MSP RECOVERY CLAIMS, SERIES LLC, et al. v. The FARMERS INSURANCE EXCHANGE, et al Case No.: CV 17-2522-CAS (PLAx) United States District Court, C.D. California Filed June 07, 2019 Counsel Adam Michael Foster, Robert Brent Wisner, Pedram Esfandiary, Michael Lin Baum, Baum Hedlund Aristei and Goldman PC, Los Angeles, CA, Charles E. Whorton, Pro Hac Vice, Rivero Mestre LLP, Coral Gables, FL, Christopher L. Coffin, Pro Hac Vice, Pendley Baudin and Coffin LLP, New Orleans, LA, for MSP Recovery Claims, Series LLC, et al. Joshua Robert Mandell, Michael Richard Weiss, Akerman LLP, Los Angeles, CA, Marcy L. Aldrich, Pro Hac Vice, Valerie B. Greenberg, Pro Hac Vice, Akerman LLP, Miami, FL, Stacy J. Rodriguez, Pro Hac Vice, Akerman LLP, Fort Lauderdale, FL, for The Farmers Insurance Exchange, et al. Abrams, Paul L., United States Magistrate Judge Defendants' (1) Motion to Compel Further Responses to Interrogatories (ECF No. 182), and (2) Motion to Compel Production of Documents and Further Responses to Requests for Production (ECF No. 183) *1 On May 10, 2019, the parties filed a Joint Stipulation (alternatively “JS Rogs” (ECF No. 182-1)) in support of defendants' Motion to compel further responses (ECF No. 182) to defendants' Interrogatories (Set One), as follows: (1) Interrogatory numbers 1 and 2 propounded by each of the fourteen defendants; (2) Interrogatory number 3 propounded by defendants Farmers Insurance Exchange, 21st Century Centennial Insurance Company, and Foremost Property and Casualty Insurance Company; and (3) Interrogatory number 4 propounded by defendant 21st Century Centennial Insurance Company. On the same date, the parties filed a JS (alternatively “JS RFPs” (ECF No. 183-1)) in support of defendants' Motion to compel production of documents and further responses to requests for production (ECF No. 183) as follows: (1) RFP numbers 1 and 2 propounded by each of the fourteen defendants; (2) RFP number 3 propounded by defendant 21st Century Centennial Insurance Company; and (3) RFP numbers 4-9 propounded by defendant Farmers Insurance Exchange.[1] On June 5, 2019, the parties each filed their Supplemental Memoranda (alternatively “Supp'l Mem.”). (ECF Nos. 197, 198, 199). Having considered the pleadings and documents submitted in connection with the Motions, the Court has concluded that oral argument will not be of material assistance in determining the Motions. Accordingly, the hearing scheduled for June 19, 2019, is ordered off calendar. (See Local Rule 7-15). Background Defendants explain that plaintiffs allege 15 representative claims against 14 insurance company defendants, asserting that plaintiffs are assignees of Medicare Advantage Organizations (“MAOs”), or assignees of subcontractors of MAOs that allegedly paid money or incurred costs related to medical treatment of Medicare beneficiaries, and that defendants are the “primary payers” under the Medicare Secondary Payer Act (“MSP Act”) but failed to reimburse plaintiffs' alleged assignors. (JS at 11[2]). According to defendants, plaintiffs' Third Amended Complaint (“TAC”) (the operative pleading in this action) does not allege “what payments or charges are at issue for any of the 15 claims, who made the payments at issue or to whom, how much was paid, the dates of any of the payments or treatment, or other key facts essential to understand or defend against plaintiffs' claims.” (Id.). *2 Defendants further state that for plaintiffs' claims to have validity, plaintiffs must establish the following: [A]n MAO enrollee was enrolled with an MAO at the time of an accident; the enrollee was also entitled to insurance benefits from a Defendant at that time; the enrollee received reasonable and necessary medical care for injuries related to the accident; an MAO paid for the medical care; the Defendant is obligated under the enrollee's (or other applicable) insurance policy to pay the amount sought (e.g., prerequisites to coverage and payment have been met, and coverage has not been exhausted); the Defendant despite knowing about the medical expenses did not pay for the medical care before the MAO did, or did not reimburse the MAO for a proper conditional payment; the paying MAO validly assigned the particular claim to Plaintiffs; and the claim falls within the statute of limitations. (Id. at 11-12). According to defendants, the information and documents requested by the subject Interrogatories and RFPs is relevant for the following reasons: [The requested information] goes to the heart of Plaintiffs' representative claims, namely Plaintiffs' standing to sue, the specific purported