AETNA INC. et al v. MEDNAX, INC. et al, No. 2:2018cv02217 - Document 174 (E.D. Pa. 2019)
Court Description: MEMORANDUM AND OPINION. SIGNED BY MAGISTRATE JUDGE RICHARD A. LLORET ON 12/2/19. 12/2/19 ENTERED & E-MAILED.(fdc)
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AETNA INC. et al v. MEDNAX, INC. et al Doc. 174 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E EASTERN D ISTRICT OF PEN N SYLVAN IA AETNA INC., ET AL Plaintiffs, v. MEDNAX, INC. et al Defendants. : : : : : : : CIVIL ACTION NO. 18-cv-0 2217-WB MEMORAN D U M CON CERN IN G D OC. N O. 113 The plaintiffs (collectively, “Aetna”) have filed a m otion seeking to com pel the defendants (collectively, “Mednax”) to run expanded search term s against additional custodians. Doc. No. 113 (“Pl. Mot.”). Mednax has opposed the m otion. Doc. No. 126 (“Def. Opp.”). Aetna has replied. Doc. No. 132 (“Pl. Rep.”). I have considered the parties’ contentions against the factors outlined in Fed. R. Civ. P. 26(b)(1). Mednax resists Aetna’s expanded search term s and proposed additional custodians as overly burdensom e and disproportionate to the needs of the case. I will perm it m uch of the additional discovery requested by Aetna, given that the issues at stake in the case are im portant, the am ount in controversy is significant, the parties' resources are am ple, Mednax has superior relative access to the inform ation sought, and the discovery requests seem reasonably calculated to lead to relevant eviden ce. Fed. R. Civ. P. 26(b)(1). I. D is cu s s io n . 1. Ae tn a’s e xp an d e d s e arch te rm s . Aetna wants Mednax to run expanded search term s. Doc. No. 113 at 7. Mednax resists this, contending that the search strings would be overly burdensom e. I do not Dockets.Justia.com find the additional search term s overly burdensom e, based on the factors m entioned in Fed. R. Civ. P. 26(b)(1). The num ber of additional “hits” that the parties’ predict will be generated by the expanded search term s does not strike m e as overly burdensom e, given the m agnitude of the case. I will order that the expanded search term s requested by Aetna be run against existing custodians and the additional custodians I will now design ate. 2. Me d n ax’s Ch ie f Co m p lia n ce Office r. Mednax’s Chief Com pliance Officer also serves as Mednax’s Chief Legal Officer. This m eans that its Chief Legal Officer also serves an explicit business function. Pl. Rep. at 5-7. Mixing these two functions was Mednax’s choice to m ake, but the choice leads m e to the conclusion that discovery will have to proceed docum ent by docum ent, rather than be avoided categorically, as in m y previous Order. Doc. No. 171. The attorney-client privilege protects “‘(1) a com m unication (2) m ade between privileged persons (3) in confiden ce (4) for the purpose of obtaining or providing legal assistan ce for the client.’” In re Chevron Corp., 650 F.3d 276, 289 (3d Cir. 20 11) (quoting In re Teleglobe Com m c'ns Corp., 493 F.3d 345, 359 (3d Cir. 20 0 7)). The party asserting the privilege bears the burden of dem onstrating that it applies. In re Grand Jury , 70 5 F.3d 133, 160 (3d Cir. 20 12). If the com m unication is prim arly about advice on non-legal m atters, the privilege does not apply. Idenix Pharm aceuticals, Inc. v. Gilead Sciences, Inc., 195 F.Supp.3d 639, 644 (D. Del. 20 16) (quoting Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 147 (D. Del. 1977). If the com m unication is prim arily about legal problem s, the privilege applies. Leonen v. Johns-Manville, 135 F.R.D. 94, 98– 99 (D.N.J . 1990 ) (citations and internal quotation om itted). 2 Business and legal m atters are often difficult to distinguish. Sedco Int’l, S.A. v. Cory , 68 3 F.2d 120 1, 120 5 (8th Cir. 1982); J ust labelling the lawyer’s advice “busin ess” or “legal” does not help; that is a conclusion, n ot analysis. United States v. Chen, 99 F.3d 1495, 150 2 (9th Cir. 1996). Advice does not have to be solely legal in nature to be protected. In re General Motors LLC Ignition Sw itch Litigation, 8 0 F.Supp.3d 521, 530 (S.D.N.Y. 20 15). If getting or receiving legal advice “was one of the significant purposes of the [com m unication]” the privilege should apply, even if there were additional purposes, and even if the com m unication was m andated by governm ent regulation. In re Kellogg Brow n & Root, Inc., 756 F.3d 754, 758 – 59 (D.C. Cir. 20 14). I will perm it Aetna’s requested discovery concerning docum ents and com m unications involving Mednax’s Chief Com pliance Officer. To the extent that Mednax contends such docum ents