Est. of Moreno v. Corr. Healthcare Cos.
Est. of Moreno v. Corr. Healthcare Cos.
2020 WL 5739747 (E.D. Wash. 2020)
January 8, 2020
Peterson, Rosanna M., United States District Judge
Summary
The Court granted Plaintiffs' Third Motion to Compel and ordered Defendants to pay Plaintiffs' reasonable expenses, including attorneys' fees. Additionally, the Court ordered Defendants to execute a plan to locate all ESI responsive to Plaintiffs' discovery requests and to produce all responsive documents, including ESI, within thirty days. Finally, Defendants were ordered to pay Plaintiffs $7,290 in attorneys' fees related to the motion.
Additional Decisions
Estate of Marc A. MORENO, BY AND THROUGH its personal representative Miguel ANGEL MORENO; Miguel Angel Moreno; individually; and Alicia Magana Mendez, individually, Plaintiffs,
v.
CORRECTIONAL HEALTHCARE COMPANIES, INC.; Correct Care Solutions, LLC; and Ashley Castaneda, individually, Defendants
v.
CORRECTIONAL HEALTHCARE COMPANIES, INC.; Correct Care Solutions, LLC; and Ashley Castaneda, individually, Defendants
NO: 4:18-CV-5171-RMP
United States District Court, E.D. Washington
Signed January 08, 2020
Counsel
Erik J. Heipt, Hank L. Balson, Edwin S. Budge, Budge & Heipt PLLC, Seattle, WA, George Paul Trejo, Jr., Law Office of George Trejo, Yakima, WA, for Plaintiffs.Michele Atkins, Chad W. Beck, Fain Anderson VanDerhoef Rosendahl O'Halloran Spillane, Matthew R. Wojcik, Bullivant Houser, Seattle, WA, for Defendants.
Peterson, Rosanna M., United States District Judge
ORDER GRANTING PLAINTIFF'S THIRD MOTION TO COMPEL DISCOVERY AND MOTION FOR SANCTIONS
*1 BEFORE THE COURT is Plaintiffs’ Third Motion to Compel, ECF No. 69. The Motion is directed at Defendants Correctional Healthcare Companies (CHC) and Correct Care Solutions (CCS).[1] Having considered the record, the motion, and the relevant precedent, the Court is fully informed.
BACKGROUND
This matter involves the death of Marc Moreno. Plaintiffs allege that Defendants caused Mr. Moreno's death through the violation of his constitutional rights. ECF No. 1. The parties have been engaged in discovery since December of 2018. ECF No. 21-1 at 7. On February 12, 2019, Plaintiffs filed a motion to compel discovery against Defendants because Defendants had not provided initial disclosures or timely responses to Plaintiffs’ discovery requests. ECF No. 21. On April 9, 2019, this Court ordered Defendants to comply with Plaintiffs’ initial discovery requests within fourteen days, without objections, except for privilege. ECF No. 31 at 4–6.
Plaintiffs filed a second motion to compel on May 6, 2019, in which Plaintiffs argued that Defendants refused to provide responsive discovery on specific topics. After the motion was filed, Defendants retained new counsel, and agreed to provide much of the requested discovery. Therefore, the Court denied Plaintiffs’ second motion to compel as moot. ECF No. 63.
Now, Plaintiffs have filed a third Motion to Compel, arguing that Defendants still have not complied with the Court's April 9, 2019 Order directing Defendants to respond to Plaintiffs’ discovery requests within fourteen days. Plaintiffs allege that Defendants have failed to comply with the Order in several ways. First, Plaintiffs argue that Defendants have failed to properly search for electronically stored information (ESI) responsive to their discovery requests:
It appears from Defendants’ answers that they have made no effort to search for ESI pertaining to ... topics covered by Plaintiffs’ discovery requests, such as Defendants’ policies and procedures regarding medical care and referrals for jail detainees (Request for Production No. 3), staff training (RFP No. 11) ... documents reflecting any prospective risk-management analysis performed with regard to inmate deaths (RFP No. 19), and documents expressing concerns or questions related to healthcare budget overages (RFP No. 25).
