United States Of America et al v. SouthernCare, Inc.
Filing
152
ORDER granting in part and denying in part 109 Motion to Quash Subpoena and Motion for Protective Order; granting in part and denying in part 110 Motion to Quash Subpoena Served on Non-Party Simione Healthcare Consultants, LLC. Signed by Magistrate Judge G. R. Smith on 9/23/2015. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA and )
STATE OF GEORGIA ex rel. CHAD )
WILLIS,
)
Plaintiffs,
)
V.
Case No. CV410-124
)
SOUTHERNCARE, INC.,
)
Defendant.
ORDER
In this qui tam False Claims Act case, non-party Simione
Healthcare, Inc. and defendant SouthernCare, Inc. move to quash relator
Chad Willis' subpoena to Simione that seeks records of its 2009-2013
Medicare compliance reviews of SouthernCare. Docs. 109 & 110. Willis
believes that the subpoena is a proper attempt to obtain discovery
essential to his claims. Doc. 114.
I. BACKGROUND
Six years ago, SouthernCare settled claims that it unlawfully billed
Medicare for hospice patients who did not meet hospice criteria. See Rice
v. Southerncare Inc., No. 2:05-cv-873, doc. 43 (N.D. Ala. Jan. 15, 2009)
("Rice").
It agreed with the Office of Inspector General ("OIG") to
employ an Independent Review Organization ("IRO") for five years to
ensure compliance with "the statutes, regulations, and written directives
of Medicare, Medicaid, and all other Federal health care programs." Doc.
114-1 (SouthernCare-OIG "Corporate Integrity Agreement" (CIA)).
Simione was that IRO. See doc. 114 at 3; doc. 109 at 3.
Simione "perform[ed] reviews to assist [SouthernCare] in assessing
and evaluating the eligibility of hospice patients for the hospice benefit;"
conducted an annual Medicare and Medicaid eligibility review; and
periodically reviewed SouthernCare for "unallowable cost[s]." Doe. 1141 at 9-12. It provided annual IRO reports to the OIG, and also performed
whole-system reviews of SouthernCare as needed. Doe. 110-1 at 11. As
an IRO, Simione claims it used "confidential and proprietary business
tools, software and audit practices for efficient and effective analysis."
Doe. 109 at 4.
Little more than a year after the Simione-SouthernCare IRO
relationship began, Willis filed this action. Compare doe. 1 (filed May 18,
2010), with doe. 114-1 at 33-34 (executed on January 13, 2009). He
asserts hospice-related violations of the False Claims Act similar to those
SouthernCare settled in Rice. See, e.g., doe. 90 at 47-54. About four
months into discovery, Willis served a subpoena on Simione seeking
documents related to Simione's work as SouthernCare's IRO.'
See doe.
110-1 at 4; doe. 107.2 Simione and SouthernCare both moved separately
to quash the subpoena. Does. 109 & 110.
The subpoena sought "all documents related to SouthernCare, Inc. from January 1,
2009 until the present, including:"
1. your entire SouthernCare, Inc. file(s)
2. all documents reflecting or relating to any review or audit of any kind (by
whatever name you call it) you performed of SouthernCare, Inc. from January
1, [2]009 until the present;
3. all correspondence between you. . . and SouthernCare, Inc....;
4. any reports, memoranda, or other documents reflecting or memorializing
the results of any review or aduit [sic] of any kind (by whatever name you call
it) you performed of SouthernCare, Inc. from January 1, 2009 until the
present;
5. all drafts of documents produced in response to 4., above;
6. all exhibits to documents produced in response to 4., above;
7. any copies of SouthernCare, Inc. documents in your possession, including
but not limited to patient files, medical records, financial documents, training
materials, compliance materials, corporate documents, and marketing
materials.
Doc. 107-1 at 5-6.
2 SouthernCare represents that the subpoena "requests documents that Relator
previously requested from SouthernCare in his Requests for Production of
Documents, dated January 28, 2015." Doc. 110-1 at 4. SouthernCare says it objected
to the requests as overbroad, irrelevant, seeking privileged information, and for not
leading to the discovery of admissible evidence, though neither it nor Willis reveals
whether it produced anything in response. Id.
3
III. ANALYSIS
Simione argues that the subpoena (1) requires it to disclose
proprietary trade secrets and confidential business information; (2)
attempts to use Simione as an unretained expert; (3) imposes an undue
burden; and (4) seeks disclosure of protected patient information and
privileged materials and communications. Doc. 109 at 1-2.
SouthernCare first asserts that it has standing to contest the subpoena.
Doc. 110-1 at 6. It then argues that Willis seeks to misuse the IRO
reports, and that the subpoena (1) asks for SouthernCare's confidential
commercial information, and (2) is an overbroad fishing expedition.' Id.
at 8-10, 13-15.
Willis counters that the stipulated protective order in this case
(doc. 105) obviates any concerns about trade secrets and confidential
information; the subpoena seeks facts from Simione, not expert opinions;
and Simione has not established that the subpoena is unduly
burdensome. Doc. 114 at 6-15.
SouthernCare also parrots Simione's unretained expert argument.
at 10-12.
4
See doe. 110-1
A. SouthernCare's Standing
Before reaching the merits of any arguments, the Court must
decide whether SouthernCare has standing to challenge a subpoena
directed to Simione, a non-party. Generally, "[a] motion to quash [a
subpoena], or for a protective order, should be made by the person from
whom the documents, things, or electronically stored information are
requested. Numerous cases have held that a party lacks standing to
challenge a subpoena absent a showing that the objecting party has a
personal right or privilege regarding the subject matter of the subpoena."
9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2463.1 (3d ed. 2008). A personal right or privilege exists,
for example, when the subpoena seeks a party's employment or mental
See Stevenson v. Stanley Bostitch,
health records from a third-party.
Inc., 201 F.R.D. 551, 555 n.3 (N.D. Ga. 2001) (psychiatric records);
Barrington v. Mortg. IT, Inc., 2007 WL 4370647 at * 2 (S.D. Fla. Dec. 10,
2007) (employment records). Consistent with the personal right
requirement, "[o]bjections unrelated to a claim of privilege or privacy
interests are not proper bases upon which a party may quash a
subpoena." Khumba Film (PTY), Ltd. v. Does 1-14, 2014 WL 4494764 at
5
* 2 (D. Cob. Sept. 12, 2014). "Thus, even where a party has standing to
quash a subpoena based on privilege or a personal right, he or she lacks
standing to object on the basis of undue burden." Id.
