*1 This case was referred to the undersigned by Order of the court dated March 1, 2022 (Doc. No. 98).

This case involves two actions consolidated for discovery. The plaintiffs are Connecticut General Life Insurance Company and a related company (“CIGNA”). Plaintiffs are engaged in the business of providing medical insurance and administering health insurance plans. The defendants are a group of related companies that provided out of network medical testing services to CIGNA's customers (the “Labs”).

This case involves disputes between CIGNA and the Labs regarding payment for tens of thousands of medical tests performed by the Labs. Each side has a different count of the claims at issue (CIGNA 47,544, the Labs 38,595). Reduced to its simplest, this litigation involves claims for payment for medical tests performed by the Labs, an out of network medical testing provider. The Labs seek payment for unpaid tests it performed. CIGNA seeks a refund for all tests for which it has made payment. CIGNA alleges it is entitled to the refund because it was defrauded.

Each side issued document requests. Each side served written responses to the document requests in which they each objected to some of the requests. Thereafter, counsel for both sides engaged in lengthy and good faith negotiations to resolve the objections. The undersigned observed and, to a limited extent, participated in some of the meet and confer sessions. These motions to compel were filed by each side with respect to the few remaining unresolved objections.

Each side has filed a motion to compel and brief in support of its motion (Doc. No. 125 and 126) as well as a brief in opposition to the other side's motion to compel. (Doc. No. 130 and 131).

Following the filing of the motions and the briefs in support and in opposition, there was oral argument regarding the motions. The motions, briefs, responses, and arguments of the parties have been fully considered.

I. Labs’ Motion to Compel Responses to Document Requests (Doc. No. 125)

At issue on this motion are six separate document requests issues by the Labs and objected to by CIGNA. The arguments with respect to four of these document requests are identical and they will be treated as a group in this Recommended Ruling. During the argument, CIGNA withdrew its objection to one of the Labs’ document requests. The remaining request will be subject to separate analysis.

No. 2. “All documents relating to the invoices or other payment claims identified in Exhibits A, B & C.”

No. 4. “All documents relating to your non-payment of the invoices or other payment claims identifies in Exhibits A and B.”

No. 5. “All documents relating to your payment of the invoices identified in Exhibit C.”

No. 10. “All documents relating to the payment or nonpayment of invoices identified in Exhibits A, B, and C submitted to defendants by MBC Medical Business Choices doing business as ARC Medical Billing on behalf of the Plaintiffs.” (This request was made before the cases were consolidated. As used here, “Plaintiffs” refers to the Labs.).

*2 After extended discussions in an attempt to resolve the objections to these document requests, one objection remains. CIGNA objects that the production of the documents called for in the four above-quoted document requests on the grounds that they are “not proportional to the needs of the case.” (Doc. No.130, 8).

Federal Rule of Civil Procedure 26(b)(1) provides as follows:

Fed. R. Civ. P. 26(b)(1). The Labs argue that this objection should be overruled because CIGNA is asserting that claims for payment submitted on behalf of the Labs are fraudulent and if this were a case about a single “unpaid claim, CIGNA would be hard-pressed to explain why it should not produce the claim and invoice.” (Doc. No. 130, 9). This is not a case about a single claim, but tens of thousands of claims.

In support of its objection, CIGNA argues the following points: 1) CIGNA has already provided “all the relevant information” to the Labs in line level and claim level reports; 2) the documents have been archived and the process of locating and restoring these documents would be very expensive and extend discovery for many months; and 3) CIGNA has repeatedly asked the Labs why they “need” these documents. Even now, the Labs do not offer any reason why they “need” these documents. The “need” argument is even more compelling because CIGNA has already produced several thousands of these documents. If there was a “need” for these documents, it seems probable that the Labs would have found something missing or unique substantiating their “need” to see “all documents.” Nothing has been cited.

The documents subject to these requests are primarily documents called Explanation of Benefits and Explanation of Payments. CIGNA says one of each is issued by CIGNA with respect to each claim for payment or reimbursement under its policies or plans. According to a declaration under penalty of perjury, CIGNA represents that before archiving these documents, CIGNA recorded all the data on the documents into an active database. Thus, when the Labs asked for the information, CIGNA could and did provide it from its database. However, providing the now-archived documents would be very expensive and very time consuming. (Decl. of Wendy McKeon, July 8, 2022) (Doc. No. 130-9).

At the conclusion of the argument of these motions, counsel was asked to consider sampling these documents. According to the parties, there are somewhere between 38,595 and 47,544 claims at issue. Both sides recognize that the trial of these cases will not involve the presentation of evidence as to each claim. At some point, the parties will have to select a handful of representative claims. The parties disagree as to when that selection should be made. CIGNA urges that the selection should have been made long ago. The Labs object to sampling prior to the end of discovery. At the end of the discussion at the hearing, the parties requested time to consider sampling now, before a ruling on these motions. By letter dated September 8, 2022, the Labs advised that “the Labs maintain their opposition to a sampling protocol for discovery purposes.” (Doc. No. 142).

*3 While it was not argued by either side, there is authority for a court to require sampling during discovery. See, e.g., Solo v. United Parcel Serv. Co., 2017 WL 85832 (E.D. Mich. Jan. 10, 2017).

Since the Labs do not contest that they have all the relevant information and have not articulated any “need” for the documents, whereas CIGNA has established the difficulty, expense, and delay that producing these documents would impose, CIGNA's objections to document requests 2, 4, 5, and 10 are sustained.

