TONYA KIM BLACKBURN, Plaintiff, v. UNITED STATES, et al., Defendants Case No. 2:18-cv-00116-DAK-EJF United States District Court, D. Utah, Central Division Filed September 20, 2019 Counsel Heather L. Thuet, Christensen & Jensen PC, Salt Lake City, UT, for Plaintiff. Amanda A. Berndt, Jeffrey E. Nelson, US Attorney's Office, Christian W. Nelson, Aaron Thomas Cunningham, Brandon B. Hobbs, George T. Naegle, Kristina H. Ruedas, Robert G. Wright, Richards Brandt Miller Nelson, Salt Lake City, UT, for Defendants Furse, Evelyn J., United States Magistrate Judge ORDER REGARDING PLAINTIFF’S SHORT FORM DISCOVERY MOTIONS (ECF NOS. 87, 88, 89, 90, & 91) *1 Plaintiff Tonya Kim Blackburn brought the following discovery motions: (1) Short Form Discovery Motion Re: August 2018 Request for Production No. 1 and to Strike United States’ Answer for Failure to Produce Plaintiff’s Electronic Health Records (“EHR”) (ECF No. 87); (2) Short Form Discovery Motion Re: Moab Free Health Clinic’s 13th Affirmative Defense Claim of Immunity Under the Charity Care Statute and Failure to Produce the Compensation it Paid to Providers that Shows it Cannot Claim Charity Care Immunity (ECF No. 88); (3) Short Form Discovery Motion Re: August 2018 Request for Production No. 4 and MFHC’s Failure to Produce Payments Made for Plaintiff’s Care (ECF No. 89); (4) Short Form Discovery Motion Re: Moab Free Health Clinic’s Failure to Produce Employee Files, Continuing Education, Time Sheets, Etc. Requested in Plaintiff’s August 2018 Request for Production No. 8 (ECF No. 90); and (5) Short Form Discovery Motion Re: August 2018 Request for Production No. 2 and MFHC’s Failure to Produce Guidelines & Treatment Protocols (ECF No. 91). The United States, on behalf of Moab Free Health Clinic (“MFHC”), filed a Consolidated Response to all of Ms. Blackburn’s Motions. (ECF No. 97.) This opinion refers to the United States and MFHC interchangeably. The Court held a hearing on the Motions on June 26, 2019. (ECF No. 98.) Having considered the briefing of the parties and arguments made at the hearing, the Court, for the reasons addressed in detail below: (1) GRANTS IN PART AND DENIES IN PART Ms. Blackburn’s Discovery Motion Regarding Electronic Health Records (ECF No. 87); (2) GRANTS IN PART AND DENIES IN PART Ms. Blackburn’s Discovery Motion Regarding Compensation Paid to Providers (ECF No. 88); (3) DENIES Ms. Blackburn’s Discovery Motion Regarding Payments Made for Plaintiff’s Care (ECF No. 89); (4) GRANTS Ms. Blackburn’s Discovery Motion Regarding Employee Files, Continuing Education, and Time Sheets (ECF No. 90); (5) DENIES Ms. Blackburn’s Discovery Motion Regarding Guidelines and Treatment Protocols (ECF No. 91). 1. Discovery Motion Regarding Electronic Health Records (ECF No. 87) Ms. Blackburn claims that MFHC failed to produce documents responsive to her August 2018 Request for Production No. 1, which seeks “[a]ll versions of any records relating to Plaintiff at Moab Free Health Clinic, including paper documents, electronic records and any alterations, modifications, addenda or other entries made at any time ...” as well as audit logs for those documents showing “revision history and metadata.” (ECF No. 87 at 1 (Mot.); ECF No. 87-1 (Disc. Req.) at 4.) She claims that MFHC’s initial response indicates that it only maintained paper records for patients, but after numerous meet and confers, MFHC indicated it has electronic “appointment records” for patients and produced some electronic records from a Practice Fusion platform and a 4D program. (ECF No. 87 (Mot.) at 1–2; ECF No. 87-2 (Resp. Disc. Req.) at 3-4; ECF No. 87-6 (Suppl. Resp. Disc. Req.) at 2-3 & attachments at 8-10 (US 536–38: Practice Fusion & 4D documents); ECF No. 87-7 (2d Suppl. Resp. Disc. Req.) at 2-3.) Ms. Blackburn further asserts that during an April 29, 2019 Rule 34 inspection during which she sought access to “[a]ny and all records relating to Tonya Kim Blackburn (hard copies as well as electronically stored) ...”, her counsel discovered additional information responsive to Request No. 1 not previously disclosed. (ECF No. 87 (Mot.) at 2; ECF No. 87-8 (Am. R. 34 Notice of Inspection).) Specifically, she claims that counsel discovered appointment details from Practice Fusion not previously produced as well as an audit log showing alterations to appointments and the dates MFHC personnel accessed Practice Fusion. (ECF No. 87 (Mot.) at 2; ECF No. 87-9 (Practice Fusion audit log).) Ms. Blackburn further claims that MFHC did not make the 4D program accessible during the inspection and only produced a screenshot of one tab from that program and “failed to produce the audit log or the Visit/Main/EWS/IA/PHI tabs.” (ECF No. 87 (Mot.) at 3.) *2 Ms. Blackburn argues that MFHC’s initial representation that it only maintained paper records for patients was false as was the subsequent representation that the only electronic records that exist are appointment records. (ECF No. 87 (Mot.) at 3.) She claims that MFHC’s failure to produce relevant electronic records justifies striking the United States’ Amended Answer and entering default judgment. (Id.) She further seeks her expenses and attorneys’ fees caused by MFHC’s failure to produce relevant and responsive electronic records. (Id. at 3–4.) At the hearing, Ms. Blackburn’s counsel also argued that the Court should order MFHC to produce all of Ms. Blackburn’s records from 4D, as well as audit logs from 4D. The United States responds that, contrary to Ms. Blackburn’s allegation, it did not state that it “only” maintained paper records but instead stated that it maintained paper treatment records for patients. (ECF No. 97 (Opp’n) at 2.) The United States further claims that during the Rule 34 inspection “Plaintiff’s counsel was permitted full access to the MFHC’s hard-copy and computer records regarding Plaintiff and