*1 THIS MATTER is before the Court on Plaintiff/Relator's Motion to Compel Complete Discovery Responses (Dkt. 37) and Defendant's response in opposition (Dkt. 45). For the reasons that follow, Plaintiff's Motion to Compel is granted in part and denied in part.

In the Second Amended Complaint (“SAC”), Plaintiff, qui tam relator Martin T. Girling, D.P.M. (“Relator”), alleges that Defendant, Specialist Doctors’ Group, LLC (“Defendant”), improperly billed patients for podiatric services by 1) fraudulently upcoding evaluation and management (“E/M”) services (for example, by using a higher CPT code[1] than appropriate); 2) billing patients for E/M services that were never rendered; and 3) improperly using a modifier to enable billing where no billing should have been done. (Dkt. 47.)

According to the SAC, Relator is a podiatrist who sold his practice to Defendant in November of 2010. (Dkt. 47 ¶¶ 18–20.) After the sale of his practice, Relator worked for Defendant as a contract employee until June of 2017. (Dkt. 47 ¶ 21.) As previously summarized by the Court:

United States v. Specialist Doctors’ Grp., LLC, No. 817CV2647T24JSS, 2020 WL 7138566, at *2 (M.D. Fla. Dec. 7, 2020).

As a result, in November 2017, Relator filed this lawsuit, asserting two claims against Defendant under the False Claims Act (“FCA”). (Dkt. 1.) In the SAC, Relator first alleges that Defendant violated 31 U.S.C. § 3729(a)(1)(A) by presenting false claims for payment to the government.[2] (Dkt. 47 ¶¶ 46–49.) Second, Relator alleges that Defendant violated 31 U.S.C. § 3729(a)(1)(B) by making or using a false record or statement material to a false claim. (Dkt. 47 ¶¶ 50–52.)

Under Federal Rule of Civil Procedure 26, parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). In determining proportionality, the court considers several factors, including 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). Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). Notably, although the scope of discovery is broad, “the discovery rules do not permit the [parties] to go on a fishing expedition.” Porter v. Ray, 461 F.3d 1315, 1324 (11th Cir. 2006).

*2 A party, “[o]n notice to other parties and all affected persons,” may move to compel discovery. Fed. R. Civ. P. 37(a)(1). “The Federal Rules of Civil Procedure strongly favor full discovery whenever possible,” but the trial court “is given wide discretion in setting the limits of discovery.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985); Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984) (“Case law states that a motion to compel discovery is committed to the discretion of the trial court”). “The party resisting discovery has the burden to show that the requested discovery is not relevant and that the production of such discovery would be unduly burdensome.” Benavides v. Velocity IQ, Inc., No. 8:05-CV-1536-T-30, 2006 WL 680656, at *2 (M.D. Fla. Mar. 15, 2006).

Relator seeks an order requiring Defendant to respond to seven requests for production and three interrogatories. (Dkt. 37.) Defendant opposes the relief requested, primarily arguing that Relator's discovery requests are overbroad, unduly burdensome, seek materials not reasonable accessible, and, in the alternative, that the requests should be limited by specialty, temporal scope, and geographic area. (Dkt. 42.) Defendant separately argues that the requested discovery should be denied because Relator has yet to state a claim against Defendant. (Id.)

As an initial matter, the Court notes that after Relator filed his Motion to Compel in September 2020, he filed the SAC with leave of court on October 29, 2020. (Dkt. 47.) Although Defendant moved to dismiss the SAC, the Court has since denied Defendant's Motion to Dismiss. (Dkts. 49, 57.) Thus, Defendant's argument that Relator is not entitled to discovery in the absence of any pending claim is moot. However, as set forth below, the Court finds that the challenged discovery requests must be limited to obtain only information that is relevant to the claims and defenses at issue and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1).

I. Requests for Production

Relator moves to compel responses to Request Nos. 1, 2, 3, 4, 7, 12, 13, and 15. (Dkt. 37 at 5–10.) In addition to its previously stated objections, Defendant argues that the requested information is not reasonably accessible as defined by Rule 26(b)(2)(B). (Dkt. 42 at 5–8.) In support, Defendant relies on the affidavit of its Chief Financial Officer, Sultan Chaudry, who generally attests that responding to Relator's discovery requests would require generating reports for each patient that include each date during which the patient received service or treatment. (Dkt. 42-1 ¶¶ 3–9.) Chandry further attests that, at 5–10 minutes per patient, this process would require approximately 500 hours and cost roughly $15,000, not including attorney's fees associated with reviewing the documents produced. (Dkt. 42-1 ¶¶ 10–16.) Defendant further argues that the discovery requests are overbroad because Defendant is a multi-specialty office with multiple locations. (Dkt. 42 at 6.)

As other courts in the Eleventh Circuit have noted in addressing the scope of discovery in qui tam actions, “[t]he starting point for ascertaining whether or not discovery may be had on a topic is the Complaint and the defenses.” United States v. Am. Intercontinental Univ., Inc., No. 1:08-CV-2277-RWS-LTW, 2012 WL 12878365, at *1 (N.D. Ga. Jan. 20, 2012) (citing Fed. R. Civ. P. 26(b)(1), 2000 Advisory Committee Notes). For example, in United States v. R&F Props. of Lake Cnty., 433 F.3d 1349, 1359 (11th Cir. 2005), the Eleventh Circuit held the district court misconstrued the False Claims Act when it limited discovery to the term of relator's employment where the complaint alleged that defendant submitted false claims from at least the time of relator's hiring into the undefined future. Similarly, courts in the Middle District of Florida have rejected the argument in False Claims Act cases that production should be automatically limited to the facilities at which the relator worked or the time period when the relator was employed with the defendant. See, e.g., United States v. CMC II, LLC, No. 8:11-cv-1303-T-23TBM, 2015 WL 12915543, at *3 (M.D. Fla. May 19, 2015) (noting rejection of limitations sought by defendants that production should come from only the two facilities in Florida at which relator worked and that the temporal scope should be the five-month period in which relator worked at the facilities).

*3 Here, the Court finds that the general limitations on the scope of discovery proposed by Defendant are not consistent with the allegations contained in the SAC. In making this finding, the Court notes that the SAC alleges that Defendant fraudulently billed Medicare for E/M services when no E/M services were rendered; (2) fraudulently upcoded E/M services billed to Medicare; and 3) improperly used Modifier 25 to bill Medicare for E/M services when Defendant should not have done so based on the patient's visit.[3] (Dkt. 47 ¶¶ 32–43.) The SAC alleges specific examples of fraudulent billing based on Relator's knowledge from March 2014 through June 2017. (Dkt. 47 ¶¶ 32–43.) The SAC further alleges that a review of publicly available data suggests Defendant has upcoded certain CPT codes since 2012. (Dkt. 47 ¶¶ 41–42.) The SAC alleges that the Government “has paid and continues to pay the claims that would not be paid but for Defendant's false and fraudulent claims for reimbursement.” (Dkt. 47 ¶ 48.) Relator's discovery requests define the relevant time period as January 1, 2012 to the present. (Dkt. 37-1 at 5.)

Based on the allegations contained in the SAC, the Court defines the scope of discovery to include claims, coding, and billing made for medical services rendered at Defendant's four office locations from January 1, 2014 through December 7, 2020. This is the time period during which Relator specifically indicated that the alleged fraudulent billing occurred. Notably, the SAC also alleges upcoding of CPT codes generally, and not solely in connection with podiatric services. (Dkt. 47 ¶¶ 41–43.) In addition, the Court notes that the presiding District Court Judge has found that Relator's claims satisfy the particularity requirement of Rule 9. (Dkts. 57 at 8–11.) In summarizing Relator's claims, the presiding District Court Judge did not characterize the claims as being limited to podiatric services. (Dkt. 57 at 4–5.) Thus, the Court finds that it would be inappropriate to limit the scope of discovery to podiatric services solely based on Relator's specialty. See, e.g., R&F Properties of Lake Cty., Inc., 433 F.3d at 1359 (reversing discovery order that limited discovery to the time period when relator was employed by defendant).

Regarding the temporal scope of discovery, the Court finds that an appropriate end date is the date the Court denied Defendant's Motion to Dismiss Relator's Second Amended Complaint, December 7, 2020. (Dkt. 57.) As other Courts have noted in addressing discovery in cases brought under the False Claims Act, “[i]t is not manageable to permit the continued discovery of patient records, experts’ reviews of them, and deposition testimony about them through trial.” United States ex rel. Conroy v. Select Med. Corp., 307 F. Supp. 3d 896, 906 (S.D. Ind. 2018). Thus, based on the allegations contained in the SAC, and having considered what is proportional to the needs of this case, the Court sets January 1, 2014 through December 7, 2020 as the relevant time period for discovery purposes at this time.

Lastly, the Court rejects Defendant's argument that the cost of producing the requested discovery should be shifted to Relator because the information sought is not “readily accessible.” (Dkt. 42 at 5–8.) As previously noted, Defendant relies on the affidavit of its Chief Financial Officer, Sultan Chaudry, who attests that responding to Relator's discovery requests would require generating reports for each patient that include each date during which the patient received service or treatment. (Dkt. 42-1 ¶¶ 3–9.) This affidavit does not demonstrate that the records Relator requests are not readily accessible. Instead, the affidavit indicates that a search as to each patient is necessary to identify the responsive information. Notably, the information at issue primarily consists of claims and bills generated by Defendant. Defendant has not demonstrated that this information is not readily accessible or that performing the necessary search of its electronic billing records is not proportional to the needs of the case.

*4 Having defined the appropriate scope of discovery to include claims, coding, and billing made for medical services rendered at Defendant's four office locations from January 1, 2014 through December 7, 2020, the Court now turns to the specific discovery requests challenged by Defendant.

Request No. 1

Relator requested “[a]ll claims submitted by You to any federal health care program for any procedure or treatment with any of the following CPT codes: 11721, 99214, 11042, 99213, 99211, 99212.” Defendant objected to this request as vague, ambiguous, overbroad, unduly burdensome, unreasonable as to time and scope, and not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. 37 at 5.) For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to claims for medical services rendered at Defendant's four office locations from January 1, 2014 through December 7, 2020. Because protected health information is at issue, the parties are directed to agree upon the final form of a HIPAA qualified protective order and to submit the finalized HIPAA qualified protective order to the Court for approval by March 1, 2021.

Request No. 2

Relator requested “[a]ll claims submitted by You to any federal health care program for any procedure or treatment where a modifier was applied.” (Dkt. 37 at 5.) Defendant objected to this request as vague, ambiguous, overbroad, unduly burdensome, unreasonable as to time and scope, and not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. 37 at 5.) For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to claims for medical services rendered at Defendant's four office locations from January 1, 2014 through December 7, 2020.

Request No. 3

Relator requested “[a]ll patient statements prepared, submitted or transmitted by You.” (Dkt. 37 at 6.) Defendant objected to this request as vague, ambiguous, overbroad, unduly burdensome, unreasonable as to time and scope, and not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. 37 at 6.) For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to claims for medical services rendered at Defendant's four office locations from January 1, 2014 through December 7, 2020.

Request No. 4

Relator requested “[a]ll Superbills generated by You.” (Dkt. 37 at 7.) “Superbills” were created by a Defendant's physicians on a preprinted form or routing slip to record services or procedures provided to patients. (Dkt. 47 ¶ 23.) Defendant objected to this request as vague, ambiguous, overbroad, unduly burdensome, unreasonable as to time and scope, and not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. 37 at 7.) For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to billing or claims for medical services rendered at Defendant's four office locations from January 1, 2014 through December 7, 2020.

Request No. 7

Relator requested “[a]ny non-privileged communications between You and anyone relating to allegations of improper, false or erroneous medical coding or billing.” (Dkt. 37 at 8.) Defendant objected to this request as vague, ambiguous, overbroad, unduly burdensome, unreasonable as to time and scope, and not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. 37 at 8.) For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to nonprivileged communications related to allegations of improper, false or erroneous medical coding or billing for medical services rendered at Defendant's four office locations from January 1, 2014 through December 7, 2020.

Request No. 12

*5 Relator requested “[m]edical charts for any patient that underwent testing, procedure or treatment during the relevant time frame.” (Dkt. 37 at 8.) Defendant objected to this request as vague, ambiguous, overbroad, unduly burdensome, unreasonable as to time and scope, and not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. 37 at 9.) For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to medical charts within Defendant's possession, custody, or control for patients who received medical services at Defendant's four office locations between January 1, 2014 through December 7, 2020.

Request No. 13

Relator requested, “[a]ny documents reflecting reimbursements that You received for testing, procedures and treatment performed by You.” (Dkt. 37 at 9.) Defendant objected to this request as vague, ambiguous, overbroad, unduly burdensome, unreasonable as to time and scope, and not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. 37 at 9.) For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to documents reflecting reimbursements that Defendant received for testing, procedures, or treatment rendered at Defendant's four office locations between January 1, 2014 through December 7, 2020.

