Torrey v. Infectious Diseases Society of Am.
Torrey v. Infectious Diseases Society of Am.
2019 WL 6699786 (E.D. Tex. 2019)
August 29, 2019
Schroeder, III, Robert W., United States District Judge
Summary
The Court found that the Doctors must produce their relevant emails from their current employers, and granted the IDSA's Motion for Protective Order and Aetna's Motion for Protection from Plaintiffs' Notice of Deposition. The Court found that the Doctors have not met their burden to support their objections and granted Plaintiffs' Motion to Compel.
LISA TORREY, et al., Plaintiffs,
v.
INFECTIOUS DISEASES SOCIETY OF AMERICA, et al., Defendants
v.
INFECTIOUS DISEASES SOCIETY OF AMERICA, et al., Defendants
CIVIL ACTION NO. 5:17-CV-00190-RWS
United States District Court, E.D. Texas, Texarkana Division
Filed August 29, 2019
Counsel
Daniel Raymond Dutko, Ryan Kees Higgins, Rusty Hardin & Associates, LLP, James Brunsting Hartle, Eugene Roger Egdorf, Shrader & Associates, LLP, Houston, TX, Lance Lee, Attorney at Law, Texarkana, TX, for Plaintiffs.Alvin Dunn, Robert C.K. Boyd, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, Peter John Chassman, Reed Smith, LLP, Houston, TX, Ronald Casey Low, Pillsbury Winthrop Shaw Pittman LLP, Austin, TX, for Defendants Infectious Diseases Society of America, Dr. Gary P. Wormser, Dr. Raymond J. Dattwyler, Dr. Eugene Shapiro, Dr. John J. Halperin, Dr. Leonard Sigal, Dr. Allen Steere.
Daniel E. Laytin, Cameron Ginder, Sarah J. Donnell, Kirkland & Ellis LLP, Chicago, IL, Peter John Chassman, Reed Smith, LLP, Houston, TX, for Defendant Blue Cross and Blue Shield Association.
Earl B. Austin, Baker Botts, New York, NY, Jeffrey Randall Roeser, Jennifer Haltom Doan, Haltom & Doan, Texarkana, TX, John Benjamin Lawrence, Baker Botts LLP, Dallas, TX, Matthew Gerald Sheridan, Baker Botts LLP, Peter John Chassman, Reed Smith, LLP, Houston, TX, for Defendant Aetna Inc.
Michael James Tuteur, Foley & Lardner, LLP, Boston, MA, Eileen Regina Ridley, Foley & Lardner, San Francisco, CA, John D. Martin, Lucile H. Cohen, Nelson Mullins Riley & Scarborough, Columbia, SC, Julia B. Hartley, Nelson Mullins Riley & Scarborough LLP, Charlotte, NC, Kimberly Ann Klinsport, Foley & Lardner, Los Angeles, CA, Peter John Chassman, Reed Smith, LLP, Thomas Hetherington, McDowell Hetherington LLP, Houston, TX, Sara Ann Brown, Gardere Wynne Sewell, LLP, Dallas, TX, for Defendant Anthem Inc.
Martin James Bishop, Michael John Forbes, Peter John Chassman, Reed Smith LLP, Houston, TX, Debra H. Dermody, William Sheridan, Reed Smith LLP, Pittsburgh, PA, for Defendant Blue Cross and Blue Shield of Texas.
R. Brendan Fee, Amy M. Dudash, Morgan Lewis & Bockius, Philadelphia, PA, Crystal Rose Axelrod, Elizabeth Mooar Chiaviello, Nicholaus Engelhard Floyd, Morgan Lewis & Bockius, LLP, Peter John Chassman, Reed Smith, LLP, Houston, TX, for Defendant Cigna Corporation.
Alan F. Law, Cooper & Scully, P.C., San Francisco, CA, Derek Shane Davis, Cooper & Scully PC, Dallas, TX, Peter John Chassman, Reed Smith, LLP, Houston, TX, for Defendant Kaiser Permanente, Inc.