was permitted to make copies of any records she selected.” (Id. at 2–3.) The United States argues that it has not failed to disclose or permit inspection of Ms. Blackburn’s records but has instead given Ms. Blackburn’s counsel “unfettered access to Plaintiff’s records.” (Id. at 3.) At the June 26 hearing, counsel for the United States indicated that the only records for Ms. Blackburn in the 4D program had been produced (US 538) and that Danette Johnson, MFHC’s Board President, recently double checked the 4D program for additional responsive records and did not find any. Counsel admitted, however, that Ms. Johnson had to enlist the help of another individual more conversant in computers to search the program. The United States further argued that Ms. Blackburn’s counsel did not bring up the 4D program during the April 29 inspection so it was not made available. At the end of the hearing, the parties agreed that Ms. Blackburn’s counsel could inspect the 4D program during the additional inspections scheduled for July 15, 16, and 17, 2019. The Court finds the history of the United States’ disclosure of Ms. Blackburn’s medical records—key evidence in this case—troubling. While the United States did not say that it “only” maintained medical records in paper format, its initial response, which addressed only paper records when responding to a request for both paper and electronic records, at least implied that it did not have any electronic records for Ms. Blackburn. The United States later produced three pages of electronic records relating to Ms. Blackburn. However, during the April 29 inspection, Ms. Blackburn’s counsel found additional electronic records responsive to Request No. 1, including appointment details in Practice Fusion that had not been produced, as well as an audit log from that program showing alterations to appointments and the dates MFHC accessed the program. Rule 34(b)(2)(C) requires a party to identify whether it withheld documents pursuant to any objection. The United States did not state that it had withheld the electronic documents in its written discovery response. Further, while the United States claims in its brief that it allowed Plaintiff’s counsel access to all MFHC’s computer records during the April 29 inspection, Ms. Blackburn’s counsel did not review the 4D program during the inspection. The United States claimed at the hearing that is because she did not specifically ask to review it. However, Ms. Blackburn’s counsel should not have to identify, by name, each record that she wishes to inspect, some of which she may not even be aware. Pursuant to the Rule 34 Amended Notice of Inspection, the United States had an obligation to make all of Ms. Blackburn’s paper and electronic records available during the inspection and should have made the 4D program available at that time. The Court also finds concerning the lack of familiarity the individual checking the 4D program for responsive records had with the computer program, evidenced by her need to enlist someone else’s help. *3 The Court GRANTS Ms. Blackburn’s Motion to the extent she seeks production of electronic records responsive to Request No. 1. Paper and electronic documents responsive to Request No. 1, including records reflecting appointments, treatments, diagnoses, etc., are relevant, and the United States must produce them. The parties agreed that MFHC would permit Ms. Blackburn’s counsel to inspect the 4D program during the additional inspections scheduled for July 15, 16, and 17, 2019. However, to the extent this inspection has not already happened, MFHC must allow Ms. Blackburn’s counsel the opportunity to inspect the 4D program. Further, the United States must produce any responsive electronic records that exist, beyond the Practice Fusion platform and 4D program that Ms. Blackburn’s counsel has already had an opportunity to inspect. The United States must produce any additional responsive documents within fourteen (14) days. The Court DENIES Ms. Blackburn’s Motion to the extent she asks the Court to strike the United States’ Amended Answer and enter default judgment. While the United States’ production of documents in response to Request No. 1 demonstrates problems in some respects, the problems do not rise to the level of warranting terminating sanctions because they do not impair Ms. Blackburn’s ability to make her case. As to Ms. Blackburn’s request for an award of expenses and attorney’s fees, the Court GRANTS IN PART AND DENIES IN PART this request. The United States lacked substantially justification for its incomplete responses to Request No. 1, delay in producing certain electronic records responsive to Request No. 1, and failure to produce other relevant electronic records responsive to Request No. 1. Those actions delayed Ms. Blackburn’s case and increased her attorney’s work. Accordingly, the Court awards Ms. Blackburn the fees incurred in bringing this Motion and arguing it at the June 26 hearing. However, the Court does not award Ms. Blackburn any fees incurred during the meet and confer process. Aside from the fact isolating any fees billed with respect to this one issue during the meet and confer process would present a significant difficulty, the Court generally does not permit parties to recover such fees because of the need to encourage meaningful meet and confer discussions on discovery issues. Awarding fees for meet and confer discussions may discourage parties from engaging in lengthy and robust meet and confers since they may ultimately have to pay not only for their own fees, but also the other party’s fees if a court awards monetary sanctions. Lifetime Prod., Inc. v. Russell Brands, LLC, No. 1:12-CV-00026-DN-EJF, 2016 WL 5349728, at *2 (D. Utah Sept. 23, 2016) (unpublished). The Court also awards Ms. Blackburn the attorney’s fees and costs incurred