Bingham v. BayCare Health System

Filing 132

ORDER denying 122 Motion to Compel West Florida Cardiology Network, LLC to Produce Documents Responsive to Non-Party Subpoena; granting in part and denying in part 123 Motion to Compel Production of Documents; granting in part and denying in part 126 Second Motion to Compel Production of Documents. Signed by Magistrate Judge Julie S. Sneed on 8/24/2016. (JR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THOMAS BINGHAM,
Plaintiff,
v.

Case No: 8:14-cv-73-T-23JSS

BAYCARE HEALTH SYSTEM,
Defendant.
___________________________________/
ORDER ON PLAINTIFF’S MOTIONS TO COMPEL
THIS MATTER is before the Court on Plaintiff’s Motion to Compel West Florida
Cardiology Network, LLC to Produce Documents Responsive to Non-Party Subpoena (Dkt. 122),
Motion to Compel Production of Documents (Dkt. 123), and Second Motion to Compel Production
of Documents (Dkt. 126).
BACKGROUND
Defendant, BayCare Health System, is a Florida non-profit corporation that owns St.
Anthony’s Hospital, Inc. and St. Anthony’s Professional Buildings and Services, Inc. (Dkt. 32, ¶
17; Dkt. 54.) In the Amended Complaint, Plaintiff alleges that Defendant inaccurately claimed
tax-exempt status for the Heart Center Medical Office Building (“Heart Center MOB”), which is
located on the St. Anthony’s Hospital campus, and passed kickbacks and financial benefits in the
form of free parking and tax-exempt status to physician tenants of the Heart Center MOB. (Dkt.
32, ¶¶ 68–93.)
Presently, Plaintiff moves to compel the production of documents from non-party West
Florida Cardiology Network, LLC (“WFC”) in response to a subpoena issued on WFC. (Dkt.

122.) Additionally, Plaintiff moves to compel the production of documents from Defendant in
response to Plaintiff’s Requests for Production. (Dkts. 123, 126.)
APPLICABLE STANDARDS
Under Federal Rule of Civil Procedure 26, parties 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. Fed. R. Civ. P. 26(b)(1). In determining proportionality, the court considers several
factors, including 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. Fed. R. Civ. P. 26(b)(1). Information within this scope of discovery
need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1).
Although the scope of discovery is broad, “the discovery rules do not permit the [parties]
to go on a fishing expedition.” Porter v. Ray, 461 F.3d 1315, 1324 (11th Cir. 2006). Under Federal
Rule of Civil Procedure 26, the court must, on motion or on its own, limit the extent of discovery
otherwise allowed if it determines that the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source that is more convenient, less burdensome,
or less expensive. Fed. R. Civ. P. 26(b)(2)(C)(i). Further, the court must limit discovery if it
determines that the party seeking discovery has had ample opportunity to obtain the information
by discovery in the action. Fed. R. Civ. P. 26(b)(2)(C)(ii).
ANALYSIS
Motion to Compel: West Florida Cardiology Network, LLC
Plaintiff seeks to compel the production of documents from non-party WFC in response to
a subpoena issued on WFC. WFC is a physician tenant of the Heart Center MOB, which is owned

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and operated by St. Pete MOB, LLC. (Dkt. 131.) On May 12, 2016, Plaintiff served a subpoena
on WFC requesting documents relating to WFC’s tenancy in the Heart Center MOB. (Dkt. 122.)
In response, WFC contends that the information sought in the subpoena is duplicative and
cumulative, as the information requested has already been provided to Plaintiff by other sources.
(Dkt. 130.) Requests 1 through 4 in the subpoena issued to WFC seek the following:
Request 1: All real estate leasing and rental agreements, including any amendments,
addendums and modifications to any such agreements, between [WFC] and St. Pete
MOB, LLC, for [the Heart Center MOB].
Request 2: Any receipts, canceled checks, operating expense statements, budget
statements, annual statements and reconciliations or any other form of documents
showing that [WFC] was charged or paid any portion of the real estate taxes, ad
valorem taxes and/or property taxes for the years 2006 through 2015 for [the Heart
Center MOB].
Request 3: Any receipts, canceled checks, operating expense statements, budget
statements, annual statements and reconciliations or any other form of document
showing that [WFC] was reimbursed, repaid, credited or rebated for any amounts
previously withheld or paid for real estate, ad valorem and/or property taxes for the
years 2006 through 2015 for [the Heart Center MOB].
Request 4: Any correspondence between [WFC] and St. Pete MOB, LLC, and/or
Charles River Properties, LLC, regarding real estate taxes, ad valorem taxes and
property taxes for [the Heart Center MOB].
(Dkt. 130-1.)
Through discovery, Plaintiff has obtained the information he seeks from another source.
Specifically, the information sought in Requests 1 through 4 of the WFC subpoena were obtained
by Plaintiff through non-party Optimal Outcomes, LLC, defined in the subpoena to include St.
Pete MOB, LLC as an affiliated entity.1 (Dkt. 130-9.) For example, the subpoena issued to
Optimal Outcomes sought the following information:

1

In the subpoena issued to Optimal Outcomes, Plaintiff defines Optimal Outcomes as an affiliated entity of St. Pete
MOB, LLC. Specifically, Plaintiff’s definition provides that Optimal Outcomes “refers to Optimal Outcomes, LLC,
. . . and other persons or entities acting on its behalf or under its control, including (if applicable) . . . St. Pete MOB,
LLC.” (Dkt. 130-9.) Similarly, Plaintiff’s definition of St. Pete MOB, LLC provides that St. Pete MOB, LLC “refers

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Request 4: All agreements of any kind, including rental and leasing agreements and
cash flow participation agreements, ownership interest and/or equity interest
agreements, between Optimal Outcomes, LLC (including any entity owned or
controlled by Optimal Outcomes, LLC, and/or Optimal Management and/or St.
Pete MOB, LLC) and any tenant, subtenant, occupant, licensee, sub-lessor, lessee
and sub-lessee of the Heart Center MOB.
Request 10: All documents relating to the calculation or determination of any
charges additional to rent, or benefits, as to tenants of the Heart Center MOB,
including determination and allocation of common area maintenance charges,
determination and allocation of common area janitorial services, determination of
access rights to common areas, and allocation of insurance and taxes to the tenants.
Request 11: Any document relating to parking rights, parking passes, parking
stickers, parking applications, parking vouchers, parking services, or valet services
provided to any tenant, subtenant, occupant, licensee, sub-lessor, lessee and sublessee of the Heart Center MOB.
(Dkt. 130-9.) Requests 1 through 4 of the WFC subpoena are duplicative of these requests in that
they seek documents concerning WFC’s tenancy and tax payments for the Heart Center MOB, and
documents obtained from Optimal Outcomes related to “any tenant” of the Heart Center MOB
include WFC. (Dkt. 130-1.)
Additionally, in Requests 5 and 6, Plaintiff seeks information from WFC for which he had
ample opportunity to request from Defendant and which were already provided by Defendant in
response to Plaintiff’s requests for production. Specifically, Request 5 seeks the following:
Any correspondence between [WFC] and St. Anthony’s Hospital, St. Anthony’s
Professional Buildings and Services and/or BayCare Health Systems regarding real
estate taxes, ad valorem taxes and/or property taxes for [the Heart Center MOB].
(Dkt. 130-1.) This document request is duplicative of the following requests served on Defendant
in Plaintiff’s First and Third Sets of Requests for Production:
Request 1: All documents governing or relating to the relationship between
Defendant . . . and any person or entity leasing space on the St. Anthony’s hospital
campus at 560 Jackson including but not limited to St. Pete MOB LLC, Optimal
Outcomes, LLC, Optimal Asset Management, and their affiliates.
to St. Pete MOB, LLC, and . . . other persons or entities acting on its behalf or under its control, including (if applicable)
Optimal Outcomes, LLC.” (Dkt. 130-9.)

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Request 25: All documents that show the amount of ad valorem taxes and nonvalorem assessments that were paid by [BayCare] or any other person or entity to
any tax authority for any portions of the Heart Center MOB and the Suncoast MOB
for the years 2005 to the present.
Request 26: All documents that show the amount of ad valorem taxes and non-ad
valorem assessments that were paid to [BayCare] by any person or entity to pay to
any tax authority for any portions of the Heart Center MOB and the Suncoast MOB
for the years 2005 to the present.
(Dkt. 130-10, 130-11.) As indicated by WFC, and by Defendant in its responses and objections to
Plaintiff’s First and Third Sets of Requests for Production, Defendant has produced the documents
responsive to these requests, namely documents concerning ad valorem taxes. (Dkt. 130 at 12–
13; Dkt. 130-11.) See Bradfield v. Mid-Continent Cas. Co., No. 5:13-CV-222-OC-10PRL, 2014
WL 4626864, at *4 (M.D. Fla. Sept. 15, 2014) (finding that the discovery sought was cumulative
or duplicative when it had been obtained from other sources).
Similarly, Request 6 seeks the following:
All leasing, time-share and rental agreements, including any amendments,
addendums and modifications to any such agreements, for the use of any medical
equipment, laboratory space, laboratory equipment, diagnostic lab, radiology lab,
catheterization lab and ambulatory surgical center between [WFC] and St. Pete
MOB, LLC, St. Anthony’s Hospital, St. Anthony’s Professional Buildings and
Services and/or BayCare Health Systems for [the Heart Center MOB].
(Dkt. 130-1.) This document request is duplicative of Plaintiff’s Second Request for Production
served on Defendant seeking:
Request 11: All subleases and agreements of any kind between [BayCare] as
tenant/lessee/sublessor of any space in the Heart Center MOB and any person,
investment company, business entity, partnership, corporation, medical group,
medical practice, physician or medical clinic, as subtenant/sublessee of any space
in the Heart Center MOB, including all subsequent modifications and amendments.
Request 16: All documents that memorialize, constitute, show, demonstrate or
analyze any agreement of any kind between [BayCare] and any owner, tenant,
subtenant, lessor, lessee or business occupant of any kind of the Heart Center MOB.

