EMERUS HOSPITAL PARTNERS, LLC, et al., Plaintiffs, v. HEALTH CARE SERVICE CORPORATION, et al., Defendants No. 13 C 8906 United States District Court, N.D. Illinois, Eastern Division Signed August 13, 2015 Counsel J. todd Trombley, Pro Hac Vice, Alexander B. Klein, III, The Klein Law Firm, Houston, TX, Carlton E. Odim, Odim Law Offices, Chicago, IL, for Plaintiffs. Martin J. Bishop, Rebecca R. Hanson, Meredith Ann Shippee, Thomas Charles Hardy, Reed Smith LLP, Chicago, IL, for Defendant Health Care Service Corporation. Meredith Ann Shippee, Thomas Charles Hardy, Reed Smith LLP, Chicago, IL, for Defendant Blue Cross Blue Shield of Texas. Charles M. Gering, Pedersen & Houpt, Chicago, IL, Alexander B. Klein, III, The Klein Law Firm, Houston, TX, for Defendant Availity. Rowland, Mary M., United States Magistrate Judge ORDER *1 Defendants’ Motion for Clarification and Reconsideration [154] is GRANTED IN PART, DENIED IN PART, AND TAKEN UNDER ADVISEMENT IN PART. STATEMENT A. Background Defendants seek clarification and reconsideration of certain issues in the Court's June 29, July 17, and July 22, 2015 Orders.[1] As discussed below, Defendants’ request for reconsideration is granted in part and denied in part. Defendants’ request for clarification will be addressed at the August 14, 2015 status hearing. “Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or to present newly discovered evidence.” Keene Corp. v. Int'l Fid. Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984). “To be within a mile of being granted, a motion for reconsideration has to give the tribunal to which it is addressed a reason for changing its mind.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004). “Reconsideration is not an appropriate forum for rehashing previously rejected arguments or arguing matters that could have been heard during the pendency of the previous motion.” Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir. 1996); see Keene Corp., 561 F. Supp. at 665 (“Such motions cannot in any case be employed as a vehicle to introduce new evidence that could have been adduced during pendency of the summary judgment motion.”). “A motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind.” Ahmed, 388 F.3d at 249 (“It's as if the movant, when he appealed, had filed two copies of his appeal brief, and when his appeal was rejected asked us to read the second copy.”). B. Requests for Reconsideration 1. Claims Processing Documents Defendants seek reconsideration of the Court's July 17 Order “insofar as it requires Defendants to produce policies and procedures unrelated to the processing of emergency care claims submitted by out-of-network providers.” (Dkt. 154-1 at 5) (emphasis added). But as Plaintiffs note in their response, they are seeking only documents related to out-of-network emergency care services provided by Plaintiffs to patients insured by Defendants. (Dkt. 172 at 8). In responding to Plaintiffs’ First Request for Production Nos. 11, 12, 14, 17, 18 & 24, Defendants shall produce all responsive documents that pertain to the provision of out-of-network emergency care services.[2] 2. Pricing Information Regarding Emergency Care in Texas *2 Defendants contend that because the Complaint is based solely on the TPPA's timeliness provisions, they should not be required to produce information related to underpayment issues. (Dkt. 154-1 at 8–10 regarding Request for Production Nos. 1–5, 8–10, 12–13, 16). Defendants’ argument is unavailing. Plaintiffs’ assert that this case involves unpaid and underpaid claims under the TPPA. (Dkt. 172 at 9; 6/29/15 Tr. at 5). In addition, in ruling on Defendants’ Motion to Dismiss, the District Court summarized Plaintiffs’ Complaint as seeking damages for “[a]ctual damages in the amount of the difference between the actual amount paid, if any, and the total amount of each clean claim presented.” (Dkt. 34 at 3–4) (emphasis added). In any event, pricing information is relevant to damages and must be produced. 3. Pattern and Practice In the Court's July 22 Order, it concluded that whether Rule 406 “pattern and practice” evidence is ultimately admissible is a question for the District Court to determine. (Dkt. 147 at 2–3). In the meantime, the Court declined Defendants’ invitation to make a blanket ruling proscribing such discovery, instead adhering to the tried and true method of deciding individual document requests in light of applicable Rule 26 guidelines. (Id.). In their motion for reconsideration, Defendants have not raised any new arguments that would cause the Court to change its approach to so-called “pattern and practice” discovery. Caisse Nationale de Credit Agricole, 90 F.3d at 1270 (“Reconsideration is not an appropriate forum for rehashing previously rejected arguments....”). Rather, Defendants rehash their prior arguments regarding the irrelevance of what they deem to be “pattern and practice” evidence to this case. They ask the Court to reconsider three specific rulings. (Dkt. 154-1 at 11). First, Defendants takes issue with the Court requiring production of “documents related to fines and penalties paid to the state of Texas by Defendants for violations of the TPPA.” (Id.). Consistent with Rule 26, the Court disallowed Plaintiffs’ request for documents related to a 2001 Consent Decree between Defendants and the Texas Department of Insurance (TDI) wherein Defendants agreed to comply with the TPPA and to pay fines. The Court believed this matter too remote in time to the allegations in this case. (See July 22, 2015 Order, Dkt. 147 at 3) (“While this consent order is arguably ‘pattern and practice’ evidence, it is too temporally remote from the claims in the present case.”). However, Plaintiffs’ Third Request for Production Nos. 5 and 7 sought documents related to fines and penalties paid to the state of Texas by Defendants for violations of the TPPA between 2001 and the present. (Dkt. 109-2 at 10). The Court found these documents, focused on Prompt Pay Act violations only, relevant, but limited production to documents dated 2007 and after. (Dkt. 147 at 3). Aside from rehashing their argument that “pattern and practice” evidence should be disallowed, Defendants offer no argument for the Court to reconsider regarding this ruling. Next, Defendants ask the Court to reconsider its decision to require disclosure of Defendant employees “who had a role with certain audit functions.” (Dkt. 154-1 at 11). The identity of individuals cannot possibly be considered “pattern and practice” evidence, and Defendants have offered no persuasive reason that this information should not be tendered. Moreover, although Plaintiffs sought the identities of people employed by Defendants and people employed by third-parties who participated in Claims Processing and TPPA Compliance Audits (Dkt. 109-5 at 8–9), the Court found that “seeking the identity of third party auditors is duplicative, unnecessary, burdensome and harassing,” (see July 22, 2015 Order, Dkt. 147 at 5). The Court believes it properly limited this request. *3 Finally, the Court ordered production of Claims Processing and Prompt Pay Act Audits, produced between January 2009 and the present. (Dkt. 109-4 at 14–15). The requested audits are limited to the processing and payment of claims to out-of-network emergency care providers in Texas, whether prepared by Defendants or received from third party auditors. (Id.). Again, Defendants have offered no argument for the Court to reconsider this ruling. 4. Urgent Care In its July 17 Order, the Court granted Plaintiffs’ motion to compel First Request for Production Nos. 3, 5, 12 and 13. (Dkt. 144 at 4–5). Defendants contend that these requests include information related to “urgent care,” which is distinct from “emergency care” under Texas law. (Dkt. 154-1 at 13–15). The Court agrees. Plaintiffs’ Complaint relates to out-of-network emergency care services provided by Plaintiffs to patients insured by Defendants. Thus, in responding to First Request for Production Nos. 3, 5, 12 and 13, Defendants need provide only information related to “emergency care,” as defined in the TPPA. Tex. Ins. Code § 1301.155(a). Footnotes [1] Defendants have also filed Objections with the District Judge on these same issues (Dkt. 156), which creates a risk of duplicate or conflicting rulings (see Dkt. 154-1 at n.1). [2] Defendants take issue with the Court's finding that the TPPA requires insurers to give providers “ ‘copies of all applicable utilization review policies and claim processing policies or procedures.’ ” (Dkt. 144, 7/17/15 Order, quoting Tex. Ins. Code § 1301.106(a)). Defendants contend that this provision applies only to “preferred providers,” not out-of-network providers like Plaintiffs. (Dkt. 154-1 at 7–8). In its July 17 Order, the Court reasoned that because the TPPA requires prompt payment to out-of-network providers who provide emergency services to an insured, the TPPA provision requiring insurers to provide claim processing policies to providers must also apply to out-of-network providers who provide emergency care services. Defendants have not identified any authority that calls into question the Court's ruling on this issue. More significantly, for purposes of discovery, the rules governing federal discovery are applicable here, not Texas statutory requirements.