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UnitedHealthcare of Florida, Inc. v. American Renal Associates Holdings, Inc.

United States District Court, S.D. Florida

December 7, 2017

UNITEDHEALTHCARE OF FLORIDA, INC., et al., Plaintiffs,
v.
AMERICAN RENAL ASSOCIATES LLC, et al., Defendants.

          ORDER DENYING PLAINTIFFS' MOTION TO COMPEL DEFENDANTS TO PRODUCE THE DOCUMENTS AND COMMUNICATIONS THEY H AVE EXCHANGED WITH AKF'S COUNSEL AND OTHERS RELATING TO TH IS MATTER IDES 326');">326.3271

          WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE.

         THIS CAUSE is before the Court upon Plaintiffs, UnitedHealthcare, Inc. and All Savers Insurance Company's (collectively, "Plaintiffs") Motion to Compel Defendants to Produce the Documents and Communications They Have Exchanged with AKF's Counsel and Others Relating to This Matter ("Motion") [DEs 326');">326, 327]. This matter was referred to the undersigned by United States District Judge Kenneth A. Marra. See DE 62. Defendants, American Renal Associates, LLC, and American Renal Management, LLC (collectively, "Defendants"), filed a response to the Motion [DE 331], Plaintiffs filed a reply [DEs 335, 336], Defendants filed a sur-reply [DEs 342, 343], and Plaintiffs filed a sur-sur-reply [Des 354, 355].

         The Court held a hearing on the Motion on November 28, 2017. At the hearing, the Court requested that Defendants submit for in camera review two written common interest agreements and a clawed-back document discussed in the briefs. Defendants submitted the requested documents at the conclusion of the hearing. The Court has carefully reviewed these documents in camera. This matter is now ripe for review.

         I. BACKGROUND

         In their Fourth Set of Requests for Production, Plaintiffs are seeking communications between Defendants' counsel and counsel for the American Kidney Fund, as well as communications between Defendants' counsel and counsel for former employees of American Renal Associates, LLC, John McDounough and Jennifer Cordeiro. [DE 326');">326, p. 2]. Plaintiffs argue that they need the documents so that they can discover if Defendants have been working to influence the testimony of former employees, have been feeding information to and coordinating efforts with a third party, and/or have been providing relevant documents to these third parties that they have not provided to Plaintiffs. [DE 335, p. 5');">p. 5]. Defendants argue that the documents sought are disproportionate under Rule 26(b)(1) and are protected by the work-product and attorney-client privileges, and that the common interest exception applies. [DE 331, pp. 4-5; DE 340, pp. 2-3].

         II. ANALYSIS

         a. Proportionality

         Federal Rule of Civil Procedure 26(b)(1) states that the scope of discovery is as follows:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. p. 26(b)(1).

         The discovery sought by Plaintiffs is not routine; rather, it is quite extraordinary. Plaintiffs seek correspondence and material created by Defendants' counsel after the commencement of this federal lawsuit. This correspondence and material is between Defendants' attorneys and attorneys for non-parties who apparently are potential witnesses in this litigation. Parties do not typically seek post-litigation communications of opposing counsel. In fact, our Local Rules recognize that post-litigation materials are normally privileged and that no privilege log is even required for such materials. See S.D. Fla. L.R. 26.1(e)(2)(C). In order for such discovery, which would inevitably implicate the attorney-client and work-product privileges, to be appropriate, a party would have to be able to make a showing that such discovery is relevant and proportionate.

         Here, however, Plaintiffs have provided nothing more than mere speculation as a basis for seeking post-litigation communications between Defendants' counsel and the counsel of three non-parties. Plaintiffs simply make unsupported suppositions that the communications might show that Defendants have tried to influence the testimony of former employees, or have been feeding information to and coordinating efforts with a third party, or have been providing relevant documents to these third parties that they have not provided to Plaintiffs. Plaintiffs have provided no evidence or even a proffer to support their claims. Plaintiffs' effort to obtain the post-litigation correspondence and documents of Defendants' counsel seems to be nothing more than an improper fishing expedition based upon mere speculation. There is simply nothing in the record to support any finding that the post-litigation correspondence and documents Plaintiffs seek were in any way improper. Additionally, the fact that Defendants' counsel have been communicating with counsel for the AKF, counsel for Ms. Cordeiro, and counsel for Mr. McDonough, and not directly with the non-parties, adds further support for Defendants' assertion that the communications were proper and not for an untoward purpose. In sum, after considering all of the relevant factors under Rule 26(b)(1)[1], the Court finds that the discovery sought is not proportionate.

         The Court must also take a moment here to note that this is a case in which Plaintiffs' approach to the discovery process appears, at least in part, to be designed to seek discovery which is outside of the confines of Rule 26. Plaintiffs have, for example, propounded 112 requests for admission, four sets of requests for production, and a multitude of other discovery requests. Additionally, Defendants have already produced thousands and thousands of pages of documents. The Court has had to preside over so many discovery disputes in this case that it has lost count. The Court is not finding that these discovery disputes are all the fault of Plaintiffs. In fact, as the Court has noted on prior occasions, Defendants share some of the blame for the unnecessary and petty discovery disputes that continually arise in this case. But, in regard to the pending motion, the Court would be remiss if it did not note the excessively broad discovery that Plaintiffs have, at times, sought since the inception of the discovery process in this case, as the instant motion is a further example of that behavior.

         b. Work Product and Common ...


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