Leprino Foods Co. v. Avani Outpatient Surgical Ctr.., Inc.
Leprino Foods Co. v. Avani Outpatient Surgical Ctr.., Inc.
2024 WL 4488711 (C.D. Cal. 2024)
September 30, 2024
Chooljian, Jacqueline, United States Magistrate Judge
Summary
The plaintiffs filed a motion to compel the defendant to produce ESI in accordance with a stipulated protective order and e-discovery stipulation. The court granted the motion in part and denied it in part, ordering the defendant to produce ESI in electronic form and conduct a diligent search for relevant documents. The court also imposed monetary sanctions on the defendant for their failure to timely file an opposition to the motion.
Additional Decisions
Leprino Foods Company, et al.
v.
Avani Outpatient Surgical Center, Inc., et al
v.
Avani Outpatient Surgical Center, Inc., et al
Case No. 2:22-cv-07434-DSF-JC
United States District Court, C.D. California
Filed September 30, 2024
Chooljian, Jacqueline, United States Magistrate Judge
Proceedings: (IN CHAMBERS) ORDER SUBMITTING AND GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION TO COMPEL DEFENDANT THE CENTER FOR SURGERY AT BEDFORD, LLC (DOCKET NO. 349)
I. SUMMARY
*1 On February 9, 2024, Plaintiffs Leprino Foods Company and Leprino Foods Health & Welfare Plan (collectively, “Leprino” or “Plaintiffs”) filed a Motion to Compel Defendant the Center for Surgery at Bedford, LLC (“Motion to Compel”).[1] (Docket No. 349). Plaintiffs seek an order compelling Defendant the Center for Surgery at Bedford, LLC (“Bedford”) to provide further responses to multiple interrogatories;[2] further responses and unredacted documents responsive to multiple document requests (“Document Request [or RFP] Nos. 1-37”), a privilege/redaction log, and a “destruction/unavailable” log. Plaintiffs also seek an order compelling Bedford and its counsel, jointly and severally, to pay the fees/costs incurred by Plaintiffs in connection with the filing of the Motion to Compel. On March 4, 2024, Bedford belatedly filed an opposition to the Motion to Compel (“Opposition” or “Opp.”) and a supporting Declaration of Bruce A. Berman (“Berman Decl.”) with exhibits (“Berman Ex.”).[3] (Docket No. 373). On March 7, 2024, Plaintiffs timely filed a Reply (“Reply”). (Docket No. 374).
*2 Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds the Motion to Compel appropriate for decision without oral argument.
Based upon the parties' submissions in connection with the Motion to Compel, the record, and the pertinent facts and law, the Court grants in part and denies in part the Motion to Compel as detailed below. To the extent the Court orders Bedford/its counsel to produce further responses/documents and to pay a portion of Plaintiffs' fees/costs, such items are due within fourteen (14) days.
II. FACTS
A. Fourth Amended Complaint (Docket No. 466)
In the operative Fourth Amended Complaint (“FAC”), Plaintiffs allege the following:
Leprino Foods Company, located in Denver, Colorado, privately pays for its employee health expenses. (FAC ¶ 2). Leprino Foods Health & Welfare Plan (“the Plan”) is an employer-sponsored group health plan governed by the Federal Employee Retirement and Income Security Act of 1974 (ERISA). (FAC ¶ 3). Avani Outpatient Surgical Center is an accredited surgery center located in Encino, California. (FAC ¶ 4). Mountain View was an accredited surgery center located in the same building as Avani. (FAC ¶ 5). In the spring of 2020, Mountain View stopped using the name Mountain View and began using the name Avani Outpatient Surgical Center. (FAC ¶ 23). Bedford, the other surgery center named in this action, is located in Beverly Hills, California. (FAC ¶ 6). Four of the surgeons at Avani also billed claims at Bedford. (FAC ¶ 36). (Mountain View, Avani and Bedford are collectively referred to as the “Surgery Center Defendants.”). (FAC ¶ 7).
In October 2020, Leprino heard that an employee was recruiting other employees for “mommy makeovers” at Mountain View. (FAC ¶ 32). The employee allegedly received a kickback of a fee per patient. (FAC ¶ 32). Around the same time, Leprino discovered that Bedford was billing at 10-20 times the usual and customary rate. (FAC ¶ 35).
Leprino began investigating fraud at the various surgery centers and unearthed a variety of conduct indicating that the Surgery Center Defendants billed for medically unnecessary procedures or billed for procedures that were not performed. (FAC ¶ 38). For example, the “Surgery Center Defendants [and multiple Defendant Doctors] have provided medically unnecessary endoscopies” and have “billed Leprino for a ‘biopsy’ in 100% of the endoscopies,” something that is unlikely to be needed with every endoscopy. (FAC ¶ 39). Leprino suggests that these endoscopies were particularly suspect because none of the 59 patients resided in the same counties as the surgery centers, but traveled to receive the procedure – sometimes even from out of state. (FAC ¶ 40).
Leprino also infers that many procedures billed by Defendants were not actually performed because it would have been nearly impossible, unsafe, or a violation of other rules and professional standards to have performed such procedures. For example, many procedures seem impossible because of the simultaneous nature of other procedures. There was billing for outpatient psychiatry on the same day that patients underwent surgery. (FAC ¶ 42). The Surgery Center Defendants billed for more than one procedure on the same day at the same time on the same patient by the same surgeon. (FAC ¶ 38). And the Surgery Center Defendants used a modifier 59 to bypass the computer systems and obtain “payments on multiple surgical procedures performed on the same day, at the same time, by the same provider, at the same facility.” (FAC ¶ 41).
*3 Some of the billing suggests incomplete or improper care for the billed procedures, indicating that the billed procedure likely did not happen. For example, there is a lack of pre-and post-operative care that would be needed for the surgeries supposedly performed. (FAC ¶¶ 46-47). And different surgeries were often performed on the same patient in close succession without the requisite recovery time. (FAC ¶ 48). One patient had three surgeries in four months, including two gastrointestinal surgeries. (FAC ¶ 48). For another patient there was a bill for anesthesia for a hernia surgery, but no bill for the facility or surgeon for the surgery. Two weeks after the supposed hernia surgery, the patient received an endoscopy for which there was a bill for the surgeon and facility but no anesthesia was billed. (FAC ¶ 43).
And some of the care would have violated laws if performed as billed. The billing for anesthesia was often done using the surgeon's National Provider Identifier, which Leprino says constitutes fraud. (FAC ¶ 44). Insurance and Medicare rules require separate anesthesia providers who receive separate certifications and training. (FAC ¶ 44).
Leprino also notes other concerning patterns such as upcoding, unbundling, and billing unlisted codes. (FAC ¶ 38). Unlisted codes, for example, are not guided by an established fee schedule and are supposed to be a “last resort.” (FAC ¶ 45). Defendants charged for unlisted codes in 22 of 59 patients. (FAC ¶ 45).
Based on these circumstances, Leprino alleges that the Surgery Center Defendants were (1) charging Leprino for various surgeries but providing the patients with cosmetic surgery or some other inducement; (2) charging and providing medically unnecessary surgeries including the above; (3) charging for services, including anesthesia services, that were not actually provided or were provided by someone else; and (4) paying for referrals from Leprino employee Ms. Zaragoza (and possibly others) to refer patients and/or to procure patients' insurance information for purposes of submitting false and fraudulent claims. (FAC ¶ 49).
Leprino asserts claims for common law fraud, restitution under ERISA § 502(a)(3), violation of the Unfair Competition Law §§ 17200 et seq. (UCL), and intentional interference with contractual relations. (FAC ¶¶ 117-47). Leprino asserts the four claims against eighteen Defendants: the three surgery centers, two former employees, eleven doctors, an entity that provides administrative/staffing services to at least one of the surgery centers, and an individual who controls the finances of two of the surgery centers.[4] (FAC ¶¶ 4-28).
B. Pertinent Discovery Facts
In June 2022 – before this action was filed in October 2022 – Plaintiffs served Bedford with a Preservation Demand, effectively affording it notice of Plaintiffs' claims in this action. (Bowles Decl. ¶ 16; Bowles Ex. J).
On February 1, 2023, the parties – including Bedford whose counsel signed it on January 31, 2023 – submitted and the then-assigned Magistrate Judge issued a Stipulated Protective Order. (Docket Nos. 102, 103; Bowles Decl. ¶ 9). On February 28, 2023, the parties – including Bedford whose counsel signed it on the same date – submitted a Stipulated E-Discovery Specification, Pursuant to Fed. R. Civ. P. 26(f) (“E-Discovery Stipulation”), which the then-assigned Magistrate Judge issued on March 1, 2023. (Docket Nos. 123, 124; Bowles Decl. ¶ 9).
*4 On March 6, 2023, Plaintiffs propounded on Bedford Requests for Production of Documents, Set One (“Document Requests”), containing RFP Nos. 1-37. (Bowles Decl. ¶ 3; Bowles Ex. A). The Document Requests called for Bedford to produce documents in a specified format consistent with the Stipulated Protective Order and the E-Discovery Stipulation and to provide specified information regarding responsive documents that were destroyed, lost or otherwise unavailable (“destruction/ unavailable log). (Bowles Ex. A). On April 24, 2023 – after Bedford had assertedly requested and been granted an extension of time to respond to the Document Requests – Bedford served written responses thereto, but did not produce any documents. (Bowles Decl. ¶ 4; Bowles Ex. B). Bedford represented that it would produce documents on May 19, 2023. (Bowles Decl. ¶ 6).
On May 2, 2023, Plaintiffs propounded on Bedford Interrogatories (Set One) (“Interrogatories”), containing Interrogatory Nos. 1-22. (Bowles Decl. ¶ 5; Bowles Ex. C). On May 31, 2023, Bedford responded to the Interrogatories. (Bowles Decl. ¶ 6; Bowles Ex. D).
On June 9, 2023, Plaintiffs' counsel sent an initial meet and confer letter to Bedford's counsel regarding Bedford's assertedly deficient responses to the Document Requests and failure to produce documents, requesting that Bedford's counsel respond immediately to address Plaintiffs' concerns or if Bedford was unmoved, to meet and confer in person at Plaintiffs' counsel's office on June 28, 2023. (Bowles Decl. ¶ 7; Bowles Ex. E).[5] Plaintiffs' counsel attests that Bedford's counsel did not respond to such letter. (Bowles Decl. ¶ 8).
Bedford's counsel attests: After his receipt of the June 9, 2024 letter, he and Plaintiffs' counsel (Attorney Vu) arranged to meet and confer telephonically on July 6, 2024, but “[g]iven the proximity of the July 4 Holiday and other issues [Attorney Vu] suggested, and [Bedford's counsel] agreed that it would be better to have an in-person meet and confer with [Attorney Bowles] ... [which] was set for July 12, 2023.” (Berman Decl. ¶¶ 4, 5; Berman Ex. A). Attorney Bowles later suggested that the meeting would appropriately be postponed if Bedford produced documents responsive to the Document Requests by July 11, 2024. (Berman ¶ 5; Berman Ex. B).[6]
On July 11, 2023, Bedford made its initial production of documents, producing 793 pages of documents in a .pdf format labeled Bedford 001-793. (Bowles Decl. ¶ 8; Berman Decl. ¶ 6).[7] In light of such production, the July 11, 2024 meeting was cancelled. (Berman Decl. ¶ 5; Berman Ex. B).
*5 On July 21, 2023, Plaintiffs' counsel sent another meet and confer letter directed to Bedford's counsel and five other sets of counsel for other Defendants addressing assertedly deficient responses received from the foregoing counsels' offices in response to Plaintiffs' document requests and interrogatories, and requesting to meet and confer on July 25 or July 26, 2024. As to Bedford specifically, Plaintiffs' counsel complained about the format of the production to date and the asserted fact that Plaintiff had not received certain specified categories of documents from Bedford. (Bowles Decl. ¶ 10; Bowles Ex. F).[8] Bedford's counsel's mother-in-law passed away on July 23, 2023, causing him to be out of the office until July 31, 2023, and accordingly he was not able to meet and confer on either of the dates suggested by Plaintiffs' counsel. (Bedford Decl. ¶ 7). On July 31, 2023, Bedford's counsel emailed Plaintiffs' counsel to arrange for a meet and confer and it was ultimately agreed that they would telephonically meet and confer on August 9, 2023 at 1:00 p.m. (Bedford Decl. ¶ 7; Bedford Ex. C).
On August 9, 2023 at 12:50 p.m. – ten minutes before Plaintiffs' counsel and Bedford's counsel were scheduled to meet and confer telephonically – Plaintiffs' counsel sent Bedford's counsel another meet and confer letter regarding Bedford's assertedly deficient responses to the Interrogatories – specifically referencing Interrogatory Nos. 4, 5, 12, 13, and 15. (Bowles Decl. ¶ 11; Bowles Ex. G; Berman Decl. ¶ 8; Berman Ex. D).[9] At 12:59 p.m., Bedford's counsel emailed Plaintiffs' counsel, acknowledged receipt of the letter, and indicated that he would not be able to review it before their 1:00 p.m. meeting, but that they could discuss it and if necessary, they could set a separate time to discuss it and anything they did not get to regarding the document production. (Berman Ex. D). Counsel then participated in the scheduled telephonic meet and confer session. (Bowles Decl. ¶ 11; Bowles Ex. G; Berman Decl. ¶ 8). According to Plaintiffs' counsel: Bedford's counsel represented during the call that he would respond to all three of Plaintiffs' counsel's meet and confer letters by August 25, 2023 – a date he selected. (Bowles Decl. ¶ 11). According to Bedford's counsel: The meeting was somewhat productive but lasted under an hour and counsel were unable to discuss the Interrogatory responses so it was agreed that Bedford's counsel would review the prior letters as well as the August 9, 2023 letter and respond by August 25, 2023. (Berman Decl. ¶ 8; Berman Ex. E).[10]
According to Bedford's counsel, there was discussion over the next month or so regarding a process to resolve the difference. (Berman Decl. ¶ 9). On August 24, 2024, Bedford's counsel emailed Plaintiffs' counsel, stating that he would respond no later than August 29, 2024, essentially unilaterally extending Bedford's response deadline. (Bowles Decl. ¶ 11; Berman Ex. E). In response, Plaintiffs' counsel emailed Bedford's counsel, suggesting that “rather than engaging in a letter writing campaign,” counsel “set up a call to discuss supplementation of Bedford's responses and production,” and requesting Bedford's counsel's availability for such a call on August 25 or August 29, 2023. (Berman Decl. ¶ 9; Berman Ex. E).
