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Empire Medical Review Services, Inc. v. Compuclaim Inc.

United States District Court, E.D. Wisconsin

December 8, 2017

EMPIRE MEDICAL REVIEW SERVICES, INC., Plaintiff,
v.
COMPUCLAIM, INC., Defendant.

          ORDER

          WILLIAM E. DUFFIN U.S. Magistrate Judge

         Defendant CompuClaim, Inc. has filed a Motion to Compel the production of certain documents from plaintiff Empire Medical Review Services, Inc. (”EMRS”). EMRS opposes the motion on a variety of grounds, including that its position regarding the documents at issue has been known to CompuClaim for several years. Briefing on the motion is complete.

         FACTS

         The court has gleaned the following facts from the parties' submissions. It does not represent a complete timeline of the communications between the parties on the issues that are at the heart of the present motion to compel. Indeed, the documents submitted make reference to other documents which have not been submitted by either party. Nevertheless, the following facts are complete enough to enable the court to resolve the motion.

         On or about August 1, 2014, EMRS responded to CompuClaim's First Set of Requests for Production of Documents. As near as the court can surmise from the parties' submissions, EMRS produced responsive documents on August 5, 2014 and on September 11, 2014. Later that year, on or about November 12, 2014, EMRS responded to CompuClaim's Second Set of Requests for Production of Documents. It appears documents responsive to the second set of requests were produced on or about November 21, 2014. It also appears that there were one or more supplemental productions of documents by EMRS, although the specific dates of those productions do not appear to be relevant for purposes of resolving the present motion to compel.

         Approximately eight months later, on July 16, 2015, CompuClaim sent a letter to EMRS complaining about several of EMRS's responses to the document requests, including some that are the subject of the current motion to compel. The parties had a meet and confer conference two weeks later to address the issues in dispute. Soon thereafter, on August 17, 2015, EMRS submitted a written response to CompuClaim's letter explaining its position on the documents not produced.

         Approximately nine months later, on May 17, 2016, CompuClaim sent EMRS another letter addressing several issues related to discovery. Among other things, the letter alleged that EMRS had destroyed “596 changesets” from its initial source code production. On June 23, 2016, CompuClaim apparently sent another letter to EMRS regarding discovery-related issues, although the court was not given a copy of the letter. On July 1, 2016, the parties had another conference call to discuss discovery issues. On July 8 and on July 29, 2016, EMRS sent to CompuClaim disks containing additional software that had been requested by CompuClaim. The July 29, 2016 letter stated that the disk being produced, bates-stamped EMRS 01865, “contains a copy of the team foundation's server backup pertaining to the produced files identified above.” (ECF No. 143-11.) According to EMRS's brief opposing the present motion to compel, the disk produced on July 29, 2016 contained the so-called missing 596 changesets referenced in CompuClaim's May 17, 2016 letter.

         It appears that on October 7 and October 28, 2016, CompuClaim wrote EMRS letters that, among other things, continued to ask for the missing 596 changesets. These letters were not provided to the court, but they are referenced in a November 8, 2016 email from EMRS to CompuClaim stating that “a complete database with no change sets removed was produced to you over three months ago on July 29, 2016.” (ECF No. 143-12.)

         Sometime in early April 2017, EMRS sent to CompuClaim four declarations signed by persons who apparently are (or at least at the time were) employed by companies that were satisfied licensees of EMRS's ClearingMagic software.

         On May 10, 2017, CompuClaim sent yet another letter to EMRS, again taking issue with EMRS's response to CompuClaim's document requests. That letter again raised many of the issues that are the subject of the present motion to compel. EMRS responded to CompuClaim on May 18, 2017, again explaining its position on the documents which it did not produce and which are the subject of the motion to compel. The parties met to confer about their dispute on May 26, 2017. That same day CompuClaim replied to EMRS's May 18 letter. On June 12, 2017, EMRS responded to CompuClaim's May 26 letter.

         Following some additional correspondence in mid-September 2017, CompuClaim filed a motion to compel on September 29, 2017-one month before the discovery deadline set by the court back in January of this year. Briefing on the motion was not completed until after the discovery deadline.

         ANALYSIS

         “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). A party seeking relevant documents “must describe with reasonable particularity each item or category of items” being sought for production. Fed.R.Civ.P. 34(b)(1)(A). If the responding party objects and does not produce the documents sought, the requesting party may seek a court order compelling such production. Fed.R.Civ.P. 37(a). The court has broad discretion to tailor discovery narrowly and dictate its sequence. Crawford-El v. Britton, 523 U.S. 574, 598 (1998); see also Packman v. Chicago Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001).

         In its Memorandum in Support of Motion to Compel CompuClaim identifies eight requests from its two sets of document requests that are at issue:

Set 1, Request 37: All documents evidencing in any way notice to Empire by a third party of defects, malfunctions, problems, breakdowns or other issues with the Software.
Set 1, Request 38: All documents evidencing in any way complaints about the Software, including, but not limited, documents evidencing lawsuits brought against Empire by third parties due to the Software's deficiencies, malfunctions, problems, breakdowns or other issues with the Software.
Set 1, Request 41: All documents evidencing in any way requests or inquiries by a third party to Empire for Software support and/or maintenance services.
Set 1, Request 47: All documents that refer to, reflect or evidence in any way HIPAA 5010 Conversion work performed by Empire for parties other than CompuClaim, ...

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