Rutherford v. PaloVerde Health Care Dist.
Rutherford v. PaloVerde Health Care Dist.
2015 WL 12864243 (C.D. Cal. 2015)
March 4, 2015
Pym, Sheri, United States Magistrate Judge
Summary
Plaintiffs requested further responses to written discovery from defendant Palo Verde Health Care District (PVHD). PVHD agreed to supplement its responses to the requests related to the depositions, and to produce any documents located with all protected health information redacted in response to the requests related to patient complaints. The court ordered PVHD to supplement its responses accordingly, but denied plaintiffs' request for monetary sanctions.
Dennis RUTHERFORD, et al.
v.
PALOVERDE HEALTH CARE DISTRICT, et al
v.
PALOVERDE HEALTH CARE DISTRICT, et al
Case No. ED CV13–1247–JAK (SPx)
United States District Court, C.D. California
Filed March 04, 2015
Counsel
Ljubisa Kostic, Ray J. Artiano, Artiano Shinoff and Holtz APC, San Diego, CA, Melissa A Lewis, Devaney Pate Morris & Cameron, LLP, San Diego, CA, for Dennis Rutherford, et al.Alison P. Adema, Laura M. Brandenberg, Sweeney Greene and Roberts LLP, Maria C. Roberts, Ryan G. Blackstone-Gardner, Greene and Roberts LLP, San Diego, CA, for PaloVerde Health Care District, et al.
Pym, Sheri, United States Magistrate Judge
Order Granting in Part and Denying in Part Plaintiffs' Motion to Compel Further Responses to Written Discovery [355]
*1 On January 13, 2015, plaintiffs Dennis Rutherford, Peter Klune, and Tara Barth filed a Motion to Compel Further Responses to Written Discovery from Defendant Palo Verde Health Care District (“PVHD”) (docket no. 355). The motion to compel targets requests for production of documents (“RFPs”) as well as interrogatories (“Rogs”). Plaintiffs seek an order compelling PVHD to provide further responses to fifty-five RFPs from: Tara Barth's Requests, Set One: 1 and 2; Tara Barth's Requests, Set Two: 3 through 48; Dennis Rutherford's Requests, Set Two: 70 and 71; Peter Klune's Requests, Set Two: 39, 40, and 41; and Peter Klune's Requests, Set Three: 78 and 79. Additionally, plaintiffs seek an order compelling PVHD to provide further responses to twenty-eight interrogatories from: Tara Barth's Requests, Set Two: 14 through 19; Tara Barth's Requests, Set Three: 20, 21, 22, and 25; Dennis Rutherford's Requests, Set Two: 7 through 12; Dennis Rutherford's Requests, Set Three: 13 and 15; Peter Klune's Requests, Set Two: 7 through 12; and Peter Klune's Requests, Set Three: 15, 17, 21, and 23. With regard to all of the requests, plaintiffs seek a privilege log. Plaintiffs also seek leave to file a motion for reasonable expenses incurred in bringing their omnibus Motion to Compel.
The parties fully briefed the motion to compel. The court issued a tentative ruling on the motion prior to the hearing held on February 3, 2015, at which the court heard argument on the motion. The court continued the hearing on the motion to March 4, 2015 at 10:00 a.m. The court further directed the parties to meet and confer in an attempt to resolve certain outstanding issues, and to then file supplemental memoranda including the results of the parties' further meet and confer efforts and any other developments.
The parties did meet and confer as directed and, as reported in the supplemental memoranda filed on February 25 and 27, 2015, were able to resolve a number of the issues. After reviewing the supplemental papers, the court took the March 4, 2015 hearing off calendar. For the reasons detailed below, the court GRANTS in part and DENIES in part plaintiffs' motion to compel.
BACKGROUND
Plaintiffs Peter Klune, Dennis Rutherford, and Tara Barth are former executive employees of defendant Palo Verde Health Care District. PVHD operates Palo Verde Hospital in Blythe, California. Plaintiffs filed lawsuits (which are now consolidated) in July 2013 alleging they were wrongfully terminated in response to their work in exposing or pursuing prosecution of an illegal kickback scheme at the hospital. Plaintiffs' claims include claims under the federal False Claims Act, for breach of their employment contracts, and for retaliatory termination and retaliation.
The bulk of the discovery requests at issue in this motion were served on defendants on October 21, 2014. Specifically, these were: Klune's Interrogatories to PVHD, Set Three; Barth's Interrogatories to PVHD, Set Three; Rutherford's Interrogatories to PVHD, Set Three; and Barth's Requests for Production, Set Two. Cameron Decl. Ex. E. Responses were due on November 21, 2014. Id. Defense counsel's office inadvertently misfiled this discovery and consequently it was not calendared. Brandenberg Decl. ¶ 15. It was not until plaintiffs' counsel informed defense counsel on November 25, 2014 that responses had not been served that defense counsel became aware of the issue. Id. Defense counsel then promptly informed plaintiffs' counsel that responses would be forthcoming, and defense counsel served said responses six days later, on December 2, 2014.
