Zipperer et al v. Premera Blue Cross Blue Shield of Alaska

Filing 80

ORDER granting in part and denying in part 64 Motion to Compel. Within 14 days of entry of this order, ZMG must serve answers to Premera's interrogatories 2 and 13-15 and requests for production 1 and 13-14. In all other respects, Premera's motion is denied. Signed by Judge John W. Sedwick on 5/14/17. (GMM, CHAMBERS STAFF)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF ALASKA

7
8
9

John D. Zipperer, Jr., M.D., et al.,
Plaintiffs,

10
11
12
13

vs.
Premera Blue Cross Blue Shield of
Alaska,

14

Defendant.

15

)
)
)
)
)
)
)
)
)
)
)

3:15-cv-00208 JWS
ORDER AND OPINION
[Re: Motion at Docket 64]

16
I. MOTION PRESENTED

17
18
19
20

At docket 64 defendant Premera Blue Cross Blue Shield of Alaska (“Premera”)
moves pursuant to Federal Rule of Civil Procedure 37 to compel discovery from
plaintiffs John D. Zipperer, Jr., M.D. and John D. Zipperer, Jr., M.D., LLC dba Zipperer

21
22
23
24
25
26
27
28

Medical Group (collectively, “ZMG”). ZMG opposes at docket 67. Premera replies at
docket 68.
Oral argument was not requested but would not assist the court.

1
2

II. BACKGROUND
ZMG responded to several of Premera’s interrogatories1 and requests for

3
4

production (“RFPs”)2 with relevancy objections, not answers. Also, according to

5

Premera, ZMG has refused to produce Dr. Zipperer for a deposition. 3 ZMG contends

6

that this is inaccurate; it asserts that it only objects to the deposition occurring before

7

there is a ruling on ZMG’s summary judgment motion.4 The court has since denied

8

ZMG’s summary judgment motion.

9
III. STANDARD OF REVIEW

10
11

Rule 26(b)(1) provides that

12

[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.

13
14
15
16
17

“Information within this scope of discovery need not be admissible in evidence to be

18

discoverable.”5

19
20
21

If a party fails to make disclosures or cooperate in discovery, the requesting
party may move to compel.6 “The party who resists discovery has the burden to show

22
1

23

Doc. 61-1 at 2–23 (Interrogatories 2, 5, 6, 11, 13, 14, and 15).

2

24
25

Id. (RFPs 1, 4, 5, 13, 14, and 16).

3

Doc. 65-4 at 2.

26

4

27

5

28

6

Doc. 67 at 5.
Fed. R. Civ. P. 26(b)(1).
Fed. R. Civ. P. 37(a)(1).

-2-

1
2

that discovery should not be allowed, and has the burden of clarifying, explaining, and
supporting its objections.”7 “Broad discretion is vested in the trial court to permit or

3
4

deny discovery[.]”8
IV. DISCUSSION

5
6
7

A.

Rule 37(d) Does Not Apply
If the discovering party deems another party’s discovery response to be

8
9

inadequate, the party must move to compel an adequate response under Rule 37(a).

10

“The sanctions that are available to a party that has prevailed on a motion to compel

11

are limited to expenses, including reasonable attorney’s fees, incurred in making the

12

motion, unless the moving party already has secured a court order directing the

13

discovery to be provided, and the party that was subject to that order has failed to

14
15
16
17
18

comply.”9
Rule 37(d) relates to a “Party’s Failure to Attend Its Own Deposition, Serve
Answers to Interrogatories, or Respond to a Request for Inspection.” As its title
indicates, the rule applies where a party takes no action whatsoever in response to

19
20

properly-served discovery requests, including interrogatories and RFPs, or fails to

21

appear for a properly-noticed deposition. 10 “In sharp contrast” to Rule 37(a), Rule 37(d)

22

provides the moving party with “immediate access to a wide range of sanctions,

23
24
25

7

DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002).

26

8

27

9

28

10

Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
7 James Wm. Moore, Moore’s Federal Practice § 37.03 (3d ed. 2017).
Fed. R. Civ. P. 37(d)(1)(A).

