Reese, et al v. Great West Casualty Company, et al
ORDER AND REASONS: IT IS ORDERED that the 68 Motion for Contempt, Sanction and Costs and to Compel is DENIED. IT IS FURTHER ORDERED that the 85 Emergency Motion for Protective Order is DENIED. Signed by Magistrate Judge Karen Wells Roby. (mp)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILBURT REESE, ET AL
GREAT WEST CASUALTY COMPANY,
SECTION: “L” (4)
Before the Court is Motion for Contempt, Sanctions and Cost, and to Compel (Rec.
doc. 68) and an Emergency Motion for Protective Order (R. Doc. 85) The motions are opposed
(Rec. doc. 70, 94). The matters were set with oral argument on July 24, 2019 (Rec. doc. 69) and
on September 4, 2019 (Rec. doc.96), respectively.
The claimants initiated this lawsuit as a result of a collision allegedly occurred with a driver
of an eighteen-wheeler who was attempting to make a lane change. As a result, the claimants seek
The discovery in this case made a shift to the defendants subpoenaing records and noticing
the deposition of the plaintiff’s treating physician Dr. Lonseth. According to the pleadings, on
May 21, 2019 the defendants issued a subpoena for the deposition of the Office/Billing
Administrator for Dr. Eric Lonseth and sought her appearance at 11:00am so as not to
inconvenience the Office/Billing Administrator at Lonseth Interventional Pain Center, 4213
Teuton Dr. in Metairie. Service of the notice was made on the receptionist, Tyra Bandi. Rec. doc.
The notice at issue sought the production of the following: (1) referral of Reese to Dr.
Lonseth; (2) billing in connection with Reese medical treatment; (3) records of examination and
treatment; (4) price setting for treatment of Reese and other patients; (5) evidence of payment
terms including collection at close of the lawsuit; and (6) information regarding payments received
for or from Reese. Rec. doc. 68. In addition to the above, the notice also sought the production of
prior deposition testimony of Dr. Lonseth, copies of the transcripts, list of his employees, copies
of contracts Lonseth had on his own behalf or Lonseth Interventional Pain Center (“Pain Center”)
with Total Medical Concepts and or MedPort or any other medical funding company. It also
sought the sources of funding of the Pain Center.
Darren Harper, the process server served an employee of the pain Center on June 3, 2019.
Rec. doc. 68-3, Exhibit 2. According to the affidavit, paralegal Stagg later spoke with a
representative in Dr. Lonseth’s call center who advised that she would try to contact the office and
when she did so and reported that the office was closed that day. Rec. doc. 68-5.
Believing that they properly noticed the deposition, counsel for the defendant conducted a
process verbal noting their efforts to notice the deposition for June 13, 2019 and the events that
occurred when they showed up for the deposition only to find a closed office. Rec. doc.68
Thereafter, the defendants filed the subject motion on July 3, 2019 seeking to compel the
attendance of the office administrator at a deposition and for her to produce records from Dr.
Lonseth’s office regarding: (1) referral of Reese to Dr. Lonseth; (2) billing in connection with
Reese medical treatment; (3) records of examination and treatment; (4) price setting for treatment
of Reese and other patients; (5) evidence of payment terms including collection at close of the
lawsuit; and (6) information regarding payments received for or from Reese. Rec. doc. 68. In
addition to the above, the notice also sought the production of prior deposition testimony of Dr.
Lonseth for 24 months, copies of the transcripts, list of his employees, copies of contracts Lonseth
had on his own behalf or Lonseth Interventional Pain Center with Total Medical Concepts and or
MedPort or any other medical funding company. It also sought the sources of funding of the Pain
Center. Medport is a factoring company that purchases account receivables secured by medical
Almost two weeks after the deposition date passed, counsel for Dr. Lonseth by letter dated
June 24, 2019 acknowledged receipt of the notice and (1) produced billing records for Rees and
Odds, (2) objected to the contents of the notice that go beyond the physician’s treating records
because the requests were neither relevant nor proportional, (3) objected to all other non-patient
related information as not proportional to the needs of the case and (4) objected to the production
of contracts because they were privileged and confidential and trade secret business information.