to conduct the Rule 34 inspection on April 29, 2019. Had the United States provided complete initial responses and productions to Request No. 1, the Rule 34 inspection—which essentially sought to inspect records responsive to this Request—likely would not have occurred. Further, during the inspection, Ms. Blackburn’s counsel found responsive electronic records that the United States had not produced. The Court limits the award of costs and fees to the expenses and fees incurred on April 29, 2019, and does not include any work or preparation that occurred before the actual inspection. Counsel for the parties should attempt to reach an agreement as to the amount of Ms. Blackburn’s costs and fees awarded pursuant to this Order. If the parties cannot reach an agreement, Ms. Blackburn must file a motion for costs and attorney’s fees within twenty-one (21) days of the date of this Order. Finally, to the extent the July Rule 34 inspections uncovered any electronic documents responsive to Request No. 1 not already produced or otherwise discovered during the April 29, 2019 inspection, Ms. Blackburn may file a motion for sanctions under Rule 37 on that issue. The motion should attach the documents that the United States failed to disclose, explain their relevance, and detail any costs and fees requested in connection with the alleged failure to produce those documents. 2. Discovery Motion Regarding Compensation Paid to Providers (ECF No. 88) *4 Ms. Blackburn argues that the United States did not have substantial justification to assert its thirteenth affirmative defense claiming immunity under Utah’s charity care statute, Utah Code § 58-13-3. (ECF No. 88 (Mot.) at 3; ECF No. 88-1 (Am. Ans.) at 11.) She claims that the United States knew when it asserted this defense that the defense did not apply because MFHC compensated its providers. (ECF No. 88 (Mot.) at 3.) Ms. Blackburn further asserts that during discovery MFHC withheld evidence regarding this compensation, which shows that the charity care statute does not apply. (Id. at 2–3.) Specifically, she claims that MFHC has not produced all documents responsive to Request No. 3, which seeks [a]ll compensation, remuneration, salary, reimbursement, grants, donations, contributions, loan forgiveness, stipends, travel discounts, lodging, meals, food, clothing, gear, equipment, bikes, products, samples, services, coupons, certificates, tours, gift cards, discounts, rebates, mileage, checks or other support from any source made available to, provided to or obtained by Elizabeth Holtby, Patrick Scherer, DO, or other employees deemed employees, agents, independent contractors, volunteers of the Moab Free Health Clinic, from December 31, 2013 to December 31, 2016. (Id.; ECF No. 88-2 (Resp. Discovery Req.) at 4.) Ms. Blackburn claims she had to obtain responsive documents showing payments to MHFC personnel including Elizabeth Holtby, PA, William Cornett, Kelley Beh, RN, and Suzanne Morrison through subpoenas to various banks. (ECF No. 88 (Mot.) at 2; see also ECF No. 88-7 (Holtby check); ECF No. 88-8 (Cornett check), ECF No. 88-10 (Beh check); ECF No. 88-11 (Beh checks); ECF No. 88-12 (Morrison check).) She also points out that in March 2019, prior to issuing the subpoenas, MFHC claimed it “produced all documents responsive to this request,” but in May 2019, after Ms. Blackburn received the subpoenaed documents, MFHC produced additional responsive documents showing payments to Ms. Holtby and Patrick Scherer, D.O. (ECF No. 88 (Mot.) at 2; ECF No. 88-6 (2d Suppl. Resp. Discovery Req.) at 4; ECF No. 88-13 (3d Suppl. Resp. Discovery Req.) at 3.) Ms. Blackburn asks the Court to strike the United States’ thirteenth affirmative defense because the United States lacked substantial justification for asserting immunity under the charity care statute. (ECF No. 88 (Mot.) at 3.) She further asks the Court to award her attorney’s fees and expenses incurred in litigating the charity care defense. (Id. at 2-3.) She claims MFHC’s failure to produce relevant discovery needlessly increased the cost of litigation and also points out that she had to incur the extra expense of subpoenaing third parties to obtain responsive documents to refute the charity care defense. (Id.) At the hearing, Ms. Blackburn also argued that the Court should order MFHC to produce documents showing compensation of any kind to all the personnel involved in Ms. Blackburn’s care. The United States replies that it responded to Request No. 3 “only with respect to Elizabeth Holtby, PA, and Patrick Scherer, DO, because Plaintiff has criticized the care of only those two practitioners” and objected to the Request to the extent it sought documents relating to other MFHC personnel. (ECF No. 97 (Opp’n) at 3; see also ECF No. 88-2 (Resp. Discovery Req.) at 4-5.) At the hearing, the United States indicated that it bases its contention that only documents relating to Ms. Holtby and Dr. Scherer are relevant because the Division of Occupational and Professional Licensing (DOPL) complaint and the Complaint in this case only criticize the care provided by Ms. Holtby and Dr. Scherer. As to Ms. Holtby and Dr. Scherer, the United States maintains that they are volunteers, so no documents exist showing compensation paid to them but contends it produced various documents reflecting payments made to Ms. Holtby for her license renewal and to Dr. Scherer for lease payments, as well as tax documents for these two individuals. (ECF No. 97 (Opp’n) at 3–4.) The United States also points out that it has explained that MFHC does not maintain records of gifts provided to volunteers. (Id. at 4.) The United States claims it “has produced all documents in its possession or control relating to reimbursements, gifts, or the like provided to Ms. Holtby and Dr. Scherer” and has also produced 2014 and 2015 accounting