Here, Willis seeks all documents relating to Simione's work as
SouthernCare's IRO. That encompasses "any copies of SouthernCare,
Inc. documents in [Simione's] possession, including but not limited to
patient files, medical records, financial documents, training materials,
compliance materials, corporate documents, and marketing materials."
See doe. 107-1 at 6. To state the obvious, SouthernCare has a personal
right to its own documents, even if Simione possesses them, and thus
may challenge the subpoena to that extent.
See Barrington, 2007 WL
4370647 at * 2 (plaintiff had standing to quash subpoena seeking his
employment records even though a non-party produced and retained
those records). It also has a personal right in documents Simione created
as part of its IRO work. Such documents all intimately regard
SouthernCare and so resemble employment and psychiatric records,
which, while produced by an employer or physician, relate to the
employee or patient, who thus has standing to object to their inclusion in
n
.
It
a subpoena. See Barrington, 2007 WL 4370647 at * 2; Stevenson, 201
F.R.D. at 555 n.3.
SouthernCare does not, however, have standing to object to the
subpoena as an overbroad fishing expedition, doe. 110-1 at 15.
See
Khumba Film, 2014 WL 4494764 at * 2 ("undue burden" objection
improper when asserted by non-party to a subpoena). Simione, not
SouthernCare, is the subpoena target and thus will suffer any burden or
expense from the breadth of Willis' requests. An "overbroad" objection
is, therefore, Simione's to make, and the Court will not consider
SouthernCare's argument on that score.
Nor will it consider SouthernCare's version of the "unretained
expert" argument.
See doe. 110-1 at 10-12. SouthernCare has no
personal interest in protecting against an uncompensated taking of
Simione's intellectual property (though being the subject matter of that
property gives it an interest sufficient to object on confidentiality
grounds) and thus lacks standing to object pursuant to Fed. R. Civ. P.
45(d)(3)(B)(ii). See Khumba Film, 2014 WL 4494764 at * 2. Given its
personal stake in its own documents and those produced about it by
Simione, though, the Court will consider SouthernCare's misuse of IRO
7
documents argument, as well as its commercially sensitive information
objection. See doe. 110-10 at 8-10.
B. Trade Secrets and Confidential Business Information
Both SouthernCare and. Simione want the subpoena quashed
because, they say, it seeks sensitive information protected from
disclosure. SouthernCare's concern is its own allegedly confidential
commercial information, doe. 110-1 at 8, while Simione balks at
disclosing its "confidential business information and proprietary trade
secrets." Doe. 109. Willis counters that the protective order already in
place safeguards that information and so obviates any disclosure
concerns SouthernCare and Simione have. Doe. 114 at 9-11. Even if it
does not, Simione and SouthernCare have publicly discussed Simione's
IRO reviews and, according to Willis, thus waived any right to keep them
behind closed doors. Id. at 8.
Courts may quash a subpoena if it requires "disclosing a trade
secret or other confidential research, development, or commercial
information." Fed. R. Civ. P. 45(d)(3)(B)(i). 4 But "there is no absolute
"The serve-and-volley of the federal discovery rules govern the resolution of a
motion to quash." Mycogen Plant Sci., Inc. v. Monsanto Co., 164 F.R.D. 623, 625
(E.D. Pa. 1996).
pz
privilege for trade secrets and similar confidential information."
Festus
& Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith
Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (quoting Fed Open Mkt.
Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 362 (1979)).
Instead, "courts weigh the claim to privacy against the need for
disclosure, and commonly enter a protective order restricting
disclosure."' Festus & Helen, 432 F. Supp. 2d at 1380. Such an order
The subpoenaing party must first show that its requests are relevant to its
claims or defenses, within the meaning of Federal Rule of Civil Procedure
26(b)(1). Id. at 625-26. Next, the burden shifts to the subpoenaed nonparty
who must show that disclosure of the information is protected under Rule
45(d)(3)(A) or (B). Id. at 626. If the subpoenaed nonparty claims the
protections under Rule 45(d)(3)(B) or asserts that disclosure would subject it
to undue burden under Rule 45(d)(3)(A), it must show that disclosure will
cause it a 'clearly defined and serious injury.' City of St. Petersburg V. Total
Containment, Inc., Case No. 06-cv-20953, 2008 WL 1995298, at *2 (E.D. Pa.
May 5, 2008) (undue burden under Rule 45(d)(3)(A)); In re Mushroom Direct
Purchaser Antitrust Litig., Case No. 06-cv-0620, 2012 WL 298480, at *5 (E.D.
Pa. Jan. 31, 2012) (disclosure of trade secrets under Rule 45(d)(3)(b)(i)). 'This
burden is particularly heavy to support a motion to quash as contrasted to
some more limited protection such as a protective order.' Frank Brunckhorst
Co. v. Ihm, Case No. 12-cv-0217, 2012 WL 5250399, at * 4 (E.D. Pa. Oct. 23,
2012).
In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 239 (E.D. Pa. 2014).
"This balancing test requires a Court to weigh (1) the relevance, (2) need, (3) and
confidentiality of the requested materials, as well as (4) the harm that compliance
would cause the subpoenaed nonparty. Mann ington Mills, Inc. v. Armstrong World
Indus., Inc., 206 F.R.D. 525, 529 (D. Del. 2002) ("[E]ven if the information sought is
relevant, discovery is not allowed where no need is shown, or where compliance is
unduly burdensome, or where the potential harm caused by production outweighs
the benefit."). A court should be "particularly sensitive to weighing the probative
may require that "a trade secret or other confidential . . . commercial
information . . . be revealed only in a specified way." Fed. R. Civ. P.
26(c)(1)(G).
As Willis points out, a protective order already exists in this case
that binds the parties (SouthernCare and Willis). Doe. 105. It covers
production of (1) health information (e.g., patient records) subject to the
Privacy Act and other privacy protections; and (2) documents and
information "that [are] proprietary and/or confidential, as well as use of
such information in depositions, open court," and the filing of
confidential documents. See id. For all trade secrets and commercially
sensitive information, the protective order requires unredacted
production to the other party, but limits the use of that information to
this litigation and disclosure to the parties and their experts. Id. at 23 .6
It does not, however, prevent SouthernCare's objection to the present
subpoena.
See id. at 5 ("This Consent Protective Order does not
value of the information sought against the burden of production on [a] nonparty."
