HOCKADAY v. ATHENS ORTHOPEDIC CLINIC PA et al, No. 3:2015cv00122 - Document 190 (M.D. Ga. 2020)

Court Description: ORDER denying 118 Motion for Sanctions; denying 122 Motion for Protective Order; granting in part and denying in part 123 Motion to Compel; denying 127 Motion for Protective Order; granting 128 Mot ion to Compel; granting in part and denying in part 129 Motion to Compel; granting 148 Motion to Compel; granting 153 Motion to Compel; terminating 160 Motion for Protective Order; granting 161 Motion for Extension of Deadlines; granting 162 Motion to Compel; terminating 165 Motion for ESI Protocol; terminating 183 Motion to Compel. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/23/2020 (CCL)

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HOCKADAY v. ATHENS ORTHOPEDIC CLINIC PA et al Doc. 190 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 1 of 34 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION UNITED STATES OF AMERICA, ex * rel. REBECCA HOCKADAY and STATE OF GEORGIA, ex rel. REBECCA * HOCKADAY, * Plaintiff-Relator, * vs. * ATHENS ORTHOPEDIC CLINIC, P.A., et al., * Defendants. CASE NO. 3:15-CV-122 (CDL) * O R D E R The Court is called upon yet again to resolve discovery disputes in this contentious action. for both their parties differences blameworthy in good for faith, The Court finds counsel their inability although it to is difficult to calculate the relative degrees of fault. resolve admittedly What is clear to the Court is that the lawyers have utterly failed to evaluate their positions in light of the directive of Rule 26 that discovery of relevant nonprivileged evidence shall be permitted to the extent that it is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). not adequately evaluated their And they certainly have disagreements in factors to be considered under Rule 26: light of the the importance of the issues at stake, the amount in controversy in the action, the Dockets.Justia.com Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 2 of 34 parties’ relative access to the relevant information, the parties’ resources, the importance of the discovery, and whether the burden or expense of production likely outweighs its likely benefit. Remarkably, counsel appears to have abandoned any Id. notion of achieving a just determination of this action in a speedy and inexpensive manner as contemplated by the very first rule of federal civil procedure. Fed. R. Civ. P. 1. Instead, Defendants’ counsel is firmly convinced that Relator’s counsel’s requests are unreasonable, and Relator’s counsel believes that Defendants’ counsel is trying to hide the ball and make unreasonably difficult for Relator to prove her claims. this complete breakdown, the Court has a duty to it Given make the decisions which the rules contemplate should be made by counsel. Like a parent deciding which stubborn child should get the last cookie, the Court is tempted Although alluring in its to split the simplicity, such likely not be entirely just. cookie in half. a resolution would The Court must therefore dive into the middle of the dispute, a task for which it is less well equipped than theoretical good faith counsel who know the case better and should have stronger incentives for compromise. this is sometimes considerable how expenditure the of cookie judicial crumbles. resources, Yet, So after the Court explains in the remainder of this order its resolution of the 2 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 3 of 34 pending motions and provides notice to counsel that any whining should be reserved for the Court of Appeals. Relator is the former chief operating Orthopedic Clinic, P.A. (“Clinic”). 2014 and filed Defendants this submitted qui false claims of Athens Relator was terminated in action tam officer to in 2015, the alleging United that States and Georgia in violation of the False Claims Act, 3 U.S.C. §§ 37293733, and the Georgia Medicaid False Claims Act, O.C.G.A. §§ 494-168 to 168.6. Relator asserts that the Clinic and its doctors and administrators concocted a variety of schemes to defraud the United States Medicare and and Georgia Medicaid by submitting reimbursement. The false claims for United States and Georgia declined to intervene in late 2018, Relator filed an amended complaint, and discovery began in early 2019. Discovery got off to a rocky start, and the Court has held one hearing and two telephone disputes. At conferences the last regarding telephone the parties’ conference on discovery February 25, 2020, the Court expressed hope that this case would be back on track and that it would not have to spend more time on discovery disputes. But counsel have been incapable of resolving their disputes on their own by conferring in good faith. they have filed thirteen discovery pages of briefing. 3 motions with Instead, hundreds of Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 4 of 34 DISCUSSION I. Relator’s Motion for Sanctions (ECF No. 118) At the February 25, 2020 telephone conference, the Court ordered the Clinic to respond to Relator’s outstanding discovery requests by March 31, 2020, with no further extensions. the COVID-19 pandemic hit. Then The parties jointly requested and received a four-month extension of discovery, to April 9, 2021. The joint motion for extension, however, did not address the documents that the Clinic was to produce by March 31, 2020. Clinic did not complete its production by that date. The Relator filed a motion for sanctions, arguing that the Court should hold the Clinic in contempt until it produces all the documents that the Clinic was ordered to produce by the end of March. The Clinic represents that it met the March 31 deadline for nearly all the responsive documents that had been identified for production as of February 25, 2020 and that it produced the remaining represents documents that it by May 5, discovered 2020. The additional Clinic responsive further documents that it needed to produce and that those documents were on track to be produced by the end of June, 2020. Given the combative nature of discovery in this action, the wisest course for the Clinic would have been to seek an extension of the March 31 production deadline in light of delays caused by the pandemic. If such an extension had been sought, 4 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 5 of 34 the Court very likely