Rec. doc. 70-1. On July 24, 2019 counsel for Dr. Lonseth communicated by letter with the
defendant’s attorney advising that August 19, 2019 appeared to be the best day to reset the
The Court also heard oral argument on the motion on July 24, 2019. During the hearing
counsel for the defendants and counsel for Dr. Lonseth agreed to working toward a compromise
solution. Rec. doc. 75. The parties agreed to narrow the request to Dr. Lonseth seeking documents
for patients treated who had the same CPT code as Reese and Odds from December 2017; May
through June 2018; and December 2018 through January 2019. Counsel further agreed to
eliminate the words “records, report and documents” from the notice. Rec. doc. 75. The Court
partially denied the motion to compel as a result of the oral agreement reached and rescheduled
the hearing to address the remaining issues; (1) the existence of a filing system that identified
patients by whether they are in litigation or no; and (2) once the number of in litigation patients is
determined, then an assessment of how many of those patients use factoring companies and
production required to permit comparison of pricing. The Court considered the dispute ongoing
Trying to gain knowledge about the filing system for Dr. Lonseth, the Court ordered Dr.
Lonseth to produce to the Court the count or number of patients, In-Litigation Patients and those
not in litigation for in camera review on August 9, 2019. Rec. doc. 75. The Court also set a
telephone status conference for August 12, 2019
Dr. Lonseth exceeded the request of the court. Rather than providing the numerical count,
he incurred additional expenses and provided actual documents for 165 patients for in camera
review and sought reimbursement for the $3000 expense it incurred in compiling the information.
Thereafter, on August 12, 2019, a follow up hearing by telephone took place and the Court
conducted a review of several documents provided by Dr. Lonseth. Counsel also confirmed that
Dr. Lonseth does not categorize or flag his electronic medical records system by litigation or nonlitigation patients so the process of segregating them is tedious. The Court, therefore concluded
that because the information was not maintained in the regular course of business by the defendant
the request was not proportional to the needs of the case and therefore denied. The Court further
denied the request for the rates charged for litigation and non-litigation patients as there was no
apparent difference as observed upon its review of the in camera documents. Rec. doc. 97.
Also, during the conference the Court ordered the defendants to file a brief by August 16,
2019 providing authority for why the following information is discoverable from a non-party:
(1) information related to payments received by Dr. Lonseth from Medport LA, LLC for
assignment of the accounts receivables is related to the treatment of Reese and Odds (
topics 1( e), 6 and 29);
(2) a list of Dr. Lonseth’s employees for 2 years (Topic 3)
(3) Dr. Lonseth’s account records reflecting amouns that he received over the last 2-5 years
for other patients who received care and treatment similar to Plaintiffs (Topic Nos. 2328).
The defendants wholesale ignored the Court’s order. Rather than providing explanations
for items (1), (2) and (3), they re-raised argument on an area previously ruled on and reargued that
everyone apparently is not billed the same. Rec. doc. 78.
However, upon looking at the issue, the purported agreement did not result in a meeting of
the minds as believed by the defendant, the purported agreement was drafted by the defense
counsel and nor was it signed by counsel for Dr. Lonseth. Id. The defendants pointed out that in
the meantime it subpoenaed Blue Cross Blue Shield (“BCBS”) requesting copies of charge masters
of provider payment registers for charges paid to Dr. Lonseth and his business from September 5,
2017 through June 1, 2019. Rec. doc. 78. BCBS responded to the subpoena and contends that
the CPT codes and total charges contained material, substantive discrepancies between the sum
billed to patients undergoing the same procedure. Id. The defendants complain that he charged
less to BCBS rather than the rates reflected on the fee schedule. The defendant then conflated the
issue by suggesting that it suspected that cases involving a factoring company resulted in charge
increases so the physician can obtain a regular fee before resolving the case; note-BCBS is not a
Dr. Lonseth opposed the motion noting that (1) the defendants failed to clear the date of
the deposition with Dr. Lonseth’s staff and (2) Dr. Lonseth’s office was closed on the day of the
deposition because he was out of town and had his calendar been checked his office would have
advised that it would not be open that day. Additionally, Dr. Lonseth contends that no coordination
of the deposition took place with his office and when the notice was received it was forwarded to
MedSouth, who has an agreement with Dr. Lonseth to manage all Federal and State Court
Subpoenas. Rec. doc. 70.
