*1 In this putative class action, plaintiffs allege defendants Essentia Health and Innovis Health LLC (collectively, Essentia) sold and administered injectable pharmaceuticals—time and temperature sensitive pharmaceutical products (TTSPPs)—that had been stored outside the proper temperature range. Plaintiffs contend the improper storage of TTSPPs resulted in “reduced vaccine potency and the increased risk of vaccine-preventable diseases.” (Doc. 28, p. 2). Essentia's answer admits that in April 2020, it advised patients who had received certain TTSPPs that the TTSPPs may have been subjected to a temperature excursion, potentially rendering them less effective. (Doc. 30, p. 2). During the time in question, the TTSPPs were stored at defendant Dakota Clinic Pharmacy (DCP).

Plaintiffs allege only economic loss, seeking to recover costs of health care they received related to TTSPPs. They move to compel Essentia to produce certain financial information, contending the form in which Essentia has responded to discovery requests does not allow plaintiffs to estimate damages of members of a putative class. (Doc. 146). Essentia responds that it has produced voluminous de-identified financial data directly responsive to plaintiffs’ discovery requests. Essentia further responds that plaintiffs have declined Essentia's invitation to take depositions to address questions about the process Essentia used for compilation and production of the data at issue. (Doc. 154). In their reply, plaintiffs maintain their position that Essentia has not provided sufficient relevant data and that the depositions Essentia suggests would not provide the needed data. Plaintiffs suggest a third-party consultant be permitted to “extract and anonymize the original source data.” (Doc. 155, p. 9).

Plaintiffs’ requests for production of documents to Essentia included requests for “All documents relating to the Disclosed Temperature Excursion” and for all associated communications between Essentia and “any person who paid for or received an Affected Medication.” (Doc. 146-2, p. 8). In their Request for Production of Documents No. 15, plaintiffs made a more detailed request for the following concerning putative class members:

Documents and data sufficient to identify:

Id. at 9.[1]

*2 Plaintiffs’ Requests for Production of Documents included the following “instruction”:

Id. at 6.

In response to plaintiffs’ requests, Essentia produced twelve spreadsheets covering two billing categories: Professional Billing and Hospital Billing. (Doc. 154, p. 3). Plaintiffs describe the twelve spreadsheets as including

(Doc. 146-1, p. 7 n.3). The spreadsheets include (1) categories of charges—account administration, office visit, and pharmaceutical type, (2) total account charges on day of service, and (3) categories of payments—patient and insurance. Id. at 8.

Essentia describes the spreadsheet data as having been extrapolated from its Clarity database using “Structured Query Language” (SQL). (Doc. 154, pp. 9-10). With its response to the motion, Essentia filed an affidavit of a Senior Business Intelligence Analyst describing databases Essentia uses to store electronic medical records and describing the process Essentia used to compile the spreadsheet data. The affidavit states that Essentia utilizes two EPIC integrated electronic databases, “Chronicles” and “Clarity,” for “storing, transferring, and analyzing data.” (Doc. 154-1, p. 2). Further, the affidavit explained:

Id. at 2 (paragraph numbers omitted). The affidavit describes SQL as a coding language used as a tool to query databases and describes a query as “a way to ask a database a specific question to return data responsive to the question posed.” Id.

*3 The affidavit explains the process Essentia used to gather the data reflected in the spreadsheets:

Id. at 2-3 (paragraph numbers omitted).

