State Farm Mutual Automobile Insurance Company v. Elite Health Centers Inc. et al

Filing 169

ORDER re: 144 SEALED MOTION to Compel Harriet Morse to Produce Documents Responsive to State Farm Mutual's Subpoena in 143 by State Farm Mutual Automobile Insurance Company. filed by State Farm Mutual Automobile Insurance Company, 148 MOTION for Order to Show Cause why Barron Transportation LLC and FS Complete Transportation Services LLC Should not be Held in Contempt for Failing to Comply with Subpoenas filed by State Farm Mutual A utomobile Insurance Company, 157 MOTION Motion to Authorize and Compel Comcast and Sprint to Produce Documents in Response to State Farm Mutual's Subpoenas filed by State Farm Mutual Automobile Insurance Company, 150 MOTI ON to Compel Kotz Sangster Wyskocki P.C. and Keith Soltis to Produce Documents Responsive to State Farm Mutual's Subpoenas filed by State Farm Mutual Automobile Insurance Company, 136 MOTION for Leave to File to File Instanter Motion to Compel Against Michael Morse with Supporting Brief in Excess of Page Limits filed by State Farm Mutual Automobile Insurance Company, 143 MOTION to Compel Harriet Morse to Produce Documents Responsive to State Farm Mutual 9;s Subpoena filed by State Farm Mutual Automobile Insurance Company, 154 MOTION to Compel Michael Paley to Produce Documents and Information filed by State Farm Mutual Automobile Insurance Company, 159 MOTION to Compel D epositions of State Farm's Employees in Michigan filed by Elite Health Centers Inc., Michael P Draplin, Derek Lawrence Bittner, Mark A Radom, Mark J Juska, Superior Diagnostic, Inc., Derek L Bittner D.C., P.C., Elite Chiropractic, P. C., Ryan Matthew Lukowski, Elite Rehabilitation, Inc., Midwest Medical Associates, Inc., Noel H. Upfall, 152 MOTION to Compel the Elite Defendants to Produce Documents and Respond to Second Set of Interrogatories filed by State Farm Mutual Automobile Insurance Company, 151 SEALED MOTION to Compel Kotz Sangster Wyskocki P.C. and Keith Soltis to Produce Documents Responsive to State Farm Mutual's Subpoenas in re 150 by State Farm Mut ual Automobile Insurance Company. filed by State Farm Mutual Automobile Insurance Company, 149 MOTION to Compel Defendant Chintan Desai, and Third Parties M1 Imaging LLC and Joshua Katke, to Produce Documents filed by State Farm Mutu al Automobile Insurance Company, 146 SEALED MOTION to Compel Roco and Jackier Gould to Produce Documents Responsive to State Farm Mutual's Subpoenas in re 145 by State Farm Mutual Automobile Insurance Com pany. filed by State Farm Mutual Automobile Insurance Company, 141 MOTION for Order to Show Cause why 2875 Maple LLC Should not be Held in Contempt for Failing to Comply with Subpoena filed by State Farm Mutual Automobile Insurance C ompany, 153 SEALED MOTION to Compel the Elite Defendants to Produce Documents and Respond to Second Set of Interrogatories in re 152 by State Farm Mutual Automobile Insurance Company. filed by State Farm Mut ual Automobile Insurance Company, 156 MOTION to Compel Ken Jackson and K Jacks Investigative Consulting to Produce Documents Responsive to Subpoenas filed by State Farm Mutual Automobile Insurance Company, 163 Order Referring Motion to Magistrate Judge, 145 MOTION to Compel Roco and Jackier Gould to Produce Documents Responsive to State Farm Mutual's Subpoenas filed by State Farm Mutual Automobile Insurance Company--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Plaintiff,

Case No. 2:16-cv-13040
District Judge Sean F. Cox
Magistrate Judge Anthony P. Patti

v.
ELITE HEALTH CENTERS, INC.,
ELITE CHIROPRACTIC, P.C.,
ELITE REHABILITATION, INC.,
MIDWEST MEDICAL
ASSOCIATES, INC., PURE
REHABILITATION, INC., DEREK
L. BITTNER, D.C., P.C., MARK A.
RADOM, DEREK LAWRENCE
BITTNER, D.C., RYAN MATTHEW
LUKOWSKI, D.C., MICHAEL P.
DRAPLIN, D.C., NOEL H. UPFALL,
D.O., MARK J. JUSKA, M.D.,
SUPERIOR DIAGNOSTICS, INC.,
CHINTAN DESAI, M.D., MICHAEL
J. PALEY, M.D., DEARBORN
CENTER FOR PHYSICAL
THERAPY, L.L.C., MICHIGAN
CENTER FOR PHYSICAL
THERAPY, INC., and JAYSON
ROSETT
Defendants.
_________________________/
ORDER REGARDING MOTIONS REFERRED ON MAY 25, 2018 (DE 163,
referring DEs 136, 141, 143, 144, 145, 146, 148, 149, 150, 151, 152, 153, 154,

