eDiscovery Assistant

Conn. Gen. Life Ins. Co. v. Biohealth Labs., Inc.

2023 WL 5567410 (D. Conn. 2023)

April 12, 2023

Hawkins, James R., Para-judicial Officer

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Summary

The court granted the Labs' Motion to Compel for follow-up information from Cigna regarding a memorandum related to out-of-network substance abuse claims. The court rejected Cigna's objections and allowed the discovery requests to proceed, stating that good cause is not required for a motion to compel at this early stage in the case. The court also addressed the issue of proportionality and found that the requested information was relevant and proportional to the needs of the case.

Additional Decisions

CONNECTICUT GENERAL LIFE INSURANCE COMPANY and CIGNA HEALTH AND LIFE INSURANCE COMPANY, Plaintiffs,
v.
BIOHEALTH LABORATORIES, INC., ET AL., Defendants

CIVIL ACTION NO. 3:19-cv-1324 (JCH)

United States District Court, D. Connecticut

Filed April 12, 2023

Counsel

Edward T. Kang, Emily S. Costin, Alston & Bird LLP, Washington, DC, Kelsey Kingsbery, Alston & Bird LLP, Raleigh, NC, for Plaintiffs.
Anthony Thomas Gestrich, Scott M. Hare, Whiteford, Taylor & Preston LLP, Pittsburgh, PA, Fred Alan Cunningham, Matthew Thomas Christ, Domnick Cunningham & Yaffa, Palm Beach Gardens, FL, John J. Radshaw, III, New Haven, CT, for Defendants BioHealth Laboratories, Inc., PB Laboratories, LLC, Epic Reference Labs, Inc.

Hawkins, James R., Para-judicial Officer

RECOMMENDED RULING ON MOTION TO COMPEL (DOC. NO. 158)

I. INTRODUCTION

*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 companies that administer health care plans for individual customers (“Cigna”), and the defendants are three Florida companies that provide laboratory testing services (the “Labs”). This recommended ruling addresses outstanding issues arising out of the Labs’ Motion to Compel (Doc. No. 158). What remains to be resolved from that Motion is Cigna's objections to a single interrogatory and a single document demand that seeks follow-up information concerning one part of a memorandum authored by a high ranking Cigna official. For the reasons discussed hereafter, the undersigned recommends that the Labs’ Motion to Compel be granted.

II. BACKGROUND

Cigna's customers in substance abuse programs require laboratory testing services. The Labs provided out-of-network laboratory testing services to individuals covered by Cigna health care plans. Cigna paid for some, but not all, of the laboratory testing services provided by the Labs to Cigna's customers.

On August 27, 2019, Cigna commenced this action against the Labs seeking to recover the monies paid to the Labs. Cigna alleges that the Labs engaged in fraudulent billing practices, including fee forgiveness, unbundling of charges, and unnecessary testing.

Within a day, the Labs filed a separate civil action in this District seeking to recover the unpaid fees for out-of-network laboratory testing services billed to Cigna. On February 2, 2022, the two actions were consolidated for pretrial purposes. See Minute Entry for Proceedings on February 2, 2022 (Doc. No. 92). The parties have been engaging in discovery since before the consolidation.

A. The Memorandum

Late in documentary discovery, Cigna produced to the Labs—in response to an earlier document demand—a memorandum dated August 6, 2015, which was authored by Cigna's Chief Risk Officer. See Substance Abuse Actions Memorandum (the “Memorandum”) (Doc. No. 160–4). The Memorandum is three pages long and is titled “Substance Abuse Actions”. The Memorandum expresses concern about out-of-network substance abuse claims that have “exploded” during 2015 and proposes plans of “action” to reduced Cigna's financial exposure. Below are three sentences from the first page of the Memorandum:

Cigna's costs attributable to fraud and substance abuse claims have exploded during 2015, especially related to out of network utilization...

KEY DRIVERS:

...

#2 — Out-of-Network Outpatient Rehab and Drug Testing

Outpatient substance abuse facilities, many located in South FL, intentionally remain out-of-network and engage in a variety of fraudulent and abusive practices, including fee forgiveness, physician kickbacks, and unnecessary drug testing on customers.

