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GRIDER v. KEYSTONE HEALTH PLAN CENTRAL

United States District Court, E.D. Pennsylvania


April 26, 2004.

NATALIE M. GRIDER, M.D. and KUTZTOWN FAMILY MEDICINE, P.C., Plaintiffs
v.
KEYSTONE HEALTH PLAN CENTRAL, INC., HIGHMARK, INC., JOHN S. BROUSE, CAPITAL BLUE CROSS, JAMES M. MEAD and JOSEPH PFISTER, Defendants

The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge

OPINION

This matter is before the court on plaintiffs' motions to preclude defendants from presenting evidence or argument in opposition to plaintiffs' motion for class certification, on defendants' motions for sanctions seeking attorneys' fees and costs for preparation of their responses to plaintiffs' motions to preclude, and on the motion of defendants Keystone Health Plan Central, Inc. and Joseph Pfister (collectively "Keystone" or "Keystone defendants") for reconsideration of the January 14, 2004 Order of Magistrate Judge Arnold C. Rapoport directing Keystone to provide documents to plaintiffs. For the reasons expressed below, we deny each motion.

  BACKGROUND

  The pertinent facts underlying plaintiffs' original Complaint were succinctly addressed in our September 18, 2003 Opinion. We incorporate that full recitation of the facts herein. However, a brief recitation of the facts is helpful to address the discovery issues presented.

  Plaintiffs seek to certify this action as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Plaintiff Natalie M. Grider, M.D. is a family practitioner and President of plaintiff Kutztown Family Medicine, P.C. Plaintiffs and their affiliates provide medical services to about 4,000 patients who are insured by Keystone. Keystone is a Health Maintenance Organization ("HMO") organized under the Pennsylvania Health Maintenance Organization Act.*fn1

  Plaintiffs contend that defendants Capital Blue Cross and Highmark Inc., direct and control the operations of Keystone and receive all of its profits. Plaintiffs further contend that defendants, John S. Brouse, James M. Mead and Joseph Pfister are the Chief Executive Officers of Highmark, Capital and Keystone, respectively. Plaintiffs allege that defendants and various non-parties together form what is styled as the "Managed Care Enterprise", an entity which allegedly operates to defraud plaintiffs and the proposed class through a variety of illegal methods.

  Plaintiffs entered into an HMO-physician agreement with defendant Keystone in December 1998 to provide medical services to the HMO's members. In addition to a complex bonus system, the agreement provides for two basic methods by which plaintiffs are paid for rendering medical services: (1) capitation, and (2) fee for service.

  Plaintiffs allege a variety of ways in which defendants used the mail and wires to defraud plaintiffs by wrongfully delaying and denying compensation due under both methods of payment. Plaintiffs also assert that the HMO-physician agreement contains a number of misrepresentations and material omissions. Specifically, plaintiffs allege that defendants (1) "shave" capitation payments by purposefully under-reporting the number of patients enrolled in plaintiffs' practice group; (2) defraud plaintiffs of fees for medical services rendered by wrongfully manipulating CPT codes to decrease the amount of reimbursements; and (3) defraud plaintiffs of bonuses promised in the HMO-physician agreement.

  Plaintiffs also assert a number of RICO claims premised on extortion in violation of the Hobbs Act,*fn2 bribery,*fn3 and violations of the Travel Act.*fn4

  Finally, plaintiffs bring state law causes of action asserting that defendants violated the prompt-payment provision of Pennsylvania's Quality Health Care Accountability and Protection Act*fn5 and for breach of contract as noted above.

  PROCEDURAL HISTORY Plaintiffs filed their Complaint in the Court of Common Pleas of Philadelphia County on October 5, 2001. Defendants removed the action to this court on November 7, 2001. By Order and Opinion of the undersigned dated September 18, 2003, we granted in part and denied in part Defendants' Motion to Dismiss, which motion filed January 23, 2002.*fn6

  On January 14, 2004, a comprehensive Rule 16 Status Conference Order was entered by the undersigned based upon the status conference held before the undersigned December 30, 2003. In our Order, we set deadlines for class discovery, expert reports, and expert depositions regarding class discovery; defendants' deadline for a response to plaintiffs' motion for class certification; a hearing date for plaintiffs' motion for class certification; deadlines for trial expert reports and depositions; a dispositive motion deadline; a deadline for motions in limine; and a trial date.

