*1 Plaintiffs have filed a motion for reconsideration of the Special Master's discovery Order and Opinion entered on February 8, 2022.

In deciding this motion for reconsideration, the Special Master has reviewed the following submissions: Plaintiffs’ Memorandum of Law and Declaration in support of the motion and Defendants’ Memorandum of Law in opposition.

After considering all of the submissions, and having previously reviewed and considered the litigants’ submissions as to the underlying motion, and having considered arguments advanced by counsel during a status conference of March 24, 2022, it is the opinion of the Special Master that Plaintiffs’ motion is DENIED to the extent set forth in this opinion.

I. Procedural and Factual Background

Since the litigants are intimately familiar with the procedural posture and underlying facts which form the basis of this motion, the Special Master will only briefly provide a summary.

Plaintiffs are MSP Recovery Claims Series, LLC; MSPA Claims 1, LLC; and Series PMPI. They are assignees of Medicare C and D healthcare regulated entities. The assignors provide health benefits for Medicare beneficiaries. As such, Plaintiffs are acting as the assignors’ debt collectors.

Defendants manufacture analog insulin. Plaintiffs contend that Defendants employ a pricing scheme which has unlawfully increased the purchase price of insulin to the benefit of the manufacturers.

The parties have engaged in pretrial discovery and, at times, have filed motions with the Court when discovery disputes arise. This motion for reconsideration arises out of such a dispute which was previously briefed and argued by the parties. That motion had been filed by Defendants seeking relief due to Plaintiffs’ failure to comply with certain discovery obligations. The motion, in turn, resulted in an Order by the Special Master dated February 8, 2022. This motion for reconsideration is addressed at only one aspect of that Order, that is, Defendants’ request compelling production of documents from custodial files of certain identified individuals. As to that request, Defendants’ application was granted and the following provision was included in the order:

As was the case with other aspects of this prior discovery motion, the Court also required Plaintiffs to fulfil this aspect of the Order within 30 days. Now, pursuant to Local Federal Rule 7.1(i), Plaintiffs move for reconsideration.

II. Plaintiffs’ Argument

Generally, Plaintiffs repeat their assertion that discovery has been “arduous” and pursuant to the Special Master's January 20, 2021 Order, they have been diligent in seeking discovery from every assignor. They say they have gone through approximately 7,000,000 documents with technology assisted review (“TAR”) and have now produced some 90,000 documents and 950,000 images “after reviewing the files of 66 individual custodians and 16 institutional custodians.” Some of this process included manual review by its vendor, Sift Discovery, who looked at approximately one million Excel files.

*2 They say that out of 7,000,000 documents under review, only one percent were responsive. Now, despite these efforts, Plaintiffs insist Defendants are engaging in an expensive fishing expedition from 43 additional custodians.

The motion seeks to correct “errors of law” and to prevent “manifest injustice” arising from the Order since: (1) discovery from these 43 custodians is disproportionate and creates an undue burden; and (2) Defendants “waived” the discovery issues raised in their prior motion.

Citing case law derived from the local rule, Plaintiffs point to three factors in determining whether reconsideration should be granted. First, an intervening change in law. Second, the emergence of new evidence. Third, to correct a clear error of law or prevent a manifest injustice.

To simplify, Plaintiffs are arguing that as a result of the prior Order, they have been asked to do too much, at a significant cost, to produce very little if anything useful in this lawsuit. In short, they say, the rule of proportionality has been violated. They argue that this consideration should have played a role in deciding to add 43 custodians on top of 100 that Plaintiffs had already reviewed and 66 who were in possession of discoverable material. To search through the records of 43 more custodians “will pile on to the rapid rate that Plaintiffs’ resources are being depleted” when they have already produced a large amount of ESI.

Plaintiffs also argue that there is a “minimal likelihood” that responsive documents exist within these additional files. That is, the requested list is largely composed of high level executives who were not involved in negotiating insulin-related rebates. They also say that several assignors have confirmed that at least ten of the custodians do not have any data available to search.