-3-

1
2

provided that [the] party has attempted in good faith to secure a response through
negotiations.”11

3
4

Premera’s motion repeatedly cites Rule 37(d)12 but, as ZMG points out, this rule

5

does not apply. With regard to Premera’s written discovery requests, Premera

6

incorrectly asserts that ZMG has refused to respond to the requests. The problem

7

Premera seeks to remedy here is not ZMG’s failure to respond. To the contrary,

8

Premera is unsatisfied with certain responses because they contain objections instead

9
10

of answers.13 The Civil Rules allow a party to respond to a discovery request with an

11

objection instead of an answer.14 This practice does not amount to a failure to respond

12

that triggers Rule 37(d) sanctions. 15

13

Rule 37(d) also does not apply with regard to Dr. Zipperer’s deposition for two

14
15

reasons. First, Premera did not serve ZMG with a proper deposition notice. Premera

16
17
18

11

19

12

20

13

21
22
23
24
25
26
27
28

7 James Wm. Moore, Moore’s Federal Practice § 37.03 (3d ed. 2017).
Doc. 64 at 4, 5, 7; doc. 68 at 3.

Premera appears to argue that ZMG’s relevancy objections trigger Rule 37(d)
sanctions because they are boilerplate. Doc. 64 at 5 n.2 (citing Pebble Ltd. P’ship v. Envtl.
Prot. Agency, No. 3:14-CV-0171-HRH, 2016 WL 4502373, at *3 n.31 (D. Alaska May 5, 2016)
(“[B]oiler-plate, generalized objections are inadequate and tantamount to not making any
objection at all.”) (citation omitted). ZMG’s relevancy objections are not boilerplate. But even if
they were, Pebble does not support Premera’s argument because that case involved Rule
37(a), not 37(d). Indeed, Rule 37(a)(4) states that “an evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose, answer, or respond” for purposes
of Rule 37(a) only.
14

See Fed. R. Civ. P. 33(b)(4); 34(b)(2)(C).

15

See Fed. R. Civ. P. 37(d)(1)(A)(ii); 8B Charles Alan Wright & Arthur R. Miller, Fed.
Prac. & Proc. Civ. § 2291 (3d ed. 1998) (“Only if a party wholly fails to respond to an entire set
of interrogatories are sanctions under [Rule 37(d)] appropriate.”).

-4-

1
2

states that it noticed Dr. Zipperer’s deposition on Decem ber 29, 2016. 16 Unfortunately,
Premera provides the court with only the cover letter that accompanied the notice and

3
4

not the notice itself.17 According to ZMG, the notice “provided the date of the deposition

5

as ‘January TBD.’”18 The court accepts this characterization because Premera does not

6

dispute it in reply. Because Premera’s deposition notice fails to state the time of the

7

deposition as required by Rule 30(b)(1), it is not a “proper notice” for purposes of

8

Rule 37(d)(1)(A)(i). Second, Dr. Zipperer did not “fail to attend” his own deposition.

9
10

“‘[F]ailure to appear’ for a deposition is strictly construed and Rule 37(d) sanctions apply

11

only when a deponent literally fails to show up for a deposition session.” 19 That did not

12

happen here.

13

The court will construe Premera’s motion under Rule 37(a), not 37(d).

14
15
16
17
18
19
20
21

B.

ZMG’s Relevancy Objections to Premera’s Written Discovery Requests
Premera’s motion does not list the specific relevancy objections that are at issue;

it merely cites ZMG’s discovery responses as a whole and states that ZMG “refused to
respond to most of the discovery requests based on the claim that Premera’s discovery
requests are not relevant to the motion for summary judgment.”20 Premera’s meet-andconfer letter, however, states that Premera is challenging ZMG’s relevancy objections to

22
23

16

24

17

25

18

26
27
28

Doc. 64 at 3.
Doc. 65-1 at 2–3.
Doc. 67 at 13.

19

Estrada v. Rowland, 69 F.3d 405, 406 (9th Cir. 1995) (quoting R.W. Int’l Corp. v.
Welch Foods, Inc., 937 F.2d 11, 15 n.2 (1st Cir. 1991)).
20

Doc. 64 at 2.

-5-

1
2

seven interrogatories (2, 5, 6, 10, 13, 14, and 15) and nine RFPs (1, 4, 6, 9, 11, 13, 14,
15, and 16). 21 It appears that this list erroneously includes interrogatory 10 and RFPs 6,

3
4

9, and 11 because ZMG did not assert relevancy objections to those discovery

5

requests. It also appears that the letter erroneously lists RFP 15 because ZMG

6

produced documents in response to that request notwithstanding its relevancy

7

objection.22 The court will therefore construe Premera’s motion as being directed

8

toward ZMG’s relevancy objections to interrogatories 2, 5, 6, 13, 14, and 15 and RFPs

9
10

1, 4, 13, 14, and 16.

11

1.

