United States District Court, D. Arizona
LAURIE MILLER, BRIAN DIMAS, KIM MILLS, ANTHONY SOZA, BRUCE CAMPBELL, KELLIE BOWERS, TIM HUNTER, BRIAN SAYLOR, MICHAEL SCHAMADAN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF HIS WIFE, BRANDI SCHAMADAN, AND JOI KLAGES, Plaintiffs,
YORK RISK SERVICES GROUP; THE FRANK GATES SERVICE COMPANY D/B/A AVIZENT RISK, Defendants.
ORDER AND OPINION
[RE: MOTIONS AT DOCKET 554, 557, 607]
JOHN W. SEDWICK, Senior District Judge.
I. MOTIONS PRESENTED
At docket 554 Defendant filed a motion for a protective order regarding the Independent Medical Examination ("IME") reports the court ordered it to produce at docket 504, as well as related discovery requests subsequently made by Plaintiffs. At docket 557 Defendant filed a separate motion for a protective order regarding the reports and summaries the court ordered it to produce at 504. Plaintiffs filed a combined response to Defendant's motions and motion to compel production of other discovery materials. The combined response/motion was originally filed at docket 558, but was later refiled under seal at docket 607. Defendant filed its combined reply to its motions and its response to Plaintiffs' motion at docket 567. Plaintiffs' reply is at docket 601. Oral argument was not requested and would not assist the court.
The basis for Plaintiffs' lawsuit and a detailed description of the dispute is located at docket 23. The parties are familiar with the background of the case, and it need not be repeated here. For purposes of the discovery motions at issue here, readers are directed to the order at docket 504, where the court found that York failed to put forth any evidence to support its assertion that complying with Plaintiffs' discovery requests would be too burdensome. The court then directed York to produce "any [IME] reports authored by Drs. Rockowitz, Beghin, Carter, and Rowley from 2009 to July 2013 in connection with City employees' workers' compensation claims" and "any reports or summaries exchanged either internally or with third-parties between 2009 and July 2013 that have to do with the resolution of workers' compensation claims for the City and any reports or summaries dealing with the reduction of claim pay-outs between 2009 and July 2013." The court instructed York to be prepared to explain and support the efforts it made to search for documents in the event of subsequent motion practice.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 26(b)(1) provides for liberal discovery: "Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." Relevance for purposes of discovery is defined broadly; "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." The court must limit the requested discovery if it is shown to be "unreasonably cumulative or duplicative;" if "the party seeking the discovery has had ample opportunity to obtain the information;" or if "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." Additionally, Rule 26(c)(1) permits the court with good cause to limit discovery in order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."
On a motion to compel, the party seeking to compel discovery has the initial burden of establishing that its request satisfies the relevancy requirements of Rule 26(b). In turn, the party opposing discovery has the burden to demonstrate that discovery should not be allowed due to burden or cost and must explain and support its objections with competent evidence. With respect to electronically stored information:
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
A. IME reports from 2009 through 2011.
As noted above, at docket 504 the court ordered York to produce "copies of any
[IME] reports authored by Drs. Rockowitz, Beghin, Carter, and Rowley from 2009 to 2013 in connection with the City employees' workers' compensation claims." The court concluded that those particular IME reports were relevant for purposes of discovery because information about how the specified doctors sided with York could reasonably lead to statistical evidence relevant to Plaintiffs' claims. In an effort to comply with the court's order, York learned that in 2013 it had previously complied IME data from January 2012 through May 2013 for the City of Phoenix. The data included the cost of IMEs, the dates the IMEs were performed, and the doctors who performed them. Based on that data, York was able to identify which claims involved IMEs by the four doctors from January 2012 through May 2013 and then locate those files and turn over the doctors' IME reports inside the files. There were 61 reports produced in total.
York now asserts that identifying the claim files that might contain an IME report authored by one of the four doctors prior to 2012 is too burdensome. York provided an affidavit from Joseph Tracey who worked on compiling the IME data for the City of Phoenix in 2013. He states that to repeat the task of gathering the same data from 2009 through 2011 would be too burdensome. He indicates that the specific information ordered to be produced cannot be located simply by employing a global search of electronic data. Instead, it can only electronically search payment data to isolate at least some of the files that involved IMEs. The details surrounding those IMEs, such as which doctor performed the examination, can only be discerned by manual review of the files. He explains that back in 2013 when they gathered IME data for the City, because of time and cost concerns, he contacted the IME vendors and requested that they locate and make a list of the individual doctors who performed each IME that was arranged through their services. He states that he had no control over how quickly the vendors completed their search and that it eventually took the vendors two weeks to go through over 300 files and identify the doctors involved. For the search at issue here, York has been able to use payment data to narrow down the potentially relevant claim files to around 800, although the supporting evidence Defendant ...