SHARON PROLOW and MARK LEMMERMAN, on behalf of themselves and all others similarly situated, Plaintiffs, v. AETNA LIFE INSURANCE COMPANY, Defendant Case No. 9:20-cv-80545-Marra/Matthewman United States District Court, S.D. Florida Signed June 13, 2022 Counsel Frank Anthony Florio, Maria Dolores Garcia, Kozyak Tropin & Throckmorton LLP, Miami, FL, Harley Shepard Tropin, Robert J. Neary, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL, Stephanie Anne Casey, Colson Hicks Eidson, Coral Gables, FL, for Plaintiff Sharon Prolow. Robert J. Neary, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL, Stephanie Anne Casey, Colson Hicks Eidson, Coral Gables, FL, for Plaintiff Mark Lemmerman. Ardith M. Bronson, Maia Sevilla-Sharon, DLA Piper LLP, Miami, FL, Brian H. Benjet, Pro Hac Vice, DLA Piper LLP, Philadelphia, PA, Jon W. Breyfogle, Pro Hac Vice, Mark C. Nielsen, Pro Hac Vice, Paul J. Rinefierd, Pro Hac Vice, Groom Law Group Chartered, Washington, DC, for Defendant. Matthewman, William, United States Magistrate Judge ORDER ON DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM NON-PARTY SOUTH FLORIDA PROTON THERAPY INSTITUTE [DE 170] *1 THIS CAUSE is before the Court upon the following: (1) Defendant Aetna Life Insurance Company's Motion to Compel Production of Documents from Non-Party South Florida Proton Therapy Institute (“Motion to Compel”) [DE 170]; (2) Non-Party South Florida Proton Therapy Institute's (“SFPTI”) Response [DE 174]; (3) Defendant's Reply [DE 175]; and (4) Defendant and SFPTI's (“the parties”) Joint Notice on Discovery Status [DE 180], filed pursuant to the Court's May 18, 2022 Paperless Order [DE 172]. The Court held a hearing on the Motion to Compel via Zoom video teleconference (VTC), on June 10, 2022. I. PROCEDURAL HISTORY On February 17, 2022, Plaintiffs filed a Motion to Quash Nonparty Subpoenas and for a Protective Order (“Motion for Protective Order”) [DE 142]. Thereafter, following a February 28, 2022 Zoom VTC hearing, on March 2, 2022, the Court issued an Order on Plaintiffs’ Motion for Protective Order (“March 2, 2022 Order”).[1] [DE 151]. Within the portion of the Court's March 2, 2022 Order addressing that motion, the Court described the contents of the subpoenas at issue. Specifically, the Court first noted that Defendant served subpoenas on MCI, SFPTI,[2] and Dr. Tim Williams from SFPTI. [DE 151 at 4]. The Court then noted five categories of documents requested in the three subpoenas: (1) documents related to Plaintiffs’ cancer treatment; (2) documents related to the facilities’ use of Proton Beam Radiation Therapy (“PBRT”) in general; (3) documents related to the facilities’ costs, revenues, and investment returns associated with PBRT in general; (4) communications with Colson Hicks Eidson or Kozyak Tropin & Throckmorton, the law firms that represent Plaintiffs in this case; and (5) documents related to the Proton Therapy Law Coalition. [DE 151 at 4] (quotation format altered). Utilizing these document groupings, the Court granted in part and denied in part Plaintiffs’ Motion for Protective Order as follows: the records described in category (1) shall be limited to all medical records of the Plaintiffs during the timeframe that they were being treated with PBRT but not limited to only records of PBRT treatment; the records described in category (2) shall be limited to only the documents which relate to the Plaintiffs within the relevant time of their PBRT treatment; the records described in category (3) shall be limited to the financial information documents which relate to the Plaintiffs within the relevant time of their PBRT treatment; and the records described in category (4) and (5) shall not be produced as this information is irrelevant and disproportional to the needs of this case. [DE 151 at 4–5]. Subsequently, on May 16, 2022, Defendant filed the instant Motion to Compel [DE 170], taking issue with SFPTI's production of documents in response to the requests pertaining to categories 1, 2, and 3, as limited by the Court's March 2, 2022 Order. II. RULING *2 Ultimately, as stated in the parties’ Joint Notice, there remain a number of discovery disputes for which the parties request Court intervention. Specifically, Category 1 – Request #4, Category 2 – Requests #2 and #3, and Category 3 – Requests #6 