would have granted it and ordered the Clinic to complete its production as soon as practicable. these circumstances, based on the the Clinic’s production deadline. Court failure declines to to the meet impose March Under sanctions 31, 2020 The motion for sanctions (ECF No. 118) is DENIED. The Court understands that much of Relator’s motion focuses on the issue of board meeting recordings. It was a struggle for Relator to get the Clinic to nail down what recordings exist and what recordings do not. Initially, the Clinic’s counsel represented that some of the recordings had been deleted, but the Clinic’s corporate representative later testified that some recordings did exist and had been given to the Clinic’s counsel. And, shortly before the February 2020 telephone conference, the Clinic’s counsel acknowledged that some recordings did exist and told Relator’s counsel that they would be produced. Thus, these recordings should have been part of the production that was due by March 31, 2020. They certainly should have been produced, yet it appears that they had not been produced by the time of Relator’s reply brief. If the recordings still have not been produced, Relator should alert the Court, and the Court will reconsider the issue of sanctions on this narrow issue. 5 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 6 of 34 II. The Clinic’s Motion for Protective Order Regarding Subpoena to Doctors Management, LLC (ECF No. 122) The Clinic or its lawyers hired Doctors Management, LLC several times between 2016 and 2019 to assist the Clinic with compliance issues and to regarding several matters. help counsel advise the Clinic Relator served a subpoena on Doctors Management seeking all documents and communications related to work performed by Doctors Management for the Clinic. The Clinic filed a motion for a protective order, arguing that the subpoena seeks information privilege and covered work by product the Clinic’s privilege and attorney-client that it seeks was still irrelevant information. Relator asserts that while Relator’s counsel trying to confer with the Clinic’s counsel via email to resolve the disputes and narrow the scope of the subpoena, the Clinic filed its motion for a protective order. that that differences, the parties including had an made agreement some that Relator progress Relator represents on their would not insist on production of any document that the Clinic claimed was privileged. Thus, there is a glimmer of hope that the lawyers can work this one out if they try. So, try they shall. But the lawyers’ favored process—sending emails and letters labeled as good faith attempts to confer—isn’t working. Instead, the lawyers shall schedule a videoconference at a mutually agreeable 6 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 7 of 34 time so that they can discuss the remaining issues and come to an agreement regarding the subpoena. The present motion for protective order (ECF No. 122) is DENIED. III. Relator’s Motion to Compel Production of Claims, Related Documents, and Patient Records (ECF No. 123) Claims At the February 25, 2020 telephone conference, the Court ordered the Clinic to produce documents related to Atlanta Prosthetics & Orthotics within fourteen days (by March 10, 2020) and the rest of the documents responsive to Relator’s outstanding discovery requests by March 31, 2020. Defendants did not dispute that Relator is entitled to claims information “and the claims themselves for relevant patients in this case.” Hr’g Tr. 35:14-16, Feb. 25, 2020, ECF No. 114. that the Clinic did not produce the claims Relator contends by the deadline—at least not as individual claim forms. March 31 The Clinic asserts that for many years, claims data has been kept in a software system and transmitted to the payors electronically. The Clinic further represents that it exported claims data from its software system into spreadsheets to Relator. spreadsheets and produced those The Clinic states that it has produced claims data for every claim submitted by the Clinic to a federal healthcare payor from May 2012 through December 31, 2019,1 as The claims data for claims submitted to federal healthcare payors includes: (1) patient ID number; (2) patient name; (3) service date; (4) location name; (5) place of service; (6) patient subscriber number; (7) insurance plan name; (8) service provider NPI; (9) billing 1 7 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 8 of 34 well as claims data for every claim submitted to any third-party payor during the same time period.2 Relator, though, appears to want the claims data on the government claim forms. The Clinic avers that it worked with its software vendor to attempt a bulk export of claims data into the format of a claim form, but it did not produce a readable result. A software however, print individual claim forms one at a time. user can, The Clinic argues that requiring a person to print each individual claim form for hundreds of thousands of claims would be unduly burdensome given that the information has already been produced in a reasonably usable form. Federal party Rule producing of Civil Procedure electronically stored 34(b)(2)(E) requires information to a produce such information in a form “in which it is ordinarily maintained or in a reasonably useable form,” and a party is not required to “produce the same electronically stored information in more than one form.” Fed. R. Civ. P. 34(b)(2)(E)(ii)-(iii). Here, the provider NPI; (10) referring provider name; (11) CPT code; (12) modifier 1 modifier 2; (13) charges; (14) payments; (15) adjustments; (16) balance; (17) units; (18) units actual. Defs.’ Resp. to Relator’s Mot. to Compel 6, ECF No. 136. 2 The claims data for claims submitted to third-party payor includes: (1) provider ID;; (2) provider name;; (3) location ID;; (4) location name;; (5) patient appointment number;; (6) account ID;; (7) patient name;; (8) patient date of birth;; (9) appointment type ID;; (10) appointment type name (e.g. MRI, follow up visit, etc.);; (11) appointment date;; (12) appointment start time;; (13) appointment duration;; (14) patient complaint; (15) appointment notes;; (16) insurance plan 1;; (17) subscriber number 1; (18) insurance plan 2; (19) subscriber number 2. Defs.’ Resp. to Relator’s Mot. to Compel 67, ECF No. 136. 8 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 9 of 34 Clinic represents that it keeps claims data in a software system and that it exported the data into usable produced those spreadsheets to Relator. spreadsheets and The Court declines to require the Clinic to produce the claims data in another format. The motion to compel (ECF No. 123) is DENIED on this ground. The Court, however, understands that Relator wants to know how the Clinic accomplished the necessary certification when it electronically transmitted claims data to government payors. The government form that is used for individual claims contains a certification by the entity seeking reimbursement: the entity certifies that the claim complies with all applicable Medicare and Medicaid laws, including the Anti-Kickback Statute and the Stark Law. claims data Relator contends spreadsheets certification was electronically. made that it the is Clinic when the not clear produced claims were work receives such the a submitted Relator is entitled to that information, and the motion to compel is GRANTED on this ground. shall how from with evidence Relator’s regarding counsel to ensure the claims The Clinic that Relator certifications by December 31, 2020. Relator adequate also proof of asserts claims that the payment by Clinic has government not provided payors. The Clinic represents that payment information is included in the claims data that was exported from its software system. 9 If Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 10 of 34 Relator contends that the Clinic still has not provided adequate proof of payment for the claims that were submitted to government payors, Relator’s counsel shall confer in good faith with the Clinic’s counsel, and the lawyers should find a way to resolve this issue by December 31, 2020. Relator contends that the Clinic has asserted that data for claims made between 2005 and 2012 has been destroyed. Relator believes, however, that the information does exist in a specific database that the Clinic maintains. The Clinic did not respond to this portion of Relator’s motion to compel and does not argue that the records, if they exist, are not discoverable. not clear documents from exist. the present record Accordingly, if whether the Clinic any It is responsive still has not produced claims data for claims made between 2005 and 2012, then the lawyers shall confer in good faith to ensure that Relator receives any data that exists plus information on what data has been destroyed by December 31, 2020. Finally, the parties are at an impasse regarding patient records. The Clinic maintains that Relator seeks medical records for unspecified patients but has not identified which patients are relevant. Relator would like the patient records for patients whose services resulted in a false claim to the Government under one of the schemes alleged in the First Amended Complaint. In the present motion to compel, Relator focuses on 10 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 11 of 34 (1) claims that used a modifier to bill separately for services that allegedly should have that billed unregulated for been bundled FDA-approved together, (2) claims viscosupplementation viscosupplementation agent was when allegedly an used instead, and (3) claims related to orthotics made by the Atlanta Prosthetics & Orthotics orthotist.3 Relator appears to contend that the Clinic should figure out whose records she wants, but the Clinic argues that the onus should be on Relator to identify the patients for whom she seeks medical records. agrees with the Clinic. The Court Relator shall identify the patients whose medical records she seeks. If Relator cannot tell from the claims data that has already been produced which patients’ medical records are relevant to her claims, then counsel for the parties shall confer in good faith to find a mutually agreeable way of resolving this issue. IV. The Clinic’s Motion for Protective Order Regarding Subpoena to Wicklow Enterprises, LLC (ECF No. 127) Relator alleges that the Clinic billed the Government for FDA-approved viscosupplementation (a substance injected into a patient’s joint to alleviate the effects of osteoarthritis) when the Clinic actually purchased unregulated, viscosupplementation agents and used them in patients. foreign Relator In her reply brief, Relator also includes patients that received any durable medical equipment or orthotics. 3 11 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 12 of 34 claims that the Clinic purchased some viscosupplements from Wicklow Enterprises, LLC. Relator issued a subpoena to Wicklow Enterprises, seeking documents, communications, and electronically stored information regarding the Clinic’s purchase of viscosupplementation agents from Wicklow. The Clinic filed a motion for a protective order, arguing that the subpoena seeks irrelevant information. Noting that the Clinic’s first transaction with Wicklow was in 2018, the Clinic argues that the Wicklow possibly be relevant to this action. transactions could not Under the Clinic’s reading of the First Amended Complaint, Relator is only alleging that the Clinic had a scheme regarding viscosupplementation agents in 2010. But “shifted more to” the precisely, “fake” Relator alleges viscosupplementation Am. Coml. ¶ 202, ECF No. 27. that the agents Clinic in 2010. And, the Amended Complaint, which was filed in October 2018, does not contain any allegations that the Clinic stopped this practice; rather, Relator alleges that the Clinic “kept Accordingly, the ordering 2018 the cheaper transactions product.” between the Id. ¶ 205. Clinic and Wicklow Enterprises may be relevant, and the Court DENIES the Clinic’s motion for a protective order. The Clinic attached to its motion for protective order a letter outlining subpoena. Wicklow Enterprises’ objections to the To date, though, Wicklow Enterprises has not filed a 12 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 13 of 34 motion to quash the subpoena, and the Court therefore does not address the objections raised in the letter. V. Relator’s Motion to Compel Viscosupplementation (ECF No. 128) Discovery on As discussed above, Relator alleges that the Clinic billed the Government Clinic for FDA-approved actually viscosupplementation purchased viscosupplementation agent an and when unregulated, used it in the foreign patients. In Interrogatory No. 7, Relator sought all