Benjamin F. Holt, Hogan Lovells US LLP, Washington, DC, Blayne R. Thompson, Maria Wyckoff Boyce, Hogan Lovells US LLP, Peter John Chassman, Reed Smith, LLP, Houston, TX, Earl Glenn Thames, Jr., Michael E. Jones, Patrick Colbert Clutter, IV, Potter Minton, a Professional Corporation, Tyler, TX, Matthew James Piehl, Hogan Lovells US LLP, Minneapolis, MN, for Defendants United Healthcare Services, Inc., United Healthcare Group Incorporated
Schroeder, III, Robert W., United States District Judge
ORDER
*1 Before the Court is Plaintiffs’ Emergency Motion to Compel Email Production (Docket No. 219), the IDSA’s[1] Motion for Protective Order (Docket No. 226), and Aetna’s Motion for Protection from Plaintiffs’ Notice of Deposition (Docket No. 228).
I. Background
Plaintiffs allege Defendants are engaged in a conspiracy that began in the 1990s to limit Lyme disease treatment to a short-term antibiotic regimen. In short, Plaintiffs assert that the Insurance Defendants[2] enlisted the help of doctors who were researching Lyme disease—the IDSA Panelists[3]—and paid them large fees to develop arbitrary guidelines for testing Lyme disease. Allegedly, once these guidelines were established, the Insurance Defendants could deny coverage for patients who did not meet the new stringent Lyme disease testing protocols.
Since the outset of this case, the parties disputed the scope of discovery. Plaintiffs sought discovery covering nearly a quarter century, while Defendants argued that open discovery was unduly burdensome, particularly for the Insurance Defendants that must search legacy systems acquired through mergers and acquisitions. After a hearing on these disputes, the Court ordered the parties to meet and confer to agree on a mutually acceptable scope of discovery. This led to the parties’ Joint Report (Docket No. 181).
The Joint Report set out the scope of agreed document production, but several disputes remained. See generally Docket No. 181. The parties agreed that general discovery should reach back to 2010. See id. at 3. The parties also agreed that several categories of documents justified discovery further back in time (the “Discovery Categories”), specifically:
- [C]opies of payments, checks, wire transfers, or other documents sufficient to show any consulting payments by the [I]nsurance [D]efendants to the [D]octor [D]efendants and/or Infectious Diseases Society of America (IDSA”) related to Lyme disease.
- [C]opies of documents reflecting any report about any doctor made to any medical board or governmental entity related to the treatment or diagnosis of Lyme disease, chronic Lyme disease, or prescribing antibiotics for Lyme disease, including but not limited to any correspondence or documentation reporting [D]octors to medical boards or governmental entities for the treatment or diagnosis of Lyme disease in violation of any guidelines, including the IDSA Lyme guidelines.
- For the [I]nsurance Defendants only, claims data and medical records for each Plaintiff.
- For the [I]nsurance Defendants only (which for these purposes includes Blue Cross Blue Shield Association (“BCBSA”)), copies of documents relating to communications between the company and any other [I]nsurance [D]efendant, or between the company and IDSA or any [D]efendant [D]octor relating to Lyme disease guidelines, IDSA Lyme guidelines, and longterm antibiotic treatment for Lyme disease. For this category, the insurance Defendants would search their e-mails.
*2 - For the [I]nsurance Defendants only (which for these purposes includes BCBSA), copies of documents submitted by any insurance defendant to the Connecticut Attorney General (and any other government investigation of which Defendants become aware in the course of discovery, or are specifically identified to Defendants by Plaintiffs) relating to Lyme disease guidelines, IDSA Lyme guidelines, and long-term antibiotic treatment for Lyme disease.
- For IDSA and the [D]octor Defendants, all documents related to communications between IDSA or any [D]octor Defendant, on the one hand, and any [I]nsurance [D]efendant (including BCBSA), on the other hand, relating to Lyme disease guidelines, IDSA Lyme guidelines, and long-term antibiotic treatment for Lyme disease. For this category, IDSA and the [D]octor Defendants would search their e-mails and would search documents submitted by IDSA or the [D]octor [D]efendants to the Connecticut AG (and any other government investigation).
Id. at 1–2. Plaintiffs, the IDSA and the Doctors agreed to produce documents back to 1995 in these Discovery Categories. Plaintiffs and the Insurance Defendants could not reach a similar agreement. Accordingly, Plaintiffs and the Insurance Defendants sought the Court’s guidance.