ACTION SUMMARY:

Goal #1: Reduce the substance abuse paid amount from >$1M a day to a target of approximately $50k per claims paid day or $300k per week. (Progress: Week of 8/3 we are trending toward $800k+ in claims, down from $8M two weeks ago.)

*2 The Memorandum at 1.

B. Discovery Requests and Objections

At issue on this Motion are an interrogatory and a document demand by the Labs, which are reproduced in full—along with Cigna's responses—below:

The Labs’ Interrogatory No. 23: Describe in detail every action you took to “Reduce the substance abuse paid amount from >$1M a day to a target of approximately $50k per claims paid day or $300k per week,” as stated in the document produced by Cigna labeled CIGNA19-1326 0289530.

Cigna's Response to Interrogatory No. 23: Cigna objects to this Interrogatory as not proportionate to the needs of the case and not relevant to any claim or issue in the case. This Interrogatory seeks information that has nothing to do with any of the Labs or any of the Labs’ claims at issue in this case.
The Labs’ Request for Production No. 28: All documents constituting, describing, referencing or relating to every action you took to “Reduce the substance abuse paid amount from >$1M a day to a target of approximately $50k per claims paid day or $300k per week,” as stated in the document produced by Cigna labeled CIGNA19-1326 0289530.
Cigna's Response to Request for Production of Documents No. 28: Cigna objects to this Request as not proportionate to the needs of the case and not relevant to any claim or issue in the case. This Request seeks information that has nothing to do with any of the Labs or any of the Labs’ claims at issue in this case.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 26(b)(1) delineates the scope and limitations of discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs it likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “[T]he burden of demonstrating relevance remains on the party seeking discovery.” Bagley v. Yale Univ., 315 F.R.D. 131, 144 (D. Conn. 2016) (citation omitted); Rep. of Turkey v. Christie's, Inc., 326 F.R.D. 394, 400 (S.D.N.Y. 2018) (same). Once the party seeking discovery has demonstrated relevance, the burden shifts to “[t]he party resisting discovery ... [to] show[ ] why discovery should be denied.” Hobson v. Kemper Indep. Ins. Co., 2021 WL 3486867, at *2 (quotation and citation omitted).

“Rule 26(b)(1) is liberally construed and is necessarily broad in scope.” Parimal v. Manitex Int'l, Inc., 2021 WL 1978347, at *3 (D. Conn. May 18, 2021) (citation and quotation marks omitted). “[T]o fall within the scope of permissible discovery, information must be relevant to any party's claim or defense .... [T]he scope of relevance for discovery purposes is necessarily broader than trial relevance.” Durant v. Target Stores, Inc., 2017 WL 4163661, at *3 (D. Conn. Sept. 20, 2017) (quotation marks and citations omitted). “Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Fed R. Evid. 401.

*3 “The broad standard of relevance, however, is not a license for unrestricted discovery.” Gucci Am., Inc. v. Guess?, Inc., 790 F. Supp. 2d 136, 140 (S.D.N.Y. 2011). “Under Rule 26, as amended in 2015, a party may obtain discovery of ‘any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.’ ” Hobson, 2021 WL 3486867, at *2 (quoting Fed. R. Civ. P. 26(b)(1)). “Proportionality focuses on the marginal utility of the discovery sought.” In re Methyl Tertiary Butyl Ether (“MTBE”) Prod. Liab. Litig., 180 F. Supp. 3d 273, 280 n.43 (S.D.N.Y. 2016) (quotation and citation omitted). “Proportionality and relevance are conjoined concepts; the greater the relevance of the information in issue, the less likely its discovery will be found to be disproportionate.” N. Shore-Long Island Jewish Health Sys., Inc. v. MultiPlan, Inc., 325 F.R.D. 36, 49 (E.D.N.Y. 2018) (quotation and citation omitted).

While the language of Rule 26 has changed over the years, the broad scope of permitted discovery was articulated by the Supreme Court in the oft-cited case of Hickman v. Taylor, 329 U.S.495 (1947). Indeed, relevancy “has been construed broadly to encompass 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.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman, 329 U.S. at 501).

