PATRICIA E. CAMPBELL-SMITH, Chief District Judge.
Plaintiff, New Orleans Regional Physician Hospital Organization, Inc., d/b/a Peoples Health Network (PHN or plaintiff), has filed a Motion to Compel (plaintiff's motion), pursuant to Rule 37 of the Rules of the United States Court of Federal Claims (RCFC), requesting that the court order defendant to redo its searches for responsive documents according to parameters to be agreed upon by the parties. Pl.'s 3d Mot. Compel (Pl.'s Mot.) 1, June 19, 2014, ECF No. 82. Plaintiff also requests that the court order the parties to reschedule the remaining depositions and permit plaintiff to retake the three previously completed depositions in accordance with a new discovery schedule.
In addition to the plaintiff's motion, the court also considers plaintiff's Memorandum in Support of its Motion to Compel (Pl.'s Mem.), filed June 19, 2014, ECF No. 82-1; the exhibits attached to the Motion to Compel (Pl.'s Mot. Exs.), filed June 19, 2014, ECF No. 82-2; Plaintiff's Supplemental Brief (Pl.'s Suppl. Br.) and accompanying exhibits (Pl.'s Suppl. Br. Exs.), both filed June 20, 2014, ECF Nos. 85, 85-1; Defendant's Response to the Motion to Compel (Def.'s Resp.) and Defendant's Appendix (DA), both filed February 20, 2015, ECF Nos. 105, 105-1-105-5; Plaintiff's Reply to Defendant's Response to the Motion to Compel (Pl.'s Reply) and accompanying exhibits (Pl.'s Reply Exs.), filed March 25, 2015, ECF Nos. 109, 109-2; Defendant's Sur-Reply, filed April 24, 2015, ECF No. 114; supplemental exhibits for Defendant's Appendix (DA), filed April 27, 2015, ECF No. 115-1; and Plaintiff's Sur-Sur-Reply (Pl.'s Sur-Sur-Reply) and its accompanying exhibit (Pl.'s Sur-Sur-Reply Ex.), both filed May 21, 2015, ECF Nos. 119, 119-2.
The court also relies on the twenty-three declarations from current and former CMS employees, and a federal contractor, who searched for responsive documents. Abeln Decl., ECF No. 105-1, at A1-3; August Decl., ECF No. 105-1, at A4-9; Brauer Decl., ECF No. 105-1, at A10-14; Bucksten Decl., ECF No. 105-1, at A15-17; Lopez Cardona Decl., ECF No. 105-1, at A18-19; Clybourn Decl., ECF No. 105-1, at A20-43; Coleman Decl., ECF No. 105-1, at A44-47; Cones Decl., ECF No. 105-1, at A48-50; Creighton Decl., ECF No. 105-1, at A51-52; Farris Decl., ECF No. 105-1, at A53-55; Harper Decl., ECF No. 105-1, at A56-58; Hart Decl., ECF No. 105-1, 105-2, at A59-60; Hornsby Decl., ECF No. 105-2, at A61-70; Kennedy Decl., ECF No. 105-2, at A71-73; McCutcheon Decl., ECF No. 105-2, at A74-78; Moon Decl., ECF No. 105-2, 105-3, at A79-84; Pagan Decl., ECF No. 105-3, 105-4, at A85-91; Rice Decl., ECF No. 105-4, at A92-96; Scott Decl., ECF No. 105-4, at A97-98; Sparr Decl., ECF No. 105-4, 105-5, A99-101; Szeflinski Decl., ECF No. 105-5, at A102-104; and Tabe-Bedward Decl., ECF No. 105-5, at A105-107, all filed on February 20, 2015; Stanley Decl., filed by defendant on April 6, 2015, ECF No. 111-1; and Clybourn Suppl. Decl., filed by defendant on May 21, 2015, ECF No. 119-2, at A183-85.
For the reasons set forth herein, plaintiff's motion is
PHN is a Medicare Advantage Health Plan that provides managed care services to Medicare recipients in approximately fifteen Louisiana parishes around New Orleans. Am. Compl. ¶¶ 1, 9, Oct. 21, 2011, ECF No. 6-1.
Hurricane Katrina struck the New Orleans area on August 29, 2005, and Hurricane Rita followed a few weeks later.
