United States District Court, M.D. Louisiana
AIDS HEALTHCARE FOUNDATION, INC.
CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, THROUGH THE CITY OF BATON ROUGE DIVISION OF HUMAN DEVELOPMENT AND SERVICES
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion for Extension of
Discovery Deadlines. (R. Doc. 72). The motion is opposed. (R.
Doc. 77). Plaintiff has filed a Reply. (R. Doc. 88).
Defendant has filed a Surreply. (R. Doc. 102).
before the Court is Plaintiff's Motion to Compel. (R.
Doc. 71). The motion is opposed. (R. Doc. 78). Plaintiff has
filed a Reply. (R. Doc. 89). Defendant has filed a Surreply.
(R. Doc. 96).
before the Court is Defendant's Motion for Protective
Order Regarding Defendant's Privilege Log. (R. Doc. 80).
The motion is opposed. (R. Doc. 87). Defendant has filed a
Reply. (R. Doc. 93).
Court considers the foregoing motions together because they
concern related issues.
April 10, 2017, AIDS Healthcare Foundation, Inc.
(“Plaintiff” or “AHF”) commenced this
action, naming as defendant the City of Baton Rouge/Parish of
East Baton Rouge, through the City of Baton Rouge Division of
Human Development and Services (“Defendant” or
“EBR”). (R. Doc. 1). AHF has twice amended the
complaint. (R. Doc. 10; R. Doc. 47)
seeks declaratory relief, injunctive relief, and damages
arising from EBR's decision not to renew its
federally-funded Ryan White Program Contract (the
“Contract”) with AHF. (Doc. 10, “Am.
Compl.” ¶¶ 1, 4). On October 2, 2015, EBR
issued a request for proposal (the “RFP”) (R.
Doc. 10-1), which sought proposals from qualified public or
non-profit entities to become a sub-recipient of EBR's
Ryan White Program funds to assist in providing core services
to persons living with HIV/AIDS. (Am. Compl. ¶¶ 29,
31). AHF and EBR entered into the Contract (R. Doc. 10-2)
with an effective date of March 1, 2016. (Am. Compl. ¶
41). The Contract provided for an initial term of March 1,
2016 to February 28, 2017, and the RFP provided that
“[u]p to two additional 12-month renewal awards may be
made based upon the availability of funds and acceptable
contract performance.” (Am. Compl. ¶ 43) (quoting
R. Doc. 10-1 at 9).
the Contract, AHF, a sub-recipient of EBR's federal
funds, provided medical services to uninsured and
underinsured people with HIV/AIDS in Baton Rouge, Louisiana.
(Am. Compl. ¶ 1). AHF also participates in the 340B
Program of the Public Health Services Act, 42 U.S.C. §
256b, which is a separate federal program in which AHF also
participates that allows certain healthcare providers to buy
drugs at discounted rates. (Am. Compl. ¶¶ 2, 21).
In January 2017, EBR scheduled a routine Ryan White Program
monitoring review of AHF's operations related to its
2016-17 Contract. (Am. Compl. ¶ 49). Pursuant to Section
XXI. “Program Income” of the Contract, EBR
requested production of several documents to review,
including documents regarding AHF's use of the 340B
Program. (Am. Compl. ¶ 50). AHF refused to comply,
explaining that it did not believe EBR had the authority to
collect and review AHF's 340B documentation. (Am. Compl.
April 18, 2017, EBR wrote to AHF to inform it of the
non-renewal of the Contract due to its failure to submit
documentation requested by Defendant concerning the 340B
program. (Am. Compl. ¶ 70). EBR informed AHF that it
would be transitioning AHF's patients to other agencies;
however, some of AHF's patients indicated that they
wished to continue to receive services from AHF. (Am. Compl.
¶ 70-71). AHF continued to provide these services, even
though it had to pay for these services with its own funds,
and has billed EBR for reimbursement. (Am. Compl.
December 18, 2017, the Court issued a Scheduling Order
setting, among other things, the deadline to complete
non-expert discovery on June 1, 2018, the deadline to
complete expert discovery on September 10, 2018, the deadline
to file dispositive motions on November 13, 2018, and trial
to commence on May 28, 2019. (R. Doc. 54).
December 19, 2017, AHF served written discovery requests on
EBR. (R. Doc. 71-2; R. Doc. 71-3). EBR provided written
responses on February 9, 2018, producing certain
electronically stored information (“ESI”) on a
flash drive in response to Requests for Production Nos. 1-7,
9-10, 13, 15-24. (R. Doc. 71-4). On March 15, 2018, AHF
served supplemental written discovery requests on EBR. (R.
Doc. 71-5). EBR provided responses on April 27, 2018,
producing certain ESI on a flash drive in response to
Supplemental Requests for Production Nos. 3-4, 6-7, 10-12.
