*1 The application before the Special Master encompasses an ongoing discovery dispute. This particular dispute arises out of a prior order and a directive issued at a status conference which took place on May 5, 2022.

Effectively, this is a full-fledged motion filed by Defendants seeking an order requiring Plaintiffs to provide new and more detailed certifications as to efforts to collect documents from Plaintiffs’ assignors.

In deciding this application, which the Special Master has treated as a motion, the following submissions have been reviewed: Defendants’ May 6, 2022 correspondence and exhibits as to the discovery deficiencies; Plaintiffs’ May 25, 2022 opposition; and Defendants’ June 7, 2022 reply.

The Special Master has also taken into consideration arguments that the parties voiced during the course of status conferences held on May 5, 2022 and June 16, 2022.

For reasons to be set forth more fully in this Order and Opinion, it is the finding of the Special Master that Defendants’ application is GRANTED to the extent set forth in this Order.

I. Procedural History and Statement of Facts

Again, the litigants are intimately familiar with the procedural posture and underlying facts which form the basis of this application, so the Special Master will only provide a brief, pertinent summary.

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

Defendants, on the other hand, manufacture analog insulin. Plaintiffs have contended throughout this litigation that Defendants employed a pricing scheme which has unlawfully increased the purchase price of insulin to the benefit of the manufacturers and to the detriment of Plaintiffs’ various assignors.

The parties have engaged in pretrial discovery and have also filed motions with the Special Master when discovery disputes arise. Once again, a dispute has erupted over the sufficiency of document production derived from the assignors whose claims have been transferred to Plaintiffs.

As a consequence of previously filed discovery motions, on February 8, 2022, the Special Master ordered Plaintiffs to produce documents from the custodial files listed in an appendix submitted by Defendants. This appendix consisted of a list of 43 individuals from 12 different assignors. Additionally, the order required Plaintiffs to:

In conjunction with Plaintiffs’ motion for reconsideration of this Order, which was denied, Plaintiffs submitted a certifications from their vendor, SiFT Discovery, LLC, signed by Cheryll A. Calvarone, Esq., an attorney; and Jason Shelton, a forensics expert. Then, at the May 5, 2022 conference, Plaintiffs’ counsel indicated that their production had now been validated and no additional productions would occur. Defendants’ counsel responded by stating that it was their position that Plaintiffs’ certifications were deficient and failed to comply with the February 8, 2022 Order. As a result, this application follows.

II. Defendants’ Argument

*2 Basically, Defendants argue that the certifications lack information required by the Order. The thrust is that the individuals who signed the certifications, employees of SiFT, have no direct knowledge as to the specific steps each assignor took to search for and then collect documents or to determine that no additional documents exist, i.e., “MSP set up a framework, then handed off responsibility to each assignor to pull documents and run searches.” Defendants insist that they need witnesses from the assignors themselves to explain “massive gaps” in the productions and only the assignors can answer basic questions about this issue.

Defendants say at this point, Plaintiffs have failed to produce a single document from 31 of 43 custodians subject to the Order. Defendants argue that the certifications by the vendors’ employees fail to explain how each assignor identified documents (beyond the use of search terms); failed to identify which assignors lack documents; and failed to describe the efforts to locate documents of the 31 custodians who have produced none. Accordingly, Defendants seek revised certifications.

As to those revised certifications, Defendants ask for the following:

III. Plaintiffs’ Response

Plaintiffs maintain that the two detailed certifications from SiFT, its discovery vendor, adequately describe the search efforts that have been conducted. They insist that Defendants are “moving the goal posts” again, having previously requested additional search terms and productions from additional custodians. They maintain that the certifications provided demonstrate a painstaking process in gathering, identifying, processing and producing responsive documents. Instead, say Plaintiffs, Defendants now insist on what are essentially 19 separate certifications.

As to the custodians identified by Defendants, Plaintiffs have submitted a one page chart in the form of a spreadsheet demonstrating the status of those custodians. They say that 15 custodians were found to have no searchable data whatsoever; four “could not be confirmed due to assignor failing to respond;” one custodian's email showed zero responsive documents; seven custodians were previously unavailable for review but the assignor has since agreed to allow SiFT access to the accounts; and one custodian is an attorney who possesses no discoverable materials.

