*1 The defendants, who operate Brookdale Richmond Place, a long-term care and rehabilitation facility, were required to obtain annual certifications and undergo health inspections by the Commonwealth of Kentucky. [R. 27]. Additionally, they were required to complete and submit to the Center for Medicare and Medicaid Services (“CMS”) CMS Forms 671 and 672, which CMS used to calculate ratings for skilled nursing homes. Brookdale Richmond Place had an overall Five Star Rating as well as a Five Star Rating for direct care staffing, and for RN staffing. [R. 27]. This rating allows comparisons of nursing homes and their staff. [R. 27].

Carrie Johnson resided at Brookdale Richmond Place from November 20, 2017, until November 9, 2018. She brought this action alleging that the defendants overinflated the number of hours worked by direct care staff, including RN's, on CMS Form 671 so that the facility would receive a higher, Five Star Rating. She states that she relied on this rating in choosing to reside at the facility. She alleges that she and other similarly situated residents all suffered injury in the amount of the difference between the services they paid for versus the services they actually received, as well as other damages. In addition, she alleges that while a resident, she was not given proper care and as a result experienced poor hygiene, suffered infections including MRSA, that staff failed to properly clean a surgical wound, required hospitalization, and endured pain and suffering.

Several disputes have now arisen between the parties. On December 26,2 019, the plaintiff filed a motion to compel the production of documents. [R. 180]. However, because the procedure established by the Court's scheduling order requires a conference call with the undersigned before engaging in such motion practice, the undersigned denied the motion without prejudice and scheduled a telephonic conference to explore the possibility that the parties might resolve the issues by agreement. [R. 121]. Following the conference call, the plaintiff was granted leave to file a motion to compel, which is now ripe for review. [R. 196]. In addition, although some agreement was reached with the undersigned's direction and encouragement that required action by both parties, a number of matters not formally ruled upon are now before the Court because the Plaintiff remains unsatisfied with the Defendants' responses to discovery. As a result, the parties agreed to a submit informal statements on the second issue, so the Court could address all discovery disputes in a single order.

Aside from the procedural history described above, the analysis is aided by an understanding of how this case progressed to this point. On October 22, 2019, the plaintiff propounded one hundred twenty-one Requests for Production of Documents on the defendants. Those requests, including subparts, amount to approximately 251 separate requests. In the current dispute, the plaintiff now seeks to compel responses to the above and a number of additional responses to her requests for production. In response to the plaintiff arguments that the defendants have failed in their efforts to produce responsive documents, the defendants relate having responded by providing more than 20,000 pages of documents, representing that they are continuing to search for additional responsive documents and object to several requests.

*2 In reviewing the issues, the Court considers that the claims in the action: first, the plaintiff alleges that she and others similarly situated were fraudulently induced to reside at the defendant's facility, and second, that while there she received inadequate care resulting in physical harm and damages. Although the plaintiff is certainly entitled to discovery relevant to the parties' claims and defenses, a review of the multiple requests at issue leads to a finding that in the plaintiff's efforts to leave no stone unturned, she has requested the production of documents far beyond the realm of those necessary to demonstrate the merit of her claims or the lack of merit for any of the raised defenses. In addition, the requests she has tendered are in many ways duplicative of other requests, overbroad and vague.

One of the simpler of the disputed requests, for example, calls for the production of documents “reflecting disciplinary actions including reprimands and complaints by third parties for all persons employed at the facility during 2014-2018.” [RPD 68]. This request, however, is not limited to any person employed in any particular role, or individuals involved in the care of any particular patient, or even any disciplinary action against any employee that was involved in any way in the care of any particular patient. As a result, this example illustrates the overbroad nature of the plaintiffs' requests. Another example of the overbreadth and vagueness of the requests is found in RPD 80, which requests: “Please produce all internal memoranda, e-mails, or any other documents that reflect discussions of staffing issues at the facility during 2014-2018 not already produced in respond to any other request.” The issue in this case is the lack of staffing or inadequate staffing, or fraudulent misrepresentation that staffing would be at a particular level. This request, however, would encompass any discussion of an employee who might have arrived late because of a mechanical problem with an automobile, or need to arrange for coverage while taking a child to the doctor. While discussions regarding the number of healthcare providers on staff or how they provided the level of care they represented is certainly relevant, this request is simply broader than necessary.