ECF No. 69 at 4–5. Plaintiffs also argue that Defendants have not produced “documents pertaining to audits of jail medical services (RFP No. 12), [or] documents pertaining to allegations and complaints regarding inadequate healthcare at the jail (RFP No. 16).” Id. Regarding these two requests for production, Plaintiffs demand responsive ESI as well as physical documents. See ECF No. 69-1 at 3.
Defendants counter that they already have provided full responses to some of Plaintiffs’ requests and that they are in the process of supplementing other responses. See e.g., ECF No. 75 at 5. On November 12, 2019, after the instant motion was filed, Defendants submitted four declarations that they claim provide complete responses to “the vast majority” of Plaintiffs’ outstanding requests. ECF No. 75 at 9; see ECF No. 76.
A. Electronically Stored Information
*2 Due to Defendants’ continually supplemented and potentially inaccurate responses, it is difficult for the Court to parse exactly which ESI Defendants have searched and the methods they have used. For instance, Plaintiffs’ Interrogatory Number 20 asked Defendants to identify with specificity the steps they took to locate all responsive ESI. Defendants reported that they had searched “email accounts for all current and former employees ... for all sent and/or received messages between March 2016 and December 2016 for the term ‘Moreno.’ ” ECF No. 75 at 5. However, on November 12, 2019, Wellpath/ CCS's Information Technology Security Manager, Richard Strickland, submitted a declaration explaining that nearly all email accounts belonging to former employees were purged beginning in February of 2019. “Starting in February 2019, the email account of every employee whose employment ended prior to this date, and whose account was not placed on legal hold, was permanently wiped from the Wellpath Email System” and from any backup storage device. ECF No. 76 at 10. Mr. Strickland explains: “To my knowledge ... the only legal hold placed on an employee who worked at the Benton County Jail in March 2016 related to Ashley Castaneda. On November 12, 2019, I sent all emails recovered from Ashley Castaneda's email account that include the word ‘Moreno’ to Jack Severson, Wellpath Litigation Manager, as well as Christina Fanning, Wellpath Litigation Paralegal.” Id. In light of Mr. Strickland's recent declaration, it appears that Defendants did not in fact search the email accounts of former employees until November of 2019, after this Motion to Compel was filed, and after most of the accounts were permanently deleted.[2]
Additionally, Defendants stated that they searched two servers for budget information generated between 2014–2016 in response to Plaintiffs’ initial discovery requests. See ECF No. 75 at 5. However, according to Anthony Cherry, Accounting Manager for Local Government Healthcare at Wellpath/ CCS, he still is attempting to retrieve responsive information, and anticipates that it “may take some time given that the task requires investigation of Correct Care Solution's old server.” ECF No. 76 at 6–7. Defendants do not explain why this information, which the Court ordered Defendants to produce in April of 2019, has not been produced in a timely fashion.
Additionally, on November 26, 2019, in a supplemental response to Plaintiffs’ instant motion to compel, Defendants produced the declaration of Christina Fanning, CCS's litigation paralegal. ECF No. 81. This declaration was provided to further explain the steps that Defendants have taken to search their ESI. Ms. Fanning states that, in May of 2019 (after the email accounts of former CCS employees were permanently deleted), she searched the “email accounts of 15 different CCS/ Wellpath employees who worked at the Benton County Jail in March 2016.” Id. at 6. She only searched those accounts for the term “Moreno,” and she primarily found information related to Mr. Moreno's mortality review. Id. Additionally, Ms. Fanning states: “CCS/Wellpath does not possess any text messages or voicemail messages of any employee at the Benton County Jail in March 2016” because Benton County Jail owned and operated the phones in the facility. Id. at 7. Ms. Fanning concludes by asserting that she is not aware of any electronically stored information that has not already been produced in this litigation. Id. at 7.
Plaintiffs argue that they have been prejudiced throughout litigation because Defendants have not searched their ESI adequately. ECF No. 69 at 5. For instance, Plaintiffs argue that they learned of responsive emails during a deposition of one of CCS's former employees. However, because Defendants did not produce the allegedly responsive emails, Plaintiffs could not question the deponent about them. Id.