ledgers, balance sheets, and tax documents for MFHC. (Id.) Thus, the United States claims it has met its obligation to produce documents responsive to Request No. 3. *5 As an initial matter, the Court finds a genuine dispute exists concerning the applicability of the charity care statute, Utah Code § 58-13-3, in this case. The parties take different positions as to the applicability of the statute and the meaning of “remuneration or compensation” as set forth in the statute. The Court declines to find at this time and in this procedural context that the United States lacked substantial justification for asserting immunity under that statute. Therefore, the Court DENIES Ms. Blackburn’s Motion to the extent she asks the Court to strike this affirmative defense from the United States’ Amended Answer as a sanction. However, given the United States did assert immunity under that statute, Ms. Blackburn may seek discovery that would refute that claim. The United States’ response to Request No. 3 presents a number of concerns. First, to the extent the United States limited its response to Ms. Holtby and Dr. Scherer, the United States indicated in March 2019 that it had produced all responsive documents. Yet, after Ms. Blackburn subpoenaed documents from third parties, the United States supplemented its response in May 2019 and produced responsive documents not produced previously, despite its prior representation. Second, the United States’ position that Ms. Blackburn only criticizes the care of Ms. Holtby and Dr. Scherer—and therefore properly limited its responses to those individuals —fails. Ms. Blackburn’s Complaint plainly alleges she received substandard care and follow-up care at MFHC, including from Ms. Holtby, Dr. Scherer, and “other deemed employees of the Moab Free Health Clinic.” (Compl. ¶ 5, ECF No. 2.) Ms. Blackburn alleges she received follow-up care from MFHC in January and February 2015 that failed to comply with the applicable standard of care. (Id., ¶¶ 52–81; see also id., ¶ 124(a).) She further claims that MFHC breached the applicable standard of care by “[f]ailing to ensure adequate staffing and failing to oversee, train, supervise, and assure that the staff and employees were sufficiently experienced, trained, and providing treatment meeting the standard of care.” (Id., ¶ 124(i).) That Ms. Blackburn’s Complaint only mentions Ms. Holtby and Dr. Scherer by name does not provide a proper basis to withhold documents relating to other MFHC providers involved in her care given the nature of the allegations in Ms. Blackburn’s Complaint. Ms. Blackburn may seek discovery concerning all individuals at MFHC involved in her care, including those individuals identified on the “Follow-up Log,” (ECF No. 88-9 (Follow-up Log))—specifically “KB” (Kelley Beh), “WC” (William Cornett), “SM” (Suzanne Morrison), and “MD” (Megan Downey). Further, the United States’ identification in its Initial Disclosures of MFHC providers, including Ms. Beh, Frederic Walker, M.D., and Ms. Morrison, as having relevant and discoverable information concerning Ms. Blackburn that it will use to support its defenses and subsequent refusal to provide discovery concerning those individuals reflects bad faith. (See ECF No. 90-9 (Initial Disclosures).) The United States’ Initial Disclosures indicate these individuals participated in Ms. Blackburn’s care at MFHC in January and February 2015 to varying degrees. (See id.) Therefore, the Court GRANTS Ms. Blackburn’s Motion to the extent she seeks to compel the production of documents responsive to Request No. 3 for all MFHC personnel involved in any way in her care in January and February 2015. To the extent the United States has additional responsive documents for Ms. Holtby and Dr. Scherer, it must produce those documents. The United States must also produce documents for the other MFHC providers involved in Ms. Blackburn’s care in January and February 2015, including those individuals identified on the Follow-up Log and in the United States’ Initial Disclosures. The United States must also produce responsive documents for any additional individuals it later discovers participated in Ms. Blackburn’s care in January and February 2015, including during her January 13, 2015 and February 23, 2015 appointments discussed at the hearing. The United States must produce documents responsive to this request, for all known personnel, within fourteen (14) days of the date of this Order. *6 Further, the Court GRANTS IN PART AND DENIES IN PART Ms. Blackburn’s request for an award of attorney’s fees and costs. The United States’ delay in producing responsive documents relating to Ms. Holtby and Dr. Scherer and failure to produce responsive documents for all MHFC personnel involved in Ms. Blackburn’s care in January and February 2015 lacked substantial justification. Accordingly, the Court awards Ms. Blackburn the costs and fees incurred in bringing and arguing this Motion at the June 26 hearing. As set forth above, the United States’ response to Request No. 3 fails in a number of respects. However, the Court declines to award costs and fees associated with the meet and confer process for the reasons already stated in this Order and because Ms. Blackburn could have moved to compel production of documents relating to MFHC providers other than Ms. Holtby and Dr. Scherer much earlier. The United States made clear from the beginning its position that it would only produce documents in response to Request No. 3 relating to Ms. Holtby and Dr. Scherer. (See ECF No. 88-2 (Resp. Discovery Req.) at 4-5.) The Court also declines to award fees incurred in connection with Ms. Blackburn’s issuance of subpoenas to third parties. Ms. Blackburn could have moved to compel responses with respect to other personnel before issuing the subpoenas given that the United States plainly limited its response to Request No. 3 to Ms. Holtby and Dr. Scherer. Moreover, Ms. Blackburn has not shown that the documents she obtained from third parties with respect to MFHC personnel are in MFHC’s “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). Ms. Blackburn may have chosen to subpoena third parties even if the United States had complied with the document request. Therefore, the Court finds the United States’ actions did not cause this expense. Counsel for the parties should attempt to reach an agreement as to the amount of Ms. Blackburn’s costs and fees awarded pursuant to this Order. If the parties cannot reach an agreement, Ms. Blackburn must file a motion for costs and attorney’s fees within twenty-one (21) days of the date of this Order. 3. Discovery Motion Regarding Payments Made for Plaintiff’s Care (ECF No. 89) Ms. Blackburn premises this Motion on the same ground as her motion concerning payments made to MHFC providers, arguing that the United States did not have substantial justification to assert its thirteenth affirmative defense claiming immunity under Utah’s charity care statute, Utah Code § 58-13-3. (ECF No. 89 (Mot.) at 3; ECF No. 88-1 (Am. Ans.) at 11.) At the hearing, Ms. Blackburn claimed that the United States knew when it asserted this defense that the defense did not apply because Ms. Blackburn made payments for her care. Ms. Blackburn further asserts that MFHC failed to disclose evidence of these payments during discovery. (ECF No. 89 (Mot.) at 2–3.) Specifically, Ms. Blackburn claims MFHC has not produced all documents responsive to Request No. 4, which seeks “[a]ll donations made by or for Kim Blackburn from 1/1/2010-1/1/2016.” (Id. at 1; ECF No. 89-2 (Resp. Disc. Req.) at 4.) Ms. Blackburn claims that MFHC’s response to Request No. 4—that “MFHC does not maintain records of individual patient donations”—is inaccurate. (ECF No. 89 (Mot.) at 1–3; ECF No. 89-2 (Resp. Disc. Req.) at 4.) As purported proof of the falsity of this representation, Ms. Blackburn points to documents subpoenaed from third parties, including a $20 check from January 13, 2015 to MFHC from Kevin Tangreen—Ms. Blackburn’s husband at the time—as well as Zions bank statements showing deposits from Square, Inc., which Ms. Blackburn claims represent payments from patients. (ECF No. 89 (Mot.) at 2; ECF No. 89-7 (Tangreen check); ECF No. 89-8 (Zions statements).) Ms. Blackburn further claims that during the April 29, 2019 inspection of MFHC, she discovered additional records, including a Square dashboard summary showing patient donations on January 13, 2015, a spreadsheet showing a $20 patient donation on January 13, 2015, an appointment schedule showing Ms. Blackburn’s January 13, 2015 appointment, a Square dashboard summary showing a $14 laboratory payment made on January 29, 2015, and other assorted documents she claims show that the $14 payment relates to Ms. Blackburn’s urine culture. (ECF No. 89 (Mot.) at 2–3; ECF No. 89-10 (1/13/15 Square dashboard summary); ECF No. 89-11 (1/13/15 appointment schedule); ECF No. 89-12 (patient donation spreadsheet); ECF No. 89-13 (1/29/15 Square dashboard summary); ECF No. 89-14 (diagnostics pricing); ECF No. 89-15 (1/29/15 appointment schedule).) Ms. Blackburn asks the Court to strike the United States’ thirteenth affirmative defense because the United States did not have a substantial justification for asserting immunity under the charity care statute. (ECF No. 89 (Mot.) at 3.) She further asks the Court to award her attorney’s fees and expenses caused by MFHC’s alleged failure to produce the requested records. (Id.) The United States counters that its response that it does not maintain records of individual patient donations is accurate, and the records obtained from third parties and additional records it produced confirm this. (ECF No. 97 (Opp’n) at 5.) The United States also points out that Ms. Blackburn did not raise any issues with its response to Request No. 3 until the third meet and confer letter dated March 26, 2019, sent after she notified the United States of her intent to subpoena documents from third parties, including MFHC’s bank and accountant. (Id.) The United States further states that in response to the meet and confer letter sent in March 2019, it produced balance sheets showing dates and amounts of patient deposits or patient donations but reiterates that all of the documents produced to or obtained by Ms. Blackburn do not identify the donations “by donor name or donation amount.” (Id.) *7 As set forth above, the Court finds a genuine dispute exists between the parties concerning the applicability of the charity care statute, Utah Code § 58-13-3, and the meaning of “remuneration or compensation” under that statute. Ms. Blackburn contends that the money she and her husband paid to MFHC amounts to a “payment” under that statute, while the United States maintains that patient donations do not constitute payments within the meaning of the statute. Again, the Court declines to find at this time, and in this procedural context, that the United States lacked substantial justification for asserting immunity under that statute. Therefore, the Court DENIES Ms. Blackburn’s Motion to the extent she asks the Court to strike the charity care affirmative defense from the United States’ Amended Answer as a sanction. The Court also finds the United States’ representation that it does not maintain records of individual patient donations accurate. None of the documents that Ms. Blackburn presented with her Motion assign any of the payments to a specific patient. Certainly Ms. Blackburn has pieced together various documents suggesting she or her husband made payments to MFHC on January 13 and January 29, 2015. But no specific spreadsheets or other document specifically assign these payments to Ms. Blackburn. Further, Ms. Blackburn