UNITED STATES OF AMERICA, et al., Plaintiffs, v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY, et al., Defendants No.: 1:21-CV-84-TRM-SKL United States District Court, E.D. Tennessee, Southern Division, AT CHATTANOOGA Filed November 04, 2024 Lee, Susan K., United States Magistrate Judge MEMORANDUM AND ORDER *1 Before the Court is Defendant Erlanger's Motion to Compel the Production of Documents and for Attorney's Fees [Doc. 226 (motion), Doc. 227 (supporting brief and exhibits)].[1] Relators filed a response in opposition [Doc. 242-1],[2] and Erlanger filed a reply [Doc. 260].[3] This matter is now ripe. Neither party requested a hearing and the Court finds a hearing is not necessary. I. BACKGROUND The background of this case has been set forth in prior orders and will not be repeated herein except as necessary to explain the Court's decision on the instant motion to compel. The motion to compel originally related to four of Erlanger's requests for production (“RFP”). After the motion was filed, Relators produced a Supplemental Privilege Log, which Erlanger agrees addressed RFP no. 8. The three RFP that remain at issue are RFP nos. 2, 13, and 19. RFP no. 2 was served on all three relators. RFP nos. 13 and 19 were served on Dr. Julie Adams and Dr. Richard Steinmann only. The RFP at issue are as follows: 2. Please produce all documents and/or communications, including audio or video recordings of Erlanger or UTCOM personnel, relating to this action or any of the facts relating to this action, including but not limited to the records quoted, cited, or otherwise referenced or relied on in the FAC.[4] 13. Please produce all documents and communications relating to the reasons you stopped being employed by Mayo Clinic. 19. Produce all documents and communications that refer or relate to Your decision to leave Mayo Clinic and join Erlanger. Discovery in this case closed on October 11, 2024. Erlanger's motion was filed on September 20, 2024, and became ripe when Erlanger filed its reply on the last day of discovery. Accordingly, in effect, Erlanger is also requesting an extension of the discovery deadline as to any discovery ordered herein. See Ecolab, Inc. v. Ridley, No. 1:22-cv-050-TRM-SKL, 2023 WL 11762603, at *2 (E.D. Tenn. May 5, 2023) (finding a motion to compel filed within days of the close of discovery is untimely and collecting cases). II. STANDARDS It is “well established that the scope of discovery is within the sound discretion of the trial court,” Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994) (quoting United States v. Guy, 978 F.2d 934, 938 (6th Cir. 1992)), and that the scope is traditionally quite broad. Fed. R. Civ. P. 26(c). Under Rule 26 of the Federal Rules of Civil Procedure, the parties may obtain discovery regarding any nonprivileged matter relevant to any party's claim or defense, and proportional to the needs of the case, “considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The proponent of a motion to compel discovery bears the burden of demonstrating the relevance of the information addressed in the motion to compel. See Gruenbaum v. Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010); Anderson v. Dillard's, Inc., 251 F.R.D. 307, 309-10 (W.D. Tenn. 2008). *2 Because the motion to compel in effect seeks an extension of the deadline for completing discovery, Erlanger must also satisfy Federal Rule of Civil Procedure 16(b)(4). Under Rule 16(b)(4), a scheduling order may be modified “only for good cause.” “The primary measure of Rule 16's ‘good cause’ standard is the moving party's diligence in attempting to meet the case management order's requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (quoting Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001)). Courts typically consider the following factors when determining whether a party was diligent: “(1) when the moving party learned of the issue that is the subject of discovery, (2) how the discovery would affect the ruling below; (3) the length of the discovery period; (4) whether the moving party was dilatory; and (5) whether the adverse party was responsive to ... discovery requests.” Gatza v. DCC Litig. Facility, Inc., 717 F. App'x 519, 521 (6th Cir. 2017) (citations omitted). In addition to diligence of the moving party, courts consider “possible prejudice to the party opposing the modification.” Id.; see also Moore v. Indus. Maint. Serv. of Tenn., Inc., 570 F. App'x 569, 577 (6th Cir. 2014). III. ANALYSIS 1. RFP no. 2 As has been established earlier in this case, Relators recorded certain conversations in the lead-up to this lawsuit, some of which they later deleted for various reasons. According to Erlanger's reply, Relators have produced a total of 125 recordings [Reply at p.4 & p.4 n.2]. They produced 55 recordings prior to September 16, 2024, and 43 recordings on