12

Interrogatory 2 and RFP 1 seek discovery regarding the identity of all persons

13

Interrogatories 2, 13, 14, and 15 and RFPs 1, 13, 14, and 16

who work for ZMG, including “any and all persons who left [ZMG] or were terminated by

14
15

[ZMG], including the date of departure or termination, and the reason for the departure

16

or termination.”23 Interrogatory 13 seeks information about (a) any “disciplinary

17

hearings, proceedings, internal or external investigations, or lawsuits brought against”

18
19
20

Dr. Zipperer; (b) any “fines imposed against Dr. Zipperer;” and (c) any time Dr. Zipperer
has been suspended from the practice of medicine.24 Interrogatory 14 and RFP 13

21
22
23
24
25
26

21

Doc. 61-1 at 174. Presumably, these are the sixteen discovery responses that
Premera references in its reply. Doc. 68 at 3–4 (“Notably, in sixteen (16) of his responses,
Plaintiff objects to the discovery to the extent it ‘seeks information that is not relevant to any
party’s claim or defense and proportional to the needs of the case and thus not discoverable
pursuant to Fed. R. Civ. P. 26(b)(1).’”).
22

Doc. 61-1 at 19. Further, it does not appear that Premera met and conferred with
ZMG regarding ZMG’s relevancy objection to RFP 15. See id. at 175–76.

27

23

28

24

Id. at 5.
Id. at 16.

-6-

1
2

seek discovery regarding “any and all audits, investigations, or lawsuits conducted by
any person or entity, including but not limited to Blue Cross or the government such as

3
4

the Federal Bureau of Investigation, in which ZMG, Dr. Zipperer, or any provider

5

employed by ZMG were targets.”25 Interrogatory 15 and RFP 14 seek discovery

6

regarding “any time in which [ZMG was] dropped from or not covered by Medicaid or

7

Medicare as a provider and the circumstances as to why [ZMG was] dropped or not

8

covered by Medicaid or Medicare.”26 And RFP 16 seeks documents that show that “the

9
10
11
12
13

medical claims in dispute were medically necessary.”27
Premera asserts that the information sought by these discovery requests is
relevant to its defenses of unclean hands and bad faith.28 In response, ZMG asserts
generally that the discovery Premera seeks is “not within the scope of discovery

14
15

permitted by Rule 26(b)(1)” because “[t]his lawsuit is to determine whether Premera

16

violated the Alaska prompt pay law and HIPAA.”29 ZMG only addresses RFP 16

17

specifically, arguing that complying with that request would require ZMG to produce the

18

“the entire medical record for every patient that received a service at issue in this

19

litigation,” which is a burden not proportional to the needs of the case.30 Premera does

20
21

not dispute ZMG’s characterization of this burden in reply.

22
25

23

Id. at 18.

26

24
25

Id.

27

Id. at 19.

26

28

27

29

28

30

Id. at 175.
Doc. 67 at 12.
Fed. R. Civ. P. 26(b)(1).

-7-

1
2

ZMG has not explained why interrogatories 2, 13, 14, and 15 and RFPs 1, 13,
and 14 seek information that is irrelevant to Premera’s unclean hands and bad faith

3
4

defenses or that is otherwise outside the scope of discovery. Premera’s motion will be

5

granted with regard to these discovery requests. The court agrees with ZMG, however,

6

that RFP 16 seeks discovery that is not proportional to the needs of the case when

7

considering the burden and expense of producing voluminous medical records.

8

2.

Interrogatories 5 and 6 and RFP 4

9
Interrogatory 5 and RFP 4 seek discovery regarding “any and all communications

10
11

or documents between [ZMG] and any representative of ClaimCare.”31 Interrogatory 6

12

seeks discovery regarding “all communications or documents between [ZMG] and any

13

representative of R&R Medical Billing Service.”32 Premera asserts that the information

14
15
16

sought by these discovery requests is relevant to Premera’s preparation of “an
adequate defense to [ZMG’s] allegations.”33

17
18

It appears to the court that even if these requests were relevant when Premera
filed its motion, they are no longer relevant in light of the court’s order denying ZMG’s

19
20
21

summary judgment motion. Premera’s motion will be denied.
C.

Dr. Zipperer’s Deposition

22

ZMG does not oppose Premera’s request to depose Dr. Zipperer in principle. It

23

opposes having such deposition take place before the court ruled on ZMG’s summary

24
25
26

31

27

32

28

33

Doc. 61-1 at 9.
Id. at 10.
Id. at 176.

-8-

1
2

judgment motion.34 Given that the court has now ruled on ZMG’s summary judgment
motion, Premera’s motion to compel Dr. Zipperer’s deposition will be denied as moot.

3
V. CONCLUSION

4
5
6
7
8

For the reasons set forth above, Premera’s motion to compel at docket 64 is
granted in part and denied in part as follows. Within 14 days of entry of this order ZMG
must serve answers to Premera’s interrogatories 2 and 13–15 and RFPs 1 and 13–14.
In all other respects, Premera’s motion is denied.

9
10

DATED this 14th day of May 2017.

11
12

/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

34

Doc. 67 at 13 (“The Federal Rules of Civil Procedure do not require a party to present
for a deposition within a specific period of time.”).

-9-