United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. Magistrate Judge
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.
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.
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.
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.
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,
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.
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.
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.
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.
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
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, ...