United States of America et al v. Remain at Home Senior Care LLC et al

Filing 236

ORDER AND OPINION granting in part and denying in part 200 Motion to Compel. Signed by Honorable J Michelle Childs on 1/19/2022.(asni, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
United States of America, ex rel
Tanja Adams, Kianna Curtis, Mindy
Roberts, Ashley Segars, and Tamara
Williford, Relators,
Plaintiffs,
v.
Remain at Home Senior Care, LLC and
Tim Collins,
Defendants.

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Civil Action No.: 1:17-cv-01493-JMC
ORDER AND OPINION

Before the court is Defendant Remain at Home Senior Care, LLC’s (“RAH”) Motion to
Compel Answers to its Second Set of Interrogatories (“Second Interrogatories”). (ECF No. 200.)
Plaintiff-Relators (“Plaintiffs”) filed a Response (ECF No. 201) to which RAH submitted a Reply
(ECF No. 208). For the reasons set forth below, the court GRANTS IN PART and DENIES IN
PART RAH’s Motion to Compel (ECF No. 200), and ORDERS Plaintiffs to respond to
Interrogatory Nos. 2(a)–(e) and 3(a)–(e) in RAH’s Second Interrogatories within twenty-one (21)
days of entry of this order.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Tanja Adams, Kianna Curtis, Mindy Roberts, Ashley Segars, and Tamara
Williford, all licensed nurses formerly employed by RAH, brought a qui tam lawsuit against
Collins and RAH, RAH’s owners, and other individuals and entities alleging that Defendants
engaged in illegal referral and fraudulent medical necessity practices and conspired to present these
false claims to the government to receive payment from federal health care programs, including
the Department of Labor’s Division of Energy Employees Occupational Illness Compensation
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Program, in violation of the Federal False Claims Act. (ECF No. 29 at 1–2 ¶¶ 1–2, 4 ¶ 11, 8–13
¶¶ 15–25.) Plaintiffs further asserted they each “suffered employment retaliation because of their
efforts to stop Defendants’ continued violations of the False Claims Act, 31 U.S.C. §§ 3729–
3733.” (Id. at 2 ¶ 3, 4 ¶ 11.)
On August 24, 2021, RAH filed a Motion to Compel Answer to Second Interrogatories.
(ECF No. 200.) Plaintiffs filed a Response (ECF No. 201) on September 7, 2021 and RAH filed
a Reply (ECF No. 208) on September 10, 2021.
II.

LEGAL STANDARDS

A. Discovery Generally
Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain discovery regarding
any non-privileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case[.]” Fed. R. Civ. P. 26(b)(1). The scope of discovery under Rule 26 is defined
by whether the information sought is (1) privileged, (2) relevant to a claim or defense, and (3)
proportional to the needs of the case. E.g., Gordon v. T.G.R. Logistics, Inc., No. 16-cv-00238NDF, 2017 WL 1947537, at *2 (D. Wyo. May 10, 2017). “While the party seeking discovery has
the burden to establish its relevancy and proportionality, the party objecting has the burden of
showing the discovery should not be allowed and doing so through ‘clarifying, explaining and
supporting its objections with competent evidence.’” Wilson v. Decibels of Or., Inc., No. 1:16-cv00855-CL, 2017 WL 1943955, at *2 (D. Or. May 9, 2017) (quoting La. Pac. Corp. v. Money Mkt.
1 Inst. Inv. Dealer, 285 F.R.D. 481, 485 (N.D. Cal. 2012) (internal citations omitted)).
A discovery request is relevant “if there is any possibility that the information sought might
be relevant to the subject matter of [the] action.” Wilson, 2017 WL 1943955, at *5 (quoting Jones
v. Commander, Kan. Army Ammunitions Plant, 147 F.R.D. 248, 250 (D. Kan. 1993)). “While

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Rule 26 does not define what is deemed relevant for purposes of the rule, relevance has been
‘broadly construed to encompass any possibility that the information sought may be relevant to
the claim or defense of any party.’” Martin v. Bimbo Foods Bakeries Distrib., LLC, 313 F.R.D. 1,
5 (E.D.N.C. 2016) (quoting EEOC v. Sheffield Fin. LLC, No. 06-889, 2007 WL 1726560
(M.D.N.C. June 13, 2007)) (internal citations omitted). “Relevance is not, on its own, a high bar.”
Va. Dep’t of Corrs. v. Jordan, 921 F.3d 180, 188 (4th Cir. 2019). Rule 26’s proportionality
requirement “mandates consideration of multiple factors in determining whether to allow
discovery of even relevant information.” Gilmore v. Jones, No. 3:18-cv-00017, 2021 WL 68684,
at *3–4 (W.D. Va. Jan. 8, 2021). Such considerations include “the importance of the issues at
stake in the action, the amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
The scope of discovery permitted by Rule 26 is designed to provide a party with
information reasonably necessary to afford a fair opportunity to develop its case. Nat’l Union Fire
Ins. Co. of Pittsburgh, P.A. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 983 (4th Cir.
1992) (“[T]he discovery rules are given ‘a broad and liberal treatment[.]’”) (quoting Hickman v.
Taylor, 329 U.S. 495, 507 (1947)). “Information within this scope of discovery need not be
admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). That said, discovery is not
limitless and the court has the discretion to protect a party from “oppression” or “undue burden or
expense.” Fed. R. Civ. P. 26(c).
B. Motions to Compel
If a party fails to make a disclosure required by Rule 26, “any other party may move
to compel disclosure and for appropriate sanction” after it has “in good faith conferred or