has not shown that any of the documents she subpoenaed from third parties were in MFHC’s “possession, custody, or control,” Fed. R. Civ. P. 34(a)(1), and in any event, she did not allow MFHC any time to even search for documents in its possession, custody, or control before notifying the United States of her intention to subpoena documents from third parties. As the United States points out, Ms. Blackburn did not raise any concerns with its response to Request No. 4 until March 29, 2019, after she indicated her intent to serve the subpoenas. Even more importantly, Ms. Blackburn fails to show how MFHC would know that a check from someone named Kevin Tangreen, even if in its possession, custody, or control, related to a payment made on Ms. Blackburn’s behalf on a specific day. Ms. Blackburn’s Request does not identify Mr. Tangreen, nor does the check itself indicate that the payment relates to Ms. Blackburn. Finally, Ms. Blackburn—not MFHC— is the party most likely to have knowledge and evidence of payments that she or someone else made on her behalf to MFHC. Why Ms. Blackburn even needed to subpoena records from MFHC’s bank when she should have been able to obtain checks and other payment records from her own bank or Mr. Tangreen’s bank remains unclear. For these reasons, the Court finds the United States’ response and production to Request No. 4 sufficient. Accordingly, the Court DENIES the remainder of Ms. Blackburn’s Motion as well as her request for an award of fees and expenses. 4. Discovery Motion Regarding Employee Files, Continuing Education, and Time Sheets (ECF No. 90) Ms. Blackburn asserts that MFHC produced deficient responses to its Document Request No. 8. (ECF No. 90 (Mot.) at 2–3.) Request No. 8 seeks [a]ll employee/volunteer files or employee records for Elizabeth Holtby, Patrick Scherer, DO, and any other individual involved in care of Plaintiff, including applications, credentialing file and common files, privileges, evaluations, continuing education, loan forgiveness, time sheets, dates of service, positions held, duties performed, compensation and benefits information, awards received, exit interviews, discipline, warnings, counseling, and disciplinary notices or actions, performance reviews and evaluations, training, continuing education, licensing assistance, training, letters and documentation regarding the number of hours volunteered for the MFHC for tax purposes. (Id. at 2; ECF No. 90-1 (Resp. to Disc. Req.) at 6.) Ms. Blackburn points out that MFHC initially objected to the request and refused to produce any documents on the grounds that the request is “overly broad and the relevance, if any, of those documents is not proportional to the needs of the case because the burden of producing the documents and the intrusion into the privacy of the individuals substantially outweighs any potential benefit to Plaintiff.” (ECF No. 90 (Mot.) at 2; ECF No. 90-1 (Resp. to Disc. Req.) at 7.) Then, in its first supplemental response, MFHC produced the volunteer files for Ms. Holtby and Dr. Scherer but continued to object to producing the files for any other MFHC personnel. (ECF No. 90 (Mot.) at 2; ECF No. 90-2 (Suppl. Resp. to Disc. Req.) at 5.) MFHC stood by its objections in its second supplemental response, as well. (ECF No. 90 (Mot.) at 2; ECF No. 90-3 (2d Suppl. Resp. to Disc. Req.) at 4-5.) In its May 2019 third supplemental response, MFHC agreed to produce Ms. Beh’s personnel file and timesheets as well as payroll summaries for August 2014 to February 2015. (ECF No. 90 (Mot.) at 2; ECF No. 90-7 (3d Suppl. Resp. to Disc. Req.) at 4-5.) MFHC, however, continued to stand by its objections as to other MFHC personnel, refusing to produce their files. (Id.) *8 Ms. Blackburn argues that the United States lacks justification for its refusal to produce documents responsive to Request No. 8 for all MFHC personnel involved in her care, and its relevance objection conflicts with its Initial Disclosures. (ECF No. 90 (Mot.) at 3.) Ms. Blackburn points to the “Follow-up Log” to show that Mr. Cornett (initials “WC)” and Ms. Morrison (initials “SM”) participated in her care at MFHC. (Id. at 2; ECF No. 90-8 (Follow-up Log).) At the hearing, Ms. Blackburn’s counsel also indicated she recently learned the “MD” initials on the Log refer to Megan Downey and that therefore she too, participated in Ms. Blackburn’s care. Ms. Blackburn also argues that MFHC’s ongoing relevance objection to Request No. 8 is inconsistent with its Initial Disclosures, which identify Ms. Beh, Ms. Morrison, and Dr. Walker as individuals likely to have discoverable information it will use to support its defenses. (ECF No. 90 (Mot.) at 3; ECF No. 90-9 (Initial Disclosures).) Ms. Blackburn asks the Court to order MFHC to supplement its responses to Request No. 8 and produce all documents identified in Request No. 8 “for any and all individuals involved in [her] care,” including but not limited to Ms. Holtby, Dr. Scherer, Ms. Beh, Mr. Cornett, Ms. Morrison, and Dr. Walker. (ECF No. 90 (Mot.) at 3.) She also asks the Court to award attorney’s fees and costs. (Id.) In response, the United States points out that it has produced the files for Ms. Holtby, Dr. Scherer, and Ms. Beh. (ECF No. 97 (Opp’n) at 6.) The United States insists that Ms. Holtby and Dr. Scherer are “the only practitioners whose care [Ms. Blackburn] criticizes in this case” and that Ms. Beh communicated information concerning Ms. Blackburn to and from Ms. Holtby, apparently making her files relevant as well. (Id. at 6.) The United States stands by its objections to producing documents responsive to Request No. 8 for other MFHC personnel, arguing that their “actions are not at issue in this case.” (Id.) The Court GRANTS Ms. Blackburn’s request to compel the United States to produce documents responsive to Request No. 8 for