PHN alleges that, in early September 2005 and repeatedly thereafter, CMS "unilaterally modified" the contracts in order to ensure that PHN's Medicare Advantage enrollees continued receiving medical services regardless of where they had settled and regardless of the prevailing reimbursement rates for Medicare Advantage Plans or medically-related services in those areas. Am. Compl. ¶ 13. PHN also alleges, among other things, that CMS reduced its monthly payments to PHN based on the new, temporary domiciles of PHN's re-located enrollees.
On June 1, 2012, the court put in place an ill-fated discovery schedule. Order, ECF No. 20. Since that time, the parties have been entangled in numerous discovery and scheduling disputes.
On November 29, 2012, PHN served CMS with written discovery requests. Pl.'s Mem. 4. Before responding, or otherwise beginning fact discovery, defendant filed a motion for summary judgment. Def.'s Mot. Summ. J., Jan. 31, 2013, ECF No. 26. On February 19, 2013, plaintiff filed a motion pursuant to RCFC 56(d) requesting that the motion for summary judgment either be deferred or denied to allow for limited discovery. Pl.'s Mot. Defer, ECF No. 29. On March 5, 2013, plaintiff filed its first motion to compel, requesting that the court compel defendant to produce full and complete responses to plaintiff's first set of interrogatories and requests for production. Pl.'s 1st Mot. Compel 1, ECF No. 33.
On April 16, 2013, Judge George W. Miller—who was then presiding over this matter—entered an order that stayed further briefing on defendant's motion for summary judgment and authorized plaintiff to engage in a limited, ninety-day period of discovery.
The parties failed to agree on a schedule, and Judge Miller intervened with a status conference.
Pursuant to court order, defendant produced its written discovery responses, nearly 1,000 responsive documents, and a privilege log prior to June 10, 2013.
On July 9, 2013, plaintiff filed its second Motion to Compel, alleging that defendant failed to provide adequate responses to its discovery requests. Pl.'s 2d Mot. Compel, ECF No. 64. On November 21, 2013, Judge Francis M. Allegra—to whom the court had reassigned this case—entered an order granting-in-part and denying-in-part plaintiff's Motion to Compel. Order, ECF No. 76.
CMS continued to discover and produce additional documents to PHN through the end of 2013. Pl.'s Mem. 7. In December 2013, PHN requested that a schedule be put in place requiring the parties to agree upon "[a] proposed list of custodians and search terms for electronic discovery pertaining to the pending Motion for Summary Judgment." JSR 1, Dec. 20, 2013, ECF No. 77. Defendant objected to this request.
On June 6, 2014, plaintiff took the deposition of Elizabeth "Ruth" Geisler, who was a former Health Insurance Specialist with CMS.
On June 12, 2014, PHN contacted defendant's counsel to schedule a RCFC 37 conference to discuss whether a full search of Ms. Geisler's records had been conducted. Pl.'s Mot. Ex. 5, ECF No. 82-2, at pp. 65-66. On June 13, 2014, defendant's counsel requested time to review the transcript from Ms. Geisler's deposition, which she had not yet received, and to hold discussions with CMS prior to any discovery conference. Pl.'s Mot. Ex. 6, ECF No. 82-2, at p. 67. That same day, plaintiff's counsel responded by refuting the need for a deposition transcript prior to the conference because defendant's counsel was present at the deposition and did not need to know the exact testimony to discuss the government's discovery efforts. Pl.'s Mot. Ex. 7, ECF No. 82-2, at p. 68. Plaintiff offered to postpone the conference if defendant would agree to delay the upcoming deposition of Michael Fiore.
On June 17, 2014, PHN took the deposition of Michael Fiore, a Division Director for CMS.
With three more depositions scheduled before the July 30, 2014, deadline, PHN determined that it could not wait for defendant to be willing to confer.
Pl.'s Sur-Sur-Reply 3-4 (updating the relief sought in plaintiff's original motion).
On June 20, 2014, PHN filed a supplemental brief in support of its motion, informing the court of the parties' additional, unsuccessful efforts to resolve their issues outside of court. Pl.'s Suppl. Br. 1-2. As the parties requested during a subsequent status conference, the court stayed briefing on plaintiff's motion to allow the parties more time to resolve their discovery disputes. Order, July 11, 2014, ECF No. 89.