  In addition, by separate Jury Trial Attachment Order dated January 14, 2004 we set deadlines for trial memoranda, exchange of exhibits, voir dire questions, a proposed verdict sheet, points for charge and other issues related to the trial of this matter.

  DISCUSSION

  Plaintiffs' Motion to Preclude

  Plaintiffs seek an Order for sanctions pursuant to Rule 37(b) of the Federal Rule of Civil Procedure for alleged deficiencies in the responses to plaintiffs' interrogatories and requests for production of documents served upon defendants Keystone and Highmark.*fn7 Specifically, plaintiffs contend that they served their discovery requests in September 2003 and have either received incomplete responses or no responses at all.

  More specifically, plaintiffs contend that the Keystone defendants have not provided all requested, discoverable documents in their possession, or have provided them well after the March 1, 2003 class discovery deadline. For example, plaintiffs contend that Keystone is withholding documents that they have allegedly unilaterally deemed "privileged", "non-responsive" and "non-relevant". Moreover, in the case of privileged documents, plaintiffs assert that the Keystone defendants have refused to provide a privilege log.

  Plaintiffs further assert that the Keystone defendants' withholding of documents are in violation of the January 14, 2004 Order of Magistrate Judge Rapoport and his letter dated January 27, 2004 which stated that "all documents are to be produced". With regard to Highmark, plaintiffs assert that the Highmark defendants have not produced any documents pursuant to their discovery requests.

  Plaintiffs seek to preclude defendants from opposing plaintiffs' claims for commonality, typicality and predominance at the class certification hearing.

  All defendants oppose plaintiffs' motions. Specifically, the Keystone defendants contend that they have complied with plaintiffs' discovery requests. Moreover, Keystone contends that over the past two months they have produced over 52,000 pages of documents and tens of thousands more on CD-ROM.*fn8 Furthermore, Keystone contends that certain categories of documents listed by plaintiffs have not been requested.

  Counsel for Keystone asserts that it has been attempting to work amicably with plaintiffs for months to work out discovery issues. Specifically, counsel asserts that plaintiffs' counsel propounded numerous interrogatories that were converted to document requests. Moreover, plaintiffs' counsel agreed to provide a "top ten" list of categories of the types of documents plaintiffs wanted most and defendants would produce those categories, but no "top ten" list has ever been communicated to defense counsel. In addition, Keystone contends that they have properly asserted numerous objections to plaintiffs' interrogatories, requests for production of documents and interrogatories that have been converted to document requests.

  Finally, Keystone contends that the sanction requested by plaintiffs (preclusion of offering evidence at the class certification hearing) is inappropriate because it lacks legal support and is contrary to the provisions of Rule 23 of the Federal Rules of Civil Procedure. Specifically, defendants assert that pursuant to Rule 23, the court has an independent obligation to decide whether this action is appropriate for class certification. In support of their contention, defendants rely on Masters v. Wilhelmina Model Agency, Inc., Civ. No. 02-4911, 2003 WL 21089073 (S.D.N.Y. May 13, 2003) for the proposition that preclusion is not an appropriate sanction.

  Defendant Highmark contends that plaintiffs' motion to preclude is premature because they have not been subject to an Order compelling production of answers to discovery requests and because there are unresolved objections involving interrogatories and requests for production of documents propounded by plaintiffs. Furthermore, Highmark contends that contrary to plaintiffs' assertion, it is not subject to the January 14, 2004 Order of Magistrate Judge Rapoport. Rather, Highmark contends that Order only applies to the Keystone defendants. Hence, Highmark avers that plaintiffs motion to preclude must be denied against them as procedurally defective.

  For the following reasons, we deny plaintiffs' motion for preclusion against all defendants.

  Rule 37 of the Federal Rules of Civil Procedure provides in pertinent part:

(a) Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows:
* * *
(2) Motion.
(B) If . . . a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to secure the information or material without court action.
* * *
(3) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond
* * *
(b) Failure to Comply With Order.
* * *
(2) If a party . . . fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among other orders the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence.
In addition to the requirements of Rule 37 of the Federal Rules of Civil Procedure, Local Rule 26.1(b) provides:
Every motion pursuant to the Federal Rules of Civil Procedure governing discovery shall identify and set forth, verbatim, the relevant parts of the interrogatory, request, answer, response, objection, notice, subpoena, or depositions. Any party responding to the motion shall set forth, verbatim, in that party's memorandum any other part that the party believes necessary to the Court's consideration of the motion.
In this case, plaintiffs did not attach the interrogatories or requests for production of documents propounded to defendants. Thus, we conclude that plaintiffs have not complied with the directives of Local Rule 26.1(b). We are cognizant that Local Rule 26.1(g) provides that routine motions to compel answers to interrogatories or to compel compliance with a request for production of documents, where it is averred that no response or timely objection was served, it is not necessary to attach a copy of the interrogatories or the request to produce. However, the issues involved in this matter are not by any means routine.