September 17. Erlanger filed its motion to compel on September 20, and thereafter, Relators produced an additional 27 recordings. In its reply, Erlanger complains: “Even if Relators have produced all recordings, the metadata in their productions continues to be deficient.” [Reply at p.4]. This issue was not mentioned in Erlanger's motion or opening brief, and Relators did not address it in their response. The text of RFP no. 2 does not specifically request metadata; however, it appears the parties' agreed Order Regarding the Protocol for the Production of Electronically Stored Information requires the production of ESI metadata [see Doc. 196]. It does not appear Relators objected to producing metadata on the basis that it was not requested, and Erlanger raised the issue with Relators in the conferral process leading up to the filing of the instant motion to compel. Certainly, the metadata could contain discoverable information, and in any event, it appears Relators are required to produced it pursuant to their agreed ESI order. Furthermore, because it appears Erlanger acted diligently in the conferral process and Relators were nonresponsive (at least as to this particular issue, as reflected in the record before the Court), the Court finds there is good cause to require Relators to provide certain metadata to Erlanger even though discovery has now closed. Specifically, although Erlanger generally requests “fulsome and complete metadata” [Reply at p.4], it appears the main, if not only, metadata-related deficiency Erlanger has raised with Relators concerns the “custodians field” [see ex. B & ex. C]. Accordingly, Erlanger's motion to compel [Doc. 226] is GRANTED IN PART to the extent it seeks “custodians field” metadata for the recordings Relators have produced. Erlanger also requests that Relators be required to produce “a verified accounting signed by Relators regarding what recordings used to exist but [ ] no longer exist.” [Reply at 5]. They ask that the log include, “at a minimum, (a) the date of the recording, (b) the speakers, (c) a description of the conversation, (d) the length of the recording, (e) the date it was deleted, and (f) an explanation for why it was deleted.” [Reply at p.5]. In their response, Relators cite to a September 17 letter sent to Erlanger, in which they “confirm” Dr. Julie Adams and Dr. Steinmann did not erase or delete any recordings, only Dr. Stephen Adams did [Doc. 225-3 at Page ID # 2845]. The letter indicates the conversations Dr. Stephen Adams erased were either “garbled and unintelligible” or else covered topics completely unrelated to this case [id.]. Most importantly, Relators maintain “it is impossible to create a log of items which were deleted over three years ago.” [Response at p.6]. Relators reiterate their offer “to make a log to the best of their ability so long as Erlanger provided Dr. Adams access to his calendar so he could attempt to refresh his memory about the handful of recordings he deleted.” [Response at p.6]. Erlanger maintains such access is unnecessary and that Relators should be required to provide the log with the caveat that it is “true and correct to the best of their knowledge.” [Opening Brief at p.7]. *3 In light of Relators' representations regarding their inability to produce the log from Dr. Stephen Adams's memory, and Erlanger's unwillingness to allow him access to his electronic calendar as a compromise, Erlanger's motion [Doc. 226] is DENIED to the extent it seeks to compel Relators to produce a log of deleted recordings. Erlanger has not demonstrated the value for discovery purposes of a log that is based primarily if not entirely on an admittedly faulty memory. Erlanger's request for sanctions in connection with the deleted recordings is being addressed by separate order. Finally, in its opening brief, Erlanger argued there was evidence to suggest there were emails responsive to RFP no. 2 which Relators had not produced [Opening Brief at p.8]. In their response, Relators emphatically insist they “have produced all responsive, non-privileged documents that fall under this request.” [Response at p.6]. Erlanger does not address this aspect of RFP no. 2 in its reply; accordingly, it appears the issue is moot and the Court will not address it further. In sum, Erlanger's motion to compel [Doc. 226] is GRANTED IN PART AND DENIED IN PART as to RFP no. 2 as set forth above. 