McFarland v. Florida Pharmacy Solutions et al

RESPONSE in Opposition re MOTION to Compel Production of Documents MOTION for sanctions

M.D. Fla.June 7, 2018

1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA, ex rel. BRADY MCFARLAND, Plaintiff v. CASE NO. 8:15-CV-1708-T-23T6W FLORIDA PHARMACY SOLUTIONS, INC., et al. Defendants. DEFENDANT WAYNE WILKERSON’S RESPONSE TO RELATOR’S SECOND MOTION TO COMPEL PRODUCTION OF DOCUMENTS Defendant Wayne Wilkerson (“Wilkerson”), by and through undersigned counsel, hereby responds to the second Motion to Compel Production from Relator BRADY MCFARLAND (“McFarland”), pursuant to Local Rule 3.01(b), this 7th day of June, 2018, as follows: RELEVENT FACTS 1. As a threshold matter, the Defendant maintains its general objections to the Relator’s Requests for Production, as follows: Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 1 of 14 PageID 2512 2 a) Objection to the definition of the term “Communication” to the extent that it refers to an unrecorded verbal communication. Rule 34, Fed.R.Civ.P. is expressly limited to communications that have been recorded. b) Objection to the definition of the term “Defendant” to the extent that it refers to any person or entity that is not the named Defendant Wayne Wilkerson. Top Tier Medical, LLC and Karma Wellness Spa are as a matter of Tennessee law legal entities separate from Defendant Wayne Wilkerson. As well, objection to any employees, agents, representatives, and servants that are not expressly representing Defendant Wayne Wilkerson’s interests in this litigation. c) Objection to the inclusion of “independent third-party marketing agents” in the term Defendant Wayne Wilkerson. Independent third-party marketing agents are as a matter of Tennessee law not the named Defendant Wayne Wilkerson. d) Objection to the definition of the term “Wilkerson” to the extent that it refers to any person or entity that is not the Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 2 of 14 PageID 2513 3 named Defendant Wayne Wilkerson. Top Tier Medical, LLC and Karma Wellness Spa as a matter of Tennessee law are legal entities separate from named Defendant Wayne Wilkerson. e) Objection to the instruction that there is any responsibility of the Defendant to conduct third-party discovery on behalf of the Relator pursuant to Rule 34, Fed.R.Civ.P. Independent persons and entities that are not owners, employees, or agents directly representing Defendant are not a “party,” and are not subject to discovery under Rule 34(a), Fed.R.Civ.P. Relator will not be prejudiced by Rule 34(a), and is entirely free to conduct proper third-party discovery as permitted pursuant to Rules 34(c) and 45. f) Objection that any claim of privilege in this case is subject to review of the “Panel.” g) Objection to the production of any “software” to the extent that such production would violate the Defendant’s third- party proprietary software licensing limitations. Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 3 of 14 PageID 2514 4 h) Objection to the request for production of any and all documents that in any manner refer to a produced document if such production is not made via an electronic database that would permit “word search,” as such demand is overly burdensome and expensive, under Rule 26(b)(2), Fed.R.Civ.P. i) Objection to the characterization of independent third parties or entities that are not named defendants in this case as employees, consultants, representatives, servants or agents of the Defendant, to include 1stCareMD, Helix Management Solutions, LLC, Candace Craven, Toni Dobson, Susy Vergot, Top Tier Medical LLC, or Karma Wellness Spa. 2. Regardless, as a professional courtesy, and for the avoidance of unnecessary discovery disputes, while not waiving any general objections to the Requests for Production, counsel for the Defendant agreed to produce responsive non-party documents that are in the possession of Defendant under Rule 34, Fed.R.Civ.P.1 1 Even though Defense counsel maintains that such non-party discovery should be obtained directly from the non-party by means of a subpoena under Rules 34(c) and 45, Fed.R.Civ.P. See e.g., U.S. v. 25 Acres of Land, Douglas County, Colorado, 495 F.2d Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 4 of 14 PageID 2515 5 3. Secondly, counsel for the Defendant and counsel for the Relator had verbally agreed, on multiple occasions, that the parties would each generate “rolling” production, in order to produce less-accessible information as it became available. 4. Third, both parties’ Requests for Production require ongoing production as responsive materials are newly found or produced. Specifically, the Defendant’s instruction was: “This request for production of documents is continuing in nature; please submit later produced or discovered materials subject to this request for production immediately upon production or discovery.” 5. Clearly, both parties anticipated ongoing production subsequent to the discovery deadline, up to the date of trial (or such bi-lateral discovery instructions would be nonsensical). 