UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK
HOMELAND INS. CO. OF DELAWARE,
Plaintiff, 22-CV-00462-WMS-HKS v.
INDEPENDENT HEALTH ASS’N, INC., INDEPENDENT HEALTH CORP., DXID, LLC, AND ELIZABETH GAFFNEY,
Defendants/Third-Party Plaintiffs,
v.
ACE AMERICAN INS. CO.,
Third-Party Defendant.
DECISION AND ORDER This case was referred to the undersigned by the Hon. William M. Skretny, pursuant to 28 U.S.C. ' 636(b)(1)(A) for all pretrial matters. Dkt. #20.
INTRODUCTION This is a declaratory judgment action in which plaintiff Homeland Insurance Company of Delaware (“Homeland”) seeks a declaration that it has no defense or indemnity obligations arising out of an insurance policy it issued to defendant Independent Health Association, Inc. (“IHA”) as to claims asserted against IHA and other insureds1 in
1 Defendants Independent Health Corporation (“IHC”), DxID, LLC, and Elizabeth Gaffney (“Gaffney”) were also insureds under the Homeland policy. IHC and DxID are or were subsidiaries of IHA. Dkt. #1, ¶¶ 7-8. Gaffney was the Chief Executive Officer of DxID. Dkt. #1, ¶ 9. a federal qui tam action and related arbitration. Dkt. #1, ¶¶ 1-3. Third-party defendant Ace American Insurance Company (“Ace”) seeks a similar determination as to an excess insurance policy it issued to defendants. Dkt. #30.
Currently before the Court are Homeland’s motion to compel and motion to settle an order, as well as a joint status report that the Court ordered the parties to file. Dkt. ##45, 52, 57. For the following reasons, Homeland’s motion to compel will be granted in part and taken under advisement in part, and the motion to settle an order will be taken under advisement pending the parties’ filing of an amended proposed case management order.
BACKGROUND The facts alleged in this matter have been set forth in a previous Decision and Order by the presiding district court judge, Dkt. #51, and they are incorporated here
by reference.
Briefly summarized, Homeland and Ace seek declarations that they owe no duty to defend or indemnify defendants relating to an underlying qui tam action pending in this Court, United States ex rel. Ross v. Indep. Health Corp., Case No. 12-CV-299- WMS, and a related arbitration that was settled in July 2022. Dkt. #51, p. 4.
In the qui tam action, “the government maintains that Defendants defrauded the federal Medicare program by submitting false and inflated claims for reimbursement.” Dkt. #51, p. 3. The government’s complaint-in-intervention alleges claims under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729, et seq., and common law. Dkt. #51, p. 2. The arbitration arose, in part, out of the same allegations. Dkt. #51, p. 4.
Homeland maintains that several exclusions in its policy2 preclude coverage
for the claims against defendants in those actions: (1) Exclusion A (“the intent-based” exclusion), which excludes coverage for intentionally fraudulent acts that are established by a final adjudication, Dkt. #1, ¶45; (2) Exclusion D (the “knowledge-based” exclusion), which excludes coverage for any claims, damages, or claims expenses arising out of any actual or alleged act, error, or omission if, before the inception date of the policy, defendants knew or should reasonably have known that the act, error, or omission would give rise to a claim, Dkt. #1, ¶ 46; (3) Exclusion J, which excludes coverage for any claims, damages, or claim expenses brought by, or on the behalf of, certain governmental or regulatory bodies or agencies, Dkt. #1, ¶ 47; and (4) Exclusion K, which excludes
coverage for certain claims, damages, or claims expenses for liabilities arising under any indemnification agreement, Dkt. #1, ¶ 48.
In December 2022, Homeland served document requests and interrogatories on defendants. Dkt. ##45-3, 45-4. As discussed more specifically below, the requests seek information relevant to the policy exclusions, particularly Exclusion D. That is, many of the requests concern what defendants knew—prior to the issuance of
2 The Homeland policy was issued on August 1, 2013 and renewed on August 1, 2014. Dkt. #1, ¶¶ 13-14. the Homeland policy on August 1, 2013—about the government’s investigation into their Medicare billing practices and the potential qui tam action.
