UnitedHealthcare of Florida, Inc. et al v. American Renal Associates Holdings, Inc. et al, No. 9:2016cv81180 - Document 329 (S.D. Fla. 2017)

Court Description: ORDER granting in part and denying in part 291 Motion for Reconsideration. Signed by Magistrate Judge William Matthewman on 10/20/2017. (kza)

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UnitedHealthcare of Florida, Inc. et al v. American Renal Associates Holdings, Inc. et al Doc. 329 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CivilN o.16-cv-81l8o-M arra/M atthew m an UNITEDHEALTHCARE OF FLORIDAJ INC., d A LL SA V ER S IN SU M N CE CO M PAN Y , FILED by .C. Plaintiffs, 2CT 2 2 2217 VS. STEVEN M.LARIMORE c. s égFuF. S u/i. D-ls w. T.pcn T. AM ERICAN RENAL ASSOCIATES LLC, etal., Defendants. O R DER G R AN TIN G IN PAR T A N D D EN Y IN G IN PA R T PLA INT IFFS'M O TIO N FO R RECONSIDERATON IDE 2911 THIS CAUSE isbefore the Courtupon Plaintiffs,UnitedHealthcare,Inc.,and AllSavers InsuranceCompany's(collectively,ttplaintiffs'')M otion forReconsideration orM oditication of Omnibus Discovery Order Dated August 30,2017 (ttM otion'') (DE 2911. This matter was referred to the undersigned by United States DistrictJudge Kenneth A . M arra. See DE 62. D efendants, A m erican Renal A ssociates LLC , and Am erican Renal M anagem ent (eolledively,tsDefendants''),tsled a response (DES 296,297)to Plaintiffs'M otion,Plaintiffs filed areply (DES303,3041,and Defendantsfiled asur-reply (DES314,315). Thematteris now ripe forreview . 1. BA C K G R O UN D In theCourt'sAugust30,2017 OrdergDE 2901,theCourtgrantedinpartanddenied in partDefendants'OmnibusMotion toCompel(DES254,2551and grantedinpartand denied in Dockets.Justia.com Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 2 of 13 partPlaintiffs'Motion to Compel (DES 251,2521. M ore specitically,the Courtpennitted Defendantsto selectan additional16 custodiansand an additional12 search term sand to request m oreatalaterdateifDefendantshavea good-faith basisto do so. The Courtalso ruled that Asto Plaintiffs'Second SetofDocum entRequests//2 and 3,the Courtfindsthat DefendantshavenotwaivedanyprivilegeandthatLocalRule26.1(3)(2)(C)shall not be m odified by the undersigned to require a privilege log of docum ents that involve post-lawsuitprivileged com munications. Based upon the representation of D efendants'counselin their response and atthe August 11,2017 hearing that allnon-privileged responsive documents have been produced,the Courtdenies any furtherreliefas to Requests #2 and 3. gDE 290,p.2j. TheCourtmadeadditionalrulings,whicharenotrelevantto Plaintiffs'M otion. ll. M O T IO N .R ESPO N SE.R EPLY .A N D SU R -R EPLY ln the M otion,Plaintiffs first argue thatthe Courtshould reconsider orm odify its O rder because the Courtnever made a finding that Plaintiffs' production was deficient,there is no evidence thatwould supportsuch a conclusion,the Courtdid nottailorthe additionalcustodians or search tenns to ûtany purported inadequacy nor to any proportionality lim its'',the Courtdid notStprovide any m echanism forensuring thatA lu 'scustodians and search term sdo notcapture an ovenvhelmingly, burdensom e, disproportionate am ount of inform ation'', and the Court's Orderisû'patently unfair.'' gDE 291,pp.1-31. Plaintiffs'second argumentisthattheCourt should reconsideritsdecision notto com pelD efendantsto provide a privilege log because itheld the partiesto differentstandardsregarding privileged materials,Defendantswrongfully withheld a responsive,non-privileged docum ent,and the Courtshould notrely on Defendants'counsel's representations that they have no additional non-privileged responsive docum ents. 1d. at pp. 3-4. In response, D efendants argue that the M otion should be denied because the Court's 2 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 3 of 13 Orderisbasedontheparties'lengthysubmissionsandtwohoursoforalargument. gDE 297,p. D efendants also contend thatthe alleged dtpatent unfaim ess''is not a lûperm issible ground for granting a reconsideration m otion in this Circuit.'' 