6. Defendant was merely a third-party independent marketing agent for the lead defendant, Florida Pharmacy Solutions, Inc. (“FPS”), and the pharmaceutical records, reimbursement claims, pharmacy business 1398, 1402 (10th Cir. 1974) (A “party may not be compelled to produce papers or things which are not in his possession, custody, or control, or the possession, control, or existence of which the party denies under oath.”). Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 5 of 14 PageID 2516 6 records, and pharmacy electronic mail is, upon belief and understanding, in the sole custody of FPS. 7. Fourth, while the Defendant instituted a “litigation hold” on its records upon being served this lawsuit in or around March 2017, prior to that date, Defendant had not been maintaining or archiving historical records that were not specifically needed for on-going operations, to include records pertaining to FPS operations which ended in mid-2015. 8. Fifth, the Defendant’s work for FPS terminated in approximately July 2015, and until Defendant was served with this lawsuit, Defendant had limited necessity to retain records related to FPS. 9. Counsel for Relator argues in the Motion to Compel that Defendant has not produced documents pursuant to the Court’s Order of April 19, 2018. 10. In response, Defendant produced additional documents and emails on April 27, 2018, April 30, 2018, and June 6, 2018. 11. Curiously, Relator’s counsel perpetually argues that Defendant has failed to detail the Defendant’s search criteria, while concurrently admitting that Defendant has reported that the Defendant has searched Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 6 of 14 PageID 2517 7 electronically as to the following terms: “Florida Pharmacy Solutions, FPS, Wes Moss, Chris White, Melonie Kotchey, and Brian Telly.” 12. Relator’s counsel noted that the undersigned countered Relator’s counsel threats of sanctions against defense counsel personally as a direct violation of Rule 3.04(c)(1), Texas Disciplinary Rules of Professional Conduct, and that continued personal threats would be met with a Texas Bar grievance and/or defense counsel resignation from the case. 13. That is quite accurate - in the event Realtor’s counsel continues to personally threaten defense counsel, defense counsel will indeed resign and/or report the matter to the Texas Bar. 14. At this time, Defendant’s production is substantially complete, to include requested third-party bank records. 15. Relator’s counsel alleges that he conferred with the undersigned prior to filing this Motion - he did not. The undersigned first became aware of this Motion upon electronic service, and therefore this Motion should be denied on those grounds in and of themselves, under Local Rule 3.01(g): A certification to the effect that opposing counsel was unavailable for a conference before filing a Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 7 of 14 PageID 2518 8 motion is insufficient to satisfy the parties’ obligation to confer. The moving party retains the duty to contact opposing counsel expeditiously after filing and to supplement the motion promptly with a statement certifying whether or to what extent the parties have resolved the issue(s) presented in the motion. [emphasis added] 16. Relator’s counsel admits that a Rule 45 subpoena to non-party Toni Dobson generated emails to Defendant, and demands such production from Defendant in this Motion, while concurrently withholding that very same production from Defendant pursuant to Defendant’s Requests for Production. 17. Defendant’s Requests for Production from Relator #4 and #5 were as follows: 4. All documents that demonstrate that Wilkerson put Tricare beneficiaries in contact with doctors who were willing to simply rubber-stamp FPS-branded compounded pharmacy prescriptions, as alleged in Section 15 of the Second Amended Complaint in this case. 5. All documents that demonstrate that the physician-patient consultations arranged by Wilkerson lacked a bona fide doctor-patient relationship and were in violation of state licensing regulations, as alleged in Section 16 of the Second Amended Complaint in this case. 18. Given that the Defendant’s Request for Production instructions included a demand to continually produce responsive documents (see Paragraph 5 above), Relator has trapped himself in his own pleadings. Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 8 of 14 PageID 2519 9 19. Relator must choose: either a) the Toni Dobson emails regarding Defendant are not responsive to discovery in this lawsuit and need not be produced by Defendant; or alternatively b) such emails are responsive and Relator has knowingly and intentionally not produced such responsive discovery to Defendant (in which case Defendant hereby moves for costs and fees against Relator for failure to respond to Defendant’s Request for Production #4 and #5). 20. Relator demands production of Toni Dobson’s resignation letter and cover email. Such materials have been produced. Regardless, given that Relator alleges he has a copy of the resignation letter, it is difficult to understand how or why he would be unduly prejudiced by being denied a second copy of that same document (and surely, the need for such a second copy does not rise to the level of necessity of a Court Order and sanctions). 