Additionally, Rule 33 discusses interrogatories, and specifies that “[t]he grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4).

Requests for the production of documents are considered in Rule 34. Fed. R. Civ. P. 34. Responses to such requests “must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). Objections to such requests, on the other hand, “must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C).

IV. DISCUSSION

A. Failure to Comply with the Federal Rules

The legal analysis for any motion to compel begins with an examination of the applicable Federal Rules of Civil Procedure. Here, there are four rules that are particularly germane to the current motion. Fed. R. Civ. P. 26(b)(1), 33(b)(2), 34(b)(2)(B), 34(b)(2)(C). The Rules are quote above in full.

Putting aside Rule 26(b)(1) for later consideration, see, infra, Section IV(C), Cigna ignored the requirements of the other pertinent rules. Rules 33(b)(4) and 34 (b)(2)(B) mandate that all objections be specific. See Fed. R. Civ. P. 33(b)(4) (“[T]he grounds for objecting ... must be stated with specificity”) (emphasis added), 34(b)(2)(B) (“[T]he response must ... state with specificity the grounds for objecting”) (emphasis added). Cigna also ignored Rule 34(b)(2)(C), which states that “[a]n objection must state whether any responsive materials are being withheld....” Fed. R. Civ. P. 34(b)(2)(C).

Failure to comply with these discovery rules is, by itself, a sufficient ground to overrule an objection to discovery. In re Priceline.com Inc. Sec. Lit., 233 F.R.D. 83, 85 (D. Conn. 2005).

B. Boilerplate Objections

A discovery objection that provides no substantive information and simply recites in haec verba or paraphrases the permissible grounds for objection is often referred to as boilerplate. See Hannah v. Wal-Mart Stores, Inc., 2014 WL 2515221, at *2–3 (D. Conn. June 4, 2014).

*4 Boilerplate objections, like the ones made by Cigna, are disfavored by the courts. See, e.g., Belparts Grp., N.V. v. Belimo Automation AG, 2022 WL 1223018, at *2 (D. Conn. Apr. 26, 2022); Hobson, 2021 WL 3486867, *3.

C. Failure to Comply with Federal Rule 26(b)(1)

Although failure to adhere to the Federal Rules and the use of boilerplate objections—which frequently go hand in hand—are, by themselves, sufficient basis to overrule Cigna's objections, that does not end the analysis. The advisory committee's notes to Rule 26 and the relevant caselaw, both expressly and by implication, instruct that the court has a duty to consider the proportionality of all discovery. See Fed. R. Civ. P. 26(b)(1) advisory committee's note to 2015 amendment (“The parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving all discovery disputes.”); S.C. Johnson & Son, Inc. v. Henkel Corp., 2020 WL 5640528, at *11 n.10 (D. Conn. Sept. 22, 2020).

However, before evaluating proportionality, the relevancy of the “matter” requested must be understood. Rule 26(b)(1) states in part: “[p]arties may obtain discovery regarding any ... matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1) (emphasis added).

“Proportionality and relevance are conjoined concepts....” Hobson, 2021 WL 3486867, *2 (citation omitted). Indeed, “the greater the relevance of the information in issue, the less likely its discovery will be found to be disproportionate.” S.C. Johnson & Son, 2020 WL 5640528, at *6 (citing New Falls Corp. v. Soni, 2020 WL 2836787, at *2 (E.D.N.Y. May 29, 2020)).

Thus, although Cigna failed to assert a valid relevancy objection, relevancy nevertheless must be examined in order to properly assess proportionality.

1. Relevancy and the Temporal Scope of Discovery

As started above, relevancy for discovery purposes is a very broad concept. See, supra, Section III.

A simple comparison of the words used in the first sentences of the Memorandum and the brief description of Cigna's claims in this litigation, set forth above, shows that there is a substantial overlap of the subject matters (“substance abuse”, “out of network”, “located in Florida”, “fraudulent and abusive”, and “unnecessary testing”).

