THE DISCOVERY HOUSE LLC, et al, Plaintiffs, v. CIGNA CORPORATION, et al., Defendants Case No. 2:22-cv-01418-DOC-JDE United States District Court, C.D. California, Southern Division Filed February 18, 2025 Larson, Stephen G., Special Master SPECIAL MASTER'S REPORT & RECOMMENDATION NO. 1 RE: PLAINTIFFS' MOTION TO COMPEL CIGNA'S FURTHER PRODUCTION OF DOCUMENTS *1 Hon. Stephen G. Larson (Ret.) slarson@larsonllp.com LARSON LLP 555 South Flower Street, 30th Floor Los Angeles, California 90071 Telephone:(213) 436-4888 Facsimile: (213) 623-2000 Special Master Plaintiffs move to compel Cigna to produce documents in response to Plaintiffs' Request for Production of Documents (“RFPs”) Nos. 52, 53, 72-89, 99-102, 106-114, and 118-207.[1][2] During the February 13, 2025, hearing before the Special Master on Plaintiffs' motion, Plaintiffs withdrew their request to compel Cigna's responses to RFP Nos. 122, 123, 125, 127, 128, 129, 130, 131, 132, 133, 134, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 170, 171, 174, 177, 180, 182, 184, 188, 190, 202, 203. Accordingly, 85 RFPs are now at issue. Plaintiffs contend that Cigna (i) “refuses to conduct an independent search or produce anything beyond what separate counsel previously produced in other lawsuits,”[3] and (ii) relies on “obstructionist, boilerplate objections” instead of producing responsive documents. See Plaintiff's Notice of Motion and Motion to Compel Cigna's Further Production of Documents (“Motion to Compel”), at 1 (attached hereto as Exhibit A). Cigna counters that it is neither feasible nor proportional to the needs of the case (given the relatively small amount in controversy) for it to conduct a new, independent search for documents responsive to Plaintiffs' “phase 2” requests for production, particularly because Plaintiffs waited until the “eleventh hour” to serve the RFPs, i.e., just months before the discovery cutoff. See Cigna's Opposition to Plaintiffs' Motion to Compel Production of Documents (“Opposition”), at 1-2 (attached hereto as Exhibit B). Cigna further asserts that it has complied, in good faith, with its discovery obligations, and Plaintiffs' request for “more” will not yield admissible evidence. See Opposition, at 6-7. In reply, Plaintiffs emphasize that Cigna has failed to evidence the “undue burden” it claims Plaintiffs' RFPs cause it. See Plaintiffs' Reply in Support of Their Motion to Compel (“Reply”), at 1-2 (attached hereto as Exhibit C). Additionally, Plaintiffs note that because discovery was stayed by the parties' stipulation for nearly two years, and Cigna did not file its answer or counterclaims until September 2024, Cigna's contention that Plaintiffs' RFPs are untimely is without merit. Accordingly, Plaintiffs' contend that Cigna must conduct a new, independent search for documents responsive to its RFPs and cease withholding documents on the basis of its meritless objections. *2 The Special Master's recommendation is set forth below. I. PROCEDURAL BACKGROUND On January 24, 2025, Plaintiffs submitted their Motion to Compel to the Special Master. See Exhibit A. On January 30, 2025, Cigna submitted its Opposition to the Motion to Compel to the Special Master. See Exhibit B. On January 31, 2025, the Special Master held a status conference with the parties. The parties' Joint Status Report is attached hereto as Exhibit D. On February 2, 2025, Plaintiffs submitted their Reply in Support of their Motion to Compel to the Special Master. See Exhibit C. The Special Master held oral argument on the Motion to Compel on February 13, 2025. On February 14, 2025, Cigna submitted a supplemental letter brief in response to arguments Plaintiffs made about the scope of discovery during the February 13, 2025, hearing. The Special Master did not request this supplemental letter brief. The supplemental letter brief (“Cigna's Supp. Ltr.”) is attached hereto as Exhibit E. On February 17, 2025, Plaintiffs submitted a supplemental letter brief in response to Cigna's supplemental letter brief. Plaintiffs supplemental letter brief (“Plaintiffs' Supp. Ltr.”) is attached hereto as Exhibit F. This Report and Recommendation follows the review of all the parties' papers and argument of counsel. II. LEGAL STANDARD Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.] Information within this scope of discovery need not be admissible ... to be discoverable.” See FED. R. CIV. PROC. 26(b)(1). Moreover, relevance “has been construed broadly [by the Supreme Court] to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Furthermore, “discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues. Nor is discovery limited to the merits of a case, for a variety of fact-oriented issues may arise during litigation