1d. N ext, D efendants argue that the M otion should be denied because Plaintiffs have not presented new evidence or authority and have notdem onstrated a m anifesterrorby the Court. 1d.atp.2. Finally,D efendants m aintain that Plaintiffs have m isstated the current state of discovery in the case. Id D efendants are requesting a date certain by which Plaintiffs m ustcom plete their entire production and suggest the date ofO ctober 14,2017. 1d.atp.3. ln reply,Plaintiffsre-statethe argumentsfrom theM otion. (DE 304,p.2j. Plaintiffs also contend thatthe Court's Ordertûinexplicably and withoutany stated basisgrants discovery rightsto ARA thattheCourthas denied to Plaintiffs in thiscase.'' f#.atp.3. Plaintiffsargue thatthe Order dtw ill im pose burdens on Plaintiffs'that are disproportionate to any benefit that w ill flow to Defendants'' and that D efendants' have already provided Plaintiffs a list of custodians and search tenns that are l'unrestricted and unfocused.'' Id Plaintiffs assertthat some ofthe proposed search term sattemptto circum ventotherCourtrulings and are therefore improper. Id at p.4. Finally,Plaintiffs argue thatthe Courtshould require Defendants to subm it a privilege log because that w ill ççm inim ize A lu 's ability to withhold responsive docum ents.'' 1d. at p. 6. Plaintiffs attach to their reply a sealed D eclaration to supporttheir argumentthattheCourt-ordereddiscoverywould beburdensome. (DE 303-41. ln D efendants' sur-reply, they argue that the new custodians and search term s are supported bytheevidence,arerelevant,andareproportionaltotheneedsofthecase. (DE 315, p.3). Defendantsnextcontendthatthedeclaration filedby Plaintiffsshould bedisregarded by 3 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 4 of 13 theCourtasitisirrelevantand hasneverbeen filed beforein thiscase. Id atp.4. 111. A NA LY SIS A ND D ISCU SSIO N In orderto prevailon a m otion forreconsideration,the m oving party ktm ust dem onstrate w hy the court should reconsider its prior decision and set forth facts or law of a strongly convincing nature to induce the courtto reverse its priordecision.A m otion for reconsideration should raise new issues,notm erely address issues litigated previously.'' Instituto de Prevision M ilitarv.fehmanBros.,485F.supp.zd 1340,1343 (S.D.Fla.2007)(quotingSocialistWorkers plry v.Leahy,957 F.supp. 1262, 1263 (S.D.Fla. 1997)).The three grounds warranting reconsiderationthatcoul'tshavearticulatedare:(1)anintervening changein controllinglaw;(2) theavailabilityofnew evidence' ,or(3)theneedtocorrectclearerrorormanifestinjustice. 1d. Upon carefulreview of the M otion,D efendants'response,Plaintiffs'reply,D efendants' sur-reply,the Court's prior O rders,and the entire docket in this case,the Courtfinds that the M otion isdueto begranted in pal4and denied in partasfully explained inthisOrder. First,there hasbeen no intervening changein controlling law. Plaintiffsdo notargueto the contrary. Therefore,reconsideration isnotappropriate on thatbasis. Second,the only asserted new evidence subm itted by Plaintiffsconsists ofDocketEntries 303-1through 303-4. D ocketEntry 303-1 isem ailcorrespondence;D ocketEntry 303-2 is a list ofthe additional 16 custodians;DocketEntry 303-3 is a list of additional 12 search term s;and Docket Entry 303-4 is a D eclaration from the D irector of e-D iscovery at U nitedHealth G roup. Even though Plaintiffs could have- and should have- tiled the D eclaration at a m uch earlier date,and certainly no later than the lengthy discovery hearing held in this case on A ugust 2017,the Courthas nonetheless considered this asserted new evidence in an effortto be fair to 4 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 5 of 13 allpartiesinvolved inthiscase. Although theDeclaration gDE 303-4)addressese-discoveryin generaland isnotsufficiently specificto thediscovery atissue,the Courtwillreconsideritsprior Order in lightofthe Declaration because itsheds lighton precisely whatthe parties have not done in thiscase regarding theire-discovery obligations. Speeitk ally,the very lastparagraph ofthe Dedaration states precisely whatthis Court hasbeen asking the partiesin thiscaseto