United States of America v. Kaiser Foundation Health Plan Inc., No. 3:2009cv05984 - Document 93 (N.D. Cal. 2013)
Court Description: ORDER GRANTING 92 STIPULATION to Amend Order Scheduling Trial and Pretrial Matters. Signed by Judge JEFFREY S. WHITE on 12/9/13. (jjoS, COURT STAFF) (Filed on 12/9/2013)
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United States of America v. Kaiser Foundation Health Plan Inc. Doc. 93 Case3:09-cv-05984-JSW Document92 Filed12/06/13 Page1 of 6 1 2 3 4 5 6 7 8 9 10 WILLIAM D. BEIL (admitted pro hac vice) DAVID W. O’BRIEN (admitted pro hac vice) JASON M. HANS (admitted pro hac vice) JUSTIN P. MURPHY (admitted pro hac vice) ROUSE HENDRICKS GERMAN MAY PC BARBARA H. RYLAND (admitted pro hac vice) 1201 Walnut, 20th Floor CROWELL & MORING LLP Kansas City, Missouri 64106 1001 Pennsylvania Avenue, N.W. Telephone: (816) 471-7700 Washington, DC 20004 Facsimile: (816) 471-2221 Telephone: (202) 624-2500 E-mail: billb@rhgm.com Facsimile: (202) 628-5116 E-mail: jasonh@rhgm.com Email: dobrien@crowell.com justin.murphy@crowell.com JEFFREY E. FAUCETTE (No. 193066) bryland@crowell.com SKAGGS FAUCETTE LLP One Embarcadero Center, Suite 500 NIMROD HAIM AVIAD (No. 259705) San Francisco, California 94111 CROWELL & MORING LLP Telephone: (415) 315-1669 515 South Flower Street, 40th Floor Facsimile: (415) 433-5994 Los Angeles, CA 90071 E-mail: jeff@skaggsfaucette.com Telephone: (213) 622-4750 Facsimile: (213) 622-2690 Attorneys for Relator CHRIS McGOWAN Email: naviad@crowell.com 11 Attorneys for Defendant KAISER FOUNDATION HEALTH PLAN, INC. 12 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 SAN FRANCISCO DIVISION 16 17 18 UNITED STATES OF AMERICA ex rel. CHRIS McGOWAN, an individual, Case No.: CV-09-5984 (JSW) Plaintiff, 19 STIPULATED MOTION AND [PROPOSED] ORDER TO AMEND ORDER SCHEDULING TRIAL AND PRETRIAL MATTERS 20 v. 21 KAISER FOUNDATION HEALTH PLAN, INC., a California Corporation, 22 Defendants. 23 24 25 26 27 28 1 STIPULATED MOTION AND [PROPOSED] ORDER TO AMEND ORDER SCHEDULING TRIAL AND PRETRIAL MATTERS CASE NO.CV-09-5984 JSW DCACTIVE-26039114.1 Dockets.Justia.com Case3:09-cv-05984-JSW Document92 Filed12/06/13 Page2 of 6 1 Plaintiff/Relator Chris McGowan (“Plaintiff”) and defendant Kaiser Foundation Health 2 Plan, Inc.’s (“Kaiser”) (collectively “the Parties”), jointly move pursuant to Fed. R. Civ. P. 3 6(b)(1), and Civil L. R. 6-3, 7-1, and 7-12 to amend certain deadlines related to discovery in the 4 Order Scheduling Trial and Pretrial Matters (“Scheduling Order”) (Doc. No. 67), but ask that they 5 be permitted to defer a more particular request regarding length of time and the pertinent 6 deadlines until after the discovery dispute that exists between them is resolved which they expect 7 to occur next Wednesday, December 11, 2013. The parties are in dispute over Rule 30(b)(6) 8 deposition topics and over Plaintiff’s Fifth Request for the Production of Documents. The first 9 dispute has been referred to Magistrate Judge Cousins and the parties expect that the second 10 dispute which is the subject of a second discovery dispute letter being filed today will likely be 11 referred to Magistrate Judge Cousins as well. Magistrate Judge Cousins has scheduled a hearing 12 on the deposition notice dispute for next Wednesday at 1:00 pm, and the parties expect that the 13 second dispute will be considered at that time as well. 14 If the court resolves the disputes as requested by Kaiser, the parties believe that only a 15 modest two week extension and of only some of the deadlines will be necessary. If the court 16 resolves the second dispute related to document production as requested by the Plaintiff, Kaiser 17 will need to seek a more substantial modification of the schedule, and it is doubtful that Plaintiff 18 will consent to that request. The parties wanted to make this request prior to the expiration of the 19 non-expert discovery cut-off but did not want to present a dispute about scheduling that may be 20 mooted by the hearing next week. In support of this stipulated motion, the Parties state as 21 follows: 22 23 24 (1) The current deadline for the close of non-expert discovery is today—December 6, 2013. (2) Plaintiff served his Fifth