all MFHC personnel involved in her care. The United States’ position that responsive documents for personnel other than Ms. Holtby, Dr. Scherer, and Ms. Beh lack relevance and its refusal to produce them lack merit. As addressed above, Ms. Blackburn’s Complaint plainly alleges that she received substandard care and follow-up care at MFHC, including from Ms. Holtby, Dr. Scherer, and “other deemed employees of the Moab Free Health Clinic.” (Compl. ¶ 5, ECF No. 2.) Specifically, she alleges that she received deficient follow-up care from MFHC in January and February 2015 that failed to comply with the applicable standard of care, (id., ¶¶ 52–81; see also id., ¶ 124(a)), and that MFHC also breached the applicable standard of care by “[f]ailing to ensure adequate staffing and failing to oversee, train, supervise, and assure that the staff and employees were sufficiently experienced, trained, and providing treatment meeting the standard of care.” (Id., ¶ 124(i).) These allegations place the conduct of all MFHC employees involved in Ms. Blackburn’s care in January and February of 2015 at issue in this case. Further, the personnel files of these individuals are relevant given Ms. Blackburn’s allegation that MFHC failed to ensure that staff and employees received sufficient experience and training and provided treatment meeting the standard of care. Among other things, the personnel files will show the experience and training of these individuals and potentially reveal issues with care they provided patients while at MFHC. Additionally, the United States’ current relevance objection to Request No. 8 lacks merit particularly as to Dr. Walker and Ms. Morrison. The Initial Disclosures identify these individuals as having participated in Ms. Blackburn’s care at MFHC to varying degrees and state that they have discoverable information supporting the United States’ defenses. Therefore, the United States cannot reasonably claim that discovery relating to these providers lacks relevance. Finally, the Court finds the production of these files proportional to the needs of the case. Producing responsive records for a small number of MHFC personnel will not create an undue burden on MHFC. Moreover, Ms. Blackburn’s interest in the requested information outweighs any privacy concerns that MFHC personnel may have concerning the disclosure of their records. Of course, as appropriate, the United States may designate the documents under the Standard Protective Order entered in this case. *9 To the extent the United States does not know the identity of certain MFHC personnel involved in Ms. Blackburn’s care on a specific date in January or February 2015, the United States must produce timesheets and related records showing the personnel who worked and/or volunteered at MFHC on those dates. In particular, at the hearing, the parties addressed the January 13, 2015 appointment during which unidentified MFHC personnel made notes during Ms. Blackburn’s visit. The United States represented that it has tried to identify the individual who made the notes but cannot do so. Ms. Blackburn also indicated at the hearing that an unidentified individual from MFHC made notes during her February 23, 2015 visit. Because the unidentified individuals participated in Ms. Blackburn’s care at MFHC on those dates, Ms. Blackburn is entitled to documents responsive to Request No. 8 that the United States can reasonably produce at this time. The production of records reflecting MFHC personnel who worked and/or volunteered at MFHC on certain days in question in January and February 2015[1] will afford Ms. Blackburn an opportunity to conduct discovery in an effort to ascertain the identity of individuals involved in her care on those days. Further, to the extent the United States learns the identities of previously unidentified individuals involved in Ms. Blackburn’s care on January 13, 2015, February 23, 2015, or any other date in January or February 2015, it should provide this information to Ms. Blackburn. Accordingly, the Court ORDERS the United States to (1) produce documents responsive to Request No. 8 for all MFHC personnel involved in Ms. Blackburn’s care in January and February 2015, including but not limited to Mr. Cornett, Ms. Morrison, Dr. Walker, and Ms. Downey; (2) produce documents responsive to Request No. 8 for Ms. Holtby, Dr. Scherer, and Ms. Beh that have not already been produced; (3) produce timesheets and related records sufficient to show the MFHC personnel who worked and/or volunteered on dates in January and February 2015, including January 13, 2015 and February 23, 2015, for which the United States cannot identify the particular MFHC personnel involved in Ms. Blackburn’s care, and (4) produce documents responsive to Request No. 8 for all MFHC personnel later identified as having participated in Ms. Blackburn’s care. The United States must produce these documents, with the exception of those in (4), within fourteen (14) days of the date of this Order. The Court also awards Ms. Blackburn her costs and fees incurred in bringing this Motion. As detailed above, the United States lacked substantial justification in refusing to produce documents responsive to Request No. 4 for all identified MFHC personnel involved in Ms. Blackburn’s care. Specifically, Mr. Blackburn may recover the fees incurred in bringing this Motion and arguing it at the June 26 hearing. For the reasons set forth previously, the Court does not award fees incurred during the meet and confer process. Counsel for the parties should attempt to reach an agreement as to the amount of Ms. Blackburn’s costs and fees awarded pursuant to this Order. If the parties cannot reach an agreement, Ms. Blackburn must file a motion for costs and attorney’s fees within twenty-one (21) days of the date of this Order. 