Fears v. Wilhelmina Model Agency, Inc., Case No. 02—cv-4911, 2004 WL 719185, at
*1 (S.D.N.Y. Apr. 1, 2004)." In re Domestic Drywall Antitrust Litig., 300 F.R.D. at
239.
6
Documents labeled confidential and/or proprietary may be filed with the Court, but
only under seal or sufficiently redacted to eliminate confidentiality concerns. Doe.
105 at 3.
10
constitute a ruling on the question of whether any particular material is
properly discoverable or admissible and does not constitute any ruling on
any potential objection to the discoverability of any material.").
More importantly, the protective order does not currently apply to
Simione at all. See generally doc. 105 (only discussing protections and
obligations in terms of "the parties" -- Willis and SouthernCare, but not
Simione). If it did though, and if the documents Simione and
SouthernCare refuse to produce are in fact confidential commercial
information, 7 the subpoena poses no danger to Simione or SouthernCare.
Any disclosed materials labeled confidential pursuant to the protective
order would stay within the confines of this litigation and could not be
disclosed to non-parties. Such non-public disclosure, precisely because
the public and competitors lack access, would not jeopardize privacy
Willis argues that Simione has not demonstrated that the subpoena seeks trade
secrets. Doc. 114 at 9. Simione admittedly plies quasi-conclusory statements as
evidence that the subpoena seeks confidential information. See doe. 109 at 4 ("In its
role as an IRO, Simione has developed a reputation as a reliable consultant, and in
conducting its work, Simione relies on confidential and proprietary business tools,
software and audit practices for efficient and effective analysis."). Regardless, the
protective order in place already shields against the dangers of publicly disclosing
confidential information. Indeed, one of its express purposes is to "adequately
protect . . . confidential and/or proprietary information," Doe. 105 at 1. Whether or
not the subpoena seeks trade secrets then is a bit of a moot point since Simione could,
assuming the Order applies, avail itself of the Order's protections should it feel
certain subpoenaed materials are confidential.
11
interests or Simione's competitive advantage in the marketplace.'
See,
e.g., doe. 109 ("Simione has a critical interest in its [trade secrets] in
order to preserve its ability to effectively serve and compete in the
healthcare market.. . .").
By contrast, much of the information sought is directly relevant to
Willis' claims. 9 Simione's IRO reviews of SouthernCare's operations only
occurred as part of a settlement of claims in Rice stemming from conduct
identical to that Willis challenges here. See Rice, No. 2:05-cv-873 (N.D.
Ala. 2005), doe. 43. Put differently, Simione reviewed SouthernCare
with an eye to whether SouthernCare was illegally billing Medicaid for
hospice patients -- the factual core of Willis' claims.
Compare id., with
doe. 1. No logical leap is needed to conclude that information in the IRO
review materials is relevant and likely to lead to the discovery of
admissible evidence.
See Fed. R. Civ. P. 26(b)(1). Nor is any leap
8
Exposing sensitive information to a party who also is a competitor, of course, poses
privacy concerns not addressed by the protective order, but no one suggests Willis is a
competitor of either Simione or SouthernCare.
As discussed infra, many of the subpoena's requests are overbroad and thus pose
an undue burden on Simione. By modifying the scope of the requests pursuant to
Rule 45(d)(3)(B) & (C), however, the Court can preserve the subpoena's legitimate
components. It is those remaining bits that are relevant and that weigh heavily
when balanced against Simione and SouthernCare's privacy interests as shielded by
the protective order.
12
necessary to conclude that Willis needs the information sought since no
other entity, SouthernCare included, has investigated SouthernCare's
hospice billing practices in depth over a period of five years and produced
detailed analyses of the same. See In re Domestic Drywall, 300 F.R.D. at
243-44 (plaintiffs showed substantial need that could not otherwise be
met without undue hardship for research firm's reports on drywall
industry pricing because (1) firm was only source for the reports, and (2)
the reports contained highly relevant information). On balance, then,
Willis' need for the IRO reports, given their relevancy and the protective
order's mitigation of privacy concerns' 0 (again, assuming it applies to
10
Simione also argues that "there is a public interest in maintaining the integrity of
Simione's work product . . . because as an IRO, Simione is charged with the
responsibility of promoting compliance with statutes, regulations, and written
directives of federal health care programs." Doc. 109 at 5. It's true that courts have,
at times, limited discovery absent a formal privilege when disclosure implicates a
"public" interest. See, e.g., Apicella v. McNeil Labs., Inc., 66 F.R.D. 78, 83 (E.D.N.Y.
1975) (policy, not privilege, of protecting news reporter's sources sometimes warrants
discovery exclusions). But here, particularly given the preexisting protective order,
no such interest is furthered by quashing Willis' subpoena.
That is not to say that there is no public interest in IROs performing competently.
They are, after all, tasked by OIG with monitoring compliance with federal law.
Assume too that public disclosure of Simione's confidential business information
would undermine its ability to operate effectively as an IRO (Simione offers only
conclusory assertions to that effect). It nevertheless remains the case that the
protective order exists precisely to counter those concerns and facilitate a full
exchange of information.
In the same breath as it raises the specter of public interest harm, Simione
cautions that "if relators could drag non-party IROs into litigation and obtain their
13
PC
Simione), outweighs Simione's and SouthernCare's right to keep their
allegedly confidential commercial information totally private.
The "Public Citizen" 1' cases Simione and SouthernCare lean on so
heavily do not suggest a different result. Public Citizen I held that IRO
reports made pursuant to a CIA are commercial and confidential for
purposes of the Freedom of Information Act (FOIA). 975 F. Supp. 2d at
117 ("[T]he Court finds that information pertaining to the IRO Reports,
responses, and corrective action taken in response to the IRO Reports
were properly withheld under [the confidential commercial information]
Exemption. . . ."). At best, that holding brings portions of Willis'
subpoena within Rule 45(d)(3)(B)(i)'s "confidential commercial" ambit
and so permits, but does not require, quashing or modification.
Id.
("[T]he court . . . may, on motion, quash or modify the subpoena if it
files so easily, the result would be to incentivize relator fishing expeditions." Doe.
109 at 7. That rides a little too high in the saddle because (1) the same could be said
for any subpoena directed to a non-party auditor, which can't possibly generate a
realistic rule unless a complete ban on Rule 45 in the outside-auditor context is
desired, and (2) much of the information Willis seeks is highly relevant to his claims,
so the subpoena is not a fishing expedition (at least after pruning to eliminate undue
burden, as discussed infra).