facts that support or refute these allegations, along with the identity of documents, communications, allegations. or persons In with knowledge Interrogatory No. relating 19, to Relator those sought information regarding the Clinic’s purchases of reimported or foreign viscosupplementation agents. And in Request for Production of Documents No. 7, Relator sought documents relating to her viscosupplementation allegations. Relator claims that the Clinic did not adequately respond to Interrogatory No. 7 and did not respond to Interrogatory No. 19 at all. She also contends that the Clinic did not produce documents regarding the purchase of Enterprises viscosupplements and that the from Clinic did QP not Medical produce or any Wicklow claims information for viscosupplements acquired from these companies. The Clinic contends that it is not required to respond to Interrogatory No. 19 because Relator was only allowed to serve 13 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 14 of 34 thirty interrogatories and she served far more than that before serving Interrogatory Interrogatory No. No. 19. 16—which The consists should count toward the limit. parties of dispute thirty-six whether subparts— The Court ordered Relator to amend her interrogatory on spoliation issues “to specifically ask the questions with regard to spoliation that [she] want[s] to know about.” Hr’g Tr. 58:4:7, Feb. 25, 2020, ECF No. 114. The Court suggested that approach to save the Clinic from having to put up its 30(b)(6) witnesses for deposition again. 57:25-58:3, 58:18-19. Id. The Court finds under these circumstances that the subparts of Interrogatory No. 16 should not be counted toward Relator’s total. The Interrogatory No. 19 exceeds Clinic the limits 16’s subparts are disregarded. does not argue that if Interrogatory No. Accordingly, the Clinic should answer Interrogatory No. 19. The Clinic transactions also between reiterates the Clinic its and objection Wicklow that any Enterprises are irrelevant because the Clinic’s first transaction with Wicklow Enterprises was in 2018, eight years after the Clinic allegedly “shifted to” the Am. Coml. ¶ 202. “fake” viscosupplementation agents in 2010. The Clinic contends that Relator could not plausibly allege that the Clinic continued this scheme after her employment with the Clinic ended. any information regarding Wicklow 14 The Clinic also argues that Enterprises is irrelevant Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 15 of 34 simply because Enterprises as Relator a agents alleges may obtained not specifically viscosupplementation Amended Complaint. Relator did The Court disagrees. that legally agent only be unregulated to Wicklow vendor in the As discussed above, FDA-approved provided name viscosupplementation patients, viscosupplementation that agents the from Clinic outside the United States, and that the Clinic kept ordering the cheaper product but billed the Government as though it used the FDAapproved viscosupplementation Then, Relator asserts that agent. 4 Am. she learned Compl. during ¶¶ 203-205. discovery that Wicklow Enterprises was a vendor that supplied the Clinic with foreign viscosupplementation agents. that should it employment or limit that discovery the Complaint The Court is not convinced to the only viscosupplementation scheme that ended term alleges in 2010. of Relator’s a one-time Rather, the Amended Complaint alleges that the Clinic kept ordering foreign viscosupplementation agents and continued improperly billing for them, and it does not limit the allegations of false claims regarding viscosupplementation to the time period during which Relator was employed at the Clinic. Accordingly, the 2018 transactions between the Clinic and Wicklow Enterprises may be The Clinic contends that its purchase of viscosupplementation agents from Wicklow Enterprises was not illegal, but there has been no dispositive motion on this issue and present record does not contain enough information for the Court to decide the issue. 4 15 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 16 of 34 relevant, and the Clinic thus shall respond to Relator’s discovery requests. The Clinic information does about not QP contend Medical are that the documents irrelevant. and Instead, it contends that it has searched for and produced documents related to QP Medical. Relator contends, however, that the Clinic limited its discovery responses to the year 2010, even though the Amended 2010. Complaint Accordingly, responses to 2010, alleges if it the a scheme Clinic should did that continued limit supplement those its after discovery responses to include a wider date range, up to at least the filing of the First Amended Complaint. In summary, this motion to compel (ECF No. 128) is GRANTED. The Clinic shall supplement its responses to Interrogatory No. 7, Interrogatory No. 19, and Request for Production of Documents No. 7 by December 31, 2020. VI. Relator’s Motion to Compel Discovery on Orthotics (ECF No. 129) Relator claims that the Clinic had several schemes related to orthotics. billing the orthotist. the Clinic One of the Government for alleged the services Am. Compl. ¶¶ 43, 234. entered kickback 16 schemes involved of an falsely unlicensed In another alleged scheme, relationships with licensed Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 17 of 34 orthotists, including an orthotist with AP&O. 5 241. Id. ¶¶ 43, 239, Relator also alleges that doctors altered diagnoses to ensure that patients would qualify for Medicare-paid orthotics, that the Clinic authorized fittings of orthotics by physical therapists who were not trained or licensed to do so, and that the Clinic submitted claims for custom patients received off-the-shelf items. In Interrogatory No. 11, orthotic devices when Id. ¶¶ 235, 240, 242. Relator sought all facts that support or refute her orthotics allegations and the identity of any documents, communications, relating to these allegations. or persons with knowledge She also served the Clinic with Request for Production No. 6, seeking all documents relating to her orthotics allegations. And, she propounded Interrogatory No. 18, seeking details on the Clinic’s agreements with thirdparty orthotists. Relator claims that the Clinic did not adequately respond to these discovery requests. The Clinic argues that it was not required to respond to Interrogatory No. 18 because Relator has exceeded the number of permitted interrogatories. As discussed above, the Court does not count the subparts of Interrogatory No. 16 toward Relator’s total. The Clinic does not argue that Interrogatory No. 18 exceeds the limits if Interrogatory No. 16’s subparts are In the Amended Complaint, AP&O stands for “Atlanta Prosthetics and Orthotics,” Am. Compl. ¶ 43, but some of the briefing says that AP&O stands for “Athens Prosthetics and Orthotics.” 