*6 On September 12, 2023 – after some assertedly unproductive back and forth discussions – Plaintiffs' counsel sent yet another meet and confer letter to Bedford's counsel regarding assertedly outstanding issues with Bedford's responses to the Document Requests and Interrogatories, Bedford's document production, and the absence of a privilege log, and seeking Bedford's counsel's availability to confer between September 12 and September 22, 2023. (Bowles Decl. ¶ 12; Bowles Ex. H; Berman Decl. ¶ 10). Such letter addressed in detail Bedford's objections to the Document Requests and Interrogatories, specifically referenced Interrogatory Nos. 4, 5, 12, 13, 16 and 20 and all of the Document Requests, i.e., RFP Nos. 1-37, pointed to the multiple ways in which Bedford had assertedly failed to comply with the E-Discovery Stipulation, identified multiple categories of assertedly missing responsive, non-privileged documents, and highlighted Bedford's failure to produce a privilege log. (Bowles Decl. ¶ 12; Bowles Ex. H). Plaintiffs' counsel attests that Bedford's counsel did not respond to such letter. (Bowles Decl. ¶ 12). Bedford's counsel attests – and the email correspondence reflects – that on September 15, 2024, he contacted Plaintiffs' counsel to set up a meeting to discuss the letter, and that an in-person meeting was arranged and took place on September 21, 2023 at Plaintiffs' counsel's office. (Berman Decl. ¶ 10; Berman Ex. F). During such meeting Bedford's counsel assertedly advised Plaintiffs' counsel that Bedford was in the process of retaining an e-discovery consultant to help identify and harvest responsive documents and needed time to do so before it could offer further insight into the discovery responses. (Berman Decl. ¶ 10).
Bedford's counsel assertedly thereafter apprised Plaintiffs' counsel of Bedford's progress in harvesting and identifying documents. (Berman Decl. ¶ 11; Bedford Ex. G). On September 28, 2024, Bedford's counsel indicated that it appeared he would be in a position to provide supplemental responses and documents by October 6, 2023, but on October 9, 2024, advised that there had been issues harvesting the documents and data and that he was working to determine a new production date. (Bedford Ex. G). On October 11, 2023, Bedford's counsel emailed that the initial harvest of documents included approximately 90,000 pages, most of which would be unresponsive, but that the process of culling/processing/etc. was a large task, and that he would keep her posted and hoped to be able to produce by October 20, 2023. (Berman Ex. G). On October 23, 2023, Bedford's counsel emailed that he was still working on the records and should be able to give Plaintiffs' counsel a more accurate picture in the next few days. (Berman Ex. G). There apparently were no further written communications regarding that process but Bedford's counsel assertedly spoke with Plaintiffs' counsel at least a few more times prior to November 28, 2023, on which date Plaintiffs' counsel emailed Bedford's counsel inquiring about the status of the production. (Berman Decl. ¶ 12; Berman Ex. H). Bedford's counsel responded that he hoped to be able to make a further production by the middle of the week of December 4, 2023. (Berman Decl. ¶ 12; Berman Ex. H).
On December 19, 2023, Bedford made a second production of 6048 pages (1631 documents), bates-numbered Bedford 794-6841 solely to Plaintiffs through an emailed link. (Bowles Decl. ¶ 13; Berman Decl. ¶ 13; Berman Ex. I ). According to Bedford's counsel, such production included 782 emails, encompassing some 1500 pages, with 183 instances of redaction, corresponding to medical information for persons entirely unrelated to this action. (Berman Decl. ¶ 14). Bedford's counsel's accompanying email advised that he was leaving on vacation that night and would be out of the country for the rest of the year, suspected there would be more documents to produce in the first week or so of the new year, acknowledged that he still owed Plaintiffs amended responses to the Document Requests and a privilege log, represented that such items would be produced during the first week of the new year, and requested that Plaintiffs' counsel forego any anticipated motion work until mid-January. (Berman Decl. ¶ 13; Berman Ex. I; Bowles Decl. ¶ 13).
On January 19, 2024, Plaintiffs' counsel emailed Bedford's counsel another meet and confer letter, referencing Bedford's failure to respond to the prior meet and confer letters, assertedly incomplete and overly redacted document production and improper objections, and failure to produce supplemental responses, privilege/redaction and destruction/unavailable logs, and requesting dates and times to meet and confer between January 19, 2024 and January 29, 2024. (Bowles Decl. ¶ 14; Bowles Ex. I).
*7 On January 29, 2023, Bedford made a third production to Plaintiffs and produced to other Defendants, and again to Plaintiffs, the items that constituted the aforementioned second production to Plaintiffs.[11] (Bowles Decl. ¶ 13; Berman Decl. ¶ 15; Berman Ex. J). Again, Bedford did not concurrently provide any supplemental or amended responses to the Document Requests. (Bowles Decl. ¶ 13).
Bedford's counsel attests that he did not see Plaintiffs' counsel's January 19, 2024 letter until February 1, 2024 as he was searching his spam folder for something he had been expecting. (Bedford Decl. ¶ 16). On February 2, 2024, Bedford's counsel emailed Plaintiffs' counsel, advised her of the foregoing, and asked Plaintiffs' counsel to hold off on motion work to permit Bedford's counsel to review and respond, in light of Bedford's production up to that point. (Bowles Decl. ¶ 14; Berman Decl. ¶ 16; Berman Ex. K). On February 7, 2024, Plaintiffs' counsel emailed Bedford's counsel, indicated that she had been holding Plaintiffs' motion in good faith waiting for him to respond, but that he had still not done so. (Berman Ex. L). On the same date, Bedford's counsel replied that he was hopeful he could respond by the close of business on February 19, 2024. (Berman Ex. L).
Plaintiffs' counsel declined to wait any longer and filed the Motion to Compel on February 9, 2024, by which date, Bedford's counsel had not responded. (Bowles Decl. ¶¶ 11, 14; Docket No. 349).
On February 29, 2024, Bedford made a fourth production of 1,110 pages, which assertedly mostly supplements the medical records and patient files previously produced. (Berman Decl. ¶ 17).
On August 22, 2024 – after the instant Motion to Compel was fully briefed – the District Judge extended the discovery cut-off date from September 13, 2024 to January 7, 2025. (Docket No. 482).
Multiple attorneys worked on the Motion to Compel on behalf of Plaintiffs, and, as of February 9, 2024, Plaintiffs had assertedly incurred $18,427.50 in related fees/costs. (Bowles Decl. ¶ 15; Han Decl. ¶ 3; Davis Decl. ¶ 3; and Vu Decl. ¶ 3).[12]
III. PERTINENT LAW
A. Governing Local Rules
*8 Local Rules 37-1, et seq. govern the filing of motions to compel discovery in the Central District of California. Such rules essentially contemplate that when a discovery dispute exists, the following shall occur: (1) the moving party will send the opposing party a meet and confer letter which comports with Local Rule 37-1,[13] with the opposing party having ten days to orally confer; (2) thereafter, if the parties are unable to resolve their differences, the moving party shall send the moving party's portion of a joint stipulation which comports with Local Rule 37-2.1 & 37-2.2 (and all supporting documents) to the opposing party, with the opposing party having seven days to insert its position and return the joint stipulation (and all supporting documents) to the moving party; (3) the moving party shall then sign the joint stipulation and send the joint stipulation to the opposing party who must sign and return the joint stipulation by the end of the next business day; (4) the moving party shall then file the joint stipulation along with a notice of motion, setting the matter for hearing not sooner than 21 days later/the court's next subsequent regular hearing date; and (5) the parties may file supplemental memoranda not later than fourteen days before the hearing date. See Local Rules 37-1, 37-2, 37-2.1, 37-2.2, 37-2.3, 37-3. Alternatively, in the event that the opposing party fails to fulfill any of its foregoing obligations, Local Rule 37-2.4 allows the moving party to file a motion with a declaration attesting to the opposing party's failure, along with a notice of motion, setting the matter for not sooner than 28 days later/the court's next subsequent regular hearing date, with the opposing party's opposition due 21 days before the hearing date and the moving party's reply due 14 days before the hearing date.[14] See Local Rule 37-2.4.
Pursuant to Local Rule 37-4, “[t]he failure of any counsel to comply with or cooperate in the foregoing procedures [set out in Local Rules 37-1 through 37-3] may result in the imposition of sanctions.” See Local Rule 37-2.4; see also Local Rule 83-7 (“The violation of or failure to conform to any of these Local Rules may subject the offending party or counsel to: [¶] (a) monetary sanctions, if the Court finds that the conduct was willful, grossly negligent, or reckless; (b) the imposition of costs and attorneys' fees to opposing counsel, if the Court finds that the conduct rises to the level of bad faith and/or a willful disobedience of a court order; and/or (c) for any of the conduct specified in (a) and (b) above, such other sanctions as the Court may deem appropriate under the circumstances.”).
Further, pursuant to Local Rule 7-12, “[t]he Court may decline to consider any memorandum or other document not filed within the deadline set by order or local rule. The failure to file any required document, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion” with a non-pertinent exception for motions for summary judgment. See Local Rule 7-12; see also Local Rule 7-13 (“A party filing any document in support of, or in opposition to, any motion noticed for hearing as above provided [in Local Rules 7-9 and 7-10] after the time for filing the same shall have expired, also shall be subject to the sanctions of L.R. 83-7 and the F.R.Civ.P.”).[15]
B. General Discovery Law
*9 Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, “[p]arties 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 its likely benefit.” Fed. R. Civ. P. 26(b)(1). Information within the foregoing scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).
Pursuant to Rule 33 of the Federal Rules of Civil Procedure, any party may serve upon any other party written interrogatories within the scope of Rule 26(b). Fed. R. Civ. P. 33(a)(2). Absent a stipulation or order extending time, a party must within 30 days after being served, respond to interrogatories by answer – furnishing information available to the party – or objection. Fed. R. Civ. P. 33(b). Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. Fed. R. Civ. P. 33(b)(3). The ground(s) for objecting to an interrogatory must be stated with specificity. Fed. R. Civ. P. 33(b)(4). General or boilerplate objections are improper – especially when a party fails to submit any evidentiary declarations supporting such objections. A. Farber & Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006).
A party responding to interrogatories has the option of producing business records where: (1) the answer to the interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing the records, and (2) the burden of deriving or ascertaining the answer is substantially the same for either party. Fed. R. Civ. P. 33(d). When a party produces business records, the party must “specify[ ] the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could[.]” Id.
Pursuant to Rule 34, any party may serve on any other party a request for the production or inspection of documents within the scope of Rule 26(b) which are in the responding party's possession, custody or control. Fed. R. Civ. P. 34(a). Documents are deemed to be within a party's possession, custody or control if the party has actual possession, custody or control thereof or the legal right to obtain the property on demand. In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995), cert. dismissed, 517 U.S. 1205 (1996). Accordingly, a party has an obligation to conduct a reasonable inquiry into the factual basis of its responses to discovery, and based on that inquiry, a party responding to a Rule 34 production request is under an affirmative duty to seek that information reasonably available to it from his employees, agents, or others subject to his control. A. Farber & Partners, Inc., 234 F.R.D. at 189 (citations and internal quotation marks omitted).
In response to a request for the production of documents a party must, as to each item or category, either: (1) state that the inspection will be permitted/production will be made; or (2) state with specificity the grounds for objecting to the request, including the reasons, and state whether any responsive materials are being withheld on the basis of that objection. Fed. R. Civ. P. 34(b)(2)(B)-(C). If the responding party states that it will produce documents, such production must be completed no later than the time specified in the request or another reasonable time specified in the response. Fed. R. Civ. P. 34(b)(2)(B).
*10 If a party fails timely to object to discovery requests, such a failure generally constitutes a waiver of any objections which a party might have to the requests.[16] See Fed. R. Civ. P. 33(b)(4) (any ground not stated in timely objection to interrogatory waived unless court, for good cause, excuses failure); Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1991) (“It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection.”) (citation omitted), cert. dismissed, 506 U.S. 948 (1992); Apple Inc. v. Samsung Electronic Co., Ltd., 2012 WL 952254, *2 (N.D. Cal. Mar. 20, 2012) (“Objections not interposed in a timely initial response may not be held in reserve and interposed after the period allowed for response ... ”) (citation omitted); Ramirez v. County of Los Angeles, 231 F.R.D. 407, 409-10 (C.D. Cal. 2005) (court declined to consider objections that were not asserted in responding party's original discovery responses based upon party's failure timely to make such objections).[17]
C. Privacy/HIPAA
As jurisdiction is predicated on both diversity and federal question jurisdiction (FAC ¶ 30), the Court considers both state and federal privacy law. Further, because records including medical information are to some degree in issue, the Court also considers the privacy provisions of the Health Insurance Portability and Accountability Act (“HIPAA”).
In California, the right to privacy is set forth in Article I, Section I of the California Constitution. California courts have treated the right to privacy as a privilege in the discovery context, and, as such, have determined it is a right subject to invasion depending upon the circumstances. See, e.g., Heller v. Norcal Mutual Ins. Co., 8 Cal.4th 30, 42-44 (1994), cert. denied, 513 U.S. 1059 (1994); Hill v. National Collegiate Athletic Ass'n, 7 Cal.4th 1, 37 (1994). Thus, “the privilege is subject to balancing the needs of the litigation with the sensitivity of the information/records sought.” Davis v. Leal, 43 F. Supp. 2d 1102, 1110 (E.D. Cal.1999); see also Pioneer Elecs. v. Superior Court, 40 Cal.4th 360, 371-75 (2007) (balancing privacy rights of putative class members with discovery rights of civil litigants).
*11 Similarly, federal courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests. A. Farber and Partners, Inc., 234 F.R.D. at 191. Courts balance the need for the information sought against the privacy right asserted. Id.
HIPAA's privacy provisions allow for disclosure of medical information in the course of administrative or judicial proceedings. 45 C.F.R. § 164.512(e)(1). However, HIPAA places certain requirements on both the medical professional providing the information and the party seeking it. See 45 C.F.R. § 164.512(e). Under HIPAA, disclosure is permitted, inter alia, pursuant to a court order, subpoena, or discovery request when the healthcare provider “receives satisfactory assurance from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order....” 45 C.F.R. § 164.512(e)(1)(ii)(B). The protective order must prohibit “using or disclosing the protected health information for any purpose other than the litigation ... “ and “[r]equire [ ] the return to the covered entity or destruction of the protected health information ... at the end of the litigation or proceeding.” 45 C.F.R. § 164.512(e)(1)(v).