" Pub. Citizen v. U.S Dep't of Health and Human Servs., 66 F. Supp. 3d 196 (D.D.C.
2014) ("Public Citizen II"); Pub. Citizen v. U.S Dep't of Health and Human Servs.,
975 F. Supp. 2d 81 (D.D.C. 2013) ("Public Citizen I").
14
requires . . . disclosing trade secrets . . . or confidential . . . commercial
information. . .
As Willis correctly notes (doe. 114 at 10 n. 7), FOIA determinations
and decisions to quash a subpoena are two different analytical animals
driven by different considerations.
Congress enacted the FOIA as a means "to open agency action to
the light of public scrutiny." Am. Civil Liberties Union v. U.S.
Dep't of Justice, 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Dep't of Air
Force v. Rose, 425 U.S. 352 ) 361 (1976)). As the Supreme Court has
"consistently recognized II ] the basic objective of the Act is
disclosure." Chrysler Corp. v. Brown, 441 U.S. 281, 290 (1979).
Public Citizen I, 975 F. Supp. 2d at 93. Some categories of information,
like confidential commercial information, however, are exempt from
FOTA disclosure.
See, e.g., id. (evaluating whether IRO reports
confidential commercial information for purposes of 5 U.S.C. § 552(b)(4)
and thus exempt from disclosure). Hence, in the FOIA world, a
document, or portion of a document, is either subject to disclosure or
exempt -- there's no middle ground.
Whether to quash a subpoena under Rule 45, in contrast, is not so
black and white. Some circumstances require a court to quash. See Fed.
R. Civ. P. 45(d)(3)(A) ("When Required"). But others merely permit
quashing or modification, an option foreign to FOIA. See id. at (d)(3)(B)
15
("When Permitted").
Indeed, Rule 45(d)(3)(B)(i)' 2 expressly
contemplates that subpoenas seeking confidential commercial
information (which FOIA exempts from disclosure) may be quashed or
not (thus potentially exposing such information to the public), or be
modified to limit the impact of disclosure. Moreover, if the requesting
party "shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and ensures that the
subpoenaed person will be reasonably compensated," courts can order
production "under specified conditions." Fed. R. Civ. P. 45(d)(3)(C)
(emphasis added).
Which path a court takes depends on an analysis absent from FOIA
-- whether the need for disclosure outweighs a claim to privacy, see
Festus & Helen, 432 F. Supp. 2d at 1380, and, in the case of specified
conditions, whether the serving party satisfies Rule 45(d)(3)(C)(i) & (ii).
Put differently, for subpoenas, the presence of confidential commercial
12
Rule 26(c), by allowing protective orders that stop short of forbidding disclosure of
confidential commercial information, also highlights how FOIA analyses don't help
decide whether to quash a subpoena (though they may aid in evaluating whether
information is commercial or confidential). See Fed. R. Civ. P. 26(c)(1)(G) (courts
may issue orders "requiring that a trade secret or other confidential research,
development, or commercial information. . . be revealed only in a specified way," as
opposed to an outright ban on disclosure).
16
information counsels caution and concern for the disclosing party's
business interests, but it does not compel quashing as in FOIA. So while
Public Citizen I may persuade that IRO reports are confidential and
commercial, because of FOIA's rigid disclose-don't disclose scheme, it
does not help to decide whether to quash Willis' subpoena.' 3
Balancing Simione and SouthernCare's privacy interests against
Willis' need for disclosure, on the other hand, does. As discussed above,
the protective order already in place (doe. 105) adequately accounts for
those interests while permitting disclosure of relevant information.
Because (1) Simione will be reasonably compensated for its compliance
costs (see below), and (2) Willis has shown a substantial need for some
(but not all, see below) subpoenaed materials that cannot be met without
undue hardship, the Court rejects Simione and SouthernCare's trade
secrets/confidential commercial information objections to Willis'
subpoena, and instead specifies that any production Simione makes in
response to the subpoena is subject to the current protective order (doe.
105). See Fed. R. Civ. P. 45(d)(3)(C) (courts may "instead of modifying or
13
SouthernCare's contention that "once the determination is made that the
documents at issue are both commercial and confidential, they cannot be disclosed,"
is, as noted, belied by the language of Rules 45 and 26, both of which allow for
disclosure of confidential commercial information.
17
quashing a subpoena [that falls within 45(d)(3)(B)], order. . . production
under specified conditions"); Festus, 432 F. Supp. 2d at 1380 (finding
that trade secrets and confidentiality concerns did not merit quashing
and instead compelling discovery subject to a protective order).
C. Simione As Unretained Expert
Simione also contends that Willis' subpoena is a backdoor attempt
to procure Simione's expert analysis of SouthernCare's operations
without compensation.'4 See doc. 109 at 7-9. To the contrary, says
Willis, "Simione is subpoenaed as a fact witness" because the documents
sought "reflect critical facts that are in dispute in this case, including
whether SouthernCare was admitting ineligible patients, whether
SouthernCare had corporate knowledge of its continued practice of
submitting false claims to the government, and whether SouthernCare
was taking steps to conceal that fact from the Government." Doc. 114 at
12. Even if that were not the case, Willis argues, "factors applied by
courts in considering a motion to quash pursuant to 45(d)(3)(B)(ii) weigh
heavily in favor of denying the motion to quash." Id.
14
SouthernCare makes a virtually identical argument, see doc. 110-1 at 10-12, but as
discussed above, it has no standing to object on an unretained expert basis. The
Court therefore only considers Simione's version of this Rule 45(d)(3)(B)(ii)
argument.
IN
"Under Federal Rule of Civil Procedure 45([d])(3)(B)(ii), 15 a district
court is permitted -- but not required -- to quash or modify a subpoena if
it 'requires disclosure of an unretained expert's opinion or information
not describing specific events or occurrences in dispute and resulting
from the expert's study not made at the request of any party' to the
litigation." In re Pub. Offering PLE Antitrust Litig., 233 F.R.D. 70, 76
(D. Mass. 2006) (footnote added). "The advisory committee note clarifies
that the [decision whether to quash under Rule 45(d)(3)(B)(ii)] 'should be
informed by. . . the degree to which the expert is being called because of
his knowledge of facts relevant to the case rather than in order to give
opinion testimony. . . ." Glaxosmithkline Consumer Healthcare, L.P. v.