  Keystone has produced tens of thousands of documents. In a case like this, it is incumbent on plaintiffs to provide the court with the exact language of each interrogatory and request for production of documents so that we are able to assess defendants' compliance with each request. Because we have no means of determining whether the documents provided by defendants actually respond to a corresponding request for production*fn9 and because of plaintiffs' failure to comply with the provisions of Local Rule 26.1(b), we conclude that even if we were inclined to grant preclusion, we cannot determine which issues we would specifically preclude. The requested documents may not be responsive to the issues before the court on plaintiffs' motion for class certification.

  Next, we address the contention of the Keystone defendants that pursuant to Masters we cannot grant preclusion. We conclude that we do not have to address this novel issue at this time, because, as stated above, we have already determined that we can not determine what information we would preclude because of plaintiffs failure to specifically set forth what discovery requests have not been responded to. However, we are certain that total preclusion of all evidence by defendants would not be an appropriate initial sanction. Therefore, we agree with defendants that such a sanction is an inappropriate remedy.

  In Masters the relief sought by plaintiff was the striking of any opposition to the class certification motion. In this case, plaintiffs sought an Order precluding defendants Keystone and Highmark from presenting evidence in opposition to the motion. Presumably, defendant Capital would still produce evidence that may benefit all defendants in opposition to plaintiffs' class certification motion.

  Moreover, even if all defendants agreed to the certification of a class in this case, it is still incumbent on the court to determine whether a class should be certified. Thus, any evidence that is helpful in making our class certification decision, which we must do independent of the positions of the parties, should be considered. Our duty is to the absent potential class members and their rights. See In re General Motors Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 784-785 (3d Cir. 1995).

  With regard to defendant Highmark, plaintiffs assert that no documents have been produced and that Highmark's responses to interrogatories are "long on objections and so short on substance as to be useless to plaintiffs."*fn10 Defendant Highmark contends that it has not previously been the subject of an Order to compel. We agree.

  Because plaintiffs have not previously sought either an Order to compel production of documents or a determination regarding the validity of any objections to interrogatories, we decline to grant plaintiffs' motion to preclude regarding the Highmark defendants. By plaintiffs' own admission there may be objections that need to be resolved regarding answers to interrogatories. Neither party submitted to the court either the questions or the answers. Thus, we cannot endeavor to make that determination at this time. That issue should be addressed to Magistrate Judge Rapoport pursuant to the Standing Order of the undersigned dated January 2, 2003 which refers all discovery disputes to Magistrate Judge Rapoport. In addition, for the reasons expressed above, on the motion to preclude as it relates to the Keystone defendants, we are not inclined to grant the sanction of preclusion of evidence at the class certification hearings.

  Accordingly, we deny plaintiffs' motions to preclude. However, as expressed below, we do not condone the apparent failure of defendants Keystone and Highmark and possibly Capital to produce discovery in a complete and timely manner.

 

Defendants' Motions for Sanctions Against Plaintiffs for Filing the Motion to Preclude
  Defendants seek monetary sanctions in the form of reasonable attorneys' fees and costs for preparation of their respective responses to plaintiffs' motions to preclude. The Keystone defendants characterize plaintiffs' motion to preclude as "baseless".*fn11 Moreover, the Highmark defendants characterize plaintiffs' motion as "without merit" and "having no legal basis".*fn12 For the following reasons, we deny both motions for sanctions.

  Initially, we note that none of the defendants has been fully forthcoming, in a timely manner, with discovery in this case. While we agree with the position of defendant Highmark that plaintiffs' motion to preclude was premature, we do not condone the apparent failure of Highmark to submit its discovery responses in a timely manner.

  Federal Rules of Civil Procedure 33 (Interrogatories) and 34 (requests for production of documents) require that answers and objections to these discovery requests must be made within 30 days after service. While plaintiffs do not set forth the specific date that the requests were made, it appears that it was more than 30 days before the within motion. Moreover, plaintiffs allege that they have been attempting to resolve the dispute without court intervention in compliance with both the Federal and Local Rules of Civil Procedure.

