Surgical Center of Southfield, LLC d/b/a Fountain View Surgery Center et al v. Allstate Property and Casualty Insurance Company

Filing 34

ORDER granting in part and denying in part Defendant's 22 Motion to Compel--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SURGICAL CENTER OF
SOUTHFIELD, L.L.C., d/b/a
Fountain View Surgery Center,
and ISPINE, P.L.L.C.,

Case No. 2:19-cv-11458
District Judge Gershwin A. Drain
Magistrate Judge Anthony P. Patti

Plaintiffs,
v.
ALLSTATE PROPERTY
AND CASUALTY
INSURANCE COMPANY,
Defendant.
___________________________________/
ORDER GRANTING IN PART and DENYING IN PART DEFENDANT’S
MOTION TO COMPEL DISCOVERY FROM ISPINE (ECF 22)

A.

Introduction

Plaintiffs filed this lawsuit, which alleges a violation of Michigan’s No-Fault
Act and seeks declaratory relief, against Defendant in Wayne County Circuit Court
on April 26, 2019. (ECF 1-2.) Among other things, Plaintiffs allege that they:
. . . provided surgical services and surgical facility medical treatment
to the insured [B. Slating] during a surgical procedure performed on
February 28, 2019, for the injuries arising out of [an August 28, 2018]
motor vehicle accident.
(ECF 1-3 at 4 ¶ 14.)

Defendant removed the case to this Court on May 17, 2019. (ECF 1.) Each
of the parties is represented by counsel. (ECFs 3, 4, 11.)1 On July 31, 2019, Judge
Drain entered a stipulated confidentiality, protective, and clawback order. (ECF
9.) That same day, a stipulated order was entered, dismissing without prejudice the
“claims for medical services relating to Surgical Center of Southfield d/b/a
Fountain View Surgery” and further stating that:
Plaintiff Surgical Center of Southfield d/b/a Fountain View Surgery Center
and Allstate shall resolve their dispute regarding Surgical Center of
Southfield d/b/a Fountain View Surgery Center’s fees related to patient
Brian Slating through the case Surgical Center of Southfield, LLC d/b/a
Fountain View Surgery Center (Brian Slating) v. Allstate Insurance
Company, 19-cv-10991-PDB-APP (E.D. Mich.) and not in any other
litigation, including the instant case and any suit filed by Brian Slating
against Allstate.
(ECF No. 10, PageID.96-97.)2
B.

Instant Motion

Currently before the Court is Defendant’s motion to compel discovery from
ISpine (ECF 22), which concerns Plaintiff ISpine’s answers to Defendant’s

1

These three parties are also parties to Allstate Insurance Company et al v.
Mercyland Health Services, PLLC et al, Case No. 2:18-cv-13336-PDB-DRG (E.D.
Mich.), which is based on alleged violations of 18 U.S.C. § 1962 of the Racketeer
Influenced and Corrupt Organizations (RICO) Act, although ISpine and Stefan
Pribil, M.D., were dismissed with prejudice on March 15, 2019.

2

Surgical Center of Southfield, LLC d/b/a Fountain View Surgery Center (Brian
Slating) v. Allstate Insurance Company (Case No. 2:19-cv-10991-PDB-APP) was
recently closed, as the Court granted summary judgment to Defendant Allstate and
a motion for reconsideration was resolved by stipulation. (See ECF 13-16 therein.)

interrogatories (ECF 22-3) and Plaintiff ISpine’s answers to Defendant’s requests
for production of documents (ECF 22-4). Judge Drain referred this motion to me
for hearing and determination. On September 26, 2019, I entered a text-order,
which resulted in the Clerk’s Office striking the response and reply. (See ECFs 2729, 31-32.) Thus, other than the motion itself, I have only considered the
September 27, 2019 joint list of unresolved issues and the oral argument of
counsel. (ECF 33.)
On October 2, 2019, I conducted a hearing, at which attorneys Jason
Hagelthorn and Andrew H. DeNinno appeared. (ECFs 24, 25.)
C.