On October 3, 2014, the case was transferred to the undersigned. On October 27, 2014, the court held a status conference to determine how this case should proceed.
Briefing was concluded on plaintiff's motion on May 21, 2015.
As ordered by the court, defendant submitted twenty-three declarations from current and former CMS employees, and a federal contractor, who searched for responsive documents. These declarations and the other exhibits and appendices attached to the parties' briefs shed some light on defendant's discovery efforts throughout this litigation.
Beginning in August 10, plaintiff began discussing its concerns with CMS over the agency's handling of matters in the aftermath of Hurricane Katrina.
Out of the twenty-three custodians who submitted declarations on defendant's search efforts, only two expressed knowledge that a litigation hold had been put in place.
In 2013, counsel for defendant and counsel for CMS had a conference call with Danielle Moon, the former Director of the Medicare Drug and Health Plan Contract Administration Group (MCAG), and Kimberly August, Ms. Moon's Special Assistant at the time, to discuss the need for additional searches for responsive documents. Def.'s Resp. 26. On June 25, 2013, Ms. August sent an email to all MCAG divisions, instructing them to search their own files, retrieve and search the physical files for the relevant contract documents, and "revisit the files left by former employees to ensure they do not contain responsive documents." August Decl. ¶ 4. The next day, Ms. Moon sent a similar email to all CMS group directors and deputies responsible for Medicare Part C and D with instructions to search their files with a broader scope, even if they had previously searched their files. Moon Decl. ¶ 6. The email included twelve categories of documents for which to search and eight recommended search terms.
On February 14, 2014, defendant provided plaintiff with a list of the custodians and search terms used in the search for responsive documents. Pl.'s Reply Ex. 2. Defendant listed nineteen custodians who helped with the search and stated that the government used a list of twenty-eight search terms "for purposes of locating electronic and hardcopy documents responsive to your discovery requests."
None of the declarants stated that they used the twenty-eight word list in their searches. Instead, the declarations show great variation in the methods and key words used in the searches—to the extent that the employees remembered their efforts.
Defendant argues that some files that plaintiff seeks may have been lawfully destroyed prior to the commencement of litigation in this case. Def.'s Resp. 30. In his first declaration, Mr. Clybourn described the retention policy applicable to the documents in this case, as contained in the CMS Records Schedule. Clybourn Decl. ¶¶ 3-6. Mr. Clybourn explained that the documents at issue here—including emails, reports, and HPMS marketing materials—fall within the category of "Administrative Office Files" and can be destroyed two years after the end of the calendar year in which the document was dated.
The parties place particular emphasis on the files maintained by Ms. Geisler, who was CMS's plan manager for PHN during the relevant time period. Ms. Geisler retired from CMS on December 31, 2011, four months after this case was filed but before the litigation hold was in place. Geisler Dep. 15:7-10. Upon her retirement, her personal drives were destroyed.
Defendant alleges that it still may have produced all responsive documents that belonged to Ms. Geisler.
RCFC 37 provides that "a party may move for an order compelling disclosure or discovery." RCFC 37(a)(1). In acting on a motion to compel discovery, the court exercises broad discretion, guided by the court's rules.
Generally, discovery rules "are to be accorded a broad and liberal treatment."
RCFC 26(b)(2)(C). The court must balance these considerations and "be careful not to deprive a party of discovery that is reasonably necessary to afford a fair opportunity to develop and prepare the case."
The party moving to compel discovery bears the burden of proving that the opposing party's answers are incomplete.
Plaintiff argues that defendant's production in response to plaintiff's requests for production was deficient, and that defendant should be required to redo its searches with a more rigorous search protocol agreed upon by the parties. Pl.'s Mem. 14-15. Plaintiff believes that defendant's response should include,
Defendant opposes the motion to compel, arguing that plaintiff did not confer in good faith with defendant prior to filing its motion, in violation of RCFC 37(a)(1). Def.'s Resp. 14-23. Defendant further argues that plaintiff has failed to demonstrate that defendant's production was inadequate and has requested documents regarding other MAOs that fall outside of the scope of limited discovery.
The court now proceeds to determine whether plaintiff's motion to compel should be granted, and how this case should proceed. For the reasons discussed below, the court
RCFC 37(a)(1) provides:
RCFC 37(a)(1).