do- and which they have failed to do- throughoutthe m any discovery disputes which have unfortunately arisen in this case. Specifically,paragraph 12 states as follow s' . ln m y opinion and based on my experience, if additional time is taken to reexam ine the search term s to m inim ize som e of the m ore obvious deticiencies and then,after the search term s are nzn, allow for the parties to evaluate which tennshiton an excessive num berofdocumentsand narrow them accordingly,the process could be sped up significantly as the volume ofdocuments for the steps after collection and indexing willlikely be greatly reduced. (DE 303-4,para.121. Ironically,thistype ofcooperation isexactly whatthisCourthasbeen expecting from the partiesand theircounselthroughoutthiscase- to work togetherto arrive at reasonable search tenns,to nm those search term s and engage in snm pling to see if the search term s are producing responsive docum ents or excessive irrelevant hits,and then to continue to refine the search term s in a cooperative, professional effort until the search tenns are appropriately refined and produce relevantdocum entsw ithoutincluding an excessive num ber of irrelevant docum ents. However,despite what paragraph 12 of the Declaration suggests,and despite this Court's suggestions to the parties and their counsel as to the cooperative and professionalmannerin which the parties should engage in the e-discovery process in this case, there has instead been an apparent lack of cooperation and constant bickering over discovery, especially e-discovery. The alleged new evidence subm itted by Plaintiffs,thatis,the listof 5 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 6 of 13 additionalsearch tenns and custodians and the Declaration, clearly show that,where,ashere, partiesin alargecivilcase do notcooperatively engagein the e-discovery process, the collection and indexing of docum ents and the production of relevant docum ents, becom e m uch m ore difficult. There is no need to corred clear error ormanifest injustice as the Court has not committedclearerrororcaused anyparty manifestinjustice. Rather,ifanyoneistoblame for the belabored and excessive discovery process in this case,the Courtsuggests that it is the parties themselves. As the Courtnoted above,the partiesin thiscase seemingly are unableto cooperate regarding discovery disputes,asrequired by FederalRulesofCivilProcedure 1 and 26 and the LocalRules.1 A lthough the parties and their counsel should be the m ost fam iliar w ith the particular issues and discovery needs of this case,to date,they have provided very little assistance to the Courtduring the discovery process. The partiesand theircounselhave been of virtually no help to the Courton e-discovery issues and have them selves caused the difficulties ofw hich Plaintiffs now com plain. Unfortunately,the partiesand theircounsel,through theirmany discovery disputes and their litigiousness, have unnecessarily tunw d this case into w hat can best be tenned as a Sçdiscovery slugfest.'' Rather than the parties working together to com e up with reasonable search term s, then w orking together to refine those search term s, and then cooperatively engaging in sampling and furtherrefinem entofthosesearch termsso thatrelevantdocum entsare uncovered and produced,or cooperatively engaging in any ofthe numerous other e-discovery lThelntroductoly StatementoftheLocalRulesstatesthatattorneysinthisDistrictareto bedsgoverned atalltimes by aspiritofcooperation,professionalism,andcivility. Forexample, andwithoutlimiting theforegoing,it remainstheCourt'sexpectationthatcounselwillworkto eliminatedisputesby reasonableagreementto thefullest extentperm itted bytheboundsofzealousrepresentation and ethicalpractice.'' 