Wilson et al v. MRO Corporation et al, No. 2:2016cv05279 - Document 127 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part plaintiffs' 95 MOTION to Compel Discovery against Defendant CIOX Health, LLC.; granting CIOX Health, LLC's 126 MOTION for Leave to File a Sur-reply in Opposition to Plaintiffs' Motion to Compel Discovery; denying as moot plaintiffs' motion to compel answers to First Request Nos. 1 and 2; denying said motion to compel information created prior to 1/1/2011; granting the motion to compel a more com plete response to Interrogatory No. 11; CIOX to provide a response relevant to each West Virginia health care provider it serviced for the period of 1/1/2011 through the date on which the interrogatory was served; CIOX to supplement its response to First Request No. 7 and produce its contracts with the remaining West Virginia health care providers serviced by CIOX; supplemental responses to Interrogatory No. 11 and First Request No. 7 to be served within 14 days of the date of this Order; Fi rst Request Nos. 5, 6, 10, and 11 held in abeyance; pursuant to whether compelling production of the individual invoices is justified; the parties to meet and confer within two weeks of this Order and determine whether they can compromise this dis pute; if no resolution is possible, the parties to file focused briefs on this point by 3/3/2017; denying plaintiffs' motion to compel in regard to Second Request Nos. 1 and 2; and as further directed and set forth more fully herein. Signed by Magistrate Judge Cheryl A. Eifert on 2/10/2017. (cc: counsel of record) (taq)
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Wilson et al v. MRO Corporation et al Doc. 127 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA CH ARLESTON D IVISION TH OMAS M. W ILSON , e t al., Plain tiffs , v. Cas e N o .: 2 :16 -cv-0 52 79 MRO CORPORATION , e t al., D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER Pending is Plaintiffs’ Motion to Com pel Discovery Against Defendant CIOX Health, LLC. (ECF No. 95). CIOX Health, LLC (“CIOX”) filed a response in opposition to the m otion to com pel, (ECF No. 10 9), and Plaintiffs’ filed a reply m em orandum . (ECF No. 120 ). CIOX filed a Motion for Leave to File a Sur-reply in Opposition to Plaintiffs’ Motion to Com pel Discovery, (ECF No. 126), which is GRAN TED . Although the undersigned has taken into account the argum ents contained in the sur-reply, it is worth rem inding the parties that sur-replies are not favored in this district and should not be regularly filed. Having fully considered the argum ents of the parties, the court GRAN TS, in part, and D EN IES, in part, the Motion to Com pel. I. Re le van t Facts This putative class action alleges that the defendants system atically overcharged patients for copies of their m edical records from health care providers located in West Virginia, in violation of the State’s consum er protection laws and its laws governing the production of health care information. The defendants are com panies that contract with 1 Dockets.Justia.com West Virginia health care providers to process and fulfill requests for m edical records m ade by patients and their representatives. According to the com plaint, West Virginia law lim its the am ount that a provider can charge a patient for a copy of his or her m edical records to a reasonable, cost-based fee. Plaintiffs allege that, contrary to law, the defendants have charged far in excess of a reasonable, cost-based fee in order to realize large profits at the expense of the patients. Plaintiffs are individuals that have requested m edical records from West Virginia-based health care providers and claim to have been overcharged by the defendants. They sue on their own behalf and on behalf of all others who have been overcharged by the defendants for copies of West Virginia m edical records. Currently at issue is the sufficiency of discovery answers provided by one of the defendants, CIOX. Plaintiffs argue that CIOX has failed to provide com plete answers to a num ber of interrogatories and requests for the production of docum ents. Plaintiffs contend that CIOX has asserted three overarching objections to the various discovery requests, and these objections are uniform ly im proper. In response, CIOX m aintains that its objections are valid and should be upheld. The court will address the objections in turn. II. D is cu s s io n As a prelim inary m atter, Plaintiffs m oved to com pel answers to their First Request for the Production of Docum ents (“First Request”) Nos. 1 and 2 on the basis that CIOX agreed to produce responsive docum ents after entry of a protective order, but failed to do so. As those docum ents have now been provided, Plaintiffs’ m otion to com pel answers to First Request Nos. 1 and 2 is D EN IED , as m oot. Arbitrary Cu t-o ff o f Jan u ary 1, 2 0 11 Plaintiffs com plain that