Merix Pharm. Corp., 2007 WL 1051759 at * 2 (D. Utah Apr. 2, 2007).
In this context, "facts" means "events that the non-party allegedly
witnessed, not information resulting from [its] study as an expert." Id.
at * 3. Such "factual information . . . is not shielded by Rule
45([d])(3)(B)(ii)."
Public Offering, 233 F.R.D. at 77 (citing Statutory
Comm. of Unsecured Creditors v. Motorola, Inc., 218 F.R.D. 325, 327
(D.D.C. 2003) ("When.. . a party seeks only factual information relating
15
The 2013 Amendments to the Federal Rules moved the material in Rule 45(c)(3)
to what is now (d)(3). The substance of the provision remains the same.
19
to an issue in the case, a witness cannot demand any greater
compensation than any other witness merely because he or she can claim
some expertise in a discipline or calling.")); see also Arkwright Mut. Ins.
v. Nat'l Union Fire Ins. Co., 148 F.R.D. 552, 557 (S.D. W. Va. 1993)
("Discovery of . . . purely factual information does not comprise the
'intellectual property' of [a witness] and is therefore not protected by
Rule 45([d])(3)(B)(ii).") (quoting Fed. R. Civ. P. 45 advisory committee's
note to 1991 amendment).
Some of what Willis seeks crosses the line from fact "to opinion or
information not describing specific events or occurrences in dispute and
resulting from" Simione's evaluations of SouthernCare's Medicaid
compliance and overall operations. Fed. R. Civ. P. 45(d)(3)(B)(ii).
In re
Domestic Drywall illustrates why. Plaintiffs there alleged that drywall
manufacturers engaged in a price fixing conspiracy, in part by
communicating with each other (unbeknownst to third-party TRG) via
industry research reports published by TRG. 300 F.R.D. at 239-40.
Unsurprisingly, plaintiffs subpoenaed the reports and "the investigative
files upon which [they] were based." Id. at 239. TRG moved to quash,
20
arguing, as Simione does here, that forced production would result in
disclosure of an unretained expert's opinion. 16 Id. at 241.
Although the reports were highly relevant, id. at 240-41, the court
found portions protected because they contained "company-specific
analysis," disclosure of which would "would work a clear and serious
injury on TRG" by, in essence, forcing it to give away its intellectual
property for free. In re Domestic Drywall, 300 F.R.D. at 242. In addition
to the analyses, however, the reports also contained "statements from
sources within the industry." Id. at 241. And those, said the court, were
"clearly of a factual nature" and thus fell "outside the protections of Rule
45(d)(3)(B)(ii)." Id. at 242.
When applied to Simione's IRO reports, that dividing line -- factual
statements unprotected, analyses covered -- results in limited, though
not all-encompassing protection. Those portions of the reports that
reflect Simione's analysis of SouthernCare's documents, operations, or
hospice billing practices qualify as expert opinion that, since Willis has
16
TRG also argued that its reports contained trade secrets exempt from disclosure.
In re Domestic Drywall, 300 F.R.D. at 243. But that court, like this one, found that a
previously entered protective order adequately assuaged TRG's confidentiality
concerns while permitting disclosure of materials for which plaintiffs showed a
substantial need. Id. at 252.
21
not paid for it,' 7 is unretained and protected by Rule 4518 For instance, a
section detailing why Simione concludes that SouthernCare illegally (or
not) billed Medicare for hospice benefits for a particular patient would
qualify as an expert opinion. Cf In re Domestic Drywall, 300 F.R.D. at
243 (pricing report statement that a manufacturer had "a history of
notoriously little pricing discipline but has [recently] exhibited greater
pricing discipline in the past 6-12 months" qualified as expert analysis
under 45(d) (3) (B) (ii)) (quotes omitted).
Recitation of the facts underlying a hospice billing conclusion, on
the other hand, does not. More specifically, the SouthernCare
documents Simione used to evaluate hospice billing practices -- e.g.,
patient records, and SouthernCare's policies and procedures -themselves are not expert opinions.
See id. at 244 (factual information
17
Willis attempts to argue that Simione cannot qualify as "unretained" since
SouthernCare already paid it for its IRO work. Doe. 114 at 13. That's clever, but
incorrect. The term refers to whether the requesting party (Willis) retained the
expert, not whether the expert has ever been paid for the particular opinion sought.
See Walker v. Blitz USA, Inc., 2008 WL 5210660 at * 4 (N.D. W. Va. Dec. 12, 2008)
("Whether an expert is retained or unretained is determined primarily by whether
the expert is required to provide a written report pursuant to Federal Rule of Civil
Procedure 26(a)(2)."); Fed. R. Civ. P 26(a)(2)(A) & (B) (a party must list witnesses
they intend to use at trial and those expert witnesses retained by that party must
provide written reports summarizing their testimony and other information).
18 The parties' descriptions of the reports are vague and no copy of a report is before
the Court for review. The Court thus cannot provide specific guidance on which
portions of particular documents are subject to Rule 45(d)(3)(B)(ii)'s protections.
22
on drywall manufacturer's pricing history not protected). They may
have formed the factual basis for Simione's protected expert conclusions,
but their revelation would not encroach on the service Simione provides
its clients, or force a taking of Simione's intellectual property without
compensation. See Fed. R. Civ. P. 45(d) advisory committee's note to
1991 Amendments.'9 Indeed, the factual, documentary bases for
Simione's expert conclusions about SouthernCare's hospice operations
came from SouthernCare, not Simione. The protections Rule
45(d)(3)(B)(ii) provides to Simione's analyses in the reports therefore do
not apply to the facts they contain.
That is not the end of "unretained expert" analysis though. As
with trade secrets, Rule 45 only states that courts "may" modify or
19
The committee noted that:
Clause ([d])(3) (B) (ii) provides appropriate protection for the intellectual
property of the non-party witness; it does not apply to the expert retained by a
party, whose information is subject to the provisions of Rule 26(b)(4). A
growing problem has been the use of subpoenas to compel the giving of
evidence and information by unretained experts. Experts are not exempt from
the duty to give evidence, even if they cannot be compelled to prepare
themselves to give effective testimony, e.g., Carter-Wallace, Inc. v. Otte, 474
F.2d 529 (2d Cir. 1972), but compulsion to give evidence may threaten the
intellectual property of experts denied the opportunity to bargain for the value
of their services. See generally Maurer, Compelling the Expert Witness:
Fairness and Utility Under the Federal Rules of Civil Procedure, 19 GA.L.REV.
