Allstate Insurance Company et al v. Belsky et al, No. 2:2015cv02265 - Document 402 (D. Nev. 2018)
Court Description: ORDER granting Plaintiffs' Motion to Compel Production of Documents From Ralph A. Schwartz, P.C. (ECF No. 330 ). Signed by Magistrate Judge Carl W. Hoffman on 12/19/2018. (Copies have been distributed pursuant to the NEF - LH)
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Allstate Insurance Company et al v. Belsky et al Doc. 402 1 DYLAN P. TODD, ESQ. Nevada Bar No. 10456 2 TODD W. BAXTER, ESQ. Admitted Pro Hac Vice 3 McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 4 8337 West Sunset Road, Suite 350 Las Vegas, NV 89113 5 Telephone: (702) 949-1100 Facsimile: (702) 949-1101 6 dylan.todd@mccormickbarstow.com 7 ERON Z. CANNON Nevada Bar No. 8013 8 FAIN ANDERSON VANDERHOEF ROSENDAHL O’HALLORAN SPILLANE PLLC 9 701 5th Avenue #4750 Seattle, Washington 98104 10 Telephone: (206) 749-0094 Facsimile: (206) 749-0194 11 eron@favros.com 12 Attorneys for Plaintiffs/Counterdefendants 13 UNITED STATES DISTRICT COURT 14 DISTRICT OF NEVADA 15 ALLSTATE INSURANCE COMPANY, ALLSTATE PROPERTY & CASUALTY 16 INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY, and ALLSTATE 17 FIRE & CASUALTY INSURANCE COMPANY, 18 Plaintiffs, 19 v. 20 MARJORIE BELSKY, MD; MARIO 21 TARQUINO, MD; MARJORIE BELSKY, MD, INC., doing business as INTEGRATED 22 PAIN SPECIALISTS; and MARIO TARQUINO, MD, INC., DOES 1-100, and 23 ROES 101-200, 24 CASE NO. 2:15-cv-2265-MMD-CWH ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330] Defendants. 25 AND RELATED CLAIMS 26 27 28 MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 1 PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330] Dockets.Justia.com 1 Presently before the Court is a motion to compel production of documents to non-party law 2 firm Ralf A. Schwartz, PC (“Schwartz”) filed on August 7, 2018. (ECF No. 330). Schwartz filed a 3 Response on August 21, 2018 (ECF No. 338), and Plaintiffs’ Reply was filed on August 28, 2018 4 (ECF No. 344). 5 Plaintiffs served Schwartz with a subpoena pursuant to F.R.C.P. 45 for the production of 6 documents regarding communications and payments made by and between Schwartz and the 7 Defendants during Schwartz’ representation of nine (9) parties in personal injury claims for which 8 Plaintiffs paid a settlement on behalf of Plaintiffs’ insured. Schwartz objected to the subpoena and 9 moved to quash on grounds: 1) the information was protected by attorney-client privilege; 2) 10 Schwartz’s client directed the information not be produced due to HIPAA concerns; 3) request 11 information constituted a trade secret or confidential commercial communication; and 4) the requested 12 information was unduly burdensome as being cumulative because the information could have been 13 requested of the Defendants. Plaintiffs respond that the requested information is proper under 14 F.R.C.P. 26, and that Schwartz’s on attorney-client privilege and unduly burdensome and 15 cumulativeness do not apply. Plaintiffs contend that Schwartz has failed to demonstrate the required 16 showing for protection under trade secret or confidential commercial communications, and that all 17 objections based on confidentiality can be addressed by including Schwartz as a party to the existing 18 protective order. The Court will address each of these arguments. 19 F.R.C.P. 26 (b)(10) provides that parties “may obtain discovery regarding any nonprivileged 20 matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The 21 information requested by Plaintiffs is both relevant and proportional to the needs of this case, as it 22 involves claims of RICO violations, misrepresentation and fraud where the amount of claimed 23 damages by all parties is very high. A Court must quash or modify a subpoena that requires disclosure 24 of protected matter, Fed. R. Civ. P. 45(d)(3)(A)(iv); and may quash or modify a subpoena that requires 25 disclosure of commercial information, Fed. R. Civ. P. 45(d)(3)(B)(i). However, courts should also 26 consider other factors in deciding motions to quash or modify a subpoena, including the breadth or 27 specificity of the discovery request, and the relevance of the requested information. See Moon v. SCP 28 Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005). MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 2 PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330] 1 A. 2 The attorney-client privilege protects confidential disclosures made by a client to an attorney Attorney-Client Privilege 3 in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.” In re 4 Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir.1992) (emphasis added). Although Schwartz 5 alleges an attorney-client privilege, the subpoena does not request communications between Schwartz 6 and its clients. The subpoena requests documents and communications between Schwartz and the 7 Defendant doctors only. Schwartz does not identify any communications that actually classify for the 8 privilege, and has not provided a privilege log, or distinguished in any way those documents claimed 9 to be protected from those that are not attorney-client communications. The attorney-client privilege 10 argument is without merit, and therefore overruled. 