*1 The court is called on to resolve another discovery dispute in this matter. On April 16, 2021, Relator Thomas Fischer (“Relator”) served his first set of interrogatories on Defendant Community Health Network, Inc. (“Community Health”). (Filing No. 347-2). Community Health elected to respond to Interrogatory Numbers 21 and 22 by invoking Federal Rule of Civil Procedure 33(d) and providing business records in lieu of a narrative response. The Relator believed Community Health's response failed to comply with Rule 33(d), so he sought then-Magistrate Judge Doris L. Pryor's intervention. After a series of discovery conferences, Magistrate Judge Pryor agreed that Community Health had not satisfied Rule 33(d)’s requirements, because its “answers to the Interrogatories cannot be determined from the documents and the burden of deriving the answer is not substantially the same for either party.” (Filing No. 462 at 11). Accordingly, she ordered Community Health to “provide complete, narrative answers to the Relator's Interrogatory Nos. 21 and 22, without reference to documents.” (Id.).

Pursuant to Federal Rule of Civil Procedure 72(a), Community Health filed an objection to the Magistrate Judge's order. For the reasons that follow, Community Health's objection is OVERRULED.

I. Background

This is a qui tam action. The Relator—Community Health's former Chief Financial Officer and Chief Operating Officer—alleges in his Second Amended Complaint that Community Health violated the False Claims Act, the Anti-Kickback Statute, the Stark Law, and Indiana state laws by “entering into improper arrangements and deals that resulted in [Community Health] paying above fair market value physician compensation to illegally induce physicians to refer Medicare, Medicaid and other government insurance patients to [Community Health's] hospitals and associated medical entities.” (Filing No. 134, Second Am. Compl. ¶ 2).

On April 16, 2021, the Relator served his first set of interrogatories on Community Health. (Filing No. 347-2). Interrogatory No. 21 directed Community Health to:

(Id. at 11). Interrogatory No. 22 directed Community Health to:

(Id. at 11–12).

Community Health sent Relator its Answers and Objections to Relator's First Set of Interrogatories on June 28, 2021. (Filing No. 347-3). As to Interrogatories 21 and 22, Community Health stated only an objection that the interrogatories were “overly broad, unduly burdensome, and not proportional to the needs of the case.” (Filing No. 347-3 at 24–25). Community Health later supplemented its answers on January 31, 2022. (Filing No. 347-6). Community Health's supplementation, in addition to maintaining its objection to the interrogatories, invoked Federal Rule of Civil Procedure 33(d) as to Interrogatory No. 21 and provided a chart labeled “Exhibit A” with references to documents which Community Health claimed contained the requested information. (Id.). For Interrogatory No. 22, Community Health provided narrative responses for a portion of the answers and lists of Bates numbers directing the Relator to seek answers in documents provided through discovery. (Filing No. 347-6 at 3–8).

Community Health stated that, for its responses to Interrogatories 21 and 22, it “created and produced multiple detailed spreadsheets and a comprehensive chart showing not only the final payment data for each of the subject physicians, practices, and entities, but also narratives describing the compensation paid and references to specific documents, identified by bates numbers, supporting the compensation paid.” (Filing No. 469 at 5). The Relator claimed that the answers “require the Relator to sift through and interpret more than 47,000 documents to guess at Community Health's answers.” (Filing No. 476 at 5).

Rule 33(d) provides in its entirety:

Fed. R. Civ. P. 33(d).

A Telephonic Status Conference was held on April 12, 2022, at which Magistrate Judge Pryor heard arguments from the parties on this discovery dispute. The Relator pointed the Magistrate Judge to multiple instances of inconsistent numbers in the documents provided and claimed that, due to these inconsistencies, the Relator was unable to locate answers to the interrogatories. (Filing No. 336 at 11–24). The Relator also noted that, for many of the subparts, Community Health stated it was “continuing to search for documents” which the Relator had never received and that such a response is inadequate under Rule 33(d). (Id. at 27:3–28:1). Lastly, the Relator argued that the nature of the documents makes them only comprehensible to people familiar with the documents, rendering the burden to retrieve answers from the documents substantially higher for the Relator than for Community Health. (Id. at 30:2–12).

*3 Community Health responded at the Status Conference by reiterating its objection that the interrogatories are overly broad and unduly burdensome, (id. at 31:1–9), and emphasizing that Community Health had expended considerable efforts to coordinate with the Relator to allow him access to the requested information, (id. at 37:9–16). Community Health further argued that Rule 33(d) is entirely appropriate for these types of interrogatories and that it was unnecessary for all numbers within the documents to “tick and tie” for the responding party to be in compliance with the rule. (Id. 38:9–39:13).