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(Dkt. 130-12.) As indicated by Defendant’s responses and objections to Plaintiff’s Second Request
for Production, Defendant has produced the responsive documents, namely agreements between
BayCare and subtenants or sublessees of the Heart Center MOB. (Dkt. 130-12.)
Although the discovery rules do not expressly limit the sources from whom discovery may
be sought, the rules provide that discovery must be proportional to the needs of the case—which
includes consideration of, among other things, the burden or expense of the proposed discovery—
and must be limited if the discovery sought is unreasonably cumulative, duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less expensive. Fed.
R. Civ. P. 26(b). Because the discovery requested appears unreasonably cumulative and would
subject non-party WFC to undue burden, the discovery should be limited. See Fed. R. Civ. P.
26(c)(1) (providing that the court may limit discovery to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense); Klay v. All Defendants, 425 F.3d 977,
984 (11th Cir. 2005) (providing that the court must protect non-parties from significant expense);
Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1558–59 (11th Cir. 1985) (providing that
Rule 26 authorizes a court to limit discovery where the party seeking discovery has had ample
opportunity to obtain the sought-after information); Maxwell v. Health Ctr. of Lake City, Inc., No.
3:05CV1056-J-32MCR, 2006 WL 1627020, at *2 (M.D. Fla. June 6, 2006) (finding that, “in an
effort to spare third parties the expense and cost of responding to the subpoenas,” a party ought to
first attempt to obtain such evidence directly from the opposing party). Therefore, Plaintiff’s
Motion to Compel as to WFC is denied.
Motion to Compel: BayCare
In Plaintiff’s Motion to Compel Production of Documents, Plaintiff moves to compel
Defendant to produce documents in response to Requests for Production 51, 52, 53, 67, 68, 70, 73,

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and 78. (Dkt. 123.) In response, Defendant argues that the requests are unduly burdensome and
seek irrelevant information. (Dkts. 129, 131.)
Request 51 seeks all requests for written consent to enter into lease agreements with
prospective tenants of the Heart Center MOB under the Ground Lease, which provides that St.
Pete MOB, LLC must seek the approval of St. Anthony’s before leasing space in the Heart Center
MOB to anyone other than St. Anthony’s. To the extent that this request seeks documents
involving physician groups not located in the Heart Center MOB, such a request is beyond the
scope of the allegations in the Amended Complaint and is thus irrelevant. Therefore, Defendant
is directed to supplement its response to this request with the written consents of physician tenants
of the Heart Center MOB.
Requests 52, 53, and 78 seek documents relating to valet and parking services provided by
Defendant to the Heart Center MOB. Specifically, Requests 52 and 53 seek documents showing
the costs incurred by Defendant since January 1, 2006, in maintaining the parking areas and in
providing valet services used by tenants and invitees of the Heart Center MOB. Request 78 seeks
all documents showing the payments made by Defendant to any business or person for valet
parking services provided by the Heart Center MOB. Upon consideration, the Court finds that the
information requested is relevant to the extent it shows the value of services in the form of parking
and valet services provided by Defendant to tenants of the Heart Center MOB. However, as noted
by Defendant, a request for “all documents that show costs” or “all documents showing the
payments made” is overly broad, and the term “maintaining” as used in Request 52 is improperly
vague. Therefore, Defendant is directed to supplement its responses to Requests 53 and 78 to
provide invoices, bills, and claims for payment submitted to BayCare for the provision of valet
services to tenants of the Heart Center MOB since January 1, 2008.

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Requests 67 and 73 seek lease agreements.

