U.S. v. Cmty. Health Network, Inc.
U.S. v. Cmty. Health Network, Inc.
2023 WL 9788486 (S.D. Ind. 2023)
August 4, 2023
Klump, M. Kendra, United States Magistrate Judge
Summary
The court found that the defendant, Community Health Network, did not violate Rule 26(g) of the Federal Rules of Civil Procedure by failing to produce certain office records in response to the plaintiff's requests for production. The court determined that the defendant's actions were not unreasonable and that the plaintiff's requests did not specifically mention the office records, therefore the defendant was not on notice of their need to search for them. However, the court did find that the defendant was on notice of the need to investigate the location and content of the office records.
Additional Decisions
UNITED STATES OF AMERICA, Plaintiffs,
v.
COMMUNITY HEALTH NETWORK, INC., et al., Defendants.
THOMAS P. FISCHER, Relator
v.
COMMUNITY HEALTH NETWORK, INC., et al., Defendants.
THOMAS P. FISCHER, Relator
Case No. 1:14-cv-01215-RLY-MKK
United States District Court, S.D. Indiana, Indianapolis Division
Filed August 04, 2023
Klump, M. Kendra, United States Magistrate Judge
ORDER
*1 This matter comes before the Court on the Relator's Motion for Sanctions Regarding Relator's Office Records, Dkt. [541][1]. The motion was referred to the undersigned and, for the reasons that follow, is hereby DENIED.
I. Background
A. Relator ends his employment with CHN.
Prior to November 2013, Relator Thomas Fischer served as the Chief Financial Officer for Community Health Network, Inc. (“CHN”). (Dkt. 134 at 8, ¶17; Dkt. 287 at 4, ¶17). Although the parties do not agree how Relator's employment with CHN ended, both parties agree that it did end in November 2013. (Id.). After his employment ended, Relator did not return to his office at CHN. (Dkt. 542-4 at 4).
Four months after his employment with CHN ended, Relator, through counsel at Barnes and Thornburg, served CHN with notice that Relator intended to file litigation against CHN if CHN did not agree to his terms to avoid litigation. (Dkt. 546-4). Two months later, in May 2014, Relator, through counsel, served CHN, through counsel, with another letter. (Dkt. 532-3). Relator's May 2014 letter primarily focused on alerting CHN to its duty to preserve electronically stored information but did contain a snippet relating to hard documents. (See id.).
B. Relator's qui tam Complaint and United States’ intervention.
On July 21, 2014, Relator filed a qui tam complaint, alleging that the Defendants violated the federal False Claims Act and the Indiana False Claims and Whistleblower Protection Act. (Dkt. 1). Relator also brought a breach of contract and other state law claims relating to his employment at CHN. (Dkt. 1; see also Dkt. 32 (First Amend. Compl.)).
Five years later, on August 7, 2019, the United States elected to intervene in part and declined to intervene in part, and the State of Indiana declined to intervene. The matter was unsealed on December 23, 2019. (Dkts. 86, 93, 94). On January 6, 2020, the United States filed its Amended Complaint in Intervention against Defendant Community Health Network, Inc. (Dkt. 96). Relator filed his Second Amended Complaint on December 2, 2020, and CHN answered on December 28, 2021. (Dkts. 134, 287).
C. Discovery Dispute
In March and April 2021, Relator served his first set of Requests for Production (or “RFPs”) on CHN. (Dkts. 542-2, 542-3). In the March 2021 requests, Relator sought “documents and communications, including but not limited to emails, text messages, and calendar meeting appointments, related to the end of [Relator's] employment”, “communications relating to [Relator's] complaints to Community management that physician compensation within the Community Network may be in violation of federal law and subjected Community potential legal liability” and CHN's response thereto. (Dkt. 542-2 at 7, 9-10).
In addition to these requests, Relator's counsel sent a letter to CHN's counsel on December 23, 2021, in which Relator's counsel stated:
As for Mr. Fischer personally, he left behind notebooks/binders of his handwritten notes, folders, and calendars, to which he was denied access after his termination. CHN must produce those as not only responsive to Relator's Second Requests for Production of Documents, but also to his First Request (e.g[.], Nos. 7, 17-20).