Despite the obviously related subject matter, Cigna's Opposition asserts that the Memorandum (or the Discovery Requests, it is unclear) is irrelevant because “no further action regarding payment or denial of claims with respect to PB Labs and BioHealth was initiated after [August 6, 2015].” See Cigna's Opposition to the Labs’ Motion to Compel (“Pls.’ Opp.”) at 18 (Doc. No. 174). This blanket representation of “no further action” overlooks the fact that Cigna commenced this civil action against the Labs more than four years after the date of the Memorandum. See Complaint (Doc. No. 1).

Cigna cites no legal authority in support of its contention. The implications of sustaining Cigna's objection would be incompatible with the philosophy of very broad discovery permitted under Rule 26.

*5 Depending on the claims and defenses, discovery often extends years beyond the precipitating event and includes persons and entities other than the parties involved in the litigation. See DiPippa v. Edible Brands, LLC., 2021 WL 2201194, at *8 (D. Conn. June 1, 2021). Furthermore, Cigna seeks to terminate the Labs’ discovery rights simply because Cigna says it's not relevant. That argument has been rejected by this court. Huseby, LLC v. Bailey, 2021 WL 3206776, at *7 (D. Conn. July 29, 2021).

There are at least two other reasons why it would be inappropriate to set a time limit of August 6, 2015, or thereabouts, in this case: (1) the Labs dispute that Cigna took “no further action” against them after August 6, 2015, and (2) the Labs have a very viable laches defense.

In their reply, the Labs specifically refute that Cigna took no action against the Labs after August 6, 2015. See Reply in Further Support of the Labs’ Motion to Compel (“Defs.’ Reply”) at 19–20 (Doc. No. 169). Putting aside the fact that Cigna did not commence this action until August 2019, the Labs contend that documents produced by Cigna show that it continued to take action against the Labs for at least months after August 6, 2015. Id.

In this case time and time limits are very significant issues. All of Cigna's legal claims have been barred by the statutes of limitation and all its remaining equitable claims are subject to an affirmative defense of laches. See Conn. Gen. Life Ins. Co. v. BioHealth Laboratories, Inc., 988 F.3d 127, 134–37 (2d. Cir. 2021). The Court denied the Labs’ Motion to Dismiss Cigna's claims on the basis of laches “at this time, without prejudice to [the Labs] asserting an affirmative defense of laches.” Conn. Gen. Life Ins. Co. v. BioHealth Laboratories, Inc., 573 F. Supp. 3d 671, 683 (D. Conn. 2021).

Among the reasons that the court denied the Motion to Dismiss was because it raised contested issues of fact that are not appropriate for decision on such a motion. A meritorious laches defense requires a showing that the plaintiff: (1) “is guilty of unreasonable and inexcusable delay” and (2) that the delay “has resulted in prejudice to the defendant.” Leopard Marine & Trading, Ltd. V. Easy Street Ltd., 896 F.3d 174, 193 (2d Cir. 2018) (quoting Ikelionwu v. United States, 150 F.3d 233, 237 (2d Cir. 1998)). This court has recognized that, ordinarily, laches is “not a proper defense at the pleading stage.” Conn. Gen. Life Ins. Co., 573 F. Supp. 3d at 682. “[A] determination that a claim is barred by laches requires a factual inquiry into the reasons for plaintiff's delay and the extent and nature of the prejudice suffered by defendant as a result of that delay.” Id. at 682–83. “Because such a factual inquiry is inappropriate on a motion to dismiss, a court's inquiry at this stage is limited to the face of [the] complaint.” Id. (quotation and citation omitted); Conn. Gen. Life Ins. Co., 988 F.3d at 135. Therefore, dismissal at such an early stage due to laches is rare, as the defense “necessarily involve[s] a fact-intensive analysis and balancing of equities that would require the Court to consider matters outside of the pleadings that are in dispute.” State Farm Mut. Auto Ins. v. Valery Kalika, 2006 WL 6176152, at *8 (E.D.N.Y. Mar. 16, 2006).