2. RFP nos. 13 and 19 In RFP nos. 13 and 19, Erlanger seeks production of documents and communications relating to the reasons Dr. Julie Adams and Dr. Steinmann stopped working at the Mayo Clinic, and those that refer or relate to their decision to leave the Mayo Clinic and join Erlanger. Relators adamantly insist they have produced all responsive documents in their possession. They contend the production was small because “they left Mayo to work at Erlanger five years ago, and many of the specific documents Erlanger insists they should have are nearly ten years old.” [Response at p.8]. Although Dr. Steinmann still has a Mayo Clinic email account because of his role as an emeritus professor there, he asserts the account does not contain responsive emails or documents because emails from the relevant time period have been archived and he does not have access to the archived emails. Undaunted, Erlanger claims that other documents have been produced, by both Erlanger and the Mayo Clinic, which demonstrate the existence of relevant documents which Relators have not produced. Erlanger argues it “defies logic” for Relators to claim otherwise [Opening Brief at p.11]. Erlanger also argues these documents “directly contradict” Relators' claim that they “simply ‘joined Erlanger because they wanted to raise their children in Tennessee near their grandparents, aunts and uncles, and cousins.’ ” [Id. at p.12 (quoting Relators' response to RFP no. 19)]. In reply, Erlanger acknowledges Dr. Steinmann's claim “that he has performed an exhaustive search (locating one document in the process)” [Reply at p.3]. However, Erlanger complains, “it is unclear what Relator Steinmann searched in light of Relators' objections,” and “[t]here is no indication that Relator [Julie] Adams has performed any search.” [Id.]. The Court has already found that documents and communications relating to the reasons for Relators' departure from the Mayo Clinic are discoverable [see Doc. 221]. And, contrary to Relators' argument, nothing in the record suggests that Erlanger is seeking these records simply to harass, embarrass, and annoy Relators. On the other hand, Relators have offered a credible and reasonable explanation as to why they do not have any such records. The Court cannot compel Relators to produce what does not exist. Moreover, Erlanger received a number of relevant documents from Mayo Clinic itself. *4 Considering the foregoing, as well as the late timing of Erlanger's motion to compel, the Court concludes the most Erlanger is entitled to with regard to RFP nos. 13 and 19 is a statement from Relators indicating whether any responsive documents are being withheld. See Fed. R. Civ. P. 34(b)(2). It has not shown good cause to require Relators to produce anything further with regard to these RFP. Erlanger's motion to compel [Doc. 226] is therefore GRANTED IN PART AND DENIED IN PART as it pertains to RFP nos. 13 and 19. 3. Attorney's Fees Erlanger also requests attorney's fees pursuant to Federal Rule of Civil Procedure 37(a)(5). The Court has partially granted and partially denied Erlanger's motion to compel and ordered some limited relief to Erlanger. In addition, Relators provided some discovery after the motion to compel was filed, although Relators assert the post-filing discovery was simply part of a rolling production and “not prompted by Erlanger filing this motion.” [Response at p.2]. According to Relators, both sides have been slow in responding to RFP. Moreover, although the motion to compel was technically filed in adequate time to be ripe before the close of discovery, it was filed on the last possible day to meet that deadline, amid a flurry of other discovery-related motions, as discussed above, and in inadequate time for the Court to address the motion prior to the close of discovery. Under the circumstances, and considering the history of discovery in this case, the Court finds an award of attorney's fees would be unjust, and the Court declines to order such an award. See Fed. R. Civ. P. 37(b)(5). IV. CONCLUSION Erlanger's Motion to Compel the Production of Documents and for Attorney's Fees is GRANTED IN PART AND DENIED IN PART as set forth above. Relators SHALL produce any information ordered herein within SEVEN DAYS of the entry of this Order. Erlanger's request for attorney's fees is DENIED. Nothing in this Order alters the deadlines set forth in the Scheduling Order as amended [Doc. 167 & Doc. 168], including the discovery completion deadline, except to the extent additional production is ordered herein. SO ORDERED. Footnotes [1] Doc. 227 and the attachments thereto contain the sealed versions of the brief and exhibits. The redacted version of the brief is filed in the public record at Doc. 230-1. [2] Doc. 242-1 is the sealed version of Relators' response. The redacted version of the response is filed in the public record at Doc. 243. [3] Doc. 260 is the proposed sealed version of Erlanger's reply. The Court denied Erlanger's request to file its reply under seal, which will result in Doc. 260 being deleted from the docket. The Court cites to the internal pages of the reply rather than the Page ID # supplied by the Court's Electronic Case Filing program, to avoid more confusion once Erlanger's reply is refiled. [4] First Amended Complaint