Request for the Production of Documents on November 2, 25 2013 and Kaiser served its objections and responses to that request on November 30, 26 2013. Kaiser objected to each of the eight requests for production in the Fifth 27 Request. The parties have met and conferred in good faith regarding the requests but 28 2 STIPULATED MOTION AND [PROPOSED] ORDER TO AMEND ORDER SCHEDULING TRIAL AND PRETRIAL MATTERS DCACTIVE-26039114.1 CASE NO.CV-09-5984 JSW Case3:09-cv-05984-JSW Document92 Filed12/06/13 Page3 of 6 1 have determined that their dispute will be submitted to the Court for resolution. The 2 parties are filing a second joint letter brief with the Court concerning this dispute 3 today. 4 (3) Plaintiff has noticed a Rule 30(b)(6) deposition of Kaiser for December 5, 2013. 5 Kaiser objected to certain topics set forth in the deposition notice. The parties met and 6 conferred in good faith but were unable to resolve their dispute and the parties filed a 7 joint letter brief with the Court. The dispute has been referred to Magistrate Judge 8 Nathanael Cousins for resolution and is set for a hearing on Wednesday, December 11, 9 2013. The parties have agreed to postpone the deposition pending Magistrate Judge 10 Cousins’ ruling on the discovery dispute. The deposition dispute is related to the 11 document requests dispute, and the parties anticipate the document request dispute 12 will also be referred to Magistrate Judge Cousins. 13 (4) The parties have been diligently working to complete fact discovery by the current 14 December 6, 2013 deadline. Plaintiff served requests for production of documents on 15 January 24, 2013, June 6, 2013, October 2, 2013, October 16, 2013, and November 2, 16 2013, and interrogatories on June 6, 2013 and October 2, 2013. Kaiser served 17 interrogatories and a request for production on Plaintiff on September 5, 2013. Based 18 on the existing disclosures, documents produced, and discovery responses, Plaintiff 19 has taken depositions of eight Kaiser witnesses and Kaiser has deposed Relator.1 20 21 22 23 24 25 26 27 28 1 Kaiser’s production of documents in this case was a “rolling production.” Plaintiff did not schedule depositions in this case until September 2013 because it was not until August 12, 2013 that Kaiser represented it had produced all documents in accordance with its Responses and Objections to Plaintiff’s January 24, 2013 and June 6, 2013 document requests. Kaiser produced additional documents responsive to Plaintiff’s January 24, 2013 and June 6, 2013 document requests on September 13, 2013, six days before the first deposition of a Kaiser witness was taken on September 19, 2013. In addition, Kaiser produced additional documents on November 14, 2013 and November 22, 2013 which were described as “in accordance with [Kaiser’s] Responses and Objections to Relator’s four sets of document requests and Kaiser’s supplemental initial disclosures.” Because these recently-produced documents were relevant to witnesses who had been previously deposed, Kaiser has agreed to produce for follow-up depositions two Kaiser witnesses whom Plaintiff previously deposed. The first of the follow up depositions was taken today (December 6, 2013) and the second will be taken on a date to be determined. 3 STIPULATED MOTION AND [PROPOSED] ORDER TO AMEND ORDER SCHEDULING TRIAL AND PRETRIAL MATTERS DCACTIVE-26039114.1 CASE NO.CV-09-5984 JSW Case3:09-cv-05984-JSW Document92 Filed12/06/13 Page4 of 6 1 (5) If the Court orders Kaiser to produce documents responsive to Plaintiff’s Fifth 2 Request for Production, Kaiser anticipates it will need some additional time to gather 3 the responsive documents, review them, and produce them to Plaintiff. Similarly, 4 Plaintiff anticipates it will need some time to review the documents prior to the Rule 5 30(b)(6) deposition. 6 The original Scheduling Order contemplated a period of approximately four weeks 7 between the close of fact discovery and Plaintiff’s expert designation. Doc. #63 (setting close of 8 fact discovery for 11/15/2013 and Plaintiff’s expert designation for 12/13/2013). On October 16, 9 2013, the Court entered an Order extending the close of fact discovery to December 6, 2013 10 which is the current deadline. Doc. #82. Thus, currently, two weeks separate the close of fact 11 discovery and Plaintiff’s expert designation. 