IV. DISCUSSION AND RULINGS
The Motion to Compel, as narrowed by the Reply, currently seeks to compel Bedford to: (1) produce complete, non-evasive responses to Interrogatory Nos. 4, 5, 12, 13, 14, 16 and 20;[18] (2) produce complete supplemental responses to RFP Nos. 1-37, identifying specifically any documents that have been withheld on the basis of objections and confirming the extent to which Bedford has complied; (3) re-produce its document production without the unwarranted redactions; (4) produce any heretofore unproduced documents responsive to the Document Requests; (5) produce a privilege and redaction log identifying each document withheld consistent with the E-Discovery Stipulation; and (6) produce a destruction/unavailable log consistent with the instructions in the Document Requests. The Motion to Compel also requests that Bedford and its counsel, jointly and severally, be directed to pay Plaintiffs $18,427.50 in monetary sanctions. The Court below initially addresses certain procedural issues, then addresses certain general/global/overarching issues and then addresses the individual discovery requests in issue and the sanctions request.
A. Procedural Issues[19]
First, the Court rejects Bedford's assertion that the Motion to Compel should be denied because Plaintiffs' counsel assertedly failed to comply with the Local Rules by unilaterally filing a Motion to Compel instead of proceeding by way of a Joint Stipulation. (Opp. at 7-8). As indicated above, notwithstanding Plaintiffs' counsel's January 19, 2024 request, Bedford's counsel did not meet and confer within the requisite 10-day period (i.e., by January 29, 2024), as required.[20] See Local Rule 37-1. While the asserted facts that Bedford's counsel inadvertently missed such letter because it went to spam and actually did communicate with Plaintiffs' counsel about such letter a few days later on February 2, 2024, are things the Court considers in assessing whether Bedford/Bedford's counsel were operating in good faith and should or should not be sanctioned, they do not cure the failure to comply with Local Rule 37-1 and do not operate to deprive Plaintiffs of the right they otherwise have to proceed through a unilateral motion.
*12 Second, as noted above, the Court agrees with Plaintiffs that Bedford's Opposition to the Motion to Compel was not timely filed, such that the Court may, pursuant to Local Rule 7-12, deem such failure consent to the granting of the Motion to Compel. See supra note 3.[21] The Court nonetheless declines in this instance to exercise its discretion to deem Bedford's failure timely to file its Opposition consent to the granting of the Motion to Compel, but considers Bedford's/its counsel's untimeliness, and complete failure to explain or justify such tardiness in assessing the propriety of imposing sanctions.
B. General/Global/Overarching Issues
1. Privilege/Redaction Log
Plaintiffs note that Bedford has asserted privilege objections to multiple Document Requests (RFP Nos. 1, 2, 6-8 [Bowles Ex. B at 4-5, 8-9]), presume that Bedford has withheld and/or redacted information from responsive documents based thereon, point out that Bedford has nonetheless failed to produce a corresponding privilege log as required by the instructions in the Document Requests (Bowles Ex. A) and the E-Discovery Stipulation (Docket No. 124), and argue that Bedford should be required to do so. (MTC Memo at 16, 18).[22] Bedford essentially asserts that it has never refused to produce a privilege log, acknowledges that it has not yet done so, and represents that it has not withheld any privilege documents responsive to RFP Nos. 5-8 and 16. (Opp. at 18-20, 22, 30). Bedford does not so represent as to RFP Nos. 1 or 2 (as to which it has asserted individual privilege objections), or any other Document Requests.
The Motion to Compel is granted to the extent it seeks an order compelling Bedford to produce a privilege/redaction log identifying each document responsive to the Document Requests that has been withheld/redacted based on privilege consistent with the instructions in the Document Requests (Bowles Ex. A) and the E-Discovery Stipulation (Docket No. 124) and compliant with Fed. R. Civ. P. 26(b)(5)(A).[23] See e.g., Dole v. Milonas, 889 F.2d 885, 888 n.3, 890 (9th Cir. 1989) (indicating appropriate privilege log to include identity of attorney/client involved, nature of document, all persons/entities shown on the document to have received/sent it, all persons/entities known to have been furnished document or informed of its substance, and date document generated, prepared or dated). To the extent Bedford has withheld/redacted documents responsive to the Document Requests based on an unwaived privilege objection (see supra note 22), it is ordered to produce a log identifying each such document withheld/redacted.
2. Destruction/Unavailable Log
*13 Plaintiffs also assert that Bedford has failed to produce a “destruction/unavailable log” as required by the instructions in the Document Requests (Bowles Ex. A) and argues that Bedford should be required to do so. (MTC Memo at 2, 7, 11, 18). Bedford does not directly address this argument but does essentially represent that it has never had documents responsive to a couple of Document Requests (RFP Nos. 3, 9). (Opp. at 18, 20).
The Motion to Compel is granted to the extent it seeks an order compelling Bedford to produce a destruction/unavailable log consistent with the instructions in the Document Requests and Defendant Bedford is ordered to do so.
3. Format of Document Production
Plaintiffs assert that Bedford has failed to produce documents in the agreed upon format called for by the Document Requests and the parties' E-Discovery Stipulation. (MTC Memo at 18-20). Bedford does not address this argument. As Plaintiffs' argument appears to be well-taken, the Motion to Compel is granted to the extent it seeks an order compelling Bedford to produce/re-produce items in the format called for by the Document Requests and the E-Discovery Stipulation. To the extent Bedford has not previously produced responsive items in the format called for by Document Requests and the E-Discovery Stipulation, it is ordered to do so and is likewise ordered to produce responsive items otherwise called for by this order in the format called for by the Document Requests and the E-Discovery Stipulation.
4. Scope of Searches/Production
Plaintiffs point to at least two issues relating to the scope of Bedford's search and production of documents.
First, Plaintiffs suggest that Bedford has inappropriately limited the scope of its searches/ production to only communications, medical records, and billing records relating to patients whose treatment/bills were paid for by Leprino as reflected on one of the spreadsheets produced even though other patients – including those individuals whose claims appear on EOBs produced by United in this case – were members of the scheme in issue. (MTC Memo at 18). Bedford does appear to have limited its search/at least some of its responses to patients identified by Plaintiffs as having been treated at Bedford and for whom Bedford sought remuneration from the Leprino Plan. (See, e.g., Opp. at 18 [Argument regarding RFP No. 2]).
To the extent the Motion to Compel seeks to compel Bedford to conduct pertinent searches not limited to those Leprino patients identified on the spreadsheets, it is granted. Where a discovery request in issue calls for a response/production corresponding to “Leprino patients,” Bedford is required to conduct a reasonably diligent search for, and to produce all responsive documents in its possession, custody or control for all Leprino patients – not merely those who are identified on the spreadsheets produced – along with a corresponding supplemental response reflecting that it has done so. To the extent Defendant Bedford has not conducted a reasonably diligent search for and produced discovery responsive to the Document Requests in issue for all Leprino patients – not just those identified on the spreadsheets – it is ordered to do so, and to produce all responsive documents in its possession, custody or control, along with a corresponding supplemental response reflecting that it has done so.
Second, Plaintiffs assert that Bedford has indicated in response to RFP Nos. 3, 9, 10, 11, 13, 23, 24, 34, 35 and 36 that it “has not located any documents” but purportedly fails to “assert that the search was conducted with due diligence [and fails to] describe the search to allow the Court to determine whether it was reasonable.” (MTC Memo at 17) (citation omitted). Contrary to Plaintiffs' suggestion, Bedford's responses to all of the foregoing Document Requests represent that Bedford had not located responsive items “following a reasonably diligent search” (Bowles Ex. B at 6, 10, 11, 16, 20, 21), though Plaintiffs correctly indicate that Bedford has not described its search. Notwithstanding Bedford's representations in its responses, given the history of this matter and outstanding questions, the Court grants the Motion to Compel to the extent it seeks an order directing Bedford to describe in detail its search methodology and Bedford is directed to produce a declaration corresponding to the same so that there is a better basis to assess whether Bedford's search for responsive documents/information satisfies the requisite reasonable diligence standard and comports with the E-Discovery Stipulation.
5. Redactions Based on Non-Privilege Grounds
*14 Plaintiffs claim that Bedford has produced heavily redacted records that obscure arguably relevant information regarding patients that were assertedly part of the alleged scheme and requests that Bedford be required to produce unredacted versions of such records. (MTC Memo at 12, 17, 18). Bedford admits that it has redacted documents, but represents that such redactions are associated with medical records that “relate to persons who are entirely unrelated to this action.” (Opp. at 6). The Court infers from the foregoing that Bedford's aforementioned redactions are based on relevance and privacy/third party privacy/HIPAA.
To the extent the Motion to Compel seeks an order compelling Bedford to produce unredacted versions of documents that Bedford has produced in a redacted form based on relevance and/or privacy/third party privacy (including HIPAA), the Court grants the Motion to Compel and orders Bedford to produce unredacted versions of such documents and corresponding supplemental responses reflecting that it has done so. Courts are split as to whether it is appropriate to redact documents produced in discovery based on relevance[24] and privacy,[25] though such two predicates for redaction are intertwined. This Court finds the rationale of cases which disapprove of unilateral redactions of otherwise responsive documents based on relevance and privacy to be more persuasive than the rationale of cases which approve of such practice, especially where as here, Bedford has not demonstrated that any privacy concerns relative to the redacted information in this case cannot adequately be protected by the Stipulated Protective Order. Unilateral redactions, even when implemented with restraint and in good faith, give rise to suspicion that relevant material harmful to the producing party has been obscured and all too often, result in litigation of collateral issues wasting the time of both counsel and the Court such that, ordinarily and here, its drawbacks outweigh the minimal risk of harm that may result from disclosure of some irrelevant or private material pursuant to a protective order. Further, to the extent the redactions are based on privacy/third party privacy, the Court finds that Plaintiffs' need for the information outweighs the privacy/third party privacy rights particularly because the Stipulation Protective Order adequately addresses the privacy concerns.
6. Bedford's Objections
*15 Bedford has interposed multiple and varied objections to the discovery requests in issue. To the extent the Court below orders Bedford to produce documents/information in response to discovery requests as to which Bedford has asserted and stands on objections, the Court overrules the objections, unless otherwise indicated and finds that the discovery sought is relevant and proportional to the needs of the case considering the factors identified in Rule 26(b). The Court expressly addresses some of the objections below.
For example, Bedford has interposed “General Objections” which it has purportedly incorporated by reference into each individual response to the Document Requests and Interrogatories. (Bowles Ex. B at 2-4). Such general and boilerplate objections are improper and are overruled. See Farber, 234 F.R.D. at 188. They do not explain or analyze on an individualized basis, why any particular Interrogatory or Document Request is objectionable, and thus are inadequate.
For another example, to the extent the Court has ruled that Bedford must produce items as to which it has asserted privacy/third party privacy/HIPAA objections, it has determined that whether considered under state or federal privacy law, Plaintiffs' need for the information sought outweighs the privacy right of Bedford/third parties and that privacy concerns can adequately be protected by the Stipulated Protective Order entered in this action. (Docket No. 103). (See, e.g., A. Farber & Partners, Inc., 234 F.R.D. at 188 (federal courts ordinarily recognize constitutionally-based right of privacy that can be raised in response to discovery requests; courts balance the need for the information sought against the privacy right asserted; privacy concerns can adequately be protected by carefully drafted protective order); A.H. v. County of Los Angeles, 2023 WL 3035349 (C.D. Cal. Jan. 19, 2023) (“Given the protective order in place, [the] Court is likewise unpersuaded by Plaintiffs' assertion that HIPAA bars disclosure of these records”) (citing Gonzalez v. Marks, 2009 WL 179779, at *3 (E.D. Cal. Jan. 26, 2009) (HIPAA permits disclosure of medical information during judicial proceedings pursuant to a court order, subpoena, or discovery request when there is a protective order in place)).
For a final example, to the extent the Court has ruled that Bedford must produce items as to which Bedford has asserted/stands on objections that the discovery requests are unduly burdensome, the Court overrules such objections as they are conclusory and Bedford has failed to provide any evidentiary support to establish undue burden.
C. Interrogatories in Issue
As noted above, Plaintiffs' Notice of Motion reflects that Plaintiffs seek a Court Order compelling Bedford to provide further responses to Interrogatory Nos. 1-22, but Plaintiffs' Reply more narrowly requests that the Court order Bedford to produce further responses to only Interrogatory Nos. 4, 5, 12, 13, 14, 16 and 20. In light of the foregoing, the Court construes the Motion to Compel to have been narrowed to seek an order compelling Bedford to produce further responses to only Interrogatory Nos. 4, 5, 12, 13, 14, 16 and 20.[26] See supra note 2. The Court below addresses such individual interrogatories, and the parties' contentions regarding the same.
Interrogatory Nos. 4-5
*16 Interrogatory No. 4 calls for Bedford to identify, by setting forth the full name, address, and telephone number, each banking and financial institution where Bedford deposited funds obtained from billing for healthcare services provided to patients of Leprino. (Bowles Ex. C at 2).
Interrogatory No. 5 calls for Bedford to identify each bank account number in connection with each banking or financial institution above that Bedford used to deposit funds received for Leprino patients. (Bowles Ex. C at 2-3).
Bedford initially objected to these interrogatories because they “seek[ ] information that is protected by Bedford's financial privacy rights and is beyond the scope of permissible discovery” and did not provide a substantive response. (Bowles Ex. D at 2; Opp. at 10-11).
Bedford now asserts that even though it believes its objections are proper, certain documents that were produced by both UHC and Bedford include the requested information. Accordingly, Bedford represents that it will amend its responses to these interrogatories by identifying such documents by bates number.
The Motion to Compel is granted as to Interrogatory Nos. 4 and 5. The Court finds that the information sought is relevant, proportional to the needs of the case, and well within the scope of permissible discovery and that Plaintiffs' need for the information sought outweighs Bedford's financial privacy rights which are adequately protected by the Stipulated Protective Order.
As to Interrogatory No. 4, Bedford shall provide a supplemental verified response that either (1) expressly sets forth the full name, address, and telephone number of each banking and financial institution where Bedford deposited funds obtained from billing for healthcare services provided to patients of Leprino; or (2) expressly invokes and complies with Fed. R. Civ. P. 33(d).
As to Interrogatory No. 5, Bedford shall provide a supplemental verified response that either (1) expressly identifies each bank account number in connection with each banking or financial institution above that Bedford used to deposit funds received for Leprino patients; or (2) expressly invokes and complies with Fed. R. Civ. P .33(d).