*2 (Dkt. 542-4 at 4).
On September 27, 2022, Relator's counsel sent another letter to CHN's counsel referencing “the preservation of ESI, but also of hard documents.” (Dkt. 542-5 at 10). The letter stated, in part:
When he was walked out of his office, Relator was forced to leave behind highly relevant, hardcopy documents, including notebooks/binders of his handwritten notes, folders, and calendars, to which he was denied access after his termination. In many cases, the documents in his office were originals and often likely the only copies of such documents. CHN was asked to produce these items in both Relator's Second Requests for Production of Documents and his First Requests (e.g[.], Nos. 7, 17-20). We reiterated this request, again, in our October 6, 2021 letter to you. So far in this litigation, CHN is yet to produce these critical documents.
(Id.).
As of March 2023, CHN still had not found the physical documents that Relator said he had left behind. (See Dkt. 542-6 at 3 (“CHN ... claim[s] that it cannot seem to find those essential documents that CHN has apparently misplaced or destroyed.”)). On April 27, 2023, however, CHN informed Relator that it had “located nine boxes that contain the files from [Relator's] office that were preserved pursuant to the Legal Hold” at an offsite storage facility. (Dkt. 542-9 at 8).
On May 12, 2023, Relator filed the present motion, requesting that Community be sanctioned for “discovery misconduct.” (Dkt. 542 at 13, 15-17). Relator cited Federal Rules of Civil Procedure 26(g) and 37, as well as the court's inherent authority, as providing the authority for his request. (Id. at 13). Relator also requested that the Court: (a) order CHN to explain the facts and circumstances surrounding its search for the office records; (b) order CHN to permit Relator to physically inspect the office records, and (c) order the reopening of the Rule 30(b)(6) discovery compliance deposition. (Id. at 15-17). CHN responded on May 19, 2023, and Relator replied on May 23, 2023. (Dkts. 554, 562). The parties presented oral argument on May 30, 2023. (Dkt. 570).
II. Legal Standard
A. Rule 34
The Federal Rules of Civil Procedure allow a party to request any other party produce “any designated documents or electronically stored information” within the responding party's “possession, custody, or control.” Fed. R. Civ. P. 34(a). The request “must describe with reasonable particularity each item or category of items to be inspected.” Fed. R. Civ. P. 34(b)(1)(A). “The test for reasonable particularity is whether the request places a party upon ‘reasonable notice of what is called for and what is not.’ ” Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum LLC, No. 1:04-CV-477, 2007 WL 1164970, at *6 (N.D. Ind. Apr. 18, 2007) (citing Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004)). “Thus, the party requesting the production of documents must provide ‘sufficient information to enable [the party to whom the request is directed] to identify responsive documents.’ ” Bruggeman, 219 F.R.D. at 436 (citing Parsons v. Jefferson-Pilot Corp., 141 F.R.D. 408, 412 (M.D.N.C. 1992)).
*3 If requests for production describe with reasonable particularity the items to be produced, the responding party must attempt to locate items responsive to the request. The responding party “is under an affirmative duty to seek that information reasonably available to it from its employees, agents, or others subject to its control.” Novelty, Inc. v. Mountain View Mktg., Inc., 265 F.R.D. 370, 376 (S.D. Ind. 2009). The reasonable inquiry extends to not only items within the responding party's possession or custody but also items that are in the responding party's control. Id. at 375-76. “The duty to make a ‘reasonable inquiry’ is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances.” Fed. R. Civ. P. 26(b), 1983 comm. note.
B. Rule 26(g)
Relator requests sanctions be imposed under Rule 26(g). (Dkt. 542 at 13). “Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37.” Fed. R. Civ. P. 26(b), 1983 comm. note. A party completes its response to a Rule 34 discovery request through signature from a party or their attorney. Fed. R. Civ. P. 26(g)(1). By signing, the attorney or party “certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: (a) with respect to a disclosure, it is complete and correct as of the time it is made.” Fed. R. Civ. P. 26(g)(1)(A). The certification duty requires the signer to “pause and consider the reasonableness” of his or her response to a discovery request. Fed. R. Civ. P. 26(g), 1983 comm. note. The certifier fulfills this requirement by making “a reasonable inquiry into the factual basis of his response.” Id.