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attempted to confer with the person or party failing to make disclosure or discovery in an effort to
obtain it without court action.” Fed. R. Civ. P. 37(a). Specifically, a party “may move for an order
compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B).
“[T]he party or person resisting discovery, not the party moving to compel discovery, bears
the burden of persuasion.” Oppenheimer v. Episcopal Communicators, Inc., No. 1:19-cv-00282MR, 2020 WL 4732238, at *2 (W.D.N.C. Aug. 14, 2020). “Thus, once the moving party has made
‘a prima facie showing of discoverability,’ the resisting party has the burden of showing either:
(1) that the discovery sought is not relevant within the meaning of Rule 26(b)(1); or (2) that the
discovery sought ‘is of such marginal relevance that the potential harm . . . would outweigh the
ordinary presumption of broad discovery.’” Gilmore, 2021 WL 68684, at *3–4 (quoting Eramo v.
Rolling Stone LLC, 314 F.R.D. 205, 209 (W.D. Va. 2016)). The court has broad discretion in
deciding to grant or deny a motion to compel. See, e.g., Lone Star Steakhouse & Saloon, Inc. v.
Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995) (internal citation omitted); Erdmann v.
Preferred Research Inc., 852 F.2d 788, 792 (4th Cir. 1988); LaRouche v. Nat’l Broad. Co., 780
F.2d 1134, 1139 (4th Cir. 1986).
III.

ANALYSIS

RAH contends that Plaintiffs’ responses to its Second Interrogatories, which contain three
(3) questions to each Plaintiff, were both untimely and completely deficient, and requests an order
compelling full and complete responses. (ECF No. 200 at 1–2.) Plaintiffs respond that RAH has
exceeded the permissible number of interrogatories and now requests duplicative information that
Plaintiffs have already provided. (ECF No. 201 at 3.)

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A. Waiver of Objections
First, RAH avers that Plaintiffs waived any objections to the Second Interrogatories by
serving untimely responses. (ECF No. 200 at 2.) A party responding to interrogatories must
answer or object to each interrogatory within thirty (30) days of being served with the
interrogatories. Fed. R. Civ. P. 33(b)(2). An untimely objection is waived “unless the court, for
good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). Plaintiffs assert they have not waived
objections because they had good cause to serve their responses less than four (4) business days
late. (ECF No. 201 at 3.) The court finds that Plaintiffs have stated sufficient good cause to excuse
their late response. See Fed. R. Civ. P. 33(b)(4). Plaintiffs contend one of their attorneys returned
from medical leave on July 26, 2021, two (2) days before Plaintiffs’ responses were due. (Id. at
4.) Plaintiffs’ counsel communicated with Defendants’ counsel regarding the delay on July 30 and
submitted responses on August 3, 2021. (Id. at 2.) As such, the court finds that Plaintiffs have
stated sufficient good cause to excuse their late responses.
B. Number of Interrogatories
Next, RAH disputes Plaintiffs’ objection to the number of interrogatories, stating that it did
not exceed the permissible number of interrogatories and that Plaintiffs waived any right to assert
that the First Interrogatories contained impermissible discrete subparts. (ECF No. 200 at 3.)
Federal Rule of Civil Procedure 33(a)(1) provides that “a party may serve on any other party no
more than 25 written interrogatories, including all discrete subparts.” Fed. R. Civ. P. 33(a)(1).
As an initial matter, the court finds Plaintiffs waived their objections to the First
Interrogatories by answering them. See, e.g., Romanyk Consulting Corp. v. EBA Ernest Bland
Assocs., P.C., No. AW–12–2907, 2013 WL 3280030, at *6 (D. Md. June 26, 2013) (“By answering
some interrogatories and not answering others, defendants waived their objection that plaintiff had