and #11, remain at issue. The Court has carefully considered the relevant law, Defendant's Motion to Compel, SFPTI's Response, and Defendant's Reply, the attachments thereto, the discovery requests and responses, argument of counsel at the discovery hearing, the Declaration of Andrew Barbosa (SFPTI's Center Administrator) [DE 176], and the Joint Notice, as well the entire docket in this case. Based on the foregoing, it is hereby ORDERED as follows: 1. With respect to Category 1 – Request #4, Defendant clarified during the June 10, 2022 Zoom VTC hearing that it was seeking a representation that SFPTI had conducted a diligent search to identify all documents responsive to this Category. SFPTI stated and represented that it had conducted a diligent search—including searching all necessary emails—which SFPTI stated was supported by the Declaration of Mr. Barbosa. The Court accepts the representation of SFPTI and its counsel, and the representation that there are no communications in SFPTI's possession, custody or control that have not already been produced. Accordingly, to the extent Defendant seeks additional documents responsive to Category 1 – Request #4, Defendant's Motion to Compel is DENIED. 2. As to Category 2 – Requests #2 and #3, within Defendant's Motion to Compel, Defendant specifically took issue with SFPTI's production of a 66-page excel spreadsheet with incomplete data, and SFPTI's purported refusal to produce the spreadsheet in native format. However, in the Joint Notice, and at the June 10, 2022 Zoom VTC hearing thereafter, SFPTI responded that it had produced the spreadsheet in native format, which it contended included all requested information—albeit only for the time period during which Plaintiff Mark Lemmerman was treated at SFPTI. Consequently, because Defendant requests information outside of this time period, Defendant challenges the scope of SFPTI's production. The Court finds that, at this juncture, SFPTI's production is reasonable, especially considering that Defendant has since filed a Motion to Bifurcate Class Certification and Amend Scheduling Order [DE 178], in which Defendant questions whether the matter is even appropriate or suitable for class treatment in the first instance. [DE 178 at 2]. Accordingly, as to Category 2 – Requests #2 and #3, Defendant's Motion to Compel is DENIED WITHOUT PREJUDICE. Defendant may renew its request for such information, if it can do so in good faith, as the case further develops and the request for information pertaining to this Category outside the timeframe of late 2019 to present becomes more appropriate, relevant, and proportional. 3. Lastly, with respect to Category 3 – Requests #6 and #11, Defendant's Motion to Compel is also DENIED WITHOUT PREJUDICE. The Court does not find that production of the voluminous, sensitive, confidential and proprietary financial information is appropriate at this early juncture. The Court again notes that there is a pending Motion to Bifurcate Class Certification [DE 178]. Further, the Court notes that, despite the sensitive nature of the information requested, and despite SPFTI's initial objections, SFPTI “agreed to [produce] ... top line revenue and expenses numbers of SFPTI during the period of time ... [Plaintiff] Lemmerman was under care with SFPTI ....” [DE 180 at 5–6]. Thus, the Court finds that SFPTI has been more than reasonable and diligent in its production of documents responsive to Defendant's subpoena duces tecum. Simply stated, on balance, Court finds that production of the sensitive and proprietary information is overly burdensome at this stage of the litigation, and that the requests for cost and profit information are overbroad given the current procedural posture. Defendant may renew its request for such information, if it can do so in good faith, as the case further develops and the request becomes arguably more appropriate, relevant, and proportional. *3 DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 13th day of June, 2022. Footnotes [1] The March 2, 2022 Order also addressed Plaintiffs’ Third Motion to Compel [DE 141]. However, Plaintiffs’ Third Motion to Compel—and the portion of the Court's March 2, 2022 ruling on such—is irrelevant for purposes of the instant Order. [2] The SFPTI subpoena is available at DE 144-1.