If a party's certification violates Rule 26(g)(1), the court “must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both[,]” unless the certification was “substantially justified.” Fed. R. Civ. P. 26(g)(3); see also Romero v. Atchison, No. 1:15-cv-00713, 2019 WL 13155647, at *2 (N.D. Ill. Jan. 24, 2019) (“Rule 26(g)(3) mandates “the imposition of sanctions where a party knowingly certifies inaccurate or incomplete discovery responses without substantial justification.”) (quotation marks and citation omitted). A party is substantially justified if it is “justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). When an attorney makes a reasonable inquiry and reasonably relies on information provided, the certification is substantially justified and sanctions under Rule 26(g)(3) are inappropriate. Romero, 2019 WL 13155647, at *2 (citing Pouncy v. City of Chi., No. 15-cv-1840, 2017 WL 8205488, at *13 (N.D. Ill. Dec. 11, 2017)). Whether a certification is made without substantial justification is a “factual assessment turning on the unique circumstances of the case.” Dugan v. Smerwick Sewerage Co., 142 F.3d 398, 408 (7th Cir. 1998).
C. Rule 37
Relator has also requested this Court issue sanctions under Rule 37. (Dkt. 542 at 13). Rule 37(c) addresses “information that was not disclosed despite a duty to do so under Rule 26(a) or Rule 26(e).” Fed. R. Civ. P. 37(c)(1). If, after responding to discovery requests, a “party learns that in some material respect the disclosure or response is incomplete or incorrect[,]” the party must timely supplement its response. Fed. R. Civ. P. 26(e). If a party fails to timely supplement its disclosure, the Court may order sanctions. See Fed. R. Civ. P. 37(c)(1).
III. Office Records Timeline
Before addressing the merits of Relator's request, the Court first must review the timeline of events central to the inquiry before it. The following facts are derived from the Court's review of the parties’ briefs, exhibits, and oral argument.
A. CHN Sends Boxes to Offsite Storage.
*4 As noted above, Relator left CHN's employ in November 2013. Sometime in early 2014, boxes left in Relator's old office were moved to Ms. Kelly Frakes’ office. (Dkt. 554-5). There the boxes appear to have remained until January 2017, when Ms. Darlene Wilhoit emailed Mr. Scott McCutchen about sending the boxes to GRM, an offsite storage facility used by CHN. (Dkts. 554-13, 554-14 at 2-4). Ms. Frakes and Ms. Karen Ann Lloyd were copied on the email, which noted that the office records were subject to a legal hold. (Dkt. 554-13 at 2). In her email, Wilhoit made clear to McCutchen that the records “should all be listed in the CBI Finance Log Book with the following content: Tom Fisher's Office Files” and that the records were exempt from scheduled destruction. (Id. (emphasis in original)). When providing directions to McCutchen, Wilhoit misspelled Relator's last name. (Id.). McCutchen received email approval from Mr. Brian McConnell (the VP of Finance) to send “the boxes that contain[ ] Tom Fischer old files” to GRM, (Dkt. 554-16 at 2), and secured GRM bar codes to be placed on the boxes, (Dkt. 554-13 at 4-5). On March 15, 2017, GRM picked up the office records from CBI Finance at the direction of Wilhoit. (Dkts. 554-12, 554-17).
B. CHN Responds to RFPs & Searches for the Office Records.
In preparing its responses to Relator's requests for production, CHN requested Relator's personnel records from GRM in April and June of 2021. (Dkt. 554-2 at 2). The personnel records were the only items associated with Relator's name in GRM's database. (Dkt. 554-3 at 2-3).
As noted above and discussed more below, on December 23, 2021, Relator's counsel sent a letter to CHN's counsel, explicitly asking for the physical documents left behind in Relator's office. (Dkt. 542-4). CHN subsequently interviewed current and former employees (and outside counsel) who were those most likely to remember whether physical records remained in Relator's office after his departure and what, if anything, had happened to those records after Relator's employment ended. (Dkt. 554 at 4-5). CHN came up empty-handed. On September 27, 2022, Relator's counsel reiterated the request for the office records and asked for written confirmation if CHN had “destroyed or lost them.” (Dkt. 542-5 at 10-11).
CHN continued its search for the office records. Between January and March 2023, CHN communicated with GRM to determine the scope of materials housed at GRM's facility. (Dkt. 554-6). On March 21, 2023, the parties attended a Rule 30(b)(6) deposition in which CHN's designee testified that CHN was not aware of any business records which were left behind in Relator's office but that a search of a storage facility was underway. (Dkt. 542-8 at 7-11).
Two days later, on March 23, 2023, a paralegal visited GRM and began to catalogue and review 54 boxes of CBI Finance and Human Resource records. (Dkt. 554-3). On March 31 and April 3, 2023, the paralegal expanded her review to 60 to 100 boxes stored at GRM. (Id.). On April 3, 2023, the paralegal identified the nine boxes that contained Relator's office records and transported them from GRM to counsel's office. (Id.). CHN then requested the 2017 GRM work order associated with those boxes. (Dkt. 554 at 8). From there, CHN found the 2017 Wilhoit and McCutchen emails and McCutchen's document inventory (i.e., the CBI Finance Log Book) that explained how the boxes came to be stored at GRM. (Dkts. 554 at 8-9; 554-12; 554-13; 554-14; 554-15 at 12; 554-16; 554-17). Finally, on April 27, 2023, CHN emailed Relator to notify him that the office records had been located. (Dkt. 542-9 at 8).
Much of the above timeline was not made known to Relator until CHN filed its response to Relator's Motion.
IV. Discussion
Relator asks the Court to sanction CHN and (1) order CHN's counsel to file “an explanation...that describes in detail the facts and circumstances surrounding Relator's office records;” (2) order Relator's counsel be afforded the opportunity to physically inspect the boxes and their contents, (3) prohibit CHN from instructing its witnesses not to answer deposition questions relating to the boxes; (4) order a previous Rule 30(b)(6) deposition be re-opened prior to Relator deposing CHN General Counsel Karen Ann Lloyd; and (5) order CHN to pay attorney's fees and costs incurred in preparing a filing Relator's motion for sanctions. (Dkt. 542 at 15-17 (emphasis in original)).
A. Reasonable Notice
*5 To decide whether CHN breached an affirmative duty under the Rules such that sanctions are warranted, the Court must first identify whether Relator's requests for production placed CHN on “reasonable notice of what is called for and what is not.” Bruggeman, 219 F.R.D. at 436 (N.D. Ill. 2004).
Relator maintains that CHN has been on notice for “nearly a decade” that Relator was seeking the office records in Relator's office. (Dkt. 542 at 3). Relator asserts that as far back as May 2, 2014, CHN was on notice that records left in Relator's office after his employment with CHN ended would be relevant to the current suit. (Dkts. 542 at 1, 3; 562 at 4, n.5). Relator's contention, however, finds little support in the record.
On May 2, 2014, counsel for Relator sent a letter to CHN's counsel, informing CHN that counsel was representing Relator “regarding his termination from employment with Community Health Network.” (Dkt. 542-1 at 2). In the May 2014 letter, Relator's counsel listed several categories of electronic data and identified a litany of custodians whose electronic data should be preserved. (Id. at 2-11).
On March 16, 2021, Relator served his first requests for production on CHN. (Dkt. 542-2). In these requests, Relator demanded (among other items):
REQUEST FOR PRODUCTION NO. 7: Produce all documents and communications, including but not limited to emails, text messages, and calendar meeting appointments, related to the end of Mr. Fischer's employment.REQUEST FOR PRODUCTION NO. 17: Produce all documents and communications relating to Mr. Fischer's complaints to Community management that physician compensation within the Community Network may be in violation of federal law and subjected Community to potential legal liability.REQUEST FOR PRODUCTION NO. 18: Produce all documents and communications relating to CHN's response to Mr. Fischer's complaints to Community management that physician compensation within the Community Network may be in violation of federal law and subjected Community to potential legal liability.REQUEST FOR PRODUCTION NO. 19: Produce all documents and communications relating to Mr. Fischer's stated concerns about illegalities related to physician compensation, physician patient referral patterns, and VEI business practices.REQUEST FOR PRODUCTION NO. 20: Produce all documents and communications relating to CHN's response to Mr. Fischer's stated concerns about illegalities related to physician compensation, physician patient referral patterns, and VEI business practices.REQUEST FOR PRODUCTION NO. 23: For the time period November 1, 2013, to the present, all documents and communications between Mills, Fisher, Yeleti and Hobbs regarding Mr. Fischer's employment and employment separation.
(Dkt. 542-2 at 7, 9-11). Relator asserts that Requests Numbers 7 and 17 through 20 “covered materials that Relator kept in his office.” (Dkt. 542 at 3). CHN's response to the production request did not include documents from the office records. (Dkt. 554 at 4).
In April 2021, Relator served his second set of requests for production on CHN. (Dkt. 542-3). Relator asserts that this second set also required production of the office records, but he fails to specify the request(s) to which the office records would have been responsive. (Dkt. 542 at 3). CHN did not produce the office records in response to the second set of requests for production. (Dkt. 554 at 4).
*6 Based on the record before it, the Court cannot agree that CHN has been on notice for “nearly a decade,” (Dkt. 542 at 3), that Relator sought the physical records left in his office. The earliest communication from Relator to CHN which put CHN on notice that Relator would be requiring future production of evidence is Relator's May 2014 letter. (Dkt. 542-1). But, contrary to Relator's assertions, this letter did not intimate (much less explicitly state) that Relator would seek his office records in future discovery. Relator's May 2014 letter was clearly intended to place CHN on notice that electronic data[2] would be sought in the future: “[Relator] considers electronic data to be an important and irreplaceable source for discovery and/or evidence in this case.” (Id. at 2). Though the May 2014 letter cast a wide net, the net only covered electronic data—not Relator's office records.
The same can be said for Relator's first and second set of requests for production to CHN. Although Relator is not required to spell out, word for word, the discovery he seeks, he is required to “describe with reasonable particularity each item or category of items to be inspected[.]” Fed. R. Civ. P. 34(b)(1) (emphasis added). At oral argument on May 30, 2023, Relator's counsel conceded that the requests did not explicitly state that Relator was seeking his office records. Relator's counsel nevertheless maintained that the requests for production covered the office records, and that it was up to CHN to determine where responsive records were located, whether in electronic or physical form. Because CHN did not locate and search the office records sooner, Relator argues that sanctions are warranted.
It is at this juncture that Relator's argument begins to lose its footing. While it is true that CHN was in the better position to determine where responsive materials may have been located (i.e., to determine where to look when responding to the RFPs), Relator—who knew what he had left in his office—was in the better position to describe the specific responsive materials that he was seeking (i.e., to describe what, exactly, CHN should be looking for). Here, Relator's request for “all documents and communications” does not satisfy FRCP 34’s particularity requirement and is too vague to put CHN on notice that as of March and April 2021, Relator sought production of the office records themselves. See Bitler Inv. Venture II, 2007 WL 1164970, at *6; Bruggeman, 219 F.R.D. at 436.
Because none of Relator's RFPs specifically requested production of the office records or reasonably notified CHN that it needed to search Relator's office records to determine whether they contained responsive information, the Court cannot conclude that CHN's failure to produce the office records is, by itself, sufficient to undermine CHN's certification that its responses to Relator's March and April 2021 requests for production were complete and correct at the time they were made. Fed. R. Civ. P. 26(g)(3).
Rather, the argument that Relator appears to be making, albeit imprecisely, is that CHN violated its obligation to conduct a “reasonable inquiry” of potential sources of information before certifying its discovery responses. Therefore, the real question before the Court is whether the delay in CHN's location and review of the office records amounts to a breach of its obligation to conduct a “reasonable inquiry” when responding to the first and second RFPs.
B. Reasonable Inquiry
Neither party can dispute that on December 23, 2021, CHN was placed on notice that Relator wanted CHN to look for the office records. In a letter memorializing a meet-and-confer, Relator's counsel wrote:
*7 As for [Relator] personally, he left behind notebooks/binders of his handwritten notes, folders, and calendars, to which he was denied access after his termination. CHN must produce those as not only responsive to Relator's Second Requests for Production of Documents, but also to his First Requests (e.g. Nos. 7, 17-20).
(Dkt 542-4 at 4). Accordingly, on this record, the Court finds that CHN was on notice of the need to investigate the location and content of Realtor's office records no later than December 23, 2021.
Having decided such, the Court now determines whether CHN complied with its obligation to make “a reasonable inquiry,” Fed. R. Civ. P. 26(g)(1), i.e., to seek the information reasonably available to it to ascertain the existence and location of Relator's office records. The Court finds that although CHN could (and perhaps should) have handled the process differently, CHN's actions and inquiry were not unreasonable.
“The duty to make a ‘reasonable inquiry’ is satisfied if the investigation undertaken by the attorney and the conclusions drawn therefrom are reasonable under the circumstances. It is an objective standard.” See Advisory Committee's 1983 Note on subd. (g) of Fed. R. Civ. P. 26. Based on the reasonable inquiry, the party responding to a production request under Rule 34 must “seek that information reasonably available to it from its employees, agents, or others subject to its control.” Novelty, 265 F.R.D. at 376.
In making his case for sanctions, Relator asserts that “no reasonable inquiry was made to locate responsive documents in CHN's custody and control.” (Dkt. 542 at 12). Relator believes that CHN's “yearslong failure” to respond or search for the office records violates its obligations under Rules 26 and 34. (Id. at 14).
But, while the Court acknowledges that CHN's process for storing and locating items in off-site storage leaves much to be desired, the Court does not conclude based on these facts that CHN's inquiry was unreasonable. As the Court determined above, in December 2021, CHN was specifically placed on notice that Relator wanted CHN to look for the office records which were left behind in November 2013. Shortly thereafter, in early 2022, CHN asked several employees, including Relator's successors, whether they were aware of any records left behind—all answered in the negative. (Dkt. 554 at 4-5). One employee did remember “some boxes” being moved into her office in early 2014, but she did not remember until “recently” that the boxes had been moved to offsite storage in 2017. (Dkt 554-5 at 3).
In conjunction with the subsequent steps taken, seeking information from employees most likely to know said information is sufficient to establish that CHN complied with its obligations in responding to Relator's requests for production (i.e., that CHN made a reasonable inquiry and reasonably relied on its employees’ answers). See Romero, 2019 WL 13155647, at *2. CHN asked Relator's successors, Relator's assistant, and other high-level officials at CHN—individuals most likely to know what, if anything, had happened to files left in Relator's office after his departure from CHN. (Dkt. 554 at 4-5).
In addition to asking its employees, CHN is also required to seek information from those subject to CHN's control—in this case, GRM. CHN's process for documenting items stored at GRM is less than ideal. But while Relator (and the Court) may wish for a better system, based on this record, the Court cannot find that CHN failed to conduct a reasonable investigation of its items at GRM.
*8 In 2021, CHN reviewed two files that were stored at GRM when responding Relator's requests for production. (Dkts. 554 at 4, 554-2 at 2-3, 554-3 at 3). After Relator explicitly stated that he was seeking his office records, CHN reached out to GRM again to inquire if there were any more records concerning Relator. (Dkt. 554 at 4). As laid out above, CHN then communicated with GRM to determine whether there were additional boxes which may concern Relator stored at its facility, physically reviewed said files, and eventually discovered the nine boxes at issue on April 3, 2023. (Dkts. 554 at 5-6, 554-3 at 3).
Overall, even though Relator is unsatisfied with the delay in receiving Relator's office records, the Court cannot find that CHN acted unreasonably or failed to conduct a reasonable investigation. CHN's delay in discovering the emails and logbook/inventory that squarely addressed Relator's office records certainly elicits raised eyebrows; however, CHN has made a sufficient showing that it complied with its obligation to review documents in its possession and control and to produce documents responsive to Relator's requests. In conclusion, and particularly when viewed against the magnitude of documents in this case, the Court is satisfied that CHN made a “reasonable inquiry” before certifying its responses under Rule 26(g)(1).
