U.S. v. Planned Parenthood Fed'n of Am., Inc.
U.S. v. Planned Parenthood Fed'n of Am., Inc.
2022 WL 19006564 (N.D. Tex. 2022)
September 8, 2022
Kacsmaryk, Matthew J., United States District Judge
Summary
The Court granted the Motion to Compel in part, ordering Relator to provide a privilege log by September 30, 2022. However, the Court did not compel Relator to amend the responses or order Relator's counsel to collect Relator's email inbox and image Relator's computer, as PPGC had not made a specific showing that Relator had omitted any Electronically Stored Information from the document production. The Court noted that any ESI for which Relator had asserted claims of privilege should be accounted for in the privilege log.
Additional Decisions
UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Defendants
v.
PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Defendants
2:21-CV-022-Z
United States District Court, N.D. Texas, Amarillo Division
Signed September 08, 2022
Counsel
Kenneth G. Coffin-DOJ, J. Scott Hogan-DOJ, Jamie Yavelberg, United States Attorney's Office, for Plaintiff, United States of AmericaAndrew Bowman Stephens, Heather Gebelin Hacker, Hacker Stephens LLP, for Plaintiff, Alex Doe, Relator
Christopher D. Hilton, Amy S. Hilton, Halie Elizabeth Daniels, Raymond C. Winter, Reynolds B. Brissenden, IV, Office of the Texas Attorney General, for Intervenor, The State of Texas
Joseph Scott St. John, Office of the Attorney General, for Movants, Louisiana Department of Health, Stephen Russo and Kimberly Sullivan
Leah Godesky, Amanda Santella, Anton Metlitsky, Craig P. Bloom, Danny S. Ashby, Justin Roel Chapa, Megan Renee Whisler, Ross Galin, O'Melveny & Myers LLP and Ryan Patrick Brown, Ryan Brown Attorney at Law, for Defendant, Planned Parenthood Federation of America, Inc.,
Christopher Mohr Odell, Alyssa Gerstner, Christian Sheehan, Craig D. Margolis, Diana Mahoney, Emily Reeder-Ricchetti, Jayce Lane Born, Marcus Asner, Matthew R. Diton, Megan Pieper, Meghan Martin, Paula R. Ramer, Ralf Owen Dunn, Tirzah Lollar and Valarie Hays, Arnold & Port Kaye Scholar LLP, and Ryan Patrick Brown, Ryan Brown Attorney at Law, for Defendants Planned Parenthood Gulf Coast Inc., Planned Parenthood of Greater Texas Inc., Planned Parenthood South Texas Inc., Planned Parenthood Cameron County Inc., Planned Parenthood San Antonio Inc.
Kacsmaryk, Matthew J., United States District Judge
ORDER
*1 Before the Court is Affiliate Defendants’ Motion to Compel to Relator (“Motion”) (ECF No. 134), filed on July 28, 2022. Having considered the parties’ briefing and applicable law, the Court GRANTS the Motion IN PART.
BACKGROUND
Relator Alex Doe alleges PPFA and its Texas and/or Louisiana affiliates violated state and federal law by falsely certifying their compliance with Texas and Louisiana Medicaid rules and regulations, and by failing to repay the government millions of dollars of Medicaid funds that they knew or should have known they were obligated to repay. On June 13, 2022, Planned Parenthood Gulf Coast, Inc. (“PPGC”) served its First Set of Interrogatories and Requests for Production. ECF No. 135 at 8. On July 13, 2022, Relator submitted responses to the discovery requests. Id. PPGC now moves the Court seeking an order: (1) compelling full and complete responses to PPGC's interrogatories and requests for production (“RFP”); (2) requiring that Relator follow a reliable, generally accepted method for identifying, collecting, and producing responsive documents; and (3) requiring that Relator verify the interrogatory responses. Id. at 10–11.
LEGAL STANDARD
Federal Rule of Civil Procedure 26 permits parties to obtain discovery regarding any nonprivileged matters that are both: (1) relevant to a claim or defense in the case; and (2) proportional to the needs of the case. FED. R. CIV. P. 26(b)(1). Control of discovery “is committed to the sound discretion of the trial court.” Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009) (quoting Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986)). “A party resisting discovery must show specifically how each interrogatory or document request is overly broad, unduly burdensome, or oppressive.” Heller v. City of Dallas, 303 F.R.D. 466, 490 (N.D. Tex. 2014) (citing McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)).