Order

Having considered the motion papers and counsel’s oral argument, and in
harmony with my rulings and reasoning given from the bench, all of which are
incorporated herein by reference as though fully restated herein, Plaintiff’s motion
to compel (ECF 22) is GRANTED IN PART and DENIED IN PART, as
follows:


As my online practice guidelines make clear, in responding to
discovery requests, form or boilerplate objections shall not be
used and, if used, may subject the party and/or its counsel to
sanctions. Objections must be specific and state an adequate
individualized basis. See, e.g., Wesley Corp. v. Zoom T.V.
Products, LLC, No. 17-10021, 2018 WL 372700, at *4 (E.D.
Mich. Jan. 11, 2018) (Cleland, J.). Therefore, I will not rule
upon Plaintiff ISpine’s objections as stated, which in any event
are boilerplate and rejected; instead, in order to prevent
discovery abuses, I will perform the Court’s gatekeeping

functions with respect to the scope and purpose of discovery,
consistent with Fed. R. Civ. P. 1 (“Scope and Purpose”) and
Fed. R. Civ. P. 26(b)(1) (“Scope in General.”).


Defendant’s requests are too broad in time. For purposes of
Fed. R. Civ. P. 26(b)(1), the “relevant period” is January 1,
2019 (the month before the insured presented for treatment)
through April 26, 2019 (the date the complaint was filed in
Wayne County Circuit Court).



ISpine’s answers to Defendant’s interrogatories, and any
supplementation thereto, must be signed under oath by the
person who makes them. Fed. R. Civ. P. 33(b)(3),(5).



Assertions of privilege or protection must be made in
accordance with Fed. R. Cv. P. 26(b)(5) (“Claiming Privilege
or Protecting Trial-Preparation Materials.”), a.k.a., a privilege
log.



Plaintiff ISpine must comply with any representations it made
within the joint list of unresolved issues (ECF 33) to update a
given discovery response, i.e., Interrogatory Nos. 4, 9, 10, 11,
12, 14, 16, 20 and Requests to Produce Nos. 4, 11, 14, 20, 21,
22, 24, 27, 29, 30, 31. (ECF No. 33, PageID.668.)



Plaintiff ISpine’s answer to Interrogatory 13 is unresponsive.
Thus, ISpine shall update its answer to this discovery request.
In so doing, ISpine will make very clear, as stated on the record
by its counsel, that Becky Arceneaux with Atlantic Coast Brain
and Spine was the person who documented the procedure and
will explain how that documentation converted into the billing
CPT codes.



The information sought by Interrogatory 19 is relevant and
discoverable in light of Defendant’s affirmative defenses (such
as reasonableness [ECF 5]), and the protective order obviates
the need for an in camera review. Thus, ISpine shall update its
response to this discovery request. In so doing, ISpine may
simply refer to responsive documents and provide them.



Plaintiff ISpine need not supplement its response to Request to
Produce No. 6, as solicitation information is outside the scope of a
first-party no-fault claim. See Richardson v. Allstate Ins. Co., No.
341439, 2019 WL 2273415, at *4 (Mich. Ct. App. May 28, 2019);
Mich. Comp. Laws §§ 257.503, 750.410b.



Plaintiff ISpine’s response to Request to Produce No. 10 is not
completely responsive. Thus, ISpine shall update its response to this
discovery request.



As to Request to Produce No. 12, counsel shall confer, on or before
October 9, 2019, to determine a search protocol (for up to 5 email
accounts and up to 5 search terms), after which Plaintiff ISpine shall
perform an additional search for communications and supplement its
response.



Plaintiff ISpine shall update its response to Request to Produce No.
23, although it may just identify the responsive items (as opposed to
actually producing the responsive documents)



Plaintiff ISpine agrees to update its response to Request to Produce
Nos. 32-33.

No later than Friday, October 18, 2019, Plaintiff shall comply with any of the
foregoing directions to supplement under oath. No other specific discovery items
required rulings from the Court in connection with the instant motion, as confirmed
on the record with counsel for all parties. Finally, there will be no award of costs
or fees to either party, neither having fully prevailed.
IT IS SO ORDERED.
Dated: October 4, 2019

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE