United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION TO COMPEL (Dkt. 51)
MARK A. GOLDSMITH, District Judge.
In this insurance case, Plaintiff State Farm Mutual Automobile Insurance Company alleges that Defendants Warren Chiropractic & Rehab Clinic P.C., John Mufarreh, and Keith Gover (hereinafter, the "Warren Defendants") engaged in a concerted scheme to defraud Plaintiff with respect to automobile-accident patients. In particular, Plaintiff claims that the Warren Defendants utilized and submitted claims under a "predetermined protocol, " whereby patients were tested, diagnosed, and treated without regard to individual medical need. Plaintiff further alleges that, as part of this predetermined protocol, patients would receive a false disability certificate, which Defendants Priority Patient Transport LLC, George Mufarreh, and Sharon Smith (hereinafter, the "Priority Defendants") would use to seek payment from Plaintiff for transportation - often to Warren - even though the Priority Defendants were not equipped to transport disabled patients.
Before the Court is Plaintiff's motion to compel complete responses to Plaintiff's first set of interrogatories and document requests (Dkt. 51). The motion concerns three categories of discovery requests: (i) billing documents and underlying records relating to claims that Warren submitted to Plaintiff and other insurers; (ii) communications between and among Defendants and other identified individuals; and (iii) information regarding a trust that was purportedly held for the benefit of Defendant John Mufarreh's wife, and for which John Mufarreh acted as a cotrustee. Pl. Br. at 19. The Warren Defendants filed a response (Dkt. 58), in which the Priority Defendants joined (Dkt. 59). Plaintiff filed a reply (Dkt. 63).
For the reasons discussed below, the Court grants Plaintiff's motion as to the requests regarding: (i) claims submitted to State Farm; (ii) an electronic billing report; (iii) the subject communications; and (iv) the Trust. The Court denies the motion without prejudice to the extent it seeks documents for claims submitted to insurers other than State Farm.
Plaintiff seeks the production of discovery relating to the three categories of information described above. However, Plaintiff raises a threshold argument that Defendants have waived any objection to these requests, because Defendants' responses were untimely, vague, unsigned, and unsupported. Pl. Br. at 10. The Court addresses this threshold inquiry first, and then proceeds to consider the merits of the motion as to each of the three categories of requests.
A. Waiver of Objections
Plaintiff first claims that Defendants waived any objection to the requests. Pl. Br. at 10. Plaintiff argues that it served its discovery requests on November 20, 2014, but that Defendants did not respond until January 27, 2015 (Warren Defendants) and February 23, 2015 (Priority Defendants), respectively. Id . Plaintiff also notes that Defendants asserted boilerplate and inapplicable objections, and that the Warren Defendants' responses were unsigned. Id . Defendants respond that they timely submitted their responses to the discovery requests pursuant to an agreement entered into between Plaintiff and the Defendants. Warren Defs. Resp. at 5.
The Warren Defendants attached to their response an e-mail exchange between their counsel and Plaintiff's counsel. On January 5, 2015, Plaintiff's counsel reminded the Warren Defendants' counsel to "remember by the end of the day today to send us an e-mail informing us when you can commit to responding to our outstanding discovery request." See E-mails (Dkt. 58-2). The Warren Defendants' counsel responded that his clients would "need 21 days to complete the discovery requests." Id . Plaintiff's counsel replied that Plaintiff would "agree to a 21 day extension..., but only on the condition that you represent that you will respond by that date and will not seek any further extension." Id . Plaintiff's counsel asked the Warren Defendants' counsel to "confirm by close of business Monday whether you agree to this condition." Id . No confirmation e-mails are contained in the record, but Defendants claim that they provided their objections to the discovery requests within this time extension.
As to the Warren Defendants, the Court need not resolve the timeliness issue, as the Court notes that these Defendants' responses to the discovery requests that Plaintiff has provided are unsigned. See Dkts. 51-4, 51-5. Federal Rule of Civil Procedure 26(g)(1) requires that "every discovery... response... or objection... be signed by at least one attorney of record in the attorney's own name." The Rule also explains the importance behind the signature requirement: "By signing, an attorney... certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry... [the response or objection] is... consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law." Fed. R. Civ. 26(g)(1). Similarly, Federal Rule of Civil Procedure 33(b)(5) - governing interrogatories - requires that "[t]he person who makes the answers must sign them, and the attorney who objects must sign any objections."
The Warren Defendants have not provided any evidence or argument that their responses and objections to Plaintiff's document requests and interrogatories were signed by either the responding party, counsel, or both when due. See Warren Defs. Resp. at 5 (responding solely to the claim of timeliness). Nor have the Warren Defendants claimed that signed responses have been provided to date. See E-mails (Dkt. 63-2) (suggesting that, as of June 12, 2015, at least some signed responses still had not been provided).
The Court is troubled by this questionable behavior. The record reflects that Plaintiff was still demanding signed copies of the Warren Defendants' discovery responses in May and June 2015. See Dkts. 51-9, 63-2. The Court finds that this behavior alone could constitute grounds for deeming objections waived or, alternatively, striking these objections. See Fed.R.Civ.P. 26(g); see also Fed.R.Civ.P. 37. Nevertheless, the Court need not affirmatively impose these sanctions because, as described below, the Court finds that the majority of Plaintiff's requests are subject to disclosure in any event. With regard to the information that is not yet subject to production - documents regarding non-State Farm patients - this information concerns nonparty individuals with privacy concerns, who should not be subjected to losing these protections as a sanction for Defendants' questionable conduct. Nevertheless, the Court warns the Warren Defendants that continued failure to participate in the discovery process in good faith may result in future sanctions, including, but not limited to, monetary relief, loss of the ability to introduce certain evidence at trial, and/or possible entry of a default judgment.
With respect to the Priority Defendants, Plaintiff claims that these Defendants did not submit their discovery responses until February 2015. The responses provided by Plaintiff support this claim; they are signed, but dated February 18, 2015. See Dkt. 51-4 at 25, 30, 35 of 35 (cm/ecf pages); Dkt. 51-5 at 26, 32, 38 of 38 (cm/ecf pages). There is no evidence that these Defendants, who are represented by ...