On January 18, 2023, defendants filed a motion for partial stay of this matter
pending resolution of the qui tam case. Dkt. #35. Defendants argued that discovery in this case would overlap with liability-related issues in the qui tam action and would thus be prejudicial. That motion became ripe on February 22, 2023. Dkt. #42.3
In the meantime, on February 10, 2023, defendants served their responses and objections to Homeland’s discovery requests. Dkt. ##45-5, 45-6.
Defendants objected to many of these requests on the grounds that they are “premature, prejudicial, and potentially unnecessary to the extent they seek information related to matters that are contested in and potentially or actually relevant or
actually relevant to the factual allegations and legal claims asserted against the Policyholders in the Government Action.” Dkt. 45-6, p. 6. As noted, this was the same argument advanced in defendants’ motion to stay.
In March 2023, counsel met and conferred regarding defendants’ discovery responses. Dkt. #45-2, ¶8. Defendants’ counsel did not withdraw their objections but stated that they would “take another look” at their responses. Dkt. #45-2, ¶ 10. On March
3 Because only non-dispositive pretrial matters had been referred to the undersigned, the motion to stay fell within the presiding district court judge’s authority. Dkt. #20. 27, 2023, defendants served supplemental responses and objections to Homeland’s discovery requests. Dkt. ##45-10, 45-11.
As set forth in the attached appendix4, in response to fourteen
interrogatories, defendants refused to answer twelve and gave only partial responses to two. As to the twenty-six document requests, defendants agreed to produce documents as to six requests; they agreed to partial production as to four requests; and they refused to produce any documents as to the remaining sixteen requests.
On April 14, 2023, the parties filed a proposed protective order, Dkt. #43, which the Court entered on April 18, 2023. Dkt. #44.
On June 1, 2023, plaintiff filed the instant motion to compel asking the Court to order defendants to answer plaintiff’s Interrogatories 1-14 and to produce documents
responsive to plaintiff’s requests 4, 5, 8-16, and 18-26. Dkt. #45. Defendants filed their memorandum in opposition on June 29, 2023, relying on—and specifically incorporating—the arguments advanced in their still-pending motion to stay. Dkt. #47, passim.
On August 15, 2023, Judge William M. Skretny issued a Decision and Order denying defendants’ motion to stay. Dkt. #51. Judge Skretny rejected defendants’ argument that “Homeland’s pursuit of discovery related to the knowledge- and intent-
4 This appendix reflects the status of defendants’ discovery responses as of March 27, 2023; it does not reflect more recent changes, which are discussed below. based policy exclusions could (at least in theory) result in the type of discovery that the government would seek to prove knowledge and intent in the under lying action.” Dkt. #51, p. 7. Judge Skretny explained: Defendants contend that Exclusions D and A ‘turn on facts squarely at issue in the Underlying Action.’ . . . But as set out above, the knowledge at issue in Exclusion D principally concerns the scope and timing of Defendants’ knowledge of the qui tam action, not the knowledge required to establish a FCA violation. And the fraud exception depends on a final adjudication in the underlying action, not demonstration of fraud here. Thus, there is insubstantial overlap of facts in the two cases, which weighs against imposing a stay.
Dkt. #51, p. 8 (emphasis added).
Finally, Judge Skretny observed that, to the extent that any discovery request in this case “could arguably tread on issues in the underlying action,” such objections could be resolved on a request-by request basis.” Dkt. #51, p. 8.
On January 29, 2024, the parties filed a joint status report advising the Court of developments that have occurred since Judge Skretny denied defendants’ motion to stay. Dkt. #57. While it appears that the parties have made some progress on their discovery dispute, substantial differences remain. DISCUSSION AND ANALYSIS Legal Standards Pursuant to Fed. R. Civ. P. 26, parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to
the needs of the case.” Fed. R. Civ. P. 26(b)(1).
