Episode 103: Mastering the Art of Discovery When Your Client is Subject to Bias

In episode 103 of ACEDS’ Case of the Week, Kelly Twigger discusses the United States v. Planned Parenthood Federation of America case, which highlights the importance of making a complete record for appeal and presenting a clear factual picture in discovery.

Introduction

Welcome to this week’s episode of our Case of the Week series, published in partnership with ACEDS. This week marks our 103rd episode in the series.

I’m Kelly Twigger, the CEO and founder of eDiscovery assistant and the principal at ESI Attorneys. Thanks so much for joining me today.

This week’s decision comes to us from United States v. Planned Parenthood Federation of America and it is a lesson in multiple ways:

1. It demonstrates quite effectively the need to make a very complete record for purposes of appeal.
2. It demonstrates the necessity of putting together a very clear, factual picture to get what you’re asking for in discovery.
3. It is further proof of my theory that litigation is 98% BS and 2% about the law.

Let’s dive into this week’s case. As I mentioned, this one comes to us from the US v. Planned Parenthood Federation of America. It’s dated back from September of 2022 from United States District Judge Matthew Kacsmaryk from the Northern District of Texas.

Judge Kacsmaryk was appointed to the bench in 2017 by Donald Trump. If you follow the news, you would have heard last week that Judge Kacsmaryk was the District Judge that issued the very controversial decision withdrawing the FDA’s approval of the first drug used in medication abortion. That opinion is sure to go up to the Appellate Courts.

In terms of our database, Judge Kacsmaryk has 13 decisions in the database, 11 of which come from the United States v. Planned Parenthood Federation of America case from which today’s decision comes. In large part, his discovery decisions stem from this particular case.

The decision today includes the following issues: general objections, proportionality, privilege log, and forensic examination.

As I mentioned, this is the 11th discovery decision from Judge Kacsmaryk on this matter between August 2022 and January 2023. We’ve got minimal facts in this particular decision, some of which are articulated on the other cases that are included in the eDiscovery Assistant database.

When a judge has that many discovery orders in a short period of time, it is usually appropriate to say that the judge’s decisions are pretty brief and to the point on various issues. We don’t see a ton of analysis and it’s very likely in this case that there are a lot more facts in the briefs that are not articulated in the judge’s decision. That’s always one thing to keep in mind.

Background

Let’s talk a little bit about the background of this case. Alex Doe is what is known as a relator in a qui tam action against PPFA. In a qui tam action—if you’re not familiar with it—a relator brings an action against a person or a company on the government’s behalf. The government, not the relator, is considered the plaintiff. If the government succeeds on qui tam action, the relator bringing the suit receives a share of the award.

If the government is successful here in showing that Planned Parenthood did not make payments under Medicare to the government as required, then the relator would seek part of that monetary compensation as reward for bringing the action. It’s called award, not reward, but it is essentially a reward. That is the motivation for the relator here.

Generally speaking, in qui tam action against Planned Parenthood, there is often a political component as well as a notion that you’re trying to do the right thing.

The allegations here by the relator are that PPFA falsely certified compliance with Texas and Louisiana Medicaid rules and regulations and failed to repay the government millions of dollars in Medicaid funds.

Qui tam actions have been going on against PPFA and local chapters longer than I’ve been practicing law in an effort largely to shut down the organization, but also to limit the abortion services that Planned Parenthood Federation provides, which is a small portion of what they do.

We are before the Court on this qui tam action on a motion to compel more complete responses from the plaintiff to PPFA’s interrogatories and requests for production.

PPFA makes three different arguments in support of its motion to compel. First, it asks for more complete responses to them. In essence, there are areas in which it appears that the plaintiff simply pointed PPFA to documents in terms of responding to interrogatories. PPFA asks for more specificity on where those documents are located or that information. Second, it wants the realtor to follow a reliable and generally accepted method for identifying, collecting, and producing responsive documents. Third, asking them to verify those interrogatory responses as is required by the Federal Rules of Civil Procedure.

As I mentioned, because this is the 11th discovery motion, rather than diving into any sort of facts to lay out what’s going on in this discovery dispute, the Court really just dives directly into its analysis. There are very few facts, so we have to read between the lines a little bit on this decision, but when we do, it gets a little interesting.