  If there have been extensions of time requested and received in this case, the court is unaware of them. Federal Rule of Civil Procedure 29 provides that the parties may by written stipulation "modify other procedures governing or limitations placed upon discovery." In this case, no party has submitted any written stipulation evidencing that an extension of time has been granted for defendants to respond to any discovery request. Thus, all defendants may have waived any objections not interposed within 30 days of the service of the discovery requests.*fn13 This potentially applies equally to plaintiffs.

  With regard to the Keystone defendants, a review of the documents provided in support of their response to plaintiffs' motion to preclude is telling in a number of aspects. Initially, Keystone contends that it is withholding documents and responses to interrogatories on the basis of objections. However, because none of the parties produced any questions or responses, we are unsure if those objections have been timely set forth in writing as required by Rules 33 and 34, or if they are meritorious.

  Moreover, while defendants assert that they have provided certain classes of documents in full compliance with plaintiffs' discovery requests, they have redacted information within many documents making it unclear whether they have actually fully complied with the requests.

  Under a confidentiality Order, all documents produced to plaintiffs by Keystone are designated "highly confidential" or "attorneys eyes only". Keystone has not sought a protective Order concerning such information. Thus, there is no reason why information should be redacted by defendants.

  At this time, we do not determine the validity, or lack of validity, of any objections, or whether any discovery objections have been waived. Those are matters which should be addressed, upon proper application to Magistrate Judge Rapoport. However, there is sufficient evidence before the court to determine that defendants are not as blameless as they would have this court believe.

  Accordingly, we deny the motions for sanctions of the Highmark and Keystone defendants.

  Keystone Defendants' Motion for Reconsideration

  At the conclusion of a January 14, 2004 discovery conference before Judge Rapoport, the parties entered into a stipulated confidentiality Order. Subsequently, Judge Rapoport issued an Order based upon the conference. In that Order, Judge Rapoport directed counsel for Keystone to provide to plaintiffs' counsel by January 21, 2004 all CD-ROMs provided by Keystone to its counsel in response to discovery requests. The Order further directed the Keystone defendants to provide by January 28, 2004 "all documents in counsel's possession which have not been previously produced. . . ."

  By letter dated January 23, 2004, counsel for the Keystone defendants sought clarification of the January 14, 2004 written Order from Judge Rapoport. Specifically, Keystone sought to clarify whether Judge Rapoport's Order directed the production of allegedly privileged documents or documents which Keystone's counsel possessed but determined were not responsive to any request for production propounded by plaintiffs. By letter to counsel dated January 27, 2004, Judge Rapoport declined to clarify his January 14, 2004 Order.

  The Keystone defendants seek reconsideration of the January 14, 2004 Order of Magistrate Judge Rapoport. Defendants couch their request in terms of a reconsideration of the January 27, 2004 letter from Judge Rapoport which responded to defense counsel's January 23, 2004 letter seeking clarification of Judge Rapoport's January 14, 2004 Order.

  In that Order, Judge Rapoport directed that "on or before January 28, 2004, counsel for Keystone shall tender to Plaintiffs' counsel all documents in counsel's possession which have not been previously produced." In its January 23, 2004 letter to Judge Rapoport, counsel wrote that Keystone was concerned that Judge Rapoport's Order was more expansive than what was originally directed at the January 14 conference. Defendants presented a proposed Order to Judge Rapoport which would alleviate their concerns. By letter dated January 27, 2004, Judge Rapoport responded that his Order reflected the conversation held in open court on January 14, 2004 and that the Order reflects the positions of the parties at the conclusion of the hearing.

  Defendants contend that they left the hearing with the impression that all that they were directed to produce was the documents requested by plaintiffs which were not privileged. However, defendants read the Order as being more expansive. After seeking clarification from Judge Rapoport, Keystone now comes to this court seeking reconsideration.

  Our Standing Order of January 2, 2003 specifically provides: "Any party contending that the [discovery] Order of the Magistrate Judge is clearly erroneous or contrary to law may file a petition to Reconsider, together with a proposed Order, directed to the undersigned, pursuant to 28 U.S.C. ___ 636(b)(1)(A). (Emphasis added.) In this case, defendants initially sought reconsideration from Judge Rapoport.