injury to the alleged assignor, damages sought, and Defendants' defenses. To date, Plaintiffs only have provided the representative enrollees' names, dates of loss, and assignment agreements but not any other information about the 15 claims, such as which payments are at issue, who made the payments and to whom, the dates and amounts of payments, and if the alleged assignor did not pay then what is the charge for which it is suing. (Id. at 12). Defendants further allege that the minimal information and documents provided by plaintiffs “is plainly insufficient” to evaluate plaintiffs' claims and defenses, and “is potentially case dispositive and directly relates to Defendants' defenses and summary judgment motions.” (Id. at 12-13). Plaintiffs respond that defendants have relied on “two major fictions”: (1) that plaintiffs have not answered the Interrogatories or produced responsive documents that answer the requests; and (2) that “the scope of discoveryis limited to the tracing beneficiaries [alternatively “TBs”] and their assignors in Plaintiffs' pleadings and only that.” (Id. at 14). Plaintiffs state that defendants' Interrogatories demand three things: (1) information related to the TBs identified in the TAC, (2) damages calculations relating to the TBs, and (3) Tax ID numbers for assignors (id.); and that the RFPs “basically demand[ ] two things”: (1) assignments; and (2) documents related to the dozen or so TBs in the TAC. (JS RFPs at 14). They further state that they have “already answered the interrogatories to the extent possible and/or provided scores of documents including assignments, supporting documents Plaintiffs have related to the individual TBs corporate documents, and more.” (JS Rogs at 14). Additionally, plaintiffs suggest the following: Defendants' Motion simply fail[ ] to understand the nature of these cases, the procedural posture of these cases, and three key facts: 1) that there are 78 assignors; 2) [that] there are hundreds of beneficiaries already at issue with potentially many more -- not just the TBs; [and] 3) that Plaintiffs, outside the answers given and documents already produced related to the TBs, generally have medical data from their assignors not things like individual paper medical bills and invoices. *3 (JS Rogs at 14-15 (footnote omitted)). The Requests Interrogatories & RFPs Seeking Identifying Information and Damages Information For each Interrogatory seeking identifying information, the propounding defendant identified the representative individual by initials in a specific paragraph of the TAC, and requested, among other things, the following information: (a) the individual's full name; (b) the date of loss of the claim; (c) the named policyholder whose insurance covers the claim; (d) the name, address, and tax identification number of the assignor that allegedly assigned the right to bring the claim; (e) the type of organization of the assignor (e.g., whether it is an MAO or some other type of organization); (f) the date of the assignment; (g) a description of the documents and agreements supporting the alleged assignment; (h) the name and contact information for all individuals who signed the assignment documents and/or agreements; (i) the time period the individual was allegedly an enrollee with the assignor; (j) a description of all documents showing the individual's enrollee status with the assignor; (k) the name of the MAO in which the individual was enrolled at the time of the loss or accident; (l) a description of all documents and data that the assignor provided to plaintiffs in connection with the assignment relating to the individual; (m) names and contact information of all providers who provided medical treatment or services to the individual; (n) the dates of the medical treatment and/or services provided to the individual for which payment allegedly was made by the assignor for which damages are sought in this action; (o) a description of the medical treatments and/or services the individual received for which payment was allegedly made by the assignor for which damages are sought; (p) the amount of the payment made by the assignor relating to the medical treatment and/or services the individual received for which damages are sought; (q) the date of the payment made by the assignor relating to the medical treatment and/or services the individual received for which damages are sought; and (r) if no payment was made by the assignor relating to the medical treatment and/or services received by the individual, a detailed explanation as to how the assignor was allegedly