Wilson et al v. MRO Corporation et al, No. 2:2016cv05279 - Document 136 (S.D.W. Va. 2017)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part CIOX Health, LLC's 103 MOTION to Compel Complete Discovery Responses from Plaintiffs, and as directed and set forth more fully herein; denying the motion for reasonable expenses pursuant to Fed. R. Civ. P. 37(a). Signed by Magistrate Judge Cheryl A. Eifert on 2/14/2017. (cc: counsel of record) (taq)
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Wilson et al v. MRO Corporation et al Doc. 136 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 Defendant CIOX Health, LLC’s Motion to Com pel Com plete Discovery Responses from Plaintiffs. (ECF No. 10 3). Plaintiff filed a response in opposition to the m otion, (ECF No. 114), and CIOX Health, LLC (“CIOX”) filed a reply m em orandum . (ECF No. 123). Having considered the argum ents of the parties, the court GRAN TS, in part, and D EN IES, in part, the m otion to com pel. In addition, the court D EN IES CIOX’s m otion for reasonable expenses pursuant to Fed. R. Civ. P. 37(a). 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 federal law, West Virginia’s consum er protection laws, and its laws governing the production of health care inform ation. The defendants are com panies that contract with 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 1 Dockets.Justia.com 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 plaintiffs, Daniel Halsey, the adm inistrator of the Estate of Tam ara Halsey. CIOX argues that Plaintiff Halsey failed to provide com plete answers to Interrogatory Nos. 2, 10 , 15, 16, and 26-32; Request for the Production of Docum ents No. 2; and Request for Adm ission Nos. 17 and 22. The court will address each category of discovery in turn. II. D is cu s s io n A. In te rro gato rie s In Interrogatory No. 2, CIOX seeks inform ation regarding the relationship between Plaintiff Halsey and the law firm of Tiano O’Dell, PLLC (“Law Firm ”). Plaintiff has provided substantial inform ation; however, CIOX argues that Plaintiff has failed to clarify the nature of his relationship with the Law Firm at the tim e the Law Firm requested the m edical records of Tam ara Halsey on behalf of Plaintiff. In addition, Plaintiff has failed to specify the inception date of the relationship between Plaintiff and the Law Firm . According to CIOX, this inform ation is relevant to one of its principal defenses; that being, that Plaintiff does not have standing to sue. In view of his detailed answer, Plaintiff argues that all relevant inform ation has been provided. 2 CIOX points out that Plaintiff relies, in part, on West Virginia Code § 16-29-1, et seq. Key changes were m ade to the language of the statute in J une 20 14. Accordingly, the date Plaintiff’s relationship with the Law Firm began and the scope of the relationship at the tim e the request was m ade for Ms. Halsey’s records are significant to establishing which version of the statute applies to Plaintiff’s claim . CIOX also notes that Plaintiff Halsey retained the Law Firm for m ore than one m atter. CIOX claim s that it is entitled to know about the other m atters “as they m ay have also involved Tam ara Halsey’s Bluefield Regional Medical Center m edical records, or the procurem ent of m edical records from another West Virginia health inform ation m anagem ent provider.” (ECF No. 10 3 at 4). Fed. R. Civ. P. 26 allows parties to obtain discovery of “any nonprivileged m atter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the im portance of the issues at stake in the action, the am ount in controversy, the parties’ relative access to relevant inform ation, the parties’ resources, the im portance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Inform ation within the scope of discovery need not be adm issible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Considering the im portance of the statute to Plaintiff’s claim , the change in the statutory language during the putative class period, and parties’ relative access to the inform ation requested, the court grants CIOX’s m otion to com pel a m ore complete response to this interrogatory. Within fo u rte e n ( 14 ) d ays of the date of this Order, Plaintiff Halsey is ORD ERED to provide CIOX with the following inform ation for the tim e period beginning on J anuary 1, 20 11: (1) the date that his relationship with the Law Firm began relative to the wrongful death case involving Tam ara Hensley; (2) the nature of the relationship between Plaintiff and the Law Firm at the tim e the request for Ms. Halsey’s 3 records was m ade to CIOX or its predecessor; and (3) the dates on which Plaintiff worked with the Law Firm on any other m atter that resulted in a request for Ms. Halsey’s m edical records. With respect to Interrogatory No. 10 , CIOX asserts that Plaintiff has not provided specific inform ation on how he intends to calculate his dam ages. Plaintiff believes that he has fully responded to the question. Although the intent of Plaintiff’s answer is clear, given the change in the language of West Virginia Code § 16-29-1, et seq., Plaintiff’s answer m ay be incom plete. Consequently, CIOX’s m otion is granted. For any request of records m ade and received between J anuary 1, 20 11 and J une 4, 20 