71 (1984).
Fed. R. Civ. P. 45(d) advisory committee's note to 1991 amendments.
23
M
quash subpoenas that seek the opinion of an unretained expert, Fed. R.
Civ. P. 45(d)(3)(13)(ii), not that they "must." Id. at (d)(3)(A). Even when,
as here, a subpoena falls partially within (B)(ii)'s ambit, a court can allow
production under specified conditions if the requesting party
demonstrates substantial need "that cannot otherwise be met without
undue hardship" and ensures reasonable compensation. Id. at (d)(3)(C).
As discussed above, Willis has demonstrated substantial need for
the IRO reports the subpoena seeks; the annual analysis of
SouthernCare's hospice billing practices that Simione performed from
2009-2013 exists nowhere else and is highly relevant to the hospicerelated claims Willis asserts. Since Willis will pay reasonable
compensation (see below), Simione cannot rely on Rule 45's unretained
expert provision to quash the subpoena. Instead, the Court specifies that
it must, subject to the already-entered protective order (doc. 105),
produce the reports Willis seeks.
24
D. Undue Burden
In its last substantial objection, 2° Simione claims that the subpoena
imposes an undue burden that requires quashing. Doc. 109 at 10 (citing
Fed. R. Civ. P. 45(d)(3)(A)(iv)). Willis disagrees, contending that the
subpoena's limited time scope, and "specific categories of documents
requested" ameliorate any burden on Simione. Doe. 114 at 15. What's
more, says Willis, Simione bears the burden of showing undue burden,
yet offers nothing more than "[v]ague averments" rather than "actual
evidence about burden." Id.
Once again, In re Domestic Drywall provides cogent guidance.
To determine whether a subpoena imposes an undue burden, [a]
court must consider "(1) [the] relevance of the information
20 Simione includes a "throw-away" argument that the subpoena requires the
disclosure of "protected health information of patients" and other privileged
information and thus must be quashed. Doc. 109 at 14-15. Courts indeed cannot
allow subpoenas that seek protected or privileged information without adequately
protecting affected entities unless an exception or waiver applies. Fed. R. Civ. P.
45(d)(3)(A)(iii). But here patient health information is protected. See doe. 105 at 1
(protective order addressing production of patient information). Beyond that,
Simione offers no specifics. The Court can't guess at what might be privileged, so
that argument is unavailing.
SouthernCare includes a throw-away of its own by arguing that Willis seeks to
"[mis]use the IRO report[s] and other documents created pursuant to the CIA to
identify potential overpayments and use those to prosecute [his] false claims case."
Doe. 110-1 at 8. But SouthernCare does not explain how such "misuse" violates Rule
45 or is otherwise prohibited by privilege, statute, or any other authority. It merely
invites the Court, on the basis of an unspecified "public policy," to quash Willis'
subpoena. That dog just won't hunt and so the Court declines the invitation.
25
requested; (2) the need of the party for the documents; (3) the
breadth of the document request; (4) the time period covered by the
request; (5) the particularity with which the party describes the
requested documents; and (6) the burden imposed." Wiwa v. Royal
Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); see also
United States v. Int'l Bus. Mach. Corp., 83 F.R.D. 97, 104 (S.D.N.Y.
1979) (enumerating identical factors).
300 F.R.D. at 252.
Although some of the subpoena's requests seek relevant
information, many suffer from serious flaws . 2 ' Take request no. 1, which
seeks Simione's "entire SouthernCare, Inc. file(s)." Doc. 107-1 at 5.
Classically overbroad, see Alig-Mielcarek v. Jackson, 286 F.R.D. 521, 527
(N.D. Ga. 2012) ("Plaintiffs demands are like a bulldozer that levels an
entire hill in the hopes of finding some specks of gold."), nothing about
the request limits it to documents relevant to Willis' claims or
SouthernCare ' s defenses. Sensitive documents discussing
SouthernCare's executive compensation, for example, a matter wholly
irrelevant to this case yet one that Simione could conceivably have
documents regarding, would fall within the subpoena as currently
written. So would documents covering a wide swath of SouthernCare's
21
As Willis correctly argues, Simione bears the burden of showing that the subpoena
imposes an undue burden. See In re Domestic Drywall, 300 F.R.D. at 239. Simione
met that burden by pointing out to the Court the subpoena's overly broad requests
and illuminating why some reach for irrelevant information. See Zorn v. Principal
Life Ins. Co., 2010 WL 3282982 at * 2 (S.D. Ga. Aug. 18, 2010).
26
operations irrelevant to this case (recall that Simione performed "wholesystem reviews" of SouthernCare, doe. 110-1 at 11, not just hospice
billing practices reviews). Without some limiting component related to
the claims or defenses in this case, request no. 1 cannot stand.
Requests no. 3, 5, and 6 suffer from similar flaws. Number 3,
which asks for all Simione-SouthernCare correspondence, captures not
only hospice billing related communications, but also potentially emails
about who's bringing doughnuts to a particular meeting, not to mention
myriad other pointless topics that will never lead to admissible evidence.
Numbers 5 & 6 seek drafts and exhibits attached to any reports
responsive to request no. 4, but Willis has never articulated why he needs
those documents. See Fed. R. Civ. P. 45(d)(3)(C)(i) (subpoenaing party
must show substantial need for documents covered by Rule 45(d)(3)(B) in
order for courts to impose specified conditions of production). Put
differently, these requests all to some extent seek irrelevant information,
are overbroad, and lack the particularity needed to survive a motion to
quash. See In re Domestic Drywall, 300 F.R.D. at 252.
Allowing requests no. 2 and 7 to survive without any modification
also would impose an undue burden. Willis has shown no need for "all
27
documents reflecting . . . any review . . . of SouthernCare," (request no.
2), and, even if he had, request no. 2 suffers from vagueness (wiggle
words like "reflect" and "relate" often impart that quality on discovery
requests) that independently justifies quashing. See, e.g., Fernanders v.
