Court Orders Party to Leverage Software to Retrieve Random Sample of Relevant Documents
Duffy v. Lawrence Mem. Hosp., 2017 U.S. Dist. LEXIS 49583 (D. Kan. Mar. 31, 2017) In this false claims case, the defendant moved the court to modify its previous order to compel defendant to produce over 15,000 records, and for a protective order to redact confidential patient information. The defendant alleged that responding to the plaintiff’s requests for production would take 8,982 working hours and cost $230,000. Alternatively, the defendant proposed the application of a software program that provides statistical data. The defendant stated that program is also utilized by Department of Health and Human Services Office of Inspector General (“OIG”), and that the OIG website offers the product for public use, free of charge. When utilized on the defendant’s recordkeeping system, the software considered the extent of the defendant’s records, and recommended 252 samples, plus 5 spares. The defendant moved that in the alternative, some of all the costs of discovery shift to the plaintiff. The plaintiff made many arguments against the defendant’s motion. The plaintiff stated that the parties did not meet and confer prior to filing the present motion, in violation of local rule 37.2, that the defendant was asking for reconsideration of the court’s previous order, and that the defendant’s motion was untimely because the court already rejected the defendant’s same motion in the previous proceeding. Further, the plaintiff asserts that random sampling risks accuracy, that current case law does not favor cost shifting, and that there is no need for redaction because the plaintiff will keep patient information confidential. The court found that the plaintiff’s requests were “unduly burdensome and disproportional to the needs of the case,” and that the parties previously conferred during a prior discovery request. Additionally, the court informed the plaintiff that utilizing technology-assisted review (“TAR”) such as the software employed by OIG is more accurate and less costly than human analysis, and allowed the defendant to reduce its production of documents to 257 random samples. Finally, the court recognized the defendant’s legal duty to protect patient information, and ordered the defendant to redact any confidential patient information from the samples submitted to the plaintiff.