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Runton v. Brookdale Senior Living, Inc.

United States District Court, S.D. Florida, Miami Division

February 27, 2018

GLORIA RUNTON, by and through her guardian ADULT ADVOCACY & REPRESENTATION, on her own behalf and others similarly situated, Plaintiff,



         This discovery order resolves a dispute over Plaintiff's request for Defendant's “Service Alignment” Materials (the “SA Materials”). Plaintiff Gloria Runton seeks these materials from Defendant Brookdale Senior Living, Inc., a Tennessee corporation that owns and operates more than 120 assisted living facilities in Florida. Defendant asserts three reasons why it believes the SA Materials in dispute should not be produced to Ms. Runton (who is a resident at the Brookdale Bayshore facility in Tampa): (1) Ms. Runton violated Local Rule 26.1 by waiting too long to bring the dispute to the Court's attention; (2) the SA Materials -- the algorithms and source code, the time studies, and certain portions of the SA training Materials -- are not proportional to the needs of the case because the theory underlying the request is different from, and actually contrary to, the theory pled in the Complaint; and (3) many of the materials constitute trade secrets, and Plaintiff's intent to disclose the materials to its expert would generate irreparable harm, even if produced pursuant to a Court-ordered Confidentiality Protective Order.

         With the Undersigned's permission, Ms. Runton filed a memorandum opposing Brookdale's trade secret privilege assertion [ECF No. 94], Brookdale filed a memorandum in support of its objection to producing the SA Materials [ECF No. 101');">101');">101');">101], Ms. Runton filed a reply memorandum [ECF No. 105], and Brookdale filed an affidavit confirming that Brookdale has not produced trade secret materials in any litigation, arbitration, or any other judicial or administrative proceeding [ECF No. 108]. The Undersigned held a one and a half-hour hearing on February 16, 2018 on this discovery dispute. [ECF No. 106].

         For reasons outlined below, the Undersigned concludes that the requested SA Materials are not discoverable because their discovery does not meet the proportionality standard of Federal Rule of Civil Procedure 26(b)(1). At bottom, the so-called need for the discovery relates to Plaintiff's newly-articulated theory, which is different from the fundamental theory alleged in the Complaint. United States District Judge Cecilia M. Altonaga recently entered an order granting, in part, Brookdale's motion for judgment on the pleadings and denying Plaintiff's request (embedded in a memorandum, as opposed to being properly framed in an actual motion) for leave to amend her Complaint. [ECF No. 97]. Therefore, Plaintiff's request is beyond the scope of permissible discovery when evaluated by the claims actually alleged in the Complaint, which, at this point, will remain the operative pleading and will not be amended.

         Given this assessment, the Undersigned does not need to evaluate Brookdale's other two grounds for opposing the discovery request.

         Factual Background

         On May 11, 2017, shortly after filing the Complaint [ECF No. 1], Plaintiff propounded document requests encompassing the SA Materials. [ECF No. 94-5 (“First Document Requests”), Request Nos. 3, 6, 9, 14-15]. Brookdale served its Objections and Responses to the First Document Requests, and expressly objected to production of the SA Materials on the grounds of proportionality and trade secret. [ECF No. 101');">101');">101');">101-1, Response Nos. 3, 6, 9, 14-15, 21]. Plaintiff initially raised these objections to the Court at a hearing on July 21, 2017, and the Court requested that the parties submit source materials on the issue.

         Subsequently, the parties conducted extensive and detailed negotiations regarding the scope and parameters of Brookdale's production. These negotiations culminated in the execution of two Memoranda of Understanding (“MOU”), and Plaintiff declined to pursue the SA Materials at that time.

         The First MOU memorializes the parties' agreement that Plaintiff would serve interrogatories regarding Service Alignment in lieu of the various document requests that sought the SA Materials. In exchange, Brookdale agreed to produce, and then did produce certain documents. It later provided interrogatory answers explaining how the Service Alignment works, the variables, and how the output is used at the facility level to guide staffing decisions.

         Brookdale also began producing the documents contemplated in the MOUs on November 13, 2017, and it finished producing nearly all documents by January 5, 2018. According to Brookdale, the parties also scheduled the Rule 30(b)(6) deposition of Brookdale's corporate representative for January 16, 2018 but Plaintiff's counsel unilaterally cancelled the deposition less than two days before it was to occur and has not rescheduled it. Brookdale contends that its representative was “fully prepared to testify on numerous Service Alignment topics.” [ECF No. 101');">101');">101');">101, p. 3].

         Because the Undersigned's proportionality analysis depends, in significant part, on the relevance of the information at issue, quoting relevant terms from the operative Complaint will help in the evaluation.

         Ms. Runton alleges in the Complaint that Brookdale's online and marketing materials are false and misleading. Those representations promote a “detailed” resident “assessment” program that “identifies the ‘specifics of [the resident's] level of care' to ‘offer individually tailored personal care options to perfectly suit their needs'” [ECF No. 1, ¶¶ 4-5] -- but Ms. Runton alleges that Brookdale “does not use the results generated by its ‘Resident Assessment' system to determine or provide staffing at its facilities.” [ECF No. 1, ¶ 5]. In addition, Ms. Runton further contends that the representations are false and misleading because, “on the contrary, as a matter of corporate policy and standard operating procedure, Brookdale staffs its facilities based on pre-determined labor budgets designed to meet corporate profit objectives.” [ECF No. 1, ¶ 5]. The paragraph further alleges that Brookdale “conceals” this fact. [ECF No. 1, ¶ 5].

         Paragraph 78 of the Complaint alleges that

[t]he overriding claim presented by Plaintiff and the Class is founded on the question of whether Brookdale Senior Living, Inc.'s policy, practice and common course of conduct of charging its residents based on their assessed needs as determined by Brookdale's Resident Assessment System while utterly disregarding these assessed needs in staffing its facilities and, instead, staffing based on corporate profit goals constitutes an unfair or deceptive trade practice, violates applicable statutes and violates public policy.

[ECF No. 1, ¶ 78 (emphasis added)].

         Similarly, Paragraph 78(b) of the Complaint alleges that the “overriding claims” in the case include, as a common issue of fact and law, whether Brookdale violated Florida's Deceptive and Unfair Trade Practice Act by “representing that its resident admission agreements confer the right to services to meet resident's assessed care needs when the actual services provided by Brookdale do not involve or even consider the assessed needs of its resident populations[.]” [ECF No. 1, ¶ 78(b) (emphasis added)].

         Continuing with this same theme of the overriding claims, paragrap. 107 of the Complaint alleges that Ms. Runton reasonably expected that “Brookdale would use the Resident Assessment System to set and provide facility staffing based on the amount of time Brookdale has itself determined is necessary to provide the care required for care needs established by its resident assessments.” [ECF No. 1, ¶ 107]. This ...

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