12 “The district court is given broad discretion in supervising the pretrial phase of litigation.” 13 Lehman Brothers Holdings, Inc. v. CMG Mortgage, Inc., No. CV 10-0402 (NJV), 2011 WL 14 203675, *1 (N.D. Cal. Jan. 21, 2011) (quoting Zivkovic v. Southern California Edison Co., 302 15 F.3d 1080, 1087 (9th Cir. 2002)). “Rule 16(b)(4) provides that a court may modify or extend a 16 discovery deadline upon a showing of good cause.” Tyco Thermal Controls LLC v. Redwood 17 Industrials, No. C. 06-07164 JF (PVT), 2010 WL 1526471, *4 (N.D. Cal. April 15, 2010) (citing 18 Fed. R. Civ. P. 16(b)(4)). “Good cause may be found to exist where the moving party shows that 19 it diligently assisted the court with creating a workable scheduling order, that it is unable to 20 comply with the scheduling order’s deadlines due to matters that could not have reasonably been 21 foreseen at the time of the issuance of the scheduling order, and that it was diligent in seeking an 22 amendment once it became apparent that the party could not comply with the scheduling order.” 23 Kuschner v. Nationwide Credit, Inc., 256 F.R.D. 684, 687 (E.D. Cal. 2009). The fact that no 24 other deadlines, including the trial date, will be affected constitutes a basis for finding good 25 cause. Lehman Brothers, 2011 WL 203675 at *1. 26 27 28 In this case, a discovery dispute manifested that, through no fault of any party, will not be resolved until after the discovery deadline. As a result, regardless of the Court’s ruling on the 4 STIPULATED MOTION AND [PROPOSED] ORDER TO AMEND ORDER SCHEDULING TRIAL AND PRETRIAL MATTERS DCACTIVE-26039114.1 CASE NO.CV-09-5984 JSW Case3:09-cv-05984-JSW Document92 Filed12/06/13 Page5 of 6 1 discovery dispute, fact discovery cannot be completed by the current December 6, 2013 deadline. 2 The pending resolution of the discovery dispute in turn affects the deadline for Plaintiff’s expert 3 designation, and the other expert discovery deadlines that follow from that date. Accordingly, 4 good cause exists to extend the discovery deadline but the length of the extension depends on the 5 outcome of the discovery disputes that will be resolved next Wednesday. 6 For the reasons set forth herein, the parties request that the Court enter an Order To 7 Amend the Order Scheduling Trial and Pretrial Matters in accordance with the Proposed Order 8 submitted herewith. 9 10 11 12 Dated: December 6 , 2013 13 14 WILLIAM D. BEIL JASON M. HANS ROUSE HENDRICKS GERMAN MAY PC JEFFREY E. FAUCETTE SKAGGS FAUCETTE LLP 15 16 By: /s/ William D. Beil William D. Beil Attorneys for Relator CHRIS McGOWAN 17 18 19 DAVID W. O’BRIEN JUSTIN P. MURPHY NIMROD HAIM AVIAD CROWELL & MORING LLP 20 21 22 By: ______/s/ David W. O’Brien_____________ David W. O’Brien Attorneys for Defendant KAISER FOUNDATION HEALTH PLAN, INC. 23 24 25 26 27 28 5 STIPULATED MOTION AND [PROPOSED] ORDER TO AMEND ORDER SCHEDULING TRIAL AND PRETRIAL MATTERS DCACTIVE-26039114.1 CASE NO.CV-09-5984 JSW Case3:09-cv-05984-JSW Document92 Filed12/06/13 Page6 of 6 1 2 [PROPOSED] ORDER Having reviewed the parties’ stipulated motion to amend this Court’s order scheduling 3 trial and pretrial matters, the Court finds that good cause exists to allow the requested 4 amendments. Accordingly: 5 (1) The deadline for the Close of Non-expert Discovery is hereby vacated. 6 (2) The parties are ordered to submit a joint brief no later than three days after the 7 pending discovery disputes are resolved, proposing deadlines for non-expert and expert 8 discovery, as well as dispositive motions. In the event the parties cannot agree on the requested 9 dates, each party shall propose his own set of dates and outline his position in support. 10 (3) 11 deadlines. 12 The Court will thereafter set new and binding discovery and dispositive motions IT IS SO ORDERED. 13 14 9 Dated: December __ , 2013 15 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 6 STIPULATED MOTION AND [PROPOSED] ORDER TO AMEND ORDER SCHEDULING TRIAL AND PRETRIAL MATTERS DCACTIVE-26039114.1 CASE NO.CV-09-5984 JSW
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