Analysis

On its analysis, the Court begins by articulating the rule 26 requirements for relevance and proportionality, and the rule 37(a)(3)(b) standard on a motion to compel. As I mentioned, there are four arguments on this motion to compel.

The first is with regards to the privilege log from the plaintiff that should have followed its discovery responses. We’ve discussed privilege logs a few times on Case of the Week, but with the 2015 amendment to the Federal Rules of Civil Procedure, we see alot more Courts now requiring privilege logs to follow individual productions.

Many times in litigation over the course of my years practicing, it has been appropriate to hold the privilege log until after all of the productions are complete in discovery. That is no longer the case. Now it depends on the judge that you’re in front of, but as a general rule, a lot of judges are starting to require that a privilege log be issued within 30 days of production.

Even if you’re in a situation where you’ve got rolling, rolling, rolling productions and they’re happening regularly, you still need to be prepared to issue those new privilege logs.

In this instance, the plaintiff agreed to provide the requested privilege log after the motion had been filed. That issue was resolved, and the Court found in favor of Planned Parenthood ordering the plaintiff to provide the privilege log within 30 days of production.

The second, third, and fourth issues are really where we dig more into the ESI. The second issue dealt with plaintiffs discovery responses, directing PPFA to documents in response to interrogatories. The Court’s language here doesn’t come right out and say it, but plaintiff’s response to at least one interrogatory refers the defendant to documents under Federal Rules of Civil Procedure 33(d).

Plaintiff’s response to at least one interrogator referred the defendant to:

The documents contained in the trial and appellate record in the federal court litigation involving defendants referenced in relator’s complaint, the documents referenced and or produced by the State of Texas in response to request number one in defendant’s first set of requests for production to the State of Texas, and documents produced by Relator at REL000001 through REL010489.

Now that is a LOT of documents. Obviously, I don’t have any numbers as to how many documents we’re talking about here. When you are talking about all of the documents contained or referenced in the trial and appellate court in the federal litigation, documents referenced and produced by the State of Texas in response to the request number one, as well as 10,000 documents that are specifically noted by Bates numbers, that’s an awful lot of documents to point someone to in response to Rule 33(d) under the Federal Rules of Civil Procedure.

Case law requires more specificity than that. This Court did not. The Court found that the relator’s responses were adequate and did not require amendment.

The third issue here involved the use of boilerplate objections by the plaintiff in terms of relevancy and over breath. Now, generally, we see boilerplate objections, general boilerplate objections at the beginning of discovery responses. You have that first section where you write general objections and you list in order all of your general objections. Then when it comes to each individual discovery request, there are specific objections that are required.

Here Planned Parenthood argued that the general objections meant that the plaintiff had waived their right to object. The Court essentially said, well, we agree with you that general objections are not allowed but wait a minute, you haven’t met the threshold requirement of relevance to be able to argue that these discovery responses should be responded to. The Court seems to have taken it under its own accord to rule on the boilerplate objections, even though it agreed that boilerplate objections are not appropriate.

Planned Parenthood argued that the general objections were deficient, presumably under the 2015 amendments that eliminated the use of boilerplate objections and required specific, tailored objections to each discovery response.

Now, I am not looking at the request for production or the responses, and I didn’t look at them in preparation for the Case of the Week today. It’s really difficult to know exactly what happened here, but the Court looks at the argument on the boilerplate objections and agrees with PPFA, as I mentioned.

Then it goes on to state that PPFA does have to show that its discovery requests are relevant. Which seems to mean that even though the objections were boilerplate and not allowed, that the Court considered the substance of the objections anyway.

Again, the Court’s statements here are very conclusory, but it finds that PPFA’s arguments as to why the relator’s background information is necessary were not sufficient to establish relevance. The Court noted that PPFA argued that its request sought basic demographic information that is routinely sought, and it is entitled to discovery whether relator has any prior education or work experience to form opinions that Planned Parenthood violated medical and ethical standards

Why would this be relevant? Well, generally it would be relevant because the relator is the one who’s bringing the claims. If the relator doesn’t have any factual basis, no understanding or knowledge of Medicare codes, the specific billing that happens, how Planned Parenthood functions, then what would be the basis for the relator’s claims here? That’s why PPFA is asking for this information. They are entitled to understand the motivations of the relator and the Court says, “no, you can’t have that information.”