damaged. (See, e.g., id. at 18-19). For each Interrogatory seeking damages information, the propounding defendant identified the representative individual by initials in a specific paragraph of the TAC, and requested, among other things, the following information: (a) the dollar amount claimed to be owed; (b) a detailed statement of the calculation of the dollar amount; (c) a detailed explanation of how the amount was calculated; and (d) a description and/or identification of the invoices, bills, and/or other documents from which the data was extracted on which plaintiffs' response to the Interrogatory was based. (See, e.g., id. at 40). For each RFP seeking damages documents for specific representative individuals identified by their initials in the TAC, the propounding defendant requested, among other things, the following: (a) all medical invoices and bills; (b) all documents relating to payments made for medical services; (c) all documents relating to plaintiffs' calculation of damages; (d) all documents relating to the individual's enrollment in Medicare, an MAO, and/or a Medicare Advantage plan; (e) all documents relating to the individual's enrollment in other types of health organizations; (f) all agreements between an MAO and plaintiffs' assignors relating to medical services rendered on behalf of a representative indivicual; (g) all agreements between plaintiffs' assignors relating to the financial arrangements between them; (h) all documents relating to any authorizations executed by the individual; (i) all documents relating to plaintiffs' entitlement to a subrogation claim; (j) all documents relating to efforts to determine whether the individual had any primary or alternative insurance coverage; (k) all communications to defendant from plaintiffs' assignors regarding the individual's treatment; and (l) all communications to defendants from plaintiffs' assignors regarding bills or invoices. (See, e.g., JS RFPs at 24-26). *4 Plaintiffs suggest that “[f]or the data, i.e. where the answers to nearly all of Defendants' questions reside as regards all beneficiaries not just the TBs, the parties have agreed to a data matching process and exchange,” and “this exchange should drive discovery in this case and the focus should be on that” as “[i]t will answer Defendants' questions about the TBs, the already-identified-but-not-named-in-the-pleadings beneficiaries, and more.” (JS Rogs at 15). Plaintiffs note that they “are willing to provide much more than they already have but this should happen in, and in conjunction with, the data exchange.” (Id.). They further note that in a similar case in the District of Maryland, “the parties are engaged in a data matching/exchange process and discovery path as advocated by Plaintiffs” herein. (Id. at 16 (citing MAO-MSO Recovery II, LLC v. Gov't Employees Ins. Co., No. PWG-17-711 (D. Md.) (“GEICO”))). Plaintiffs “believe the parties should follow the pathbreaking model recently charted by the Special Master in GEICO,” where “the data matching and exchange is occurring, which will define the scope of claims assignors, beneficiaries, and defendants at issue and then specific, tailored discovery can occur, especially since data will reveal the answers to the key questions in this case.” (Id.). Plaintiffs do not dispute that defendants are generally entitled to the requested discovery; instead, they state that they “want to conduct discovery in a targeted, efficient manner that is tailored to the scope of the actual claims, assignors, and defendants at issue and do this process once.” (Id. at 39). They state that they “are not refusing to answer questions and/or search for and produce non-privileged pertinent data and documents about their assignors and beneficiaries ... [they] just want to do this process once and holistically.” (Id.; see also id. at 43 (with respect to the damages interrogatories)). Plaintiffs incorporate their arguments regarding the identifying information Interrogatories into their position on the damages interrogatories and note that “[i]t manifestly makes much more sense to do a damages calculation as regards all of Plaintiffs' assignors after [the data exchange] process has occurred and do it once, especially when the answers to th[ese] question[s] reside within the data.” (Id. at 43). Plaintiffs also point out that the TBs were just named in the TAC after the Court -- at the Motion to Dismiss stage -- ordered plaintiffs “to produce a basic, limited list of hundreds of Medicare beneficiaries (and a few other items) that Plaintiffs already identified to Farmers ... for Farmers to confirm which specific entity covered that beneficiary, i.e., which defendant entity a beneficiary traced to.” (Id. at 33 (citing ECF No. 97)). Plaintiffs note, therefore, that “all of the assignors, beneficiaries, claims, defendants and damages at this juncture are preliminary and underinclusive,” and that “the information and damages related to one TB may be incomplete, underinclusive, irrelevant, or some combination of the foregoing.” (Id. at 35-36). Plaintiffs assert that the data exchange process will provide the universe of information and that the information provided relating to the TBs “should not be divorced from the data matching and exchange process” as that process “is not the sole province of class issues but goes directly to the hundreds of Plaintiffs' beneficiaries already identified in jurisdictional discovery, including the TBs, as well [as] any unknown beneficiaries within the 3.4 million-plus lives covered by Plaintiffs' assignors -- not just absent class members.” (Id. at 36; see also id. at 15 (noting that the “data exchange is not solely a class issue as Farmers suggests but goes to the claims related to Plaintiffs' assignors directly including the TBs and many more”)). Defendants note that the “data exchange,” which is referenced in the parties' Joint Rule 26(f) Report (“Joint Report” (ECF No. 166)), “will involve data relating to hundreds, if not thousands, of the Defendants' insureds who are Medicare eligible, and is only pertinent for class purposes.” (JS Rogs at 31). They argue that the Interrogatories at issue herein do not seek class-based discovery, and are “instead narrowly tailored to seek specific, detailed information to address the individual ‘representative claim’ ” of specific individuals referred to in the TAC. (Id.). They further note that the Joint Report “specifically notes the ‘parties will proceed with discovery’ on the ‘representative claims’ separate and apart from the data exchange.” (Id. (citing Joint Report ¶ 6)). Thus, with respect to the Interrogatories and RFPs that seek information and documents regarding the claims of the specific representative individuals named in the TAC, and the corresponding damages information, “a full response is required at this time.” (Id.). In their Supplemental Memorandum with respect to the interrogatories, defendants further observe that although the Joint Report provides that only “identifying information” (such as name, date of birth, Medicare beneficiary's identification number or Social Security number, address, gender, alleged assignor, date of covered loss, and period of enrollment with assignor) would be produced with respect to the universe of potential plaintiffs to be identified through the limited data exchange, it clearly provided for full discovery now -- including medical treatment and bills -- on the 28 claims alleged in the two TACs (in this case and in related case number 17-2559). (Def'ts' Supp'l Mem. at 5 (citing Joint Report) & n.3). Defendants submit that plaintiffs are attempting to delay responding to the requested discovery until the data exchange has been implemented so that if any of the representative claimants lack standing or a valid claim against a defendant, “they can attempt to replace the claims.” (Id. at 6-7). Defendants also point out that the Special Master in GEICO required plaintiffs “to produce ‘Conditional Payment Information’ and a ‘Damages Report’ before a data exchange” (id. at 6 (citing JS, Pls.' Ex. 1 at 4)), and that “[i]n a similar case” in the Central District -- MAO-MSO Recovery II, LLC v. Mercury General Corporation, CV 17-2525-AB (AFMx) (“Mercury”) -- the Magistrate Judge ordered plaintiffs “to produce all documents in their possession, custody, or control concerning the claims alleged.” (Id. at 3 & n.1). *5 Plaintiffs respond that only after the data matching and exchange is complete and the universe of claims, assignors, beneficiaries, and defendants is identified, discovery “regarding things like payment information,” payments, medical treatments, and the like will be conducted. (Pls.' Supp'l Mem. at 2-3). They again emphasize that they “simply want to do this whole process once,” and not in a piecemeal manner, or “drip by drip.” (Id. at 3, 6). They also reiterate their request for a Special Master in this case and argue that defendants have mischaracterized the GEICO Special Master's findings regarding production of “Conditional Payment Information” and a “Damages Report” in that case. (Id. at 4). They also note that the RFPs in the Mercury case “vastly differ from the ones at issue here” as they sought to compel plaintiffs to produce documents in the possession of the alleged assignors and not in the possession of plaintiffs themselves. (Id. at 5). The Court notes that in addition to the provision for representative discovery in the parties' Joint Report, on March 1, 2019, the parties filed a Joint Stipulation Re: Timeline for Completion of Preliminary Discovery Plan Set Forth in Joint Rule 26(f) Report (“Joint Timeline”). (ECF No. 169). The Joint Timeline provides that “[t]he deadlines stated herein do not affect discovery on the representative claims and assignors,” and notes that the parties “currently are proceeding with discovery on the representative claims and assignors ....”[3] (Joint Timeline ¶ 5). There appears to be no dispute that the requested documents are relevant and proportional to the needs of the case (see Fed. R. Civ. P. 26(b)(1)), and the Court agrees.[4] Indeed, as defendants note, the District Judge in this action previously ruled “that for Plaintiffs to have Article III standing at the time of pleading, there must be a valid claim by at least one Plaintiff against at least one of each of the named Defendants.”[5] (Def'ts' Supp'l Mem. at 5 (citing ECF No. 76 at 11 (noting that the “fundamental flaw” in plaintiffs' pleadings “is that there are no factual allegations tracing any individual assignor MAO's injury to any single defendant,” and finding that the First Amended Complaint lacked sufficient facts to demonstrate plaintiffs' standing against any of the defendants))). The Court finds that even if the TBs were only added to the TAC as “placeholders” for pleading purposes, or to comply with a Court order, it is clear that as represented to the Court in the parties' Joint Report as well as in the Joint Timeline, the parties intended that representative discovery would proceed independently of the status of the data exchange. The Court further finds that defendants are in any event entitled to this most basic of informationas to the representative claimants. Accordingly, defendants' Motions are granted as to the Interrogatories and RFPs that seek information and documents with respect to the TBs' identifying information and damages information as set forth in the requests. No later than June 28, 2019, plaintiffs shall provide further responses and/or documents in their possession, custody, or control, to the following requests (identified by the topical heading number in the JS Rogs and JS RFPs): *6 Interrogatory numbers 1 and 2 in JS Rogs Section II, subsections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14; Interrogatory numbers 3 and 4 in JS Rogs Section II, subsection 5; RFP number 2 in JS RFPs Section II, subsections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14; and RFP number 3 in JS RFPs, Section II, subsection 5 Interrogatories Seeking Federal Tax Identification Number For each Interrogatory seeking a Federal Tax Identification number, the propounding defendant requested the federal tax identification number for the assignor referenced in a specific paragraph of the TAC. (See, e.g., id. at 43). Plaintiffs generally objected that the information sought is irrelevant to any claim or defense and not proportional to the needs of the case, seeks confidential and privileged information, and is “outside the scope of the phasing of discovery agreement made by the parties and filed with the court on January 22, 2019.” (Id. at 44). Additionally, because the parties “are engaged in a data exchange process ... to determine the exact scope of information and document exchange,” the Interrogatories seeking this information are premature and “outside the scope of that compromise and anticipated further agreement.” (Id.). Defendants contend they need the requested information “so that Defendant can determine whether it has already made payments” to the purported assignor. (Id. at 44-45). They argue that although plaintiffs “have not actually made any of the alleged payments for which they seek reimbursement, but claim to have been assigned the reimbursement rights from the purported payers, ... Defendant ... may have already reimbursed the assignor.” (Id. at 45). They state that they “require the assignor's tax identification number to determine whether any payment has previously been made.” (Id.). They argue that the protective order issued in this action will resolve plaintiffs' asserted privacy concerns. (Id.). Plaintiffs assert that (1) information regarding these numbers “is not relevant and premature even if it were relevant (it is not),” as an assignor's tax identification