that are not related to the merits.” Id. III. SPECIAL MASTER'S RECOMMENDATION 1. Plaintiffs' Discovery Requests Are Timely The fact discovery cutoff in this case was February 25, 2025. Plaintiffs served the at-issue RFPs on Cigna on November 11, 2024, or December 20, 2024, (Opposition, at 2)—more than two months before the close of fact discovery—as Cigna concedes. Accordingly, Plaintiffs RFPs are timely pursuant to the Federal Rules of Civil Procedure and this Court's original Scheduling Order. Cigna's contention that the RFPs should be construed as “untimely” because they were served at the “eleventh hour” is not persuasive. See Opposition, at 2-3. As highlighted by Plaintiffs in their Reply, “[d]iscovery was effectively stayed pending resolution of TML in late fall 2024.” See Reply, at 2 (citing ECF Nos. 69, 70, 72, 74). And, in this dispute, the pleadings were not settled until September 2024. See Reply, at 2 (“Cigna did not file its answer or counterclaims until September 2024.”). Plaintiffs served their RFPs in the few months that followed. Accordingly, the Special Master does not find that Plaintiffs' RFPs are untimely. *3 Additionally, the Special Master disagrees with Cigna's contention that it cannot “feasibly” respond to Plaintiffs' RFPs prior to the discovery cutoff. As the parties represented to the Special Master during the January 31, 2025, status conference, the parties stipulated to continue the discovery cutoff by more than seven (7) weeks.[4] This agreement was reached with knowledge of the pending discovery requests, and the date selected should have considered Cigna's need (and the other parties' need) to respond to outstanding discovery requests. Additionally, given Cigna's experience in TML and RJ in running search terms and collecting, reviewing, and producing documents responsive to requests for production that are similar to the RFPs at issue, Cigna should be able to efficiently respond to the RFPs. And, as noted by Plaintiffs, despite Cigna's reference to the length of time it took for it to respond to requests for production in RJ, RJ was a putative class action that required Cigna to produce data on hundreds of thousands of claims for class discovery, whereas just over 9,000 claims are at issue in this dispute. See RJ, ECF No. 99. This case is far more circumscribed than RJ. In short, Plaintiffs' RFPs are timely, and Cigna has the ability, resources, and experience to timely respond to the RFPs within the continued fact discovery cutoff date. See ECF No. 158 (detailing the parties' stipulated schedule that continues the fact discovery cutoff date from February 25, 2025, to mid-April). 2. Plaintiffs' Discovery Requests Are Neither Unduly Burdensome nor Disproportional to the Needs of the Case a. Cigna Needs to Perform a New, Independent Search for Documents in This Case The Special Master disagrees with Cigna's contention that “Cigna's agreement to re-produce nearly all requested documents” from the TML and RJ cases “regarding the ‘same allegations’ should satisfy Cigna's obligations regarding its Phase 2 discovery in this case.” See Opposition, at 4. There are two problems with Cigna's position. First, as Plaintiffs note, “Plaintiffs seek additional information from Cigna covering a different and longer period of time.” See Motion to Compel, at 3; see also Reply, at 1 (stating that this dispute covers a different “temporal scope”). Thus, Cigna reproducing documents from TML and RJ will not result in a complete production of documents because the at-issue RFPs have a broader temporal scope. During the February 13, 2025, hearing, Cigna asserted that Plaintiffs are not entitled to discovery beyond the temporal scope of the Complaint (that is, from 2018 to 2020 for the 175 identified patients); accordingly, Plaintiffs RFPs seeking information through 2023 for the additional, “unalleged 58 patients” should be disallowed, according to Cigna. See also Cigna's Supp. Ltr., at 2 (Cigna arguing that information beyond the temporal scope of the Complaint is not discoverable). Supreme Court precedent, however, contradicts Cigna's position. See Oppenheimer Fund, 437 U.S. at 351 (“discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify the issues”). Moreover, numerous district courts within the Ninth Circuit have followed Oppenheimer's guidance. See Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992) (“To limit an examination to matters relevant to only the precise issue presented by their pleadings, would not only be contrary to the express purpose of Rule 26...., but also might result in a complete failure to afford plaintiff an adequate opportunity to obtain information that would be useful at the trial.”) (quoting Stevenson