CIOX arbitrarily im posed a tim e fram e that begins on J anuary 1, 20 11 for its responses to Interrogatory Nos. 4, 5, 6, 7, and 8 and First Request 2 Nos. 5, 6, 7, 10 , and 11. Plaintiffs argue that CIOX has been overcharging patients for a m uch longer period; therefore, it had no basis upon which to lim it the discovery requests to the selected tim e fram e. Plaintiffs propose a tim e fram e that begins on J anuary 1, 20 0 9. CIOX responds that the discovery requests were overly broad, as written, because they included no tim e param eters; therefore, CIOX was forced to select a relevant period. CIOX chose J anuary 1, 20 11 as the starting date based upon the applicable one to fouryear statute of lim itations. Plaintiffs contest the accuracy of a one to four-year lim itations period, arguing that when applying West Virginia’s statute of lim itations for contracts, the period at issue is m uch longer than the five years selected by CIOX. However, as CIOX points out in its sur-reply, Plaintiffs have not expressly alleged a breach of contract claim . Instead, they accuse the defendants of violating the West Virginia Consum er Credit and Protection Act (“WVCCPA”) and West Virginia Code § 1629-1, et seq. CIOX correctly notes that the WVCCPA has up to a four-year statute of lim itations. See Litten v. Quicken Loans, Inc., No. 1:13CV192, 20 13 WL 60 0 1256, at *8 (N.D.W. Va. Nov. 12, 20 13). West Virginia Code § 16-29-1, et seq., having no explicit lim itations period, is governed by the general statute of lim itations contained in West Virginia Code § 55-2-12. In view of the applicable lim itations period for Plaintiffs’ claim s, and considering that the scope of discovery m ust be proportional to the needs of the case, the undersigned agrees with CIOX. See Fed. R. Civ. P. 26(b), Consequently, Plaintiffs’ m otion to com pel inform ation created prior to J anuary 1, 20 11 is D EN IED . Re le van cy an d Bu rd e n s o m e n e s s Plaintiffs assert that CIOX refused to provide certain inform ation sought in Interrogatory No. 11 and First Request Nos. 5, 6, 7, 10 , and 11, as well as Second Request for the Production of Docum ents (“Second Request”) Nos. 1 and 2, claim ing irrelevancy 3 and burdensom eness; grounds which are not well-supported. First, with respect to Interrogatory No. 11, Plaintiffs contend that CIOX was asked to clarify the steps it takes to access records from the various health care providers with whom it contracts. In response, CIOX provided only a cursory review of various tasks, but did not provide details sufficient to convey the workings of the process. Interrogatory No. 11 asks: For each healthcare provider for which you processed m edical records requests, both paper and electronic, in West Virginia, please identify how you accessed patient m edical records at each healthcare provider by stating whether they were accessed through paper file, the healthcare provider’s com puter system , or by rem ote access. If the m ethod of access changed over tim e, identify [how] the records were accessed for all periods of tim e at each healthcare provider. (ECF No. 95-3 at 7). CIOX objected to the interrogatory on the basis that it was overly broad, because it requested inform ation about all West Virginia health care providers, not just Plaintiffs’ providers, an d it set no tim e fram es. (Id.). Without waiving the objections, CIOX referred Plaintiffs to its answer to Interrogatory No. 3, in which CIOX stated that it followed a 45-step procedure for processing a release of inform ation request and briefly reviewed the steps. The undersigned finds that CIOX’s objections to Interrogatory No. 11 are not entirely valid. The interrogatory explicitly asks for the route by which CIOX accessed m edical records at each health care provider serviced by CIOX. The answer to Interrogatory No. 3 does not provide that inform ation. Moreover, the putative class includes all patients requesting m edical records from West Virginia health care providers, who delegated the request to CIOX—not just the two hospitals from which the nam ed Plaintiffs sought records. “Plaintiffs [are] entitled to pre-certification discovery to establish the record the court needs to determ ine whether the requirem ents for a class 4 action suit have been m et.” Buchanan v. Consolidated Stores Corp., 217 F.R.D. 178, 185 (D. Md. 20 0 3) (citing Miller v. Baltim ore Gas & Elec. Co., 20 2 F.R.D. 195, 20 1-0 2 (D. Md. 20 0 1)). Clearly, the m anner in which CIOX responded to records requests m ade to various West Virginia facilities and providers is relevant in determ ining class certification. Accordingly, Plaintiffs’ m otion to com pel a m ore com plete response to Interrogatory No. 11 is GRAN TED . CIOX is ORD ERED to provide a response relevant to each West Virginia health care provider it serviced for the period of J anuary 1, 20 11 through the