Mich. Dep't of Military and Veterans Affairs, 2013 WL 1945985 at * 1
(E.D. Mich. May 9, 2013) (court found impermissibly vague a request for
production that sought "all documents regarding, reflecting, concerning,
pertaining to or evidencing any action. . . by Defendant with respect to
an employee being suspended"). Request no. 7, which seeks "any copies
of SouthernCare . . . documents," is overbroad in the same manner as
request no. 1 (again, it contains no tie-in to Willis' claims), except that
any such documents referenced in the IRO reports or that provide the
factual basis for those reports must be produced (see request no. 4
discussion below).
Request no. 4 is different. 22 As IRO, Simione "assess[ed] and
evaluat[ed] the eligibility of [SouthernCare] hospice patients for the
hospice benefit," and in doing so its IRO reports speak directly to Willis'
22
It seeks "any reports . . . or other documents reflecting or memorializing the
results of any review or a[ud]it of any kind. . . [Simione] performed of SouthernCare,
Inc. from January 1, 2009 until the present." Doc. 107-1 at 6.
1!
claims. Doe. 114-1 at 9. Indeed, Simione only served as IRO because
SouthernCare settled claims similar to Willis', see Rice, doe. 43 (N.D. Ala.
Jan. 15, 2009), and to ensure that SouthernCare did not commit the very
violations Willis contends occurred.
See doe. 110-1 at 7 (Simione's
"primary role [was] to review a sample of the claims [SouthernCarell
submit[ed] to Federal healthcare programs, and, as necessary, a system's
review of the organization's process for compiling and submitting claims,
including coding and medical necessity"). Unlike requests no. 1 and 3,
then, no. 4 seeks highly relevant documents to the extent the reports it
asks for concern reviews related to SouthernCare's hospice billing
practices. See In re Domestic Drywall, 300 F.R.D. at 252. Any reports
reflecting reviews Simione conducted that are not relevant 23 to Willis'
claims need not be produced.
Other factors for evaluating undue burden also suggest that
request no. 4 presents no undue burden. The time period covered by the
request corresponds to the time period during which Willis alleges
violations occurred, see doe. 50 at 6, and doesn't include conduct covered
23
Simione must remember though that relevancy is a broad concept, and it should
not withhold reviews and reports that arguably speak to a parties' claim or defense.
Fed. R. Civ. P. 26(b)(1). Put differently, Simione should not take the invitation to
withhold irrelevant reviews as one to obstruct Willis' legitimate quest for
discoverable material.
29
by SouthernCare's settlement in Rice. And even though Simione's nonparty status is a thumb on the scale in favor of finding undue burden,
24
the protective order's shield and the reasonable compensation Willis will
pay for the reports' production eliminates any burden Simione faces. For
request no. 4, then, all that remains is relevant evidence to which Willis
and the public have a right absent a good reason for non-disclosure. See
Doe No. 1 v. United States, 749 F.3d 999 2 1009 (11th Cir. 2014)
(privileges and other doctrines that limit disclosure of relevant materials
"contravene the fundamental principle that the public has a right to
every man's evidence"). And, as discussed above, every reason Simione
offers falls short.
E. Reasonable Compensation
The Court can only specify that Simione produce its IRO reports if
it ensures that Willis pays reasonable compensation. Fed. R. Civ. P.
45(d)(3)(C)(ii). More than that, Rule 45 requires the Court to enforce the
24
See, e.g., Watts v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007) ("The Rule 45 'undue
burden' standard requires district courts supervising discovery to be generally
sensitive to the costs imposed on third parties."); Whitlow v. Martin, 2009 WL
3381013 * 4 (C.D. Iii. 2009) ("Non-party status is a significant factor to be considered
in determining whether the burden imposed by a subpoena is undue."); Cohen v. City
of New York, 255 F.R.D. 110, 117 (S.D.N.Y. 2008) ("[S]pecial weight [should be given]
to the burden on non-parties of producing documents to parties involved in
litigation.").
30
-
duty serving parties and attorneys have to spare the subpoenaed party
"undue burden or expense." Id. at (d)(1). 25
To that end, "the drafters of Rule 45([d])(3)(B) sought to prevent
the uncompensated taking of intellectual property."
Klay v. All
Defendants, 425 F.3d 977, 984 (11th Cir. 2005). "[R]easonable
compensation" for such takings "[can] include[] more than inspection
and copying costs," though "it need not always be so."
Id. at 983.
Broadly speaking, "compensation is required when compliance with a
subpoena causes an actual property loss." Id. at 984.
"The measure of compensation owed . . . depends on the nature of
the property." Id. at 985. Most of the time, "one party's gain directly
corresponds to another party's loss." Id. But not always. If:
25
Courts also must "impose an appropriate sanction" on the serving party when a
subpoena imposes undue burden or expense. Fed. R. Civ. P. 45(d)(1). Although the
Court struck all but one of Willis' subpoena's requests because they impose an undue
burden, it declines to impose a sanction beyond the reasonable compensation Willis
must pay as part of the Court's specified conditions because the surviving request
comprises the subpoena's substantive core. See Legal Voice v. Stormans Inc., 738
F.3d 1178, 1185 (9th Cir. 2013) ("[W]hile failure narrowly to tailor a subpoena may
be a ground for sanctions, the district court need not impose sanctions every time it
finds a subpoena overbroad. . . ."); id. (sanctions under Rule 45(d)(1) were
inappropriate where motion to compel was only partially successful because (1)
subpoena was not so facially overbroad, and (2) plaintiffs did not act in bad faith or
with an improper motive); McMullen v. GEICO Indem. Co., 2015 WL 2226537 at * 9
(S.D. Fla. May 13, 2015) (courts have "wide latitude" in determining appropriate
sanctions under Rule 45(d)(1)).
31
one party's use of the property does not necessarily diminish the
use and enjoyment of others. . . compensation for the. . . use of the
property will ordinarily be limited to the marginal cost incurred by
that use. This limitation is proper even if the taking deprives the
owner of the opportunity to sell the use of its property at a desired
price, because the one immutable principle in the law of just
compensation . . . is that the value to the taker is not to be
considered, only loss to the owner is to be valued.
Id. (quotes and cites omitted).
Compensation for "confidential information," like the American
Medical Association's statistical reports in Klay and Simione's IRO
reports on SouthernCare, is measured by "the loss to the owner of the
property."
Id.
"If the enforcement of a subpoena under Rule
45([d])(3)(B) causes no loss, then the amount of compensation reasonably
owed will be zero. If the loss to the owner of the information is
substantial, then so will be the amount of compensation even if the gain
to the taker of the information is slight." Id.