“Information is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Duhaney v. TransUnion, LLC, 23-CV-04066 (NJC) (JMW), 2024 WL 85074, at *1 (E.D.N.Y. Jan. 8, 2024) (citation and internal quotation marks omitted). Relevance, “for purposes of discovery, is an extremely broad concept.” Carlyle Aviation Mgmt. Ltd. v. Frontier Airlines, Inc., 23 Civ. 4774 (PAE), 2023 WL 8472725, at *1 (S.D.N.Y. Dec. 7, 2023) (citation and internal quotation marks omitted).
“Once any possibility of relevance sufficient to warrant discovery is shown, the burden shifts to the party opposing discovery to show the discovery is improper.” Rhodes v. Phoenix Arms, 1:20-CV-267 (GTS/CFH), 2022 WL 2079088, at *2 (June 9, 2022) (citation and internal quotation marks omitted). “Generally, discovery is only limited when sought in bad faith, to harass or oppress the party subject to it, [or] when it is irrelevant or privileged.” Id. Interrogatories Interrogatories 1-12 As set forth in the appendix, Interrogatories 1 through 12 seek information that is clearly relevant to Exclusion D of the policy in question, i.e., “the scope and timing
of Defendants’ knowledge of the qui tam action.” Dkt. #51, p. 8. These requests seek to determine what defendants knew about the government’s investigation and, importantly, when they learned facts that might trigger this exclusion.
Defendants opposed the motion to compel as to these interrogatories on the grounds that they seek discovery related to the underlying qui tam case. Dkt. #47, p. 21. This argument—which Judge Skretny expressly rejected in denying defendants’ motion to stay—is without merit. Defendants’ knowledge as to the government’s investigation into their billing practices and the potential qui tam case, which is relevant to Exclusion D, is distinct from their alleged knowledge in submitting false or fraudulent
claims to the government for purposes of the FCA claims in the underlying matter.
Defendants also asserted that they need not respond to these interrogatories because defendants did not possess the knowledge required to trigger Exclusion D. Dkt. #47, pp. 21-22. Such a circular, self-serving assertion is obviously no shield against discovery to which plaintiff is entitled to explore the merits of its coverage defenses. See, e.g., Bennett v. Metro-North R.R. Co., 3:19-CV-00081, 2020 WL 2113589, at *2 (D. Conn. May 4, 2020) (rejecting defendant’s attempt to have the Court define the scope of discovery based on defendant’s view of the merits of the case, noting “[t]hat’s not how this works.”).
In their recent joint status report, the parties differ as to which of these
twelve requests remain disputed. As to interrogatories 5 and 6, plaintiff states that defendants have provided only “partial” responses and that these two requests remain subject to the motion to compel. Dkt. #57, p. 3. Defendants do not contest this characterization of their responses, stating only that they provided “detailed” responses to interrogatories 5 and 6. Dkt. #57, p. 3. Notably, defendants do not list interrogatories 5 and 6 as among those to which they still assert privilege or vagueness objections.
Therefore, to the extent that defendants have not provided complete responses to interrogatories 5 and 6, they are ordered to do so promptly.
The parties do agree that interrogatories 7 and 8 are still disputed. Dkt. #57, p. 3. Defendants previously asserted two specific objections—relevance and prejudicial overlap with the qui tam case—to interrogatory 7, which seeks information concerning the circumstances under which defendants learned that GHC had received a subpoena in connection with the qui tam action. Dkt. #45-6, p.12.
Defendants’ relevance objection is not well founded because interrogatory 7 pertains to knowledge of defendants that might trigger Exclusion D of the policy in question. Interrogatory 8 is relevant for the same reason. Second, as already noted, defendants’ objection as to overlap with the qui tam case lacks merit.
Therefore, defendants shall promptly respond to interrogatories 7 and 8. To the extent that defendants assert the attorney-privilege defense as to interrogatory 8,
they shall do so in compliance with Fed. R. Civ. P. Fed. R. Civ. P. 26(b)(5) and Loc. R. Civ. P. 26(d).
