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The Physicians Alliance Corp. v. WellCare Health Insurance of Arizona, Inc.

United States District Court, M.D. Louisiana

February 27, 2018

THE PHYSICIANS ALLIANCE CORPORATION
v.
WELLCARE HEALTH INSURANCE OF ARIZONA, INC., ET AL.

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE

         Before the Court is Plaintiff's Motion to Compel Production (R. Doc. 59) filed on December 15, 2017. The Motion is opposed. (R. Doc. 69). Defendants filed a Supplemental Opposition. (R. Doc. 72). Plaintiff filed a Reply. (R. Doc. 75). Oral argument was held on February 23, 2018. (R. Doc. 76).

         I. Background

         The Physicians Alliance Corporation (“TPAC” or “Plaintiff”) brought this action against WellCare Health Insurance of Arizona, Inc. and WellCare Health Plan, Inc. (collectively, “WellCare” or “Defendants”) for alleged breach of an Independent Practice Association Agreement entered on April 1, 2004. (R. Doc. 22).

         On or about September 13, 2016, TPAC propounded written discovery on WellCare. At issue is TPAC's Request for Production No. 35, which seeks production of all “documents and/or communications contained on any personal or business systems, electronic databases, serves, or document management systems” used by certain custodians. (R. Doc. 59-12).

         On or about October 27, 2016, WellCare provided its response to Request for Production No. 35. (R. Doc. 59-4). WellCare objected to the request on the basis that it is overbroad, unduly burdensome, seeks irrelevant information, and is not proportional to the needs of the case. WellCare asserted that it would conduct certain searches for certain custodians pursuant to an agreement reached by the parties on September 16, 2016. WellCare also identified certain custodians who left WellCare's employment, and whose information on their H:Drives would have been periodically saved to backup tapes. WellCare represented that restoring those backup tapes would cost approximately $332, 400.

         On February 3, 2017, after the parties held a conference regarding Request for Production No. 35, defense counsel agreed to obtain “further detail regarding the cost and time that would be involved in restoring the H drives of former WellCare employees.” (R. Doc. 59-16 at 3).

         On April 11, 2017, at the parties' request, the Court held its first telephone conference on the issue of the backup tapes. (R. Doc. 36). The Court ordered the parties to file a joint status report on the issues, and to schedule an additional conference if needed. (R. Doc. 36 at 2). The parties filed joint status reports on May 11, 2017, June 13, 2017, and August 17, 2017 to inform the Court that Wellcare was determining how to address the issue of the backup tapes. (R. Doc. 37; R. Doc. 39; R. Doc. 46 at 3-5).

         On August 26, 2017, and in light of the parties' continued efforts regarding the backup tapes, the Court extended, among other things, the deadline to complete all non-expert discovery to December 15, 2017. (R. Doc. 46).

         On August 30, 2017, defense counsel informed Plaintiff's counsel that the cost of restoring the backup tapes for the years 2003-2004 would be $211, 500 and the cost of restoring the backup tapes for the year 2011 would be $372, 800, for a total of $584, 300. (R. Doc. 59-24).

         On August 31, 2017, the Court held a telephone conference with the parties, at which defense counsel represented that cost estimates had been obtained to recover the years 2003-2004 and 2011, and that data had been recovered for the other years from 2003 to 2012. (R. Doc. 49).

         On September 18, 2017, the Court held a telephone conference with the parties, at which defense counsel represented that data for the recovered years had been produced. (R. Doc. 53).

         On October 11, 2017, the Court held a telephone conference with the parties, at which counsel for both parties represented that they needed additional time to discuss outstanding issues regarding the backup tapes. (R. Doc. 54).

         On October 20, 2017, Plaintiff's counsel informed the Court “that two or three weeks ago, the server that held H:Drive data for the 2003-2004 restores suffered a catastrophic cascade hardware failure” and that “[t]his backup ...


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