United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
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).
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).
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).
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.
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).
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).
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).
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).
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).
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).
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).
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 ...