5 17 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 18 of 34 disregarded. Accordingly, the Clinic shall answer Interrogatory No. 18. Relator contends that the Clinic did not adequately respond to Interrogatory No. 11 in part because the Clinic did not provide a list of persons with knowledge of Relator’s orthotics allegations. Instead, the Clinic referred to its response to Interrogatory No. 1, which is a list of people with knowledge of all the claims. In its second amended responses to the first interrogatories, the Clinic did identify one doctor, one practice administrator, two former employees, and at least three non-employees who may have information allegations. Clinic’s 2d Suppl. Am. Resp. & Obj. to Relator’s 1st Interrogatories, ECF No. 153-1. about the orthotics Thus, it appears that the supplementation addressed Relator’s concerns about the response to Interrogatory No. 11, and the Court declines to order any additional response. Relator also contends that the Clinic did not adequately respond to the portion of Interrogatory No. 11 that asked the Clinic to identify documents relevant to the orthotics claims. The That Clinic rule relies permits on a Federal Rule responding of party Civil to Procedure answer by 33(d). producing business records, “specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.” 18 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 19 of 34 Fed. R. Civ. P. 33(d)(1). Although the Clinic represents that it has provided millions of pages of documents in response to Relator’s discovery requests, it is not clear from the present record that the Clinic specified the records (or Bates ranges) that must be reviewed to find the information requested in the interrogatories. Rather, it appears that the Clinic identified six categories of documents that are generally relevant to all of Relator’s claims (patient health records in the SRS software program; accounting and financial records in the Peachtree Sage software program; payroll and bonus information in the Paylocity software program; billing information in the CareTracker software program; billing and patient information for ambulatory surgery center patients in the Amkai software program; and hard copy documents regarding accounting, patient records, payroll, bonuses, and billing). Rule 33(d) requires that the responding party specify the records that must be reviewed; it does not permit a document dump that leaves Relator to guess where she may find the information requested in her interrogatories. Therefore, if the Clinic of has not already provided some type index to its document production that complies with Rule 33(d) and identifies which documents are responsive to Interrogatory No. 11, it shall do so by December 31, 2020. 19 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 20 of 34 Relator argues that the Clinic did not adequately respond to her orthotics document request, Request for Production No. 6, because it did not produce “any claims” or related to patients who received orthotics. represents that it has produced claims patient records Although the Clinic data for every claim submitted by the Clinic to a federal healthcare payor from May 2012 through December 31, 2019, as well as claims data for every claim submitted to any third-party payor during the same time period, Relator contends that orthotics claims data was filtered from that production and had not been produced by mid-July 2020. If the claims data for patients who received orthotics still has not been produced, the Clinic shall produce it by December 4, 2020. And, as discussed Relator’s counsel regarding all to claims above, ensure the that Clinic Relator certifications by shall work receives December with evidence 31, 2020. Again, if the Clinic still has not produced claims data for claims made between 2005 and 2012, then the lawyers shall confer in good faith to ensure that exists plus information on Relator receives any data that what data has been destroyed by December 31, 2020. Relator also seeks patient medical records contends are relevant to her orthotics claims. that she The Clinic seems to take the position that medical records are not relevant to the orthotics claims. One of 20 Relator’s allegations is that Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 21 of 34 doctors altered diagnoses to ensure that patients qualified for Medicare-paid orthotics. Another allegation is that the Clinic billed the Government for orthotics under a doctor’s name even though the doctor did not provide services. records may be relevant to these allegations regarding orthotics. Patient medical allegations and the other As discussed above, Relator shall identify the parties whose medical records she seeks. If Relator cannot tell from the claims data that has already been produced which patients’ medical records are relevant to her claims, then counsel for the parties shall confer in good faith to find a mutually agreeable way of resolving this issue. In addition to the claims data and medical records, Relator argues that the Clinic did not adequately search for and produce non-claims documents that she believes exist and are relevant to her orthotics claims. The Clinic responds that it has produced every document that is responsive to this document request. It is impossible for the Court to tell from the present record who is closer to the truth on this point, but given the other issues with the Clinic’s document production, the Court orders the Clinic to make one last effort to ensure that it did not omit from its earlier production any non-claims documents that are relevant to the orthotics claims. In summary, this motion to compel (ECF No. 129) is granted in part and denied in part to the extent set forth above. 