Next, plaintiff states that defendants have not answered interrogatory 10 and have provided only a partial response to interrogatory 9. Dkt. #57 p. 3. Defendants state that they responded to these two requests by referring to their response to interrogatory 1. Dkt. #57, p. 3. This is improper. See Trueman v. N.Y. State Canal Corp., Civ. No. 1:09-CV-049 (LEK/RFT), 2010 WL 681341, at *2-3 (N.D.N.Y. Feb. 24, 2010) (noting that, under Fed. R. Civ. P. 33, each interrogatory must be answered “separately and fully,” and responses that refer to answers to other interrogatories are “improper and
thus unresponsive”).
Therefore, defendants shall promptly provide separate responses to interrogatories 9 and 10.
Interrogatory 13 Finally, the parties also agree that interrogatory 13 remains in dispute.
This request seeks information that is relevant to Exclusion J of the Homeland policy, which excludes claims brought by governmental bodies or agencies, except where the body or agency is the payor for the managed care or healthcare service provided by defendants. Dkt. #1-1, pp. 38-39. Interrogatory 13 seeks information identifying the sources of payments to DxID, which is directly relevant to the
“government-payor” carve-out in Exclusion J.
Therefore, defendants shall promptly respond to interrogatory 13. To the extent that defendants assert the attorney-privilege defense as to this request, they shall do so in compliance with Fed. R. Civ. P. Fed. R. Civ. P. 26(b)(5) and Loc. R. Civ. P. 26(d).
For these reasons, the Court will grant plaintiff’s motion to compel as it pertains to these seven interrogatories.
Document Requests Requests 4, 5, 12, 14-15 These document requests mirror the above interrogatories which seek information relevant to the applicability of Exclusion D.
Notably, defendants do not contest the relevancy of these documents; rather, they assert that they object to the “timing” of such discovery as “premature” and “potentially prejudicial.” Dkt. #47, p. 16. The Court has already explained why that argument is not well taken. Document requests 4 and 5, however, raise a different issue. Request 4 seeks “all litigation hold notices issued by IHA, IHC and/or DxID, or their agents” concerning the qui tam action and related arbitration. Dkt. #45-5, p. 10. Request 5 seeks
“all communications” concerning such litigation hold notices. Dkt. #45-5, p. 10.
Defendants argue that litigation hold notices are generally protected by the attorney-client privilege. Dkt. #47, p. 15 n.3. However, this issue is more nuanced than discussed in the parties’ briefs.
It is true that “formal litigation hold notices exchanged between attorneys and their clients are privileged communications and generally immune from discovery.” Roytlender v. D. Malek Realty, LLC, 21-cv00052(MKB)(JMW), 2022 WL 5245584, at *4 (E.D.N.Y. Oct. 6, 2022) (citations omitted). However, whether the privilege attaches to
such communications is highly fact-sensitive, as thoroughly discussed in Pearlstein v. BlackBerry Ltd., 13-CV-07060, 2019 WL 1259382, at *18 (S.D.N.Y. Mar. 19, 2019). The court there explained: [A] litigation hold, just like any other communication with counsel, may constitute or contain legal advice and work product. There is no reason why a litigation hold memo should be per se excluded from protection. Rather, the content and circumstances of its issuance, as well as the context of the litigation, will determine applicability of any privilege or work product protection.
Id. at *19 (emphasis added). Document requests 4 and 5 are broad enough that they could easily implicate both privileged and non-privileged communications, for a variety of reasons. The Court cannot make this determination on a blanket basis, without more information.
Further, it is well established that the “party withholding a document on the basis of attorney-client privilege . . . bears the burden of establishing facts to demonstrate applicability of the protective rule.” Pearlstein, 2019 WL 1259382, at *3 (citation omitted). As noted, Fed. R. Civ. P. 26(b)(5) and Loc. R. Civ. P. 26(d) require the party withholding allegedly privileged documents to prepare and produce a privilege log.
Therefore, defendants are ordered to provide privilege logs to plaintiff promptly, in compliance with the above rules, so that plaintiff can decide whether to challenge defendants’ assertions of privilege as to document requests 4 and 5. The Court will take the motion to compel under advisement as to these two requests.
