LYNNE A. SITARSKI, Magistrate Judge.
Presently before the Court are Plaintiff's Motion to Compel Defendants to Produce Witnesses and Documents for Depositions, for Sanctions, and to Extend the Fact Discovery Deadline (ECF No. 19), and Defendants' opposition thereto (ECF No. 22); Defendants' Motion for Protective Order (ECF No. 21), and Plaintiff's opposition thereto (ECF No. 23); Defendants' Motion to Compel More Specific Discovery Answers and Plaintiff's Deposition (ECF No. 24), and Plaintiff's opposition thereto (ECF No. 28); and several supplemental briefs filed by both parties in support of these interrelated motions (ECF Nos. 25, 26, 29, 30).
In this diversity case, Lance Yarus, D.O., a physician specializing in pain management, claims that certain Walgreen pharmacists in the Philadelphia area made defamatory comments about him to his patients on five separate occasions. Specifically, Plaintiff claims that, first, on May 1, 2009, a Walgreen pharmacist in Philadelphia told one of Plaintiff's patients that his prescription could not be filled because Plaintiff was "under investigation by the Drug Enforcement Agency (DEA)." (Am. Compl. ¶ 16, ECF No. 10). When Plaintiff contacted the pharmacy about this incident, he was told that Walgreen's "prescriber profile" computer system contained a notation that Plaintiff's prescriptions should not be filled pending a DEA investigation. (Lttr, 5/7/2009, ECF No. 19-2). Plaintiff's attorney then notified Walgreen's legal department that its actions amounted to libel and slander, and asked it to immediately correct its prescriber profile system to reflect Plaintiff's good standing and right to prescribe drugs. (Am. Compl. ¶¶ 17-18, ECF No. 10; Lttr, 5/7/2009, ECF No. 19-2). Michael Freeman, an attorney in Walgreen's legal department, subsequently called Plaintiff's attorney's office to inform Plaintiff that the notation had been removed from his prescriber profile.
However, Plaintiff later learned that, on July 23, 2010, another patient was informed by a Walgreen pharmacist that her prescription could not be filled because Plaintiff was under investigation by the DEA. (Am. Compl. ¶ 19, ECF No. 10). Plaintiff's attorney again contacted Walgreen's legal department. (Id. at ¶ 20). On August 13, 2010, Walgreen attorney Brett Stacey wrote to Plaintiff and informed him that "all comments [had] been removed from his prescriber profile." (Id. at ¶ 21-22).
According to Plaintiff, approximately three years later, on June 13, 2013, a Walgreen pharmacist told another patient that she could not fill his prescription because Plaintiff was a "pill pusher banned by the DEA" and on the "DEA red list." (Id. at ¶¶ 23-26). Similar incidents occurred on December 21, 2013, and March 22, 2014, when two of Plaintiff's patients were told that their prescriptions could not be filled because Plaintiff was "just dispensing narcotics," and was "an irresponsible doctor who just writes scripts and probably does very little treating." (Id. at ¶¶ 30-35, 42).
Based on these allegations, Plaintiff commenced this action alleging defamation and interference with contractual relationships against Walgreen Company and Walgreen Eastern Co., Inc. Plaintiff claims that Defendants' conduct: exacerbated his multi-vessel coronary artery disease, leading to a minor heart attack and bypass surgery in April 2014; caused severe, permanent and long-term emotional distress; and caused financial damage to his medical practice. (Am. Compl. ¶¶ 51-53, 68-70, 75-76, ECF No. 10).
Discovery in this matter commenced in or around June 2014. On August 14, 2014, Plaintiff served Defendants with three notices of deposition, and the following month advised Defendants that he also wished to depose nine more individuals. (Pl.'s Mot. to Compel 7, ECF No. 19). After Defendants informed Plaintiff that they would not produce any of these witnesses, Plaintiff filed in this Court the present Motion to Compel (ECF No. 19),
Meanwhile, on September 23, 2014, Defendants served Plaintiff with a Request for Production of Documents. (Mot. to Compel More Specific Discovery Answers, ECF No. 24). Plaintiff provided answers to the Request on October 20, 2014, but did not produce certain requested documents. (Id.). As a result, Defendant filed a Motion to Compel seeking more specific answers to their Request. (Id.). In that motion, Defendant also asks the Court to resolve two additional discovery disputes. (Id. ¶¶ 9-10, ECF No. 24).