14, Plaintiff shall provide CIOX with an explanation as to how Plaintiff intends to calculate dam ages. For the period beginning on J une 5, 20 14 and thereafter, Plaintiff shall supplem ent his answer to explain how interest, costs, and fees, if any, will be calculated. Plaintiff shall provide this inform ation to CIOX within fo u rte e n ( 14 ) d ays of the date of this Order. Next, CIOX claim s that Plaintiff’s responses to Interrogatory Nos. 15 and 16 are incom plete, because they do not define the term s “authorized agent” and “authorized representative,” which were used by Plaintiff in specifying proper classes and sub-classes to be certified in this case. Plaintiff responds that he is m erely using term s taken verbatim from the West Virginia statute. Nonetheless, the statute does not define the term s. Accordingly, CIOX is entitled to know the definitions intended by Plaintiff, so that a proposed class or subclass can be challenged at the tim e of certification. Therefore, CIOX’s m otion to compel com plete responses to Interrogatory Nos. 15 and 16 is granted. Within fo u rte e n ( 14 ) d ays of the date of this Order, Plaintiff shall supplem ent his response by providing definitions to those term s. 4 In regard to Interrogatory Nos. 26-32, the parties agreed to lim it the num ber of interrogatories to 25 per party. Based upon the agreem ent of the parties, the court entered an order adopting the lim itation. CIOX has no authority to unilaterally change the scheduling order; instead, CIOX m ust m ake a m otion seeking a m odification of the order and m ust show good cause for any proposed change. See Fed R. Civ. P. 16(b)(4). No m otion seeking leave to file in excess of 25 interrogatories has been granted. Accordingly, CIOX’s m otion to com pel Interrogatory Nos. 26-32 is denied. B. Re qu e s t fo r th e Pro d u ctio n o f D o cu m e n ts CIOX com plains that when Plaintiff was asked to produce a copy of his retention agreem ent with the Law Firm , he supplied “a heavily redacted purported fee agreem ent …that does not set forth a date or the term s and scope of the relationship between the law firm and Plaintiffs [sic].” (ECF No. 10 3 at 14). Plaintiff argues that he has produced all of the relevant sections of the fee agreem ent, and no other sections are pertinent to the issues in dispute.1 He adds that CIOX has “set forth no reasons it needs access to any other portion of the Fee Agreem ent or protected written com m unication between Plaintiff and his counsel.” (ECF No. 114 at 7-8). In fact, CIOX has stated reasons justifying the production of the entire fee agreem ent. Furtherm ore, as a general rule, “the burden is on the party resisting discovery to clarify and explain precisely why its objections are proper given the broad and liberal construction of the federal discovery rules. This includes, of 1 Initially, Plaintiff asserted that the attorney-client privilege protected the fee/ retention agreem ent from disclosure. However, as CIOX notes, fee and retention agreements typically are not considered privileged com m unications. See Bow m an v. Green Tree Servicing, Inc., No. 3:12-CV-31, 20 12 WL 4849616, at * 3 (N.D. W. Va. Oct. 11, 20 12) (“The authority is unanimous for the proposition that ‘in absence of unusual circum stances, the fact of a retainer, the identity of the client, the conditions of employm ent and the am ount of the fee do not come within the privilege of the attorney-client relationship.’”) (citations om itted). The Suprem e Court of Appeals of West Virginia adopted this position in State ex rel. Montpelier U.S. Ins. Co. v. Bloom , 757 S.E.2d 788, 80 0 – 0 1 (W. Va. 20 14), adding that such agreements are not shielded from discovery as attorney work product either. Id. 5 course, where the resisting party asserts that the discovery is irrelevant.” United Oil Co., Inc. v. Parts Assocs., Inc., 227 F.R.D. 40 4, 411 (D. Md. 20 0 5). Plaintiff has not alleged that the fee agreement contains disclosures of confidential inform ation or m ental im pressions, conclusions, or opinions in the nature of work product that would m erit redactions. Consequently, the fee agreem ent is sim ply one of m any “routine office records that fall outside the definition of trial preparation records [or confidential com m unications], and, consequently, are not covered by attorney-client privilege or work product.” State ex rel. Montpelier U.S. Ins. Co., 757 S.E.2d at 80 0 (quoting Martin v . Martin, No. 20 11– T– 0 0 34, 20 12 WL 5195816, at *9 (Ohio App. 20 12)). Because Plaintiff has not dem onstrated a clear and defined reason for withholding the fee agreem ent, the court grants CIOX’s m otion to com pel the entire agreem ent. Plaintiff shall produce an unredacted copy of the agreem ent within fo u rte e n ( 14 ) d ays of the date of this Order. C. Re qu e s ts fo r Ad m is s io n CIOX argues that Plaintiff’s responses to Request for Adm ission Nos. 17 and 22 are “disingenuously deflective,” because Plaintiff refused to adm it that he paid CIOX for m edical records that CIOX provided to Plaintiff’s counsel. However, Plaintiff explained in his answers that he could not adm it nor deny the requests, because the records were supplied by HealthPort, and the paym ent was m ade to HealthPort, a predecessor entity. CIOX