Next, plaintiff states that defendants have now provided only a “limited subset” of documents in response to requests 12, 14, 15, and 18-23. Dkt. #57, p. 2. Defendants do not specifically address the bases for their responses to these requests. Dkt. #57, p. 3. Thus, defendants are ordered to provide complete responses to requests 12, 14, 15, and 18-23 and, if they invoke the attorney-client privilege, defendants shall comply with the rules discussed above.5
Requests 25 and 26 Finally, the parties cannot agree regarding document requests 25 and 26, to which defendants have refused to respond.
Document requests 25 and 26 relate to the “carve-out” component to Exclusion J, discussed above. The information sought in these requests is thus relevant and should be produced.
The Court will thus grant plaintiff’s motion to compel responses to document requests 25 and 26. Should defendants invoke the attorney-client privilege as to any
responsive documents, they shall comply with the rules discussed above.
Case Schedule and Fees Previously, the parties were unable to agree on a revised case management order, but they now concur that all prior proposals have been mooted by the passage of time. Dkt. #57. Plaintiff and defendants also sought their attorneys’ fees and costs in relation to the scheduling dispute.
5 The Court notes that document request 15 could, as Judge Skretny said, “arguably tread on issues in the underlying action.” Dkt. #51, p. 8. However, the parties have in place a protective order with strict confidentiality protections which may address such concerns. Dkt. ## 43, 44. The Court will order the parties to confer and file a new proposed case management order. The Court will then determine whether a scheduling conference should be held.
CONCLUSION Consistent with this decision, plaintiff’s motion to compel (Dkt. #45) is granted in part and taken under advisement in part. Plaintiff’s motion to settle (Dkt. #52) is taken under advisement.
The parties shall confer and file a proposed amended case management order on or before February 12, 2024.
SO ORDERED.
DATED: Buffalo, New York February 1, 2024
s/ H. Kenneth Schroeder, Jr. H. KENNETH SCHROEDER, JR. United States Magistrate Judge Appendix
Request Information Provided in Objection(s) Response Interrogatory No. 1 Provide the date on which you None • Relevance first learned of the • Seeks information Government Action and how related to qui tam you were made aware of it matter (e.g. letter, phone, email, etc.)?
Interrogatory No. 2 Provide the date on which you None • Relevance first retained counsel in • Attorney-client connection with the privilege Government Action. • Seeks information related to qui tam matter Interrogatory No. 3 Identify all law firms and/or Defendants provided the • Relevance lawyers that have names of five law firms • Attorney-client represented IHA, IHC and/or that have represented privilege DxID in connection with the them in connection with • Overly broad/vague Government Action and the the qui tam action, but did • Seeks information dates during which such law not provide dates or related to qui tam firms have represented these names of attorneys. matter parties.
Interrogatory No. 4
Identify by name and title all None • Relevance employees or agents of IHA, • Attorney-client IHC and/or DxID that were privilege interviewed by or • Overly broad/vague communicated with the • Seeks information Government in connection related to qui tam with the Government Action, matter including, without limitation, shareholders, members, officers, directors and managers, and provide the dates of each such interview or communication.
Interrogatory No. 5 Identify each of the dates upon None • Relevance which any of the Defendants • Overly broad/vague provided any documents or • Seeks information information to the related to qui tam Government in connection matter with the Government Action, the identity of the party making the production or disclosure and the volume of documents produced.
Interrogatory No. 6 Identify by date, location and None • Relevance attendees [of] all meetings • Attorney-client regarding the Government privilege Action – either in-person, via • Overly broad/vague videoconference, telephonic, • Seeks information or otherwise – between related to qui tam Defendants or any of their matter representatives and the Government.
Interrogatory No. 7 On what date, and under what None • Relevance circumstances, did • Seeks information Defendants learn that GHC6 related to qui tam had received a subpoena from matter the Government in connection with the Government Action?