  Rule 7.1(g) of the Local Rules of Civil Procedure requires that motions for reconsideration shall be served within ten days after entry of the Order concerned. Rule 6 of the Federal Rules of Civil Procedure provides that when a period of time is less than 11 days, then the intermediate Saturdays, Sundays and holidays are excluded in the computation of time. Thus, by our calculations, defendants had until Wednesday, January 28, 2004 to seek reconsideration of Judge Rapoport's Order of Wednesday, January 14, 2004.

  Accordingly, because our Standing Order provides that a party is to seek reconsideration from the undersigned, not from Judge Rapoport, and defendants failed to do so within the time period prescribed by the Local Rules, we deny defendants' motion for reconsideration.

  However, based upon the colloquy between counsel for Keystone and Judge Rapoport at the January 14, 2004 hearing, we conclude that defendants were never required to produce non-responsive or privileged documents. Defendants correctly assert that they are not required to produce non-responsive or properly privileged documents. However, defendants are not the judge of what is relevant. We presume that Judge Rapoport never intended to issue an Order in contravention of the Federal Rules of Civil Procedure; nor, based upon his colloquy with defendants, did he do so.

  Accordingly, while we deny defendants' motion for reconsideration, we clarify Judge Rapoport's Order to reflect our understanding of it. Privilege Logs

  By Order of the undersigned dated February 2, 2004 we directed that:

defendants Keystone Health Plan Central, Inc., Joseph Pfister, Highmark, Inc. and John S. Brouse shall serve on counsel for plaintiffs and the undersigned, a privilege log setting forth the following information regarding any document withheld from plaintiffs:
(1) the title of the document;
(2) the identity and title of the person who prepared the document;
(3) the time and date the document was prepared;
(4) the circumstances under which the document was prepared;
(5) the location where the original is filed;
(6) whether copies of the document exist;
(7) the location or locations where any copies are filed;
(8) who has access to the document; and
(9) the uses made of the document.
Implicit in our Order is the notion that defendants shall assert a specific claim of privilege for each document. The Highmark defendants did this in their privilege log. The Keystone defendants did not.

  We note that instruction number 4(a) of the Keystone defendants second set of requests for production of documents*fn14 includes a request to state the following information: "The Specific privilege which is being claimed and provide citation therefore." We find it telling that Keystone requires the exact information from plaintiffs which it failed to provide plaintiffs in Keystone's February 6, 2004 privilege log.

  Accordingly, we direct that on or before May 17, 2004, Keystone shall submit to all counsel and the undersigned a revised privilege log which includes designation of each specific privilege being claimed, and citation of the legal authority supporting such claim of privilege.

  In addition, plaintiffs' counsel shall have until May 24, 2004 to submit to counsel for Keystone and Highmark and the undersigned a detailed list of any documents which plaintiffs assert are not privileged and the legal authority supporting such claim. If the parties are unable to agree upon the issues of privilege, they shall have until June 1, 2004 to submit any remaining privilege disputes to Magistrate Judge Rapoport. Keystone's Allegations of Misconduct by Plaintiffs' Counsel

  In footnote 7 to Keystone's response to plaintiffs' motion to preclude as well as in Exhibit 12*fn15 attached to the response, counsel for Keystone makes very serious allegations involving the conduct of unnamed members of the team of attorneys for plaintiffs. Specifically, it is alleged that at a January 6, 2004 meeting of counsel for plaintiffs and Keystone, while counsel for Keystone, Cheryl A. Krause, Esquire was attempting to discuss discovery issues, unnamed counsel for plaintiffs "threw darts at a dart board containing pictures of Ms. Krause and her colleague Mr. Summers, and also placed in front of Ms. Krause plastic dolls identified as Mr. Summers and Kenneth Jacobson, Esquire, that urinated on each other." We consider the allegations of defense counsel regarding the conduct of plaintiffs' counsel a very serious matter. Specifically, this type of conduct violates both the letter and the spirit of Article II, Sections 5*fn16 and 6*fn17 of the Pennsylvania Code of Civility and constitutes inappropriate conduct for members of the bar of this court.

  Moreover, if the allegations are without merit, we would consider defense counsel's allegations a serious violation of Rule 11 of the Federal Rules of Civil Procedure. While we do not pass on the veracity of these allegations, neither scenario is appropriate conduct by any member of the bar of this court.