Similarly, just as it was not appropriate to resolve critical issues of fact on a Motion to Dismiss, it is not appropriate on a Motion to Compel to cut off the Labs’ discovery rights based on an arbitrary date of Cigna's choosing—4 years prior to Cigna's commencement this action. See A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., 2014 WL 6474285, at *2 (D. Conn Nov. 19, 2014).

*6 Cigna's objection that the Memorandum or the discovery requests are irrelevant because Cigna took no action after August 6, 2015 is overruled because it cites no authority in support of that objection, there is authority to the contrary, and Cigna's contention raises issues of fact that are not appropriate for decision on a Motion to Compel. Furthermore, on its face, the Memorandum is highly relevant for discovery purposes at least.

2. Proportionality

The cases in this District are clear that once relevancy has been established, the burden falls upon the objecting party to prove by competent evidence that the information is not proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. See Charter Pracs. Int'l LLC v. Robb, 2014 WL 273855, at *2–3 (D. Conn. Jan. 23, 2014); United States v. Andrews, 2021 WL 1783121, at *2 (D. Conn. May 5, 2021).

Typically, this burden of proof can only be satisfied by the submission of an affidavit by someone familiar with the filing system of the objecting party who discusses the nature and extent of the burden. Doe v. Wesleyan Univ., 2021 WL 4704852, at *4 (D. Conn. Oct. 8, 2021).

On this motion, Cigna submitted two declarations in connection with this Motion and the accompanying Motion to Seal. See Exhibit A (Doc. No. 161–2); Exhibit B (Doc. No. 161–3). Neither declaration discusses Cigna's filing system or the nature and extent of any burden in responding to the Discovery Requests. See Exhibit A; Exhibit B. Eva Borden, an employee, declared—“on personal knowledge”—that seven years later, the Memorandum dated August 6, 2015 still contains confidential information. Exhibit A. Ms. Borden also declares that the instructions to the discovery requests do not contain a definition of the word “action” and “to the best of my knowledge, [an internal working group] did not direct Cigna's SIU to deny claims as a result of Goal #1 [in the Memorandum].” Id. ¶¶ 17–18. The second declaration is even more limited. See Exhibit B. It also has nothing to do with proportionality. Id. Thomas Hixson declares that he is now a Senior Director of Cigna's SIU, and that the SIU “did not initiate any flag with respect to [two of the Labs] after August 6, 2015.” Id. ¶ 2, 5. Neither declaration addresses the necessary elements of proportionality laid out in the cases cited above.

Additionally, Rule 26(b)(1) proscribes that proportionality must be determined on the basis of criteria set forth in the Rule. See Fed. R. Civ. P. 26(b)(1). Since Cigna did not offer any evidence as to the burden, it did not attempt to analyze the criteria.

Based on the information contained in the pleading and the papers docketed on this Motion, it appears that: the issues concerning this action are important to both parties; each side seeks a recovery of over $10,000,000; only Cigna has access to the information; both parties appear to be adequately resourced; the discovery seems to go to the heart of the issues in the case; and there is no proof that the burden outweighs its likely benefit.

Cigna's objection that the Labs’ discovery requests are not proportional to the needs of the case is overruled for all the reasons stated above, including that Cigna failed to object with specificity, it failed to offer competent evidence of the burden, and it failed to attempt to satisfy the proportionality criteria of Rule 26(b)(1).

D. Absence of a Definition of the Word “Action”

*7 In Cigna's Opposition, it avers that:

Cigna also properly objected to this Interrogatory based on proportionality because “action” is not defined or otherwise limited in any way and therefore has the potential to encompass an endless number of things, making it impossible to capture the scope of this Interrogatory. ... Cigna cannot reasonably identify every possible action—including any singular thought, email, phone call, or meeting—by every single Cigna employee to reduce health care costs.

See Pls.’ Opp. at 18–19. This contention is without merit for several reasons. First, Cigna's responses to the discovery requests are set forth in full above. See, supra, Section II(B). In neither response does Cigna specifically object or even vaguely suggest an objection based on the absence of a definition of the word “action.” As such, Rule 33(b)(4) dictates that the objection is waived. Second, Cigna's objections lack specificity and are boilerplate. Third, Ms. Borden—the author of the Memorandum—states in her declaration that there is no definition of “action” in the discovery requests, but she ignores her use of the word “action(s)” ten times in the Memorandum.