At the conclusion of the hearing, the court granted the Relator leave to file a Motion to Compel, (id. at 44:9–10), and the Relator did so on April 26, 2022, (Filing No. 351). The Magistrate Judge issued an Order on the Motion to Compel on November 29, 2022, in which she concluded that Community Health's supplemental response to Interrogatory Nos. 21 and 22 did not comply with Rule 33(d). (Filing No. 462 at 7). The Order explained that Community Health failed to meet the mandatory requirements of the rule because the interrogatory answers were not discernable from the documents and the burden on the Relator to obtain the answers was substantially greater than on Community Health. (Id.).

With regard to the first requirement, the Magistrate Judge noted that, at the April 12, 2022 Status Conference, the Relator “walked through records related to a physician named in the complaint, and showed how Community Health provided seventeen pages of Bates numbers, with no further information or instructions on how those documents answer the specific interrogatories asked.” (Id.). The Relator “also demonstrated how various documents reflected different numbers for the physician's compensation, with no explanation as to the differing amounts.” (Id.). Next, the Magistrate Judge stated portions of the interrogatories at issue were not amenable to a Rule 33(d) response, specifically noting that some subparts of the interrogatories “request information about how the particular metrics were calculated and applied to various physician's compensation and who made those decisions and calculations, and these types of questions cannot be answered easily by referencing numbers in a spreadsheet.” (Id. at 8). The Magistrate Judge concluded the Relator had put forward a credible argument that the answers could not be located in the documents provided. (Id.).

As to the Rule 33(d) requirement that the burden be substantially the same on the parties, the Magistrate Judge explained that “the Relator has no access to the employees who can make sense of these hundreds of thousands of pages of documents,” despite having been provided extensive spreadsheets and multiple Bates number references for each entity and subpart. (Id. at 10). She further noted that the documents “are not simple business records like solitary issue spreadsheets or tax returns, where both parties can navigate the information in the same manner and with the same level of difficulty.” (Id.). Accordingly, the Magistrate Judge found the burden on the parties of deriving or ascertaining answers was not substantially the same.

After finding Community Health failed to comply with Rule 33(d), the Magistrate Judge ordered it “to provide complete, narrative answers to Interrogatories Nos. 21 and 22, without reference to documents,” and further noted that if Community Health, “lack[ed] the knowledge or information to answer a particular interrogatory or subpart,” it was ordered to “state as such.” (Id. at 10–11).

*4 The Magistrate Judge set a compliance deadline of December 28, 2022, thirty days after the date of the order. (Filing No. 462 at 11). Community Health then filed an objection to the Magistrate Judge's order, arguing that it “applies a heightened standard of specificity for the invocation of Rule 33(d) that is inconsistent with the rule's plain language and intent.” (Filing No. 469 at 2). Community Health asked the court for a stay of the Magistrate Judge's order during the pendency of its objection, (Filing No. 470), which was granted, (Filing No. 481).

II. Standard of Review

Pursuant to Rule 72(a), a party may file an objection to a magistrate judge's decision on a non-dispositive pre-trial matter within 14 days. Fed. R. Civ. P. 72(a). “The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id. Under the clear error standard of review, “the district court can overturn the magistrate judge's ruling only if [it] is left with the definite and firm conviction that a mistake has been made.” Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997). An order is contrary to law when it “fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Henry v. Centeno, No. 10 C 6364, 2011 WL 3796749, at *1 (N.D. Ill. Aug. 23, 2011) (internal quotations omitted).

III. Discussion

The Magistrate Judge gave two independent reasons for why Community Health's supplemental response to the interrogatories failed to comply with Rule 33(d). First, the Relator put forward a credible argument that the requested information was not contained in the documents provided. (Filing No. 462 at 7). Second, the burden of deriving or ascertaining answers to the interrogatories was not substantially the same for both parties. (Id.). Either reason is sufficient to conclude the Magistrate Judge's decision was not clearly erroneous or contrary to law.