21 The Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 22 of 34 Clinic shall supplement its responses to Interrogatory Nos. 11 and 18 and Request for Production of Documents No. 6 by December 31, 2020. VII. The Clinic’s Motion to Documents (ECF No. 148) Compel Production of Third-Party Relator has served subpoenas on third parties and received documents from them. The Clinic served a request for production of documents on Relator seeking a copy of all communications or other documents between Relator and any non-party which concerns or references the subject matter of the Complaint. represents that Relator has not produced The Clinic all the third-party documents she received in response to the subpoenas. Relator objects product to privilege. the She communications party Clinic’s contends between witnesses, request, that the Relator’s rather than asserting request counsel being and the work includes informal potential restricted to obtained pursuant to subpoenas or other requests.6 third- documents While the request for production is broad, the motion to compel focuses on the documents that Relator received in response to Relator’s Relator spends several pages of her brief arguing that the Clinic has engaged in ad hominem attacks against Relator’s counsel by drudging up ancient history from unrelated cases and citing it in a footnote. It is irrelevant what Relator’s counsel allegedly did in an unrelated case twenty years ago, and the Court did not review the cases cited in the Clinic’s footnote. The lawyers should stick to the facts and issues in this case. 6 22 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 23 of 34 requests.7 required Relator did not clearly explain why she should not be to produce documents that she received from third parties if they are responsive to the Clinic’s document requests and are not privileged. The Court finds that any unprivileged documents Relator received from third parties should be produced to the Clinic if they are responsive to the Clinic’s document requests and if the Clinic has not already documents directly from the third party. received the the Clinic’s Thus, motion to compel production of these documents (ECF No. 148) is GRANTED. Relator shall supplement her production of documents by December 31, 2020. VIII. Relator’s (ECF No. 153) Motion to Compel Interrogatory Responses Relator argues that the Clinic did not adequately respond to Interrogatories 3, 4, 5, 6, 8, 9, 10, and 12. interrogatories asks communications, and the Clinic persons with to identify knowledge Each of these all that documents, supports or refutes the allegations detailed on certain pages of the first amended complaint. Interrogatory No. 3 seeks information related to Relator’s Stark Law allegations on pages 63-75 of the first amended complaint (¶¶ 177-198, alleging schemes related to (1) ancillaries, (2) durable medical equipment, (3) orthotics, (4) ultrasound, and (5) arthrogram injections and In its motion to compel, the Clinic does not appear to argue that it is entitled to attorney work product, such as informal interviews between Relator’s counsel and third parties. 7 23 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 24 of 34 fluoroscopies). Interrogatory No. 4 seeks information related to Relator’s kickback allegations on pages 47-57 of the first amended complaint (¶¶ 123-149, alleging schemes relating to (1) consulting trips/meals/gifts, (2) implant kickbacks, (3) Exos braces, (4) Stryker equipment kickbacks, and (5) kickbacks to spouses). kickback Interrogatory No. 5 seeks information on Relator’s allegations on pages 22-46 of the first amended complaint (¶¶ 68-122, alleging various problems with Ambulatory Service Center referrals, buy-in, and billing). No. 6 seeks allegations on (¶¶ 150-166, information related to pages of first alleging 58-63 kickbacks the in practices, leases, and compensation). the Interrogatory Relator’s kickback amended complaint purchase of medical Interrogatory No. 8 seeks information on Relator’s claims regarding improper use of code modifiers on pages 79-83 of the first amended complaint (¶¶ 209218, alleging justification). improper addition Interrogatory No. of 9 modifiers seeks without information on Relator’s claims related to durable medical equipment on pages 83-86 of the first amended complaint (¶¶ 219-226, alleging improprieties with the billing for durable medical equipment). Interrogatory No. 10 seeks information on Relator’s allegations regarding physical therapy on pages 86-88 of the first amended complaint (¶¶ 227-233, alleging improprieties with certification and billing for physical therapy). 24 Interrogatory No. 12 seeks Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 25 of 34 information on Relator’s claim that she was retaliated against for trying to stop the Clinic from making false claims to the Government on pages 91-93 of the first amended complaint (¶¶ 243-250, alleging retaliation). In request response the to the portion identification allegations, the of Clinic of the persons referred interrogatories with to knowledge its that of the response to Interrogatory No. 1, which is a list of people with knowledge of all the claims. As discussed above, the Clinic supplemented that list to clarify which employees may have knowledge of the orthotics allegations, but it does not appear to have done that for all of the topics referenced in Interrogatory Nos. 3, 4, 5, 6, 8, 9, 10, and 12. Clinic’s list, contained The Court in the is not convinced that the second supplemental amended responses to Relator’s first interrogatories, is sufficient to answer the requests in Interrogatory Nos. 3, 4, 5, 6, 8, 9, 10, and 12 for a list of persons with knowledge of the allegations referenced in each interrogatory. Therefore, the Clinic shall supplement its responses to Interrogatory Nos. 3, 4, 5, 6, 8, 9, 10, and 12 by December 31, 2020. In response to Relator’s request for the Clinic to identify documents and communications relevant to the claims addressed in Interrogatory Nos. 3, 4, 5, 6, 8, 9, 10, and 12, the Clinic relies on Federal Rule of Civil Procedure 33(d). 25 Again, that Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 26 of 34 rule permits a responding party to answer by producing business records, “specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.” Fed. r. Civ. P. 33(d)(1). As discussed above, the Clinic did identify six categories of documents that are generally relevant to all of Relator’s claims, but it is not clear from the present record that the Clinic specified the records (or Bates ranges) that must be reviewed to find the information requested in each of the interrogatories. Rule 33(d) requires that the responding party specify the records that must be reviewed; it does not permit a document dump that leaves Relator to guess where she may find the information requested in her interrogatories. Therefore, if the Clinic has not already provided some type of index to its document production that complies with Rule 33(d), it shall do so by December 31, 2020. In summary, this motion to compel (ECF No. 153) is GRANTED to the extent set forth above. The Clinic shall supplement its responses to Interrogatory Nos. 3, 4, 5, 6, 8, 9, 10, and 12 by December 31, 2020. IX. Relator’s Motion for Protective Order (ECF No. 160) Relator represents that the Clinic had not produced any claims data or associated documents for the time period of 2005 to mid-2012. Therefore, Relator 26 is seeking the claims Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 27 of 34 information directly from the Centers for Medicare and Medicaid Services (“CMS”). She asked for all claims data from the CMS outpatient, carrier, and DME databases concerning the Clinic, its ambulatory surgery center, and its physicians for the years 2006 through 2012. payment of CMS requires entry of a protective order, costs certification associated from Defendants with that the data they will additional information from the same data pull. pull, not and request The Clinic has declined to agree to the protective order until it can confirm with a CMS employee that the protective order presented by Relator is really required, the scope of the certification that it must make to CMS, and what information Relator requested from CMS. Instead, the Clinic wants to talk directly with the CMS employee who is handling the production. It is astonishing to the Court that the lawyers could not work out this simple issue. a CMS employee that lists If Relator has correspondence from the requirements for the document production and confirms the scope of the data requested, counsel for Relator shall produce that correspondence to the Clinic. If no such correspondence exists or if Relator declines to produce it and if the Clinic truly deems it necessary to have a CMS employee take the time to verify that the protective order and certification schedule a are required, conference call then or 27 counsel for videoconference Relator with shall the CMS Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 28 of 34 employee so that Relator’s lawyer, one of the Clinic’s lawyers, and the CMS employee can briefly discuss the requirements. The lawyers should agree on an agenda in advance (and provide it to the CMS employee in advance) so that the call does not take more than thirty minutes. resolved and that The Court expects that this issue will be the parties will protective order by December 11, 2020. submit a joint proposed The present motion for protective order (ECF No. 160) is terminated. X. Relator’s Motion to Stay Deadlines (ECF No. 161) Fact discovery in this action is supposed to be complete by December 3, 2020. Expert discovery is to begin on December 7, 2020 and end on April 9, 2021. It is obvious that the parties need more time to complete discovery. to stay all the deadlines. Relator wants the Court In the alternative, she seeks a four-month extension of all deadlines. Defendants concede that at least a two-month extension is warranted. that a four-month circumstances. extension is The Court finds appropriate under But this is the last extension. should plan accordingly. the The lawyers The deadlines are: Fact discovery cut-off: Friday, April 2, 2021. Expert discovery period to begin: Monday, April 5, 2021. Deadline to disclose affirmative experts expert reports: Friday, May 7, 2021. and exchange Deadline to depose affirmative experts: Tuesday, June 8, 2021. 28 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 29 of 34 Deadline to disclose rebuttal experts: Friday, July 9, 2021. Expert discovery period cut-off/deadline to complete rebuttal expert depositions: Monday, August 9, 2021. Deadline to file summary judgment motions: Friday, September 10, 2021. The briefing shall follow the deadlines set forth in the Court’s local rules, and the Clerk shall not be authorized to grant extensions. If no summary judgment motion is filed by the deadline, motions to exclude expert testimony are due by: Friday, October 1, 2021. If a summary judgment motion is filed, then any motions to exclude expert testimony are due within twenty-one days after the Court’s ruling on the last pending summary judgment motion or by the motion in limine deadline set in the notice of pretrial conference, whichever is sooner. The Court will enter a separate amended scheduling order to ensure that the dates are clear on the docket. XI. Defendants’ Motion to Compel Interrogatory Responses (ECF No. 162) Relator claims that Defendants violated the federal Anti- Kickback statute and Stark Law. She alleges general facts regarding what she tallies as eighty-four fraudulent schemes. Defendants served Relator with interrogatories regarding her Anti-Kickback Statute claims, asking Relator to identify each third party from which a specific Defendant solicited or received remuneration in violation of the Anti-Kickback Statute and each third party to which a specific Defendant offered or paid remuneration in violation 29 of the Anti-Kickback Statute. Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 30 of 34 Defendants also served Relator with interrogatories regarding her Stark Law claims, asking for information on which specific third parties each Defendant made referrals to in a way that violates the Stark Law. The dispute here concerns timing. Relator acknowledges that she must respond to these interrogatories to explain the factual basis for her claims. she cannot fully respond to Relator, however, contends that these interrogatories until she receives more complete discovery responses from Defendants. But Relator can provide the factual basis for her claims with the information she has now, then supplement her responses after she receives additional discovery responses. Accordingly, Defendants’ motion to compel (ECF No. 162) is GRANTED to the following extent: by December 31, 2020, Relator shall supplement her interrogatory responses to provide information she has as of that date. all the responsive She shall supplement her responses by the end of fact discovery. XII. Relator’s Motion for ESI Protocol (ECF No. 165) Discovery in this action commenced in March 2019. When the parties submitted their joint proposed scheduling order, they had not worked out a process for production of electronically stored information (“ESI”) and stated that they would raise the issue with the Court if the parties, in good faith, could not work out the process themselves. 