That’s questionable. I’ve seen qui tam actions in which that information is provided, and it is relevant to the proceedings. But the Court really looks at here and says, no, that’s going to be impeachment evidence and you’re not entitled to it. The Court cites to the 2015 amendments to the Federal Rules of Civil Procedure 26(b)(1) and says that evidence that is offered solely for impeachment is not discoverable. That’s an instance where a defense counsel would have had to, in this highly politically charged litigation, understand that that was going to be the Court’s response and find a different way to structure relevance.

Fourth issue here is a bit more interesting from an ESI perspective. PPFA sought an order compelling the plaintiff’s counsel to collect the relator’s email inbox and to image the relator’s computer out of concern that responsive documents were likely to be missed in the document production.

According to the language that is cited by the Court in its decision, PPFA made no showing, but rather only speculated, that responsive documents were more likely to be missed because relator’s counsel, “Declined to provide additional information about the process that relator is using to ensure all responsive documents are located and produced.” The Court found that “that is not the very particular showing that Rule 34 demands” and denied PPFA’s motion.

This is another situation where it seems like, according to the language, that relator was allowed to identify and self-collect information. That defense counsel’s ability to articulate why that was not appropriate and why they should be entitled to a forensic examination is either not addressed in the Court’s decision or wasn’t addressed in the papers.

How does this all play out? The Court grants PPFA’s motion on the privilege log that is to be produced, but denies the other three arguments, and then also does not award costs to PPFA because of the way the motion played out.

Takeaways

What are our takeaways from this case? First, in case you haven’t picked up on it yet, there is a tremendous undercurrent in this case due to the parties and the subject matter, as well as what appears to be the judge’s thoughts on it.

How do you combat that in litigation? How do you address a situation where the Court may be predisposed against your client?

Well, it’s hard, and the only real way to do it is to provide as much incredibly specific detail as you can to suggest that your client is not getting what it’s entitled to in discovery and to make that record for appeal. You have to put everything in very specific, factual detail.

If the number of documents that are pointed to in response to an interrogatory under Rule 33(b) are voluminous, and there’s no way that you could sift through those, then you’ve got to provide specifics on how many documents that represents and the amount of time it required to go through them to be able to get the answer that you’re entitled to in discovery. Again, that may have been done here. I don’t have access to that information or didn’t review it in preparation for today.

As I just mentioned, the reality is that when you are in a situation where your client is at a disadvantage simply because of who the client is, every single thing that you do and ask for needs to be substantiated with detailed facts, law, and anything you can do to make the case and the record.

The facts on the fourth issue here, the one about self-collection related to the relator, really seemed to be looking at whether or not that was a viable solution for the relator to have done under the Federal Rules of Civil Procedure. PPFA’s argument seemed to be that it was not. There’s nothing articulated in the decision as to the specific facts that PPFA put forth to articulate what they could see in the production that suggested that relator’s production was not sufficient.

Again, that’s where you’re going to have to have more facts. There’s also a three part test as to whether or not a forensic examination can be ordered that we’ve covered on previous episodes of the Case of the Week, and there’s no articulation from the judge here. Again, we don’t know whether it’s in the papers, and the judge just didn’t include it here today.

All right, final takeaway. My 25 years of experience, litigating has taught me in no uncertain terms that litigation is 98% BS and 2% about the law. I can’t be certain, but it really seems to me like the 98% won out here.

This is just a situation that you have to be prepared for, and you have to be strategizing about going into it. Looking at the counsel who are on this case and the sheer volume of them, I think that it’s clear that they were doing that at every turn. It’s hard. It’s really hard, and you need to think about that as you’re going into any kind of case where your client might be at a disadvantage from their perspective. That can be any case— it doesn’t need to be something as politically charged as PPFA.

It can be any situation where your client has a reputation in its industry, either for being a large behemoth corporation, for taking a position that isn’t favorable, for being political in some way, shape, or form. You as a litigator have to be prepared to deal strategically in discovery with those issues. You have to consider upfront how the court is going to rule and how they’re going to look at every potential available avenue to rule against your client. You’ve got to think about those things in advance and deal with them strategically each step of the way.

Conclusion

That’s our Case of the Week for this week. Thanks so much for joining me we’ll be back again next week with another decision from our eDiscovery Assistant database.

If you are interested in doing a free trial of our case law and resource database, sign up to get started. Thanks so much. Have a great week.