11 B. 12 Schwartz contends that disclosing the requested information and documents would violate its Trade Secret and Confidential Commercial Communications 13 trade secret and confidential commercial communications protections, because it would disclose how 14 Schwartz communicates with medical providers and negotiates billing reductions in personal injury 15 litigations. “Confidential commercial information is information which, if disclosed, would cause 16 substantial economic harm to the competitive position of the entity from whom the information was 17 obtained.” Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691, 697 (D. Nev. 1994). The 18 person asserting confidentiality has the burden of showing that the privilege applies to a given set of 19 documents. F.R.C.P. 45(d); see also In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th 20 Cir.1992). Furthermore, a party must “demonstrate by competent evidence” that the information it is 21 seeking to protect is a trade secret, which would be harmful if disclosed. Upjohn Co. v. Hygieia 22 Biological Labs., 151 F.R.D. 355, 358 (E.D. Cal. 1993). 23 Schwartz has failed to meet its burden to provide a particularized showing of exactly how the 24 requested information falls within the confidential commercial communication or trade secret 25 protection. Furthermore, the information requested is not being disclosed to a competitor, and there 26 has been no evidence or argument to support a claim that economic harm would result from the 27 production of the requested information. Therefore, Schwartz’s objection on the grounds of 28 confidential commercial information and trade secret is overruled. MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 3 PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330] 1 C. 2 Schwartz contends that since the requested information involves medical information that was Unduly Burdensome and Cumulative 3 available to Plaintiffs in the underlying personal injury cases, it would be unduly burdensome for 4 Schwartz to comply with the subpoena sine Plaintiffs would obtain that information from their prior 5 retained defense counsel. Schwartz also argues that since the information requested is 6 communications between Schwartz and the Defendants, Plaintiffs should be required to seek that 7 information from Defendants directly. Finally, Schwartz argues that it is unduly burdensome to locate 8 correspondence for nine (9) prior claimants. 9 Schwartz’s argument that Plaintiffs had ample opportunity to obtain the information in prior 10 lawsuits in unpersuasive. F.R.C.P. 26 (b)(2)(C)(ii) states the Court must limit the extent of discovery 11 where “the party seeking discovery has had ample opportunity to obtain the information by discovery 12 in the action.” The prior litigations to which Schwartz is referring are personal injury actions where 13 Plaintiffs were not a party. Those litigations took place years before this action, and did not involve 14 the claims and causes of action contained in the instant lawsuit. Moreover, some of the requested 15 information comes from claims where no litigation ensued. 16 This also applies to Schwartz’s position that Plaintiffs could have obtained the information 17 directly from Defendants. A party is permitted to obtain documents from a non-party under F.R.C.P. 18 45, even if the subpoena requests documents that are similar or identical to those previously sought 19 from a party in the action. See, Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691, 697 (D. 20 Nev. 1994). While there is the possibility that some of the documents produced might be duplicative, 21 the subpoena is directed towards a non-party that is a separate business entity from the Defendants. It 22 is entirely possible that the files kept by these separate entities may not be identical. 