an d com m unications are privileged, or subject to work product protection, they m ust prepare and subm it a privilege log in conform ance with Fed. R. Civ. P. 26(b)(5). Sim ply describin g the com m unication as “legal advice” will not suffice, in this context; m ore detail will have to be em ployed. Docum ent description s in the log will have to explain why the prim ary purpose of the com m unication was the giving or receiving of legal advice, as opposed to business or other n on-legal advice. In addition to the requirem ents of Rule 26(b)(5), the log will also identify those docum ents and com m unications that have been copied to or shared with third parties, and will explain why the privilege is not waived. See W estinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1423– 24 (3d Cir. 1991). 3. D e ve lo p e rs o f th e BabySte p s s o ftw are . Mednax has not com plied with m y direction to disclose the person or persons responsible for developing its BabySteps software. See Doc. No. 10 2, at 37-38; Pl. Mot. 3 at 6. Within 10 days of the date of the accom panying Order, Mednax will disclose the nam es of all persons responsible for the developm ent of its BabySteps software from its inception to its current edition, together with a sum m ary of the inform ation about which each person has knowledge. Mednax will also identify all individuals associated with the developm ent of its electronic m edical records system , if that is som ething different. See Pl. Mem . at 3, n.4. Producing Robert C. Bryant and Darren Handler to supply som e inform ation about the software is not com pliant with m y Order. This should have been obvious at the tim e of oral argum ent. See Doc. No. 10 2, at 35. A business such as Mednax, which depends upon its m edical records and billing software so m uch that it took the trouble to develop the software itself, should be able to track down who was responsible for developing the software. Mednax m entions that the software goes back to 20 0 4. Doc. No. 10 2 at 37. That is not very long ago. Mednax will com ply with m y directive, which has now been form alized as a written order. Mednax also will run the expanded searches designated by Aetna against these identified individuals. 3. Me d ical D ire cto rs o f p ractice -gro u p s . Aetna proposes discovery directed to the Medical Directors of 20 practice-groups, to be identified by Aetna. Aetna contends that these are persons who are likely to have received relevant inform ation about billing practices, as well as practice-group finan cial perform ance. Pl. Rep. at 8 . A total of 48 practice-groups either were acquired or departed from Mednax during the last 10 years. See Pl. Mot. at 7. Aetna will choose Medical Directors of 16 of this set of practice-groups. Mednax will run the expanded searches proposed by Aetna for the 16 Medical Directors selected by Aetna. I find that such discovery is reasonably designed to lead to relevant inform ation and is not 4 disproportionate to the needs of the case. Selection by Aetna, and production of records for one-third of the Medical Directors (16 of 48), should ensure that significant, relevant issues with billing practices and financial perform ance are represented adequately in the discovery. The num ber of “hits” is unlikely to be overwhelm ing, an d the burden is not disproportionate, given the size and needs of the case. See Pl. Mot. at 13. 4. Co d in g Co m m itte e n o n -vo tin g a tte n d e e s . Aetna wants to have Mednax run its expanded searches against six non-voting attendees of Mednax’s coding com m ittee. Pl. Mot. at 13. Aetna’s request seem s to be m otivated, in part, by the dearth of inform ation supplied by Mednax in connection with the developers of the BabySteps software program . Id. The request is proportionate to the needs of the litigation, and I will order it. 5. Fin an cial o ve rs igh t cu s to d ian s . Aetna asks that its expanded searches be run against financial oversight custodians. I fin d this is reasonable, in light of the factors outlined in Fed. R. Civ. P. 26(b)(1). I will direct that Mednax run Aetna’s expanded search term s against CFO J ason Clem ens and CAO J ohn Pepia, as well as other financial custodians identified by Mednax on March 18, 20 19. See Pl. Mot. at 12, n.12. II. Co n clu s io n . For the reasons explained, I will enter an order granting som e of the relief sought by Aetna while denyin g the balance. BY THE COURT: s/ Richard A. Lloret ____ RICHARD A. LLORET U.S. MAGISTRATE J UDGE 5
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