Court Requires Defendant to Make Sworn Statement Identifying Document Preservation Efforts

22 Mar 2019

In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., No. 5:18-cv-06037-DGK (W.D. Mo. Feb. 1), a case involving alleged improper medical billing billing, the United States District Court for the Western District of Missouri ordered Defendants to, among other things, supplement their initial disclosures to comply with Rule 26(a) and “either respond to Plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request.”

This case stems from incidents involving improper billing of lab tests. In October 2018, the parties conducted a FRCP 26(f) conference.  One week later, Plaintiffs served Defendants with interrogatories and requests for production of documents. On November 26, 2018, the defendants responded to the requests by objecting to every request with the following language:

“Defendant objects to this request as vague, overbroad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence.”

On January 24, 2019, the court held a conference to discuss the case’s discovery issues. Specifically, Plaintiff’s stated that Defendants failed to identify a single witness in their Rule 26(a)(1) initial disclosures, made boilerplate objections to every discovery request, and had failed to produce a single document in response to Plaintiff’s request.

Plaintiffs requested that the Court order the Defendants to (1) amend their initial disclosures; (2) produce responsive, non-privileged documents requested; (3) specify exactly which interrogatories Defendants objected to on the basis of the privilege against self-incrimination; (4) answer Plaintiff’s interrogatories in good faith or have adverse inferences drawn from their refusal; and (5)provide a sworn statement identifying the steps taken to preserve discoverable information.

In initially ruling that Defendant’s initial disclosures failed to comply with Rule 26(a)(1), the Court noted that “Rule 26(a)(1) requires litigants to provide ‘the name and, if known, the address and telephone number of each individual likely to have discoverable information.’” In this case, the Court held, Defendant’s disclosures, which merely listed “corporate representatives” of various unnamed entities, with no specific reference to the information held by the entities and with no address or phone numbers,” failed to comply with Rule 26(a)(1). As such, the Court ordered Defendants to “supplement their initial disclosures with the specific names and contact information, if known, of individuals likely to have discoverable information.”  He also indicated that they “must also provide copies of, or a list detailing, by category and location, all documents, electronically stored information, and tangible things in their possession, custody, or control that they may use to support their claims or defenses.”

With regard to the Defendant’s boilerplate objections, the Court ordered Defendants to “either respond to Plaintiff’s questions and requests or tailor their objections with much greater particularity. If they assert a privilege, they must provide a privilege log.”

Finally, the Court expressed concern regarding Defendants’ “failure to produce a single document, months into discovery.” As a result, the Court ordered Defendants to “prepare a sworn statement detailing their efforts to preserve discoverable information” and stated that if Defendants’ behavior were to continue, “the Court will consider imposing sanctions.”