While there was no record made of the oral argument of these motions, CIGNA appeared to withdraw its objection to the production of plans and policies at the very end of the argument. If this is incorrect, the parties should request further consideration of this document request and objections.

“All deposition transcripts in your possession related to any action by you or any third-party in which you allege a third-party medical services provider engaged in fee forgiveness, improper test charges, unbundling test charges, overutilization, or any other improper billing practices.”

CIGNA objects on the grounds that the information is not relevant to any claim or defense, not proportional to the needs of the case, and the request seeks confidential information subject to various protective orders.

CIGNA offers no facts to support its objections. Indeed, cases it cites are contradictory on which party has the burden to show relevance, the requesting party or the objecting party. Compare Torcasio v. New Canaan Bd. of Educ., 2016 WL 299009, at *2 (D. Conn. Jan. 25, 2016) (“The party resisting discovery bears the burden of showing why discovery should be denied.”), with Bagley v. Yale Univ., 315 F.R.D. 131, 144 (D. Conn. 2016) (“The burden of demonstrating relevance remains on the party seeking discovery.”)

The last sentence of Federal Rule of Civil Procedure 26(b)(1) states: “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).

In addition to there being an inadequate showing that the requested documents are not relevant, there is no factual showing as to proportionality or the prohibitions in protective orders in other cases.

The cases cited by CIGNA are distinguishable because the requests there are much broader. Nevertheless, the request as written appears a little broad. The purpose of a deposition in complex case can concern issues unrelated to the central issues of the case. Thus, the request for “all deposition transcripts in your possession” seems too broad. Without prejudice, it is recommended that this request be limited as follows:

“All deposition transcripts of CIGNA Rule 30(b)(6) witnesses, state law equivalent, or representative witnesses related to any action by CIGNA or any third-party in which CIGNA alleges that a third-party service provider engaged in fee forgiveness, improper test charges, unbundling test charges, overutilization or other similar improper billing practices.”

Issues of confidentially can likely be resolved by the parties, or, if necessary, with the undersigned or the court.

II. CIGNA's Motion to Compel (Doc. No. 126)

*4 There are two document requests at issue in this motion, CIGNA's document requests 49 and 50.

“Any and all Communications between You and any referring ‘licensed medical professional’ (as referenced in Paragraph 11 of the First Amended Complaint).”

As a result of the various meet and confer sessions, CIGNA agreed to revise its request as follows: “All relevant Communications [between You and any ‘licensed medical professional’] relating to drug testing services at issue and the arrangement for ordering those services.” (Doc. No. 126, 7).

The Labs object to this request on the following grounds: the documents are irrelevant and outside the scope of permissible discovery, the request is not proportional to the needs of the case, and production would require a re-review of documents previously reviewed and not produced.

Beyond the assertion that communications with licensed medical professionals are irrelevant, the Labs do not explain why communications with the sources of their business that is the subject of this litigation are irrelevant or “outside the scope of permissible discovery.”

In their Brief in Opposition, the Labs also contend that the Labs have “agreed to provide all orders and standing orders for the Labs’ services provided to CIGNA members.” (Doc. No. 131, 5).

The Labs argument seems to be that they have already produced hundreds of thousands of documents and millions of lines of data; they have expended significant amounts of time, energy, money, and other resources on discovery to date; and the Labs should not now be required to invest more time, energy, money, and other resources re-reading documents they have read at least once before.

The Labs do not cite any authority which would support the proposition that a single document request may be overruled because the totality of discovery in the case has been very expensive and time consuming.

The Labs objections to document request 49 are overruled.

The last sentence of the Labs brief on this document request states as follows: “In the event that this court finds that there should be further production, the Labs request that the production be in accordance with the Parties’ ESI protocol and permit the Parties to agree upon appropriate search terms to identify responsive documents.”

This suggestion seems reasonable as to electronically stored documents, but this request seeks, “communications” some of which may be preserved in other forms. If so, other search parameters may apply.

“Any and all agreements between You and any referring licensed medical professional” (as referred to in Paragraph 11 of the First Amended Complaint).

Based on the discussions during the meet and confer sessions, it is assumed that this document request is limited to the “licensed medical profession” who issued orders or prescriptions that are the basis for the claims for payment in this case.

The Labs reassert their arguments with respect to document request 49 and incorporate “their arguments above” (Doc. No. 131, 6).

*5 During argument Labs advised that there were approximately 50 “licensed medical professionals” sometimes referred to as providers.

Document request 50, as modified above, is allowed.

Finally, at the end of the discussion on document request 50, the Labs repeat their request regarding the procedure for the document search set forth with respect to document request 49, above. The same document search procedure agreed upon by the parties for document request 49 should apply to document request 50.

III. CONCLUSION

For the reasons stated herein:

The CIGNA objections to the Labs document requests number 2, 4, 5, and 10 are sustained.

CIGNA's objection to the Labs document request 14 has been withdrawn, therefore CIGNA shall provide/produce the responsive documents.

The Labs document request as modified is allowed and CIGNA shall produce the responsive documents.

The Labs objections to CIGNA's document requests 49 and 50 as modified herein are denied, and the Labs shall produce responsive documents to these requests as modified herein.

Any objection to this Recommended Ruling is due within 14 days of its entry on the docket.