21. Relator continues inquiries as to how a single email from Defendant’s “@fps-rx.com” email address was produced with other emails. Relator demands that Defendant undertake an IT audit and make a separate report to Relator to explain the details of the discovery of this one email. Defendant responds that there does not appear to be any Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 9 of 14 PageID 2520 10 legal authority to indicate that a party is required to hire third-party IT experts to investigate such a production anomaly. Notwithstanding, Relator is free to pursue such undertaking as it may care to. 22. Defendant’s email search terms are detailed in Paragraph 12. If Relator has other specific electronic search terms in mind, Defendant suggests that instead of making Defendant guess what those terms might be (given that Relator yet again moves the Court to sanction Defendant for its failure to guess well enough to satisfy Relator’s counsel), that Relator simply provide the Defendant with such search criteria. 23. And indeed, if in fact Relator’s demands for other specific electronic search terms is bona fide, Defendant would expect Relator to welcome such a common-sense solution to this circular game of “keep away.” If instead, the Relator’s objective is to merely antagonize the Defendant and waste the Court’s scarce time and resources, perhaps such suggested search terms will not be forthcoming. 24. Relator requests confirmation that Defendant used the search terms at issue as to any text messages and social media, and Defendant confirms that is the case. Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 10 of 14 PageID 2521 11 25. Relator questions the completeness of the personnel files from Karma Medical Spa produced by Defendant. In response, Defendant provided a complete copy of the contents of the personnel files. Defendant necessarily cannot produce any documents that are not in Defendant’s control or possession. MEMORANDUM OF LAW 26. The grant of motions to compel under Rule 37(a)(3)(B)(iv), and the imposition of sanctions under Rule 37(a)(5)(A), should be limited to circumstances where a party is intentionally abusing the discovery process. Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003). 27. The grant of a Motion to Compel, and the grant of sanctions, for a Rule 37 violation is typically reserved for those instances where a party literally fails to respond to a Request for Production. Reitman v. Pleasure Point Marina, LLC, Case No. CC-15-1030, pp. 16 - 17 (9th Cir. 2015). SUMMARY 28. Defendant has responded to the Relator’s Requests for Production on a rolling basis, to include substantive productions prior to the May 3, 2018 production deadline, and will continue to do so in good faith, as Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 11 of 14 PageID 2522 12 supplementary documents become available, as required by Relator’s instructions to the Requests for Production. 29. As argued above, the fact that Relator included an instruction in Relator’s Requests for Production that untimely-obtained responsive materials are to be used to supplement discovery even after discovery cut off (such as Defendant’s third-party bank records), demonstrates that the Court may deny this meritless Motion without generating any prejudice to Relator. 30. Relator’s Motion to Compel is unnecessary, without merit and should be summarily denied. 31. As well, given the lack of merit to the Motion, and the unnecessary costs incurred by the Defendant in responding to such meritless Motion, Defendant requests an award of costs and fees expended. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the forgoing has been furnished by electronic mail this 7th day of June, 2018 to: Joel Ewusiak EWUSIAK LAW, P.A. 66001 Memorial Highway, Suite 311 Tampa, FL 33615 727-286-3559 (telephone) 727-286-3219 (facsimile) joel@ewusiaklaw.com Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 12 of 14 PageID 2523 13 P. Jason Collins Craig A. Boneau Ryan M. Goldstein REID COLLINS & TSAI LLP 1301 S. Capital of Texas Highway Building C, Suite 300 Austin, TX 78746 512-647-6100 (telephone) 512-647-6129 (facsimile) jcollins@rctlegal.com cboneau@rctlegal.com rgoldstein@rctlegal.com COPY NOT FURNISHED TO OTHER COUNSEL: A. Lee Bentley, III Benjamin C. Mizer Charles T. Harden, III United States Attorney 400 North Tampa Street, Suite 3200 Tampa, FL 33602 813-301-3075 (telephone) 813-274-6200 (facsimile) Michael D. Granston Jamie A. Yavelberg Nathan P. Green US Department of Justice Civil Litigation Branch P.O. Box 261, Ben Franklin Station Washington, DC 20044 202-305-3669 (telephone) 202-305-2073 (facsimile) Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 13 of 14 PageID 2524 14 Faith E. Gay QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 212-849-7000 (telephone) 212-849-7100 (facsimile) Sam S. Sheldon QUINN EMANUEL URQUHART & SULLIVAN, LLP 777 6th Street, NW, 11th Floor Washington, DC 20001 202-538-8000 (telephone) 202-538-8100 (facsimile) Valerie S. Roddy QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, CA 90017 213-443-3000 (telephone) 213-443-3100 (facsimile) /Mark S. Thomas/_____ Mark S. Thomas Florida Bar No. 0001716 THOMAS HEALTH LAW GROUP, P.A. 5200 SW 91st Terrace, Suite 101-B Gainesville, FL 32608 (352) 372-9990 (office) (855) 629-7101 (fax) mark@thomashlg.com Counsel for Defendant Wayne Wilkerson Case 8:15-cv-01708-SDM-TGW Document 390 Filed 06/07/18 Page 14 of 14 PageID 2525