United States District Court, E.D. Louisiana
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.
the Court is Motion for Contempt, Sanctions and Cost,
and to Compel (Rec. doc. 68) and an Emergency Motion for
Protective Order (R. Doc. 85) The motions are
opposed (Rec. doc. 70, 94). The matters were set with oral
argument on July 24, 2019 (Rec. doc. 69) and on September 4,
2019 (Rec. doc.96), respectively.
claimants initiated this lawsuit as a result of a collision
allegedly occurred with a driver of an eighteen-wheeler who
was attempting to make a lane change. As a result, the
claimants seek damages.
discovery in this case made a shift to the defendants
subpoenaing records and noticing the deposition of the
plaintiff's treating physician Dr. Lonseth. According to
the pleadings, on May 21, 2019 the defendants issued a
subpoena for the deposition of the Office/Billing
Administrator for Dr. Eric Lonseth and sought her appearance
at 11:00am so as not to inconvenience the Office/Billing
Administrator at Lonseth Interventional Pain Center, 4213
Teuton Dr. in Metairie. Service of the notice was made on the
receptionist, Tyra Bandi. Rec. doc. 68-1.
notice at issue sought the production of the following: (1)
referral of Reese to Dr. Lonseth; (2) billing in connection
with Reese medical treatment; (3) records of examination and
treatment; (4) price setting for treatment of Reese and other
patients; (5) evidence of payment terms including collection
at close of the lawsuit; and (6) information regarding
payments received for or from Reese. Rec. doc. 68. In
addition to the above, the notice also sought the production
of prior deposition testimony of Dr. Lonseth, copies of the
transcripts, list of his employees, copies of contracts
Lonseth had on his own behalf or Lonseth Interventional Pain
Center (“Pain Center”) with Total Medical
Concepts and or MedPort or any other medical funding company.
It also sought the sources of funding of the Pain Center.
Harper, the process server served an employee of the pain
Center on June 3, 2019. Rec. doc. 68-3, Exhibit 2. According
to the affidavit, paralegal Stagg later spoke with a
representative in Dr. Lonseth's call center who advised
that she would try to contact the office and when she did so
and reported that the office was closed that day. Rec. doc.
that they properly noticed the deposition, counsel for the
defendant conducted a process verbal noting their
efforts to notice the deposition for June 13, 2019
and the events that occurred when they showed up for the
deposition only to find a closed office. Rec. doc.68
Thereafter, the defendants filed the subject motion on July
3, 2019 seeking to compel the attendance of the office
administrator at a deposition and for her to produce records
from Dr. Lonseth's office regarding: (1) referral of
Reese to Dr. Lonseth; (2) billing in connection with Reese
medical treatment; (3) records of examination and treatment;
(4) price setting for treatment of Reese and other patients;
(5) evidence of payment terms including collection at close
of the lawsuit; and (6) information regarding payments
received for or from Reese. Rec. doc. 68. In addition to the
above, the notice also sought the production of prior
deposition testimony of Dr. Lonseth for 24 months, copies of
the transcripts, list of his employees, copies of contracts
Lonseth had on his own behalf or Lonseth Interventional Pain
Center with Total Medical Concepts and or MedPort or any
other medical funding company. It also sought the sources of
funding of the Pain Center. Medport is a factoring company
that purchases account receivables secured by medical liens.
two weeks after the deposition date passed, counsel for Dr.
Lonseth by letter dated June 24, 2019 acknowledged receipt of
the notice and (1) produced billing records for Rees and
Odds, (2) objected to the contents of the notice that go
beyond the physician's treating records because the
requests were neither relevant nor proportional, (3) objected
to all other non-patient related information as not
proportional to the needs of the case and (4) objected to the
production of contracts because they were privileged and
confidential and trade secret business information. Rec. doc.
70-1. On July 24, 2019 counsel for Dr. Lonseth communicated
by letter with the defendant's attorney advising that
August 19, 2019 appeared to be the best day to reset the
Court also heard oral argument on the motion on July 24,
2019. During the hearing counsel for the defendants and
counsel for Dr. Lonseth agreed to working toward a compromise
solution. Rec. doc. 75. The parties agreed to narrow the
request to Dr. Lonseth seeking documents for patients treated
who had the same CPT code as Reese and Odds from December
2017; May through June 2018; and December 2018 through
January 2019. Counsel further agreed to eliminate the words
“records, report and documents” from the notice.
Rec. doc. 75. The Court partially denied the motion to compel
as a result of the oral agreement reached and rescheduled the
hearing to address the remaining issues; (1) the existence of
a filing system that identified patients by whether they are
in litigation or no; and (2) once the number of in litigation
patients is determined, then an assessment of how many of
those patients use factoring companies and production
required to permit comparison of pricing. The Court
considered the dispute ongoing and unsettled.
to gain knowledge about the filing system for Dr. Lonseth,
the Court ordered Dr. Lonseth to produce to the Court the
count or number of patients, In-Litigation Patients and those
not in litigation for in camera review on August 9,
2019. Rec. doc. 75. The Court also set a telephone status
conference for August 12, 2019 Dr. Lonseth exceeded the
request of the court. Rather than providing the numerical
count, he incurred additional expenses and provided actual
documents for 165 patients for in camera review and
sought reimbursement for the $3000 expense it incurred in
compiling the information.
on August 12, 2019, a follow up hearing by telephone took
place and the Court conducted a review of several documents
provided by Dr. Lonseth. Counsel also confirmed that Dr.
Lonseth does not categorize or flag his electronic medical
records system by litigation or non-litigation patients so
the process of segregating them is tedious. The Court,
therefore concluded that because the information was not
maintained in the regular course of business by the defendant
the request was not proportional to the needs of the case and
therefore denied. The Court further denied the request for
the rates charged for litigation and non-litigation patients
as there was no apparent difference as observed upon its
review of the in camera documents. Rec.
during the conference the Court ordered the defendants to
file a brief by August 16, 2019 providing authority for why