Specifically, Request 67 seeks a lease

agreement between Defendant and the Heart and Vascular Institute of Florida, LLC (“HVIF”), a
tenant of the Heart Center MOB. However, this request does not relate to Plaintiff’s allegations
against Defendant regarding parking and property taxes, as Plaintiff states that it relates to “illegal
remuneration to the HVIF referring physicians, separate and apart from the free parking, valet
services, and tax exempt status of the building.” (Dkt. 123 at 14.) Therefore, the motion to compel
as to this request is denied. Request 73 seeks a lease agreement between St. Anthony’s and St.
Pete MOB referenced in a deposition. Defendant contends that it was unable to locate a copy of
the agreement sought by Request 73 and will serve a supplemental response to the request. (Dkt.
131.) Therefore, Defendant is directed to supplement its response to Request 73.
Request 68 seeks all advertising and marketing materials used to advertise any cardiac care
facilities at St. Anthony’s Hospital between 2004 and the present.

Plaintiff argues that

“[a]dvertising for the Cardiac Care Center at the St. Anthony’s Hospital, is relevant to show
BayCare’s purpose to increase referrals to the hospital for the highly specialized area of cardiology,
which can regularly require extended inpatient treatment such as for open heart surgery.” (Dkt.
123 at 17.) However, this request is overly broad in that it requests information concerning all
cardiac care facilities, rather than only those related to the Heart Center MOB. Additionally,
Defendant indicates that it has produced documents related to advertisements of the Heart Center
MOB. (Dkt. 131.) Therefore, the motion to compel as to this request is denied.
Request 70 seeks copies of all applications submitted by Defendant to the Florida Agency
for Health Care Administration since 2001 for a certificate of need approving open-heart surgery
and other cardiac procedures at St. Anthony’s Hospital. According to Plaintiff, the certificates of
need are relevant to show “St. Anthony’s efforts to expand their revenues and high priced referrals

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in the fruitful area of cardiology at the hospital” to “lure” cardiology groups to the St. Anthony’s
campus, as the certificates of need require the applicant to state the purpose of the requested
facility. (Dkt. 123 at 18.) However, Plaintiff fails to meet his burden of showing how the
regulatory approval for the provision of cardiac services is relevant to the claims alleged in the
Amended Complaint. Further, the request is not narrowly tailored to the relevant time alleged in
the Amended Complaint, as it requests information outside the time surrounding the construction
of the Heart Center MOB. Therefore, the motion to compel as to this request is denied.
In his Second Motion to Compel Production of Documents, Plaintiff moves to compel
Defendant to produce documents in response to Requests for Production 88 and 89 in Plaintiff’s
Tenth Request for Production. (Dkt. 126.) Requests 88 and 89 seek documents relating to valet
and parking services provided by Defendant to the Heart Center MOB. As noted by Defendant in
its objection, Request 88 requests all documents that show the costs incurred by Defendant in
maintaining the parking areas used by the tenants of the Heart Center MOB and is thus duplicative
of Request 52. However, Request 88 provides a definition of the term “maintaining,” which was
undefined in Request 52. Therefore, Defendant is directed to supplement its response to Request
88 to provide invoices, bills, and claims for payment submitted to BayCare for maintaining the
parking areas used by tenants of the Heart Center MOB since January 1, 2008, which includes
“painting, paving, resurfacing, signing, providing security for, cleaning, providing janitorial
services for, refuse removal, elevator repairs or maintenance, maintenance of the building
structures, paying taxes on the land and/or structures containing said parking areas.” (Dkt. 126 at
3.) Similarly, Request 89 requests all documents that show the costs incurred by Defendant in
providing valet services for tenants of the Heart Center MOB and is thus duplicative of Request

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53. As this request has been addressed above, Plaintiff’s second motion to compel is denied as to
this request. Accordingly, it is
ORDERED:
1. Plaintiff’s Motion to Compel West Florida Cardiology Network, LLC to Produce
Documents Responsive to Non-Party Subpoena (Dkt. 122) is DENIED.
2. Plaintiff’s Motion to Compel Production of Documents (Dkt. 123) is GRANTED in
part and DENIED in part. Defendant is directed to supplement its responses to
Requests 51, 53, 73, and 78 as stated above by September 2, 2016.
3. Plaintiff’s Second Motion to Compel Production of Documents (Dkt. 126) is
GRANTED in part and DENIED in part. Defendant is directed to supplement its
response to Request 88 as stated above by September 2, 2016.
DONE and ORDERED in Tampa, Florida, on August 24, 2016.

Copies furnished to:
Counsel of Record

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