B. Request for Production Number 12: Documentation Regarding Audits
Plaintiffs also argue that Defendants have not complied with Request for Production Number 12, which states: “Produce all audits of the Benton County Jail medical services conducted at any time after CCS began providing services at the Benton County Jail, together with all documents and materials generated in connection with or in response to any such audit.” ECF No. 21-1 at 46. Defendants submitted the declaration of Linda Gehrke, who is the prior Regional Manager and Regional Director of Operations for Wellpath/CCS. ECF No. 76 at 16–18. The declaration was signed on November 12, 2019. Ms. Gehrke states: “To the best of my knowledge, there were no outside audits of Benton County jail medical services and Wellpath/CCS was not subject to any outside audit or review of medical services at Benton County Jail. CCS was not subject to outside accreditation.” Ms. Gehrke does not explain how she learned this information. According to Defendants, this late response satisfies RFP No. 12 completely.
C. Request for Production Number 16: Complaints Regarding Inadequate Healthcare
*3 Additionally, Plaintiffs maintain that Defendants have not answered Request for Production Number 16 adequately. That request for production requires Defendants to “[p]roduce all documents pertaining to any allegation, grievance, complaint, or investigation (formal or informal) that any person was not provided with appropriate health care at the Benton County Jail since [CCS] first began providing services at Benton County Jail.” ECF No. 21-1 at 47. Defendants argue that the declarations of Ms. Gehrke and Dawn Ducote, together, fully respond to Plaintiffs’ request. Ms. Gehrke states that she does not remember “ever receiving or seeing any allegation, grievance, complaint, or investigation that any specific inmate was not provided with appropriate health care ... other than Mr. Moreno.” ECF No. 76 at 17. Ms. Ducote, the Director of Continuous Quality Improvement for Wellpath/ CCS, states that she reviewed a database of all complaints concerning healthcare, “whether formal or informal,” and found no complaints “made by a patient at Benton County Jail at any point in time that [Wellpath/ CCS] serviced this facility.” Id. at 14. Both declarations reference complaints made by patients only, not staff, the Benton County Sheriff's Office, or others. Defendants read the request narrowly, to include only complaints or investigations that pertain to a specific inmate, whereas Plaintiffs’ request is broad, to include all complaints about the status of healthcare provided by Defendants at the Benton County Jail in general.[3]
DISCUSSION
A. Motion to Compel
A party may move to compel discovery when another party has failed to adequately respond to a discovery request. Fed. R. Civ. P. 37(a)(3). If a party provides an incomplete answer, the Court must treat it as a failure to respond. Fed. R. Civ. P. 37(a)(3)(B)(iv). Regarding requests for production, parties have an obligation “to produce all specified relevant and non-privileged documents tangible things, or electronically stored information in [their] ‘possession, custody, or control’ on the date specified.” Gorrell v. Sneath, 292 F.R.D. 629, 632 (E.D. Cal 2013) (citing Fed. R. Civ. P. 34(a)); see also Stolz v. Travelers Commercial Ins. Co., 2019 WL 4392446, at *4 (Sept. 13, 2019). “[I]t is well settled that a party responding to a discovery request ‘has a duty to make a reasonable search of all sources reasonably likely to contain responsive documents.’ ” MGA Entm't, Inc. v. Nat'l Prods. Ltd., 2012 WL 12886446, at *2 (C.D. Cal. Jan. 26, 2012) (quoting White v. State Farm Mut. Auto. Ins. Co., 2011 WL 3423388, at *2 (M.D. La. Aug. 4, 2011)) (emphasis in original). If the responding party asserts that no responsive documents exist, then the responding party should state that claim with “sufficient specificity to allow the Court to determine whether the party made a reasonable inquiry and exercised due diligence.” Hisle v. Conanon, Case No. 1:17-cv-01400-LJO-SAB (PC), 2018 WL 4444959, at *4 (E.D. Cal. Sept. 14, 2018) (citing Uribe v. McKesson, No. 08cv1285 DMS (NLS), 2010 WL 892093, at *2–3 (D.D. Cal. Mar. 9, 2010)).
