Cooperate—“Or Else”

Legal consequences abound at every corner in healthcare. Each month this blog discusses examples of what those consequences can be.

Federal Rule of Civil Procedure 26(f) requires parties in civil actions to “meet-and-confer” about “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.” This duty to confer—in essence, to cooperate—continues throughout discovery. Unfortunately, cooperation is sometimes lacking. The recent decision of UnitedHealthcare of Florida, Inc. v. American Renal Associates, LLC, No. 16-cv-81180-Marra/Matthewman (S.D. Fla. Oct. 20, 2017), provides an example of the failure to cooperate and a court’s reaction to that failure.

The plaintiffs in UnitedHealthcare sought reconsideration of an order which, among other things, permitted the defendants to select additional custodians and search terms that the plaintiffs were to use to locate electronically stored information (ESI). The plaintiffs made several arguments in favor of reconsideration, including one that the order was “patently unfair.” In response, the defendant argued, among other things, that the plaintiffs had misstated the status of discovery.

The court first determined that, because there had been no change in controlling law, reconsideration would not be appropriate on that basis. However, based on a declaration submitted by the plaintiffs, the court chose to reconsider the order “because it [the declaration] sheds light on precisely what the parties have not done in this case regarding their e-discovery obligations.”

Court documents state:

“Specifically, the very last paragraph of the Declaration states precisely what this Court has been asking the parties in this case to do—and which they have failed to do—throughout the many discovery disputes which have unfortunately arisen in this case. Specifically, paragraph 12 states as follows:

‘In my opinion and based on my experience, if additional time is taken to reexamine the search terms to minimize some of the more obvious deficiencies and then, after the search terms are run, allow for the parties to evaluate which terms hit on an excessive number of documents and narrow them accordingly, the process could be sped up significantly as the volume of documents for the steps after collection and indexing will likely be greatly reduced.’

***. Ironically, this type of cooperation is exactly what this Court has been expecting from the parties and their counsel throughout this case—to work together to arrive at reasonable search terms, to run those search terms and engage in sampling to see if the search terms are producing responsive documents or excessive irrelevant hits, and then to continue to refine the search terms in a cooperative, professional effort until the search terms are appropriately refined and produce relevant documents without including an excessive number of irrelevant documents. However, despite what paragraph 12 of the Declaration suggests, and despite this Court’s suggestions to the parties and their counsel as to the cooperative and professional manner in which the parties should engage in the e-discovery process in this case, there has instead been an apparent lack of cooperation and constant bickering over discovery, especially e-discovery. The alleged new evidence submitted by Plaintiffs, that is, the list of additional search terms and custodians and the Declaration, clearly show that, where, as here, parties in a large civil case do not cooperatively engage in the e-discovery process, the collection and indexing of documents and the production of relevant documents, become much more difficult.

There is no need to correct clear error or manifest injustice as the Court has not committed clear error or caused any party manifest injustice. Rather, if anyone is to blame for the belabored and excessive discovery process in this case, the Court suggests that it is the parties themselves. As the Court noted above, the parties in this case seemingly are unable to cooperate regarding discovery disputes ***. Although the parties and their counsel should be the most familiar with the particular issues and discovery needs of this case, to date, they have provided very little assistance to the Court during the discovery process. The parties and their counsel have been of virtually no help to the Court on e-discovery issues and have themselves caused the difficulties of which Plaintiffs now complain.

Unfortunately, the parties and their counsel, through their many discovery disputes and their litigiousness, have unnecessarily turned this case into what can best be termed as a ‘discovery slugfest.’ Rather than the parties working together to come up with reasonable search terms, then working together to refine those search terms, and then cooperatively engaging in sampling and further refinement of those search terms so that relevant documents are uncovered and produced, or cooperatively engaging in any of the numerous other e-discovery techniques that could lessen the discovery burdens on both parties, they have instead sought to turn the discovery process in this case into a legal variety of hand-to-hand combat. If any of the parties to this case are unhappy with the Court’s discovery rulings, and, specifically as to the pending motion, if Plaintiffs or their counsel are unhappy with the Court’s discovery rulings, they have only themselves to blame. The parties’ lack of cooperation and insistence upon producing as little discovery as possible to the other side, while concurrently seeking as much discovery as possible from the other side, is at the root of the discovery problems in this case.

This case was filed by Plaintiffs on July 1, 2016. Since that time, the parties have filed well over 50 discovery motions, responses, replies, notices, and declarations, many of which have been filed under seal. The Court has held at least six discovery hearings in 2017, most of which were lengthy and contentious. ***. The Court has entered countless Orders relating to the parties’ numerous discovery disputes. It appears to the Court that, rather than be cooperative in the discovery process, the parties and their counsel intend to make the discovery process in this case as expensive, time-consuming and difficult as possible. This flies in the face of what is expected from civil litigants and their counsel. *** [footnote omitted].”

With all this as background the court granted the motion in part and gave a warning:

“Plaintiffs’ first primary argument as to clear error or manifest injustice is that the Court’s ruling permitting additional custodians and search terms is not based on the evidence, is unfair, and is overly broad. The Court does not believe that its ruling is unfair and, in fact, the ruling is based upon the arguments made to the Court in the many filings by the parties and is based on the arguments made at the lengthy discovery hearing.

Further, while the Court opted to permit additional search terms and custodians, Defendants are obviously still constrained to abide by the Court’s prior discovery Orders in this case. That is, Defendants may not use the additional search terms or custodians to circumvent any of the prior limitations that the Court has placed upon discovery in this case in its discovery Orders. The additional search terms and custodians must stay within the parameters the Court has placed upon discovery in this case via its prior Orders. Should Defendants fail to do so, and should Defendants seek e-discovery beyond the parameters previously imposed by the Court, Plaintiffs can file an additional motion with the Court explaining exactly how Defendants have failed to adhere to the letter or spirit of the Court’s prior discovery Orders.

In this regard, however, the Court strongly advises counsel for all parties in this case to read the above authorities, comply with what is ethically expected of them as professionals and members of the Bar, and work together to refine the search terms and arrive at the production of relevant and proportional discovery in this case. The Court also advises the parties and their counsel that it will strictly utilize cost-shifting and attorney’s fees and costs sanctions from this point forward against any party or attorney in this case who violates the Court’s discovery Orders, fails to cooperate in good faith, seeks excessive discovery, or fails to produce relevant and proportional discovery. [footnote omitted].”

There are several lessons to be learned from UnitedHealthcare for attorneys who go to federal court on behalf of healthcare providers or, for that matter, any party before a federal court. First, those courts require cooperation among parties. “Cooperation” does not require that parties resolve disputes. It does, however, require that parties engage in good faith efforts to do so. At the same time, courts recognize that parties should not confer “unto death” and that there comes a time for efforts to end and for parties to ask courts to resolve whatever remains outstanding. Second, courts are prepared to enforce cooperation through various means, including cost-shifting and imposition of sanctions. These lessons may not directly impact in-house counsel or information governance professionals. However, the lessons can inform and explain to those actors the “rules” under which retained litigation counsel do their jobs.


**Editor’s Note: The views expressed in this column are those of the author alone and should not be interpreted otherwise or as legal advice.

Ron Hedges, JD, is a former US Magistrate Judge in the District of New Jersey and is a writer, lecturer, and consultant on topics related to, among other things, electronic information. He is a Senior Counsel with Dentons US LLP.

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