Northern California Minimally Invasive Cardiovascular Surgery et al v. NorthBay Healthcare Corporation et al

Filing 77

ORDER FOLLOWING EVIDENTIARY HEARING, Motions terminated: 65 Discovery Letter Brief filed by NorthBay Healthcare Medical Group, Inc., NorthBay Healthcare Group, Inc., NorthBay Healthcare Corporation, 75 Discovery Letter Bri ef filed by Ramzi Deeik, Northern California Minimally Invasive Cardiovascular Surgery, 68 Discovery Letter Brief filed by Ramzi Deeik, Northern California Minimally Invasive Cardiovascular Surgery.. Signed by Judge Alsup on 12/1/16. (whalc1, COURT STAFF) (Filed on 12/1/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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NORTHERN CALIFORNIA MINIMALLY
INVASIVE CARDIOVASCULAR SURGERY,
INC., a California Medical Corporation, and
RAMZI DEEIK, M.D., an individual,
Plaintiffs,

For the Northern District of California

United States District Court

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No. C 15-06283 WHA

v.
NORTHBAY HEALTHCARE CORPORATION, a
California public benefit corporation, NORTHBAY
HEALTHCARE GROUP, INC., a California public
benefit corporation, and NORTHBAY
HEALTHCARE MEDICAL GROUP, INC.,

ORDER FOLLOWING
EVIDENTIARY
HEARING

Defendants.
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Following an evidentiary hearing at which plaintiff Ramzi Deeik and his former

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partner, Robert Klingman both testified, the Court finds as follows, but reserves the right to

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make further findings on this incident. At all times during this litigation, Deeik had access to

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and control over all NVCTS records, that he knew he had such access and control, and that he

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knew that Klingman did not have such control. Deeik’s “belief” that the records in storage were

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all non-responsive was entirely without foundation. Deeik intentionally misled defendants

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when, without ever searching the records in the storage facility, he signed discovery responses

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averring that he had produced all relevant documents in his possession. The statement of

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counsel for plaintiffs to defense counsel and to the Court that only Klingman had possession

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and control was false and irresponsible.

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As ordered at the hearing, plaintiffs must turn over every single item in the subject
storage facility (which plaintiffs represented comprised forty boxes plus some digital media).
Defendants are entitled to review the entirety of the contents of that facility regardless of

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whether it would have been responsive to a prior discovery request. As agreed at the hearing,

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plaintiffs’ counsel shall deliver the boxes from the storage facility to defense counsel’s office by

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DECEMBER 1 AT 5:00 P.M. Plaintiffs shall also give defendants access to all of the computers

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that Deeik took possession of following the dissolution of NVCTS by DECEMBER 8 AT NOON.

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Defense counsel shall promptly inform the Court of the date on which they can complete

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review of the records. Defense counsel shall maintain an index of all useful and probative

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documents uncovered via this search, even if they would not have been responsive to a specific

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discovery request. This is without prejudice to whether any such records will be admissible.

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Once the review is completed and the extent of the responsiveness of the records is
known, defendants may bring a formal motion seeking appropriate sanctions, which requested

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For the Northern District of California

United States District Court

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sanctions may include adverse inferences, money sanctions to be paid before the lawsuit can

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proceed further, or terminating sanctions, though none of these are yet approved. The Court

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reserves the right to deny all relief or to grant attorney’s fees to plaintiff, should the review of

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the withheld documents prove a wasteful and fruitless exercise.

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This is without prejudice to other aspects ordered at the hearing.

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IT IS SO ORDERED.
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Dated: December 1, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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