156, 157, 159), SETTING A HEARING DATE AND ADJOURNING
EXISTING HEARING DATE

On May 25, 2018, Judge Cox referred the following motions to me for a
hearing and determination (hereinafter, “the Referred Motions”):
 Motion for Leave to File Instanter Motion to Compel Against
Michael Morse by State Farm Mutual (DE 136)
 Motion for Order to Show Cause why 2875 Maple LLC Should not
be Held in Contempt for Failing to Comply with Subpoena by
State Farm Mutual (DE 141)
 Motion to Compel Harriet Morse to Produce Documents
Responsive to State Farm Mutual’s Subpoena (DE 143)
 Sealed Motion to Compel Harriet Morse to Produce Documents
Responsive to State Farm Mutual’s Subpoena (DE 144)
 Motion to Compel Roco and Jackier Gould to Produce Documents
Responsive to State Farm Mutual’s Subpoenas (DE 145)
 Sealed Motion to Compel Roco and Jackier Gould to Produce
Documents Responsive to State Farm Mutual’s Subpoenas (DE
146)
 Motion for Order to Show Cause why Barron Transportation LLC
and FS Complete Transportation Services LLC Should not be Held
in Contempt for Failing to Comply with Subpoenas by State Farm
Mutual (DE 148)
 Motion to Compel Defendant Chintan Desai, and Third Parties MI
Imaging LLC and Joshua Katke, to Produce Documents by State
Farm Mutual (DE 149)

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 Motion to Compel Kotz Sangster Wyskocki P.C. and Keith Soltis
to Produce Documents Responsive to State Farm Mutual’s
Subpoenas (DE 150)
 Sealed Motion to Compel Kotz Sangster Wyskocki P.C. and Keith
Soltis to Produce Documents Responsive to State Farm Mutual’s
Subpoenas (DE 151)
 Motion to Compel the Elite Defendants to Produce Documents and
Respond to Second Set of Interrogatories by State Farm Mutual
(DE 152)
 Sealed Motion to Compel the Elite Defendants to Produce
Documents and Respond to Second Set of Interrogatories by State
Farm Mutual (DE 153)
 Motion to Compel Michael Paley to Produce Documents and
Information by State Farm Mutual (DE 154)
 Motion to Compel Ken Jackson and K Jacks Investigative
Consulting to Produce Documents Responsive to Subpoenas by
State Farm Mutual (DE 156)
 Motion to Authorize and Compel Comcast and Sprint to Produce
Documents in Response to State Farm Mutual’s Subpoenas (DE
157)
 Motion to Compel Depositions of State Farm’s Employees in
Michigan by Defendants (DE 159)
A.

Motion for leave to file instanter motion to compel against
Michael Morse and supporting exhibit (DEs 136, 137)

The Court issued a Text-Only order on May 25, 2018 granting in part State
Farm Mutual’s Motion for leave to file instanter motion to compel against Michael
Morse (DE 136), and stating that Plaintiff’s proposed motion may not exceed 40
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pages. The May 25, 2018 Text-only order also struck the supporting sealed exhibit
(DE 137) for failure to comply with Local Rule 5.3 and ¶ 14 of the Stipulated
Protective Order. The Court now orders that Respondent Michael Morse’s
response brief, if any, shall not exceed 40 pages, and Plaintiff’s reply brief, if any,
shall not exceed 12 pages.
B.