Under Rule 33(d), a party has the option to produce business records in response to an interrogatory “[i]f the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing” those records. Fed. R. Civ. P. 33(d) (emphasis added). Various courts have held the way in which the word “may” is used in Rule 33(d) “is not such that it is the equivalent of ‘might.’ ” Sabel v. Mead Johnson & Co., 110 F.R.D. 553, 555 (D. Mass. 1986). In other words, a party may not invoke Rule 33(d) “if all which can be said is that the answer ‘might’ be found in the records.” Id. Rather, a party relying on Rule 33(d) must affirm that a review of the records “will actually reveal answers to the interrogatories.” SEC v. Elfindepan, S.A., 206 F.R.D. 574, 576 (M.D.N.C. 2002) (citing 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2178 (2d ed. 1994)); see also Jannx Med. Sys., Inc. v. Methodist Hosp., Inc., No. 2:08-CV-286-PRC, 2010 WL 4789275, at *3 (N.D. Ind. Nov. 17, 2010) (“To utilize this Rule, the information that the Defendants are requesting must actually be obtainable from the documents.”); In re Sulfuric Acid Antitrust Litig., 231 F.R.D 320, 326 (N.D. Ill. 2005) (“Invocation of the Rule requires first that the information actually be obtainable from the documents.”); Caruso v. Coleman Co., No. 93-CV-6733, 1995 WL 26252, at *3 (E.D. Pa. April 28, 1995) (“When a responding party invokes Rule 33(d)’s option ... he still has a duty to supply all the information requested and cannot avoid answers by producing documents in which the information may or may not be found.”); In re Master Key, 53 F.R.D. 87, 90 (D. Conn. 1971) (Rule 33(d) “does not shift to the interrogating party the obligation to find out whether sought after information is ascertainable from the files tendered.”).

*5 Here, Community Health argues it appropriately invoked Rule 33(d) in response to the interrogatories because no single business record contains the requested information. (Filing No. 469 at 10). Community Health addresses the “perceived inconsistencies” in the documents provided by arguing that “Rule 33(d) does not demand the level of perfection and exactness that the Order imposes.” (Id. at 15 n.4).

Community Health's arguments on this front fail for two reasons. First, while Community Health claims it need not provide consistent information in its responses, the unexplained inconsistencies with respect to physician compensation render it impossible for the Relator to determine definitive answers to the interrogatories and are equivalent to failing to answer the interrogatories at all. Community Health asks the court to accept that Rule 33(d) does not require it to provide accurate and consistent information. The court declines to do so. Second, Community Health fails to show that its response addresses the portions of the interrogatories related to the method of payment calculation. Although Community Health has demonstrated that finding answers is a complex task, this does not relieve a responding party from providing answers appropriately. The Magistrate Judge did not commit any discernable error in concluding that Rule 33(d) is not amenable to answering questions that require employee recollections of calculation methods. Thus, the Magistrate Judge's finding that the interrogatory answers could not be found in Community Health's response was neither clearly erroneous nor contrary to law.

Additionally, the Magistrate Judge's finding that the burden of deriving or ascertaining answers to the interrogatories was not substantially the same for both parties was neither clearly erroneous nor contrary to law. Community Health argues the Order “ignores the fact that several of the documents ... are self-explanatory and don't require unique ‘interpretation’ by a Community employee.” (Filing No. 469 at 12–13). Further, Community Health argues that the Relator is familiar with the records because he was Community Health's Chief Financial Officer and Chief Operating Officer. (Id. at 13).[1]

These arguments fail to show clear error in the Magistrate Judge's order for two reasons. First, Community Health's argument that several of its documents are self-explanatory ignores the Magistrate Judge's findings that many of the documents “are not simple business records like solitary issue spreadsheets or tax returns” and cannot be parsed with equal difficulty. Community Health's expertise is required to comprehend the non-standard documents. Second, Community Health claims it has engaged “teams of people, expending hundreds of hours, interview[ing] employees, collect[ing] and review[ing] voluminous business records and extrapolat[ing] the requested information” for the interrogatory responses. (Id. at 7). One former employee, even if a former CFO for Community Health, cannot match this expertise, particularly when he would be familiar with only the first five of thirteen years’ worth of documents covered by the interrogatories.[2] Community Health has not shown clear error in the Magistrate Judge's ruling and has pointed to no law in direct conflict with the order.

IV. Conclusion

*6 For the reasons stated above, the Magistrate Judge's discovery order was neither clearly erroneous nor contrary to law. Community Health's objection to that order (Filing No. 469) is therefore OVERRULED. The stay of the Magistrate Judge's order, (Filing No. 481), is lifted. Community Health shall comply with the Magistrate Judge's Order dated November 29, 2022 (Filing No. 462) no later than April 17, 2023.

IT IS SO ORDERED this 14th day of March 2023.