Des Roches et al v. California Physicians' Service et al

Filing 188

ORDER by Magistrate Judge Howard R. Lloyd re 156 Discovery Dispute Joint Report No. 5. (hrllc2S, COURT STAFF) (Filed on 10/4/2017)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

United States District Court
Northern District of California

11
12

CHARLES DES ROCHES, et al.,
Plaintiffs,

13
14
15
16

Case No.5:16-cv-02848-LHK (HRL)
ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 5

v.
CALIFORNIA PHYSICIANS’ SERVICE, et
al.,

Re: Dkt. No. 156

Defendants.

17
18
19

INTRODUCTION
This case is about whether the guidelines the defendants created and used for determining

20

whether medical necessity was established for certain mental health and substance abuse

21

treatments comported with generally accepted professional standards. In this certified class action

22

the plaintiffs allege that the defendants’ guidelines imposed harsh, improper criteria which

23

exceeded accepted standards and resulted in denial of claims that should have been approved.

24

Plaintiffs want their claims reevaluated under proper guidelines.

25

In Discovery Dispute Joint Report #5 (“DDJR #5”), the plaintiffs seek an order requiring

26

defendants to either admit or deny a Request for Admission (“RFA”). California Physicians’

27

Service d/b/a Blue Shield of California and Blue Shield of California Life & Health Insurance

28

Company (collectively, “Blue Shield”) and Human Affairs International of California (“HAI”)

1

received the same RFA: “Admit that the documents with the following document titles or

2

Beginning Bates numbers are records of regularly conducted activities as defined by Federal Rule

3

of Evidence 803(6) . . ..” This rule says that documents of a regularly conducted activity are not

4

excluded by the rule against hearsay.

5

Along with the RFA was a list of documents. Blue Shield received one list. HAI got a

6

different one. With trivial exceptions (i.e., documents marked as exhibits in depositions), all the

7

documents on both lists are identified by Bates numbers, indicating they were produced by the

8

defendants in response to requests for production in this lawsuit. That is, with the possible

9

exceptions noted, the documents were produced by the same defendant to whom the RFA was

10

United States District Court
Northern District of California

11

directed.
In its response to the RFA, Blue Shield admitted (except for 4 deposition exhibits) that the

12

documents were “genuine” within the meaning of Fed. R. Civ. P. 36(a)(1)(B) and that they were in

13

its possession, custody, or control at the time of their production. That is the extent of any

14

admission. There was no denial. Instead, Blue Shield objected. The RFA was, it averred, vague

15

and compound. Also, it argued that “whether a document falls into a hearsay exception is a legal

16

question and an improper request for admission.”

17

In its response, HAI made the same partial admission as did the Blue Shield defendants,

18

made no denials, and objected that the RFA was vague, implicated attorney-client privilege/work

19

product doctrine, and impermissibly called for a legal conclusion.

20

The plaintiffs argued that the RFA did not call for a legal conclusion and, in DDJR #5,

21

urged the court to order defendants to either admit or deny. The court heard the matter on

22

September 26, 2017.

23
24

DISCUSSION
The court begins with defendants’ objections that do not require serious discussion. There

25

is nothing vague about the RFA. The fact that it is arguably compound is not an objection that

26

carries any weight. When HAI’s counsel was asked to explain how the RFA ran afoul of attorney-

27

client privilege or the work product doctrine, the best he could offer (unpersuasively) was that

28

attorneys might have to go through the documents on the list and make decisions.
2

1

That leaves the objection that to admit or deny the RFA would be tantamount to asking the

2

defendants to draw a legal conclusion, something which is the proper province of the court. The

3

court asked both sides if their research had found any case from any federal court that squarely

4

addressed whether an RFA could or could not be used as the basis for exploring compliance with

5

Rule 803(6). They had not. So, let’s start with the language of Rule 803:

6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18

The following are not excluded by the rule against hearsay, regardless of
whether the declarant is available as a witness: . . . .
(6) Records of a Regularly Conducted Activity. A record of an
act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by –or from
information transmitted by – someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling, whether or not
for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian
or another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or
the method or circumstances of preparation indicate a lack of
trustworthiness.”
Giving the argument of defendants its due respect, this court agrees that it is up to the court

19

to decide whether the 5-step ladder set out in 803(6) has been satisfied, so that the court may

20

conclude if the document in question should be admitted as an exception to the hearsay rule.

