Free Motion to Compel - District Court of Colorado - Colorado

Case 1:00-cv-01864-REB-BNB

Document 165-23

Filed 08/10/2005

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Case 1:00-cv-01864-REB-BNB

Document 165-23

Filed 08/10/2005

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Not Reported in F.Supp. 1993 WL 517734 (E.D.Pa.), 1993-2 Trade Cases P 70,443 (Cite as: 1993 WL 517734 (E.D.Pa.))

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Motions, Pleadings and Filings

United States District Court, E.D. Pennsylvania. SWARTHMORE RADIATION ONCOLOGY, INC., Oncology Services, Inc., and Oncology Associates, P.C., Plaintiffs, v. Melvyn J. LAPES, M.D., Alan E. Morrison, Andrew J. Solan, M.D., Riddle Memorial Hospital, and Taylor Hospital, Defendants. No. CIV. A. 92-3055. Dec. 1, 1993. MEMORANDUM AND ORDER GAWTHROP, District Judge. *1 The plaintiffs in this antitrust case have moved to compel defendant Riddle Memorial Hospital to answer their interrogatories and to produce documents in response to their discovery requests served in December 1992 and March 1993. Riddle responded to the plaintiffs' December 1992 requests with blanket objections based on attorney client privilege, work product, the privacy rights of its patients, burden, relevance, and lack of control over information possessed by its medical staff. Riddle than offered additional objections addressed to specific interrogatories and document requests. Riddle cannot spill forth a laundry list of objections and expect this court to pick and choose among them to determine which will save Riddle from having to respond. Bearing in mind that discovery should not be limited unless, on the facts and circumstances of a case, the disputed information could have " 'no possible bearing upon the subject matter of the action,' " Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D.Pa.1980) (quoting Miller v. Doctor's General Hosp., 76 F.R.D. 136, 138-39 (W.D.Okla.1977)), it is Riddle's burden to demonstrate specifically, by offering evidence or submitting affidavits, how "each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive." Id. Similarly, the burden is on Riddle to demonstrate that the work-

product doctrine, Conoco, Inc. v. U.S. Dep't of Justice, 687 F.2d 724, 730 (3d Cir.1982), or the attorney-client privilege applies. 8 Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 2016 (1970); Honeywell, Inc. v. Piper Aircraft Corp., 50 F.R.D. 117, 120 (M.D.Pa.1970). Where Riddle has not addressed objections to specific discovery requests, and the requests are not limited by previous orders of this court or of Magistrate Judge Melinson, [FN1] this burden is not met. Thus, the motion must be granted with respect to those interrogatories and requests for documents not discussed below or previously ruled irrelevant, overburdensome, or privileged (i.e., granted as to Interrogatories 1(a), 2, 3, 16, and 20; Document Request Nos. 2 and 3). I shall now turn to those discovery requests to which Riddle addressed specific objections. As to interrogatories 1(b) and 1(c), in accordance with Judge Melinson's Order of March 23, 1993, Riddle must provide information regarding joint ventures or business relationships relating to "any proposed radiation oncology center explored by the Defendants." (Order of March 23, 1993, ¶ 2). Consistent with my Order of July 21, 1993, Riddle shall direct its officers and administrators to search for and produce files responsive to this interrogatory. If there are no such files to be produced, then Riddle may so respond, but only after having undertaken a reasonable search. Riddle objects that it would be a pointless burden to have to answer Interrogatories 4 through 12 other than by providing the records of certain administrators as permitted under Federal Rule 33(c), because additional detail likely will be developed through depositions. It is the plaintiffs' decision as to how and when to employ the various tools of discovery provided under the Federal Rules. The fact that an oral deposition has been or will be taken is not ordinarily a basis for court interference with the use of interrogatories. 8 Wright & Miller § 2169, at 523. Riddle also objects that it would be unduly burdensome to seek relevant information from its medical staff in responding to these interrogatories. This court's Order of July 21, 1993, instructed Riddle to provide the plaintiffs with the names of doctors who hold official or quasi-official positions, and to direct these doctors to provide answers to the plaintiffs' interrogatories. (Order of July 21, 1993, ¶

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Case 1:00-cv-01864-REB-BNB

Document 165-23

Filed 08/10/2005

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Not Reported in F.Supp. 1993 WL 517734 (E.D.Pa.), 1993-2 Trade Cases P 70,443 (Cite as: 1993 WL 517734 (E.D.Pa.)) ¶ 3 & 4). Riddle should seek from this previously identified subset of its medical staff such information as is necessary to respond to the plaintiffs' interrogatories. If these doctors do not possess any relevant information, as Riddle implies, than clearly it cannot be produced; however, information within the hands of Riddle's "agents and others within its control must be supplied." Milner v. National School of Health Technology, 73 F.R.D. 628, 632 (E.D.Pa.1977). *2 Riddle's objection to Interrogatory 13 is valid in light of Judge Melinson's Order of March 23, 1993, restricting the scope of discovery regarding business relationships among the defendants to ventures involving radiation oncology centers. This interrogatory need only be answered consistent with Judge Melinson's Order. Riddle's objections to Interrogatories 14 and 15 concerning non-expert and expert witnesses to be called at trial are not persuasive. The plaintiffs have recently filed their pretrial memorandum and defendant's memorandum must be filed by November 19. Thus the information is no longer premature, is readily available, and should be provided. Riddle objects to Interrogatories 17 and 18 on the grounds of burden and relevance. Riddle's objection seems to imply the burden exists because the information the plaintiffs seek might be obtainable elsewhere. The fact that information may be available to the requesting party from other sources "is 'not usually a ground for objection.' " Petruska v. Johns-Manville, 83 F.R.D. 32, 35 (E.D.Pa.1979) (quoting 8 Wright and Miller, Federal Practice and Procedure, Civil § 2014 at 111). Information regarding which doctors made referrals for radiation treatment, and the criteria they purported to use in making referrals is relevant to establishing who may have participated in the alleged conspiracy. Riddle must answer these interrogatories, drawing where appropriate on information known to members of its medical staff holding official or quasi-official positions, or otherwise under Riddle's control. Interrogatory 19 asks Riddle to identify all physicians who applied for staff privileges between January 1988 and the present, and to state the manner and time in which Riddle disposed of the application. Interrogatories and Document Requests 1-3 served by the plaintiffs on March 5, 1993, also seek information regarding staff privileges, specifically the names and addresses of physicians who held privileges in 1990, or held temporary staff privileges between 1988 and

1990, the circumstances surrounding their applications, and any related documents. Interrogatory 2 seeks the names and addresses of interns, residents, and fellows working in relevant departments in 1990. Riddle objects on the grounds of relevance and burden. The plaintiffs argue this information is relevant to its contention that as part of the alleged conspiracy, Riddle delayed granting staff privileges to Dr. Terrence Sharett, director of the plaintiffs' Swarthmore center. These same discovery requests were also served on defendant Taylor Hospital, which sought a protective order in response. In my Memorandum and Order of November 15, 1993, disposing of Taylor's motion, I explained the relevance of staff privileges files and related information to determining the validity of the plaintiffs' claim of discriminatory treatment. Only by comparing the defendants' treatment of other physicians' applications with their treatment of Dr. Sharett can the plaintiffs' allegation be proved or disproved. Although Riddle claims to have already provided sufficient information to show that any delay in Dr. Sharett's application was because his initial references did not know him well, without a baseline for comparison, this information is not probative. Thus the information remains relevant. As to Riddle's blanket objection on the basis of a peer review privilege, as fully discussed in my November 15, 1993 Memorandum and Order, no such privilege is available. Riddle's blanket objections on the basis of attorney-client privilege and work product, as discussed earlier, are of no avail when not supported by evidence that the privileges apply. *3 In response to Interrogatories 1 and 2 of the March 1993 request, Riddle stated it would provide the information "in due course." (Pl.'s Mot. to Compel, Ex. E). As the trial date is currently set for November 29, 1993, Riddle must now live up to this statement and respond. As to Riddle's objection to providing addresses on the ground that the information is available to the plaintiffs from phone books, etc., I am unpersuaded. As noted earlier, the equal availability of information is not normally ground for objection. 8 Wright and Miller, Federal Practice and Procedure, Civil § 2014 at 111. Finally, Riddle objects to Document Request Nos. 1 and 4 of the plaintiffs' December 1992 discovery request. Document Request No. 1 simply asks for all documents whose identity is sought in any of the accompanying interrogatories. Riddle should provide such documents consistent with my rulings on the accompanying interrogatories. Document Request

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 1:00-cv-01864-REB-BNB

Document 165-23

Filed 08/10/2005

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Not Reported in F.Supp. 1993 WL 517734 (E.D.Pa.), 1993-2 Trade Cases P 70,443 (Cite as: 1993 WL 517734 (E.D.Pa.)) No. 4 seeks documents still organized or segregated in Riddle's possession that were produced in discovery during two other antitrust actions to which Riddle was a party, American Health Systems, Inc. v. Liberty Health System, et al., Civ. No. 90-3112, (E.D.Pa.) and Home Health Specialists, Inc. v. Liberty Health Systems, et al., Civ. No. 92-3413, (E.D.Pa.). Riddle must respond to this request, but only as limited by Judge Melinson's March 23, 1993, Order regarding the scope of discovery. See Order of March 23, 1993, ¶ 2. An order follows. ORDER AND NOW, on this ---- day of November 1993, upon consideration of the Plaintiffs' Motion to Compel Defendant Riddle Memorial Hospital to Answer Interrogatories and Produce Documents, and Riddle Hospital's response thereto, it is ORDERED that: 1. Riddle shall serve responses to Interrogatories 1(a), 2, 3, 14, 15, 16, 19, and 20, and Document Request Nos. 2 and 3, of the plaintiffs' December 1992 discovery request, and to Interrogatories 1 -3 and Document Request Nos. 1 of the plaintiffs' -3, March 1993 discovery request; 2. Riddle shall serve responses to Interrogatories 1(b) and 1(c) of the plaintiffs' December 1992 discovery request, consistent with Judge Melinson's March 23, 1993 Order and this court's July 21, 1993 Order; 3. Riddle shall serve responses to Interrogatories 412, 17, and 18, of the plaintiffs' December 1992 discovery request, consistent with this court's July 21, 1993 Order; 4. Riddle shall serve responses to Interrogatory 13 and Document Request No. 4, of the plaintiffs' December 1992 discovery request, consistent with Judge Melinson's March 23, 1993 Order; 5. Riddle shall serve responses to Document Request 1, of the plaintiffs' December 1992 discovery request consistent with this Order; 6. All answers required by this Order shall be served within ten (10) days of the date of this Order. FN1. For a period of time, Magistrate Judge Melinson was ably assisting this court in disposing of pretrial matters, including © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. discovery disputes.

1993 WL 517734 (E.D.Pa.), 1993-2 Trade Cases P 70,443 Motions, Pleadings and Filings (Back to top) · 2:92cv03055 (May. 27, 1992) END OF DOCUMENT (Docket)