  Because this issue revolves around the conduct of counsel during discovery, we refer the matter to United States Magistrate Judge Arnold C. Rapoport for disposition at his discretion. Finally, we note that certain counsel for the parties in this action have had great difficulty in amicably dealing with other counsel in this matter. While we respect the adversarial process and recognize that each counsel has certain obligations to their respective clients, the tone and tenor of the communications between counsel and the arguments made to the court have become increasingly inappropriate.

  The undersigned has previously admonished counsel to deal with each other in a respectful and courteous manner. Magistrate Judge Rapoport has previously required counsel to appear before him with their respective clients on otherwise routine discovery matters in order to demonstrate to the clients the acrimonious banter back and forth between certain of their counsel in this case.

  We are very concerned about the continuing animosity and counsels' inability to resolve seemingly simple issues. Counsels' continuing failure to act in accordance with proper etiquette, in all phases of this case, based upon the Federal Rules of Civil Procedure, the Rules of Civil Procedure for the United States District Court for the Eastern District of Pennsylvania, the Pennsylvania Rules of Professional Conduct and the Pennsylvania Code of Civility will be dealt with in an appropriate fashion upon any party's application or on the court's own motion.

  CONCLUSION

  For all the foregoing reasons, plaintiffs' motions to preclude, defendants' motions for sanctions and defendant Keystone's motion for reconsideration are each denied.

  ORDER

  NOW, this 26th day of April, 2004, upon consideration of Plaintiffs' Motion to Preclude Defendants Keystone Health Plan Central, Inc., Joseph Pfister, Highmark, Inc. and John S. Brouse, From Presenting Evidence or Argument in Opposition to Plaintiffs' Motion for Class Certification, filed February 2, 2004; upon consideration of the Response of Defendants Highmark Inc. and John S. Brouse to Plaintiffs' Motion to Preclude Defendants From Presenting Evidence or Argument in Opposition to Plaintiffs' Motion for Class Certification and Cross-Motion for Sanctions, filed February 6, 2004; upon consideration of Defendants' Response to Plaintiffs' Motion to Preclude Defendants From Opposing Class Certification and Cross-Motion for Reconsideration of Judge Rapoport's January 27, 2004 Denial of Defendants' Request for Clarification, filed February 6, 2004 on behalf of defendants Keystone Health Plan Central, Inc. and Joseph Pfister; upon consideration of the request for sanctions contained in the prayer for relief of defendants Keystone Health Plan Central, Inc. and Joseph Pfister to their response to plaintiffs' motion to preclude, which response was filed February 6, 2004; upon consideration of the Motion for Sanctions of defendants Highmark, Inc. and John S. Brouse contained within their response to plaintiffs' motion to preclude, which response was filed February 6, 2004; upon consideration of the briefs of the parties; upon consideration of the pleadings, exhibits and record facts; and for the reasons expressed in the accompanying Opinion,

IT IS ORDERED that plaintiffs' motion to preclude is denied.
  IT IS FURTHER ORDERED that the request for sanctions filed on behalf of defendants Keystone Health Plan Central, Inc. and Joseph Pfister is denied.

  IT IS FURTHER ORDERED that the Motion for Sanctions filed on behalf of defendants Highmark, Inc. and John S. Brouse is denied.

  IT IS FURTHER ORDERED that the motion for reconsideration filed on behalf of defendants Keystone Health Plan Central, Inc. and Joseph Pfister is denied as untimely.*fn18

  IT IS FURTHER ORDERED that on or before May 17, 2004 defendant Keystone Health Plan Central, Inc. shall submit to all counsel, and the undersigned, a revised privilege log which includes a designation of each specific privilege being claimed and citation of the legal authority supporting such claim. IT IS FURTHER ORDERED that plaintiffs' counsel shall have until May 24, 2004 to submit to counsel for defendants Keystone Health Plan Central, Inc. and Highmark, Inc., and the undersigned, a detailed list of any documents which plaintiffs assert are not privileged and the legal authority supporting such claims.*fn19

  IT IS FURTHER ORDERED that on or before June 1, 2004 the parties shall submit all unresolved privilege disputes to Magistrate Judge Rapoport for determination.*fn20

  IT IS FURTHER ORDERED that the issue of the alleged conduct of counsel for plaintiffs contained in footnote 7 of the response of defendant Keystone Health Plan Central, Inc. to plaintiffs' motion to preclude is referred to United States Magistrate Judge Arnold C. Rapoport for hearing and disposition consistent with the accompanying Opinion.

  IT IS FURTHER ORDERED that all further agreements of counsel in this action shall be in writing.*fn21


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