Magellan Health Services, Inc. v. CDMI, LLC et al
RULING ON ELECTRONICALLY STORED INFORMATION ["ESI"] Signed by Judge Joan G. Margolis on 6/27/2013.(Rodko, B.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
MAGELLAN HEALTH SERVICES, INC.
CDMI, LLC ET AL.
3:12 CV 1250 (JBA)
DATE: JUNE 27, 2013
RULING ON ELECTRONICALLY STORED INFORMATION ["ESI"]
The factual and procedural history behind this litigation has been set forth in
considerable detail in this Magistrate Judge's Ruling on Discovery Issue, filed May 29, 2013
(Dkt. #61)["May 2013 Ruling"], familiarity with which is presumed. Under the Scheduling
Order, filed by U.S. District Judge Janet Bond Arterton on November 13, 2012 (Dkt. #31),
all discovery is to be completed by August 31, 2013, and all dispositive motions are to be
filed by September 30, 2013. On April 16, 2013, Judge Arterton referred the file to this
Magistrate Judge to supervise discovery. (Dkt. #54; see also Dkt. #53).
On June 12, 2013, counsel advised the Court by letter of an impending discovery
dispute with respect to discovery of electronically stored information ["ESI"], following which
both counsel forwarded letters to this Magistrate Judge on June 19, 2013.1 Counsel were
unable to reach an amicable resolution of this discovery dispute. (See also Dkts. ##62-65).2
As set forth in the June 19th Letters and attachments, plaintiff seeks 435 different
Attached as Exh. 1 to defendants' letter is a chart regarding plaintiff's proposed ESI
search terms, and as Exh. 2 is a chart regarding defendants' proposed ESI search terms.
If any party files an Objection to this discovery ruling, then the three letters will be
docketed on CM/ECF.
While each side was willing to make some concessions, an agreement could only be
reached if both sides agreed to the opposing side's concessions, which did not happen.
proposed search terms from defendants from nine designated custodians, which would
produce 50,201 e-mails and 6,140 other documents, constituting fifty-two percent of CDMI's
total ESI. As described by counsel, "the vast majority of [plaintiff's] 435 proposed search
terms identify the different health plans, pharmaceutical manufacturers, and drug formularies
that are or were involved in [plaintiff's] specialty rebate business activities." Defendants have
proposed that plaintiff's ESI search from them be limited to 118 terms that they describe as
"potentially relevant[,]" in particular, any health plans, pharmaceutical manufacturers, and
drug formularies identified in the parties' discovery requests, related to any of the fact
allegations in the pleadings, or related to any of the additional factual contentions in the
parties' Rule 26(a)(1) damages disclosure.3 During the June 21, 2013 telephonic discovery
conference (Dkt. #63), defense counsel represented that these 118 search terms had 37,514
hits. Plaintiff disagrees with these limitations, arguing that it is "unlikely" that defendants
will generate "false hits[,]" and there may have been improper conduct by defendants with
respect to health plans, pharmaceutical manufacturers, and drug formularies about which
plaintiff does not presently know. During the June 21, 2013 telephonic status conference,
plaintiff's counsel indicated that the term "Specialty" by itself generated 6,224 e-mails.4
With respect to defendants' counterclaims, defendants seek eight categories of
documents,5 which would require plaintiff to review 92,112 documents. Limiting the ESI
search to the first three categories, however, produces a "hit" of 13,412 documents, which
plaintiff is willing to review for relevancy and/or privilege. Plaintiff proposes that it run the
Defendants' Exh. 1-A highlights the terms which they have agreed to search.
Defendants' Exh. 1-A indicates that term generated 13,067 e-mails with history, 1,638
non-e-mail documents, and 1,981 non-e-mail documents with history.
These search terms are found in defendants' Exh. 2.
first three categories, and then "consider additional proposed searches to the extent
warranted by information learned through discovery." The other 78,700 documents pertain
to Categories ##4 to 8. During the June 25, 2013 telephonic discovery conference (Dkt.
#65), plaintiff's counsel represented that Categories Nos. 6-7 had 22,000 "non-unique
documents." Plaintiff's counsel suggested that counsel wait until some depositions have been
held before concluding whether Categories Nos. 6-7 are necessary.
Defendants object to this limitation, arguing that the 92,112 documents constitute
only 7.5% of plaintiff's roughly 1.2 million ESI documents. They also argue that Kazi
Hassan's departure from plaintiff is a "critical issue" in this litigation, and that Ralph Pisano
is a "key witness[.]" Both counsel agreed that Category No. 7, regarding Pisano, caused the
greatest dispute between counsel.
During the June 21, 2013 telephonic discovery conference, plaintiff's counsel
represented that after he ran a computer search for Categories Nos. 4-8, and excluded the
documents that were already covered by Categories Nos. 1-3, he reviewed one hundred
documents as a sample, and none were responsive.
First, with respect to plaintiff's ESI search terms directed to defendants, the
Magistrate Judge agrees that as an initial search, defendants need only search the 118 terms
(as to which they agreed), which will generate 37,514 "hits." In addition, plaintiff is entitled
to the search term "specialty," which could generate an additional 15,048 "hits." Counsel
shall confer with one another, in good faith, to determine if adding a small number of nearby
search terms to "speciality" will reduce this number of hits to a more reasonable number.
As discovery progresses, if circumstances warrant, plaintiff may request, at that time,
additional ESI searches.
Second, with respect to defendants' ESI search terms directed to plaintiff, the
Magistrate Judge agrees that as an initial search, plaintiff shall search Categories Nos. 1-3
(as to which it agreed), which will generate 13,412 documents. In addition, counsel shall
confer with one another, in good faith, to more narrowly tailor Categories Nos. 6-7, perhaps
by eliminating some common words (like hire!, leav!, quit!, george, james, and jim) that may
be causing these two searches to generate 22,000 "hits," again with a view to reduce this
to a more reasonable number. And again, as discovery progresses, if circumstances warrant,
defendants may request, at that time, additional ESI searches.
At the conclusion of the June 25, 2013 telephonic discovery conference, both counsel
suggested that they will attempt to agree upon a schedule for completion of document
production. On or before July 19, 2013, counsel shall submit to this Magistrate Judge's
Chambers either (a) a stipulated schedule for the completion of discovery, or, in the absence
of an agreement, (b) letters that set forth each side's proposed schedule.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72;
and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order
of the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude further
appeal to Second Circuit).
Dated at New Haven, Connecticut, this 27th day of June, 2013.
/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge
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