Wesley Health System, LLC v. Forrest County Board of Supervisors et al
Filing
143
ORDER granting in part and denying in part 121 Wesley's Motion to Compel; denying 138 AAA's Motion to Strike Rebuttal. Signed by Magistrate Judge Michael T. Parker on May 24, 2013. (KM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
WESLEY HEALTH SYSTEM, LLC.
PLAINTIFF
VERSUS
CIVIL ACTION NO. 2:12cv59-KS-MTP
FORREST COUNTY BOARD OF SUPERVISORS, ET AL.
DEFENDANTS
ORDER
This matter is before the court on the Motion [121] to Compel Discovery Responses from
Defendant AAA Ambulance Service (AAA) filed by Plaintiff Wesley Health System, LLC, and
the Motion [138] to Strike Improper Rebuttal filed by AAA. Having considered the submissions
of the parties and the applicable law, the court finds that the Motion [121] to Compel should be
granted in part and denied in part and the Motion [138] to Strike Improper Rebuttal should be
denied.
I.
Motion to Compel
In its Motion [121] to Compel, Wesley seeks an order from the court compelling AAA to
supplement its responses to certain interrogatories and requests for production. In response to
many of the disputed requests, AAA objects to producing records and information on the
grounds that going so is unduly burdensome. The court is mindful of the broad nature of some
of the requests.
The court must limit discovery when “the discovery sought is unreasonably cumulative
or duplicative, or can be obtained from some other source that is more convenient, less
burdensome, or less expensive;” or when “the burden or expense of the proposed discovery
outweighs its likely benefit considering the needs of the case, the amount in controversy, the
parties’ resources, the importance of the issues at stake in the action and the importance of the
discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C). Here, the claims are substantial,
the need to review the information is justified, and if the number of discovery motions and
disputes is any indication, the parties’ resources appear to be very substantial. As set forth
below, much of the burden claimed by AAA may be eased by simply producing the documents
at issue as kept in the ordinary course of business for review by Wesley.
The court addresses each request at issue below:
A.
Documents Pertaining to Patients Expressing a Desire to Receive Treatment
at Wesley but Taken to Forrest General Hospital
Wesley’s motion is granted in part and denied in part as to Request No. 2. AAA
primarily disputes producing the “run reports,” claiming that a search for the relevant and/or
responsive reports would be unduly burdensome. The documents requested are relevant to the
claims asserted and thus are discoverable. See Fed. R. Civ. P. 26(b)(i). To alleviate AAA’s
concerns that the request is unduly burdensome, AAA may produce the responsive documents by
allowing Wesley to inspect the documents as they are kept in the usual course of business in
accordance with Fed. R. Civ. P. 34. In addition, an Agreed Confidentiality and Qualified
Productive Order [70] is in place, which should address any privacy or confidentiality concerns.
The responsive documents and/or inspection shall be limited in scope from September 1, 2008,
to the present.1 Unless otherwise noted, this time period applies to all discovery requests, as
discussed further below.
B.
Other Instances and AAA’s Complaint Database
Wesley’s motion is granted in part and denied in part as to the discovery requests
involving this issue. The documents and information requested should be produced, limited in
scope from September 1, 2008, to the present. AAA has represented that it does not maintain
any electronic “complaint database” or indexed retrieval system of such complaints. Rather, it
states that it has a manila folder of complaint reports. It claims it has reviewed such folder and
located no responsive documents.
Regarding the “other instances” referred to by the parties, discovery requests regarding
patients who allegedly expressed a desire to receive treatment at Wesley but were taken to
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See infra, ¶ F.
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Forrest General Hospital are addressed above. AAA may produce the responsive documents and
information by allowing Wesley to inspect the documents as they are kept in the usual course of
business in accordance with Fed. R. Civ. P. 34 and 33(d).
C.
Audio Recordings
Wesley’s motion is granted in part and denied in part as to the discovery requests
involving this issue, consistent with the reasoning set forth above under paragraph A. The
responsive recordings and information shall be produced for the time period set forth in
paragraph F below. AAA is not required to listen to the recordings at issue to find the requested
information if AAA determines that the review of documents and/or recordings is unduly
burdensome. However, it shall make the recordings available to Wesley for inspection and
review.
D.
Identity of Individuals
The parties have resolved the dispute regarding the identity of individuals as requested in
Interrogatory No. 1. This issue is now moot.
E.
Payments Among the Actors
Wesley’s motion is granted in part and denied in part as to the discovery requests
involving this issue: Interrogatory Nos. 14 and 15, and Request for Production Nos. 15, 22, and
27. The documents and information requested are relevant to Plaintiff’s claims and are
discoverable. AAA’s general objections are overruled. See L.U.Civ.R. 37(b). Likewise,
although Wade Spruill has been dismissed from this action, he is the CEO of AAA, an employee
of Forrest General Hospital, and a key witness or figure in this litigation. The requested
documents and information related to Mr. Spruill are relevant to the issues and discoverable.
AAA shall produce the information and documents requested, limited to the period from
September 1, 2008, to the present.
F.
Time Period
The requests at issue seek documents and information within the time period January 1,
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2006, to present. AAA claims the scope should be limited from January 1, 2010, to April 17,
2012. Having reviewed the parties’ arguments, the court will limit the scope of the discovery
required herein to the time period September 1, 2008, to present. Wesley alleges that the
Statewide Trauma System became effective in September 1, 2008, and argues in its Reply [136]
that “any documents in AAA’s possession regarding its interpretation or application of the State
Trauma System with regard to transporting patients from 2008 until today are highly relevant
and material to the issues in the Amended Complaint.” Reply [136] at 5. Similarly, AAA
asserts that the complaint alleges no wrongdoing before September 1, 2008. See Response [133]
at 7.
G.
Trade Secrets/Remediation
Wesley’s motion is granted as to Interrogatory No. 3. AAA’s general objections are
overruled. See L.U.Civ.R. 37(b). Further, AAA objects to this interrogatory to the extent it
seeks information protected by the attorney-client privilege and/or the work-product doctrine.
Documents withheld on these grounds must be listed and described on a privilege log as required
by L.U.Civ.R. 26(a)(1)(C).
AAA objects to Interrogatory No. 3 to the extent it seeks information regarding quality
assurance and/or remediation programs. In its Response [133] in opposition to the motion, AAA
argues that discoverability of such documents and information is precluded by Miss. Code Ann.
§ 41-63-23 (generally stating that accreditation and quality assurance materials are not subject to
discovery or introduction, and no person who collects such information is permitted to testify
regarding the collection of that information). AAA did not cite this statute in its original
objections to the discovery requests at issue, but does so in its Response [133].
Nevertheless, assuming that Miss. Code Ann. § 41-63-23 is applicable to the discovery
requests at issue, the party asserting the privilege bears the burden of proving that the privilege
applies. See Claypool v. Mladineo, 724 So. 2d 373 (Miss. 1998) (citing Doctor’s Hosp. v. West,
765 S.W. 2d. 812, 814 (Tex. Ct. App. 1988)). AAA has failed to meet this burden. Simply
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characterizing the records at issue as “quality assurance” or “remediation” will not suffice.
Moreover, Interrogatory No. 3 asks AAA to “Describe any and all actions taken by AAA in
response to complaints received about patients not being taken to the hospital of their (or their
representative’s/family member’s/ caregiver’s) choosing. . . .” See Ex. 1 to Motion [121-1] at 7.
The question goes to the heart of the allegations in this matter and should be answered.
Again, any documents withheld on the basis of a privilege should have been identified on
a privilege log in accordance with L.U.Civ.R. 26(a)(1)(C). The parties’ submissions do not
clearly address whether AAA has identified such documents on a privilege log. AAA shall
supplement its response and produce the requested information.
Wesley’s motion is granted in part and denied in part as to Request No. 6. AAA shall
supplement its response limited in scope from September 1, 2008, to present.
Wesley’s motion is denied as to Request No. 16. To the extent Wesley is seeking
documents establishing a financial connection among AAA and Forrest General, those
documents have been addressed in paragraph E above.
Wesley’s motion is granted in part and denied in part as to Request Nos. 25 and 26.
AAA again asserts broad objections and broadly categorizes responsive documents as “quality
assurance and/or remediation programs,” but then goes on to state that it is not “aware” of any
records responsive to these requests. AAA’s objections are overruled. See L.U.Civ.R. 37(b).
AAA shall produce any documents responsive to these requests, limited in scope from
September 1, 2008, to present.
II.
Motion to Strike Improper Rebuttal
In its Motion [138] to Strike Improper Rebuttal, AAA claims that the following
arguments made by Wesley in its Reply [136] should be stricken by the court because they were
raised for the first time in Wesley’s Reply:
Wesley is entitled to discover facts pertaining to payments made between and
among these parties and other related entities to determine whether these
payments were commercially reasonable and otherwise valid transactions. These
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payments may also be relevant to the issue of whether AAA has used its funds
appropriately under non-profit laws and whether any such payments have bearing
on Mississippi’s prohibition against public ambulance service when an adequate
privately run service is available. Miss. Code Ann. § 41-55-7. Finally, these
payments are relevant as to whether the financial enterprise, as it relates to the
cause of action for RICO in the Amended Complaint, was such that the entities
and individuals involved benefitted from the relationship of disregarding patient
choice.
Reply [136] at 4-5. AAA also claims that Wesley’s request for information concerning
payments to Wade Spruill from his employment should be stricken. Id. at 5.
Having considered the submissions of the parties, the court finds that AAA’s Motion
[138] to Strike Improper Rebuttal should be denied.
IT IS, THEREFORE, ORDERED:
1.
The Motion [121] to Compel filed by Wesley is granted in part and denied in part
as set forth herein, with each party to bear its own costs, fees, and expenses.
2.
AAA shall provide the documents and information required herein by June 7,
2013.
3.
Any other relief demanded in the Motion [121] to Compel is denied.
4.
AAA’s Motion [138] to Strike Improper Rebuttal is denied.
SO ORDERED this the 24th day of May, 2013.
s/ Michael T. Parker
United States Magistrate Judge
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