Finally, if Defendants insist on additional certifications, they should be ordered to compensate Plaintiffs and their assignors.

IV. Defendants Reply

In their reply submission, Defendants address Plaintiffs’ May 26, 2022 letter in opposition which, they say, now discloses new and material discovery misconduct on behalf of Plaintiffs. Defendants go on to charge that Plaintiffs have now admittedly misled the Court “and likely committed spoliation, too” and that Defendants intend to move at some future point for Rule 37 sanctions caused by Plaintiffs’ “open and repeated violation of this Court's orders.”

*3 As to this application, Defendants reiterate that Plaintiffs’ certifications remain inadequate. They say that Plaintiffs misled the Court by stating that document production was complete, when in fact it was not. Defendants point out that the spreadsheet Plaintiffs submitted demonstrates that some assignors either failed to respond to inquiries or objected to production – something which undermines Plaintiffs’ representation that they have provided all available documentation. Further, as to three custodians, from Emblem/ConnectiCare, Plaintiffs have effectively struck them from the Order on the grounds that they were not on Defendants’ list of potential deponents.

Defendants also state that Plaintiffs essentially admit that they have not preserved documents of 15 custodians who “had no searchable data whatsoever.” This, despite the fact that under Medicare Part D, the assignors were required to maintain records for ten years and there is no explanation as to why no data exists or how that determination was made. Then, pointing to an entry for one custodian, Thomas Bolduc of AvMed, whose entry says he was terminated on December 20, 2018, Defendants state, “to the extent AvMed purged his data...that raises clear spoliation concerns[.]” This circumstance, Defendants argue, supports their request that the revised certifications should incorporate information as to whether the assignors were under a legal hold.

Finally, as to custodian, attorney Steven Zigeler, Plaintiffs simply accepted an assertion that his communications were privileged and failed to review any documentation.

In conclusion, Defendants reiterate their request that the Court order Plaintiffs to provide new certifications by individuals with firsthand knowledge from each assignor.

V. Review of the Certifications

The Special Master has reviewed Plaintiffs’ certifications carefully in light of the prior Order. Generally speaking, the Special Masters agrees with Defendants’ characterization of Plaintiffs’ certifications as “sweeping, generalized” statements. Much of each certification provides highly technical information about the general search process but no specifics as to individual custodians. The certifications basically indicate that the vendor engaged each assignor in a discovery interview to assess appropriate custodians, the location of responsive documents and the technological capabilities of each assignor's computer (IT) systems. Further, in accordance with the TAR protocol, SiFT employed in excess of 3,000 search terms requested by Defendants. This ultimately resulted in the production of 7.7 million documents, 90,000 of which were produced – some 950,000 pages. Thereafter, the documents were reviewed for potential privilege resulting in 7,606 assignor records withheld as privileged and 10,000 redacted.

The certifications also point out testing was conducted to validate the TAR process with the conclusion being that the process was appropriate. The vendor also employed a scripting tool used by Microsoft (since most of the assignors used Microsoft products) which also assisted in the process. The certifications describe other efforts to make the search terms more workable given the volume of documents involved.

However, as Defendants correctly point out, it is what is missing from the certifications that matters. Nowhere do the certifications identify any specific custodian or steps taken to review a specific custodian's files. The certifications do not, as Defendants say, discuss whether the interviews (noted previously) were conducted with every assignor, nor how search terms were “tailored” to meet the needs of each of these assignors. As Defendants note, there is no mention at all as to the circumstances surrounding the fact that 31 of the 43 custodians had no responsive documents or as to the 10 non-MAO assignors who have produced a total of less than 35 documents, mostly consisting of the assignment agreements with Plaintiffs and/or an organizational chart.

VI. Analysis

*4 This motion is yet another example of a situation in which one litigant (here, Defendants) claims that the other (Plaintiffs) have failed to produce documents or have produced a dearth of documents under circumstances where the production should be voluminous.

By the Special's Master count, this is the fifth time there has been an application touching on an aspect of the assignors’ discovery. Initially, due to an ESI protocol dispute, Plaintiffs were ordered to produce documents as if the assignors had brought suit themselves. A motion followed that resulted in an Order dated February 8, 2022, concerning a targeted search for documents relating to the assignors. A third motion resulted in the underlying Order followed by Plaintiffs’ motion for reconsideration. As far back as the initial Order, there was a concern that documents might be incomplete or lacking and while that Order provided that a party could not be compelled to produce information it did not possess, the Order also stated “Plaintiffs are directed to provide Defendants specific details as to which assignors are not in possession of responsive documents.”

In conjunction with the February 8, 2022 Order at issue, Defendants argued that the productions were then deficient as being either de minimus or fully absent from certain entities – whether large MAOs or smaller non-MAOs – which they say would undoubtedly be in possession of documents relevant to the claims here. As a consequence, and given that there was no cogent way to analyze whether Plaintiffs had, in fact, been responsive, the Order provided for submission of certifications “setting forth in detail the steps taken to search for, identify, retrieve, examine and produce documents” on behalf of the assignors. Therefore, in the opinion of the Special Master, it was reasonable to assume that the certifications would have – and should have – at least provided a brief summary as to the actual steps taken to review and retrieve relevant records from each assignor and as to those assignors who had produced no records, the certification(s) should have stated this with clarity. Had this happened, and if Defendants were still unsatisfied, the Order offered them the opportunity to depose the declarants.

Plaintiffs now have provided through SiFT a spreadsheet which to some degree details the status of the custodial records. That list contains 31 names of custodians from nine assignors, the results of which have been confirmed by IT professionals. As to the named custodians, an explanation appears as to the status of the data. As to 13 custodians, there was “no searchable data available.” As to another four, the status reads, “Requested confirmation of searchable data. No response.” As to another seven, all custodians for ConnectiCare and Emblem Health, the entry reads, “This account was previously not authorized to be searched; however, assignor has subsequently changed its position and will now produce responsive documents.” As to a small handful of the remaining custodians, the status column contains various entries such as “Email data only. No home drive or OneDrive,” or “The account was removed from plaintiff's deposition/custodial list,” and in one case, attorney Steven Zeigler of Avmed, Inc., it reads, “Confirm that all communications regarding government contracting was with outside counsel and would be privileged.”

*5 In short, Plaintiffs’ vendor's spreadsheet provides some additional information. Yet it also indicates, in a number of cases, that assignors had either refused to provide a response, or in the case of ConnectiCare and Emblem Health, had previously refused to do so but have had a change of heart.

With this said, however, while the spreadsheet provides more information than the certifications previously submitted, it is not a statement under oath and, in the opinion of the Special Master, falls short of complying with the February 8 Order as to the content of the certifications. At the very least, the information now encompassed in the spreadsheet, should have been incorporated in the certifications submitted previously. While a party cannot produce that which it does not have, the Special Master agrees with Defendants’ position that these certifications were deficient and, therefore, require appropriate revisions.

Nevertheless, the Order did not require Plaintiffs to produce a certification from each of the assignors, something Plaintiffs seek here. Furthermore, given that the parties have engaged in the use of vendors to conduct their respective records searches, it was reasonable for Plaintiffs to have submitted certifications by the SiFT employees who presumably had the requisite expertise and were most knowledgeable about the search process, which Plaintiffs in fact did. In turn, Defendants had been given the option to depose those individuals to test the validity of the information provided and the validity of the search processes.

The Special Master finds that it is not feasible, nor was it required under the prior Order, that each of the assignors themselves submit a certification. Nor will that relief be ordered here.

However, the Special Master grants Defendants’ request for revised certifications, the purpose of which is to compel the production of statements given under oath which can be explored, if Defendants choose, through depositions or can be utilized for other purposes as this litigation moves forward.

The revised certifications shall contain the following:

The certification or certifications shall be submitted with 14 days of the date of this order.

VII. Conclusion

For the reasons set forth above, it is the finding of the Special Master that Defendants’ application is GRANTED to the extent set forth in this Order.