23 The Court is unpersuaded by Schwartz’s argument that producing the information would be 24 unduly burdensome because Schwartz is a solo practitioner and would need to spend time reviewing 25 several files to locate the requested information. The subpoena seeks communications only on nine 26 (9) former client files. The Court does not find that this amounts to a significant burden or expense 27 that would require quashing or modifying the subpoena. Therefore, the objection that the documents 28 requested would be cumulative or unduly burdensome is overruled. MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 4 PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330] 1 D. 2 Schwartz maintains that its clients have not agreed to allow the law firm to produce the HIPAA Objections and Confidentiality of Medical Information 3 information, and doing so without their consent will result in a violation of its client’s confidentiality 4 protections under the Health Insurance Portability and Accountability Act (“HIPAA”). Schwartz does 5 not dispute that this Court has the power to order production of documents, even in the absence of 6 client-consent. 7 On June 6, 2016, the Court approved a stipulated confidentiality and protective order between 8 the parties. That protective order specifically addresses HIPAA concerns, and contemplates the 9 disclosure of protected health information in this litigation. (ECF No. 49, at 3:1-8). The order 10 addressed the sensitive nature of medical records and communications under HIPAA, as well as the 11 dissemination of other potentially protected or private information relating to a claimant, such as those 12 indicated in Plaintiff’s subpoena, and other identified claimants similarly situated. The stipulated 13 confidentiality and protective order was entered into by Plaintiffs and Defendants only, and was 14 approved by this Court on May 20, 2016. (ECF No. 49). Schwartz was not an original party to this 15 protective order, and the Court finds that extending the protections and scope of the order to Schwartz 16 would address any concerns regarding the disclosure of confidential or protected information. 17 Therefore, IT IS HEREBY ORDERED that the motion to compel (ECF No. 330) is 18 GRANTED. 19 IT IS FURTHER ORDERED that the confidentiality and protective order approved by the 20 Court and filed on June 6, 2016 (ECF No. 49) and all the safeguards and protections contained therein 21 shall apply to Schwartz and to any documents subject to HIPAA or other confidentiality or privacy 22 concerns produced in response to the subpoena issued by Plaintiffs. Schwartz is hereby ordered to 23 comply with Plaintiffs’ subpoena issued pursuant to F.R.C.P. 45 and shall produce the requested 24 information and documentation. Schwartz shall have fifteen (15) days from the date of this order to 25 comply with the subpoena. 26 /// 27 /// 28 /// MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 5 PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330] 1 IT IS SO ORDERED. 2 December 19 day of _______________, DATED this ___ 2018. 3 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 Respectfully submitted: McCORMICK, BARSTOW, SHEPPARD, 8 WAYTE & CARRUTH LLP 9 10 11 12 13 14 15 By__/s/ Dylan P. Todd_________________ DYLAN P. TODD, ESQ. Nevada Bar No. 10456 TODD W. BAXTER, ESQ. Admitted Pro Hac Vice 8337 West Sunset Road, Suite 350 Las Vegas, NV 89113 Telephone:(702) 949-1100 Facsimile: (702) 949-1101 Attorneys for Plaintiffs/Counterdefendants 16 17 18 19 20 21 22 23 24 25 26 27 28 MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 6 PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330] 1 2 CERTIFICATE OF SERVICE I hereby certify that on this 26th day of September, 2018, a true and correct copy 3 of PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION 4 OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330] was served via the 5 United States District Court CM/ECF system on all parties or persons requiring notice. 6 Dennis L. Kennedy, Esq. 7 Joseph A. Liebman, Esq. Joshua P. Gilmore, Esq. 8 BAILEY KENNEDY 8984 Spanish Ridge Avenue 9 Las Vegas, NV 89148 and 10 Peter S Christiansen, Esq. R. Todd Terry, Esq. 11 Kendelee L. Works, Esq. Whitney J. Barrett, Esq. 12 Keely A. Perdue, Esq. CHRISTIANSEN LAW OFFICES 13 810 S. Casino Center Blvd., Suite 104 Las Vegas, NV 89101 14 (702) 240-7979 (866) 412-6992 fax 15 Pete@christiansenlaw.com tterry@christiansenlaw.com 16 kworks@christiansenlaw.com wbarrett@christiansenlaw.com 17 keely@christiansenlaw.com Attorneys for Defendants 18 Nathan S. Deaver, Esq. Brice J. Crafton, Esq. DEAVER & CRAFTON 810 E. Charleston Blvd. Las Vegas, NV 89104 (702) 385-5969 (702) 385-6939 fax shannon@deavercrafton.com Attorneys for Non-Party Ralph A. Schwartz, P.C. 19 By /s/ Tricia A. Dorner An Employee of McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 20 21 22 03246-01560 5361154.1 23 24 25 26 27 28 MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 7 PROPOSED ORDER GRANTING PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM RALPH A. SCHWARTZ, P.C. [ECF No. 330]
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