McFarland v. Florida Pharmacy Solutions et alRESPONSE in Opposition re MOTION to Compel Production of Documents to Mediverse, LLC MOTION for sanctionsM.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 MEDIVERSE’S RESPONSE TO RELATOR’S THIRD MOTION TO COMPEL PRODUCTION OF DOCUMENTS Defendant Mediverse, LLC (“Mediverse”), 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 399 Filed 07/20/18 Page 1 of 20 PageID 2914 2 communication. Rule 34, Fed.R.Civ.P. is expressly limited to communications that have been recorded. b) Objection to the inclusion of independent contractors in the definition of the term “Helix.” Independent contractors that as a matter of Florida law are not a part of Helix Management Solutions, LLC are not “Helix.” c) Objection to the inclusion of “independent third-party marketing agents” in the term Defendant Mediverse LLC. Independent third-party marketing agents are as a matter of Florida law not the named Defendant Mediverse LLC. d) Objection to the definition of the term “Mediverse” to the extent that it refers to any person or entity that is not the named Defendant Mediverse. Objection to any agents, brokers, representatives, servants or contractors that are not directly representing Defendant Mediverse’s interests in this litigation. 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 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 Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 2 of 20 PageID 2915 3 of the Defendant, to include 1stCareMD, Helix Management Solutions, LLC, Christopher O’Hara, or Wayne Moore. 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. 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.” 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 399 Filed 07/20/18 Page 3 of 20 PageID 2916 4 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, the information sought in Relator’s Requests for Production dates back to 2012, and the Defendant was incorporated in May 2014, and initially had little to no documents or document retention. 8. Fifth, 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 needed for on-going operations, to include records pertaining to FPS operations which ended in mid-2015. 9. 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 399 Filed 07/20/18 Page 4 of 20 PageID 2917 5 10. In response, Defendant produced additional documents and emails on April 30, 2018, May 3, 2018, and July 20, 2018. 11. The July 20 production is clearly after the Court’s May 3 deadline, but the documents produced were the Defendant’s tax returns, which were just completed on that date by the Defendant’s third-party accountant. 12. The Defendant’s accountant provided written notice to Relator’s counsel that the delay in production of the tax returns was that of the third-party accountant, and that the returns would be forthcoming. 13. In sum, Defendant necessarily could not produce discovery documents to Relator until Defendant received them; discovery is clearly on-going and rolling; and, Relator is in no manner prejudiced by the timing of the production of Defendant’s tax returns. 14. Relator’s counsel perpetually argues that Defendant fails to detail the Defendant’s search criteria,2 while concurrently admitting that the Defendant has reported the electronic search of the following terms: “Jose Otero, Lindsay Fladd, FPS, Florida Pharmacy Solutions, Wes 2 Paragraphs 6, 7, and 8 of the Motion to Compel. Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 5 of 20 PageID 2918 6 Moss, Art Moss, Jeff Moss, Craig Woodruff, Ali Polak, TDS, Dave Copeland, and Melonie Kotchey.”3 15. To address Relator’s often-repeated demand for “specifics regarding [Defendant’s] collection and production methodologies,”4 Defendant refers Relator to paragraph 15 above. 16. In the event that there are other specific search terms that Relator seeks, instead of attempting to conduct discovery by means of serial Motions to Compel, perhaps Relator could simply ask the Defendant to electronically search for additional specific terms. 17. And 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.5 18. 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). 3 Paragraphs 21, 22, 23, 24, and 25 of the Motion to Compel. 4 Paragraph 8 of the Motion to Compel. 5 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 399 Filed 07/20/18 Page 6 of 20 PageID 2919 7 19. As to the substance of the Motion, Relator moves to compel communications between the Defendant and FPS because the production “lacks any significant volume of email between Mediverse and FPS.” 20. In response, as stated repeatedly to Relator’s counsel, the vast majority of communications regarding this case were accomplished under the FPS closed-system email accounts (_____@FPS-rx.com), to which Defendant has not had access since 2015. 21. Upon belief and understanding, the communications at issue were primarily limited to the FPS email system because the matters communicated were often proprietary and confidential FPS information and/or HIPAA-protected patient information. 22. Relator moves the Court to compel production of communications between Defendant and defendants Wayne Wilkerson and Melonie Kotchey. 23. In response, it is the understanding of the undersigned that the Defendant did not find any emails between itself and Mr. Wilkerson or Ms. Kotchey pursuant to a reasonable search. Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 7 of 20 PageID 2920 8 24. Relator alleges in its Motion that Mr. Wilkerson produced one email from Defendant that Defendant did not separately produce, and that Ms. Kotchey produced one email from Defendant that Defendant did not separately produce. 25. Again, Defendant conducted a good faith search of its emails, but records regarding discontinued contracts such as the FPS arrangement (which ended in 2015), may not have not retained by Defendant because the underlying business purpose of the records had ended. 26. Again, Defendant did not maintain a records destruction log, so there is no known method by which to identify deleted materials. 27. Regardless, it is difficult to understand the compelling need of a Court order to produce second copies of two emails that Relator already has in its possession.6 28. Relator alleges in its Motion that Defendant did not conduct an adequate search of emails between 1stCareMD and Defendant because the term “1stCareMD” was not searched. 6 If Relator has found only two emails’ worth of discrepancies in email production in this case across the three defendants (an error rate of much less than 1%), that illustrates the diligence of the defendants’ production, rather than any intransigence. Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 8 of 20 PageID 2921 9 29. In response, the terms “FPS” and “Florida Pharmacy Solutions” were searched (as well as the names of all FPS personnel that Defendant worked with), and any operations between 1stCareMD and Defendant that in any manner pertained to this case should have surfaced.7 30. Relator’s request to compel non-party Helix emails is indicative of Relator’s over-reliance of Rule 34(a) to obtain non-party discovery, that should instead be discovered pursuant to Rules 34(c) and 45. 31. The undersigned informed Relator’s counsel that the Defendant would produce all responsive emails from Defendant’s owner, Chris White, regardless of whether the email pertained to Defendant or another of Mr. White’s companies (such as Helix). 32. As communicated in detail to Relator’s counsel, Defendant Mediverse did not interpret the Request for Production to Defendant Mediverse (a medical services marketing and consulting company) to encompass Helix Management Solutions, LLC (a medical claims coding, billing and collections company). Regardless, Mediverse owner Mr. White is also an owner of Helix, and Mr. White agrees to produce responsive 7 Indeed, in an over-abundance of caution, since the filing of this Motion, Defendant conducted a search of emails under the term “1stCareMD” and no emails were found. Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 9 of 20 PageID 2922 10 non-party Helix emails that pertain to FPS.8 Necessarily, the timing of this entirely new production request is not made pursuant to the Court’s Order of April 19, 2018, which set the deadline for “Mediverse” discovery at May 3, 2018. Certainly, Defendant Mediverse should not be sanctioned for non-party Helix’s failure to comply with an Order that does not pertain to non-party corporations. 33. As an example of how meritless this Motion to Compel is, Relator demands that Defendant Mediverse conduct third-party discovery and produce non-party Helix emails from JD Oleinik and Eric Mayes, rather than Relator simply subpoenaing non-party Helix. 34. Relator requested production of “social media” communications, and from Defendant’s search, no such social media communications exist, so none were produced. 35. Relator requested production of materials relating to telemedicine and any responsive materials have been produced. 36. Relator requested copies of patient questionnaires, and Defendant produced a blank questionnaire. Upon belief and understanding 8 Regardless, the Motion fails to show good cause why Rule 34(a) “party” discovery must be applied to non-parties such as Helix, rather than simply have Relator subpoena non-party Helix under Rules 34(c) and 45. Again, this Motion lacks basic necessity. Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 10 of 20 PageID 2923 11 questionnaires with actual patient information are HIPAA-protected and are thus in the custody of FPS. 37. Relator requested copies of Blanket Letters of Authorization, and Defendant produced a blank BLOA. Upon belief and understanding the BLOAs sought by Relator are in the custody of FPS. 38. Relator argues in its Motion that Defendant admitted that it had completed forms, yet did not produce such forms, and that is simply not the case. Defendant indicated that it had a form - which is blank - and that form was produced. 39. Realtor requested Topical Compounded Therapy Questionnaires, and Defendant produced a blank form. Upon belief and understanding the forms sought by Relator are in the custody of FPS.9 40. Relator argues in its Motion that Defendant admitted that it had completed forms, yet did not produce such forms, and that is simply not the case. Defendant indicated that it had a form - which is blank - and that form was produced. 9 Relator argues in its Motion to Compel that 1stCareMD produced some completed questionnaires. Defendant was unaware that 1stCareMD possessed such documents until so informed in Relator’s Motion. Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 11 of 20 PageID 2924 12 41. Relator argues in its Motion that it is entitled to the underlying financial documents that were used to answer Relator’s interrogatories. 42. In response, such bank records were indeed produced in response to the Requests for Production. See Mediverse000734 - Mediverse000873. 43. Realtor requested communication between Defendant and FPS as to financial transactions, and as repeated continuously, such communications are to be found with FPS, under _______@FPS- rx.com emails. 44. In response to Relator’s request for bank records to demonstrate the payments received and made by Defendant relating to FPS, Defendant so produced voluminous bank records for Relator. See Mediverse 000734 - Mediverse000873. 45. Relator demands production of unredacted bank records, that by definition, contain proprietary financial information of Defendant that is not responsive to the Requests for Production because the information relates to Mediverse accounts other than FPS. Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 12 of 20 PageID 2925 13 46. Relator cites Bonnell v. Carnival Corp., 2014 WL 10979823, *4 (S.D. Fla. 2014) for the proposition that a party may not redact responsive, relevant materials from discovery production. In sum, Defendant agrees, and responds that the redacted materials relate to non-FPS accounts and are thus by definition non-responsive and not relevant. 47. In the event Relator seeks assurances that the records that have been redacted are indeed unrelated to FPS and unresponsive to the production request, Defendant will timely produce unredacted bank records to the Court for in camera review or submit the records to a Special Master for such evaluation. 48. Relator moves the Court to compel the production of Defendant’s 1099 documents. 49. In response, upon belief and understanding, such forms were in the possession of the Defendant’s accountant which delayed that production, but all such documents have since been produced with the Defendant’s tax returns. MEMORANDUM OF LAW 50. 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 Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 13 of 20 PageID 2926 14 circumstances where a party is intentionally abusing the discovery process. Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir. 2003). 51. 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). 52. 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). 53. 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. 54. Instead, the precedent indicates that Motions to Compel are to remedy specific adjudications as to whether a particular matter is subject to Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 14 of 20 PageID 2927 15 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). 55. 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 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.”). Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 15 of 20 PageID 2928 16 56. 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 raw 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. 57. Unless or until Relator can specifically identify the materials that it believes are in the Defendant’s possession, and are responsive, but have not been produced, the Court has nothing before it to adjudicate in a Motion to Compel. Ward v. Casual Rest. Concepts, Inc., Case No. 8:10-CV-2640, p. 7. 58. 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. 59. 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. Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 16 of 20 PageID 2929 17 60. 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.10 61. 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. 62. 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 10 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 399 Filed 07/20/18 Page 17 of 20 PageID 2930 18 63. 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. 64. 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 tax returns), demonstrates that the Court may deny this meritless Motion without generating any prejudice to Relator. 65. Again, the electronic search terms utilized by Defendant are set out in Paragraph 14 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. 66. And indeed, if in fact Relator’s demands for additional specific electronic search terms is bona fide, Defendant would expect Relator Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 18 of 20 PageID 2931 19 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 suggested search terms will not be forthcoming. 67. 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. 68. Again, if Relator’s discovery demands have merit, Defendant anticipates that Relator would welcome such unlimited direct discovery. 69. In sum, Relator’s Motion to Compel is unnecessary, without merit and should be summarily denied. 70. 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 Case 8:15-cv-01708-SDM-TGW Document 399 Filed 07/20/18 Page 19 of 20 PageID 2932 20 (352) 372-9990 (office) (855) 629-7101 (fax) mark@thomashlg.com Counsel for Defendant Mediverse LLC CERTIFICATE OF SERVICE 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 399 Filed 07/20/18 Page 20 of 20 PageID 2933