Duffy v. Lawrence Memorial Hospital

Filing 274

MEMORANDUM AND ORDER - Relator's Motion to Compel Production of Responses to Relator's Fifth Requests for Production to Defendant (ECF No. 239) is GRANTED. Defendant's objections to these discovery requests are overruled and, within ten (10) days of the date of this order, Defendant shall provide supplemental responses to Request for Production Nos. 69, 70, 72, and 73 without objections. Signed by Magistrate Judge Teresa J. James on 11/22/2017. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MEGEN DUFFY,
Relator/Plaintiff,
v.
LAWRENCE MEMORIAL HOSPITAL,
Defendant.

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Case No. 2:14-cv-2256-SAC-TJJ

MEMORANDUM AND ORDER
This matter is before the Court on Relator’s1 Motion to Compel Production of Responses
to Relator’s Fifth Requests for Production to Defendant (ECF No. 239). Pursuant to Federal
Rule of Civil Procedure 37 and D. Kan. Rules 37.1 and 37.2, Plaintiff asks the Court to order
Defendant Lawrence Memorial Hospital to withdraw its objections to RFP Nos. 69, 70, 72, and
73 and provide all responsive documents. Defendant opposes the motion. As set forth below,
Plaintiff’s motion is granted.
I.

Relevant Background
Plaintiff served her Fifth Request for Production of Documents on July 28, 2017.2 On

August 28, 2017, Defendant objected and responded to the RFPs.3 Plaintiff’s counsel sent a
golden rule letter on September 13, 2017, pointing out alleged deficiencies in Defendant’s
responses and improprieties with Defendant’s objections.4 The parties conferred by telephone on
1

Because the United States declined to intervene in this qui tam action, the Court will refer to
Relator as Plaintiff.
2

See ECF No. 214.

3

See ECF No. 229.

4

ECF No. 239-2.
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September 15, 2017 and exchanged letters following the telephone conference. On the day
Plaintiff filed the instant motion (which was also the deadline to do so), defense counsel sent an
email informing Plaintiff’s counsel that Defendant was withdrawing three objections to RFP No.
69. Two days after filing its response, Defendant served supplemental responses to the RFPs in
dispute, but the only difference is that Defendant omitted the three objections it had withdrawn to
RFP No. 69.
Based on the parties’ efforts, the Court finds they have complied with the requirements of
D. Kan. Rule 37.2. The motion is ripe and the Court is prepared to rule on the remaining
disputes in Plaintiff’s motion to compel.
II.

Summary of the Parties’ Arguments
Plaintiff challenges the propriety of Defendant’s objections to four document requests.

The issues are largely similar to those raised in earlier motions to compel, with one addition.
Defendant raises a new objection that three of the requests are overbroad because they seek
documents from 2007-2009. According to Defendant, Plaintiff’s allegations relate only to
Defendant’s activities since 2010, making Plaintiff entitled only to documents created in 2010
and later.
Plaintiff addresses Defendant’s overbreadth objection by pointing to language in the
Second Amended Complaint which alleges Defendant made false claims for Medicaid payments
beginning as early as 2007, thus justifying her request for documents as of that time.
III.

Whether the Discovery Sought is Relevant and Discoverable
Federal Rule of Civil Procedure 26(b)(1) sets out the general scope of discovery and

provides as follows:
Parties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and proportional to
2

the needs of the case, considering 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. Information within this scope of discovery need not
be admissible in evidence to be discoverable.5
Relevancy is to be “construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on” any party’s claim or defense.6
Information still “need not be admissible in evidence to be discoverable.”7 When the discovery
sought appears relevant, the party resisting discovery has the burden to establish the lack of
relevancy by demonstrating that the requested discovery (1) does not come within the scope of
relevancy as defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevancy that the
potential harm occasioned by discovery would outweigh the ordinary presumption in favor of
broad disclosure.8 Conversely, when the relevancy of the discovery request is not readily
apparent on its face, the party seeking the discovery has the burden to show the relevancy of the
request.9 Relevancy determinations are generally made on a case-by-case basis.10
In this action, the Court finds that the relevancy of the discovery called for by Plaintiff’s
Fifth Request for Production of Documents is apparent on its face. The requests relate directly to

5

Fed. R. Civ. P. 26(b)(1).