Interrogatory No. 12
This interrogatory calls for Bedford to identify by first and last name, last known address, title, duties, and/or responsibilities, all owners and managers of Bedford. (Bowles Ex. C at 3).
Bedford initially objected to this interrogatory, asserting that it seeks information that is not relevant to any claims or defenses and as such is beyond the permissible scope of discovery, but, without waiving such objection further responded: (1) William Demasio (49.5%), President – may be contacted through undersigned counsel of record for Bedford; (2) Daniel Mandel (49.5%) CEO – may be contacted through undersigned counsel of record for Bedford; and (3) Dr. Avner Manzoor (1%), Medical Director – may be contacted through undersigned counsel of record for Bedford. (Bowles Ex. D at 4; Opp. at 3-4).
Plaintiffs argue that Bedford's response is incomplete, as it identifies owners, but no managers. (MTC Memo at 22).
Bedford argues that the Motion to Compel does not provide much detail as to the alleged infirmity of this response, pointing out that each owner is identified with his corresponding ownership interest. It indicates that if, as it seems, the concern is that there are other managers who are not owners, Bedford can amend. Bedford argues, however, that “that is not a particularly ‘clean’ interpretation of the interrogatory and confusion as to what is sought, under the present circumstances, is not a sanctionable omission.” (Opp. at 13).
*17 The Court grants the Motion to Compel as to Interrogatory No. 12 because Bedford's response thereto is incomplete and the interrogatory is perfectly clear such that the Court sees no basis for Bedford's asserted confusion. Bedford shall produce a supplemental verified complete response that identifies by first and last name, last known address, title, duties, and/or responsibilities, all owners and managers of Bedford.
Interrogatory No. 13
This interrogatory calls for Bedford to specify the percentage of ownership of each of Bedford's owners. (Bowles Ex. C at 3).
Bedford objected that this interrogatory seeks information that is not relevant to any claims or defenses and as such is beyond the permissible scope of discovery, but without waiving such objection referred Plaintiffs to its response to Interrogatory No. 12. (Bowles Ex. D at 4).
Bedford now argues that the Motion to Compel should be denied as to Interrogatory No. 13 because the Motion to Compel does not identify any deficiency in Bedford's response thereto. (Opp. at 9).
The Court denies the Motion to Compel as to Interrogatory No. 13. Aside from indicating that Bedford's objections are not well-taken, Plaintiffs provide no specific argument relative to this interrogatory in either the MTC Memo or the Reply. In any event, Bedford's response to Interrogatory No. 12 specifies the percentage of ownership of each of Bedford's owners so it appears that Bedford has supplied the requested information, albeit in response to a different interrogatory.
Interrogatory No. 14
This interrogatory calls for Bedford to specify the circumstances that led to Bedford performing surgical procedures on Leprino patients. (Bowles Ex. C at 3-4). Bedford responded:
Bedford objects as the Interrogatory is vague and ambiguous as the phrase “circumstances that led to BEDFORD performing surgical procedures on LEPRINO patients.” First, Bedford cannot discern or understand what is meant by “circumstances” in the context of this Interrogatory. Eighteen (18) Leprino patients were treated at Bedford, each presenting with their own constellation of symptoms and conditions to different physicians and, as such, the term “circumstances” can mean many different things. Second, Bedford is a facility in which surgical procedures were performed by surgeons. Bedford did not perform surgical procedures, making the Interrogatory, in context, even more impossible to understand. Finally, Bedford objects as the question is compound as it relates 18 different patients who received a total of some 40 different procedures. Without waiving said objections and subject thereto, Bedford can only respond that as to each situation, a surgeon scheduled a surgery to take place at Bedford.
(Bowles Ex. D at 4-5).
Bedford now argues that the Motion to Compel should be denied as to Interrogatory No. 14 because the Motion to Compel does not identify any deficiency in Bedford's response thereto. (Opp. at 9).
The Court denies the Motion to Compel as to Interrogatory No. 14. Aside from arguing that Bedford's objections are not well-taken and are interposed to avoid providing complete and non-evasive responses (see Reply at 4), Plaintiffs provide no specific argument relative to this interrogatory in either the MTC Memo or the Reply.
Interrogatory No. 16
This interrogatory calls for Bedford to specify how co-payments, deductibles, and/or co-insurance were collected in connection with Leprino patients. (Bowles Ex. C at 4).
*18 Bedford initially objected that this interrogatory is overbroad and seeks discovery beyond the scope of discovery because it is not limited to Leprino patients who received services at Bedford but, without waiving said objections, responded: “[G]enerally speaking, patients who had payment obligations were sent billing statement.” (Bowles Ex. D at 5-6; Opp. at 13).
Plaintiffs argue that Bedford's response to this interrogatory is evasive or incomplete and should be supplemented. (MTC Memo at 22). It notes that the interrogatory seeks information about the collection of co-payments, deductibles, and/or co-insurance, not the billing of those fees, which would not, in and of itself, lead to collection of the types of fees – i.e., co-payments, which are typically collected when the patients arrives for surgery. (MTC Memo at 23).
Bedford asserts that its objection is substantive here as the answer is not the same for each patient or classification of patient. It notes that the Leprino patients were insurance patients and states that the processes were not the same for them as it is for patients who paid for their own procedures (i.e., cash payments because those patients had no insurance coverage). It further indicates that ‘co-insurance,’ ‘deductibles,’ and ‘co-payments’ are not synonymous terms and contends that its objection is therefore well-taken. Bedford nonetheless suggests that there is probably a negotiation that can occur to both limit the interrogatory and hence the response. (Opp. at 13).
The Motion to Compel is granted as to Interrogatory No. 16 and Bedford's objections to this interrogatory are overruled. Bedford's response is at least to some degree non-responsive as this interrogatory calls only for information relative to Leprino patients so Plaintiffs' distinction between Leprino and non-Leprino patients is beside the point. Further, as Plaintiffs point out, this interrogatory calls for information regarding collections (e.g., the means through which funds constituting co-payments, deductibles, and/or co-insurance relative to Leprino patients were collected, the location/accounts to which such collections went, etc.). Accordingly, Bedford is ordered to provide a verified supplemental response to this interrogatory specifying how co-payments, deductibles, and/or co-insurance were collected in connection with Leprino patients. To the extent Bedford continues to have any uncertainty/questions regarding the precise information sought, Bedford's counsel shall confer with Plaintiffs' counsel regarding the same.
Interrogatory No. 20
This interrogatory calls for Bedford to specify how anesthesia providers were assigned to Bedford's surgical procedures. (Bowles Ex. C at 4). Bedford responded:
Bedford objects as the Interrogatory is overbroad in the sense that its scope is not limited to Leprino patients. Moreover, Bedford objects as the Interrogatory is vague in context, as Bedford is and was a facility in which surgeries were performed and not the professional who actually performed the surgical procedures. Moreover, the word “assigned” is vague and ambiguous and in that it presumes Bedford had the authority to require particular anesthesiologists to participate in surgeries at Bedford. Without waiving said objections and in the spirit of discovery, generally speaking the person who scheduled the surgeries after being contacted by a surgeon, contacts anesthesiologists who are familiar to Bedford through prior experience, to request that they participate. If the first contact is not available on the scheduled date, another will be contacted, usually in no particular order, and the process is continued until an anesthesiologist agrees.
*19 (Bowles Ex. D at 6-7; Opp. at 14).
Plaintiffs argue that Bedford's response to this interrogatory is evasive or incomplete and should be supplemented. (MTC Memo at 22). They note that contrary to Bedford's suggestion, the interrogatory does not “assume[ ] that Bedford had authority to require particular anesthesiologists to participate in surgeries at Bedford[,]” but that even if it did, anytime a patient is placed under anesthesia at the surgery center, the expectation is that the surgery center – not the surgeon – will have credentialed an anesthesia provider to perform sedation for patient safety. (Reply at 4-5). Plaintiffs represent that that is a surgery center responsibility, which is required for passing accreditation and obtaining deemed Medicare status which Bedford has. (Reply at 4-5).
Bedford argues that the Motion to Compel mischaracterizes the response noting that its response does not state that anesthesiologists were “contacted by a surgeon” and that instead, the reference to “person” is to people at Bedford who scheduled the surgeries. Bedford represents that this response is as complete as it can be given the language of the interrogatory. (Opp. at 14).
The Motion to Compel is granted in part and denied in part as to this interrogatory. The Court narrows the interrogatory to call for Bedford to specify how anesthesia providers were assigned to Bedford's surgical procedures for Leprino patients. Bedford shall provide a further supplemental response specifying in further detail how anesthesia providers were assigned to Bedford's surgical procedures for Leprino patients. For example, such response should explain whether Bedford maintains a list of anesthesiologists from which the scheduler works, the criteria for being on any such list/how such list is compiled, the methodology/criteria/priority used by the scheduler to select a particular anesthesiologist for a given procedure, etc.
D. Document Requests
As indicate above, the Motion to Compel requests that the Court order Bedford to produce complete supplemental responses to RFP Nos. 1-37, identifying specifically any documents that have been withheld on the basis of objections and confirming the extent to which Bedford has complied and any heretofore unproduced documents responsive to the Document Requests. The Court addresses these issues below.
RFP No. 1
This request essentially calls for Bedford to produce documents sufficient to identify by first and last name, title and last known phone number and email address, all persons who were involved in the day-to-day operation of Bedford from January 1, 2019 to December 31, 2021. (Bowles Ex. A at 3).
Defendant Bedford responded to this request with objections, but indicated that subject to, and without waiving those objections, it would produce responsive, non-privileged documents in its possession, custody, or control and, pursuant to the parties' E-Discovery Stipulation and Stipulated Protective Order relating to patients identified in LEPRINO 000002 that received treatment at BEDFORD and for which BEDFORD sought payment from LEPRINO. (Bowles Ex. B at 5).
*20 Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing non-privileged documents responsive to this request and that Bedford should be ordered to produce the same. (MTC Memo at 19).
Defendant Bedford now asserts that “[t]he real difficulty and the reason for the objections, is that compliance, absent the existence of some compilation, such as a roster or mailing list, is that Bedford must produce employee files, perhaps payroll records or other items that implicate the privacy or financial concerns of the employees or Bedford. Bedford does not maintain or possess a roster or mailing list of their employees, either past or present.” (Opp. at 17).
The Motion to Compel is granted as to RFP No. 1 and Bedford's objections thereto are overruled. To the extent Bedford has not already done so, it is ordered to produce documents sufficient to identify by first and last name, title and last known phone number and email address, all persons who were involved in the day-to-day operation of Bedford from January 1, 2019 to December 31, 2021 and a corresponding supplemental response reflecting that it has done so. Bedford is free to comply with this production order by preparing a new document that lists the information in issue.
RFP No. 2
This request essentially calls for Bedford to produce all medical and billing records for patients who are or were employed by Leprino (“Leprino employees”) and who discussed receiving a procedure or did receive a procedure at Bedford between January 1, 2019 and December 31, 2021. (Bowles Ex. A at 2-3).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, it would produce responsive, non-privileged documents in its possession, custody, or control, and pursuant to the E-Discovery Stipulation and Stipulated Protective Order relating to patients identified in LEPRINO 000002 that received treatment at BEDFORD and for which BEDFORD sought payment from LEPRINO. (Bowles Ex. B at 5).
As to RFP Nos. 2, 5, and 6, Plaintiffs argue that they are entitled to “complete and unredacted” medical and billing records for Leprino patients, including all billing communications with billers and United, all EOBs from United, patient payments, and check payments. They assert that Bedford promised to produce all of the requested records but has produced only a handful of checks to surgeons, which is incomplete. (MTC Memo at 19).
Bedford now represents that it will amend its response to this request and that it “has produced all billing records and medical records for each of the Leprino Patients Leprino identified as having been treated at Bedford and for whom Bedford sought remuneration from the Leprino Plan. Neither the billing records relating to such patients, nor medical records have been redacted.” (Opp. at 17-18).
The Motion to Compel is granted as to RFP No. 2 and Bedford's objections thereto are overruled. Bedford is ordered to (1) conduct – to the extent it has not already done so – a reasonably diligent search for all medical and billing records for Leprino patients who discussed receiving or received a procedure at Bedford between January 1, 2019 and December 31, 2021; (2) produce unredacted versions of all documents such reasonably diligent search yields; and (3) provide a supplemental response reflecting that it has done so, that it has not withheld any responsive documents in its possession, custody or control based on anything other than privilege, and that to the extent it has withheld/redacted any responsive documents in its possession, custody or control based upon privilege to so state and to concurrently identify such withheld/redacted items on a log and to produce the same.
RFP No. 3
*21 This request essentially calls for Bedford to produce all organization charts or similar documents identifying any person that was involved in the operation of Bedford from January 1, 2019 to December 31, 2021. (Bowles Ex. A at 4).
Defendant Bedford responded to this request with objections but indicated that subject to and without waiving such objections, following a reasonably diligent search, it has not located any “organization charts.” (Bowles Ex. B at 6).
As to RFP No. 3, Plaintiffs argue that Bedford's response indicating nothing exists is not true, as there are any number of Articles, Bylaws, Organizational Records, etc. responsive to this request that are in Bedford's possession, custody, or control. (MTC Memo at 20).
Bedford currently represents that it possesses no organization charts and has not since its founding, and that it will amend its response to so state and to reflect that no documents are withheld based upon any objection. (Opp. at 18).
The Motion to Compel is granted in part and denied in part as to this request. As Bedford essentially represents that it does not have and has never had an organizational chart, the Motion to Compel is denied to the extent it seeks to compel production of the same. However, the Motion to Compel is granted to the extent it seeks to compel Bedford to produce documents in its possession, custody or control sufficient to identify any person that was involved in the operation of Bedford from January 1, 2019 to December 31, 2021 and a corresponding supplemental response consistent with its representation above and the Court's directive. Bedford is free to comply with this production order by preparing a new document that lists the information in issue.
RFP No. 4
This request essentially calls for Bedford to produce documents sufficient to identify all bank accounts, including bank account numbers, for accounts where Bedford deposited payments received from Leprino or United. (Bowles Ex. A at 4).
Defendant Bedford responded to this request solely with objections. (Bowles Ex. B at 6).
As to RFP Nos. 4 and 30, Plaintiffs assert that they are entitled to a complete response and indicate, as of the filing of the Motion to Compel, that they had only received an incomplete production consisting of the account number and a handful of checks paid to the “Surgeon Defendants.” (MTC Memo at 20).
Bedford represents that it produced checks to three of the Doctor Defendants which includes the requested information in its first production of 793 pages of documents and that it would amend its response to so state. (Opp. at 4).