Plaintiffs contend the spreadsheets are incomplete, report limited data unilaterally selected by Essentia, and were not produced with the necessary underlying, contextual, or confirmatory documents. (Doc. 146-1, p. 4). More specifically, plaintiffs argue (1) Essentia did not comply with a court order requiring conferral on a mutually agreeable methodology for database searching; (2) the numbers within the spreadsheets’ subcategories do not add up to the totals provided for a category; (3) the data has been disaggregated and reaggregated in a manner that makes it “too convoluted to use”; (4) Essentia has not produced underlying documents plaintiffs need to test and validate the data; (5) without billing, payment, and service records, plaintiffs are not able to determine what charges and payments are related to services relevant to the case. Id. at 4-5. Plaintiffs posit examples of problems they perceive in the spreadsheets Essentia has produced: (1) the spreadsheets aggregate information in a manner resulting in plaintiffs being unable to determine whether a member of the putative class is included in more than one row or more than one spreadsheet; (2) lines of the spreadsheets list “Total Account Charges on Day of Service,” but the amount given as the total is greater than the sum of the individual charges listed in the line; (3) the Hospital Billing spreadsheets do not include itemized payments for subcategory charges, services, or class members, such that plaintiffs cannot determine whether payments received from insurers or patients relate to charges relevant to the litigation; (4) the data in the spreadsheets is not sufficient for plaintiffs to estimate payment amounts; (5) amounts identified as “Admin Charges” include all services performed on a given day, including other charges not at issue in the litigation. Id. at 8-14.

*4 Essentia's response describes the process it used to prepare the spreadsheets and attributes some of plaintiffs’ concerns to certain limitations in its database: (1) in its professional billing system, a matching payment exists for each charge, but in the hospital billing system, payments are not apportioned to specific charges; (2) if a patient received more than one medication or immunization on a given date, the administration charge attributable to each medication cannot be determined; (3) if a patient's office visit involved only an immunization or medication administration, no charge was made for an office visit; (4) the “Total Account Charges on Day of Service” includes charges other than those related to TTSPPs and so may be different from the sum of the subcategories listed on the spreadsheets; and (5) administration charges may have included charges for medications or immunizations other than the TTSPPs involved in this case. (Doc. 154, pp. 6-12).

Plaintiffs request that Essentia be ordered to produce four categories of information, which plaintiffs describe as:

(Doc. 146-1, pp. 20-21).[2] Additionally, plaintiffs ask that Essentia be ordered to meet and confer regarding the “scope, methodology, and adequacy of its production from Clarity.” Id. at 21.

Federal Rule of Civil Procedure 34(b)(2)(D) and (E) addresses production of electronically stored information:

When Rule 34(b) was amended in 2006, the Advisory Committee provided extensive notes concerning form of production of ESI:

Fed R. Civ. P. 34 advisory committee's note to 2006 amendment (emphasis added).

1. ESI Order

In addition to Rule 34(b), the court considers its Order Governing Discovery of Electronically Stored Information, which was entered early in the litigation and which includes the following provision relevant to this dispute:

(Doc. 46, pp. 16-17). Plaintiffs allege Essentia did not confer with them about the intended form of data production and contend Essentia therefore did not comply with the ESI Order. Essentia argues the ESI Order allowed it to opt to produce its databases in a spreadsheet in static format. Further, Essentia contends its “obligation to comply with the procedures of the ESI Order is secondary to Essentia's obligation to timely respond to Plaintiffs’ discovery requests under the Federal Rules of Civil Procedure.” (Doc. 154, p. 8). It is not clear whether Essentia intends that statement to refer to its time to respond to the discovery requests or to some asserted difference between its obligations under the Rules and its obligations under the ESI Order. This court does not view the parties’ obligation to comply with the ESI Order as “secondary” to the Rules; rather, the court views the ESI Order as delineating methods the parties are to use in responding to discovery requests in compliance with the Rules.

2. Court's Previous Order

*7 An earlier order addressed a dispute about plaintiffs’ requests for production of information sufficient to identify each person or entity who paid for any part of the TTSPPs at issue. Essentia objected, arguing that it could provide only de-identified data[3] without signed authorizations of its patients. Plaintiffs asserted patient data need not be de-identified because the existing protective order is a “qualified protective order” under the federal Health Insurance Portability and Accountability Act (HIPAA). The court concluded the existing order is a qualified protective order under HIPAA and authorizes, but does not mandate, Essentia's disclosure of patient-specific information that has not been de-identified. But when the earlier order was issued, the court found plaintiffs had not yet demonstrated that production of the data requested met proportionality requirements of Federal Rule of Civil Procedure 26(b)(1). (Doc. 76, pp. 13-14).