The Court’s Order on the Joint Report (Docket No. 190) (“the Court’s Order” or “the Order”) set the relevant period for the Discovery Categories from the Insurance Defendants at 1998. Docket No. 190 at 8. The Court’s Order went on to clarify the scope of depositions in light of the Order:
Depositions under Rule 30(b)(1) are not subject to any temporal limits. Depositions of organizations are, of course, limited to the noticed topics as set forth in Rule 30(b)(6), which should adhere to the above prescribed timeframes.
In the instant motions, the parties now set forth several disputes. Of these, only three remain. The first is the scope of depositions under Rule 30(b)(6) in light of the Court’s Order. The second is whether the IDSA must designate witnesses for topics related to the 2019 Lyme Disease Guidelines. The third is whether the Doctors must produce their work emails.
II. Legal Standard
“It hardly bears repeating that control of discovery is committed to the sound discretion of the trial court ....” Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 382 (5th Cir. 1987). Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense ....” FED. R. CIV. P. 26(b)(1). Federal Rule of Evidence 401 defines relevant evidence: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “Relevancy is broadly construed, and a request for discovery should be considered relevant if there is ‘any possibility’ that the information sought may be relevant to the claim or defense of any party.” Merrill v. Waffle House, Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2005) (citations omitted).
The discovery rules are given broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. Herbert v. Lando, 441 U.S. 153, 176 (1979). Nevertheless, discovery does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). “Discovery is to be limited to the relevant time period; but information for years prior or subsequent to the specific period covered by the dispute may still be relevant to Plaintiffs’ claims.” Jackson v. Wilson Welding Serv. Inc., No. 10–2843; 2011 WL 5024360, at *4 (E.D. La. Oct. 20, 2011) (citations omitted).
*3 “The party resisting discovery bears the burden to clarify and explain its objections and to provide support for those objections.” Fed. Trade Comm’n v. Liberty Supply Co., No. 4:15-cv-829, 2016 WL 4272706, at *4 (E.D. Tex. Aug. 15, 2016) (quoting Enron Corp. Savings Plan v. Hewitt Assocs., L.L.C., 258 F.R.D. 149, 159 (S.D. Tex. 2009). Because the Defendants seek to limit the world of discoverable material, they bear burden of justifying their proposed limitation. Id.
III. Analysis
A. Date of Discovery
As to the first issue, the IDSA argues that the 1995 date of discovery only applies to the explicit categories in the Joint Report, specifically: (1) payments from the Insurance Defendants to the Doctors for Lyme disease consulting arrangements; (2) communications between the Insurance Defendants and the Doctors or the IDSA regarding Lyme disease guidelines; and (3) reports of Lyme disease treating physicians to medical boards by the Insurance Defendants, the Doctors or the IDSA. Docket No. 226. On all other matters, the IDSA contends that they need only prepare representatives for depositions on topics back to 2010.
Plaintiffs contend that the agreement never covered depositions, and Defendants’ corporate representatives must answer topics with no date limits. In the alternative, Plaintiffs request that, if the Court’s Order did limit depositions to the dates set therein, that the Order be amended to remove the date limits and allow Plaintiffs to take depositions on the 2000 and 2006 IDSA Lyme Disease Guidelines, generally.
In light of conversations during the March hearing that preceded the Joint Report,[4] the Court’s Order explained that the Defendants should prepare corporate witnesses on noticed topics that adhered to the timeframes set forth in the Order. Docket No. 190 at 8. That is, Plaintiffs may notice topics back to 1995 or 1998, depending on the type of defendant, related to the documents produced under the Joint Report’s Discovery Categories. Otherwise, Plaintiffs may notice topics back to 2010. The Court’s Order explained any party may seek to amend the scope of discovery for good cause. Id. Plaintiffs have not provided good cause to justify amending the Order.
B. 2019 Guidelines
*4 Next, the parties disagree as to whether Defendants must prepare a witness to discuss the 2019 IDSA Lyme Disease Guidelines.
The IDSA complains that the development of the 2019 Guidelines is a broad, ongoing process with many participants, including other professional societies. The IDSA points out that the 2019 Guidelines are not a part of Plaintiffs’ complaints and do not form the basis of any alleged injury. Accordingly, the IDSA contends that preparing a witness to discuss the new guidelines would be unduly burdensome and not proportional to the needs of the case.
