Plaintiff's application is denied.
The Federal Magistrate's Act, 28 U.S.C. §§ 631-639, and Rule 72 of the Federal Rules of Civil Procedure provide the standard for review of a magistrate judge's order. With respect to nondispositive matters, a district judge shall "modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). A party seeking to overturn a nondispositive ruling under the "clearly erroneous" standard generally bears a "heavy burden." See Com-Tech Assocs. v. Computer Assocs. Int'l, Inc., 753 F. Supp. 1078, 1099 (E.D.N.Y. 1990).
Pretrial discovery issues are nondispositive matters and are reviewable under the "clearly erroneous" standard. See Hora v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). A finding is "clearly erroneous" if the reviewing court is left with the "definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. United Gypsum Co., 333 U.S. 364, 395 (1948)).
The Magistrate Judge found that Plaintiff "made no persuasive showing that these [1,498 missing Invision] files are necessary for [her counsel's] study to be statistically meaningful." (Disc. Order at 1.) The Magistrate Judge further noted that the Hospital's Director of Financial Applications had explained to Plaintiffs' expert that there was no guarantee that the patient files on the Invision and Mediware systems would "ever be totally 'in synch' because the data on the Mediware system is entered manually." (Disc. Order at 1-2.) The Magistrate Judge concluded that the Plaintiff offered no evidence that "the discrepancies result from a deliberate effort to skew the data." (Disc. Order at 2.) Thus, the Magistrate Judge determined that Plaintiff's requested remedies were not warranted. (Disc. Order at 2.) This Court agrees with the Magistrate Judge.
In view of Plaintiff's failure to proffer any statistical evidence regarding the importance of the missing information, the Magistrate Judge's ruling was appropriate. Plaintiff's counsel's conclusory assertion "that he does not think that these 1,498 files are insignificant" (Disc. Order at 1 (emphasis in original)) is not persuasive because Plaintiff's counsel is not a statistician. His ipse dixit is insufficient as a matter of law. Accordingly, the Magistrate Judge's Discovery Order precluding another round of discovery regarding the Hospital's computer files was not "clearly erroneous."
For the foregoing reasons, the Magistrate Judge's Discovery Order is affirmed and Plaintiff's Rule 72 objections are overruled.
 Plaintiff also seeks sanctions against the Hospital for its failure to produce the missing Invision files. (Pl. Mem at 4-5.) Because Plaintiff did not make the sanctions request prior to issuance of the Discovery Order, this Court denies it as untimely. (See also Memorandum Endorsed Order, dated Apr. 6, 2005.) Moreover, because Plaintiff has failed to provide any evidence that the Hospital destroyed any computer files with a culpable state of mind, no sanctions are warranted. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107-09 (2d Cir. 2002).
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