"It is well established that the scope and conduct of discovery are within the sound discretion of the trial court." Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983). Pursuant to Federal Rule of Civil Procedure 26(b)(1), a party "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Relevant information sought in discovery need not be admissible at trial, as long as it "appears reasonably calculated to lead to the discovery of admissible evidence." Id. Relevance is generally "construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Funds v. Sanders, 437 U.S. 340, 351 (1978).
While generally liberal, permissible discovery is not without limitations. "Discovery should not serve as a fishing expedition." Upshaw v. Janssen Research & Development, LLC, No. 11-7574, 2014 WL 1244047, at * 3 (E.D. Pa. Mar. 26, 2014); see also Claude P. Bamberger Int'l v. Rohm & Haas Co., No. 96-1041, 1998 WL 684263, at *5-6 (D.N.J. Mar. 31, 1998) ("While the standard of relevancy is a liberal one, it is not so liberal as to allow a party to roam in shadow zones of relevancy and to explore matter which does not appear germane merely on the theory that it might become so.") (internal quotation marks and citation omitted).
Pursuant to Rule 37, a party who has received evasive or incomplete answers to discovery requests may move for an order compelling discovery. See Fed. R. Civ. P. 37(a)(1), (4). The moving party bears the initial burden of showing that the requested discovery is relevant. Morrison v. Phila. Hous. Auth., 203 F.R.D. 195, 196 (E.D. Pa. 2001). The burden then shifts to the party opposing discovery to articulate why discovery should be withheld. Id. The party resisting production must demonstrate to the court "that the requested documents either do not come within the broad scope of relevance defined pursuant to Fed. R. Civ. P. 26(b)(1) or else are of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure." Young v. Lukens Steel Co., No. 92-6490, 1994 WL 45156, at *2 (E.D. Pa. Feb. 10, 1994) (quotations and citation omitted).
[I]t is well-established that a party wishing to obtain an order of protection over discovery material must demonstrate that `good cause' exists for the order of protection. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994) (citing Fed. R. Civ. P. 26(c); Smith v. Bic Corp., 869 F.2d 194, 199 (3d Cir. 1989)). Good cause is established by a showing that disclosure will work a clearly defined and serious injury to the party seeking disclosure. Id. The Third Circuit has enunciated a list of non-exhaustive factors that the district court can consider in determining whether "good cause" exists. See id. at 787-91; Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing Pansy, 23 F.3d at 787-91). The party seeking a protective order bears the burden of persuasion and "broad allegations of harm, unsubstantiated by specific examples or articulated reasoning do not satisfy the Rule 26(c) test." Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
Plaintiff seeks to depose Robin Wheeler, the individual whom Defendant identified in its self-executing discovery as the person who monitored Plaintiff's prescriber profile in 2009 and 2010, and eight additional Walgreen employees (together, the "Walgreen Employees") who allegedly made entries into Plaintiff's prescriber profile. (Pl.'s Mot. to Compel 4-7, ECF No. 19).
Defendants object to the requested depositions on the ground that, inter alia, the information Plaintiff seeks to obtain from the Walgreen Employees is beyond the scope of his claims. Defendants explain that they do not object to the deposition of a Walgreen employee to testify generally about the prescriber profile system, nor do they object to the depositions of the pharmacists alleged to have made defamatory comments to Plaintiff's patients. According to Defendants, however, depositions of the Walgreen Employees who made entries in Plaintiff's profile would not be reasonably calculated to lead to the discovery of admissible evidence, see Fed. R. Civ. P. 26(b)(1), because those entries cannot form the basis of a defamation claim; rather, only communications that are "published" to a third party are actionable.
The Court agrees with Defendants that Plaintiff seeks information from these individuals that is beyond the scope of his defamation claim.
Accordingly, the Court will deny Plaintiff's motion to compel Defendants to produce the Walgreen Employees for deposition. The Court will deny as moot Defendants' protective motion insofar as it pertains to these witnesses.
Plaintiff also asks the Court to compel Defendants to produce for deposition Michael Freeman, the in-house attorney who informed Plaintiff's counsel in August 2009 that the defamatory remarks had been removed from Plaintiff's prescriber profile, and Brett Stacey, the in-house attorney who communicated the same to Plaintiff in August 2010. Plaintiff argues that he is entitled to depose these Walgreen attorneys in order to determine "what they relied on" in representing to Plaintiff that the notations had been removed. (Pl's Supp. Memo. of Law 14, ECF No. 25). As previously noted, Plaintiff's attorney wrote to Walgreen's Legal Department first in May 2009, and again in July 2010, to advise them that she "represent[s Plaintiff] regarding his claims for injuries stemming from Walgreen's actions which constitute libel and slander," and to demand that the defamatory notations be removed from Plaintiff's prescriber profile. (Lttrs 5/7/2009 and 7/26/2010, ECF No. 19-2). In response to the first letter, Attorney Freeman told Plaintiff's attorney's paralegal that he had spoken with the district manager and the remark had been removed from the computer system. (Pl's Mot. to Compel 4, ECF No. 19). He also stated that all staff had been counseled and reprimanded, and apologized for what had happened. (Id.). In response to the second letter, Attorney Stacey wrote a letter to Plaintiff advising him that two District Pharmacy Supervisors were investigating the incident, and that all comments had been removed from his profile. (Lttr 8/13/2010, ECF No. 10-1).