The Motion to Compel is granted and Bedford's objections to this request are overruled. Bedford is ordered to (1) produce documents sufficient to identify all bank accounts, including bank account numbers, for accounts where it deposited payments received from Leprino or from United related to Leprino patients for the period of January 1, 2019 to December 31, 2021; and (2) provide a supplemental response indicating that it has done so and that it has not withheld any responsive documents in its possession, custody or control based on its objections.
RFP No. 5
This request essentially calls for Bedford to produce, for January 1, 2019 to December 31, 2021, documents and communications between United and/or Leprino employees and Bedford that relate to billing and reimbursement of claims submitted by any of the Defendants, including, without limitation, all Explanations of Benefits (“EOBs”). (Bowles Ex. A at 4).
*22 Defendant Bedford responded to this request with objections but indicated that subject to and without waiving such objections, and construing the request as seeking EOBs and related billing material, it would produce responsive, non-privileged documents in its possession, custody or control, and pursuant to the parties' E-Discovery Stipulation and Stipulated Protective Order involving patients identified in LEPRINO 000002. (Bowles Ex. B at 7).
As to RFP Nos. 2, 5, and 6, Plaintiffs argue that they are entitled to “complete and unredacted” medical and billing records for Leprino patients, including all billing communications with billers and United, all EOBs from United, patient payments, and check payments. They assert that Bedford promised to produce all of the requested records but has produced only a handful of checks to surgeons, which is incomplete. (MTC Memo at 19).
Bedford now represents that it produced 782 email strings, totaling 1512 pages which constitute all of the responsive communications between it, other Defendants, United, Bedford's billers, and many others. It indicates that the foregoing number does not include the attachments which were also produced and totaled over 4000 pages. Bedford further states that it has also produced all EOBs in its possession, custody and control from United related to Leprino patients, unredacted. Finally, Bedford now represents that it will amend its response to provide that no document is being withheld on privilege grounds. (Opp. at 19).
The Motion to Compel is granted in part and denied in part as to this request and Bedford's objections thereto are overruled. To the extent Bedford has not already done so, Bedford is ordered to (1) conduct a reasonably diligent search, for the period of January 1, 2019 to December 31, 2021, for documents which relate to billing and reimbursement of Leprino patients, communications with United about Leprino patients, and communications with Leprino patients; (2) produce unredacted versions of all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so and that it has not withheld any responsive documents in its possession, custody or control.
RFP No. 6
This request essentially calls for Bedford to produce, for January 1, 2019 to December 31, 2021, documents and communications between Bedford and any biller or coder employed by or contracted by Bedford that relates to billing and reimbursement of claims for Leprino employees. (Bowles Ex. A at 4).
Defendant Bedford responded to this request with objections but indicated that subject to and without waiving such objections, it would produce responsive, non-privileged documents in its possession, custody or control, and pursuant to the parties' E-Discovery Stipulation and Stipulated Protective Order relating to patients identified in LEPRINO 000002. (Bowles Ex. B at 7-8).
As to RFP Nos. 2, 5, and 6, Plaintiffs argue that they are entitled to “complete and unredacted” medical and billing records for Leprino patients, including all billing communications with billers and United, all EOBs from United, patient payments, and check payments. They assert that Bedford promised to produce all of the requested records but has produced only a handful of checks to surgeons, which is incomplete. (MTC Memo at 19).
Bedford now represents that it produced 782 email strings, totaling 1512 pages, many of which include all communications between it and Bedford's billers relating to Leprino Employees. Bedford represents that it will amend the response accordingly and to reflect that no such documents are withheld on the basis of privilege. (Opp. at 19).
*23 The Motion to Compel is granted in part and denied in part as to this request. To the extent Bedford has not already done so, it shall (1) conduct a reasonably diligent search for documents and communications with billers/coders regarding billing and reimbursement of claims for Leprino patients for the period of January 1, 2019 to December 31, 2021; (2) produce unredacted versions of all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so and that it has not withheld any responsive documents in its possession, custody or control.
RFP No. 7
This request essentially calls for Bedford to produce, for January 1, 2019 to December 31, 2021, documents and communications between Bedford and any Leprino employee. (Bowles Ex. A at 4).
Defendant Bedford responded to this request with objections but indicated that subject to and without waiving such objections, it will produce responsive, non-privileged documents in its possession, custody, or control and pursuant to the parties' E-Discovery Stipulation and Stipulated Protective Order relating to patients identified in LEPRINO 000002. (Bowles Ex. B at 9).
As to RFP Nos. 7 and 8, Plaintiffs suggest that Bedford's withholding of any responsive documents based on the attorney-client privilege is improper because the requests call for information relating to communications in the court of treatment of Leprino patients, which are third parties and thus the documents are not attorney-client privileged. (MTC Memo at 20).
Bedford now represents that it produced 782 email strings, totaling 1512 pages, many of which evidence or constitute communications between it and Leprino employees. It further indicates that there are entries in the medical records which have been produced that evidence such communications. Bedford represents that it will amend the response accordingly and disclose that no such documents are withheld on the basis of privilege. (Opp. at 19-20).
The Motion to Compel is granted in part and denied in part as to this request and Bedford's objections thereto are overruled. To the extent Bedford has not already done so, it shall (1) conduct a reasonably diligent search for documents and communications between Defendants Bedford and any Leprino employee for the period of January 1, 2019 to December 31, 2021; (2) produce unredacted versions of all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so and that it has not withheld any responsive documents in its possession, custody or control.
RFP No. 8
This request essentially calls for Bedford to produce, for January 1, 2019 to December 31, 2021, internal documents and communications that relate to a Leprino employee. (Bowles Ex. A at 4).
Defendant Bedford responded to this request with objections only. (Bowles Ex. B at 9).
As to RFP Nos. 7 and 8, Plaintiffs suggest that Bedford's withholding of any responsive documents based on the attorney-client privilege is improper because the requests call for information relating to communications in the court of treatment of Leprino patients, which are third parties and thus the documents are not attorney-client privileged. (MTC Memo at 20).
Bedford now cross-references its above representations relative to RFP No. 7 and states that it will amend its response to RFP No. 8 to state that no documents have been withheld on the basis of privilege. (Opp. at 20).
The Motion to Compel is granted in part and denied in part as to this request and Bedford's objections are overruled. Bedford is ordered to (1) conduct – to the extent it has not already done so – a reasonably diligent search for internal communications about Leprino employees and their beneficiaries and for internal documents related to Leprino employees for the period of January 1, 2019 to December 31, 2021; (2) produce – to the extent it has not already done so – unredacted versions of all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so and that it has not withheld any responsive documents in its possession, custody or control.
RFP No. 9
*24 This request essentially calls for Bedford to produce, for January 1, 2019 to December 31, 2021, its policies, procedures, and practices that relate to billing or coding of claims. (Bowles Ex. A at 5).
Defendant Bedford responded to this request with objections but indicated that subject to and without waiving such objections, and following a reasonably diligent search, it has not located any non-privileged documents in its possession, custody, or control. (Bowles Ex. B at 9-10).
As to RFP Nos. 9 and 10, Plaintiffs suggest that Bedford's withholding of any responsive documents based on the attorney-client privilege is improper because the requests call for day-to-day clinical and operational documents that are not so privileged as they are required by accreditation standards and are routinely shared with third parties in the ordinary course of business. (MTC Memo at 20).
Bedford now represents that no such documents are or were maintained or exist and that it will amend to so state. (Opp. at 20).
To the extent Motion to Compels seek to compel Bedford to produce documents in response to this request it is denied in light of Bedford's representations regarding the non-existence of any such documents in its possession, custody or control. However, as indicated above, Bedford shall produce a declaration describing in detail its search methodology and shall also provide a supplemental response consistent with its representation above and which reflects that it has not withheld any responsive documents in its possession, custody or control.
RFP No. 10
This request essentially calls for Bedford to produce, for January 1, 2019 to December 31, 2021, its policies, procedures, and practices that relate to marketing its services to the public. (Bowles Ex. A at 5).
Defendant Bedford responded to this request with objections but indicated that subject to and without waiving such objections, and following a reasonably diligent search, it has not located any non-privileged documents in its possession, custody, or control. (Bowles Ex. B at 10).
As to RFP Nos. 9 and 10, Plaintiffs suggest that Bedford's withholding of any responsive documents based on the attorney-client privilege is improper because the requests call for day-to-day clinical and operational documents that are not so privileged as they are required by accreditation standards and are routinely shared with third parties in the ordinary course of business. (MTC Memo at 20).
Bedford now indicates that it will amend it response, but it does not specify how. (Opp. at 20).
The Motion to Compel is granted in part and denied in part as to RFP No. 10. It appears to the Court from Bedford's above statements that it may well have documents responsive to this request, but it is withholding them based upon an assertion of privilege. As noted above, however (see supra note 22), any privilege objection to this request has been waived. Accordingly, Bedford is ordered to (1) conduct – to the extent it has not already done so – a reasonably diligent search for its policies, procedures, and practices that relate to marketing its services to the public for the period of January 1, 2019 to December 31, 2021; (2) produce – to the extent it has not already done so – unredacted versions of all documents that such reasonably diligent search yields; (3) provide a supplemental response indicating that it has done so and that it has not withheld any responsive documents in its possession, custody or control; and (4) produce a declaration describing in detail its search methodology.
RFP No. 11
*25 This request essentially calls for Bedford to produce all documents between Bedford and Amy Zaragoza. (Bowles Ex. A at 5).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, and following a reasonably diligent search, it has not located any documents in its possession, custody or control. (Bowles Ex. B at 10).
The Motion to Compel does not appear to include any argument specific to RFP No. 11 except, as discussed above, to challenge the adequacy of Bedford's search for responsive items.
Bedford now indicates that it will amend it response, but does not specify how. (Opp. at 20).
To the extent Motion to Compel seeks to compel Bedford to produce documents in response to this request it is denied in light of Bedford's representations regarding the non-existence of any such documents in its possession, custody or control. However, Bedford is ordered to provide a supplemental response consistent with its representation above and to indicate that it is not withholding any responsive documents based on its objections. Further, as already specified above, Bedford shall produce a declaration describing in detail its search methodology.
RFP No. 12
This request essentially calls for Bedford to produce documents sufficient to identify its surgical coordinator(s). (Bowles Ex. A at 5).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 10-11).
As to RFP No. 12, Plaintiffs assert that Bedford has several surgical coordinators and accordingly should be required to produce documents responsive to this request. (MTC Memo at 20).
Bedford now represents: Bedford's primary concern is that there are no documents that specifically identify such persons such as a roster or business cards or the like. Therefore, as with RFP No. 1, personnel files or the like would have to be produced, which would violate the privacy rights of third parties, without substantial redaction. Moreover, the request is overbroad as to time. (Opp. at 20-21).
The Motion to Compel is granted in part and denied in part as to RFP No. 12. Bedford's objection that such request is overbroad as to time is sustained, but its other objections are overruled. To the extent Bedford has not already done so, it is ordered to produce documents sufficient to identify its surgical coordinator(s) (i.e., persons/entities it employed or used to coordinate surgeries conducted at Bedford) from January 1, 2019 to December 31, 2021. Bedford is free to comply with this order by preparing a new document that lists the information in issue.
RFP No. 13
This request essentially calls for Bedford to produce documents comprising the agreement or evidencing the relationship between Bedford and its management services organization or manager, which is or was in effect between January 1, 2019 to the present. (Bowles Ex. A at 5).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, and following a reasonably diligent search, it has not located any documents in its possession, custody or control. (Bowles Ex. B at 11).
*26 As to RFP Nos. 13, 14, 15, 21 and 23, Plaintiffs assert that the referenced business arrangements as to which documents are sought in these requests, are not trade secret privileged on their face and are required to be disclosed to accredited and insurance companies in the ordinary course of business. They further assert that any privacy concerns can adequately be handled through the Stipulated Protective Order and that Bedford should be required to produce responsive documents. (MTC Memo at 20-21).
Bedford now represents that it will amend to clarify that no such documents exist as there are not management companies, and cross-references its response to Interrogatory No. 2 in which it stated that “Bedford has never used an outside manager or administrator.” (Opp. at 21 (citing Bowles Ex. D)).
The Motion to Compel is granted in part and denied in part as to this request. To the extent Motion to Compel seek to compel Bedford to produce documents in response to this request regarding an outside manager or administrator it is denied in light of Bedford's indication that it has never used an outside manager or administrator. The Motion to Compel is granted to the extent it seeks an order compelling Bedford to conduct a reasonably diligent search for, and to produce documents comprising the agreement or evidencing the relationship between Bedford and any internal manager which is or was in effect between January 1, 2019 to the present. Bedford is also ordered to produce a declaration describing in detail its search methodology and a supplemental response consistent with its representation above and demonstrating its compliance with the Court's order.
RFP No. 14
This request essentially calls for Bedford to produce documents comprising the agreement or evidencing the relationship between Bedford and its billing company, which is or was in effect between January 1, 2019 and the present. (Bowles Ex. A at 5).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 11-12).
As to RFP Nos. 13, 14, 15, 21 and 23, Plaintiffs assert that the referenced business arrangements as to which documents are sought in these requests, are not trade secret privileged on their face and are required to be disclosed to accredited and insurance companies in the ordinary course of business. They further assert that any privacy concerns can adequately be handled through the Stipulated Protective Order and that Bedford should be required to produce responsive documents. (MTC Memo at 20-21).
Bedford now represents: Bedford will amend to clarify that no such documents exist, in the express contract sense. There are a plethora of documents that have been produced that evidence the fact of a relationships [sic] and indeed, Leprino subpoenaed the billing companies used by Bedford. Bedford will amend the response accordingly. (Opp. at 14).
The Motion to Compel is granted in part and denied in part and Bedford's objections to this request are overruled. Bedford shall produce documents sufficient to evidence any written agreement between Bedford and its billing company and the relationship between Bedford and its billing company, which is or was in effect between January 1, 2019 and the present, irrespective of whether the agreement has been reduced to an “express contract.” Bedford shall also produce a supplemental response consistent with its representation above and that reflects that it has produced documents sufficient to evidence any written agreement between Bedford and its billing company and the relationship between Bedford and its billing company which was in effect between January 1, 2019 and the present.
RFP No. 15
*27 This request essentially calls for Bedford to produce documents comprising the agreement or evidencing the relationship between Bedford and its marketing services persons, which is or was in effect between January 1, 2019 and the present. (Bowles Ex. A at 5).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 12).