6 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 7 of 13 techniquesthatcould lessen the discovery burdens on both parties,they have instead soughtto turn thediscovery processin thiscase into alegalvariety ofhand-to-hand com bat. lfany ofthe parties to this case are ulzhappy with the Court's discovery rulings,and,specifically as to the pending m otion,if Plaintiffs or their counsel are unhappy w ith the Court's discovery rulings, they have only them selves to blame. The parties' lack of cooperation and insistence upon producing as little discovery as possible to the other side,while concurrently seeking asm uch discovery aspossible from the otherside,is atthe rootofthe discovery problem sin thiscase. Thiscase wasfiled by Plaintiffson July 1,2016. Sincethattim e,the partieshave filed w ell over 50 discovery m otions,responses, replies,notices, and declarations, m any of w hich have been tsled underseal. The Courthasheld atleastsix discovery hearingsin 2017,mostof which were lengthy and contentious. See D Es 89, 107, 109, 171,228,284. The Court has entered countless Orders relating to the parties'num erous discovery disputes. Itappears to the Court that, rather than be cooperative in the discovery process, the parties and their counsel intend to m ake the discovery process in this case as expensive,tim e-consum ing and difficult as possible. This tlies in the face of w hatis expected from civillitigants and their counsel. For exam ple,a very recentpublication from the well-respected Sedona Conference lnstitute states the follow ing: The ability to reach an agreementon topicsorsearch terms is dependant(sicl upon the levelof cooperation ofthe parties,and w hetheritispracticalatthe early stages in the case to identify the potentially relevantrecords. Search tenns also have to be carefully crafted and m ultiple levels of searches m ay be required to identify truly relevantESI. Forexam ple,a string search of200 tennsm ay recall so m any records that even if the parties w ere able to agree on those tenns the results of the search are so m assive that use of search term s in that context m ay notreduce or elim inate the burden.W ith thatsaid,search term s m ay be a fruitful w ay to lim itthe scope ofdiscovery and reduce costs.Ourpointis thatitw illtake tim e and efforton both parties' side to reach an agreem enton a w orkable setof 7 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 8 of 13 search term s. John Rosenthal and M oze Cowper,W Practitioner' s Guide to Rule 26@ Meetand Confer.W YearAhertheAmendments,TheSedonaConferenceInstitute,2008,at11. Further,asnoted in therecentlypublished FederalJudges'Guideto Discoyery: Courts expectthatcounselw illendeavorto cooperate and reach agreem ents early in litigation regarding the scope of preservation;the scope of search efforts (custodians, date ranges, sources); the method of search (keyword, TAR, combination);theform (orfonns)ofproduction (including whatmetadatawillbe producedandhow ESIfrom structureddatabasesmaybeproduced);andprivilege and privacy issues,etc.,and to revisit issues, if necessary, as m ore facts are discovered orlegaltheoriesare refined. TheFederalJudges'GuidetoDiscovery Edition3.0,TheElectronicDiscovery Institute(2017), at50. And no less of an expertthan United States Suprem e CourtChief Justice John Roberts com m ented in the 2015 Year-End Repol'ton the FederalJudiciary that,pursuantto the Decem ber 1, 2015 A m endm ents to Federal R ules of Civil Procedure 1 and 26, it is now the duty and obligationsofthe lawyersin acivilcaseto cooperate in discovery,sizeand shapetheirdiscovery to theneedsofthecase,and attemptto lessen,ratherthan exacerbate,discovery disputesandthe expense ofthe discovery process.ln thisregard,ChiefJustice Roberts stated: As for the law yers,m ost w ill readily agree- in the abstract- that they have an obligation to theirclients,andtothejusticesystem,to avoid antagonistictactics, wastefulproceduralm aneuvers,and teeteringbrinksmanship.Icannotbelievethat m any membersofthebarwentto law schoolbecause ofa burning desireto spend their professional life wearing down opponents with creatively burdensom e discovery requests orevading legitim ate requests through dilatory tactics.The test for plaintiffs'and defendants'counselalike is whether they willaffinnatively search out cooperative solutions,chart a cost-effective course of litigation, and assumesharedresponsibilitywithopposingcounseltoachievejustresults. 