McFarland v. Florida Pharmacy Solutions et al

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

M.D. Fla.July 20, 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 THIRD MOTION TO COMPEL PRODUCTION OF DOCUMENTS Defendant Wayne Wilkerson (“Wilkerson”), by and through undersigned counsel, hereby responds to the third Motion to Compel Production from Relator BRADY MCFARLAND (“McFarland”), pursuant to Local Rule 3.01(b), this 20th day of July, 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: a) Objection to the definition of the term “Communication” to the extent that it refers to an unrecorded verbal Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 1 of 15 PageID 2899 2 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 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 to the production of any “software” to the extent that such production would violate the Defendant’s third- party proprietary software licensing limitations. g) 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 Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 2 of 15 PageID 2900 3 burdensome and expensive, under Rule 26(b)(2), Fed.R.Civ.P. h) 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, while not waiving any of the above 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 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. 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 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 398 Filed 07/20/18 Page 3 of 15 PageID 2901 4 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 sales consultant for the lead defendant, Florida Pharmacy Solutions, Inc. (“FPS”), and the pharmaceutical records, reimbursement claims, pharmacy business records, and pharmacy electronic mail is, upon belief and understanding, in the custody of FPS. 7. Fourth, while the Defendant instituted a “litigation hold” on 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 needed for on-going operations, to include records pertaining to FPS operations which ended in mid-2015. 8. Relator argues in the Motion to Compel that Defendant has not produced documents pursuant to the Court’s Order of April 19, 2018. Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 4 of 15 PageID 2902 5 9. In response, Defendant produced additional documents and emails on April 27, 2018, April 30, 2018, and June 6, 2018. 10. Relator demands an explanation why Defendant was able to produce an @FPS-rx.com email demands Defendant’s retention of an IT professional to investigate the source of the email; and demands a detailed report of the results of the investigation to Relator. 11. Defendant responds again to Relator that it is indeterminable how or why one @FPS-rx.com email showed up in discovery. The undersigned could find no legal precedent that Rule 34 requires a defendant to hire an IT expert to explain and report on the origin of a specific email. 12. Relator demands an “explanation” of the timing and content of emails produced in discovery. In response, the undersigned could find no legal precedent that Rule 34 requires a defendant to “explain” the process of email production. Production under Rule 34 is just that - the production of the documents requested. 13. Defendant has searched for emails electronically as to the following terms: “Florida Pharmacy Solutions, FPS, Wes Moss, Chris White, Melonie Kotchey, and Brian Telly.” Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 5 of 15 PageID 2903 6 14. Realtor has demanded that in addition to the search terms set out in Paragraph 13 above, that Defendant separately search under the names of individual sales associates. This Motion to Compel is the first instance in which Relator has made such request. Defendant will do so and timely supplement discovery with any newly discovered emails. 15. Relator makes the curious argument that Defendant produced some emails from Karma Medical Spa workers regarding FPS, but should be compelled to produce more. In response, if Relator seeks emails from Karma Medical Spa workers that do not contain the word search list set out in Paragraph 13, yet are responsive to a Request for Production regarding FPS, perhaps Relator could suggest additional search terms. 16. Relator compels Defendant to describe the preservation and collection of any responsive text and “social media” documentation. Per the understanding of the undersigned, Defendant utilized the search criteria set out in Paragraph 13 to search for text and “social media” materials, and anything responsive was produced. In the event that Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 6 of 15 PageID 2904 7 Relator concludes that nothing responsive was produced, then clearly, nothing responsive was found. 17. Relator compels production of emails regarding specific Karma Medical Spa workers Candace Craven and Suzy Vergot. As stated repeatedly, Defendant utilized the search criteria set out in Paragraph 13. Relator requests such production from Defendant for the first time in the Motion to Compel. Defendant will do so and timely supplement discovery with any newly discovered emails. 18. Relator moves to compel the personnel file of Suzy Vergot. Defendant has re-checked the employment records of Karma Medical Spa, and no personnel file for Suzy Vergot exists. Defendant cannot produce what it does not possess.2 19. Defendant yet again offers Relator’s counsel unfettered access to Defendant’s paper and electronic records, on site, as expressly authorized by Rules 34(a)(1) and 34(b)(2)(B), Fed.R.Civ.P.3 2 And the gratuitous commentary in the Motion such as a “staggering 571” prescriptions is prejudicial and irrelevant as to whether Defendant possesses Vergot’s personnel file. 571 scripts written by 3 prescribers over 9 months at 20 work days per month is 1 script per prescriber per day spread over 20 or 30 patients per day. While Relator may find that staggeringly high, Defendant finds it staggering low. 3 And if Relator does not accept such opportunity for an open-ended, unlimited search of Defendant’s records, perhaps that is an indicator of whether Relator’s Motion is a bona fide request for remedy, or instead a vehicle designed to harass and intimidate Defendant. Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 7 of 15 PageID 2905 8 20. Yet again, Relator’s counsel failed to confer with the undersigned prior to filing this Motion, and therefore this Motion should be denied on those grounds in and of themselves, under Local Rule 3.01(g). MEMORANDUM OF LAW 21. 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). 22. 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). 23. In this Court particularly, “[d]iscovery in this district should be practiced with a spirit of cooperation and civility.” Errington v. United Parcel Service, Inc., Case No. 3:11-cv-1209, p. 3 (M.D. Fla. 2012) (Defendant’s Motion to Compel granted only because Plaintiff entirely refused to participate at all in discovery or respond to Court Orders). Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 8 of 15 PageID 2906 9 24. The undersigned was unable to find any precedent where a Motion to Compel was granted in a circumstance such as this, where there is no disagreement between the parties as to privilege or objections, but merely as to whether a party had provided “sufficient” materials. 25. Instead, the precedent indicates that Motions to Compel are to remedy specific adjudications as to whether a particular matter is subject to discovery. Arch Ins. Co. v. Vas Aero Servs., LLC, Case No. 16- 80749-CV, p. 8 (S.D. Fla. 2018) (Motion to Compel necessary to adjudicate whether materials were privileged); Manno v. Healthcare Revenue Recovery Group, LLC, 2012 WL 1409532, * 2 - 3 (S.D. Fla. 2012) (“grounds for a motion to compel discovery have occurred when the party seeking discovery received notice of the opposing party’s objections to his discovery requests”); First Coast Energy, LLP v. Mid-Continent Cas. Co., Case No. 3:12-CV-281, p. 2 (M.D. Fla. 2012) (Motion to Compel appropriate to adjudicate whether specific discovery demands were objectionable). 26. Precedent in this district makes clear that good faith assertions that materials requested in discovery simply do not exist because they were never created, or have since been lost or destroyed, does not Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 9 of 15 PageID 2907 10 provide grounds for a Motion to Compel. Ward v. Casual Rest. Concepts, Inc., Case No. 8:10-CV-2640, p. 7 (M.D. Fla. 2011) (“[D]efendant has presented evidence that it has no additional documentation responsive to the discovery requests and, consequently, there is nothing to compel.”). 27. Essentially, Relator’s Motion inappropriately asks the Court to adjudicate the production of unnamed and unidentified documents that may or may not exist, predicated on Relator’s suspicion that Defendant may or may not have produced all responsive materials. Ward v. Casual Rest. Concepts, Inc., Case No. 8:10-CV-2640, p. 7. 28. Other materials that Relator moves the Court to Compel are requested of Defendant for the first time4 within the Motion. Clearly, it is a better use of scarce judicial resources to simply ask the Defendant for specific production prior to seeking a Court Order. 29. Unless or until Relator can specifically identify the materials that it believes are in the Defendant’s possession, are responsive, but have not been produced, the Court has nothing before it to adjudicate in a 4 Emails relating to subcontractors of Top Tier Medical and Karma Medical Spa emails of Candace Craven and Suzy Dobson. Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 10 of 15 PageID 2908 11 Motion to Compel. Ward v. Casual Rest. Concepts, Inc., Case No. 8:10-CV-2640, p. 7. 30. The core argument of the Motion to Compel is that Relator speculates incomplete production and therefore moves the Court to compel to test its hypothesis. 31. In response, even if there are additional responsive materials in existence (and Defendant will diligently produce anything newly discovered), if Relator can’t identify the allegedly missing production, the Court can’t reasonably draft a Motion to Compel for the production of unnamed and unidentified materials. Ward v. Casual Rest. Concepts, Inc., Case No. 8:10-CV-2640, p. 7. 32. As an example of Relator’s over-reach, the Motion demands a sworn statement from Defendant detailing: Defendant’s preservation and collection of documents; and specifically, which requested documents do not exist (or no longer exist). The undersigned could find absolutely no precedent for such demand under Rule 34 discovery.5 5 The undersigned interprets this demand as an expansion of the law regarding a privilege log under Rule 26(b)(5). That if a record has either not been made, or cannot be found, that a party is required under Rule 34 to produce a “no record” log to detail what, who, when and why a record has not been produced in discovery. There simply is no such requirement in the Rules of Civil Procedure, and appears counter to Rule 26(b)(1). Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 11 of 15 PageID 2909 12 33. While not expressly stated, the undersigned interprets Realtor’s counsel’s Motion to require Defense counsel to “crosswalk” and reconcile all (76) defendants’ and (unknown number of) subpoenaed non-parties’ discovery production in order to ensure that all combinations and permutations of potential production conform. 34. In response, the undersigned’s responsibility is to faithfully conduct the Defendant’s discovery of the Relator; it is Relator’s counsel’s responsibility to synthesize, organize and conform all the various defendants’ production. SUMMARY 35. 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 supplementary documents become available, as required by Relator’s instructions to the Requests for Production. 36. 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, demonstrates Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 12 of 15 PageID 2910 13 that the Court may deny this meritless Motion without generating any prejudice to Relator. 37. Again, the electronic search terms utilized by Defendant are set out in Paragraph 13 above. If Relator has additional specific electronic search terms in mind, the Defendant suggests that instead of making Defendant guess what those terms might be (given that Relator moves the Court yet again 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. And, as a demonstration of good faith, Defendant will conduct supplemental searches as to the specific terms disclosed to Defendant for the first time in the Motion to Compel. 38. And indeed, if in fact Relator’s demands for additional 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, Relator’s objective is to merely antagonize the Defendant and waste the Court’s scarce time and resources, perhaps such additional suggested search terms will not be forthcoming. Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 13 of 15 PageID 2911 14 39. And in the spirit of resolution, given that Rule 34(a)(1), Fed.R.Civ.P. provides for physical inspection of original records in lieu of production of copies, Defendant re-offers Relator’s counsel direct access to Defendant’s corporate records and telephone. 40. Again, if Relator’s discovery demands have merit, Defendant anticipates that Relator would welcome such unlimited direct discovery. 41. In sum, Relator’s Motion to Compel is unnecessary, without merit and should be summarily denied. 42. 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. /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 CERTIFICATE OF SERVICE Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 14 of 15 PageID 2912 15 I hereby certify that a true and correct copy of the forgoing has been furnished by electronic mail this 20th day of July, 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 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 /Mark S. Thomas/_____ Mark S. Thomas Case 8:15-cv-01708-SDM-TGW Document 398 Filed 07/20/18 Page 15 of 15 PageID 2913