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Act for Health v. United Energy Workers Healthcare Corp.

United States District Court, W.D. Kentucky, Paducah Division

October 25, 2017

ACT FOR HEALTH d/b/a PROFESIONAL MANAGEMENT and PROFESSIONAL MANAGEMENT OF KENTUCKY PLAINTIFFS COUNTER-DEFENDANTS
v.
UNITED ENERGY WORKERS HEATHCARE CORP. and KENTUCKY ENERGY WORKERS HEALTHCARE, LLC. DEFENDANTS COUNTERCLAIMANTS
v.
COLD WAR PATRIOTS NON-PROFIT CORPORATION COUNTER-DEFENDANT

          OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE.

         Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny King for ruling on discovery motions. (Docket #21).

         Defendants United Energy Workers Healthcare Corp. and Kentucky Energy Workers Healthcare, LLC (collectively “UEW”) filed a Motion to for Reconsideration (Docket #135) of this Court's February 2, 2017 Order Regarding Production of Patient Caregiver Notes. (Docket #95). Plaintiff Act for Health d/b/a Professional Case Management and Professional Case Management of Kentucky (collectively “PCM”) filed a Response in Opposition (Docket #136). Fully briefed, this Motion is now ripe for adjudication.

         For reasons detailed below, the Court DENIES the Motion for Reconsideration. (Docket #135).

         Background

         PCM is licensed to provide skilled and unskilled home health care services to patients in their own homes in four counties in Kentucky serviced by PCM (Lyon, Marshall, McCracken, and Graves, hereinafter the “PCM Counties”). (Docket # 43 at 2; Docket #57 at 3). UEW is certified under Kentucky law to provide personal care (or “unskilled”) services in Kentucky. (Docket # 35 at 1). PCM alleges that UEW engaged in unfair businesses practices, in part, by providing home health care services in Kentucky without having the necessary licenses to do so. (Docket # 43 at 2). Further, PCM alleges that UEW received reimbursement from the Department of Labor (the “DOL”) for providing home health care services to individuals in Kentucky covered under the EEOICPA. (Id. at 3).

         Prior to any discovery motions having been filed, the parties entered into a Protective Order (Docket #23) which provided for documents to be designated as “confidential” by both parties and limited those designated documents' usage and disclosure outside the instant lawsuit. Id. The parties also agreed to a system of assigning numbers to each individual receiving care to protect their privacy, avoiding producing documents with individuals' names. (Docket # 43 at 8).

         Significant disputes between PCM and UEW arose regarding document production resulting in PCM's first Motion to Compel (the “First MTC”). (Docket #43). This Court granted the First MTC, in part, ordering UEW to provide PCM “full, redacted billing records for all individuals in Kentucky to whom UEW has provided services under the EEOICPA program” within 45 days following the entry of the Order. (Docket #49 at 5).

         The First MTC Order was entered on August 2, 2016. (Docket #49). UEW did not produce any documents to PCM until final day for compliance under the Order, whereupon UEW provided a 39-page summary (the “Summary”) in lieu of the “full billing records” previously ordered by this Court. (Docket #63 at 4). The Summary was designated “confidential” by UEW. The parties met and conferred, resulting in UEW producing OMB-1500 forms for all Kentucky patients but still not providing Caregiver Notes, which all parties agreed are part of the full billing record. (Docket #63 at 4). The OMB-1500 production took place approximately one month after the deadline in mid-October of 2016. Id.

         At some time following the September 16, 2016, deadline to produce full billing records, UEW did produce Caregiver Notes for five (5) specific patients identified by PCM (the “First Production”). (Docket #64 at 3). UEW claims that the Caregiver Notes for five patients took two UEW employees more than 70 hours to perform redactions on over three thousand (3, 000) pages before they could be produced but did not indicate the actual cost of production. Id.

         On October 24, 2016, PCM filed a Motion to Compel UEW to: 1) produce all “Caregiver Notes” relating to all clients UEW served in Kentucky; 2) produce an un-redacted list of all UEW's referral sources (the “Referral List”); and 3) remove the “confidential” designation from a previously produced billing summary. (Docket #63). Following consideration of the briefs filed by all parties, the Court ordered that PCM was to identify 31 patients by number, provide that list of numbers to UEW, and that UEW was to produce full Caregiver Notes for the 31 individual files selected by PCM.[1] (Docket #95). The Court's order also gave UEW the option to determine whether or not to redact the Caregiver Notes before production or to seek an alternative production method. (Id.).

         On February 24, 2017, PCM selected 15 patients whose caregiver notes it wanted produced and provided that list to UEW. (Docket #135-1 at 3). On April 4, 2017, UEW produced caregiver notes for the 15 patients (the “Second Production”). Upon completion of the Second Production, UEW had produced a total of 20 sets of caregiver notes to PCM. Pursuant to the Court's Order, there were an additional 16 sets of caregiver notes remaining (the “Remaining Production”) to be produced by UEW after the Second Production was complete. (Docket #95).

         The Second Production comprised over 15, 000 pages, of mostly handwritten notes. (Id. at 3-4). UEW spent over $51, 000 to produce those notes apparently utilizing a different system of production from the First Production, including the labor of two UEW employees, the employment of a contract review team, and work by UEW's counsel and support staff. (Id. at 4). Prior to supplying PCM with the Second Production, in March of 2017, UEW reached out to PCM requesting that PCM withdraw its request for the Remaining Production, alleging that the Remaining Production would be “unduly burdensome and time consuming.” (Id.). UEW went on to state that it was considering requesting reconsideration of the Order (Docket #95) if PCM did not withdraw its request for the Remaining Production. (Id.).

         PCM did not withdraw its request for the Remaining Production and on July 19, 2017, sent a list to UEW selecting the remaining 16 patients. (Id.). UEW estimates that it would likely spend an ...


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