6 Group Healthcare Cooperative (“GHC”) was a former customer of DxID, LLC that had contracted with it for Medicare Advantage-related coding services. Dkt. #1, ¶ 27. GHC was named as a defendant in the qui tam action but settled with the government in November 2020. Dkt. #1, ¶ 35. Interrogatory No. 8 On what date, and under what None • Relevance circumstances, did • Attorney-client Defendants learn that the privilege Government had interviewed • Seeks information GHC personnel in connection related to qui tam with the Government Action? matter
Interrogatory No. 9 Identify the Person(s) who None • Relevance first informed IHA as to the • Attorney-client existence of, or possible privilege existence of, a qui tam action • Seeks information filed against it. related to qui tam matter
Interrogatory No. 10 On what date, and under what None • Relevance circumstances, did the • Attorney-client Government direct or suggest privilege that IHA should not disclose • Seeks information the possible existence of a qui related to qui tam tam lawsuit to any third matter parties, as alleged in Paragraph 26 of Defendants’ counterclaim?
Interrogatory No. 11 Identify by date, sender and None • Relevance recipient(s) each litigation • Attorney-client hold notice issued in privilege connection with the • Seeks information Government Action and/or related to qui tam GHC Arbitration. matter
Interrogatory No. 12 Identify all instances in which • Relevance Defendants reported the By supplemental response, • Seeks information Government Action and/or defendants state they will related to qui tam GHC Arbitration to any provide such information matter insurance carrier, including only as it pertains to the policy under which it was Homeland and Ace. reported and the date of the reporting.
Interrogatory No. 13 Identify all Persons that None • Relevance provided payments to DxID • Attorney-client for the services that DxID privilege provided, including, without • Overly broad/vague limitation, to IHA, IHC and • Seeks information GHC, and, for each such related to qui tam Person, the dates on which matter such payments were made.
Interrogatory No. 14 State whether CMS7 made None • Relevance any direct payments to DxID, • Attorney-client and, if so, set forth the dates privilege on which such payments were • Vague made and the purpose of such • Seeks information payments. related to qui tam matter
Document Request 1 The Executive Risk Copy of policy requested • General objections Indemnity Inc. Managed Care Directors and Officers Liability Policy from August 1, 2012 to August 1, 2013, referenced in Paragraph 24 of Defendants’ Answer.
7 “CMS” denotes the Centers for Medicare and Medicaid Services. Dkt. #1, ¶ 21. Document Request 2
All commercial Copies of policies • General objections insurance policies that any requested Defendant had in place at any time from August 1, 2012 through August 1, 2013, or that otherwise cover any part of such time period, including, without limitation, any Errors & Omission policies with Darwin and/or Ace American.
Document Request 3 All applications for Copies of policies • Overly broad commercial insurance requested • Attorney-client policies, and Communications privilege related thereto, that any • Vague Defendant(s) submitted for coverage that would have applied at any time from August 1, 2012 through August 1, 2014, whether or not such policies were issued.
Document Request 4 All litigation hold notices None • Vague/ambiguous issued by IHA, IHC and/or • Attorney-client DxID, or their agents, privilege Concerning the Government Action and/or the GHC Arbitration, or the allegations therein including, without limitation, any and all litigation hold notices issued on or before August 1, 2013 Concerning the Government Action.
Document Request 5 • Vague/ambiguous None • Attorney-client All Documents and privilege Communications concerning litigation hold notices and/or the obligation of any Defendants to refrain from destruction of and/or to collect Documents.
Document Request 6 Documents sufficient to show Defendants state they will • Overly broad all legal fees and expenses provide a summary of such • Vague incurred in connection with legal fees and expenses • Attorney-client the Government Action on or privilege before August 1, 2013.
Document Request 7 Defendants state they will • General Objections All Communications with provide “responsive, non- Darwin and/or Ace privileged” communications American Concerning the Government Action, including, without limitation, Communications on or before August 1, 2013.
Document Request 8 All Communications By supplemental response, • Attorney-client Concerning the Government defendants state they will privilege Action on or before August 1, provide such information • Seeks information 2013, including but not only as it pertains to related to qui tam limited to internal Darwin, Homeland and matter Communications among Ace. Defendants and Communications with any of Defendants’ insurance carriers. Document Request 9 All Communications • Overly broad Concerning notification or • Attorney-client reporting to Ace American, Defendants state that they privilege Homeland, Darwin, or any will produce such other insurance carrier, or any notifications from April 15, agent thereof, of the 2013. Government Action and/or the GHC Arbitration.