date on which the interrogatory was served. For the sam e reason, CIOX is ORD ERED to supplem ent its response to First Request No. 7 and produce its contracts with the rem aining West Virginia health care providers serviced by CIOX. The contracts are relevant and discoverable. CIOX has not dem onstrated any significant burden associated with producing the contracts. Given CIOX’s representation that it contracted with approxim ately 30 providers in West Virginia, collecting and producing the rem aining contracts should not be overly difficult. CIOX’s supplem ental responses to Interrogatory No. 11 and First Request No. 7 shall be served within fo u rte e n ( 14 ) d ays of the date of this Order. Concerning First Request Nos. 5, 6, 10 , and 11, Plaintiffs’ m otion to com pel is H ELD IN ABEYAN CE. Plaintiffs agree that CIOX has “generally provided the inform ation Plaintiff[s] seek,” but they want supporting docum entation to verify the responses provided by CIOX. CIOX contends that there is no readily available supporting docum entation; instead, to fully respond to the requests, CIOX would have to collect all 80 ,0 0 0 invoices issued to patients with copies of their West Virginia treatm ent records. Fed. R. Civ. P. 26(c) provides that the scope of discovery m ay be lim ited by proportionality considerations. One such consideration is whether the burden and 5 expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(c). CIOX has supplied Plaintiffs with sum m ary data containing the essential inform ation sought by Plaintiffs in First Request Nos. 5, 6, 10 , and 11. Plaintiffs have articulated no factual basis to m istrust the accuracy of the data produced by CIOX. Nonetheless, both parties agree that additional docum entation exists (the invoices), which would be responsive to the requests. CIOX argues, without evidentiary support, that collecting, copying, and producing the invoices would be a “m onum ental undertaking,” requiring at least 80 hours. Thus, the question before the court is whether com pelling production of the individual invoices is justified given the data sum m ary already supplied to Plaintiffs. Unfortunately, the record is inadequate to answer the question. Consequently, the parties are ORD ERED to m eet and confer within two weeks of this Order and determ ine whether they can com prom ise this dispute. The parties should bear in m ind the param eters of discovery set forth in this Order. If they reach an agreem ent, the parties shall notify the court. If no resolution is possible, the parties shall file focused briefs on this point on or before March 3 , 2 0 17. CIOX is advised that it m ust provide evidentiary support for its burdensom eness argum ent, or production of the invoices will likely be com pelled. See Convertino v. U.S. Dept. of Justice, 565 F.Supp.2d 10 , 15 (D.D.C. 20 0 8). Finally, in regard to Second Request Nos. 1 and 2, Plaintiffs’ m otion to com pel is D EN IED . Plaintiffs allege that CIOX included state sales tax on its invoices for m edical records. Second Request Nos. 1 and 2 reportedly are designed to determ ine if CIOX forwarded the sales tax it collected to the West Virginia Departm ent of Tax and Revenue. Plaintiffs indicate that if the taxes were not forwarded, their dam ages are greater. However, if the taxes were paid to the State, Plaintiffs would not seek those am ounts as part of the alleged dam ages. CIOX argues in response that it acts as an agent for the 6 Departm ent of Tax and Revenue when it collects sales tax, and Plaintiffs are precluded from asserting a private cause of action based on CIOX’s collection of taxes. As such, CIOX claim s that the issue of whether it forwarded the sales tax to the Departm ent of Tax and Revenue is irrelevant. Without addressing CIOX’s argum ent regarding the propriety of a tax-based claim by Plaintiffs, the undersigned finds the docum ent requests to seek inform ation disproportional to the needs of the case. First, whether or not it was proper for CIOX to assess sales tax on the production of patient m edical records is a m atter of law that cannot be answered with the tax docum entation. Second, docum ents reflecting the paym ent of sales tax to the Departm ent of Tax and Revenue would not serve the purpose claim ed by Plaintiffs. If the am ount of the invoices issued by CIOX were inflated, then the am ount of the sales tax on the invoices would likewise be inflated. Thus, production of the tax records does not eliminate Plaintiffs’ claim for refunds of the inflated am ounts. Finally, the inform ation sought by Plaintiffs can be obtained through other m ethods of discovery m uch m ore convenient and less burdensom e than production of CIOX’s tax inform ation. The Clerk is directed to provide a copy of this Order to counsel of record. EN TERED : February 10 , 20 17 7
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