5. Discovery Motion Regarding Guidelines & Treatment Protocols (ECF No. 91) Ms. Blackburn argues in her Motion that MFHC failed to produce “National Guideline Clearinghouse” protocols, pursuant to her August 2018 Request for Production No. 2 seeking “all guidelines used or considered at Moab Free Health Clinic, including but not limited to the National Guideline Clearinghouse ....” (ECF No. 91-1 at 2 (Suppl. Resp. Disc. Req.); ECF No. 91 (Mot.) at 1–2.) She claims that MFHC’s initial response to this Request directed her to the National Guideline Clearinghouse’s website, which MFHC knew no longer existed and that its second supplemental response improperly indicated that MFHC did not have paper copies of the protocols even though the MFHC Risk Management Policies and Procedures document it produced indicates that MFHC keeps copies of the National Guideline Clearinghouse protocols “in the Clinic.” (ECF No. 91 at 1–3; see also ECF No. 97-1 at 3 (Resp. Disc. Req.); ECF No. 91-1 at 2 (Suppl. Resp. Disc. Req.); ECF No. 91-2 at 2 (2d Suppl. Resp. Disc. Req.); ECF No. 91-7 (MFHC Risk Mgmt. Policies & Procs.).) Ms. Blackburn asks the Court to order MFHC to produce all treatment protocols, including but not limited to, the National Guideline Clearinghouse protocols, and award Ms. Blackburn her “reasonable expenses, including attorney’s fees, caused by MFHC’s failure to produce requested records.” (ECF No. 91 (Mot.) at 3.) *10 The United States responds that it informed Ms. Blackburn repeatedly that it does not have paper copies of the National Guideline Clearinghouse protocols and further, that it has produced all protocols maintained by MFHC. (ECF No. 97 (Opp’n) at 7; see also ECF No. 91-2 (2d Suppl. Resp. Disc. Req.) at 3 (“The MFHC does not have paper copies of guidelines posted online by the National Guideline Clearinghouse. The United States has produced all protocols maintained by the MFHC.”).) The United States also points out that in July 2018, the National Guideline Clearinghouse website shut down due to a lack of funding. (ECF No. 97 (Opp’n) at 7.) The United States concludes that “MFHC cannot produce what it does not have.” (Id. at 8.) Ms. Blackburn did not present any argument on this Motion during the hearing, so whether she still intends to pursue the relief sought in this Motion remains unclear. In any event, the Court DENIES Ms. Blackburn’s Motion. While Ms. Blackburn points to an undated document produced by MFHC indicating that MFHC kept copies of the National Guideline Clearinghouse protocols, at least at one point in time, in the clinic, the United States has represented that MFHC does not have copies of the National Guideline Clearinghouse protocols. The United States has also represented that it has produced all protocols maintained by MFHC. The Court agrees that the MFHC cannot produce what it does not have. Further, the National Guideline Clearinghouse protocols are apparently available through a different third party website now, so Ms. Blackburn may be able to obtain the requested guidelines through this third party source. See https://www.ecri.org/press/ecri-guideline-website (“ECRI Institute, the independent nonprofit organization that the United States federal government relied on to develop and maintain [National Guideline Clearinghouse] since its inception 20 years ago, announces plans to continue providing this critical service to the healthcare community.”) (last visited September 5, 2019). Ms. Blackburn failed to demonstrate that the United States failed to produce any documents in its “possession, custody, or control” responsive to Request No. 2, Fed. R. Civ. P. 34(a)(1), and the United States represented that it produced all protocols maintained by MFHC. Accordingly, the Court DENIES Ms. Blackburn’s request that the Court compel production of the National Guideline Clearinghouse protocols or any other unidentified treatment protocols. Of course, if the United States discovers any additional documents responsive to this Request, whether in paper or electronic format, it must produce them. Further, the Court DENIES Ms. Blackburn’s request for attorney’s fees since she has not shown that MFHC failed to produce responsive documents in its possession, custody, or control. The Court does not know the scope of the Rule 34 inspections that were conducted on July 15, 16, and 17, 2019 or the scope of any other Rule 34 inspections that may occur in the future; however, if Ms. Blackburn’s counsel discovered or discovers unproduced, responsive guidelines or protocols during those inspections or any future inspections, Ms. Blackburn may file a motion for sanctions under Rule 37 with respect to that failure to produce. Any such motion should attach the documents that the United States failed to disclose, explain their relevance, and detail any costs and fees requested in connection with the alleged failure to produce those documents. CONCLUSION For the reasons set forth above, the Court (1) GRANTS IN PART AND DENIES IN PART Ms. Blackburn’s Discovery Motion Regarding Electronic Health Records (ECF No. 87); (2) GRANTS IN PART AND DENIES IN PART Ms. Blackburn’s Discovery Motion Regarding Compensation Paid to Providers (ECF No. 88); (3) DENIES Ms. Blackburn’s Discovery Motion Regarding Payments Made for Plaintiff’s Care (ECF No. 89); (4) GRANTS Ms. Blackburn’s Discovery Motion Regarding Employee Files, Continuing Education, and Time Sheets (ECF No. 90); (5) DENIES Ms. Blackburn’s Discovery Motion Regarding Guidelines and Treatment Protocols (ECF No. 91). Footnotes [1] At the hearing, Ms. Blackburn provided correspondence to the Court indicating that unidentified MFHC personnel made notes concerning Ms. Blackburn in September 2014. Ms. Blackburn has not explained the relevance of such notes given that her allegations concerning MFHC relate to care received in January and February 2015.