In her motion to compel, the plaintiff seeks production of documents that, for example, “may be relevant” or “may lead to the discoverability of relevant information.” [R. 196, pp. 1, 2, 3, 5, 6, 8]. However, the rules of discovery in civil actions before the United States Courts “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” FED.R.CIV.P. 1. According to Rule 26(b)(1), information is discoverable if it is relevant to any party's claim or defense and is proportional to the needs of the case. FED.R.CIV.P. 26. The considerations that bear on proportionality include the “importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” FED.R.CIV.P. 26(b)(1). Ensuring that proposed discovery is proportional is a responsibility shared by the Court and the parties to an action. The Court, however, must limit the frequency or extent of proposed discovery, on motion or on its own, if it is outside the scope permitted by Rule 26(b)(1) “On motion, or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that ... the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED.R.CIV.P. 26(b)(2)(C)(iii). In other words, while the scope of discovery is broad under Rule 26, it is not without limits.

*3 Although in large part the Court finds the plaintiff's requests to be overbroad, vague and seeking documents not relevant to the issues, the Court will direct the defendants to answer the Request for Production regarding their financial condition. In this regard, the plaintiff moves to compel production of documents that will show how the money moves through defendants' corporate form thereby demonstrating the profitability of defendants' misconduct and the concealment of that misconduct by defendants. See, e.g., Giddings & Lewis, Inc. v. Indus. Risk Insurers, 348 S.W.3d 728, 747 (Ky. 2011) (Describing elements of fraud as, in part, knowledge of falsity or reckless disregard as to truthfulness.). The plaintiff argues that those documents are necessary to demonstrate plaintiffs' entitlement to punitive damages, which is a claim in the case. The plaintiff relies on Kentucky's statute on punitive damages, KRE 411.184, states:

Of the elements articulated in the statute above, the only one relevant to the current inquiry is the profitability of the defendant's misconduct. Thus, the profitability of the defendants' misconduct would be properly reflected in the cost that proper staffing would have cost the defendants, versus the cost of inadequate staffing that was allegedly provided to the plaintiff. For this reason, the Court finds that the plaintiffs request for a complete financial picture of the defendants for the time alleged is far more than is required to establish the plaintiffs damage claims. As correctly asserted by the Defendants, the Sixth Circuit has held that “[a]lthough a plaintiff should not be denied access to information necessary to establish her claim, neither may a plaintiff be permitted ‘to go fishing,’ and a trial court retains discretion to determine that a discovery request is too broad and oppressive.” Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (quoting Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978)). However, evidence of a defendant's current financial condition and net worth is relevant when considering the issue of punitive damages, but production of such information is normally limited to the most recent year or two. See In re Heparin Prod. Liab. Litig., 273 F.R.D. 399, 409 (N.D. Ohio 2011); Zielke v. Vision Hosp. Group, Inc., 1:14-CV-362-SKL, 2015 WL 9876950, at *3 (E.D. Tenn. Nov. 3, 2015); and Learjet, Inc. v. MPC Prods. Corp., No. 05-1074, 2007 WL 2287836, *4 (D. Kan. Aug. 8, 2007) (limiting discovery to most recent year) and S. Cal. Hous Rights Ctr. V. Krug, No. 06-1420, 2006 WL 4122148, *2 (C.D. Cal. Sept. 5, 2006) (limiting discovery to two-year period). As a result, the defendant should produce documents for a the most recent two-year period.

Therefore, for the reasons more fully described above,

IT IS ORDERED:

Signed By: