Allstate Insurance Company et al v. Shah, MD et al

Filing 306

ORDER that 270 Motion to Quash is DENIED. FURTHER ORDERED that the confidentiality and protective order approved by the Court and filed on May 20, 2016, (ECF No. 39 ), and all the safeguards and protections contained therein shall apply to HH and to any documents subject to HIPAA or other confidentiality or privacy concerns produced in response to the subpoena issued by Plaintiffs. HH is hereby ordered to comply with Plaintiffs' subpoena issued pursuant to F.R.C.P. 45 and shall prod uce the requested information and documentation. HH shall have ten (10) days from the date of this order to comply with the subpoena. Signed by Magistrate Judge Carl W. Hoffman on 6/20/2018. (Copies have been distributed pursuant to the NEF - MMM)

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1 DYLAN P. TODD Nevada Bar No. 10456 2 TODD W. BAXTER Admitted Pro Hac Vice 3 McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 4 8337 West Sunset Road, Suite 350 Las Vegas, Nevada 89113 5 Telephone: (702) 949-1100 Facsimile: (702) 949-1101 6 dylan.todd@mccormickbarstow.com todd.baxter@mccormickbarstow.com 7 ERON Z. CANNON 8 Nevada Bar No. 8013 FAIN ANDERSON VANDERHOEF 9 ROSENDAHL O’HALLORAN SPILLANE PLLC 701 5th Avenue #4750 10 Seattle, Washington 98104 Telephone: (206) 749-0094 11 Facsimile: (206) 749-0194 eron@favros.com 12 Attorneys for Plaintiffs/Counterdefendants 13 14 UNITED STATES DISTRICT COURT 15 DISTRICT OF NEVADA 16 **** 17 ALLSTATE INSURANCE COMPANY, ALLSTATE PROPERTY & CASUALTY 18 INSURANCE COMPANY, ALLSTATE INDEMNITY COMPANY, and ALLSTATE 19 FIRE & CASUALTY INSURANCE COMPANY, 20 Plaintiffs, 21 v. 22 RUSSELL J. SHAH, MD, DIPTI R. SHAH, 23 MD, RUSSELL J. SHAH, MD, LTD., DIPTI R. SHAH, MD, LTD., and RADAR 24 MEDICAL GROUP, LLP dba UNIVERSITY URGENT CARE, DOES 1-100, and ROES 25 101-200, 26 CASE NO. 2:15-cv-01786-APG-CWH PROPOSED ORDER DENYING NONPARTY HENNESS & HAIGHT’S MOTION TO QUASH SUBPOENA SEEKING THE PRODUCTION OF DOCUMENTS Defendants. 27 AND RELATED CLAIMS 28 MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 2:15-cv-01786-APG-CWH PROPOSED ORDER DENYING NON-PARTY HENNESS & HAIGHT’S MOTION TO QUASH SUBPOENA SEEKING THE PRODUCTION OF DOCUMENTS 1 Presently before the Court is a motion to quash subpoena to produce documents by non-party 2 law firm Henness & Haight (“HH”) filed on April 13, 2018. (ECF No. 275) Plaintiffs filed a 3 response to the motion on April 27, 2018 (ECF No. 281), and HH’s reply was filed on May 4, 2018. 4 (ECF. No. 279) 5 Plaintiffs served HH with a subpoena pursuant to F.R.C.P. 45 for the production of documents 6 regarding communications and payments made by and between HH and the Defendants during HH’s 7 representation of several parties in personal injury claims for which Plaintiffs paid a settlement on 8 behalf of Plaintiffs’ insured. HH objected to the subpoena and moved to quash on grounds that: 1) 9 under F.R.C.P. 26(b)(2)(C) Plaintiffs had ample opportunity to seek the requested information in the 10 in the previous personal injury actions and in this action from the named Defendants; 2) the 11 information requested is duplicative; 3) under F.R.C.P. 45, the subpoena requests protected 12 confidential client information; and 4) the protected information is also a trade secret or confidential 13 commercial communications. HH also argues that the subpoena is deficient pursuant to Local Rule IA 14 11-1(b). Plaintiffs respond that the requested information is proper under F.R.C.P. 26, and that HH’s 15 arguments on duplicity and ample opportunity do not apply. Plaintiffs contend that HH has failed to 16 demonstrate the required showing for protection under trade secret or confidential commercial 17 communications, and that all objections based on confidentiality can be addressed by including HH as 18 a party to the existing protective order. Lastly, Plaintiffs contend that they have substantially 19 complied with Local Rule IA 11-1(b). The Court will address these arguments in order. 20 F.R.C.P. 26 (b)(10) provides that parties “may obtain discovery regarding any nonprivileged 21 matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” The 22 information requested by Plaintiffs is both relevant and proportional to the needs of this case, as it 23 involves claims of RICO violations, misrepresentation and fraud where the amount of claimed 24 damages by all parties is very high. A Court must quash or modify a subpoena that requires disclosure 25 of protected matter, Fed. R. Civ. P. 45(d)(3)(A)(iv); and may quash or modify a subpoena that requires 26 disclosure of commercial information, Fed. R. Civ. P. 45(d)(3)(B)(i). However, courts should also 27 consider other factors in deciding motions to quash or modify a subpoena, including the breadth or 28 MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 2:15-cv-01786-APG-CWH 2 PROPOSED ORDER DENYING NON-PARTY HENNESS & HAIGHT’S MOTION TO QUASH SUBPOENA SEEKING THE PRODUCTION OF DOCUMENTS 1 specificity of the discovery request, and the relevance of the requested information. See Moon v. SCP 2 Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005). 3 A. 4 HH claims that the manner in which it communicates with medical providers and negotiates Confidential Commercial Information and Trade Secrets 5 reductions in bills in the “highly competitive industry” of personal injury lawsuits is trade secret 6 and/or confidential commercial information under Rule 45(d)(3)(B)(i). “Confidential commercial 7 information is information which, if disclosed, would cause substantial economic harm to the 8 competitive position of the entity from whom the information was obtained.” Diamond State Ins. Co. 9 v. Rebel Oil Co., Inc., 157 F.R.D. 691, 697 (D. Nev. 1994). The person asserting confidentiality has 10 the burden of showing that the privilege applies to a given set of documents. F.R.C.P. 45(d); see also 11 In re Grand Jury Investigation, 974 F.2d 1068, 1070 (9th Cir.1992). Furthermore, a party must 12 “demonstrate by competent evidence” that the information it is seeking to protect is a trade secret, 13 which would be harmful if disclosed. Upjohn Co. v. Hygieia Biological Labs., 151 F.R.D. 355, 358 14 (E.D. Cal. 1993). 15 HH has failed to meet its burden to provide a particularized showing of exactly how the 16 requested information falls within the confidential commercial communication or trade secret 17 protection. Furthermore, the information requested is not being disclosed to a competitor, and there 18 has been no evidence or argument to support a claim that economic harm would result from the 19 production of the requested information. Therefore, HH’s objection on the grounds of confidential 20 commercial information and trade secret is overruled. 21 B. 22 Next, HH’s argument that Plaintiffs had ample opportunity to obtain the information in prior Ample Opportunity 23 lawsuits in unpersuasive. F.R.C.P. 26 (b)(2)(C)(ii) states the Court must limit the extent of discovery 24 where “the party seeking discovery has had ample opportunity to obtain the information by discovery 25 in the action.” The prior litigations to which HH is referring are personal injury actions where 26 Plaintiffs were not a party. Those litigations took place years before this action, and did not involve 27 the claims and causes of action contained in the instant lawsuit. Moreover, some of the requested 28 information comes from claims where no litigation ensued. Plaintiff cannot be said to have had ample MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 2:15-cv-01786-APG-CWH 3 PROPOSED ORDER DENYING NON-PARTY HENNESS & HAIGHT’S MOTION TO QUASH SUBPOENA SEEKING THE PRODUCTION OF DOCUMENTS 1 opportunity to obtain this discovery pursuant to F.R.C.P. 26 (b)(2)(C)(ii). Therefore, HH’s objection 2 on these grounds is overruled. 3 C. 4 The Court’s decision also applies to HH’s position that Plaintiffs could have obtained the Duplicative Documents 5 information directly from Defendants. A party is permitted to obtain documents from a non-party 6 under F.R.C.P. 45, even if the subpoena requests documents that are similar or identical to those 7 previously sought from a party in the action. See, Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 8 F.R.D. 691, 697 (D. Nev. 1994). While there is the possibility that some of the documents produced 9 might be duplicative, the subpoena is directed towards a non-party that is a separate business entity 10 from the Defendants. It is entirely possible that the files kept by these separate entities may not be 11 identical. Therefore, the objection that the documents requested would be duplicative is overruled. 