In addition to proportionality considerations, Plaintiffs say that they can meet their obligation to show that duplicate discovery should be limited to avoid undue burden or expense. They note that 7,400,000 documents were initially culled for review using 3,006 search terms. That document population was “tested” to determine the “richness” of Defendants’ search terms which resulted in a “confidence level of 95 percent.” Yet, this “richness test” found that responsive documents “accounted for only 1% of the review population.” Given this low response rate, and given the cost and effort to produce additional documents, this represents clear evidence of undue burden caused by searches of these additional custodians. Plaintiffs also say, given that they had 30 days to comply, even if these review efforts were carried out (as to the additional 43), they could not respond within the time frame.

As to waiver, Plaintiffs say that Defendants failed to pursue discovery in a timely fashion. The parties had agreed to a list of 100 custodians approximately one year ago. Then in April 2021, Defendants requested additional custodians to which Plaintiffs objected in a letter dated July 21, 2021. Defendants took no action until filing the October 12, 2021 motion to compel. Plaintiffs say that waiting two and a half months to compel production was not a timely pursuit of the remedy.

As an alternative, Plaintiffs contend that the Court has discretion to allocate some or all costs to the requesting party. The total projected review cost is in excess of $161,000. Accordingly, without specifying an exact figure, Plaintiffs ask that if they continue to be obligated to produce records from the 43 additional custodians, a cost-sharing arrangement should be ordered.

*3 Finally, Plaintiffs assert that the 30 days initially granted to provide responses, which has now expired, was insufficient to feasibly comply with production.

III. Defendants’ Argument

Defendants, of course, argue that the motion for reconsideration should be denied. As background, Defendants say they first proposed the list of supplemental custodians on April 19, 2021. Those custodians included predecessors and successors of custodians previously identified; individuals responsible for negotiating assignment agreements; individuals with roles tied to insulin payment, reimbursement and pharmacy and formulary management; and employees with roles in finance with information about damages. Plaintiffs objected, declined to meet and confer, and on July 21, 2021 offered single word objections to the vast majority of the proposed custodians. After further efforts to resolve this issue, and after MSP had let its substantial completion deadline pass, Defendants moved to enforce the expired deadlines. On February 9, 2022, the Special Master ordered MSP to complete its production by March 10, 2022, including production of responsive documents from the 43 custodians.

Both parties agree that only three bases exist to grant reconsideration: (1) an intervening change in law; (2) the availability of new evidence; or (3) to correct a clear error or to prevent manifest injustice. Defendants say this standard for reconsideration is stringent and is an extraordinary remedy that is granted sparingly and argue as follows.

First, MSP does not attempt to identify any intervening change in law (of which there was none). Accordingly, this basis for reconsideration does not exist.

As to “new evidence,” Defendants say this does not include evidence which a party submits after an adverse ruling but which was available beforehand. Here, the “new evidence” is simply a declaration provided by the discovery vendor which merely recites work done as to the existing custodians and asserts that there are costs associated with complying with the Court's Order. While providing “additional color” on the proportionality arguments, all of this information was available to MSP previously and Plaintiffs offer no reason why they could not have included the declaration in the first round of briefing.

As to establishing “clear error,” Defendants say, MSP has fallen short again. Plaintiffs rehash the argument that requiring production from additional custodians is disproportionate, the custodians do not have relevant information and the discovery is burdensome – all of which was argued previously. This assertion, say Defendants, is not a basis for reconsideration and it is improper to ask the Court to rethink what it has already thought through. In fact, say Defendants, the Special Master did consider the proportionality factors when compelling Plaintiffs to collect documents from these supplemental custodians. Quoting from the Order, “... the Special Master accepts Plaintiffs’ factual assertions that the process of retrieving the requested documents ... is a tedious and complicated process, requiring a good deal of effort and rather time consuming.”

Further, the proportionality argument lacks merit. Plaintiffs argue there is minimal likelihood that responsive documents exist since the supplemental custodian list is largely composed of high level executives, who were not heavily involved in negotiating rebates. However, MSP offers no support for this argument besides its conclusory assertions and Defendants have demonstrated that these individuals are likely to have responsive documents given their roles. Additionally, Defendants say, the low volume of responsive documents received to date actually supports their assertions that document production has been deficient and stands as a further reason that Plaintiffs should produce documents from the additional custodians under the Order.

*4 Defendants also dismiss Plaintiffs argument that they have waived their right to compel production. Again, Plaintiffs never raised this argument in their original opposition and it is too late now under settled law. Further, Defendants repeatedly tried to discuss the proposed custodians but MSP declined to engage. When a final offer to meet and confer was made on October 11, 2021, but rejected, Defendants filed their motion to compel.

As to cost sharing, this too was an argument Plaintiffs have already made. Citing Federal Rule of Civil Procedure 26(c)(1)(B), Defendants say that cost shifting has not been considered a common practice and a party ordinarily bears the costs of responding to demands. Here, Plaintiffs offer no reason why the presumption that the producing party bears the cost of discovery should be disregarded and Plaintiffs ignore the fact that their discovery requests obligated Defendants to produce hundreds of thousands of documents and make many employees available for depositions.

Finally, in response to Plaintiffs’ request for a stay, Defendants say this is unwarranted and will only lead to further delay and violates the “hard and fast” deadline of March 10, 2022, previously ordered.

IV. Findings

While this motion for reconsideration arises most directly out of the Special Master's Order and Opinion of February 8, 2022, the underlying issue actually harkens back more than a year to January 2021. At that time, the Special Master granted Defendants’ motion compelling Plaintiffs “to produce the same documents and information from each of their assignors that Defendants would have been entitled to if the assignors had brought the lawsuit themselves.” [See, Defendants’ Memorandum of Law in opposition, p. 2 and ECF No. 150 at 1]. In short, for more than a year now, Plaintiffs have been under an obligation to produce documents from each of their assignors pertinent to the claims they are advancing in this lawsuit. Yet, despite two preceding orders and a substantial time lapse, Plaintiffs still have failed to meet certain obligations.

Although the parties here fully agree on the standard by which a motion for reconsideration must be decided, the Special Master will reiterate the legal basis upon which this application hinges.

While not expressly authorized by the Federal Rules of Civil Procedure, motions for reconsideration are proper pursuant to this District's Local Civil Rule 7.1(i). That Rule states:

The comments to the Rule make clear that “reconsideration is an extraordinary remedy that is granted ‘very sparingly.’ ” Rich v. State, 294 F. Supp. 3d 266, 272 (D.N.J. 2018) (citations omitted). It has also been described as “an extremely limited procedural vehicle.” Fellenz v. Lombard Investment Corp., 400 F. Supp. 2d 681, 683 (D.N.J. 2005); Rich, 294 F. Supp. 3d at 272. A motion for reconsideration may not be used to re-litigate old matters nor to raise arguments or present evidence that could have been raised prior to the entry of judgment. P. Schoenfeld Asset Mgmt., LLC v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001).

*5 To prevail on a motion for reconsideration, the moving party must show at least one of the following grounds: “(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court [made its initial decision]; or (3) the need to correct a clear error of law or fact to prevent manifest injustice.” Max's Seafood Café v. Quinteros, 176 F. 3d 669, 677 (3d. Cir. 1999). A court commits clear error of law “only if the record cannot support the findings that led to the ruling.” ABS Brokerage Servs., LLC v. Penson Fin. Servs., Inc., 09-cv-4590, 2010 WL 3257992, at *1 (D.N.J. Aug. 16, 2010). Moreover, when the assertion is that the court overlooked something, the court must have overlooked some dispositive factual or legal matter that was presented to it. Rich, 294 F. Supp. 3d 272-273. In short, mere disagreement with a court's decision does not suffice. Id. at 273.

Plaintiffs, the moving parties here, have failed to demonstrate any of the grounds upon which a motion for consideration may be granted. Obviously, they do not contend that there has been an intervening change in the controlling law of which there has been none. Their argument seems to rest on the proposition that they have presented “new” but previously unavailable evidence (although their argument on this issue is a bit vague) and that there has been a clear error of law or fact for which reconsideration should be granted to correct a “manifest injustice.”

The Special Master fully agrees with Defendants’ assessment as to the first of these potential grounds for reconsideration, i.e., Plaintiffs have indeed failed to present any “new evidence” not previously available. The declaration provided by Plaintiffs, signed by Cheryll A. Calderon of Sift Discovery, LLC adds nothing and largely repeats Plaintiffs’ assertion that document collection here has been and continues to be an arduous task, involving a bevy of documents and can be a costly and slow enterprise. There is nothing new in this declaration or in Plaintiffs’ supporting brief which, if they were submitted to show the existence of new, unavailable evidence, accomplish that goal. Plaintiffs have made the same argument in various forms even prior to the Special Master's January 2021 Order and those arguments were taken into consideration at that time and in the process of deciding the Court's February 8, 2022 Order. Indeed, the Special Master granted Plaintiffs’ additional time to comply with the various discovery requests, recognizing that there were and have been practicalities associated with this document-heavy litigation.

In short, the Special Master finds that Plaintiffs have failed to show the existence of new, previously unavailable evidence on which to grant reconsideration.

Similarly, as to Plaintiffs assertion that there was “clear error,” Plaintiffs’ arguments also fail. Plaintiffs have indeed rehashed their previously advanced argument that requiring production from this set of additional custodians is disproportionate. When Defendants previously moved to compel Plaintiffs to comply with certain discovery obligations, including their request for documents derived from the 43 additional custodians, the Special Master took those difficulties into consideration, weighed the factors, and addressed all of this in the Order, i.e., “... the Special Master accepts Plaintiffs’ factual assertions that the process of retrieving the requested documents ... is a tedious and complicated process, requiring a good deal of effort and rather time consuming.” So, Plaintiffs’ argument and assertions in support of that argument are (1) not new and (2) have been considered by the Court.

Along these lines, the Special Master finds that Plaintiffs’ assertion that there is a minimal likelihood that responsive documents exist (since the custodians are largely high level executives) is curious. This assertion, if true, suggests that the relative absence of these documents was known or knowable for some time. Further, Defendants have, in the Special Master's assessment, at least facially demonstrated that the proposed custodians were in positions where they may possess relevant information regarding insulin payment and reimbursement.

*6 In short, Plaintiffs have wholly failed to demonstrate that this Court overlooked or ignored “some dispositive factual or legal matter that was presented to it.”

The Special Master will now very briefly address Plaintiffs’ additional arguments.

The Special Master finds that Defendants have not waived the right to compel production, as Plaintiffs claim, by having failed to timely move for this relief. As Defendants indicate, Plaintiffs never raised this argument in their original opposition and should not be permitted to do so now. Moreover, at best, this argument is weak and tangential and would not have been accepted even if previously made.

Finally, as Defendants correctly point out, Plaintiffs did request the Special Master to consider cost sharing under Federal Rule of Civil Procedure 26(c)(1)(B) in response to the underlying motion. The Special Master saw no reason then to consider cost sharing and sees no reason now to alter it in this case, the common practice that a responding party ordinarily bears the costs associated with its response. Evidently, in this matter, both sides of the litigation have and will continue to bear significant costs in retrieving and producing documents which are pertinent to the issues. Plaintiffs have provided the Special Master with no compelling reason to alter that balance.

With this said, however, and as discussed at the status conference which took place on March 24, 2022, the Special Master will grant Plaintiffs some additional time in which to complete responses as to the additional custodians. Specifically, Plaintiffs have 30 days from the date of this Order to produce documents from the custodial files at issue.

V. Conclusion.

For the reasons previously set forth and within the parameters described above, Plaintiffs’ motion is DENIED.