Motions and Exhibits filed under seal

The Court notes that several motions (DEs 144, 146, 151, 153) and exhibits
(DEs 137, 142, 155, 158) have been filed under seal. On May 25, 2018, the Court
entered a Text-Only Order striking DE 137 (Exhibit A to DE 136, and consisting
of 937 pages) in its entirety for failure to comply with Local Rule 5.3 and the
parties’ Stipulated Protective Order (DE 82, ¶ 14). The parties are further directed
to my Practice Guidelines, “Protective Orders,” which provide, in pertinent part:
The entire pleading, paper, exhibit, etc. may not be filed under seal.
Only the portion of the document(s) which is not to be publically
disclosed may be filed under seal. In such instances, the portion to be
filed under seal requires an endorsement by the Court on a cover page.
A party's presentment to the Court for the endorsement shall be
accompanied by an explanation why the portion of the document(s) is
confidential. See, i.e., Rudd Equip. Co., Inc. v. John Deere Constr. &
Forestry Co., No. 16-5055, 2016 WL 4410575 (6th Cir. July 27,
2016).
http://www.mied.uscourts.gov/altindex.cfm?pagefunction=pgToPDFAll&judgeID
=51. As the Sixth Circuit recently made clear, “[t]he courts have long recognized
… a ‘strong presumption in favor of openness’ as to court records.” Shane Group,
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Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016)
(citation omitted). “The burden of overcoming that presumption is borne by the
party that seeks to seal them” and “is a heavy one: ‘Only the most compelling
reasons can justify non-disclosure of judicial records.’” Id. (citations omitted).
“The proponent of sealing therefore must ‘analyze in detail, document by
document, the propriety of secrecy, providing reasons and legal citations,’” and
“[i]n like fashion, a district court that chooses to seal court records must set forth
specific findings and conclusions ‘which justify nondisclosure to the public.’” Id.
at 305-06 (citations omitted).
The parties are directed to review the remaining submissions filed under seal
(DEs 142, 144, 146, 151, 153, 155, 158) and confirm that the submissions meet the
requirements of E.D. Mich. LR 5.3 and the parties’ Stipulated Protective Order
(DE 82), and withdraw and/or re-file any motion(s) or exhibit(s) as necessary, on
or before FRIDAY, JUNE 8, 2018. Thereafter, the Court will conduct its own
Rule 5.3 compliance review, sua sponte. The parties should give each other
reasonable advanced notice of their intention to file any documents or information
for which the opposing party might reasonably be expected to seek exclusion from
the public record.
C.

Order regarding Referred Motions

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The parties are directed to follow the briefing schedule for all motions
as set forth in E.D. Mich. LR 7.1(e)(2), and to read and follow my Practice
Guidelines, and in particular the Guidelines regarding Discovery and
Motion Practice. The parties are specifically directed to meet and confer in
person or by videoconferencing (i.e., face-to-face) in advance of the hearing,
for a minimum of one hour per motion, for an item-by-item discussion of
each issue in dispute. If unresolved issues remain, the parties shall then
cooperatively file a Joint List of Resolved and Unresolved Issues separately
for each motion by MONDAY, JULY 16, 2018 at 10:00 a.m., certifying
that they have met as directed above, including the date, start time and end
time of the meeting, and setting forth the issues that remain unresolved. The
Joint Statement should not rehash the parties’ arguments, which have likely
been extensively briefed already, but should simply aim to make the Court’s
job easier by identifying any resolved issues and quickly addressing the Rule
26(b)(1) factors, if appropriate, for any unresolved issues. Further, to the
extent any issues are resolved after submission of the Joint Statement, the
parties with respect to that motion must immediately so inform the Court. In
the event all disputed issues are resolved prior to the hearing, the motion
must be withdrawn immediately thereafter or the parties with respect to that
motion shall file a stipulation incorporating their agreement in a proposed
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order prior to the scheduled hearing date. The proposed order must be
submitted for entry by the undersigned Magistrate Judge.
The Referred Motions are scheduled for hearing on THURSDAY, JULY
19, 2018, at 10:00 a.m. the United States District Court, Theodore Levin U.S.
Courthouse, 231 W. Lafayette Boulevard, Detroit, Michigan. The Court has
scheduled the entirety of the day for hearing the pending motions in this case, if
necessary, with a lunch break to be taken at an appropriate time.
The hearings on DE 132 (Motion to Quash) and DE 131 (Motion to Compel
Full and Complete Response to the Second Request for Admission Served on
March 30, 2018 and to Determine Sufficiency of State Farm's Objections Under
Rule 36), presently scheduled for June 15, 2018, are hereby ADJOURNED to
JULY 19, 2018 at 10:00 a.m., to take place when the other above-described
motions are heard. With respect to these two motions, the parties must comply
with the meet and confer requirements and the Joint List of Unresolved Issues
requirements and deadlines set forth above.
The Court may rule on some of the pending motions without oral argument,
at its discretion, once it has received sufficient information to do so.
IT IS SO ORDERED.
Dated: June 1, 2018

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
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Certificate of Service
I hereby certify that a copy of the foregoing document was sent to parties of record
on June 1, 2018, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

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