Request No. 15

Relator requested, “[a]ny Medicare Cost Reports, Form 2552, UB-4 or CMS-1450 submitted by You to the Centers for Medicare and Medicaid Services or any other governmental entity.” (Dkt. 37 at 10.) For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to Medicare Cost Reports, Form 2552, UB-4 or CMS-1450 submitted by Defendant to the Centers for Medicare and Medicaid Services or any other governmental entity for testing, procedures, or treatment rendered at Defendant's four office locations between January 1, 2014 through December 7, 2020.

II. Interrogatories

Relator further moves to compel better responses to Interrogatory No. 3, 4, and 7, which the Court addresses in turn below.

Interrogatory No. 3

Relator requested that Defendant:

(Dkt. 37 at 11.) In response to Interrogatory No. 3, Defendant produced a one-and-a-half page Medical Billing Handbook, which Relator argues does not sufficiently provide the information requested. (Dkt. 37 at 11–12.) Through its response, Defendant represents that its Medical Billing Handbook represents the entirety of its medical coding and billing procedures. At this time, the Court finds Defendant's response sufficient. Relator's Motion to Compel is therefore denied as to Interrogatory No. 3.

Interrogatory No. 4

*6 Relator requested that Defendant identify “any non-privileged communications with anyone regarding billing or coding errors or irregularities at [its] practice,” including the parties to the communication, the nature of the communication, the date of the communication, and the content of the communication. (Dkt. 37 at 12.) Defendant objected to this interrogatory as vague, ambiguous, overbroad, unduly burdensome, unreasonable as to time and scope, and not reasonably calculated to lead to the discovery of admissible evidence. (Dkt. 37 at 12.) Defendant further objected on the basis that there are continuous communications between its billing department, patients, and insurance providers. (Dkt. 37 at 12.) As stated in the interrogatory, however, the interrogatory is limited to communications regarding billing or coding errors or irregularities. For the reasons previously stated, Defendant's objections are overruled. Defendant's responsive production is limited to communications regarding billing or coding errors or irregularities for testing, procedures, or treatment rendered at Defendant's four office locations between January 1, 2014 through December 7, 2020.

Interrogatory No. 7

Relator requested that Defendant identify every person Defendant employed during the relevant time period, including the employee's name, job title, department, job duties, and last known address and telephone number. (Dkt. 37 at 13.) Defendant objected to this request as overbroad and provided only a list of employees in its billing department. (Dkt. 37 at 13.) Defendant further stated that Relator was prohibited from contacting these employees except through its counsel. (Id.)

The Court agrees that Interrogatory No. 7 is overbroad because it is not tailored to employees who may have knowledge regarding Defendant's billing or coding practices. Thus, the Court limits Interrogatory No. 7 to all employees with personal knowledge or experience regarding Defendant's coding or billing practices. Defendant must identify such employees who it employed between January 1, 2014 through December 7, 2020, and furnish their contact information and job title.

Regarding Defendant's argument that Relator's counsel is prohibited from contacting any of Defendant's employees except through defense counsel, the Court notes that “Rule 4-4.2 does not prohibit contact with all current employees,” only the specific types described, such as managerial employees. Hyde v. Storelink Retail Grp., Inc., No. 8:07-CV-240-T-30MAP, 2008 WL 11336635, at *2 (M.D. Fla. Apr. 8, 2008) (Moody, J.) (explaining that the Rule “plainly provides that contact is permissible unless the employee has managerial responsibility, regularly consults with the organization's lawyer, or is a person whose “act or omission in connection with the matter may be imputed to the organization.”); Russell v. City of Tampa, Fla., No. 8:16-CV-912-T-30JSS, 2017 WL 10296497, at *2 (M.D. Fla. Sept. 29, 2017) (denying defendant's motion for sanctions and noting that “it has not been shown that [defendant's former employee] is the type of employee with whom communication is forbidden by the Rules governing professionalism). At this time, however, there is no dispute pending before the Court regarding contact with particular employees of Defendant. In the absence of a specific dispute or motion, the Court declines to issue guidance regarding which employees Relator's counsel may contact with or without the involvement of defense counsel.

Accordingly, it is ORDERED:

DONE and ORDERED in Tampa, Florida, on February 3, 2021.

CPT codes are numbers assigned to every service that a medical practitioner may provide. The CPT codes are used by Medicare to determine the amount of reimbursement it will pay for a particular service.

The Government declined to intervene in this case. (Dkt. 17.)

Paragraph 47 of the SAC refers to “podiatry services” in alleging that Defendant violated the False Claims Act. (Dkt. 47 ¶ 47.) Read as a whole, however, the Court finds no indication that the SAC's claims or allegations of improper billing practices are limited to podiatry services.