As to RFP Nos. 13, 14, 15, 21 and 23, Plaintiffs assert that the referenced business arrangements as to which documents are sought in these requests, are not trade secret privileged on their face and are required to be disclosed to accredited and insurance companies in the ordinary course of business. They further assert that any privacy concerns can adequately be handled through the Stipulated Protective Order and that Bedford should be required to produce responsive documents. (MTC Memo at 20-21).
Bedford now represents that it will its amend response but there is no indication of what such amended response will reflect. (Opp. at 22).
The Motion to Compel is granted in part and denied in part and Bedford's objections to this request are overruled. Bedford shall produce documents sufficient to identify and to evidence the nature (e.g., employment, independent contractor, etc.) and terms of its relationship with any person or entity that performed marketing services for it between January 1, 2019 and the present and provide a supplemental response reflecting it has done so.
RFP No. 16
This request essentially calls for Bedford to produce documents sufficient to show all licenses, certifications, accreditations, and Medicare deemed status held by Bedford which are or were in effect between January 1, 2019 and the present. (Bowles Ex. A at 5).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, it would produce responsive, non-privileged documents in its possession, custody, or control and pursuant to the parties' E-Discovery Stipulation and the Stipulated Protective Order. (Bowles Ex. B at 12).
Bedford now represents that it will amend its response and that responsive documents were produced and none were held back on the basis of privilege. (Opp. at 22).
The Motion to Compel is granted in part and denied in part as to this request and Bedford's objections are overruled. To the extent Bedford has not already done so, it is ordered to conduct a reasonably diligent search for documents sufficient to show all licenses, certifications, accreditations, and Medicare deemed status held by Bedford which are or were in effect between January 1, 2019 and the present and to produce the same and a supplemental response consistent with its representation above and that reflects compliance with the Court's order.
RFP No. 17
This request essentially calls for Bedford to produce documents sufficient to show all physical locations, including street address, suite or unit, city, town and zip code where it has operated its businesses between January 1, 2019 and the present. (Bowles Ex. A at 5-6).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, it would produce responsive, non-privileged documents in its possession, custody, or control and pursuant to the parties' E-Discovery Stipulation and the Stipulated Protective Order. (Bowles Ex. B at 13).
*28 Bedford now represents that it has only one location and that location is evidenced by thousands of the documents produced. Bedford further indicates that its response will be amended. (Opp. at 22).
The Motion to Compel is denied as to RFP No. 17 in light of Bedford's above-stated representation except that Bedford is ordered produce a supplemental response consistent with its representation above.
RFP No. 18
This request essentially calls for Bedford to produce documents sufficient to show all persons who have had an ownership stake in Bedford between January 1, 2019 and the present. (Bowles Ex. A at 6).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, it would produce responsive, non-privileged documents in its possession, custody, or control and pursuant to the parties' E-Discovery Stipulation and the Stipulated Protective Order. (Bowles Ex. B at 13).
Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing non-privileged documents responsive to this request and that Bedford should be ordered to produce the same. (MTC Memo at 21).
Bedford now represents that it provided the specific information sought in response to Interrogatory No. 12 but that it would comply. (Opp. at 22).
The Motion to Compel is granted as to RFP No. 18. Bedford shall produce documents sufficient to show all persons who have had an ownership stake in Bedford between January 1, 2019 and the present and a supplemental response consistent with its representation above and that demonstrates compliance with the Court's order.
RFP No. 19
This request essentially calls for Bedford to produce documents sufficient to show the names, NPI numbers, and TIN numbers for all surgeons who have performed procedures at Bedford between January 1, 2019 and the present. (Bowles Ex. A at 6).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 14).
As to RFP Nos. 19 and 20, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They note that this information is collected by surgery centers in the course of credentialing providers to work there as an ongoing business concern. (MTC Memo at 21).
Bedford currently stands on its objections and asserts that this request is not limited to the Doctor Defendants and instead seeks the requested information for every surgeon who has performed a procedure at Bedford. It argues that there is absolutely no utility to this information and no demonstration of why it is relevant to Plaintiffs' claims or defenses or proportional to the needs of the case. Bedford further contends that United has produced the requested information regarding those physicians involved in this case and that Plaintiffs, accordingly, already have such information. (Opp. at 22-23).
The Motion to Compel is granted in part and denied in part as to RFP No. 19. Bedford shall (1) conduct – to the extent it has not done so – a reasonably diligent search for documents sufficient to show the names, NPI numbers, and TIN numbers for all surgeons who have performed procedures on Leprino patients at Bedford between January 1, 2019 and December 31, 2021; (2) produce – to the extent it has not done so done so – documents which such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so.
RFP No. 20
*29 This request essentially calls for Bedford to produce documents sufficient to show the names, NPI numbers, and TIN numbers for all anesthesia providers who have performed procedures at Bedford between January 1, 2019 and the present. (Bowles Ex. A at 6).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 14).
As to RFP Nos. 19 and 20, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They note that this information is collected by surgery centers in the course of credentialing providers to work there as an ongoing business concern. (MTC Memo at 21).
Bedford now just cross-references its current position above relative to RFP No. 19. (Opp. at 23).
The Motion to Compel is granted in part and denied in part as to RFP No. 20. Bedford shall (1) conduct – to the extent it has not done so – a reasonably diligent search for documents sufficient to show the names, NPI numbers, and TIN numbers for all anesthesia providers who have performed or claimed to have performed procedures on Leprino patients at Bedford between January 1, 2019 and December 31, 2021; (2) produce – to the extent it has not done so – documents which such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so.
RFP No. 21
This request essentially calls for Bedford to produce documents comprising the agreement or evidencing the relationship between Bedford and any anesthesia providers, which is or was in effect between January 1, 2019 and the present. (Bowles Ex. A at 6).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 14-15).
As to RFP Nos. 13, 14, 15, 21 and 23, Plaintiffs assert that the referenced business arrangements as to which documents are sought in these requests, are not trade secret privileged on their face and are required to be disclosed to accredited and insurance companies in the ordinary course of business. They further assert that any privacy concerns can adequately be handled through the Stipulated Protective Order and that Bedford should be required to produce responsive documents. (MTC Memo at 20-21).
Bedford currently represents that it stands on its objections but will amend its response to indicate that there are no express agreements. (Opp. at 23).
The Motion to Compel is granted in part and denied in part as to RFP No. 21. Bedford shall conduct a reasonably diligent search for and produce documents comprising their agreements with or evidencing their relationship with anesthesia providers who performed or claimed to have performed procedures at Bedford on Leprino patients between January 1, 2019 and December 31, 2021 and a supplemental response reflecting that it has done so.
RFP No. 22
This request essentially calls for Bedford to produce documents sufficient to show any payments Bedford made to any anesthesia providers between January 1, 2019 and the present. (Bowles Ex. A at 6).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 15).
As to RFP Nos. 22, 24, 25, and 26, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They assert that the payment of money is a business concern. (MTC Memo at 21).
*30 Bedford currently stands on its objections that this request is overbroad as it is not limited to anesthesia providers who performed such services on Leprino employees or even those particular procedures. As to procedures in this case, Bedford represents that there are no such documents, as these are insurance cases. Bedford further states that more broadly, and as to procedures that do not relate to the claims at issue in this case or the anesthesiologist in this case, there is a complete absence of relevance and proportionality and a clear violation of financial privacy rights without a benefit to the case in any way. (Opp. at 24).
The Motion to Compel is granted in part and denied in part as to RFP No. 22. Bedford shall (1) conduct a reasonably diligent search for documents sufficient to show any payments Bedford made to any anesthesia providers who between January 1, 2019 and December 31, 2021 performed or claimed to have performed procedures on Leprino patients; (2) produce the documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so.
RFP No. 23
This request essentially calls for Bedford to produce documents comprising the assignment or Medicare 855R assigning any anesthesia providers' right to bill and be reimbursed to Bedford, which is or was in effect between January 1, 2019 and the present. (Bowles Ex. A at 6).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, and following a reasonably diligent search, Bedford has not located any documents in its possession, custody, or control. (Bowles Ex. B at 15-16).
As to RFP Nos. 13, 14, 15, 21 and 23, Plaintiffs assert that the referenced business arrangements as to which documents are sought in these requests, are not trade secret privileged on their face and are required to be disclosed to accredited and insurance companies in the ordinary course of business. They further assert that any privacy concerns can adequately be handled through the Stipulated Protective Order and that Bedford should be required to produce responsive documents. (MTC Memo at 20-21).
Bedford currently stands on its objections, asserting that this case is not one involving payments through Medicare, but indicates that it will amend its response to clarify that it has no such documents. (Opp. at 24).
The Motion to Compel is granted in part and denied in part as to RFP No. 23. Bedford shall produce all assignments of billing (Medicare 855R) from anesthesia providers to Bedford for or encompassing Leprino patients which was/were in effect between January 1, 2019 and December 31, 2021, a supplemental response indicating that it has done so, and a declaration describing in detail its search methodology.
RFP No. 24
This request essentially calls for Bedford to produce documents evidencing any payments Bedford made to Amy Zaragoza between January 1, 2019 and the present. (Bowles Ex. A at 6).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, and following a reasonably diligent search, Bedford has not located any documents in its possession, custody, or control. (Bowles Ex. B at 16).
As to RFP Nos. 22, 24, 25, and 26, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They assert that the payment of money is a business concern. (MTC Memo at 21).
Bedford currently represents that it will “amend to clarify.” (Opp. at 24-25).
*31 The Motion to Compel is denied as to RFP No. 24 except that Bedford shall produce a declaration describing in detail its search methodology and a supplemental response consistent with its representation above.
RFP No. 25
This request essentially calls for Bedford to produce documents evidencing any payments Bedford made to any surgeon who performed procedures at Bedford between January 1, 2019 and the present. (Bowles Ex. A at 7).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 16).
As to RFP Nos. 22, 24, 25, and 26, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They assert that the payment of money is a business concern. (MTC Memo at 21).
Bedford currently stands on its objections, and incorporates its commentary above relative to RFP No. 22. That said, Bedford states that it provided checks paid to three of the Doctor Defendants, for services unrelated to Leprino or Leprino patients and will revise accordingly. (Opp. at 25).
The Motion to Compel is granted in part and denied in part as to RFP No. 25. Bedford shall (1) conduct – to the extent it has not already done so – a reasonably diligent search for documents evidencing any payments Bedford made to any surgeon who performed procedures at Bedford on Leprino patients for the period of January 1, 2019 to December 31, 2021; (2) produce – to the extent it has not already done so – all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so.
RFP No. 26
This request essentially calls for Bedford to produce documents evidencing any payments Bedford made to any of the Defendants between January 1, 2019 and the present. (Bowles Ex. A at 7).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 17).
As to RFP Nos. 22, 24, 25, and 26, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They assert that the payment of money is a business concern. (MTC Memo at 21).
Bedford currently states that it will amend its response but does not specify how. (Opp. at 25).
The Motion to Compel is granted in part and denied in part as to RFP No. 26. Bedford shall (1) conduct – to the extent it has not already done so – a reasonably diligent search for documents evidencing any payments Bedford made to any of the Defendants relating to the Leprino patients between January 1, 2019 and December 31, 2021; (2) produce – to the extent it has not already done so – all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so.
RFP No. 27
This request essentially calls for Bedford to produce documents evidencing any payments or non-monetary compensation or benefit that Bedford provided to a Leprino employee between January 1, 2019 and the present. (Bowles Ex. A at 7).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 17).
As to RFP Nos. 27, 28, and 29, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They again assert that the payment of money is a business concern, particularly as it relates to third party Leprino employees. (MTC Memo at 21).
*32 Bedford currently states that it will amend its response but does not indicate how. (Opp. at 25).
The Motion to Compel is granted as to RFP No. 27. Bedford shall (1) conduct – to the extent it has not already done so – a reasonably diligent search for documents evidencing any payments or non-monetary compensation or benefit that Bedford provided to a Leprino employee between January 1, 2019 and the present; (2) produce – to the extent it has not already done so – all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so.
RFP No. 28
This request essentially calls for Bedford to produce documents evidencing any waiver of co-payment, deductible, or co-insurance provided to a Leprino employee between January 1, 2019 and the present, including, but not limited to any evidence of financial hardship. (Bowles Ex. A at 7).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, following a reasonably diligent search, it would produce non-privileged documents in its possession, custody, or control. (Bowles Ex. B at 17-18).
As to RFP Nos. 27, 28, and 29, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They again assert that the payment of money is a business concern, particularly as it relates to third party Leprino employees. (MTC Memo at 21).
Bedford currently states that it will amend its response but does not indicate how. (Opp. at 25).
The Motion to Compel is granted as to RFP No. 28 and Bedford's objections are overruled. Bedford shall (1) conduct a reasonably diligent search for documents evidencing any waiver of co-payment, deductible, or co-insurance provided to a Leprino employee between January 1, 2019 and the present, including, but not limited to any evidence of financial hardship; (2) produce – to the extent it has not already done so – all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so.
RFP No. 29
This request essentially calls for Bedford to produce documents evidencing any payment that a Leprino employee made to Bedford between January 1, 2019 and the present. (Bowles Ex. A at 7).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 18).
As to RFP Nos. 27, 28, and 29, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They again assert that the payment of money is a business concern, particularly as it relates to third party Leprino employees. (MTC Memo at 21).
Bedford currently states that it will amend its response but does not specify how. (Opp. at 26).
The Motion to Compel is granted as to RFP No. 29. Bedford shall (1) conduct – to the extent it has not already done so – a reasonably diligent search for documents evidencing any payment that a Leprino patient made to Bedford between January 1, 2019 and the present; (2) produce – to the extent it has not already done so – all documents that such reasonably diligent search yields; and (3) provide a supplemental response indicating that it has done so.
RFP No. 30
*33 This request essentially calls for Bedford to produce, for the period of January 1, 2019 to December 31, 2021, all bank statements, ledgers, accounts receivable statements or other documents showing outgoing and incoming Leprino or United payments or deposits to Bedford in connection with any Leprino employee. (Bowles Ex. A at 7).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 18).
As to RFP Nos. 4 and 30, Plaintiffs assert that they are entitled to a complete response and indicate, as of the filing of the Motion to Compel, that it had only received an incomplete production consisting of the account number and a handful of checks paid to the “Surgeon Defendants.” (MTC Memo at 20).
Bedford currently states: There are several difficulties with this request. First, checks that Bedford received from United were infrequently for payment for any particular claim or group, but rather all of the claims that had been excepted during whatever time frame may have been at issue. As such any bank statement that evidences the receipt of a check from United would have to be reconciled against EOBs and the like to ascertain which amount was paid towards which procedure. This would be a daunting task as United was the insurer for groups and patients other than Leprino. But even beyond that, Leprino knows from United the amounts that were paid to Bedford in relation to Leprino patients, collectively and individually. Bedford further states that the documents Leprino seeks are superfluous as the information is readily available from elsewhere and has been provided. (Opp. at 26-27).