E. Alternate Discovery

Having neglected to provide any evidence of burden, Cigna nevertheless suggests that the Labs could obtain the information they seek through other means: interrogatory answers and deposition. That argument is unpersuasive. This case involves events that occurred at least seven years ago. Even a truthful and cooperative witness will not be able to recall accurately important events that long ago. Under these circumstances, there will be no way to refresh a witness's recollection without documents. Similarly, an interrogatory answer without the documents likely will not be helpful or informative.

Moreover, under the Federal Rules, a party may conduct discovery in whatever sequence he or she prefers. See Fed. R. Civ. P. 26(d)(3).

F. Good Cause Not Required for this Motion to Compel

Early in its Opposition, Cigna argues that “[a] party that files a motion to compel discovery ‘after the discovery period has closed’ must make a showing of ‘good cause.’ ” Pls.’ Opp. at 5 (quoting Joseph v. Sikorsky Aircraft Corp., 2015 WL 5304177, at *3 (D. Conn. Sept. 9, 2015)). However, Cigna's reliance on Sikorsky is misplaced. In that opinion, then-Magistrate Judge Merriam discusses a separately-filed motion to extend the discovery deadline. It was in that context that the opinion states, “reopening discovery after the discovery period has closed requires a showing of good cause.” Id. (citation omitted).

Additionally, there are two other distinguishing facts that illustrate how inapposite Cigna's reliance on Sikorsky is. First, at issue here is a timely Motion to Compel. Second, Sikorsky involved unique circumstances, as Judge Merriam explained:

The Court was extremely clear at the hearing that no additional extensions of the discovery deadlines would be granted. The Court stated: “Discovery is going to close on August 15, and it won't be extended.”

*8 ...

In violation of Local Rule 7(b)(3), the motion [at issue] did not state that the motion was the second such motion filed. D. Conn. L. Civ. R. 7(b)(3). The motion also did not inform Judge Thompson, the presiding judge, that the undersigned had clearly informed counsel at the July 2, 2015, hearing, that no further extensions of the discovery deadline would be granted. Judge Thompson granted the motion for extension of time in a docket entry.

Id. at *2.

Furthermore, the Sikorsky court grounded its denial of the underlying motion in the context of its repeated warnings, adding that:

The plaintiff's failure to pursue this discovery during the period set by the Court, and, in particular, the plaintiff's failure to bring any concerns to the Court's attention at the July 2, 2015, hearing, or in any manner in a timely fashion, is fatal to the motion to compel.

Id. at *3. Finally, the Sikorsky court concluded that, “[w]here, as here, the plaintiff has been ‘dilatory in pursuing discovery’ and the ‘information sought is of marginal (if any) relevance[,]’ the Court will not further extend the discovery period and grant a motion to compel.” Id. at *4 (quoting Coudert v. Janney Montgomery Scott, LLC, 2004 WL 2381552, at *2 (D. Conn. Oct. 7, 2004)).

Here there is no suggestion that the Labs have been dilatory. Below is a brief chronology of this motion:

Sept. 13, 2022—Memorandum produced to the Labs

Oct. 16, 2022—The Labs served discovery requests on Cigna
Nov. 18, 2022—Cigna responds to the discovery requests
Nov. 24, 2022—Thanksgiving
Dec. 6, 2022—Meet and confer held
Dec. 12, 2022—The Labs file Motion to Compel
Dec. 23, 2022—Cigna provides its Opposition to the Motion to the undersigned

All of Cigna's objections, whether asserted in its responses of November 18, 2022, or in its Opposition of December 23, 2022, are overruled.

G. Search Parameters for Compliance with this Recommended Ruling

On January 16, 2023, the undersigned requested that counsel for both sides meet and confer about the search terms for responses to the discovery requests. By email dated January 23, 2023, counsel for the Labs reported that the parties had agreed upon some, but not all, of the search parameters.