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exceeded the number allowed in the rule.”) (citation omitted); Allavherdi v. Regents of Univ. of
N.M., 228 F.R.D. 696, 698 (D.N.M. 2005) (“When a party believes that another party has asked
too many interrogatories, the party to which the discovery has be[en] propounded should object to
all interrogatories or file a motion for protective order. The responding party should not answer
some interrogatories and object to the ones to which it does not want to respond. By answering
some and not answering others, the Defendants waived this objection.”).
Plaintiffs have not, however, waived their objection to the number of interrogatories RAH
may serve for the remainder of this case and the court will consider the subparts of RAH’s Second
Interrogatories. In determining whether subparts should be considered as separate interrogatories,
“[a]n interrogatory containing subparts directed at eliciting details concerning the common theme
should be considered a single question, but an interrogatory with subparts inquiring into discrete
areas is more likely to be counted as more than one for purposes of limitation.” Mezu v. Morgan
State Univ., 269 F.R.D. 565, 572–73 (D. Md. 2010) (citations omitted). Courts within the United
States Court of Appeals for the Fourth Circuit apply the test outlined in Kendall v. GES Exposition
Servs., 174 F.R.D. 684, 685 (D. Nev. 1997). See Rawl v. S.C. Dep’t of Soc. Servs., No. 2:14-cv02772-DCN, 2015 WL 6725169, at *2 (D.S.C. Nov. 3, 2015). In Kendall, the court analyzed an
interrogatory asking for identification of certain employment qualifications and, also, asking for
identification of any document in which the qualifications are articulated. Kendall, 174 F.R.D. at
686–87. The court determined that
the first question asks for a description of qualifications. The second question asks
for a description of documents. The first question can be answered fully and
completely without answering the second question. The second question is totally
independent of the first and not “factually subsumed within and necessarily related
to the primary question.” See Lawrence v. First Kansas Bank & Trust Co., 169
F.R.D. 657, 660–661 (D. Kan. 1996). The second question is really a fugitive
request for production of documents and the discovery effort would be better served
in that format.
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Id. at 686. District courts in other circuits have also found that interrogatories requesting
documents are distinct. See, e.g., Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 10
(D.D.C. 2004); Freeman v. Motorola Solutions, Inc., No. 6:19-cv-2116-ORL-78GJK, 2020 WL
10319159, at *10 (M.D. Fla. Oct. 7, 2020); Cook v. City of Dallas, No. 3:12-cv-3788-N, 2017 WL
9534098, at *2 (N.D. Tex. Apr. 10, 2017); Phillips v. Clark Cty. Sch. Dist., No. 2:10-cv-02068GMN, 2012 WL 135705, at *7 (D. Nev. Jan. 18, 2012).
The court has reviewed RAH’s interrogatories and finds that the majority of the subparts
in RAH’s Second Interrogatories elicit details concerning the primary question to which they
relate. The court considers the subparts asking for identification of documents, however, as
distinct interrogatories. RAH’s Second Interrogatories include three (3) interrogatories containing
six (6) subparts to each Plaintiff. (ECF Nos. 200 at 1, 200-1 at 3–5.) Each interrogatory contains
a subpart F, asking for “[e]ach document or tangible thing which relates to, reflects, or refers to”
the main topic of that question. (Id.) The court finds that subpart F of each of these interrogatories
is a discrete subpart that should be considered a separate interrogatory. In its Reply to Plaintiffs’
Response, RAH states that if this court agrees that interrogatories requesting documents are
distinct, “RAH hereby withdraws any request for documents in its Second Interrogatories if
Relators will answer the requests for information.” (ECF No. 208 at 3.) Accordingly, Plaintiffs
are not required to respond to the requests for documents contained within subpart F of each
interrogatory in RAH’s Second Interrogatories. Therefore, RAH’s Second Interrogatories only
constitute three (3) additional questions as to each Plaintiff. 1

The court notes that RAH’s First Interrogatories to Plaintiff Segars included twenty-three (23)
interrogatories, thereby three (3) additional questions would exceed the permissible number of
interrogatories if not for the court’s ruling below that Interrogatory No. 1 is duplicative of prior
discovery.
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C. Duplicative Requests
Finally, RAH disputes Plaintiffs’ objection that its Second Interrogatories are duplicative
of those asked during the first round of interrogatories and during Plaintiffs’ depositions. Upon
review of RAH’s First Interrogatories, the court finds Interrogatory No. 1 in RAH’s Second
Interrogatories duplicative of prior discovery requests. As such, the court sustains Plaintiffs’
objection as to Interrogatory No. 1 and Plaintiffs are not required to answer this interrogatory.
Plaintiffs have not brought to the court’s attention prior interrogatories or specific excerpts from
deposition transcripts illustrating that Interrogatory Nos. 2 and 3 are duplicative of prior discovery,
and, as such, the court cannot make a determination as to those interrogatories. See Anderson v.
United Air Lines, Inc., 49 F.R.D. 144, 147 (S.D.N.Y. 1969) (“it is not the Court’s function to sift
[through] the depositions or responses to determine whether the interrogatories are sufficiently
answered therein; rather, the movant is obliged to indicate exactly where in the depositions or
responses the answers to the interrogatories may be found.”).
IV.

CONCLUSION

For the reasons set forth above, the court GRANTS IN PART and DENIES IN PART
RAH’s Motion to Compel (ECF No. 200), and ORDERS Plaintiffs to respond to Interrogatory
Nos. 2(a)–(e) and 3(a)–(e) in RAH’s Second Interrogatories within twenty-one (21) days of entry
of this order.
IT IS SO ORDERED.

United States District Judge
January 19, 2022
Columbia, South Carolina

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