has no bearing on if a payment was made or not made in the context of the MSP laws; (2) “the relevance and burden of getting these numbers militates against compelling [plaintiffs] to get such information”; and (3) even if the numbers “were pertinent, Plaintiffs do not know them” themselves and would have to ask the assignors for this private information. (Id. at 46-47). The Court notes that in each of the Interrogatories seeking a Federal Tax Identification Number, defendants are already aware of the name of the entity that purportedly made the assignment. (See, e.g., id. at 43). Defendants have not clearly explained why, therefore, they still need the tax identification number in order to determine whether they made a payment to the purported assignor. Accordingly, defendants' Motion is denied as to the Interrogatories seeking Federal Tax Identification numbers. This includes, by topical heading number, the following: Interrogatory number 3 in JS Rogs Section II, subsections 1, 7 RFPs Seeking Assignments and Other Information *7 For each RFP seeking documents relating to assignments made to plaintiffs, the propounding defendant referenced assigning entities mentioned in specific paragraphs of the TAC. (See, e.g., JS RFPs at 16). Defendants argue that these documents will provide information as to whether plaintiffs, “who admittedly have not been injured themselves, have standing to assert the claims lodged” in the TAC. (Id. at 17). The requested documents would provide evidence of plaintiffs' allegation that they have the right to assert claims belonging to the assignors. (Id.). Defendants note that “some of the purported assignments have been provided,” but “not all of the produced assignment chains lead to the named Plaintiffs, as alleged in the [TAC].” (Id.). Additionally, plaintiffs “have not confirmed that all documentary support for their alleged standing arguments have been produced.” (Id. at 17-18). Neither have they “delineate[d] the bates-labels for the responsive documents.” (Id. at 19). Defendants contend that for a number of the RFPs, plaintiffs have not produced any assignment agreements relating to the subject entity and/or “none of the representative claims are alleged to have originated from that entity.” (See, e.g., id. at 41). Thus, the requested documents are “potentially case dispositive.” (Id. at 17). Plaintiffs respond that they are not required to identify particular Bates numbers. (Id. at 19). They assert that they “have produced documents they are relying on for standing purposes and will produce any [additional documents and agreements] they are relying on” for standing. (Id. at 19-20). Plaintiffs again suggest that the data exchange process will provide information regarding the assignors at issue, the defendants at issue, the beneficiaries at issue, the claims for the beneficiaries, and the damages, and that this data exchange should be done “once and holistically.” (See, e.g., JS RFPs at 23, 24, 38). As discussed previously, there appears to be no dispute that the requested documents are relevant and proportional to the needs of the case and the Court agrees. The Court finds that even if the TBs were only added to the TAC as “placeholders” for pleading purposes, or to comply with a Court order, it is clear that as represented to the Court in the parties' Joint Report as well as in the Joint Timeline, the parties intended that representative discovery would proceed independently of the status of the data exchange. The Court further finds that this information is clearly relevant to allow defendants to explore plaintiffs' rights to assert their claims. Accordingly, defendants' Motion is granted as to the RFPs that seek documents relating to assignments made to plaintiffs as referenced in the delineated paragraphs of the TAC. No later than June 28, 2019, to the extent they have not already done so, plaintiffs shall provide further responses and/or documents in their possession, custody or control, to the following requests (identified by the topical heading number in the JS RFPs): RFP number 1 in JS RFPs Section 2, subsections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14; and RFP numbers 4, 5, 6, 7, 8 in JS RFPs Section 2, subsection 1 RFP Number 9 *8 RFP number 9 propounded by Farmers Insurance Exchange seeks all documents supporting plaintiffs' allegation in paragraph 85 of the TAC that “ ‘Emblem Health Services Company, LLC, Health Insurance Plan of Greater New York, Group Health, Inc., and Connecticare, Inc.’ should be collectively referred to as ‘Emblem Health.’ ” (Id. at 49). Defendants state that the TAC “confusingly defines” Emblem Health as a combination of the other named entities, and while some documentation was produced “purporting to be assignment agreements” from some of these entities, none has been produced relating to Connecticare Inc. (Id. at 50). Because the TAC alleges that Emblem Health paid for services to representative claimant Ms. E.R.C., “it is unclear which of the four distinct entities made the payments and/or assigned the claim at issue.” (Id.). Plaintiffs state that with respect to Emblem Health, they will “further identify in the data exchange which of the Emblem Health entities is the particular assignor under the Emblem Health group of assignors.” (Id. at 52). They further state that they “have provided assignments for the Emblem entities,” and if Farmers “feels there are any missing assignments” such as from Connecticare, “these will be produced.” (Id.). Additionally, the data exchange will delineate the requested information. (See, e.g., id. at 44). There appears to be no dispute that the requested documents are relevant and proportional to the needs of the case and the Court agrees. Defendants are entitled to the requested documents relating to plaintiffs' allegations regarding the composition of “Emblem Health” as specified in paragraph 85 of the TAC. Accordingly, defendants' Motion is granted as to RFP number 9 (in JS RFPs Section II, subsection 1). No later than June 28, 2019, to the extent they have not already done so, plaintiffs shall provide a further response and/or documents in their possession, custody, or control, responsive to RFP number 9. Special Master and ESI Protocol Plaintiffs state that they have attempted to secure an Electronically Stored Information (“ESI”) protocol with defendants but, as was true of plaintiffs' suggestion of a Special Master to help resolve discovery issues, defendants have “rejected these proposals.” (Id. at 20, 37-38; see also JS Rogs at 16 n.5, 39). Plaintiffs state they “would like to discuss both of these issues at oral argument.” (JS RFPs at 20; see also JS Rogs at 16 n.5, 39). Discussions as to these issues, while relevant and of probable benefit, are not, however, before the Court on these Motions, which the Court has found appropriate to decide without oral argument. Indeed, the ESI protocol is something that the parties should have discussed and resolved long ago in connection with Rules 16 and 26 of the Federal Rules of Civil Procedure. (See also Joint Report at 5). They must do so now. Furthermore, the Court expects that counsel, working together in good faith, will be able to come to an agreement on the issue of the propriety of a Special Master in this action, without the need for Court intervention. Indeed, if the parties are able to agree regarding the propriety of a Special Master, they should advise the District Judge of such an agreement. Footnotes [1] The Court will refer to the Motion to compel further responses to interrogatories and the Motion to compel production of documents collectively as “Motions.” Similar motions filed in related case number CV 17-2559-CAS (PLAx) (“17-2559”) will be addressed in a separate minute order. [2] For ease of reference, the Court (1) refers to the ECF-generated page numbers when referring to the JS Rogs or JS RFPs; and (2) cites primarily to the arguments made in the JS Rogs, which essentially mirror the arguments made in the JS RFPs. In light of the fact that the Court granted the parties' Joint Stipulation for relief from Local Rule 37-2.1 and permitted them to incorporate by reference their position statements if repetitive (ECF Nos. 172, 174), the Court is displeased that each of these Motions is still well over 400 pages (with exhibits). [3] In the Joint Timeline, defendants stated that they “believe that [p]laintiffs should have produced information on the representative claims and assignors currently sought ... in discovery prior to the deadlines” in the Joint Timeline, and that defendants “are proceeding with such discovery and as necessary motions to compel information concerning the representative claims and assignors.” (Id. at 4 n.1). It was also noted that plaintiffs disagreed with defendants' position on this issue. (Id.). [4] The production of protected health information is the subject of a separate motion filed in this action (ECF No. 192) and a separate minute order will issue with respect to that motion. [5] In contrast, both the GEICO case and the Mercury case involve only one defendant and there is no evidence before the Court that standing was an issue in either case.