30 The parties proceeded with Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 31 of 34 electronic discovery, exchanging search terms, running searches, and working to refine the process. Then, nineteen months after discovery began, Relator filed her motion for an ESI protocol. She contends that ESI is missing from the production because Defendants refused to agree to her proposed ESI protocol, which she says is identifies proceeded transparent, three thus communicated main far: with problems (1) her iterative, about with Defendants the ESI and verifiable. how the have parties not collection She have adequately process, (2) Defendants resisted her requests for an iterative approach to search terms, and (3) Defendants will not agree to her proposed verification process. Defendants respond that they tried to work with Relator to have a cooperative and iterative discovery, but Relator has not cooperated. they have already Defendants further contend that substantially complied with many of the requirements in Relator’s proposed protocol. The Court cannot tell from the present record where the parties disagree. If Defendants substantially complied with many of Relator’s proposed requirements, then they must agree that these particular requirements are not unreasonable. would be absurd (or unacceptably obstinate) to Defendants must redo its entire ESI production. should be able to work this out. And it suggest that The lawyers If Relator continues to insist on an ESI protocol, then the lawyers shall confer on the matter 31 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 32 of 34 and submit a joint proposed order regarding ESI protocols by December 18, 2020. The proposed order shall state what protocols apply going forward, as well as any action that the parties deem necessary to supplement past ESI productions. 8 The present motion (ECF No. 165) is terminated. CONCLUSION As discussed above the Court denies Relator’s motion for sanctions (ECF No. 118); denies the Clinic’s motion for protective order regarding the subpoena to Doctors Management (ECF No. 122); grants in part and denies in part Relator’s motion to compel productions of claims, payments, and medical records (ECF No. 123); denies the Clinic’s motion for protective order regarding the subpoena 127); grants viscosupplement Relator’s discovery to Wicklow motion (ECF No. to 128); Enterprises (ECF No. compel grants regarding in part and denies in part Relator’s motion to compel regarding orthotics (ECF No. 129); grants the Clinic’s motion to compel production of third-party documents (ECF No. 148); grants Relator’s motion to compel interrogatory responses to Interrogatory Nos. 3, 4, 5, 6, 8, 9, 10, and 12 (ECF No. 153); terminates Relator’s motion for protective order (ECF No. 160); grants Relator’s motion to amend the deadlines (ECF No. 161); grants Defendants’ motion to If the parties cannot agree on particular portions of an ESI protocol, the proposed order shall contain proposed language from each side, as well as a brief statement of reason for the parties’ differences. 8 32 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 33 of 34 compel interrogatory responses (ECF No. 162); and terminates Relator’s motion for ESI Protocol (ECF No. 165). The Court declines to award sanctions to anyone. The Court understands that the parties are presently briefing a new motion to compel regarding spoliation discovery (ECF No. 183). Relator contends that the Clinic has not adequately responded to discovery requests regarding documents and devices that have allegedly been destroyed. Instead of spending more time antagonizing each other with court filings, the Court orders the parties to make one more good faith to resolve this issue by December 31, 2020. (ECF No. 183) is terminated. effort The present motion If the issues raised by Relator’s motion are not resolved by December 31, 2020, Relator may renew her motion to compel.9 Despite Defendants’ pessimistic prediction that their most recent motion to compel is likely not the last, the Court is hopeful that the parties will be able to work out all remaining discovery disputes without the Court’s intervention. All counsel are well educated and presumably upstanding citizens. Although the Court expects the parties to confer in good faith and reach a solution, the Court notes that if Relator does find it necessary to renew her motion to compel, the renewed motion should focus on the specific categories of documents she believes exist but have not been produced, the specific interrogatory responses that she deems inadequate, and a succinct explanation of why the interrogatory responses are inadequate under the applicable rules. Any response should be similarly focused. Neither side should waste time, energy, or brief pages cataloguing every bad thing opposing counsel has ever done. 9 33 Case 3:15-cv-00122-CDL Document 190 Filed 11/23/20 Page 34 of 34 They are also seasoned and (to this Court’s knowledge) respected members of the bar. Therefore, they should appreciate that practicing law is a noble profession, a privilege that demands collegiality. This appreciation requires the removal of the armor for battle to facilitate a recognition of the line between zealous representation and counterproductive contentiousness. That line has become blurred in this litigation, and counsel should use this opportunity to refocus and re-establish it. If counsel cannot do that themselves, the Court will not hesitate in response to future unnecessary motions to do it for them, sparing no available and appropriate sanction. IT IS SO ORDERED, this 23rd day of November, 2020. S/Clay D. Land CLAY D. LAND U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF GEORGIA 34

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