8 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 9 of 13 ChiefJustice's2015Year-EndReportontheFederalJudiciar/5atp.11. W ith the above pronouncem ents in m ind,the Court w ill now turn to the specifics of Plaintiffs'M otion.Plaintiffs'firstprimary argumentastoclearerrorormanifestinjusticeisthat theCourt'srulingpermitting additionalcustodiansand search term sisnotbased ontheevidence, is unfair,and is overly broad. The Courtdoes not believe that its ruling is unfair and,in fact, the ruling isbased upon the argum entsm ade to the Courtin the m any tilingsby the parties and is based on theargum entsmadeatthe lengthy discoveryhearing. Further, while the Court opted to pennit additional search term s and custodians, Defendantsareobviously stillconstrained to abide by the Court'spriordiscovery Orders in this case. Thatis,D efendants m ay notuse the additionalsearch term s or custodians to circum vent any ofthe prior lim itations thatthe Courthas placed upon discovery in this case in its discovery O rders. The additionalsearch term s and custodians m ust stay w ithin the param eters the Court hasplaced upon discovery in thiscase via itspriorOrders. Should Defendantsfailto do so,and should Defendants seek e-discovery beyond the param eters previously imposed by the Court, Plaintiffs can file an additional m otion w ith the Courtexplaining exactly how D efendants have failed to adheretotheletterorspiritofthe Court'spriordiscovery Orders. In this regard,how ever,the Courtstrongly advises counselfor allparties in this case to read the above authorities3, com p1y w ith w hatisethically expected of them as professionals and m em bers ofthe Bar,and w ork together to refine the search term s and arrive atthe production of relevant and proportional discovery in this case. The Court also advises the parties and their 2 www .suprem ecourt. gov/publicinfo/year-end/zolsyear-endreport.pdf 3 TheCourtalsodirectsthepartiesto review L-3 Commc'nsCorp. v.SpartonCor p.,3l3F.R.D.661 666-68(M.D. Fla.20l5),whichaddressessearchterms,e-discovery,andthenecessityforcooperationbetweentheparties. 9 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 10 of 13 counselthatitwillstrictly utilize cost-shifting and attorney's feesand costs sanctionsfrom this point forward against any party or attom ey in this case who violates the Court's discovery Orders,failsto cooperate in good faith,seeks excessive discovery,or fails to produce relevant and proportionaldiscovery. Plaintiffs'second main argumentregarding clearerrorormanifestinjustice is thatthe Courtshould have required Defendants to drafl and serve a privilege log because Defendants allegedly failed to produce a non-privileged docum entthatwas responsive to one ofPlaintiffs' discovery requests in the past.4 Plaintiffs have no legitim ate basis for assum ing, and encouraging the Court to infer or find, that there are m ore such w ithheld docum ents by Defendants. Defendants' counsel,who are oftk ers of the court,have represented that no additionalnon-privileged,responsive documentsarebeing withheld. In effed,and to be blunt, Plaintiffs' counsel are effectively accusing D efendants' counsel of lying to the Court;that is, Plaintiffs'counselare asserting thatDefendants'counselare pum osely withholding documents and then m aking know ing m isrepresentations to this Court that they have not w ithheld docum ents. These are strong allegations,and,from w hatthe Courthas seen to date,there isno factualbasisorsupportforsuchallegations. IfPlaintiffs'counselhaveevidence(notinnuendo, assumptionsorbeliefs)to supportsuch a bold accusation,then they should produce it;ifnot, then they m ustrefrain from m aking such representations or assertions for w hich the Courthas 4 TheCourtnotesthat, in largecivilcaseslikethiscase,itisnotentirely unexpectedthatapartywilleither inadvertentlyproduceprivilegeddocumentsorinadvertently and initially failto producerelevantdocuments. This canhappendespitethebesteffortsandintentionsofcounselandparties. TheRulesprovideforsupjlementationof discoverywhenerrorssuchasfailuretodisclosearelevantdocum entarediscovered by aparty. Plalntiffs' argumentthat,becausean emailwasallegedlynottimely produced by Defendants,theCourtshould,therefore, assum ethatDefendantsarepurposely withholding documentsinthediscovery processiswholly withoutmerit. ln fact,Plaintiffsthemselves,bytheirownadmission,haveerroneouslyproduceddocumentssubjecttoprivilegeinthis caseandhavehadto producedocumentswhich theypreviouslywithheldanderroneously listed ontheirprivilege log. See DE 301 atp.2. Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 11 of 13 seen no evidence to date. Thesetypesofallegationsaresurely one ofthe reasonsthediscovery process in thiscase hasbecom e so litigious and acrim onious. Furtherm ore,Plaintiffs acknow ledge that a privilege log w ould notnonnally be required underLocalRule26.1(3)(2)(C),buttheythenarguethatDefendantsçdlosttheprotectionthatthe localrule would otherwise provide by wrongfully withholding an indisputably non-privileged docum ents that w as directly responsive to Plaintiffs' docum ent requests.'' gDE 291,p.41. This argum ent is nonsense. Plaintiffs have never provided any case law to support their contention thatthe Courtm ustdisregard the LocalRulesbecause oneparty allegesanotherparty haswithheld docum ents. Finally,Plaintiffs argue thatthe Courthas been unfair in requiring Plaintiffs to produce m ore discovery than D efendants. The Courtnotes thatitgranted in partand denied in partboth Plaintiffs'and D efendants'm ostrecentdiscovery m otions. The Courthasendeavored to be fair to both parties in this case,and,m erely because Plaintiffsdo notlike som e ofthe Court's rulings, doesnotm ean thatthe Courthasbeen unfair. M oreover,Plaintiffsare the ones who tiled the lawsuitin thiscase and invoked thejurisdiction ofthisCourt they should notberesistantto producingdiscovery asrequired by therulesand ordered by theCourt. Based on the foregoing,itishereby O RDERED asfollows: Plaintiffs' M otion for Reconsideration or M odification of O m nibus D iscovery Order Dated August 30,2017 gDE 291) is GRANTED IN PART AND DENIED IN PA R T . 2. Plaintiffs'm otion is G M N TED to the extentthatthe Court'sprior Order is clarified so as to advise the parties thatthe additionalcustodians and search term s perm itted Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 12 of 13 Defendants by the Court m ust not go beyond the lim its and param eters previously placed on the scope of discovery by this Court in its num erous prior discovery Orders, and as noted previously in this Order. That is, by allowing Defendants additional search tenns and custodians, the Court did not give D efendants carte blanche to seek irrelevant, disproportionate discovery or discovery beyond the param eterspreviously setby the Court. Rather,the Courtw anted to ensure thatthe search for relevant and proportional docum ents would be sufficiently thorough w ithoutcausing undue burden or expense to Plaintiffs. Further,the prior Order is hereby supplem ented and m odified to the extent that the C ourt orders that both Plaintiffs and D efendants and the parties'counselconfer on the search tenns forthe additionalcustodians and endeavor to refine those search terms if they hit on an excessive num ber ofdocum ents,and then narrow them accordingly in a collaborative process. ln this regard,the parties and their counsel are ordered to collaborate and retine the search tenns as necessary to ensure that relevant discovery is being uncovered and produced. D efendants are stillperm itted the additionalsearch term s and custodians previously perm itted by the Court,butthe Courtw ants to ensure and direct thatthe parties confer and cooperate with each other to obtain the relevant documentsDefendantsareseeking while minim izingany burden on Plaintiffs. The balance ofPlaintiffs'M otion is D EN IED . 12 Case 9:16-cv-81180-KAM Document 329 Entered on FLSD Docket 10/20/2017 Page 13 of 13 DONE and O RDERED in Chambers this b C day of October, 2017,at W est Palm Beach,Palm Beach County in the Southern D istrictofFlorida. W ILLIA M M A TTH W M AN UN ITED STATES M A GISTM TE JUD G E

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