First, the Court addresses whether Defendants have produced all responsive ESI in their control. Defendants’ briefing and accompanying declarations from various employees illustrate that they still have not produced responsive ESI. For instance, Mr. Cherry states that he still is looking for responsive budget information, and that it “may take some time given that the task requires investigation of Correct Care Solution's old server.” ECF No. 76 at 6–7. Moreover, given Defendants’ inconsistent answers about which ESI they have searched, the Court does not find that Defendants have complied with their duty to search all sources likely to contain responsive documents. Additionally, while the Court is not aware of the exact methods Defendants used to search for relevant ESI, the detail they have provided indicates that their methods are not sophisticated or thorough enough to reasonably locate all responsive documents. Therefore, Defendants have not complied with the April 9, 2019 Order compelling discovery.
*4 Ms. Gehrke's declaration, submitted after the instant motion was filed, claims that “there were no outside audits of Benton County jail medical services and Wellpath/CCS was not subject to any outside audit or review of medical services at Benton County Jail.” ECF No. 76 at 16–18. As the former Manager and Regional Director of Operations for Wellpath/CCS, Ms. Gehrke likely has personal knowledge of CCS's audit history. However, when a party asserts that no responsive documentation exists, the responding party must provide enough information to demonstrate that it exercised due diligence in responding to the discovery request. Hisle, 2018 WL 4444959, at *4. Ms. Gehrke's short statement, especially in light of Defendants’ failure to provide timely and complete ESI, is insufficient for the Court to conclude that Defendants exercised due diligence in responding to this request.
The Court now turns to Plaintiffs’ request for “any allegation, grievance, complaint, or investigation (formal or informal) that any person was not provided with appropriate health care at the Benton County Jail.” The primary responsive document to which Defendants point is Ms. Ducote's statement that she searched a database of complaints and found no complaints made by any “patient at Benton County Jail.” ECF No. 76 at 14. Defendants construe Plaintiff's request for production too narrowly, as it does not ask solely for complaints made by patients about inadequate healthcare. Rather, it asks for “any allegation, grievance, complaint, or investigation.” This includes complaints made by staff, family members, and others. Therefore, Defendants have not provided a complete response to Plaintiffs’ RFP No. 16.
B. Motion for Sanctions
Plaintiffs also request that the Court sanction Defendants by holding them in contempt of the April 19, 2019 discovery order and by requiring them to pay Plaintiffs’ attorneys’ fees incurred in bringing this Motion to Compel. ECF No. 69 at 11 (citing Fed. R. Civ. P. 37(b)(2)(A)(vii)). Pursuant to Rule 37(b), the Court may sanction a party who has failed to comply with a court order regarding discovery. Rule 37 provides courts with discretion to fashion an appropriate order in response to a party's failure to comply. Possible sanctions include holding a disobedient party in contempt of court. Fed. R. Civ. P. 37(b)(2)(vii). Additionally, if the Court finds that a party has not complied with a discovery order, the Court “must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).
Despite having over eight months, Defendants have not complied fully with this Court's prior discovery order by providing complete responses to Plaintiffs. Additionally, Defendants have not requested an extension of deadlines, or otherwise explained why they have waited so long to search for and produce responsive documents. While the Court acknowledges that this litigation has been complicated by the retention of new counsel and that Defendants have spent many hours providing responsive documents in this matter, Defendants’ failure to comply with this Court's prior order, more than eight months later, is unacceptable. Additionally, the Court does not find that Defendants’ failure is substantially justified, or that other circumstances make an award of expenses unjust pursuant to Rule 37(b)(2)(C). Given these findings, Rule 37 requires Defendants to pay Plaintiffs’ reasonable expenses, including attorneys’ fees, associated with bringing their Third Motion to Compel. Fed. R. Evid. 37(b)(2)(C).