Plaintiffs respond that the new guidelines now have a section referring to “Chronic Lyme Disease.” Moreover, Plaintiffs contend that the guidelines are relevant because they “relate directly to the claims made in this case regarding standard-setting and chronic Lyme disease.”
The IDSA has met its burden to show that the burden of preparing a witness to discuss the 2019 Guidelines outweighs the likely benefit. Plaintiffs’ case relates to a past conspiracy, and Plaintiffs have not alleged that the 2019 Guidelines caused any of their alleged harm. In light of its limited relevance, it is unreasonable to require the IDSA to prepare a corporate witness to discuss, in detail, this ongoing complex process. Accordingly, the IDSA’s Motion for Protective Order is GRANTED with respect to the 2019 Guidelines.
C. The Doctors’ Work Emails
As noted above, the Doctors agreed in the Joint Report to “search their e-mails” for “all documents related to communications between IDSA or any [D]octor Defendant, on the one hand.” The Doctors provide several arguments that the Joint Report does not include work email accounts. None is persuasive.
The Doctors first argue that Plaintiffs were not diligent in seeking these emails. The Doctors point to communications between the parties beginning in May 2019 and running through June 2019, where the Doctors first explained that they would not produce their work emails. The Doctors also explain that Plaintiffs waited until June 2019 to serve subpoenas on the Doctors’ employers and that Plaintiffs have not diligently enforced those subpoenas.
Second, the Doctors argue that the Joint Report only requires the production of personal emails. The Doctors contend that the agreement between the parties was limited to personal emails, regardless of the language in the Joint Report. The Doctors explain that the agreement was so limited because of the practical challenges of searching work emails. At the hearing, the Doctors emphasized that the proper way to search the emails is by extracting them from the employers’ servers and using a third-party search platform to search the emails using Plaintiffs’ search terms.
Finally, the Doctors argue that they do not have “possession, custody, or control” of their work emails for the purposes of the Federal Rules of Civil Procedure. The Doctors contend that documents belonging to an employer are not within the control of an employee, and thus an employee cannot be compelled to produce them.
As noted above, the Joint Agreement posited that the Doctors “would search their e-mails.” There is no caveat that this only applied to the Doctors’ personal email accounts. Though the Doctors argue that it was clear during the parties’ negotiations that the agreement was limited to personal email accounts, this argument is undercut by their representation at the hearing that at least one doctor did not have a personal email account and only used his work email account, even for personal purposes.
*5 The Doctors’ arguments that Plaintiffs have not been diligent in seeking these emails are also unpersuasive. Discovery has not yet closed, and Plaintiffs brought this argument to the Court in time to resolve the issue before the close of discovery. This is no reason to excuse discovery obligations, and the Doctors failed to identify a single case supporting such a conclusion.
Finally, the cases the Doctors rely on do not support the position that they do not have “possession, custody, or control” of their work emails. Federal Rule of Civil Procedure 34(a) plainly allows for production of documents within the “possession, custody, or control” of a party. “[F]ederal courts have consistently held that documents are deemed to be within [a party’s] ‘possession, custody or control’ for the purposes of Rule 34 if the party has actual possession, custody, or control, or has the legal right to obtain the documents on demand.” Alex v. KHG Of San Antonio, L.L.C., No. SA-13-CA-728-OLG, 2014 WL 12489735, at *5 n.50 (W.D. Tex. Aug. 6, 2014) (quoting A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006) (quoting In Re Banker’s Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. dismissed, 517 U.S. 1205 (1996))) (concluding that just “because in theory, defendant can obtain a plaintiff’s text messages, emails, or social media posts from third parties does not establish defendant cannot ask plaintiffs to produce those text messages, emails, or social media posts of plaintiffs”).
None of the cases cited by the Doctors directly address emails. A more critical distinction is that here, the Doctors created the emails in question themselves and sent the emails to outside entities. Here, the Doctors are free to use their work emails for many purposes, including their work with the IDSA. They have access to these emails on their personal electronic devices, and their work and personal devices can search and download their work emails. There is no reason to believe that the Doctors do not have “the legal right to personally possess those documents outside of [their] employment,” particularly those emails that Plaintiffs seeks in this case.[7] Cf. Dotson v. Edmonson, No. CV 16-15371, 2017 WL 4310676, at *5 (E.D. La. Sept. 28, 2017) (holding that access to employer policies was not a sufficient level of “possession, custody, or control” to require an employee to produce the documents). Though producing these emails may be relatively difficult, this burden does not outweigh the likely benefit of the discovery. See FED. R. CIV. P. 26.
