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GRIDER v. KEYSTONE HEALTH PLAN CENTRAL

November 23, 2005.

NATALIE M. GRIDER and KUTZTOWN FAMILY MEDICINE, P.C., Plaintiffs,
v.
KEYSTONE HEALTH PLAN CENTRAL, INC., et al., Defendants.



The opinion of the court was delivered by: YVETTE KANE, District Judge

MEMORANDUM AND ORDER

On August 15, 2005, Plaintiffs filed a "Combined Notice of Filing for Protective Order with the United States District Court for the Eastern District of Pennsylvania, Docket No. 01-56 [41] and Request for Stay of Enforcement of the Order Issued Herein on July 28, 2005." (Doc. No. 8.) By the motion, Plaintiffs asked that this Court stay its prior Order granting Defendant Highmark's motion to enforce a subpoena served on Dennis Olmstead, the Vice President and Chief Economist of the Pennsylvania Medical Society ("PMS"). Subsequently, Plaintiffs purported to withdraw their motion to stay, while at the same time requesting (without a proper motion) that this Court conduct an in camera review of certain documents they claimed were work-product. Highmark opposed such review, and further urged this Court to impose sanctions on Plaintiff for tampering with this Court's July 28, 2005 Order directing that third-party Dennis Olmstead produce certain documents and submit for a deposition. On November 16, 2005, Plaintiffs submitted another pleading, arguing that sanctions are unwarranted, and continuing their substantially untimely request that this Court conduct an in camera review of a number of documents that have never been provided to the Court, and which were the subject of a fiercely-contested discovery dispute in which Plaintiffs elected not to participate until after the dispute had been fully resolved. Even had Plaintiffs not purported to withdraw their motion, the Court would find no legitimate basis upon which to stay enforcement of the July 28, 2005 Order. Similarly, the Court does not find it now appropriate to conduct an entirely new discovery dispute by way of an in camera review of documents that were already the subject of substantial litigation between Defendants and Dennis Olmstead — a dispute of which Plaintiffs were at all times aware but in which they never attempted to participate.

Despite professing keen interest, and disappointment, in this Court's Order, and demonstrating obvious concern over Defendant Highmark's impending deposition of Mr. Olmstead, Plaintiffs never filed an objection with this Court to Highmark's discovery efforts in this Court. Indeed, despite having notice of the discovery dispute between Defendant Highmark and Olmstead, Plaintiffs never once appeared before this Court to voice an interest in the matter, nor to raise any opposition to Highmark's request that the subpoena be enforced. It was only after this Court issued an Order granting, in part, Highmark's motion to enforce the subpoena issued to Mr. Olmstead that Plaintiff raised any objection whatsoever. In belatedly attempting to stay this Court's Order, Plaintiffs took the circuitous approach of moving the United States District Court for the Eastern District of Pennsylvania ("Eastern District") to extend an unrelated Order issued in the underlying litigation in an effort to obtain relief from this Court's July 28, 2005 Order. It appears Plaintiffs were unsuccessful in this effort, but continue their efforts to frustrate Highmark's discovery by suggesting that this Court essentially re-open the settled discovery dispute to conduct an in camera review of certain documents. The Court finds no legitimate basis upon which to conduct such a review. To provide context, a discussion of the means by which Plaintiffs went about challenging the enforcement of this Court's July 28, 2005 Order is explained below.

  I. Background

  In the Plaintiffs' initial Rule 26 disclosures setting forth the names and addresses of those persons likely to have information relevant to Plaintiffs' claims, they listed Dennis Olmstead, the Vice President and Chief Economist of the PMS. The PMS is a not-for-profit professional association chartered under Pennsylvania law with a principal place of business located in Harrisburg, Pennsylvania. The PMS represents approximately 20,000 physicians, and is the largest professional physician association in the Commonwealth with a mission aimed at promoting the interests of physicians and their patients in Pennsylvania through information, education, public relations, and advocacy initiatives. (Doc. No. 5, at 2.)

  On November 24, 2004, Highmark served Olmstead with a notice of deposition and subpoena duces tecum, commanding him to produce certain documents by December 6, 2004 and to appear at a deposition scheduled to commence December 7, 2004 at 9:00 a.m. The subpoena served upon Mr. Olmstead requested production of the following documents:
1. All documents that relate or refer to communications with Plaintiffs; Plaintiff's counsel, Kenneth Jacobsen, Francis Farina and Joseph O'Keefe; and Plaintiff's experts, Pamela Waymack, Mary Ratelle, and Kimberly J. Pollack, including, but not limited to, communications concerning the allegations set forth in the Amended Complaint, any of the Defendants identified in the Amended Complaint, and/or coding, bundling, downcoding, capitation, and class certification.
2. All documents that refer or relate to communications with third parties concerning Plaintiffs, Plaintiff's counsel, Kenneth Jacobsen, Francis Farina and Joseph O'Keefe; and Plaintiff's experts, Pamela Waymack, Mary Ratelle, and Kimberly J. Pollack, the allegations set forth in the Amended Complaint, any of the Defendants identified in the Amended Complaint, and/or coding, bundling, downcoding, capitation, and class certification. 3. All documents that relate or refer to communications with members of the Pennsylvania Medical Society concerning Plaintiff's counsel, Kenneth Jacobsen, Francis Farina and Joseph O'Keefe, Plaintiff's experts, Pamela Waymack, Mary Ratelle, and Kimberly J. Pollack, the allegations set forth in the Amended Complaint, any of the Defendants identified in the Amended Complaint, and/or coding, bundling, downcoding, capitation, and class certification.
4. All documents that relate or refer in any way to the subject matter of this action, including, but not limited to, the allegations set forth in the Amended Complaint, the allegations of the motion for class certification, documents addressing class certification, and documents addressing coding, bundling, downcoding and capitation.
5. All documents that relate or refer to communications with Keystone Health Plan Central, Capital Blue Cross and Highmark, Inc.
6. All documents that relate or refer to communications with the Pennsylvania Department of Insurance and/or the Pennsylvania Department of Health concerning or referring in any way to Keystone Health Plan Central, Capital Blue Cross and/or Highmark, Inc.
(Doc. No. 1, Ex. 2, Notice of Deposition and Subpoena Duces Tecum.) Olmstead did not comply with the terms of the subpoena and was not produced for the deposition. Under cover of a letter dated December 15, 2004, Olmstead's counsel provided certain documents in response to the subpoena duces tecum, although the parties disputed whether the production was sufficiently responsive.

  Together with its production of documents, Olmstead's counsel also produced a privilege log and advised Highmark that it would move to quash the subpoena if Highmark sought to compel Olmstead's deposition.*fn1 (Doc. No. 5, Ex. B.) Highmark subsequently moved to compel production of documents and to enforce the subpoena, and Olmstead and the PMS filed a brief in opposition, arguing that the subpoena should be quashed and a protective order entered because: (1) the subpoena allegedly places an undue burden on non-parties to the underlying action; (2) the subpoena allegedly seeks information and documents protected by the attorney-client privilege and work-product doctrine; (3) the subpoena allegedly infringes upon the common-interest privilege between the PMS and the Plaintiffs in the underlying action; and (4) the subpoena seeks discovery of an unretained expert's opinion. Despite having notice of this dispute, Plaintiffs elected not to intervene in any way.

  By Order dated July 28, 2005 (the "July 28 Order"), this Court granted Defendant Highmark's motion in part, finding that the attorney-client privilege, work-product doctrine, and the common-interest exception did not operate to shield Olmstead from complying with the subpoena and submitting to a properly noticed deposition. However, the Court also found that document requests 4, 5, and 6 listed above were overly broad and unduly burdensome, and excused Olmstead from responding to these document requests. Pursuant to the terms of the July 28 Order, Olmstead was directed to respond fully to document requests 1, 2, and 3, and to cooperate with Defendant Highmark in scheduling Olmstead's deposition.

  While the Court was considering Defendant Highmark's motion to enforce the subpoena, Highmark and the other defendants in the underlying action moved collectively to prevent Plaintiffs from taking any further depositions without obtaining leave of the Eastern District. In so moving, the defendants relied upon the deposition limits set forth in Federal Rule of Civil Procedure 30(a)(2)(A). By Order dated June 7, 2005 (the "June 7 Order"), the Eastern District granted Defendants' joint motion to enforce against Plaintiff the ten deposition limit set forth in Rule 30(a)(2)(A). This Order, by its terms, applied only to Plaintiffs and their discovery efforts.*fn2 Thereafter, on August 12, 2005 — two weeks after this Court's Order granting Defendants' motion to enforce the subpoena issued to Mr. Olmstead — Plaintiffs filed a motion with the Eastern District seeking to have the June 7 Order extended to cover all parties, such that no party would be permitted to take more than ten depositions without first seeking leave of the Court.*fn3

  In addition, apparently construing certain language in the July 28 Order as an invitation for Plaintiffs to object in the Eastern District to a subpoena issued from the Middle District on the basis that the subpoena sought material protected by the work-product doctrine, Plaintiffs sought a protective order from the Eastern District in an effort to frustrate Highmark's discovery efforts. In conjunction with this motion for a protective order, Plaintiffs filed the instant motion before this Court seeking to stay enforcement of the July 28 Order. II. Discussion

  For the reasons set forth below, even had Plaintiffs not withdrawn their motion, the Court would find insufficient basis to stay enforcement of the July 28 Order. As an initial matter, the Court finds that Plaintiffs' failure to raise a work-product objection with this Court during the pendency of Highmark's motion to enforce the subpoena to be without excuse, and Plaintiffs' suggestion that this Court somehow invited them to lodge an untimely objection with the Eastern District is, at best, a misreading of the July 28 Order.

  It is true that this Court found that the PMS and Olmstead lacked standing to assert that the work-product doctrine should apply to the extent the documents requested constitute material Olmstead prepared at the behest of Plaintiffs' counsel in connection with the underlying action.*fn4 It is also true that the Court found that, to the extent the subpoenaed documents constituted work-product prepared by or at the request of Plaintiffs' counsel, it would be incumbent upon Plaintiffs to object to the subpoena. However, Plaintiffs' interpretation of this Court's Order as inviting them to file an objection to the subpoena with the Eastern District after having failed to voice any objections in this Court is simply incorrect.

  Far from inviting the Plaintiffs to engage in further, and substantially belated, litigation regarding Highmark's subpoena of the PMS and Olmstead, the Court finds that Plaintiffs' conduct in waiting to move for a protective order until after this Court adjudicated the discovery dispute, and in moving the Eastern District to issue a protective order relating to a subpoena duces tecum and notice of deposition issued from this District to be legally unsound.

  Plaintiffs have offered no legitimate justification or excuse for failing to raise their work-product objections with this Court while Defendant Highmark's motion to enforce was actually pending. Inexplicably, Plaintiffs elected to wait on the sidelines for eight and one-half months between the time Highmark served the subpoena and noticed Olmstead's deposition, and this Court's July 28 Order enforcing the subpoena and directing Olmstead's compliance therewith. In so doing, Plaintiffs apparently made the tactical decision to allow counsel for the PMS to shoulder the burden of defending against the discovery requests in this Court. Counsel for the PMS did so, and did so aggressively, and was largely unsuccessful despite its efforts. The Court is simply nonplused as to why Plaintiffs would refrain from objecting to ...


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