As in Klay, the production the Court today orders is "strictly
limited" by a preexisting protective order (doc. 105) that now applies to
Simione.
Klay, 425 F.3d at 985. "According to the terms of the
protective order," id., the IRO reports can only be disclosed to Willis, his
counsel, and any outside experts he hires to review the reports. Doc. 105
at 2-3. Too, use of the reports is limited to this litigation. Id.
32
"With these strict limitations on the use of the [IRO reports],
[Simione will] not suffer a loss in the commercial value of its property."
Klay, 425 F.3d at 986. The confidential nature of the reports -- which
the Court simply assumes for purposes of addressing this motion -endures after disclosure thanks to the protective order.
Id. Nor can
Simione's competitors access the reports and harm its competitive
advantage by discovering its "proprietary trade secrets, [and]
confidential business information." Doc. 109 at 3. Disclosure also will
not "deprive [Simione] of the opportunity to sell its intellectual property
at its market price to any willing buyers . . . because [Willis is] not
allowed to use th[e reports] for nonlitigation purposes."
May, 425 F.3d
at 986. Icing the no-compensation cake, Simione presents nothing more
than conclusory assertions that "the value of its intellectual property
would be harmed by compliance with the order of production."
Id.; see
also In re Domestic Drywall, 300 F.R.D. at 239 (the subpoenaed nonparty
"must show that disclosure will cause it a clearly defined and serious
injury").
Compensation though is more than what in essence are licensing
fees for Simione's expert opinion. When courts specify conditions of
33
production for non-parties, reasonable compensation typically also
includes payment for out-of-pocket production expenses. See Fed. R. Civ.
P. 45(d)(3)(C)(ii); Cohen v. City of New York,
255 F.R.D. 110, 126
(S.D.N.Y. 2008) (reasonable compensation includes payment for "time
expended and expenses incurred in complying with the subpoenas").
Here, Simione's production of the IRO reports and any SouthernCare
documents the reports mention or rely on will require time and resources
to (1) identify and copy (whether electronically or on paper) the reports
and documents; (2) review the documents and reports for any privileged
material; 26 and (3) distribute the final production to Willis. Willis
therefore must provide Simione with reasonable compensation for these
efforts, including attorney's fees. 27 See In re Domestic Drywall, 300
26
"Privileged" in this context does not refer to the already-rejected argument
Simione makes that the documents sought contain privileged patient information.
They almost certainly do. But the protective order guards against misuse of that
information and so neuters any objection on that basis. A privilege review of the IRO
reports and documents instead refers to possible attorney-client and other privilege
concerns.
27
The Court leaves the details of what Willis will pay Simione to discussions
between counsel. If no agreement can be reached within 14 days of the date this
Order is served, Simione is free to move for payment of the above-outlined production
expenses. Any such motion, of course, should be accompanied by evidentiary support
for the compensation requested.
See Kronos, 694 F.3d at 372 (reasonable
compensation inquiry "requires at least some evidence to support a party's assertion
about what the actual costs of compliance will be").
34
13
F.R.D. at 250 (attorney's fees a component of "reasonable compensation"
under Rule 45(d)(3)(C)(ii)); see also Fed. R. Civ. P. 45(d)(2)(B)(ii) (court
orders granting motions to compel must protect non-parties forced to
produce documents from "significant expense resulting from
compliance"); EEOC v. Kronos Inc., 694 F.3d 351, 372 (3d Cir. 2012)
("We also adopt the general proposition that a non-party should not be
expected to bear as great an expense as a party when complying with a
subpoena, a principle which finds support in the fact that Rule 45
distinguishes between reimbursement for parties and non-parties.").
F. Next Steps
After considering and rejecting the majority of Simione and
SouthernCare's objections to Willis' subpoena, the Court ORDERS the
following: in response to request no. 4, Simione must disclose the IRO
reports it produced from 2009 to 2013 pursuant to SouthernCare's CIA
with the 01G. It must also disclose all SouthernCare documents that the
reports mention or whose facts underlie the reports' analyses. Any
35
e
reports reflecting reviews Simione conducted that are not relevant to
Willis' claims need not be produced. 28
The protective order already entered in this case (doe. 105) governs
those productions. 29 The documents and reports Simione produces
pursuant to this Order may only be disclosed to Willis, his attorneys, and
any testifying or consultative experts that sign the acknowledgment form
attached to the protective order. See doe. 105 at 9. Disclosure to other
non-parties is strictly forbidden and Willis may only use the disclosed
documents and reports for purposes of this litigation. 30 Id. at 2. Finally,
subpoena requests no. 1-3 and 5-7, for a variety of reasons, impose an
undue burden on Simione. The Court therefore excises those portions of
the subpoena. Fed. R. Civ. P. 45(d)(3)(A)(iii) (subpoenas that impose an
undue burden "must" be quashed or modified).
28
Again, relevancy is a broad concept, and Simione must take care not to draw too
tight a circle around what it believes satisfies Rule 26.
29
If Simione believes the current order lacks sufficient protection for its confidential
commercial information and trade secrets, it may propose a revised protective order.
But this Order's overarching conclusion remains the same: any interests Simione or
SouthernCare have in nondisclosure can be adequately addressed by a protective
order. If the current one doesn't satisfy, no reason exists (and Simione certainly
hasn't provided one) that precludes a revised version from doing so.
30
All other provisions of the protective order also apply, but those listed above
represent the order's protective core.
36
Simione has 45 days from the date this Order is served to produce
the IRO reports and associated documents. Within 14 days of the date
this Order is served, Willis and Simione shall confer about the reasonable
compensation Willis must pay. 3 ' If they cannot in good faith arrive at an
agreement, Simione may then move the Court to order compensation. It
has 10 days after the conclusion of failed negotiations with Willis (hence,
24 days after the date this Order is served) to so move.
IV. CONCLUSION
Willis' subpoena in many respects imposes an undue burden on a
non-party and so must be quashed or modified. Fed. R. Civ. P.
45(d)(3)(A)(iv). But its substantive core survives. Accordingly, the Court
GRANTS IN PART and DENIES IN PART Simione's and
SouthernCare's motions to quash. Does. 109 & 110.
SO ORDERED, this day of September, 2015.
~~~ 2;1~
UNITED SFATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
The Court cautions against "expense abuse" here. If most if not all of the
documents sought are in .pdf or equivalent form, then the producing party is entitled
to reasonable digital copying costs only, not scan-in costs.
'
37
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