The Motion to Compel is granted as to RFP No. 30 and Bedford's objections are overruled. Bedford shall produce, for the period of January 1, 2019 to December 31, 2021, all bank statements, ledgers, accounts receivable statements or other documents showing or encompassing outgoing and incoming Leprino or United payments or deposits to Bedford in connection with any Leprino patient and a supplemental response indicating that it has done so.
RFP No. 31
This request essentially calls for Bedford to produce, for the period of January 1, 2019 to December 31, 2021, documents sufficient to show any conferences, networking events, or marketing events attended by Bedford. (Bowles Ex. A at 7).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, it would produce responsive, non-privileged documents in its possession, custody, or control and pursuant to the parties' E-Discovery Stipulation and the Stipulated Protective Order. (Bowles Ex. B at 19).
As to RFP Nos. 31, 32, 33, and 36, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They again assert that the payment of money is a business concern, particularly as it relates to third party Leprino employees. (MTC Memo at 21).
Bedford currently states that it will amend its response but does not specify how. (Opp. at 27).
The Motion to Compel is granted as to RFP No. 31 and Bedford's objections are overruled. Bedford shall conduct a reasonably diligent search for, and shall produce documents sufficient to show any conferences, networking events, or marketing events attended by Bedford for the period of January 1, 2019 to December 31, 2021, and a supplemental response indicating that it has done so.
RFP No. 32
*34 This request essentially calls for Bedford to produce, for the period of January 1, 2019 to the present, documents evidencing any of Bedford's marketing materials, pamphlets, slide decks, social media posts, website content, or other electronic marketing, which was distributed publicly. (Bowles Ex. A at 7-8).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, it would produce responsive, non-privileged documents in its possession, custody, or control and pursuant to the parties' E-Discovery Stipulation and the Stipulated Protective Order. (Bowles Ex. B at 19).
As to RFP Nos. 31, 32, 33, and 36, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They again assert that the payment of money is a business concern, particularly as it relates to third party Leprino employees. (MTC Memo at 21).
Bedford currently states that it will amend its response but does not specify how. (Opp. at 27).
The Motion to Compel is granted as to RFP No. 32 and Bedford's objections are overruled. Bedford shall (1) conduct a reasonably diligent search, for the period of January 1, 2019 to December 31, 2021, for documents evidencing any of its marketing materials, pamphlets, slide decks, social media posts, website content, or other electronic marketing, which was distributed publicly; (2) produce the documents that such reasonably diligent search yields; and (3) provide a supplemental response reflecting that it has done so.
RFP No. 33
This request essentially calls for Bedford to produce, for the period of January 1, 2019 to the present, documents evidencing all versions of their website(s). (Bowles Ex. A at 8).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, it possesses only one website, that is presently active. (Bowles Ex. B at 20).
As to RFP Nos. 31, 32, 33, and 36, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They again assert that the payment of money is a business concern, particularly as it relates to third party Leprino employees. (MTC Memo at 21).
Bedford currently represents that “it has no version other than that presently available” and that it “will amend.” (Opp. at 27).
The Motion to Compel is granted in part and denied in part as to RFP No. 33. Bedford shall (1) conduct a reasonably diligent search for documents evidencing all versions of their website(s) during the period of January 1, 2019 to December 31, 2021 (including by making inquiry to any individual/ entity that maintains/services it website(s)); (2) produce the documents that such reasonably diligent search yields; and (3) provide a supplemental response reflecting that it has done so.
RFP No. 34
This request essentially calls for Bedford to produce for the period of January 1, 2019 to the present, documents that show any formal or informal relationship between and among any of the Defendants, any professional corporations, any medical groups, or any anesthesia providers that billed claims for Leprino employees. (Bowles Ex. A at 8).
*35 Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, construing this request to seek documents showing some kind of long-standing contractual relationships, and following a reasonably diligent search, it has not located any non-privileged documents in its possession, custody or control. (Bowles Ex. B at 20).
As to RFP No. 34, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They contend that the documents requested are not privileged and instead relate to third party business relationships. Plaintiffs assert that Bedford had several informal relationships with other Defendants but has not produced the documents evidencing them. (MTC Memo at 21-22).
Bedford currently states that it will amend its response but does not specify how. (Opp. at 27).
The Motion to Compel is granted as to RFP No. 34 and Bedford's objections are overruled. Bedford shall (1) conduct a reasonably diligent search for documents sufficient to show any formal or information relationship – not necessarily a long-standing contractual relationship – between and among any of the Defendants, any professional corporations, any medical groups, or any anesthesia providers that billed claims for Leprino employees for the period of January 1, 2019 to December 31, 2021; (2) produce the documents that such reasonably diligent search yields; (3) provide a supplemental response reflecting that it has done so; and (4) produce a declaration describing in details its search methodology.
RFP No. 35
This request essentially calls for Bedford to produce all documents evidencing any interactions, interviews, or communications with law enforcement relating to Defendants or any Leprino employees. (Bowles Ex. A at 8).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, and following a reasonably diligent search, Bedford has not located any documents in its possession, custody, or control. (Bowles Ex. B at 21).
Bedford currently states that it will amend its response but does not specify how. (Opp. at 28).
The Motion to Compel is denied as to RFP No. 35 except that Bedford shall produce a declaration describing in detail its search methodology and a supplemental response consistent with its above-referenced representation.
RFP No. 36
This request essentially calls for Bedford to produce all documents that evidence marketing materials or social media posts in Bedford's possession, custody, or control that relate to the Defendants or any of the surgery centers, professional corporations, medical groups, or anesthesia providers that billed claims for Leprino employees. (Bowles Ex. A at 8).
Defendant Bedford responded to this request with objections, but indicated that subject to and without waiving such objections, and following a reasonably diligent search, Bedford has not located any documents in its possession, custody, or control. (Bowles Ex. B at 21).
As to RFP Nos. 31, 32, 33, and 36, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They again assert that the payment of money is a business concern, particularly as it relates to third party Leprino employees. (MTC Memo at 21).
*36 Bedford currently states that it will amend its response but does not specify how. (Opp. at 28).
The Motion to Compel is denied as to RFP No. 36 except that Bedford shall produce a declaration describing in detail its search methodology and a supplemental response consistent with its above-referenced representation.
RFP No. 37
This request essentially calls for Bedford to produce documents sufficient to show the date(s) in the past five years that it was audited, terminated, or suspended by United, had claims placed on hold or placed on pre-or post-payment review by United, or was placed on claim denial status by United and the reason(s) why. (Bowles Ex. A at 9).
Defendant Bedford responded to this request with only objections. (Bowles Ex. B at 18).
As to RFP No. 37, Plaintiffs argue that Bedford's production as of the filing of the Motion to Compel was missing responsive non-privileged documents and that Bedford should be ordered to produce the same. They indicate that they have received some responsive documents from third party United but not from Bedford and assert that third party actions taken in the ordinary course of business are not privileged. (MTC Memo at 22).
Bedford currently states that it will amend its response but does not specify how. (Opp. at 28).
The Motion to Compel is granted as to RFP No. 37 and Bedford's objections are overruled. Bedford shall (1) conduct a reasonably diligent search for documents sufficient to show the date(s) in the past five years that it was audited, terminated, or suspended by United, had claims placed on hold or placed on pre-or post-payment review by United, or was placed on claim denial status by United and the reason(s) why; (2) produce the documents that such reasonably diligent search yields; and (3) provide a supplemental response reflecting that it has done so.
E. Sanctions
Pursuant to Rule 37(a)(5)(A), if a party's discovery motion is granted, the court must, after giving an opportunity to be heard,[27] order a party/attorney whose conduct necessitated the motion to pay the moving party's reasonable expenses incurred in making the motion, including attorney's fees unless the moving party filed the motion before attempting in good faith to obtain the discovery without court action, the opposing party's conduct was substantially justified, or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). On the flip side, if the motion is denied, the court must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees unless the motion was substantially justified or other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(B). If a discovery motion is granted in part and denied in part, the court may after giving an opportunity to be heard, apportion the reasonable expenses for the motion. Fed. R. Civ. P. 37(a)(5)(C).
*37 First, the Court finds that Bedford has been given an “opportunity to be heard” within the meaning of the rules allowing for the imposition of discovery sanctions as it received notice of the possibility of sanctions in the Motion to Compel and had the opportunity to address and did address the same in its Opposition. Further, the issues relating to the request for sanctions are not such that an evidentiary hearing would aid the Court's decisionmaking process.
Second, as the Court has granted in part and denied in part the Motion to Compel, the imposition of sanctions and the amount of any sanctions is discretionary. See Fed. R. Civ. P. 37(a)(5)(C). In exercising such discretion, the Court considers whether Plaintiffs filed the Motion to Compel before attempting in good faith to obtain the discovery without court action, whether Bedford's conduct was substantially justified, and any other circumstances that would make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A).
Contrary to Bedford's suggestion, the Court finds that Plaintiffs did not file the Motion to Compel before attempting in good faith to obtain the requested discovery without court action and that Bedford's conduct was not substantially justified. The parties' history, which is set out in detail above, reflects that Plaintiffs' counsel repeatedly tried to get discovery from Bedford and was met by delays, missed deadlines, and the apparent absence of any substantive written response to its multiple detailed meet and confer letters or provision of requisite logs and supplemental responses. The Court recognizes that Bedford's counsel did orally meet and confer with Plaintiffs' counsel on multiple occasions, apparently worked with an e-discovery service, made multiple productions over several months, and expressed an intent to do more but, suffice to say, Bedford appears to have operated at its own less than urgent pace, and Plaintiffs were not required to have endless patience. In short, the record above documents that Plaintiffs attempted in good faith to obtain the requested discovery without court action and that Bedford's delay in providing such discovery was not substantially justified.
Next, the Court considers whether there are any other circumstances that would make an award of expenses unjust. Although the Court's ruling on the Motion to Compel is mixed, the Court has granted it in significant part. Bedford did not timely file its Opposition to the Motion to Compel, did not seek leave to file its Opposition late, and offered no explanation for such untimeliness – which appears to be consistent with its delays throughout the discovery process. The Court views such failure timely to file an Opposition to the Motion to Compel to be at least reckless.
In light of the foregoing, the Court deems it appropriate to grant Plaintiffs' Motion to Compel in part to the extent it seeks an order compelling Bedford/its counsel jointly and severally to pay a portion of the fees/costs incurred in connection with the filing of the Motion to Compel. While the Court disagrees with Bedford's suggestion that attorney fees/costs expended for meet and confer discussions/ correspondence are not appropriately considered under Fed. R. Civ. P. 37(a)(5) (see Opp. at 29-30), here, the Court exercises its discretion to limit the amount of sanctions to the fees/costs expended in preparation of the actual Motion to Compel – $5,563.50 – corresponding to the 10.6 hours expended in researching, drafting, reviewing, and revising the Motion to Compel and related documents (2.1 hours by Attorney Bowles, whose hourly rate is $585 and 8.5 hours by Attorney Han whose hourly rate is $510). Such sum is alternatively justified under Local Rules 7-13 and 83-7 based on Bedford's failure timely to file its Opposition to the Motion to Compel which, as noted above, the Court finds to be at least reckless. Accordingly, Bedford and its counsel, jointly and severally, shall pay monetary sanctions in the amount of $5,563.50 to Plaintiffs.
*38 Defendant Bedford is cautioned that any failure to comply with this Court's Order will subject Defendant Bedford to further potential monetary and non-monetary sanctions, as provided in Fed. R. Civ. P. 37(b)(2)(A), including the issuance of a recommendation or order (a) directing that matters embraced within this Order or other designated facts be taken as established for purposes of this action; (b) prohibiting Defendant Bedford from supporting its defenses or opposing Plaintiffs' claims or from introducing evidence; (c) striking Defendant Bedford's Answer in whole or in part; (d) rendering a default judgment against Defendant Bedford; and (e) treating as contempt of court the failure to obey this Order.
IT IS SO ORDERED.
Footnotes
Plaintiff concurrently submitted a Notice of Motion, a Memorandum of Points and Authorities (“MTC Memo”), a Declaration of Katherine A. Bowles (“Bowles Declaration” or “Bowles Decl.”) with exhibits (“Bowles Ex.”), and Declarations of Angela Han, Robert G. Davis, and Tammy Vu (respectively, “Han Decl.,” “Davis Decl.,” and “Vu Decl.”). (The MTC Memo is not internally paginated so the Court herein refers to the page numbering in the Court's electronic filing/court management system for such document.). The Motion to Compel is not in the form of a Joint Stipulation, but – consistent with Local Rule 37-2.4 – the Bowles Declaration reflects, among other things, that Bedford's counsel did not timely comply with his Local Rule 37-1 meet and confer obligations. (Bowles Decl. ¶ 14).
Although the Notice of Motion reflects that Plaintiffs seek further written responses to Interrogatory Nos. 1-22, Plaintiffs' Reply more narrowly requests that the Court order Bedford to produce further responses to Interrogatory Nos. 4, 5, 12-14, 16 and 20. In light of the foregoing, the Court construes the Reply to have narrowed the Motion to Compel to seek an order compelling Bedford to produce further responses to only Interrogatory Nos. 4, 5, 12-14, 16 and 20 (“Interrogatories in Issue”).
Plaintiffs originally noticed the Motion to Compel for hearing on March 12, 2024, meaning that Bedford's opposition was originally due by February 20, 2024. See Local Rules 37-2.4, 7-9. On February 26, 2024 – after Bedford's Opposition was due – Plaintiffs and Bedford, at Bedford's request, filed a Stipulation to Continue Hearing Date of [the Motion to Compel], proposing that the hearing be continued to March 18, 2024, with corresponding deadlines (i.e., opposition due by February 26, 2024 and reply due by March 4, 2024. (Docket No. 361). On February 28, 2024 – after the Clerk had conferred with counsel regarding their availability – the Court continued the hearing to March 21, 2024 at 10:30 a.m., meaning that Bedford's opposition was due by February 29, 2024, and Plaintiffs' reply was due by March 7, 2024). (Docket No. 370). As noted above, Bedford did not file its Opposition until March 4, 2024. (Docket No. 373). The Court vacated the hearing on the Motion to Compel on March 19, 2024. (Docket No. 380).