Citing to that earlier order, Essentia argues that the benefit to plaintiffs of production of the detailed information plaintiffs now request is not outweighed by the burdens to Essentia and its patients, including the psychological harm resulting from violation of patient privacy interests of members of the putative class. (Doc. 154, p. 11). Essentia argues plaintiffs now seek data unrelated to the TTSPPs in order to understand the “Total Account Charges on Day of Service” data. Id. at 10. Essentia characterizes plaintiffs’ current motion as a “colossal request ... not proportionate to the needs of this case.” Id. at 15.

Plaintiffs reply that they are not requesting patient names at this time even though the existing HIPAA-qualified protective order would authorize disclosure of patient names. (Doc. 155, pp. 8-9). But, if it is necessary for Essentia to provide patient-specific data in order to produce all of the data plaintiffs need to estimate damages of the putative class, plaintiffs have now shown need for that data. Whether the request now meets proportionality requirements of Rule 26 is discussed in the conclusion below.

3. Data in Reasonably Usable Form

If a request for production of data does not specify the form in which the requesting party seeks production, Rule 34(b)(2)(E) requires that data be produced either in the form in which it is ordinarily maintained or in a “reasonably usable form.” Comments to the Rule, the ESI Order, and the “instructions” of plaintiffs’ requests for production of documents all contemplated communication between the parties prior to production of Essentia's responses. That did not happen.

In summary, Essentia states it has produced information “reflective of the data the Clarity database was able to return in response to specific query” and that it has not altered or “cherrypick[ed]” the data. (Doc. 154, pp. 11, 16). Essentia insists the spreadsheet data “is the data; it is the ‘source’ data; it is the financial data.”[4] Id. at 13. Because of the manner in which Essentia maintains its data, Essentia acknowledges the spreadsheet data is over-inclusive in some respects. The spreadsheets may be under-inclusive in other respects.

*8 Essentia contends plaintiffs should take depositions if they wish to challenge the data or the process Essentia used to export the data. Plaintiffs respond that they should not be required to expend time and money to get the “basic information” they seek and that they could not reasonably be expected to obtain “substantive missing data” involving “thousands of financial data points” through depositions. (Doc. 155, p. 4). Though deposition questioning might provide more detail on how Essentia searched and produced the disputed data, a deposition would likely not be an efficient method of securing the additional data plaintiffs need to estimate damages of the putative class.

Notwithstanding the spreadsheet data being the data, plaintiffs have identified various ways in which that data is not sufficient to allow them to reasonably estimate damages of the putative class. The court agrees with plaintiffs’ assessment: the spreadsheet data is not in a reasonably usable form.

In considering the factors of Rule 26(b)(a), the court concludes plaintiffs have shown the importance of obtaining additional information to estimate damages of the putative class. The amount in controversy is significant and the issues in the case cannot be resolved without additional information about estimated damages. As to relative access to relevant information, plaintiffs have no direct access to Essentia's databases. The court recognizes, however, the burden to Essentia in providing additional data for all members of the putative class would be very significant. And it might be possible to provide the necessary data to plaintiffs without providing all of the patient information that comprises the “Total Account on Day of Services Charges.”

A remedy is in order. But the court will seek comments from the parties prior to ordering a specific remedy. Potential remedies might include one or more of the following: (1) the parties stipulating to a method for calculating damages of the putative class, (2) informal discussions between technical consultants plaintiffs may have retained and Essentia's business intelligence analysts, (3) a third-party technical consultant being allowed access to Essentia's database, (4) use of a court-appointed expert or special master, (5) Essentia providing more detailed data of a representative sample of members of the putative class, or (6) another remedy designed by the parties.

The parties are directed to confer, within five business days of the date of this order, to discuss the potential remedies the court has outlined as well as any other method that might be used to provide the additional information plaintiffs need to estimate damages of the putative class. The court encourages the parties to design a mutually acceptable resolution, but if they are not able to do so, the court will determine an appropriate remedy. The court will schedule a status conference shortly after expiration of the five-day period to discuss a remedy.

IT IS SO ORDERED.