contends that, despite Plaintiff’s protestations to the contrary, he was fully aware of the relationship between CIOX and HealthPort, and could have freely adm itted the requests. Instead, he refused to do so; in essence, to be difficult. While it is true that gam esm anship has no place in m odern federal discovery, the undersigned finds that Plaintiff had a legitim ate reason for equivocating in his answers. Once a party adm its a request for adm ission, that m atter is conclusively established unless 6 the court allows an am endm ent or withdrawal. Fed. R. Civ. P. 36(b). Here, the disputed requests for adm ission were not, on their face, accurate. Rather than blithely conceding facts that technically were not correct, Plaintiff neither adm itted, nor denied the requests and explained the reason for his hesitancy. CIOX quibbles with that choice, but in the alternative, Plaintiff could have denied the requests for adm ission outright and not provided an explanation at all; a tact that certainly would have been perceived as disingenuous. In any event, the requests for adm ission, as written, are factually flawed. Plaintiff did not rem it paym ent to CIOX, and CIOX did not send the records to Plaintiff. Instead, Plaintiff dealt with HealthPort, CIOX’s predecessor entity. Whether such a distinction will m ake any difference in the end is unknown. Nevertheless, Plaintiff should not be com pelled to adm it requests for adm ission that are not correct on their face, nor conduct exhaustive research on the legal relationship between CIOX and HealthPort in order to respond to the requests; particularly when, if they had been written in a m anner that correctly conveyed the facts, they would have been sim ple to answer. Such an obligation would be disproportional to the needs of the case. Therefore, CIOX’s m otion to com pel responses to Request for Adm ission Nos. 17 and 22 is denied. CIOX certainly is entitled to rephrase the requests, or seek a stipulation from Plaintiff regarding the undisputed facts. D . Mo tio n fo r Re as o n able Exp e n s e s Fed. R. Civ. P. 37(a)(5) requires the court to award reasonable expenses when a m otion to com pel is granted or discovery is provided after the filing of a m otion to com pel. Fed. R. Civ. P. 37(a)(5). However, reasonable expenses m ust not be ordered if (1) the m ovant filed the m otion to com pel prior to attem pting in good faith to obtain the 7 responses to discovery; (2) the opposing party’s responses were substantially justified; or (3) other circum stances m ake an award of expenses unjust. Id. Here, an award of reasonable expenses would be inappropriate for several reasons. First, based upon the inform ation provided in CIOX’s m otion to com pel, CIOX did not com ply with the local rules of this district in its attem pts to obtain good faith responses to the discovery. Local R. Civ. P. 37.1(b) provides: Before filing any discovery m otion, including any m otion for sanctions or for a protective order, counsel for each party shall m ake a good faith effort to confer in person or by telephone to narrow the areas of disagreem ent to the greatest possible extent. It shall be the responsibility of counsel for the m oving party to arrange for the m eeting. According to this rule, correspondence and em ail com m unications are not the equivalent of a m eet-and-confer. While a failure to m eet and confer will not prevent a party from succeeding on a m otion to com pel, the failure m ay prevent an award of reasonable expenses. See HSBC Bank USA, Nat. Ass'n v. Resh, No. 3:12-CV-0 0 668, 20 14 WL 317820 , at *7 (S.D. W. Va. J an. 28, 20 14) (citing Frontier– Kem per Constructors, Inc. v. Elk Run Coal Co., Inc., 246 F.R.D. 522, 526 (S.D. W. Va.20 0 7)). Moreover, the fact that the parties have filed four discovery m otions in less than one m onth’s tim e suggests that there is a failure on both sides to engage in substantive m eet-and-confer sessions. Consequently, the circum stances in the present case do not m erit m aking an exception to the local rule. Second, CIOX was not entirely successful in its m otion to com pel. Fed. R. Civ. P. 37(a)(5)(C) allows the court to apportion reasonable expenses when a m otion is granted, in part, and denied, in part. In this case, answers to four interrogatories and one docum ent request were com pelled, and answers to seven interrogatories and two requests for adm ission were not com pelled. The undersigned finds the result to be a draw; thus, an award of reasonable expenses is not m erited. 8 Finally, an award of expenses would be unjust given that Plaintiffs recently succeeded, in part, on a m otion to com pel, and expenses were not awarded. In that situation, as in this one, the m oving party did not fulfill its duty to m eet and confer and did not fully succeed on its m otion. In sum m ary, neither party is com plying with the requirem ents of the local rule. Their failures to m eet and confer are taxing the court and burdening the discovery process. As such, until the m oving party works harder to resolve its discovery disputes—before filing a m otion—expenses will not be justified. The Clerk is directed to provide a copy of this Order to counsel of record. EN TERED : February 14, 20 17 9
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