Rule 37(a)(3)(B) provides that a party seeking discovery may move for an order compelling production against another party when the latter has failed to answer interrogatories under Rule 33 or produce documents requested under Rule 34. See FED. R. CIV. P. 37(a)(3)(B)(iii), (iv). If a motion to compel is granted or responses are provided after filing of said motion, a “court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” FED. R. CIV. P. 37(a)(5)(A). But the court must not order this payment if “the opposing party's nondisclosure, response, or objection was substantially justified” or “other circumstances make an award of expenses unjust.” FED. R. CIV. P. 37(a)(5)(A)(ii), (iii).
ANALYSIS
A. Relator Must Provide a Privilege Log by September 30, 2022
Federal Rule of Civil Procedure 26(b)(5) provides that a party claiming a privilege “shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” In re Santa Fe Intern. Corp., 272 F.3d 705, 710 (5th Cir. 2001).
*2 PPGC does not dispute Relator expressly claimed privilege in response to PPGC's discovery requests. Rather, PPGC argues “[t]o the extent Relator possesses responsive documents that are legitimately privileged, [Relator] must provide a privilege log.” ECF No. 135 at 14. The Court agrees. However, Relator agreed to provide a privilege log. See id. at 15; ECF No. 148 at 3. PPGC moved for an order requiring Relator to provide the log by September 30, 2022, or within four weeks of completion of document production, whichever comes first. ECF No. 135 at 15. Relator did not oppose the proposed deadline in Relator's response to the Motion. See ECF No. 148. Therefore, Relator must provide a privilege log on or before September 30, 2022.
PPGC also argues the government investigative privilege is inapplicable and that the common-interest privilege does not apply to any communications between Relator and Texas prior to February 5, 2021. Id. at 12-13. The Court has already ruled on the applicability of these privileges. See ECF No. 162 at 6–8.
B. PPGC Has Not Shown Relator's Responses Are Inadequate
PPGC argues Relator's discovery responses are insufficient for the same reasons as its co-defendant, Planned Parenthood Federation, Inc. argued. ECF No. 131 at 19. The Court considered and rejected this argument. ECF No. 162 at 5–6. PPGC's argument fares no better. In short, PPGC must make an effort to review the proffered documents and offer evidence that the documents are unresponsive or not properly organized. Although it is true Relator may not simply direct PPGC to “all pages of all documents” Relator has produced, Relator has not done so here. ECF No. 135 (quoting Worrell v. Hous. Can! Acad., 424 F. App'x 330, 334 (5th Cir. 2011)). Instead, Relator referred PPGC “to the documents contained in the trial and appellate record in the federal court litigation involving Defendants referenced in Relator's Complaint, the documents referenced and/or produced by the State of Texas in response to Request No. 1 in Defendant's First Set of Requests for Production to the State of Texas, and documents produced by Relator at REL 000001-REL-010489.” ECF No. 135-3 at 11. Relator also agreed to provide and verify supplemental interrogatory responses addressing PPGC's concerns.[1] ECF No. 148 at 3–4. Therefore, PPGC has not shown Relator's responses are inadequate. The Court does not compel Relator to amend the responses.
C. PPGC Has Not Met Its Burden of Showing Its Requests Are Relevant
Generally, the scope of discovery is broad, and a discovery request is relevant “when the request seeks admissible evidence or is reasonably calculated to the discovery of admissible evidence.” Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 262 (5th Cir. 2011) (internal marks omitted). At the discovery stage, relevancy is broadly construed, and information is considered relevant if it “encompass[es] any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
“The moving party bears the burden of showing that the materials and information sought are relevant to the action or will lead to the discovery of admissible evidence.” Rotstain v. Trustmark Nat'I Bank, No. 3:09-CV-2384-N-BQ, 2020 WL 1697990, at *3 (N.D. Tex. Jan. 21, 2020), objections overruled, 2020 WL 1227063 (N.D. Tex. Feb. 20, 2020). “Once a moving party makes an initial showing of relevance, however, the party resisting discovery has the burden of showing why the requested discovery is irrelevant, overly broad, unduly burdensome, or privileged.” Id. (internal marks omitted).
*3 Here, PPGC argues Relator's “boilerplate objections” on relevancy and overbreadth grounds are deficient. ECF No. 135 at 17. The Court agrees boilerplate or unsupported objections are inadequate to voice a successful objection. See Heller, 303 F.R.D. at 483-84. However, PPGC misunderstands the nature of its burden. PPGC must first make an initial showing of relevance.
Interrogatory No. 9 requests Relator to identify — beginning with high school — the dates, locations, and names of institution or employer each and every place Relator has ever lived, studied, or worked. ECF No. 160-1 at 27. This interrogatory also requests Relator's reasons for leaving each institution or employer — including whether Relator was terminated or asked to resign, and why. Id. PPGC's offers two arguments that this is information is relevant. First, PPGC asserts the interrogatory “seeks basic demographic information that is routinely sought from parties in discovery.” ECF No. 160 at 5. Second, PPGC argues it is entitled to discover whether Relator has any prior education or work experience to form opinions that Planned Parenthood violated medical and ethical standards. Id. at 6. The Court finds both these arguments unpersuasive. And the Court has already held “this case turns on questions of law — not Relator's individual characteristics.”[2] ECF No. 79 at 8.
Similarly, Interrogatory No. 10 requests Relator to identify each and every civil, criminal, or administrative proceeding in which Relator has been accused of fraud, misrepresentation, false statement, perjury, theft, any other act of dishonesty, or recording a person without permission. ECF No. 160-1 at 28. PPGC argues this information is relevant because it “goes to Relator's character for truthfulness and could be used for impeachment purposes.” ECF No. 160 at 6 (citing Gonzalez v. Goodyear Tire and Rubber Co., No. CIV 05-941, 2006 WL 8444095 (D.N.M. July 28, 2006)). But Rule 26(b)(1) only requires parties to disclose information that is relevant to the claims and defenses in the case. And the 2015 amendment to Rule 26(b)(1) illustrates that evidence “offered solely for impeachment purposes is not discoverable.” IceMOS Tech. Corp. v. Omron Corp., No. CV-17-02575-PHX-JAT, 2020 WL 1905736, at *3 (D. Ariz. Apr. 17, 2020). Thus, PPGC's reliance on Gonzalez is improper. See also In re Williams-Sonoma, Inc., 947 F.3d 535, 539 (9th Cir. 2020) (noting the amendment was “intended to restrict, not broaden, the scope of discovery”).
Because PPGC has not met its burden under Rule 37, the Court does not compel Relator to amend the responses.
D. PPGC Has Not Made a Specific Showing That Relator Has Omitted Any Documents from Relator's Document Production
PPGC asks this Court to order Relator's counsel to collect Relator's email inbox and image Relator's computer out of concern that responsive documents are likely to be missed in Relator's document production. ECF No. 135 at 19–20. But “ordering forensic imaging or examination of a computer system ... generally requires a very particular showing” of deficiency in a party's production. McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 322 F.R.D. 235, 249 (N.D. Tex. 2016). The requesting party should make a showing, including through “the documents that have been produced,” that allows the Court to make “a reasonable deduction that other documents may exist or did exist and have been destroyed” or must “point to the existence of additional responsive material.” VeroBlue Farms USA Inc. v. Wulf, No. 3:19-CV-764-X, 2021 WL 5176839, at *9 (N. D Tex. Nov. 8, 2021).
*4 The Court agrees with Relator: “PPGC has made no showing that Relator's document production omits any ESI or that Relator has not complied with discovery obligations concerning ESI.” ECF No. 148 at 6. PPGC has only speculated that responsive documents “are more likely to be missed” because Relator's counsel “declined to provide additional information about the process that Relator is using to ensure all responsive documents are located and produced.” ECF No. 135 at 19. This is not the “very particular showing” that Rule 34 demands. And the Court disagrees that “Relator's productions to date have been facially deficient.” ECF No. 160 at 4. The documents PPGC argues are missing from Relator's production are those for which Relator has asserted claims of privilege and should be accounted for in Relator's forthcoming privilege log. Id. at 4—5. Accordingly, the Court does not order Relator's counsel to collect Relator's email inbox and image Relator's computer.
CONCLUSION
For the reasons stated above, the Court GRANTS the Motion IN PART. Because the Court has denied in part the Motion, the Court determines — under Federal Rules of Civil Procedure 37(a)(5)(C) and 26(c)(3) — the parties will bear their own expenses in connection with PPFA's Motion. See VeroBlue Farms USA Inc. v. Wulf, No. 3:19-CV-764-X, 2022 WL 1644442, at *23 (N.D. Tex. May 23, 2022).
SO ORDERED.
Footnotes
Because Relator has agreed to verify the responses, the Court need not compel Relator to do so.
In addition, parties must refrain from utilizing gendered pronouns for Relator. Alex Doe is a gender-neutral name, and nothing should be inferred from accidental use of the masculine default for pronouns.