The Fourth Amended Complaint also includes a claim for violation of California Probate Code § 19001 against Defendant Mojgan Kashanchi, individually, as Administrator of Defendant Behnam Kashanchi's Estate, as Trustee of the Behnam Kashanchi & Mojgan Kashanchi Revocable Living Trust, and as Trustee of the Kashanchi B & M Living Trust. (FAC ¶¶ 148-51).
The June 9, 2023 letter did not address Bedford's responses to the Interrogatories. (Bowles Ex. E).
Bedford's counsel's account is consistent with the parties' email correspondence which reflects the following: On June 28, 2024 – having received no response to the June 9, 2023 letter – Plaintiffs' counsel emailed Bedford's counsel and asked if he was available to meet and coner that day via Webex. Bedford's counsel responded within the hour, apologized, and indicated that he was not available that day but was available multiple days the following week and asked if they could speak then. Plaintiffs' counsel responded that the following week would work and shared her availability. Bedford's counsel proposed Thursday, July 6, 2023 at 4:00 p.m. and Plaintiffs' counsel confirmed that date and time would work. (Bedford Ex. A). In the early afternoon on July 6, 2023, Plaintiffs' counsel emailed Bedford's counsel, inquiring whether he was available to meet in person on July 12, 2023. They ultimately agreed to meet in person on July 12, 2023 at Plaintiffs' counsel's office. However, on July 10, 2023, Plaintiffs' counsel emailed Bedford's counsel and indicated that they could hold off meeting if Bedford made its document production by close of business on July 11, 2023. Plaintiffs received Bedford's document production on July 11, 2023, and emailed Bedford's counsel that the meeting could be rescheduled once Plaintiffs' counsel had had a chance to review the production. (Berman Ex. B).
Plaintiffs' counsel and Bedford's counsel describe such production differently. According to Plaintiffs' counsel, such production did not comport with the E-Discovery Stipulation in that it omitted all metadata or was not organized properly. (Bowles Decl. ¶¶ 8, 9). She further attests that the production did not include a privilege/redaction log or destruction/unavailable log as directed and that Bedford's responses suggesting that it had not found documents responsive to multiple Document Requests were deficient because it had failed to abide by the collection and review procedures specified in the E-Discovery Stipulation. (Bowles Decl. ¶¶ 8, 9). According to Bedford's counsel, a great portion of such production included medical and billing records associated with the forty (40) procedures identified on a spreadsheet Plaintiffs had produced and had indicated were in issue. (Berman Decl. ¶¶ 3, 6).
The July 21, 2023 letter did not address Bedford's responses to Plaintiffs' Interrogatories. (Bowles Ex. F).
Although the first paragraph of the August 9, 2023 letter indicated that Plaintiffs' counsel would like to meet and confer regarding the issues identified in the letter, Plaintiffs' counsel did not suggest a meeting date and instead, in the concluding paragraph, requested that Bedford produce substantive responses by August 14, 2023. (Bowles Ex. G).
On August 9, 2024, Plaintiffs' counsel sent Bedford's counsel an email which reflects that during their meeting that date Bedford's counsel agreed to send substantive responses to the concerns outlines in the June 9, July 21 and August 9, 2023 meet and confer letters and, among other things, to respond to each of the bullet points therein outlining missing documents and list which he was or was not able to produce with metadata. (Berman Ex. E). On the same date, Bedford's counsel emailed a response which reflects: He agreed with Plaintiffs' counsel's recitation with the caveat that he had “agreed to respond to the letters in a meaningful way that [would] hopefully narrow the issues in dispute ... not [to] address each bullet point individually.” (Berman Ex. E). He further stated that he had not “indicate[d] that documents [were] ‘missing’ ” and that it was Bedford's goal to “respond in good faith with the hope of either obviating the need for motion work or ... narrowing issues of disagreement.” (Berman Ex. E).
Plaintiffs' counsel attests that such production occurred on February 8, 2024, but this appears to be an error as the email correspondence reflects, and Bedford's counsel attests, that the production was on January 29, 2024. (See Bowles Decl. ¶ 13; Berman Decl. ¶ 15; Berman Ex. J).
Attorney Bowles, whose hourly rate is $585, expended a total of 10 hours in connection with the Motion to Compel (7.9 hours meeting and conferring + 2.1 hours reviewing and revising the Notice and Motion to Compel), totaling $5,850 in fees. (Bowles Decl. ¶ 15). Attorney Han, whose hourly rate is $510, expended a total of 10.6 hours in connection with the Motion to Compel (2.1 hours meeting and conferring + 8.5 hours researching and drafting the Motion to Compel and related documents), totaling $5,406 in fees. (Han Decl. ¶ 3). Attorney Davis, whose hourly rate is $525, expended a total of 5.9 hours in connection with the Motion to Compel (all meeting and conferring), totaling $3,097.50 in fees. (Davis Decl. ¶ 3). Attorney Vu, whose hourly rate is $420, expended a total of 9.7 hours in connection with the Motion to Compel (all meeting and conferring), totaling $4,074 in fees. (Vu Decl. ¶ 3). The foregoing attorney fees – $5850 + $5,406 + $3,097.50 + $4074 – total $18,427.50.
Pursuant to Local Rule 37-1, the moving party's letter must identify each issue and/or discovery request in dispute, state briefly as to each such issue/request the moving party's position (and provide any legal authority the moving party believes is dispositive of the dispute as to that issue/request), and specify the terms of the discovery order to be sought.
Pursuant to Local Rule 37-2.4, the Court will not consider any discovery motion in the absence of a joint stipulation or a declaration from counsel for the moving party establishing that opposing counsel (a) failed to confer in a timely manner in accordance with Local Rule 37-1; (b) failed to provide the opposing party's portion of the joint stipulation in a timely manner in accordance with Local Rule 37-2.2; or (c) refused to sign and return the joint stipulation after the opposing party's portion was added. If such a declaration accompanies the motion, then Local Rules 6-1 (calling for not less than a 28-day notice), 7-9 (calling for the filing of an opposition not later than 21 days before the hearing date), and 7-10 (calling for the filing of a reply not later than 14 days before the hearing date).
Local Rule 83-7 provides that the violation of or failure to conform to any of these Local Rules may subject the offending party or counsel to: (a) monetary sanctions, if the Court finds that the conduct was willful, grossly negligent, or reckless; (b) the imposition of costs and attorneys' fees to opposing counsel, if the Court finds that the conduct rises to the level of bad faith and/or a willful disobedience of a court order; and/or (c) for any of the conduct specified in (a) and (b) above, such other sanctions as the Court may deem appropriate under the circumstances.
Courts have broad discretion to determine whether a party's failure to raise timely objections to discovery should be excused for “good cause.” See Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C.1999). In exercising such discretion, courts consider several relevant factors, including: (1) the length of the delay in responding; (2) the reason for the delay; (3) dilatory conduct or bad faith by the responding party; (4) prejudice to the party seeking the disclosure; (5) the nature of the request (i.e., whether the discovery requested was overly burdensome or otherwise improper); and (6) the harshness of imposing the waiver. Hall v. Sullivan, 231 F.R.D. 468, 474 (D. Md. 2005).
Notwithstanding the foregoing, the Ninth Circuit has rejected a per se waiver rule that deems a privilege waived if a privilege log is not produced within Rule 34's time limit. Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont. (“Burlington”), 408 F.3d 1142, 1149 (9th Cir.), cert. denied, 546 U.S. 939 (2005). Instead, using the Rule 34 deadline as a default guideline, a district court should make a case-by-case determination, taking into account the following factors: (1) the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); (2) the timeliness of the objection and accompanying information about the withheld documents (where service within the Rule 34 deadline as a default guideline, is sufficient); (3) the magnitude of the document production; and (4) other particular circumstances of the litigation that make responding to discovery unusually easy or unusually hard. Id. These factors should be applied in the context of a holistic reasonableness analysis, intended to forestall needless waste of time and resources, as well as tactical manipulation of the rules and the discovery process. Id. They should not be applied as a mechanistic determination of whether the information is provided in a particular format. Id.
See supra note 2.
To the extent not moot, the Court addresses Bedford's procedural arguments regarding Plaintiffs' Interrogatories in Part IVC, infra.
Bedford notes that the Bowles Declaration incorrectly reflects that “Leprino provided 10 business days to meet and confer” ((Opp. at 6) (citing Bowles Decl. ¶ 14) (emphasis added)), even though Leprino's January 19, 2024 letter provided only ten calendar days, i.e., until January 29, 2024, to confer (see Bowles Ex. I). As Local Rule 37-1 required Bedford's counsel to respond within ten calendar days (see L.R. 37-1, Fed. R. Civ. P. 6(a)(1)), the erroneous reference to business days in the Bowles Declaration is not material.
As Plaintiffs highlight (Reply at 4), this Court deemed Defendant Moeinolmolki's failure timely to file an opposition to a motion to compel consent to the granting of such motion, but there, such Defendant did not file an opposition at all. (See Docket No. 331). Here, albeit late, Defendant Bedford did file an opposition.
Although Plaintiffs argue that the Court should deem such privilege objections, and other objections asserted in Bedford's responses waived (see MTC Memo at 15-17), the Court, after conducting the requisite holistic reasonable analysis, declines to so find at this juncture. The Court notes, however, that even though Bedford did not actually assert privilege objections to multiple other Document Requests (RFP Nos. 5, 9, 10, 16-18, 28, 31, 32, 34 and 36 [Bowles Ex. B at 7, 9-10, 12-13, 17-21]), its responses suggest that Bedford may be withholding privileged documents responsive thereto. See, e.g., Bedford's Responses to RFP Nos. 5, 16-18, 28, 31, 32 (“BEDFORD will produce responsive, non-privileged documents ... ) (Bowles Ex. B at 7, 12, 13, 18, 19, 21); Bedford's Responses to RFP Nos. 9, 10, 34, 36 (“BEDFORD has not located any non-privileged documents ... ” (Bowles Ex. B at 10, 20). As to this latter group of Document Requests, the Court, after conducting the requisite holistic reasonable analysis, does find that any privilege objections have been waived. Accordingly, to the extent Bedford has withheld documents in its possession, custody or control that are responsive to RFP Nos. 5, 9, 10, 16-18, 28, 31, 32, 34 and 36 – or any other Document Request aside from RFP Nos. 1-2 – based on privilege, it must produce such documents and corresponding supplemental responses reflecting that it has not withheld any responsive documents in its possession, custody or control based on privilege.
Pursuant to Rule 26(b)(5)(A), when a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (I) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. Fed. R. Civ. P. 26(b)(5)(A).
Compare Flintkote Co. v. General Accident Assurance Co., 2009 WL 1457974, *7 (N.D. Cal. 2009); Gates v. Rohm and Hass Co., 2007 WL 295416, *1 (E.D. Penn. 2007) (approving redactions based on relevance) with United States Aviation Underwriters Inc. v. Aerospike Iron, LLC, 2023 WL 2414265, at *2-*3 (S.D. Cal. Mar. 8, 2023); Doe v. Trump, 329 F.R.D. 262, 275-76 (W.D. Wash. 2018); In re Medeva Securities Litigation, 1995 WL 943468, *3 (C.D. Cal. 1995) (disapproving redactions based on relevance).
Compare Price v. Synapse Group, Inc., 2018 WL 9517276, at *11 (S.D. Cal., Sep. 12, 2018) (where defendant's discovery request sought bank/credit card statements reflecting the charges at issue in the case and plaintiff, citing the right to privacy, represented that he had redacted statements to omit details about financial transactions unrelated to defendant, court found that plaintiff's decision to redact other charges was reasonable, denied defendant's motion to compel unredacted statements, and indicated that if defendant believed additional charges were relevant, it should properly request them); Barnes v. Equinox Group, 2012 WL 13060044, at *4 (N.D. Cal. June 14, 2012) (directing plaintiff to produce financial information, but authorizing him to redact non-responsive private information therefrom); Knoll v. Moderno, 2012 WL 4466543, at *2 (N.D. Cal. Sept. 26, 2012) (holding that even with the existence of a protective order, disclosing party should still redact sensitive and private information, such as bank account numbers, credit card information, and customer names, which were not relevant to the underlying litigation); with Magana-Munoz v. West Coast Berry Farms, LLC, 2022 WL 6584545, at *1-*3 (N.D. Cal., Sept. 29, 2022) (“Redactions are highly disfavored where there is a protective order in place”; reversing magistrate judge's ruling authorizing redaction from bank records of all transactions except those between named defendants where protective order in place, rejecting defendants' privacy objections as they failed to specify what privacy interests were or that protective order was not sufficient to protect those privacy interests; finding redactions ordered would preclude review of relevant and discoverable information); Live Nation Merchandise, Inc. v. Miller, 2014 WL 1877912, at *2-*3 (N.D. Cal. May 9, 2014) (party's redactions of otherwise discoverable documents unwarranted because party's concern about protecting privacy interests and confidential/proprietary information could be addressed through protective order); United States v. McGraw-Hill Cos., 2014 WL 8662657, at *3 (C.D. Cal. Sept. 25, 2014) (Secretary of Treasury's redaction of documents based in part on privacy concerns improper; finding persuasive reasoning of several courts which have held that unilateral redaction of otherwise responsive documents is improper; “if materials are already shielded by a protective order, unilateral redactions do little more than breed suspicion between the parties, generate discovery disputes, and invite unnecessary intervention by the court[ ]”); Trevino v. ACB Am., Inc., 232 F.R.D. 612, 617 (N.D. Cal. 2006) (ordering production of unredacted agreement claimed to contain confidential financial information and trade secrets subject to protective order).
Accordingly, Bedford's arguments that the Motion to Compel should be denied as to other interrogatories are moot. See Opp. at 9 (arguing that Motion to Compel should be denied as to Interrogatory Nos. 2, 8, 9 and 21 for failure to meet and confer, and as to Interrogatory Nos. 1, 3, 6, 7, 10, 11, 15, 17-19 and 22 because the Motion to Compel does not identify any deficiencies in Bedford's responses thereto).
Paladin Associates, Inc. v. Montana Power Co, 328 F.3d 1145, 1164-65 (9th Cir. 2003) (plaintiff given “opportunity to be heard” within meaning of rule allowing for imposition of discovery sanctions as plaintiff received notice of possibility of sanctions when defendant filed motion for costs, plaintiff allowed to submit responsive brief, and issues were such that evidentiary hearing would not have aided court's decisionmaking process); Hudson v. Moore Business Forms, Inc., 898 F.2d 684, 686 (9th Cir. 1990) (party need not be given opportunity to respond to sanctions request orally if given full opportunity to respond in writing).