Upon recognizing the perceived error with the notice of deposition, Dr. Lonseth’s objected
to the scope of the notice and its service and so advised defendant’s counsel in writing. On July
18, 2019, less than 8 days before the hearing on this matter, Dr. Lonseth’s office was served with
the subject Motion for Contempt and immediately contacted the defendant’s attorney’s office to
discuss the matter to provide alternative dates to the deposition. Dr. Lonseth contends that the
defendant’s attorney continues to compound its errors regarding both the scheduling of the
deposition and service of the notice as they were both served too late to be effective. Nonetheless,
Dr. Lonseth despite the defects in the service of the notice and the over breath nature of the topics,
contends that he made himself available and reset the deposition to August 19, 2019.
On August 19, 2019, Dr. Lonseth responded to the supplemental memorandum in support
by pointing out that the defendants wholesale and wrongly allege that he overcharges his InLitigation Patients when they compared to the BCBS Physician Payments Report. Lonseth
contends that the defendants have improperly gained access to nearly 2 years of protected health
information related to the care and treatment of his patients whose charges were submitted to
BCBS without securing approval from the patients in violation of Louisiana Revised Statute Sec.
13:3715.1. Rec. doc. 81. Dr. Lonseth therefore seeks a denial of the motion to compel and the
notice of deposition directed to him.
Standard of Review
Federal Rule of Civil Procedure 45(d)(3) governs the quashing or modifying of subpoenas.
The Court must quash or modify a subpoena that “(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii)
requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv). The Court may also
modify or quash a subpoena that requires the disclosure of a trade secret or an unretained expert’s
opinion that does not describe specific occurrences in dispute and results from that expert’s study
that was not requested by a party. Fed. R. Civ. P. 45(d)(3)(B).
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less
burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity
to obtain the discovery sought; or (3) the burden or expense of the proposed discovery outweighs
its likely benefit. Id. In assessing whether the burden of the discovery outweighs its benefit, a court
must consider: (1) the needs of the case; (2) the amount in controversy; (3) the parties' resources;
(4) the importance of the issues at stake in the litigation; and (5) the importance of the proposed
discovery in resolving the issues. Id. at 26(b)(2)(C)(iii).
A. Adequacy of Service of the Notice and Subpoena
The defendants contend that they: (1) properly noticed the deposition of Dr. Lonseth’s
Office Administrator; (2) showed up for the deposition as scheduled; and (3) found the doors
locked. The defendants further seek an order of contempt against Dr. Lonseth and/or the Office
Dr. Lonseth contends that he was not properly served with the subpoena, and the scope of
the notice of deposition was overly broad, irrelevant and not proportional warranting denial of the
It is settled law in Louisiana that a corporation must be served by personal service on its
agent for service of process. However, there are procedural provisions which will allow service
on a party other than the appointed agent. Louisiana Code of Civil Procedure Article 1262 reads
"If the officer making service certifies that he is unable, after diligent effort, to have service
made as provided in Article 1261, then the service may be made personally on the
secretary of state, or on a person in his office designated to receive service of process on
corporations. The secretary of state shall forward this citation to the corporation at its last
In this case, the defendants made service on the receptionist for Dr. Lonseth’s Pain Center.
There is no evidence that the receptionist is the registered agent for his office. To the contrary, the
evidence shows Dr. Lonseth is the registered agent for his professional medical corporation. Rec.
101-3. The officer who effectuated service did not indicate that he was unable to serve Dr. Lonseth
after a diligent effort had been made such that serving on the reception in his office, even if she is
designated to receive service of process is improper. Therefore, the Motion to Compel is Denied
insufficiency of service.
Even if service of the subpoena and notice is later perfected, it contains problematic topics.
More particularly, the notice seeks the testimony and documents on the following:
(1) information related to payments received by Dr. Lonseth from Medport LA, LLC for
assignment of the accounts receivables is related to the treatment of Reese and Odds
(topics 1(e), 6 and 29);
(2) a list of Dr. Lonseth’s employees for 2 years (Topic 3)
(3) Dr. Lonseth’s account records reflecting amounts that he received over the last 2-5
years for other patients who received care and treatment similar to Plaintiffs (Topic
Not only did the defendants fail to comply with the court’s briefing order on the subject,
but whether Dr. Lonseth engages a factoring company for his account receivables is neither
relevant nor proportional to the needs of the case. To the extent, the defendants would continue
to seek this information, the subject Motion to Compel is Denied.
B. Request for Contempt Order
The defendants also seek an order from the Court holding the Office/Administrator and/or
Dr. Lonseth in contempt for failing to comply with the notice of deposition and the request for
production. The defendants contend that since the office /billing administrator was properly served
with the subpoena and 30(b)(6) notice but failed to produce the requested documents or appear at
the deposition, they seek and order of contempt. The defendants further seek the costs and fees
incurred in traveling to the doctor’s office, costs incurred by the court reporter; mileage and for all
costs in filing this motion including attorney’s fees.
Dr. Lonseth contends that he should not be held in contempt because he did nothing wrong,
was not served with either the notice or the request. He further contends that he offered to make
himself available on August 19, 2019. He contends that the motion for contempt should be denied.
A party commits contempt when he violates a definite and specific order of the court
requiring him to perform or refrain from performing a particular act or acts with knowledge of the
court's order." Piggly Wiggly Clarksville, Inc. v. Mrs. Baird's Bakeries, 177 F.3d 380, 383 (5th
Cir. 1999) (citing Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995)). "In a civil
contempt proceeding, the party seeking an order of contempt need only establish by clear and
convincing evidence: (1) that a court order was in effect; (2) that the order required certain conduct
by the respondent; and (3) that the respondent failed to comply with the court's order."Id. at 38283 (citing F.D.I.C. v. LeGrand, 43 F.3d 163, 170 (5th Cir.1995); Martin v. Trinity Industries,
Inc., 959 F.2d 45, 47 (5th Cir. 1992)). Yet, the Fifth Circuit notes, "[t]he civil contempt sanction
is coercive rather than punitive and is intended to force a recalcitrant party to comply with a
command of the court."Whitfield, 832 F.2d at 913. Finally, once a violation is demonstrated, the
burden falls on the contemnors to show "either mitigating circumstances that might cause the
district court to withhold the exercise of its contempt power, or substantial compliance with the
consent order." Id. at 914 (citing Louisiana Educ. Ass'n v. Richland Parish School Bd., 421 F.Supp.
973, 977 (W.D.La. 1976), aff'd 585 F.2d 518 (5th Cir. 1977); see United States Steel Corp. v.
United Mine Workers of America, Dist. 20, 598 F.2d 363, 368 (5th Cir. 1979)).
It is undisputed that service was made to a receptionist at Dr. Lonseth’s office on June 13,
2019. However, the Lonseth Pain Management Clinic’s registered agent for receipt of service of
process is Dr. Lonseth, not his receptionist. Despite raising this issue albeit late, Dr. Lonseth is
correct that the service of the subpoena is invalid. Consequently, while the subpoena is an order
of the court done that on the behest of a lawyer, there was no obligation for Dr. Lonseth to produce
the documents or his office billing administrator for deposition. Therefore, the request for a
finding of contempt is DENIED.
C. Protective Order
Dr. Lonseth also seeks a protective order because the defendants did not obtain consent or
approval from either Dr. Lonseth, the individual patients or comply with Louisiana revised Statute
13:3715.1 before issuing the subpoena.
Dr. Lonseth contends that he first learned of the
surreptitious and improper action after receiving their supplemental memorandum and despite the
court’s ruling regarding patients in litigation and not in litigation by issuing a subpoena to BCBS
and securing payments made to Dr. Lonseth by private insurer.
Dr. Lonseth further contends that the litigation charges contain both professional fees and
global fees for facilities, overhead and other expenses. As a result, Dr. Lonseth contends that the
comparison is the proverbial “apples and oranges” comparison. Dr. Lonseth contends that three
of his patients have engaged counsel to separately demand that the defendants destroy the
information obtained. Dr. Lonseth further complains that in addition to the Notice of Deposition,
a Fourth Amended Notice was sent to him and contained over 40 topics including subtopics in a
different matter pending in this court.
The conduct of the defendants according to Dr. Lonseth amount to harassment, oppression,
burden and has resulted in costs to him which he seeks reimbursement for and an award of
sanctions against both the defendants and their counsel. He further seeks: (1) an order for
reimbursement of expenses; (2) a general order striking any brief filed against him after their
receipt of the subpoena return from BCBS; (3) an order requiring destruction of any records they
received; (4) a declaration regarding the identity of those who have received copies of the
subpoenaed information; (5) and an order prohibiting further harassment and oppression and
annoyance by defendants and their counsel. Also included with Dr. Lonseth’s motion are letters
by an attorney who represents three of Dr. Lonseth’s patients who did not give the defendants
authorization to secure any of their information.
The defendants oppose the motion stating that no patient identifying information was
sought or obtained by them in the subpoena to BCBS and that La. R.S. 13:3715.1 and La. C.C.P.
Art. 1469.1 is not applicable to the subpoena sent to BCBS. Rec. doc. 94. The defendants contend
that it appears that Dr. Lonseth seeks an order whose effect would be a “get of jail free” card from
any further third-party discovery not only in this case but future litigation as well. Id. The
defendants contend that there is no reasonable basis to abandon a case-by-case inquiry into whether
a protective order is warranted given the specific discovery at issue in each separate case. The
defendants provided the computer generated and redacted report it received from BCBS. The
defendants therefore contend that the motion for protective order should be denied.
La. R.S. 13:3715.1(B) provides that the “exclusive method by which medical, hospital or
other records pertaining to a person’s medical treatment, history or condition may be obtained or
disclosed by a health care provider, shall be pursuant to an in accordance with the provisions of
R.S.40:1299.96. La. R. S. 40:1299.96 provides that “any treatment records include but is not
limited to any medical, hospital, laboratory, invoice or billing statement or other record. La. R.S.
13:3715.1(K) provides that “any attorney who causes the issuance of subpoena or court order for
medical, hospital or other records relating to a person’s medical treatment, history or condition
and who intentionally fails to provide notice to the patient with the requirements of this Section
shall be subject to sanction by the Court.
The BCBS report titled “Weekly Provider Payment Register” contains thirteen
columns for various patients, not one patient as contemplated by the statute. The focus is neither
on the treatment provided nor the identity of the patients. While some of the columns, if unredacted would contain patient identifier and claim information, the information that would clearly
violate the statute was redacted by BCBS. While there could be a technical violation, the
defendants nor their counsel would even know who the patients were in order to comply with the
terms of the statute securing approval as the information was not patient specific but instead was
service, costs and provider specific.
The identity of the patient is clearly not relevant to the analysis. It is however disturbing
that the defendants did not provide notice to Dr. Lonseth that they were seeking this information
from a private insurer regarding payments he received for services he render. Additionally, the
Court is of the opinion that the decision to subpoena the private carrier for this information is rather
far afield of the issues in this case. There is no suggestion that either Reese or Odds are patients
with BCBS insurance to which Dr. Lonseth received a payment for services he rendered to them.
Further, there is clearly no correlation between the payments made by a private insurer and the
factoring company, the entity that the defendants purportedly are interested in. The defendants are
cautioned to more carefully consider their wholesale approach to trying to gather information on
such an ancillary issue as it could eventually amount to harassment of this non-party medical
provider. Nevertheless, the motion for protective order is DENIED.
IT IS ORDERED that the Defendants’ Motion for Contempt, Sanctions and
Costs and to Compel (Rec. Doc. 68) is DENIED.
IT IS FURTHER ORDERED that Non-Party, Dr. Eric Lonseth, M.D., A
Professional Medical Corporation’s Emergency Motion for Protective Order (R. Doc. 85) is
New Orleans, Louisiana, this 7th day of October 2019
KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE
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