In accordance with this rule, plaintiff certified in its motion to compel that "PHN conferred and/or attempted to confer with counsel for CMS in an effort to obtain the discovery requested or otherwise resolve this discovery dispute without court intervention but has been unable to resolve the issues." Pl.'s Mot. 2. Defendant argues that, contrary to the certification, plaintiff failed to confer in good faith prior to filing its motion, and therefore the motion should be denied. Def.'s Resp. 14-23.
The court finds that plaintiff did make a good faith attempt to confer with defendant prior to filing its motion, in accordance with RCFC 37. Even before the depositions began, plaintiff questioned the sufficiency of defendant's production and requested more information from defendant regarding its searches.
Plaintiff appropriately took into consideration the court's preference for motions to compel to be filed in advance of discovery deadlines. Courts have found that a motion to compel "is timely when `filed sufficiently in advance of the discovery deadline . . . to allow it to be heard by [the] court, and if granted, to allow the compelled discovery to be produced prior to the deadline.'"
While ideally the parties would have had substantive, detailed discussions regarding all of plaintiff's claims prior to the filing of the motion to compel, the court recognizes that plaintiff wished to file the motion in advance of the discovery deadline, and to allow the court time to resolve the dispute before additional depositions were completed.
Defendant argues that counsel for PHN should have "devote[d] their energies to rescheduling the remaining depositions and, if necessary, seeking an enlargement to the discovery schedule rather than filing a premature motion to compel." Def.'s Resp. 23. Plaintiff did request that the deposition of Mr. Fiore be postponed, but defendant failed to respond. Pl.'s Mot. Ex. 7.
Additionally, any harm created by plaintiff's filing of its motion prior to holding a RCFC 37 conference was mitigated by the subsequent opportunities for the parties to discuss the discovery issues. On June 20, 2014, the court stayed briefing on plaintiff's motion to compel to allow the parties to "work to resolve their discovery issue." Order, ECF No. 86. On July 11, 2014, that stay was continued at the parties' request to allow "additional time to resolve their discovery dispute." Order, ECF No. 89;
Any argument by defendant that restarting the discussions would have led to an efficient, consensual resolution of these discovery issues seems disingenuous given the history of this dispute. The parties have had ample opportunities to reach an agreement and have failed. The court will not negate the work of the parties over the last fourteen months by requiring the parties, once again, to discuss these issues until they reach an impasse, and then start over with another motion to compel.
The court finds that plaintiff did make a good faith attempt to discuss its concerns with defendant, pursuant to RCFC 37(a)(1), and therefore is entitled to consideration of its motion to compel.
The court turns to plaintiff's allegations that defendant failed to conduct a thorough search for responsive documents and ultimately produced a deficient response to its discovery requests.
A proper search for discoverable documents requires careful planning, oversight, and monitoring by the party's counsel.
The court finds that defendant did not put into place a systematic, reliable plan to find and produce all relevant documents in this case. First, it appears that there was little oversight by defendant's counsel over the search efforts of the CMS employees. The declarations indicate that many of the custodians relied upon an email they received in June 2013 for their search instructions. That email listed categories of documents and recommended eight search terms for the custodians to use in their searches. The decision regarding which exact search terms to use was left up to the individual custodians, who understandably varied greatly as to the terms they actually selected. Several of the custodians did use the eight search terms listed in the email, but none of them seemed to use the twenty-eight search terms that defendant had represented to plaintiff were used in the search for responsive documents. Additionally, the custodians were not required to keep any record of the search terms they used and exactly what records they searched. Nor did the declarants mention any meaningful oversight over their individual search efforts.
The record does not allow the court to conclude that a thorough and reliable search was conducted. It is possible that defendant's searches did uncover all of the existing, relevant documents in CMS's possession. The court also recognizes that some relevant documents may have been destroyed in accordance with CMS's document retention program, and the court clearly cannot order defendant to produce documents that no longer exist.
Plaintiff's request for an order that the parties work together to develop new search parameters is hereby
On September 21, 2015, defendant shall commence any searches that have not already begun. Defendant shall maintain a record of which custodians performed searches, what search terms they used, what records they searched, and how many responsive documents were found. On November 23, 2015, defendant shall produce to the plaintiff the record of the searches and any relevant documents discovered in the searches that have not previously been produced. Such documents shall be in native format.
