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Discovery Order Modified to Reduce Production to Random Sampling of Medical Records

Posted on April 21st, 2017

reduce production to random samplingIn qui tam action Duffy v. Lawrence Memorial Hospital, Case No. 14-2256 (D. Kansas, Mar. 31, 2017), Plaintiff alleges that Defendant submitted false information to the government to maximize reimbursement for federal medical care programs. Defendant counterclaimed for breach of contract and fraud.

During discovery, Plaintiff asserted that Defendant had not produced responsive documents and obtained an order compelling Defendant to produce them. Defendant produced most of the documents, but not all. The records not produced included certain medical records, ECG and EKG printouts, electronically stored information or paper notes from the emergency room, and emergency department logs and documentation of transfers. Defendant performed searches for these documents and found that 15,574 unique patient records would have to be located and compiled, requiring an individual to go into the electronic record system and review every chart. Doing so would cause strain on Defendant’s ability to access and use its database, which would impact patient care. Defendant filed a Motion to Modify the Discovery Order after performing the search on a sample of ten patient records, which showed that it would take nearly 8,000 hours and cost nearly $200,000 to search all the records. Defendant would also have to redact patient records before production, which would cost another $40,000. Defendant sought to modify the order to state that it must produce a random sampling.

Plaintiff objected because it claimed Defendant did not attempt to meet and confer and also because of undue burden. Plaintiff asserted that it was essentially a “baseless motion for reconsideration” and that Defendant sat on its rights by not raising these arguments in response to the motion to compel. Plaintiff also argued that redaction was unnecessary because a protective order was in place.

The court disagreed with Plaintiff, stating that Defendant had not waived its arguments by not bringing them up in response to the motion to compel “as the enormity of the task became apparent.” The court also found that the meet and confer requirement was not at issue, because this is not a discovery dispute but is instead a request for relief from a court order. The court found Defendant’s request justified and granted it, ordering that Defendant could reduce production to a random sampling of 252 patient records with five spares, using the RAT-STATS method to select the sample size. The court also ordered that redaction was necessary despite the protective order in place, as Defendant had a legal duty to safeguard the information.

ILS – Plaintiff ESI Discovery Experts

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