eDiscovery Daily Blog

• May 5, 2017

In Duffy v. Lawrence Memorial Hospital, No. 14-2256 (D. Kansas, Mar. 31, 2017), Kansas Magistrate Judge Teresa J. James granted the Motion to Modify Discovery Order from the defendant (and counterclaimant), where it asked the Court to enter a protective order directing it to produce a random sampling of 252 patient records, along with five spares, in order to respond to the plaintiff/relator’s document requests.

Case Background

In this case, the plaintiff alleged that the defendant submitted false information to the government to maximize reimbursement for federal medical care programs; in turn, the defendant counterclaimed for breach of contract and fraud.  In a February 2017 order, the Court ordered the defendant to produce documents responsive to certain plaintiff requests in her Second Request for Production of Documents within 14 days.  Defendant produced the most of the requested documents, except for those associated with four requests that were the subject of an instant motion.

As the defendant conducted searches for documents responsive to these requests, it determined that 15,574 unique patient records would have to be located and gathered.  In an effort to calculate the time necessary to locate and produce the relevant patient records, the defendant’s Medical Records department obtained a sample of ten patient records and determined that it would take 30 minutes per record to process and review the records to respond to the four RFP requests.  As a result, the defendant estimated that it would take 7,787 worker hours to locate and produce responsive information for 15,574 patient records, at a cost of $196,933.23.  Redaction of patients’ personal confidential information would take another ten reviewers and one quality control attorney fourteen days at a cost of $37,259.50.  So, the total cost to produce information relevant to the RFPs was estimated to be over $230,000.

Given these costs, the defendant asked the Court to modify its order by limiting the required production to a random sampling of 252 patient records plus five spares, using a statistical tool known at RAT-STATS used by the Department of Health and Human Services Office of Inspector General to randomly select the patient records.  The plaintiff objected, claiming that the defendant did not attempt to meet and confer and also because the Court had already rejected the defendant’s previous contention of undue burden.  The plaintiff also argued that redaction was unnecessary because a protective order was in place to designate the patient info as confidential information.

Judge’s Ruling

With regard to the previous rejection of undue burden, Judge James stated: “Had Defendant presented such evidence in response to Plaintiff’s Motion to Compel, the Court may have found the requests at issue unduly burdensome and disproportional to the needs of the case. Contrary to Plaintiff’s assertion, Defendant did not waive its right to seek protection once the enormity of the task became apparent.”  As for the plaintiff’s objection that the defendant did not meet and confer beforehand, Judge James noted that the “parties conferred following Defendant’s objections to the discovery requests, and that was the point at which some meeting of the minds could have produced a different response by Defendant or an alteration of the discovery request by Plaintiff. At this point, however, Defendant is seeking relief from this Court’s order rather than from a party’s discovery request.”

As a result, Judge James stated: “The Court will modify its order (ECF No. 133) to direct Defendant to utilize RAT-STATS and produce a random sampling of 252 patient records, along with five spares, to respond to RFP Nos. 40, 41, 43 and 58.”  She also directed the defendant to use RAT-STATS (as requested) to randomly select the patient records to be produced and sided with the defendant to redact personal confidential information from the patient records that “Defendant has a legal duty to safeguard.”

So, what do you think?  Is random sampling an appropriate option for cases where production of a larger set may be an undue burden?  Please share any comments you might have or if you’d like to know more about a particular topic.

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