6

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

7

Fed. R. Civ. P. 26(b)(1).

8

Gen. Elec. Cap. Corp. v. Lear Corp., 215 F.R.D. 637, 640 (D. Kan. 2003).

9

McBride v. Medicalodges, Inc., 250 F.R.D 581, 586 (D. Kan. 2008).

10

Brecek & Young Advisors, Inc. v. Lloyds of London Syndicate, No. 09-cv-2516-JAR, 2011 WL
765882, at *3 (D. Kan. Feb. 25, 2011).
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Plaintiff’s allegations regarding Medicaid payments. Although Defendant protests that Plaintiff
has not alleged Defendant is liable to any state Medicaid agency, the Court previously
demonstrated the fallacy of this argument.11 The Court discusses below Defendant’s other
objections, but with respect to relevancy the Court overrules Defendant’s objections to RFP Nos.
72 and 73.12
IV.

Specific Discovery Requests
The Court considers the specific discovery requests and objections not previously

addressed.
A.

RFP No. 69

Request No. 69 seeks the following documents:
Attestations of Compliance with Section 6032 of the Federal Deficit Reduction
Act submitted by LMH to KanCare or any other Medicaid agency for the fiscal
years ending on September 30 of each of the years 2007, 2008, 2009, 2010, 2011,
2012, 2013, 2016, and 2017.13
Although Defendant originally asserted numerous objections to this request, it has
withdrawn all but its objection that the request is overbroad in that it seeks documents from
2007-2009, whereas Plaintiff’s allegations relate only to activities since 2010. Defendant’s
11

See ECF No. 156 at 8 (“[T]he Kansas state Medicaid agency is KanCare, Defendant is a
provider of Medicaid services in Kansas, Defendant certified to KanCare its compliance with the
Deficit Reduction Act, approximately 60% of every dollar Defendants receives from Medicaid is
federally funded, and . . . a ‘claim’ for False Claims Act purposes exists if the federal
government provides any portion of the money demanded.”).
12

Defendant also seeks to incorporate in its response the arguments it asserted in earlier briefs
based on Koch v. Koch Industries, Inc., 203 F.3d 1202 (10th Cir. 2000). See ECF Nos. 100,
119,146, 201. The Court has thoroughly addressed the arguments in its Memoranda and Orders
dated December 21, 2016 (ECF No. 118) and February 7, 2017 (ECF No. 133). Accordingly, to
the extent that Defendant relies on Koch, the Court rejects the argument as set forth in its earlier
rulings.
13

ECF No. 239-1 at 2.
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objection ignores the plain language of the Second Amended Complaint, including allegations
that “all Medicaid payments received by Defendant after March 2007 through at least 2015 were
based upon false material statements made by Defendant in order to get false claims paid by
Medicaid.”14 The quoted language follows several paragraphs of facts leading to this concluding
allegation. In addition, the prayer for relief states that some of the violations Plaintiff alleges
“begin[] as early as 2007.”15
In response to Defendant’s argument that 2007 is demonstrably too early because
Plaintiff has limited other requests to 2009 to the present, Plaintiff points out that allegations of
Medicare fraud begin in 2009, but the alleged improprieties related to Medicaid reach back to
2007. Plaintiff’s discovery requests differ depending on the program each addresses.
RFP No. 69 is not overbroad. The Court overrules Defendant’s objection.
B.

RFP No. 70

In RFP No. 70, Plaintiff seeks Emergency Department records for 18 to 27 sets of
specific patient records.16 Defendant originally objected that the request is unduly burdensome
and disproportionate to the needs of this case because of the estimated cost and time to redact the
records. Since then, it appears Defendant performed the redaction although at a lower cost than
it originally estimated.17 However, Defendant has not yet produced the responsive documents to
Plaintiff.18

14

ECF No. 18 ¶145.

15

Id. ¶177.

16

ECF No. 239-1 at 4.

17

See Affidavit of Michael Cole (ECF No. 249-1) ¶4 (“The [Lathrop Gage LLP] document
review team redacted patient names, Social Security Numbers, dates of birth, addresses, phone
5

Defendant cites no legal requirement for redaction, but on the basis of proportionality
asks the Court to require Plaintiff to share in its cost. As Plaintiff points out, the Court has
previously addressed and rejected Defendant’s cost-sharing request when Defendant chose to
redact documents it was under no obligation to redact.19 Similarly, the Court will not require
cost-sharing or -shifting with respect to documents responsive to RFP No. 70, and will direct
Defendant to produce the documents.
C.

RFP Nos. 72 and 73

In RFP Nos. 72 and 73, Plaintiff seeks documents showing the total number of claims
and the dollar amount of each claim submitted by Defendant to Medicaid for certain services for
fiscal years 2007 through 2018, plus the total amount of claims for each year.20 Defendant poses
the same objections to each request, including that the requests are duplicative of RFP No. 61
which sought documents showing the amount of Medicaid-related payments Defendant received
from 2009 to the present. The Court rejects this argument, as documents comprising claims
made and amounts requested by a health care provider clearly are not the same as documents
reflecting payment on those claims. Moreover, as Plaintiff notes, False Claims Act damages are

numbers, fax numbers, email addresses, and credit card information as well as similar
information for dependents or beneficiaries.”).
18

See ECF No. 263 (“Defendant reveals in its Opposition and in the Affidavit of Michael Cole
that it has completed redaction of all documents responsive to Request 70. Yet it has not
produced them to counsel for Relator.”).
19

See ECF No. 187 at 3 (“The Court determined the existing protective order contains the
provisions necessary under HIPAA to allow Defendant to produce the documents at issue
without redaction.”).
20

ECF No. 239-1 at 5-6.
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based in part on the number of claims a provider submits, regardless of whether the government
pays any of those claims.
The Court overrules Defendant’s objections to RFP Nos. 72 and 73.
D.

RFP No. 71

In her reply, Plaintiff asks the Court to reject new objections to RFP No. 71 that
Defendant asserted in its supplemental responses, a copy of which Plaintiff attaches to her
brief.21 The Court has reviewed the supplemental responses and does not see any objection to
RFP No. 71. If Defendant has asserted an objection at any time after its original response, such
objection is untimely and will be deemed waived.
VI.

Sanctions
Plaintiff’s motion urges the Court to order Defendant to withdraw its objections and

provide all responsive documents. Unlike in its earlier motions to compel, however, Plaintiff
does not seek an award of sanctions pursuant to Fed. R. Civ. P. 37. Rule 37(a)(5)(A) provides
that if a motion to compel is granted, the court must, after giving an opportunity to be heard,
require the responding party to pay the movant’s reasonable expenses and attorney’s fees
incurred in making the motion.22 Accordingly, no later than December 6, 2017, if Plaintiff
intends to seek sanctions, Plaintiff shall file a response setting forth the amount she requests,
along with an affidavit itemizing the expenses and attorney’s fees she incurred in bringing the
instant motion. Defendant shall have 14 days to file a response thereto. The Court will
thereafter enter an order.

21

ECF No. 263-2.
Fed. R. Civ. P. 37(a)(5)(A). The rule lists three exceptions, none of which the Court finds
apply here.
22

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IT IS HEREBY ORDERED that Relator’s Motion to Compel Production of Responses
to Relator’s Fifth Requests for Production to Defendant (ECF No. 239) is GRANTED.
Defendant’s objections to these discovery requests are overruled and, within ten (10) days of the
date of this order, Defendant shall provide supplemental responses to Request for Production
Nos. 69, 70, 72, and 73 without objections.
IT IS SO ORDERED.
Dated this 22nd day of November, 2017 at Kansas City, Kansas.

Teresa J. James
U.S. Magistrate Judge

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