12 D. 13 The Court also finds that Plaintiffs have substantially complied with Local Rule 11-1(b) Local Rule 11-1(b) 14 regarding the notice of association of counsel for attorney Eron Cannon. Mr. Cannon filed his 15 association of counsel on February 16, 2016, which identified the local counsel with whom he was 16 associating. Mr. Cannon is properly admitted to practice in this Court. 17 E. 18 Lastly, the Court addresses HH’s objection that the subpoena requests protected and Confidential Client Information 19 confidential client information because it discusses client medical treatment. On May 19, 2016, 20 Plaintiffs and Defendants entered into a stipulated confidentiality and protective order relating to the 21 disclosure of confidential and protected information. (ECF No. 38). The order addressed the sensitive 22 nature of medical records and communications under HIPAA, as well as the dissemination of other 23 potentially protected or private information relating to a claimant, such as those indicated in Plaintiff’s 24 subpoena, and other identified claimants similarly situated. The stipulated confidentiality and 25 protective order was entered into by Plaintiffs and Defendants only, and was approved by this Court 26 on May 20, 2016. (ECF No. 39). While HH was not an original party to this protective order, the 27 Court finds that extending the protections and scope of the order to HH would address any concerns 28 MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 2:15-cv-01786-APG-CWH 4 PROPOSED ORDER DENYING NON-PARTY HENNESS & HAIGHT’S MOTION TO QUASH SUBPOENA SEEKING THE PRODUCTION OF DOCUMENTS 1 regarding the disclosure of confidential or protected in formation in its Motion to Quash. (ECF No. 2 270). 3 Therefore, IT IS HEREBY ORDERED that the Motion to Quash (EFC No. 270) is DENIED. 4 IT IS FURTHER ORDERED that the confidentiality and protective order approved by the Court and 5 filed on May 20, 2016, (ECF No. 39), and all the safeguards and protections contained therein shall 6 apply to HH and to any documents subject to HIPAA or other confidentiality or privacy concerns 7 produced in response to the subpoena issued by Plaintiffs. HH is hereby ordered to comply with 8 Plaintiffs’ subpoena issued pursuant to F.R.C.P. 45 and shall produce the requested information and 9 documentation. HH shall have ten (10) days from the date of this order to comply with the subpoena. 10 11 IT IS SO ORDERED. 20 DATED this _____ day of June, 2018. 12 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 Respectfully submitted: McCORMICK, BARSTOW, SHEPPARD, WAYTE & CARRUTH LLP 19 20 21 22 23 24 By__/s/ Dylan Todd__________________ DYLAN P. TODD, ESQ. TODD W. BAXTER, ESQ. Admitted Pro Hac Vice 8337 West Sunset Road, Suite 350 Las Vegas, NV 89113 Telephone:(702) 949-1100 Facsimile: (702) 949-1101 Attorneys for Plaintiffs/Counterdefendants 25 26 27 28 MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 2:15-cv-01786-APG-CWH 5 PROPOSED ORDER DENYING NON-PARTY HENNESS & HAIGHT’S MOTION TO QUASH SUBPOENA SEEKING THE PRODUCTION OF DOCUMENTS 1 2 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of June, 2018, a true and correct copy of PROPOSED 3 ORDER DENYING NON-PARTY HENNESS & HAIGHT’S MOTION TO QUASH 4 SUBPOENA SEEKING THE PRODUCTION OF DOCUMENTS was served via the United 5 States District Court CM/ECF system on all parties or persons requiring notice. 6 Dennis L. Kennedy, Esq. 7 Joseph A. Liebman, Esq. Joshua P. Gilmore, Esq. 8 BAILEY KENNEDY 8984 Spanish Ridge Avenue 9 Las Vegas, NV 89148 Michael D. Haight, Esq. Shawn L. Walkenshaw, Esq. HENNESS & HAIGHT 8972 Spanish Ridge Avenue Las Vegas, NV 89148 Attorneys for Non-Party Henness & Haight Attorneys for Defendants 10 11 By /s/ Tricia A. Dorner Tricia A. Dorner, an Employee of MCCORMICK, BARSTOW, WAYTE & CARRUTH LLP 12 13 14 15 SHEPPARD, 03246-01559 5186755.1 16 17 18 19 20 21 22 23 24 25 26 27 28 MCCORMICK, BARSTOW, SHEPPARD, W AYTE & CARRUTH LLP 8337 W. SUNSET RD, SUITE 350 LAS VEGAS, NV 89113 2:15-cv-01786-APG-CWH 6 PROPOSED ORDER DENYING NON-PARTY HENNESS & HAIGHT’S MOTION TO QUASH SUBPOENA SEEKING THE PRODUCTION OF DOCUMENTS

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