DISCUSSION
PVHD's Tardy Objections to Discovery Propounded October 21, 2014Are Excused and Not Waived
*2 The court finds that PVHD's calendaring error with regard to the discovery propounded on October 21, 2014 does not result a waiver of PVHD's objections to those requests as plaintiffs argue. See JS at 37. As set forth above, PVHD responded promptly after it learned of its calendaring error. Because the calendaring error resulted in a delay of less than two weeks and plaintiffs have not shown that they suffered prejudice from that short delay, the court concludes that PVHD's objections should not be deemed waived. See Kanawi v. Bechtel Corp., 2008 WL 4642168 at *1 (N.D. Cal. Oct. 17, 2008); see also Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.”), Brenford Environmental System, L.P. v. Pipeliners of Puerto Rico, Inc., 269 F.R.D. 143, 146 (D. Puerto Rico 2010) (it is within the court's discretion to determine if a responding party fails to timely object or state a reason for an objection, that party may be held to have waived any objections).
No Identification of Documents by Request Is Required
Rule 34 provides that, “[u]nless otherwise stipulated or ordered by the court,” the party responding to document requests must produce responsive documents and information as follows:
(i) 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;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms ....
Fed. R. Civ. P. 34(b)(2)(E). This provision in Rule 34 arose out of “a concern that litigants were deliberately mixing critical documents with masses of other documents to hide their existence or obscure their significance.” In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 363 (N.D. Ill. 2005) (citations omitted); see also Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 334 (N.D.N.Y. 2008) (production options “born out of the disfavor shown by courts to the dumping of massive quantities of documents, with no indexing or readily apparent organization”).
As the court previously noted in its April 25, 2014 Order (docket no. 165), the plain language of Rule 34 does not require the responding party to identify each responsive document in its written response to each document request. Instead, it requires that the documents produced be organized, either “as kept in the usual course of business” or labeled so as “to correspond to the categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(i). Thus, “[i]f the producing party produces documents in the order in which they were kept in the usual course of business, the Rule imposes no duty to organize and label the documents.” In re G–I Holdings, Inc., 218 F.R.D. 428, 439 (D.N.J. 2003). Moreover, as to electronically stored information, Rule 34 simply requires the information to be produced in the form “in which it is ordinarily maintained or in a reasonably usable form.” Fed. R. Civ. P. 34(b)(2)(E)(ii).
For many of the RFPs at issue, plaintiffs assert that PVHD must identify documents in prior productions that are responsive to a particular request by identifying categories of documents and general Bates ranges. PVHD confirms that all responsive documents have been produced for these requests, but did not initially confirm that they were produced “as kept in the usual course of business” or labeled so as to “correspond to the categories in the request” as Rule 34 requires.
On February 23, 2015, PVHD produced supplemental responses to many of the RFPs. These included supplemental or second supplemental responses to: Klune RFPs 78 and 79; Rutherford RFPs 70 and 71; and Barth RFPs 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 26, 28, 32, 33, 34, 35, 37, 39, 43, 44, and 45, each of which states that responsive documents in PVHD's possession have been produced as they were maintained by PVHD in the usual course of business. Blackstone–Gardner Decl., Exs. A, B, C. These responses are sufficient to demonstrate PVHD's compliance with Rule 34's requirements regarding the manner of production. Thus, there is no basis for the court to compel further responses in this regard.
Privilege Log
*3 The court could not determine from the parties' initial submissions whether privilege logs were produced or even required, as it was unclear whether PVHD actually withheld privileged documents in response to each of the requests as to which a privilege objection was interposed. This problem was largely solved, except as discussed with respect to certain requests below, with PVHD's supplemental responses and production of a privilege log on February 23, 2015.
PVHD produced supplemental or second supplemental responses to Barth RFPs 3, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 25, 26, 28, 32, 33, 34, 35, 36, 37, 39, 43, 44, and 47, each stating that no documents had been withheld on grounds of privilege. Blackstone–Gardner Decl., Ex. C. In addition, the supplemental responses to Barth RFPs 6 and 45 refer to the accompanying privilege log. Id., Exs. C, D. Thus, there is no basis for the court to compel further responses or production of a privilege log with respect to these requests.
Other Adequate RFP Responses
For a couple of the requests at issue (Barth RFPs 7 and 8), PVHD asserts that it is not in possession of responsive documents other than those produced by plaintiffs in this litigation.[1] JS at 74–76. Plaintiffs argue it “strains credulity” to believe that PVHD has no responsive documents, but absent any showing to the contrary plaintiffs must accept PVHD's response.
Additionally, PVHD asserts that several requests—Barth RFPs 9, 14, 38, and 39—were the subject of meet-and-confer efforts immediately prior to the filing of this motion and that all responsive documents have been provided. JS at 77, 82, 116, 118. The court will not compel further responses to these requests.
Adequate Interrogatory Responses
Most of the interrogatories at issue relate to plaintiffs' employment contracts and/or reasons that PVHD terminated each plaintiff. PVHD points out that the Court, on November 26, 2014, granted PVHD's motion for partial summary judgment against the three breach of contract claims pled by plaintiffs Rutherford and Barth. JS at 17. Thus, Rutherford and Barth's contract claims have been dismissed from this case in their entirety and PVHD argues that “the defense of after-acquired evidence is not relevant as to” the defunct contract claims of these plaintiffs. JS at 17. The court is not convinced that is true, given that plaintiffs' claims for retaliation still stand. But in any event, the court finds that defendants have responded adequately to these interrogatories.
With regard to Rutherford Rog 7, Klune Rog 7, and Barth Rog 14, PVHD served substantive responses and plaintiffs object that they should have been answered just with a “yes” or “no.” The court agrees with defendants that where a party provides a complete response that could otherwise have been answered “yes” or “no,” the response is proper and no additional response is warranted. See Haney v. Saldana, 2010 WL 3341939, at *6 (E.D. Cal. Aug. 24, 2010).
With regard to Rutherford Rogs 8 and 9, Klune Rogs 8 and 9, and Barth Rogs 15 and 16, PVHD was asked to state all the facts that support their contention that after-acquired evidence exists regarding the various plaintiffs and to identify all witnesses with knowledge of these facts. JS at 18–20, 23. Defendants provided substantive responses with which plaintiffs find fault as not stating adequate factual bases in support of defendants' contentions or not enumerating witnesses with enough specificity, respectively. JS at 20–21. The court agrees with defendants that plaintiffs' opinion “that not every single detail is provided in PVHD's response is not a justification for a further response.” JS at 23.
*4 Similarly, Rutherford Rogs 10, 11, and 12, Klune Rogs 10, 11, and 12, and Barth Rogs 17, 18, and 19, dealing with after-acquired evidence and legitimate non-retaliatory reasons for PVHD's decision to sever its employment relationships with each plaintiff have been answered adequately and plaintiffs' contentions to the contrary have no merit. Finally, the court finds that Rutherford Rog 13, Klune Rogs 15 and 21, and Barth Rogs 20, 21, and 22 have also been answered adequately; to the extent the responses are not all that plaintiffs sought, PVHD's objections that limited the responses are well taken.
Consequently, the court will not compel further responses to these interrogatories.
Withdrawn Requests
After meeting and conferring, plaintiffs withdrew Klune RFPs 39, 40, and 41. See Ps' Supp. Brief filed 2/25/15 at 3.
Requests With Further Supplemental Responses Pending
In its tentative ruling, the court identified a number of requests as to which it believes the parties could reach a resolution through further meet and confer efforts. The court particularly noted that many of the requests appeared overbroad, and this these were precisely the sorts of requests as to which the parties should be able to reach a reasonable compromise that accommodated the interests of each side.
In their supplemental memoranda the parties reported that, after meeting and conferring—through which plaintiffs narrowed the requests to some extent—PVHD agreed to supplement its responses to: Rutherford Rog 17; Klune Rogs 17 and 23; Barth Rog 25; and Barth RFPs 23, 24, 46, and 48.
Requests Still in Dispute
Barth RFP 27: “All communications between any of YOUR employee(s) or agent(s) and Rod Phillips.”
By way of explaining the relevance of this request, plaintiffs note that Rutherford was asked by Rod Phillips during his deposition, and the questions posed of Rutherford “make it clear why this information is relevant and related directly to PVHD's contentions against Mr. Rutherford.” JS at 112. But plaintiffs neither submit the relevant deposition pages in support of their motion or offer any further explanation for the court. For this reason, the court noted in its tentative ruling that it is difficult for the court to determine whether this request seeks discoverable information, although the court was inclined to give plaintiffs the benefit of the doubt and find that the request seeks discoverable information. The court noted, however, that the request is impermissibly overbroad.
Plaintiffs have done nothing to further enlighten the court as to the relevance of this request in their supplemental memoranda. Through their meet and confer efforts, plaintiffs offered to limit the request to communications with Rod Phillips related only to Medicare Cost reports he prepared and any associated overpayments/underpayments and related analysis during plaintiffs' tenure through the end of 2013. But this will still cover a potentially broad range of communications during a five-year period. This might be reasonable were the relevance clear; however, in light of the questionable relevance of the request, it remains overbroad even after the limit plaintiffs suggested. Accordingly, the court will not compel PVHD to further respond to this request.
Barth RFPs 29–31: “For each exhibit to the deposition of [Dennis Rutherford, Peter Klune, or Tara Barth], Volumes I and II, that is a written communication (including e-mail), please produce every other communication regarding the same issue or subject matter.”
As worded, these requests are impermissibly broad. Plaintiffs explain, however, that “incomplete emails have been used in depositions of all three Plaintiffs and complete versions have not been produced to Plaintiffs.” JS at 114. Through the parties' meet and confer efforts, plaintiffs have agreed to provide PVHD with a list of deposition exhibit numbers plaintiffs believe contain incomplete emails, and PVHD has agreed to produce the complete versions of any emails it agrees are incomplete. PVHD has also agreed to supplemental its responses to confirm that no complete emails have been withheld on grounds of privilege, or to confirm that documents were withheld and provide a corresponding privilege log. Thus, to this extent the parties have resolved the dispute as to these requests.
*5 During the meet and confer, however, plaintiffs additionally demanded that PVHD produce any other emails having the same subject line as the emails that were exhibits to the depositions. Plaintiffs explain that this will provide them with any additional emails forwarding or replying to the initial email. PVHD does not agree to this, arguing that this would place an undue burden on PVHD. The court agrees, particularly as the emails that would be produced would likely duplicate many already produced. Thus, the court will not order PVHD to supplement its responses to these requests beyond what it has agreed to do.
Barth RFPs 41 and 42: “To the extent that YOU contend any such DOCUMENT is evidence that any plaintiff is responsible in any manner or that such complaint(s) justify termination or contract non-renewal, all DOCUMENTS consisting of or describing patient complaints regarding customer service, quality of care, delay [in] care, uncompassionate or unreasonable treatment of patients or family members, or any similar complaints in connection with medical services at Palo Verde Hospital, whether made directly by the patient, by a family member or by an advocate, from January 1, 2010, through the present.”
The parties indicate these requests remain in dispute; however, this is not clear to the court. In its tentative ruling the court found that, though inartfully worded, these requests seek discoverable information. The court directed the parties to meet and confer, and they did. Plaintiffs have stated they are not seeking medical records in response to these requests, but only written complaints or writings memorializing complaints outside of medical records with respect to the matters further specified by plaintiffs in their meet and confer communications. PVHD has agreed to undertake a search for letters and complaints separate from medical records, and produce any located with all protected health information redacted. It thus may be that there is no real dispute here.
But so there is no confusion, and because the court believes as plaintiffs define the information sought the information called for is plainly relevant, the court will order PVHD to produce all documents, excluding medical records, constituting: (a) written complaints or writings memorializing complaints made against any plaintiff or for which PVHD contends any plaintiff is responsible, for the time period January 1, 2010 to the present, regarding customer service, quality of care, delay in care, or uncompassionate or unreasonable treatment of patients or family members; and (b) communications with the Joint Commission or any similar accrediting agency, the California Department of Health Care Services, the Centers for Medicare and Medicaid Services, or any other state or federal agency regarding such complaints. PVHD shall redact any and all protected health information from any responsive documents produced.
Sanctions
Rule 37(a)(5) provides that the prevailing party on a discovery motion is entitled to an award of its reasonable expenses incurred in bringing or opposing the motion, including attorney's fees, except no payment should be ordered if: (1) the motion was filed before the moving party made a good faith effort to resolve the dispute; (2) the losing party's position was substantially justified; or (3) other circumstances make award of expenses unjust. Fed. R. Civ. P. 37(a)(5). Local Rule 37–4 also provides that failure by counsel to comply with or cooperate in the meet and confer procedures required by Local Rule 37 for presenting discovery disputes to the court “may result in the imposition of sanctions.”
*6 Plaintiffs ask for monetary sanctions, but as they are not the prevailing parties except in a limited respect, they are not entitled to sanctions. Further, this motion appears to have been filed before plaintiffs made a good faith effort to resolve at least some of the disputes here. Accordingly, an award of sanctions to plaintiffs is not warranted.
CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiffs' Motion to Compel Defendant to Provide Further Responses to Written Discovery (docket no. 355) is GRANTED IN PART AND DENIED IN PART as stated above and as follows:
1. PVHD must supplement its responses to: Rutherford Rog 17; Klune Rogs 17 and 23; Barth Rog 25; and Barth RFPs 23, 24, 29, 30, 31, 46, and 48, as it has agreed to do as set forth above;
2. PVHD must supplement its responses to Barth RFPs 41 and 42 as set forth above; and
3. In all other respects, Plaintiff's Motion to Compel is denied.
Footnotes
PVHD reiterated this in a supplemental response to Barth RFP 7. Blackstone–Gardner Decl., Ex. C at 6.