(R. Doc. 71-6). AHF does not argue that the foregoing
discovery responses were untimely.
8, 2018, after EBR's Rule 30(b)(6) deposition, AHF
requested the production of various specific documents,
sought supplementation of EBR's “e-discovery
responses by conducting broader searches to include the
Mayor's office and other departments, ” as
AHF's previous productions of ESI were obtained from
searches “limited to the Division of Human Development
and Services.” (R. Doc. 71-7).
10, 2018, AHF specifically requested that the mailboxes of
seven individuals (Paula Merrick Roddy, Shamell Lavigne,
Joyce Biagas, Dr. Tamiara Wade, Ph.D., Robert H. Abbott, III,
Deelee Morris, and Thomas Hickey) be included in EBR's
search for ESI responsive to AHF's discovery requests,
and also requested production of a privilege log. (R. Doc.
21, 2018, AHF inquired about EBR's supplemental
responses, and informed EBR that AHF's Rule 30(b)(6)
representative would be available for a deposition on June
19, 2018. (R. Doc. 71-9). That same day, EBR provided some of
the additional documents requested by AHF after EBR's
Rule 30(b)(6) deposition. (R. Doc. 71-10).
23, 2018, EBR filed an unopposed motion to extend the
non-expert discovery deadline in light of scheduling issues
pertaining to AHF's Rule 30(b)(6) deposition. (R. Doc.
57). The Court granted the motion and extended the non-expert
discovery deadline to June 29, 2018. (R. Doc. 60).
29, 2018, AHF sent a letter seeking additional supplemental
productions consistent with the requests on May 8, 2018 and
May 10, 2018. (R. Doc. 71-12). In addition to adding Gail
Grover as a proposed custodian, AHF requested EBR to search
for ESI from “January 1, 2012 to the present”
using fifteen specific search terms: “AHF, ”
“AIDS Healthcare, ” 340B, HRSA, United States
Development of Health and Human Services, Ryan White, Part A,
AIDS, Pedley, Hickey, Cardarella, Momodu, Myers, Poole, and
Weinstein. (R. Doc. 71-12 at 2).
8, 2018, AHF sought an update on the supplemental production
of ESI, indicating that all of its document requests were
“outstanding.” (R. Doc. 71-13 at 1-2). EBR
responded that with respect to AHF's request for ESI, it
restated its objection to Request for Production No. 25. (R.
Doc. 71-3 at 1).
12, 2018, AHF clarified that it was seeking a supplemental
ESI response to AHF's Requests for Production Nos. 1,
3-7, 12-21 and AHF's Supplemental Requests for Production
Nos. 1-12, which all relate to EBR's decision not to
renew AHF's contract and to decertify AHF from the 340B
program. (R. Doc. 71-14). AHF further stated that it was
seeking a supplementation of ESI using the “custodians,
specific search terms, and date ranges” provided by AHF
at EBR's request “to facilitate the process.”
(R. Doc. 71-14).
13, 2018, EBR stated that AHF's suggested ESI protocol
would produce over 100, 000 pieces of ESI and would require a
time-consuming manual redaction of documents. (R. Doc.
71-15). Given the foregoing, EBR requested AHF to agree to a
joint motion to extend the discovery deadlines. (R. Doc.
71-15). The parties then held a discovery conference in which
the parties discussed the possibility of narrowing AHF's
discovery requests and suggested search terms, and in which
EBR disagreed with AHF's request to seek a 180-day
extension of the discovery deadline to produce ESI. (R. Doc.
71-16; R. Doc. 71-17). After the conference, EBR asked AHF to
narrow its requested ESI protocols. (R. Doc. 71-18).
20, 2018, AHF suggested the following modified ESI protocol:
the search term period be limited to October 1, 2015 to the
present, that nine search terms be used (AHF, “AIDS
Healthcare, ” Pedley, Hickey, Cardarella, Mamodu,
Myers, Poole, and Weinstein), and that the search be
conducted with regard to seven custodians (Gail Grover, Paule
Merrick Roddy, Shamell Lavigne, Joyce Biagas, Mayor-President
Sharon Weston Broome, Dr. Tamiara Wade, Ph.D., and Thomas
Hickey). (R. Doc. 71-19 at 1-2). AHF agreed to an extension
of time to conduct the searches, so long as the trial date
was not interrupted, and further indicated its desire to
conduct the depositions of the seven custodians referenced
above. (R. Doc. 71-19 at 2).
22, 2018, EBR sought a protective order regarding AHF's
notices of the foregoing seven depositions. (R. Doc. 66). The
Court denied the motion, and stayed the nonexpert discovery
deadline until the ...