On November 29, 2012, plaintiff served CMS with written discovery requests including, in pertinent part, Request for Production No. 27, which requested "all documents that refer to or relate to how and what other Medicare Advantage Plans or Organizations and/or Medicare+Choice Plans or Organizations and/or M+C Plans or Organizations were paid, re-paid, and/or reimbursed by you following Hurricanes Katrina and Rita. . . ." Pl.'s Mem. 5. On June 3, 2013, defendant served PHN with its responses and objections to its first discovery requests, in which it objected to Request for Production No. 27 because it went "beyond the scope of the Court's April 16, 2013 order." DA 140.
In its pending motion, plaintiff again expresses the need for "communications between CMS personnel and other MAOs." Pl.'s Mem. 15. The court finds that this discovery request is not relevant to the resolution of defendant's motion for summary judgment and falls outside of the scope of the limited discovery permitted by this court's previous orders.
Judge Miller's April 16, 2013 order set specific limitations for the discovery in this case. Order, ECF No. 46. The order allowed plaintiff to undertake discovery in support of its claims that "CMS unilaterally modified its contract with
Plaintiff has not put forth any satisfactory argument in its briefs to justify a modification of the discovery limits established in the April 16, 2013 order. Plaintiff also fails to explain how the treatment of other MAOs is relevant to its claims that CMS breached its contracts with PHN.
Accordingly, plaintiff's request for discovery relating to other MAOs is hereby
In its motion to compel, plaintiff requests that the court "order the parties to work together to reschedule the currently scheduled depositions of Jennifer Messersmith, Marty Abeln, and Jonathan Blum after the discovery issues are resolved." Pl.'s Mot. 2. The court finds that it is not necessary to order such relief at this time. Despite the acrimonious history of this case, the court presumes that the parties can work together in good faith to schedule the remaining depositions.
Plaintiff also requests that the court "permit PHN to retake the depositions of the three witnesses deposed to date . . . in light of CMS' failure to make a complete document production." Pl.'s Mot. 2. This request is premature. At this point, the court does not know what new documents, if any, will be found in defendant's renewed search efforts and whether there will be a sound justification for retaking the depositions.
Accordingly, plaintiff's requests for a court order requiring the parties to reschedule the remaining depositions and permitting the plaintiff to retake the three completed depositions are hereby
In its motion, plaintiff moves for the award of attorney's fees for the costs incurred in prosecuting its motion to compel and for the costs of having to retake depositions. RCFC 37(a)(5) allows the court to award attorney's fees to the prevailing party after ruling on a motion to compel discovery. If the motion is granted, the award of attorney's fees is governed by RCFC 37(a)(5)(A), if the motion is denied, by RCFC 37(a)(5)(B), and if the motion is granted-in-part and denied-in-part, by RCFC 37(a)(5)(C).
Here, the court has granted-in-part and denied-in-part plaintiff's motion. RCFC 37(a)(5)(C) thus provides that the court "may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion." RCFC 37 (a)(5)(C). This standard allows the court to exercise discretion in determining if attorney's fees are warranted.
The court finds that attorney's fees for the costs of bringing this motion are not warranted at this time. While plaintiff has successfully demonstrated that defendant's searches were deficient, it is unclear if defendant failed to produce a significant number of discoverable documents. First, defendant should repeat its searches and produce any newly found documents. Then, the parties or the court, if necessary, shall resolve the question of whether the completed depositions should be retaken. At that point, plaintiff may renew its motion for attorney's fees pursuant to RCFC 37(a)(5)(C). Plaintiff shall keep in mind that it carries the burden of proving that its request for attorney's fees is reasonable.
Accordingly, plaintiff's request for attorney's fees is
This motion to compel arises in a case that has been beleaguered by frequent delays and the failure of the parties to cooperate with one another. The court reminds the parties of their obligation to act in good faith in all of their dealings with each other and the court. The court expects the parties to exhibit professionalism and cooperation in order to facilitate the resolution of this dispute in an efficient manner.
For the foregoing reasons, plaintiff's motion to compel is hereby
The court adopts the following schedule for the resolution of fact discovery in this case:
