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AIDS Healthcare Foundation, Inc. v. City of Baton Rouge

United States District Court, M.D. Louisiana

October 22, 2018

AIDS HEALTHCARE FOUNDATION, INC.
v.
CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, THROUGH THE CITY OF BATON ROUGE DIVISION OF HUMAN DEVELOPMENT AND SERVICES

          ORDER

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Before 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).

         Also 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).

         Also 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).

         The Court considers the foregoing motions together because they concern related issues.

         I. Background

         On 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)

         AHF 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).

         Under 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. ¶ 51).

         On 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. ¶¶ 72-73).

         On 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).

         On 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.

         On May 8, 2018, after EBR's Rule 30(b)(6) deposition, AHF requested the production of various specific documents, [1] and 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).

         On May 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)[2] be included in EBR's search for ESI responsive to AHF's discovery requests, and also requested production of a privilege log. (R. Doc. 71-8).

         On May 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).

         On May 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).

         On May 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).

         On June 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).

         On June 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).

         On June 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).

         On June 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).

         On June 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 ...


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