21

But, and here’s the point: there is nothing of a “legal conclusion” nature in any of the 5

22

steps. Look at subsection (D), which specifically says that steps (A), (B), and (C) are to be

23

established by “testimony.” That means evidence. That means facts. Subsections (D) and (E) are

24

also evidentiary/factual.

25

This court concludes that the RFA not only, as defendants admit, meets “genuineness”

26

under FRCP 36(a)(1)(B), but it meets 36(a)(1)(A) as well: an RFA may relate to “facts, the

27

application of law to fact, or opinions about either.” See 8B Charles Alan Wright, et al., Federal

28

Practice and Procedure § 2262 at 368 (3d ed. 2010) (“A party cannot object on the ground that
3

1

the request goes to a disputable matter that presents a genuine issue for trial nor can it object that

2

the request related to opinions of fact or of the application of law to fact.”); see also Hon. William

3

A. Schwarzer, et al., California Practice Guide: Federal Civil Procedure Before Trial, § 11:2006,

4

et seq. (Thompson Reuters/The Rutter Group, 2017). As to their objection that an admission or

5

denial of any or all of the evidentiary steps in 803(6) calls for a conclusion of law, that objection is

6

overruled. As to each document, defendants may admit or, if they can do so in good faith, deny

7

some or all of the 5 steps on the evidentiary ladder, but what they cannot do is fail to respond.

8

This brings this court to another issue: the volume of documents addressed by the RFA.

9

The RFA to Blue Shield lists 169 documents, reportedly selected by plaintiffs from a production
of about 30,000 documents. The RFA to HAI lists 831 documents out of a production of 500,000.

11
United States District Court
Northern District of California

10

Added together, that’s an even 1000 documents. The defendants make allusions to undue burden,

12

but do not persuasively say just why any burden is “undue.” After all, the relevant evidence is

13

solely in their possession. And, since it is probably fair to assume that virtually all of the

14

documents were defendants’ documents, created by them as they went about their business, it is

15

hard to see how admitting or denying the 5 steps in the 803(6) ladder is unacceptably time-

16

consuming or difficult.

17

However, that is not to say that the court is satisfied that 1000 documents are

18

“proportional” to the legitimate needs of this case. Plaintiffs’ counsel represented that the

19

documents cover the formation of the challenged guidelines, the claims of the 3 named plaintiffs,

20

and the contracts between the defendants. Fair enough, but are plaintiffs seriously intending to ask

21

the presiding judge to conclude that the 803(6) exception applies and admit 1000 documents into

22

evidence? This matter is scheduled for an 8-day bench trial, not nearly enough time for the court

23

to deal with 1000 exhibits. At the hearing, plaintiffs’ counsel acknowledged that they did not

24

intend to use all 1000, but were hedging their bets because they had not yet decided which

25

documents to actually offer into evidence. Maybe that is sound strategy, but it just seems

26

excessive.

27
28

To try to achieve a balanced result, the court directs plaintiffs to select 300 documents,
divided between defendants as they see fit, and submit the lists to defendants. Defendants shall
4

1

respond within 14 calendar days from the date the lists are submitted. By this ruling the court

2

does not intend to foreclose plaintiffs from offering other documents as trial exhibits, including the

3

remaining documents on the list of 1000 as well as documents that were not on the list.

4
5

SO ORDERED.
Dated: October 4, 2017

6
7
HOWARD R. LLOYD
United States Magistrate Judge

8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5