Defendants oppose Plaintiff's Motion to Compel and seek a protective order precluding these depositions on the ground that Attorneys Freeman and Stacey do not have any relevant information because they have no personal knowledge of any of the alleged defamatory comments. Defendants further argue that any relevant information they might have is protected by the work-product doctrine because it was obtained in anticipation of litigation threatened by Plaintiff's counsel in 2009 and 2010. Lastly, Defendants claim that, in any event, these attorneys were involved in this matter only in 2009 and 2010, outside the applicable statute of limitations.
The Court agrees with Defendants that what the attorneys "relied on" does not appear to be relevant to Plaintiff's defamation claim. As discussed above, Plaintiff's cause of action concerns only the pharmacists' allegedly defamatory statements to Plaintiff's patients.
Accordingly, the Court will deny Plaintiff's motion to compel Defendants to produce Attorneys Freeman and Stacey for deposition. The Court will deny as moot Defendants' motion for protective order insofar as it pertains to these witnesses.
Plaintiff also seeks to depose a corporate designee pursuant to Fed. R. Civ. P. 12(b)(6). Because Defendants state that they are willing to produce a corporate designee, the Court will deny as moot Plaintiff's Motion to Compel with the understanding that Defendants will promptly produce a witness for deposition, without the need for further Court intervention.
In his Motion to Compel, Plaintiff asks the Court to extend the December 31, 2014 deadline for completion of fact discovery an additional fourteen days, without disrupting any additional deadlines. (Mot. 14, ECF No. 19). For their part, Defendant asks for a one-month extension of the discovery deadline to depose Plaintiff and approximately six witnesses he has identified, and to schedule examinations with the proper medical experts. (Resp. in Opp. to Motion to Compel 7, ECF No. 22).
The Court will grant Plaintiff's motion in this respect and extend the fact discovery deadline an additional thirty days. The other deadlines shall not be affected by this extension.
Plaintiff moves the Court to issue an order pursuant to Fed. R. Civ. P. 37(a)(5)(A) requiring Defendants to pay the counsel fees that Plaintiff incurred in preparing and filing this motion. See Fed. R. Civ. P. 37(a)(5)(A) (providing that, if the Court grants a party's motion to compel, it "must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees"). Given that, for the reasons discussed above, Plaintiff's Motion to Compel will be in large part denied, he is not entitled to an award of expenses under Rule 37. Accordingly, the Court will deny Plaintiff's motion in this respect.
Defendants contend that Plaintiff's responses to several written discovery requests are insufficient, and asks the Court to compel Plaintiff to provide more specific answers.
First, in Request No. 9, Defendants sought copies of Plaintiff's patient appointment books from 2009 to the present day. Defendants do not object to appropriate redactions to preserve privacy. (Mot. 2, ECF No. 24). Defendant claims that the appointment book constitutes evidence of the state of Plaintiff's practice before and after the alleged defamatory comments, which is relevant to his claim that Defendants damaged his practice. (Id.). Plaintiff now claims that he cannot disclose his appointment log without violating his patients' privacy. (Resp. 4, ECF No. 28). According to Plaintiff, Defendants' suggestion that he make redactions to the log is "meaningless" because he would have to redact every line of every page. (Id.). The Court finds that, contrary to Plaintiff's contention, production of the appointment logs with redactions would not be meaningless; to the contrary, the logs show the fact and nature of each appointment. Furthermore, although Plaintiff states that there are a number of other ways to assess the state of his practice before and after the incidents at issue, he does not identify those "other ways." (Resp. 4-5, ECF No. 28). Therefore, the Court will grant Defendants' motion to compel with respect to the patient logs, subject to redaction of patient names, to protect patients' privacy. In Request No. 17, Defendant sought copies of all written discovery produced in the case of Lance Yarus, D.O. v. James Tinnyo, Esq., and the Law Firm of Thomas, Thomas & Hafer, (Ct. Com. Pl. No. 130902964), pending in the Philadelphia Court of Common Pleas. Defendants state that Plaintiff has produced deposition transcripts from that case, but has refused to produce his interrogatory answers and all documents produced. (Mot. 2, ECF No. 24). Defendants claim that these documents are relevant to Plaintiff's damages in the present case because "he makes the same claims against the defendants in both cases." (Id.). In response, Plaintiff claims that he has complied with this request, and, to the extent he has not, attaches to his Response copies of the interrogatories and his responses to Mr. Tinnyo's RFP. (Resp. 5-6, ECF No. 28). Because it appears to the Court that these documents satisfy Defendants' request, the Court will deny as moot Defendant's motion with respect to RFP No. 17.
In Requests 19 through 21, Defendants sought copies of all personal income and business tax returns from 2007 to 2013. Defendants state that Plaintiff produced certain personal income tax returns, but failed to provide his 2009 1040 form. (Mot. 2, ECF No. 24). Defendants further state that although Plaintiff's counsel informed Defendants that Plaintiff did not file tax returns on behalf of his medical practice (Regional Orthopedic Associated, P.C.), he subsequently produced such returns — but only for 2007, 2009, and 2013, and has refused to produce the rest. (Mot. 2-3, ECF No. 24). Lastly, Defendants contend that they believe that Plaintiff owns at least one other company, and that he should be required to identify and produce the tax returns for that company as well. (Mot. 3, ECF No. 24). In response, Plaintiff contends that, contrary to Defendants' contention, he has produced these documents. With respect to his 2009 1040, Plaintiff states that it was produced in his October 20, 2014 production and can be found at Bates stamped page 1586. (Resp. 6, ECF No. 28). In their Reply, Defendants insist that he has not produced that document, nor any returns for "LS&M, LLC." (Lttr 11/14/14, ECF No. 30). Because the Court does not have any additional information from the parties to determine which party is correct on these matters, it will deny as moot Defendants' motion to compel production of the requested materials. Given that Plaintiff has not asserted any objections to producing the requested materials, the Court is confident that the parties can act in a professional manner and resolve their disagreement as to which documents have or have not already been produced.
Next, Defendants contend that, on October 24, 2014, they faxed a letter to Plaintiff's counsel with a HIPAA release for Paul Dikun, Ph. D., and asked that Plaintiff sign and return the form. (Mot. 3, ECF No. 24). Defendants explain that Plaintiff has indicated that he was treated by Dr. Dikun in July 2014 as a result of the defamatory statements at issue in this case. (Id.). Defendants claim that Plaintiff has failed to return the HIPAA form. (Id.). In response, Plaintiff contends that Defendants received the relevant records from Dr. Dikun with the records that were subpoenaed by counsel for Thomas, Thomas & Hafer in the Court of Common Pleas suit. (Resp. 6, ECF No. 28). Because Defendants do not counter Plaintiff's representation in their Reply, and because the Court has not been given any reason to doubt Plaintiff's representation that Defendants have received the relevant materials, it will deny as moot Defendants' motion to compel production of the HIPAA Release Form.
Lastly, Defendants claim that although defense counsel has attempted several times to schedule a date to depose Plaintiff, Plaintiff's counsel "refuses to agree to a deposition date." (Mot. 3, ECF No. 24). According to Plaintiff's counsel, however, he has made Plaintiff reasonably available for deposition. (Resp. 7, ECF No. 28). Yet, in their Reply, Defendants state that Plaintiff's counsel has not accurately represented their discussions attempting to establish a deposition date, and argues that, "[i]n light of the pattern of resistence as outlined in the motion, the issue of plaintiff's deposition is not yet moot." (Lttr 11/14/14. ECF No. 30). The Court is confident that two experienced attorneys such as Mr. Sanzo and Mr. Innelli can agree on a deposition date without this Court's intervention. Therefore, it will deny as moot Defendants' Motion to Compel in this regard.
For the reasons set forth above, Plaintiff's Motion to Compel Defendants to Produce Witnesses and Documents for Depositions, for Sanctions, and to Extend the Fact Discovery Deadline (ECF No. 19) will be GRANTED with respect to the request to extend the discovery deadline, DENIED AS MOOT with respect to the request to depose a corporate designee, and DENIED in all other respects; Defendants' Motion for Protective Order (ECF No. 21) will be DENIED AS MOOT; and Defendants' Motion to Compel More Specific Discovery Answers and Plaintiff's Deposition (ECF No. 24), will be GRANTED in part and DENIED AS MOOT in part.
An appropriate order follows.