The parties agreed on the following and they are approved. The relevant timeframe for the search will be April 1, 2015 to October 31, 2015. The parties agreed that the custodians will be Matt Norton and Eva Borden. The parties agreed to these search terms:

“BioHealth”;
“Epic Ref*”;
“PB Lab*”;
“Collectaway”;
“Medytox”;
“Medical Billing Choice*”; and
“Rennova”.

However, the parties disagreed as to additional custodians and additional search terms. While the search terms proposed by the Labs will result in more documents being produced, it does not appear that the Labs’ requests are unreasonable or designed for any purpose other than obtaining discovery related to the pending claims and defenses. Additionally, there are other terms that the Labs could have proposed, but did not, that would have further expanded the volume of documents Cigna would be required to produce. For example, the Labs could have, but did not, request the following search terms: “fee forgiveness”, “unbundling”, and “unnecessary testing”.

*9 On the other hand, the custodians and search terms proposed by Cigna appear too narrow. Cigna objects to the addition of eight custodians proposed by the Labs, each of whom is referenced by name in the Memorandum. Also, there is caselaw that supports having ten or more custodians searched. See Family Wireless #1, LLC v. Auto. Techs., Inc., 2016 WL 3911870, at *5–7 (D. Conn. July 15, 2016); A&R Body Specialty & Collision Works, Inc. v. Progressive Cas. Ins. Co., 2014 WL 6474285, at *3–4.

The search terms proposed by Cigna are also too narrow. For example, Cigna proposes the following search terms: “substance abuse paid amounts”, “substance abuse claims”, and “substance abuse actions”. However, the Memorandum uses additional substance abuse terms: “substance abuse spending”, “substance abuse fraud”, and “substance abuse facilities”. See the Memorandum. Accordingly, if Cigna's search terms were accepted, its search would not capture documents with similar terms used by Cigna in the Memorandum.

The following additional custodians are approved:

Doug Nemecek;
Karen Cierzan;
Denise Burns;
Nicki Gagnon;
Glenn Gerhard;
John Oates;
Kristin Julason-Damato; and
Diana Sousa.

Moreover, the following additional search terms are approved:

“fraud” and (“target” or “pay” or “paid” or “claim”);
“abuse” and (“target” or “pay” or “paid” or “claim”);
medical* /3 necess*;
“pre-pay*” or “prepay*” or “pre pay*”; and
“pend*” /3 “claim”.

H. Additional Considerations

In arriving at the conclusions in this recommended ruling, there were additional factors the undersigned considered, including that this case is in the late stages of discovery and the volume of documents that Cigna will be required to produce.

There are at least two factors that cause this Motion to be filed and decided so near the end of fact discovery: (1) the Memorandum was not produced to the Labs until September 13, 2022; and (2) Cigna's groundless objections and its repeated failure to comply with the Federal Rules.

As discussed throughout, the Memorandum was written by a high-ranking Cigna official, discusses issues clearly germane to the claims and defenses at issue, and it was circulated widely within Cigna. It is difficult to understand how it was not located and produced earlier in discovery. Whatever the reason, there is no evidence to suggest that the Labs were responsible for the late production of the Memorandum.

Additionally, for whatever reason, Cigna did not follow the rules and allegedly was uncooperative with counsel for the Labs. This includes but is not limited to the fact that Cigna did not provide the Labs with a hit report until February 22, 2023—three months after Cigna's initial responses to the discovery requests. There were follow-up emails in which, among other things, counsel for both sides disagreed about the meaning of the hit reports and the implications of using competing search terms. Obviously, if narrower terms are utilized, it is likely that fewer documents will be included on the hit report. However, neither Rule 26(b)(1) nor any of the aforementioned cases suggest that a proportionality objection should be determined solely upon the number of documents that will be produced.

V. CONCLUSION

For the reasons stated above, the Labs Motion to Compel (Doc. No. 158) is granted.

*10 Pursuant to the Amended Scheduling Order (ECF No. 180), any party wishing to object to this recommended ruling shall do so in writing filed not later than 7 days after this recommended ruling filed on the docket.