Moreover, the record before the Court does not establish that CHN's responses were incomplete or incorrect.[3] Against this backdrop and even assuming the Court had found that CHN failed to conduct a “reasonable inquiry” before certifying its responses (which it has not), the Court would still be hesitant to conclude that, at the time the responses were certified, the certifications were “improper” under Rule 26(g)(3) such that sanctions would be warranted.
C. Timely Supplementation
Having found that CHN did not violate its affirmative duty to inquire or reasonably investigate, the Court briefly addresses whether CHN complied with its duty to timely supplement its discovery responses. See Fed. R. Civ. P. 26(e). And, again, although Relator (and the Court) may wish that CHN had discovered Relator's office records sooner, on the record before it, the Court finds that CHN complied with its obligation to timely supplement its disclosures.
As set forth above, CHN was explicitly notified that Relator sought his office records in December 2021, although they were never the subject of a specific request. Based on CHN's representations, the search began shortly after, in January 2022. Through 2022 and into 2023, CHN tried to find out where Relator's office records might be located. (See supra).
Striking out with current and former employees, CHN turned to GRM. Before January 2023, GRM informed CHN that it only had two files under Relator's name; because of this representation, CHN was substantially justified in waiting to search GRM. After a few months of back and forth with GRM and multiple physical searches by a paralegal, CHN located Relator's office records in nine boxes marked only with barcodes on April 3, 2023. On April 27, 2023, CHN told Relator that it had located the office records, and on May 30, 2023, between oral arguments, Relator's counsel was able to inspect those records. (See supra).
Based on the foregoing, the Court finds that CHN timely supplemented its discovery responses as they pertain to Relator's office records. Again, while Relator (and the Court) wishes that CHN had a better, more streamlined process for labeling, identifying, and locating items stored at GRM, CHN reasonably relied on both its employees’ representations regarding Relator's office records and GRM's information that it only had a few items explicitly concerning Relator. By continuing to search GRM (albeit approximately 13 months after Relator's December 2021 letter) and notifying Relator fewer than 30 days after locating Relator's office records in April 2023, CHN complied with its obligations under Rule 26(e). The Court thus declines to order sanctions under Rule 37(c)(1).
V. Conclusion
*9 The Court recognizes that when Relator filed the current motion, many of the details disclosed in CHN's response were unknown to him. Without these details, Relator's position that CHN violated its discovery obligations in locating and producing Relator's office records appears better justified. However, CHN's explanation and description of the steps taken after December 23, 2021, are sufficient to assure the Court that, as it concerns Relator's office records, CHN complied with its discovery obligations.
Moreover, some of Relator's requested sanctions are rendered moot by CHN's response and Court orders. CHN answered many of the questions that Relator posed in its response (and during oral argument). (Dkt. 542 at 15-17). Based on the parties’ representations at the May 30, 2023, oral argument, Relator was able to physically inspect the boxes after the May 30, 2023, hearing. (See also Dkt. 634 at 15). The Court's Order of June 27, 2023, allows Relator to depose CHN's General Counsel Karen Ann Lloyd and question her about non-privileged information. (Dkt. 607 at 5). And the Court cannot see how reopening the Rule 30(b)(6) discovery compliance deposition will assist Relator in discovery relating to his office records. (Dkt. 542 at 17). The deposition concerned items and information that had not been produced or had been deleted; here, however, the office records have not been lost and have been produced to Relator.[4]
For the foregoing reasons, Relator's Motion for Sanctions Regarding Relator's Office Records, Dkt. [541], is DENIED.
So ORDERED.
Footnotes
For ease, the Court will refer to the items at issue as “office records.”
The letter's only arguable reference to physical documents is the statement that“[p]reservation of paper alone does not constitute the full preservation of evidence.” (Dkt. 542-1 at 2).
Nor have the parties suggested that the subsequent review of Relator's office records showed that CHN's production was incomplete or incorrect. (Dkts. 615, 634). The parties have reviewed the contents of the boxes, and no discovery dispute over the production has been raised. Id.
Further, the parties have already stipulated to reopening depositions to question deponents about subsequently produced documents, and the stipulation was entered after Magistrate Judge Dinsmore authorized the parties’ “discovery on discovery.” (See Dkt. 523). The Court will not interfere with the parties’ negotiated stipulation.