*6 Accordingly, the Doctors have not met their burden to support their objections. See Fed. Trade Comm’n, 2016 WL 4272706, at *4. Plaintiffs’ Motion to Compel is GRANTED, and the Doctors must produce their relevant emails from their current employers.[8]
IV. Conclusion
As explained above, Plaintiffs’ Emergency Motion to Compel Email Production (Docket No. 219) is GRANTED, the IDSA’s Motion for Protective Order (Docket No. 226) is GRANTED and Aetna’s Motion for Protection from Plaintiffs’ Notice of Deposition (Docket No. 228) is GRANTED. It is
ORDERED that the Doctors shall produce their emails from the current work email accounts. It is further
ORDERED that the questioning of the IDSA and Aetna’s corporate representatives is limited in scope to the timeframe and subject-matter restrictions set forth in the Joint Order (Docket No. 181) and the Court’s Order (Docket No. 190). It is further
ORDERED that the questioning of the IDSA’s corporate representative shall not include the 2019 IDSA Lyme Disease Guidelines.
So ORDERED and SIGNED this 29th day of August, 2019.
Footnotes
The Infectious Diseases Society of America.
Anthem, Inc., Blue Cross and Blue Shield of Texas, Aetna, Inc., Cigna Health and Life Insurance Company (sued as Cigna Corporation), Kaiser Foundation Health Plan, Inc. (sued as Kaiser Permanente, Inc.), United Healthcare Services, Inc., Unitedhealth Group Inc. and Blue Cross and Blue Shield Association.
Dr. Gary P. Wormser, Dr. Raymond J. Dattwyler, Dr. Eugene Shapiro, Dr. John H. Halperin, Dr. Leonard Sigal and Dr. Allen Steere (“the Doctors”).
See Docket No. 177 at 104:3–106:21.
Aetna’s motion for a protective order (Docket No. 228) sets forth a similar request. The parties indicated that Aetna’s motion will be resolved by the Court’s ruling on the discoverable-date issue raised in the IDSA’s motion. Docket No. 240. To the extent Aetna still seeks a protective order, its motion is GRANTED for the same reason as the IDSA’s.
To be clear, the Court expects Defendants to prepare witnesses to answer questions not just on the existence of the documents, but also on the substance of the documents. For example, with respect to reports, if such reports exist, acceptable topics for which a witness should be prepared back to 1995 or 1998 would include the contents of the reports, Defendants’ policies or reasoning underlying any reports, why reports were submitted, who was involved in the decision making process that lead to any reports, etc.
After the hearing on this issue, the Doctors submitted two notices contending that their employers, specifically Yale University and New York Medical College, prohibit the production of work emails. Docket Nos. 252, 253. However, neither policy covers the emails requested by Plaintiffs. As characterized by the Doctors, the New York Medical College policy only prohibits production of student and patient data, neither of which are at issue here. Nothing else in the New York Medical College policy appears to cover the emails here. As to the Yale policy, it provides that it covers “University information,” which is “all information generated or acquired, in printed or digital form, by Yale faculty, staff, students, contractors or others engaged on the University’s behalf, in the course of carrying out the University’s mission or conducting its business.” The Yale policy then provides that “University information may only be accessed by persons when they are performing activities and responsibilities associated with their University position.” Accordingly, the Doctors have authorization to access and control their emails under the Discovery Categories either because they were generated by the Doctors as part of their University position and may be accessed as part of their University positions, or the emails were generated in their personal capacity, not as part of their University position, and fall entirely outside the Yale policy. Furthermore, § 1601.1 of the Yale policy identifies categories of information that require authorization to access, but none of the categories include the discovery sought here.
At the hearing, Plaintiffs agreed that the Doctors likely did not have access to email accounts with former employers. Accordingly, the Doctors are only required to produce emails from their current employer accounts.