Plaintiffs have provided the Court with information regarding their attorneys’ fees for the instant motion. Hank Balson, counsel for Plaintiffs, spent approximately 10.7 hours drafting and editing the instant motion, his declaration, and the proposed order. ECF No. 69-2 at 5. Based on his experience, he requests $450 per hour. Id. Defendants have raised no objection to this rate in their briefing. Upon review of Counsel's declaration, which outlines his experience, the Court finds that $450 is a reasonable hourly rate. See id. at 5–6. Additionally, Edwin Budge, counsel for Plaintiffs, spent 4.5 hours assisting with the drafting and editing of Plaintiffs’ reply, reviewing Defendants’ response materials, and preparing his declaration. ECF No. 78 at 4. This Court previously has found that a reasonable hourly rate, in light of Mr. Budge's experience, is $550 per hour. ECF No. 63. At 5. Therefore, Defendants shall pay Plaintiffs $7,290 in attorneys’ fees related to this motion.
*5 Accordingly, IT IS HEREBY ORDERED:
1. Plaintiffs’ Third Motion to Compel, ECF No. 69, is GRANTED.
2. Defendants CHC and CCS are in contempt of this Court's Order Granting Plaintiffs’ Motion to Compel, dated April 9, 2019, at ECF No 31.
3. Within three days of the date of this Order, counsel for Defendants CHC and CCS shall confer with counsel for Plaintiffs and agree on a reasonable plan for Defendants to follow in order to locate all ESI responsive to Plaintiffs’ discovery requests, including e-mails, word processing documents, PDFs, database information, and other electronically stored information. This plan shall include, at a minimum, the location where such information is likely to be stored, the identity of the person or persons to conduct the search, the search terms to be used, and the form or forms in which the responsive materials shall be produced.
4. Defendants CHC and CCS shall execute the ESI search plan agreed to by counsel and produce all responsive materials to Plaintiffs at a mutually agreeable date, but no later than thirty days from the date of this Order.
5. Defendants CHC and CCS shall submit to Plaintiffs’ counsel a certification, signed under penalty of perjury by the person or persons who conducted the search for responsive ESI, describing specifically how the search was performed, what locations were searched, who performed the search, and the search terms that were used. This certification shall be served on Plaintiffs’ counsel at the same time that Defendants produce the responsive materials.
6. Defendants CHC and CCS shall search for and produce all documents, including ESI, responsive to Plaintiffs’ RFP No. 16, no later than thirty days from the date of this Order.
7. Defendants CHC and CCS shall supplement their response to RFP No. 12 by providing responsive documents, including ESI, no later than thirty days from the date of this Order. If no responsive documents exist, Defendants must provide detailed information that would allow Plaintiffs’ counsel to assess such a claim.
8. Pursuant to Federal Rule of Civil Procedure 37(d)(3), within thirty days of the date of this order Defendants CHC and CCS shall pay $7,290 to Plaintiffs’ counsel to compensate them for the reasonable attorneys’ fees incurred by Plaintiffs in connection with this motion.
IT IS SO ORDERED.
Footnotes
The Court will refer to both Defendants collectively as “CCS,” which is consistent with the parties’ briefing. Certain employees of CCS also refer to CCS as “Wellpath.”
Based on a joint filing at ECF No. 79, the Court understands that Plaintiffs may file a separate motion under Fed. R. Civ. P. 37(e) regarding potential spoliation of ESI in this matter. Additionally, Plaintiffs’ instant motion does not request relief on the grounds that Defendants destroyed evidence. Therefore, the Court only addresses whether Defendants have responded to Plaintiffs’ discovery requests in this Order.
Plaintiffs’ broad interpretation of RFP No. 16 is illustrated by their argument that a particular letter from the Benton County Sheriff's Office is responsive to their discovery requests. See ECF No. 69-2 at 55. This letter was discovered through a public records request conducted by Plaintiffs. In the letter, Benton County official Lieutenant Shelton writes that CCS nurses “are making mistakes and putting the Benton County Sheriff's Office in a position of liability form (sic) a medical standpoint.” Id. at 56. Lieutenant Shelton also complains, “We have experienced a continuous state of inconsistency amongst nursing staff and knowledge of CCS policies, procedures, and EMR operations.” Id. at 55. The letter is only responsive to Plaintiff's discovery requests if RFP 16 is read broadly, to include complaints made about the status of healthcare provided by CCS in general.