Document Request 10 All Communications with the None • Overly broad Government on or before • Vague August 1, 2013 Concerning • Seeks information the Government Action. related to qui tam matter
Document Request 11 All Documents and None • Overly broad Communications Concerning • Attorney-client any Government subpoena of privilege GHC in connection with the • Seeks information Government Action and/or the related to qui tam Government’s interviews of matter GHC personnel in connection with the Government Action.
Document Request 12 All transcripts, recordings, or None • Overly broad notes from any depositions or • Attorney-client interviews conducted by the privilege Government in connection • Seeks information with the Government Action. related to qui tam matter
Document Request 13 All Documents that Defendants provided to the Government in connection with the Government Action, None • Fed. R. Evid. 408 including, without limitation, • Seeks information any presentation that DxID’s related to qui tam counsel made to the matter Government in or around October 2012.
Document Request 14 All Documents and None • Overly broad Communications Concerning • Attorney-client IHA, IHC or DxID being privilege notified by a third party that a • Seeks information qui tam action had been related to qui tam commenced against one or matter each them.
Document Request 15 All Documents and None • Overly broad Communications on or before • Vague August 1, 2013 reflecting • Attorney-client concerns by employees of privilege IHA, IHC or DxID as to • Seeks information DxID’s coding, chart review related to qui tam and/or policies and practices. matter
Document Request 16 All Documents and None • Overly broad Communications on or before • Vague August 1, 2013 Concerning • Attorney-client any review and findings as to privilege DxID’s coding, chart review • Seeks information and/or policies and practices related to qui tam including, without limitation, matter review and findings by any auditors. Document Request 17 Defendants state that, • Overly broad All Documents Concerning subject to a protective • Vague any monetary demand that order, they will produce • Attorney-client GHC made on one or more of such communications privilege the Defendants. between and among • Seeks information defendants and Homeland related to qui tam or Ace. matter
Document Request 18 All Documents Concerning Defendants state that, • Overly broad any allegation by GHC that subject to a protective • Attorney-client DxID had breached the order, they will produce privilege indemnification provision set GHC’s demand for • Seeks information forth in Paragraph 8 of the arbitration and notice of related to qui tam 2011 Client Service Provider claim and DxID’s answer matter Agreement or any other thereto. indemnification obligation set forth therein.
Document Request 19 All Documents concerning None • Overly broad whether IHA, IHC and/or • Attorney-client Gaffney were properly named privilege as parties to the GHC • Seeks information Arbitration. related to qui tam matter
Document Request 20 None • Overly broad All Documents exchanged • Attorney-client between the parties to the privilege GHC Arbitration, or with • Seeks information the arbitrator in the GHC related to qui tam Arbitration. matter
Document Request 21 All Documents and Communications Concerning the statute of limitations for None • Overly broad any claims asserted by GHC • Attorney-client in connection with the GHC privilege Arbitration. • Seeks information related to qui tam matter
Document Request 22 All Documents and None • Overly broad Communications Concerning • Vague the agreement in principle, or • Attorney-client alleged agreement in privilege principle, reached on or • Seeks information around July 25, 2022 between related to qui tam Defendants and GHC. matter
Document Request 23 All Documents Concerning None • Overly broad any settlement discussions • Attorney-client between GHC and privilege Defendants. • Seeks information related to qui tam matter
Document Request 24 Any and all settlement Defendants state that, • Overly broad agreements between GHC and subject to a protective • Attorney-client Defendants. order, they will produce a privilege copy of the settlement • Seeks information agreement between related to qui tam defendants and GHC dated matter September 23, 2022.
Document Request 25 All contracts or agreements None • Overly broad between DxID and any of its • Vague customers. • Seeks information related to qui tam matter
Document Request 26 Documents sufficient to show None • Overly broad the payment arrangements • Vague that DxID had with each of its • Attorney-client customers. privilege • Seeks information related to qui tam matter