v. Melady, 1 F.R.D. 329, 3030 (C.D.N.Y 1940); see Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (“Because discovery is designed to define and clarify the issues, it is not limited to only those specific issues raised in the pleadings. [Citation]. Rather, the question of relevancy should be construed ‘liberally and with common sense’ ....); Scherer v. FCA US, LLC, 538 F.Supp.3d 1002, 1005 (S.D. Cal. 2021) (“[T]he scope of permissible discovery is not based solely on whether a transaction is expressly mentioned in the complaint. The proper inquiry instead is whether the information sought is relevant to the parties' claims and defenses and proportional to the needs of the case.”). Accordingly, the Special Master finds that Plaintiffs may discover information related to the 58 additional patients with “denied” claims submitted between May 2021 and September 2023. See Cigna's Supp. Ltr., at 2. *4 The Special Master is not suggesting that information related to the “unalleged 58 patients” will be admissible at trial, or whether Plaintiffs are entitled to damages for the “unalleged 58 patients,” particularly given the scope of Plaintiffs' operative complaint. However, the Special Master does find that information related to the 58 patients is relevant and discoverable because the claims “were denied ... based on Plaintiffs' [alleged] fraudulent misconduct.” See Cigna's Supp. Ltr., at 2. Thus, by Cigna's own description, information related to the “unalleged 58 patients” would be relevant to Cigna's counterclaims and Plaintiffs' defense to Cigna's counterclaims. See ECF No. 124, at 27 (Cigna alleges in its counterclaim that Plaintiffs engaged in rampant fraud). And given that Plaintiffs were made aware of the additional claims through 2023 from Cigna's discovery production, Plaintiffs should be allowed to explore those claims. See Plaintiffs' Supp. Ltr. (“Cigna's own claims data includes dates of service from January 8, 2018, to September 18, 2023, and damages right at $17.5 million.”) Finally, despite Cigna claiming that it would be “improper and highlight prejudicial” (see Plaintiffs' Supp. Ltr., at 1) to Cigna for Plaintiffs to discover this information, Cigna does not elaborate further. Cigna has every right to oppose a motion to amend the operative complaint (should Plaintiffs decide to file one), and Cigna has the right to exclude any evidence or opinions related to the “unalleged 58 patients,” if Cigna does not believe the information is admissible at trial. Moreover, Cigna has not detailed, in any way, the undue burden (if any) related to producing information from the “unalleged 58 patients.” Second, there has been no representation that (i) Cigna's productions in TML and RJ were complete and, therefore, entirely responsive to the RFPs, or (ii) that the RFPs at issue are identical to the requests for production that Plaintiffs' counsel served in TML or RJ. Relatedly, Plaintiffs identified material variances between the TML and RJ productions, suggesting some or all of the following: (i) the search terms applied matter, significantly; (ii) the TML or RJ productions were not complete, and (iii) a new, independent ESI search in this case will likely lead to different results. See Motion to Compel, at 3 (setting forth examples of material differences between the TML and RJ productions). Additionally, Cigna's current counsel was not responsible for the collection and review of the documents in TML and RJ. See Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 614-615 (C.D. Cal. 2013) (“[T]he discovery process relies upon the good faith and professional obligations of counsel to reasonably and diligently search for and produce responsive documents.”) (citation omitted). It is entirely reasonable that the search terms and temporal limitations applied in this case—through the collaboration of client and counsel—will yield different results, as it apparently did in TML and RJ. See Motion to Compel, at 2. Cigna has an obligation—in this case—to represent that it conducted a good faith, diligent search for responsive documents and that said documents have been produced or will be produced. That representation can only be made if an independent search is run, given that this case presents unique claims covering a different period. See A. Farber and Partners, Inc. v. Garber, 234 F.R.D. 186, 189 (C.D. Cal. 2006) (“[A] party has an obligation to conduct a reasonable inquiry into the factual basis of his responses to discovery, [Citation], and, based on that inquiry, ‘[a] party responding to a Rule 34 production request ... ‘is under an affirmative duty to seek that information reasonably available to [it] from [its] employees, agents, or others subject to [its] control.’ ”) (citation omitted). In short, Cigna cannot reproduce the documents from TML and RJ and represent that it has complied with its discovery obligations. Instead, Cigna must conduct a new, independent search for responsive documents using search terms and temporal limitations necessitated by Plaintiffs' RFPs in this case. See O.H. v. Secret Harbor, No. 2:23-cv-60, 2024 WL 310281, at *1 (W.D. Wash. Jan. 26, 2024) (holding that plaintiff cannot rely on its state court production because “each lawsuit is an entire universe unto itself ....”). To that end, Plaintiffs and Cigna shall meet and confer over the next (5) days to finalize a search term list that Cigna shall apply against the universe of potentially response documents. The Special Master will be available to assist the parties in this effort and to ensure that the finalized search terms list is not overly broad, that is, that the number of document “hits” based on the search terms applied is reasonable. b. Cigna's Burden Is Not Substantial *5 As a threshold matter, Cigna did not submit a declaration or affidavit to substantiate the undue burden it claims it will experience in responding to Plaintiffs' RFPs. See Thomas v. Cate, 715 F.Supp.2d 1012, 1032-33 (E.D. Cal. 2010) (party must submit a declaration, affidavit, or other reliable evidence to substantiate the nature of any alleged burden). And Cigna has not arrived at its belief that conducting an independent ESI search, review, and production is unduly burdensome after a good faith effort to do so in this case. Indeed, during the February 13, 2025, hearing, Cigna confirmed that it has made no effort to apply search terms to the potentially responsive universe of client documents for a majority of the RFPs at issue. Instead, Cigna cites to its experience from a similar, but much larger class action (RJ), and assumes that its review and collection would be similarly burdensome here. See Opposition, at 2-3. That is not sufficient to substantiate “burden.” It is not unduly burdensome for Cigna to (i) upload its prior productions and documents collected in this case to a modern document review database, (ii) run search terms against the universe of its clients documents (i.e., past collections and documents collected in this case), and (iii) produce non-privileged, responsive documents to Plaintiffs RFPs, to the extent the documents have not already been produced. This is a rather standard procedure. And given the alleged similarity between the issues in this suit and TML and RJ (see Opposition, at 4) there will likely be a number of “duplicate hits,” which any modern document review platform can identify in minutes and exclude from Cigna's review here. Thus, Cigna should be able to complete its document review and production prior to the newly-selected fact discovery cutoff date. See ECF No. 158, at 2. During the evidentiary hearing, the Special Master provided Cigna further opportunity to substantiate the burden it claims obviates its need to respond to Plaintiffs RFPs. Cigna failed to provide any specific evidence of burden; instead, it pointed generally to the number and breadth of the RFPs Plaintiffs served. Cigna's “30,000 foot” response, in the context of a case dealing with important health issues and conflicts of interest within the health industry (see infra), is not sufficient to evidence undue burden. Accordingly, the Special Master does not find Cigna's burden to be so substantial that it should be relieved from its obligation to respond to Plaintiffs' RFPs. See Scherer v. FCA US, LLC, 538 F.Supp.3d 1002, 1106 (S.D. Cal. 2021) (“[T]he party opposing discovery bears the burden of showing that the discovery should not be allowed, and of clarifying, explaining, and supporting its objections with competent evidence.”) (citation omitted). c. The Requested Discovery Is Proportional to the Needs of the Case “Determining proportionality requires the court to ‘use all the information provided by the parties’ to reach a ‘case-specific determination of the appropriate scope of discovery.’ ” See Scherer, 538 F.Supp.3d at 1006 (citation omitted). Plaintiffs “seek 18+ million before interest, penalties, and fees on more than 9,047 SUD treatment claims rendered to more than 240 Cigna insureds.” See Motion to Compel, at 7; see also Reply, at 3, n.3 (“Plaintiff's supplemental disclosures state damages of at least $17.5 million on claims from 2018-2023).[5] While not comparable to the damages sought in TML or RJ, the damages alleged are significant. And, as discussed above, after Cigna reproduces its TML and RJ productions (which it has committed to do), the universe of documents to review that are potentially responsive to the RFPs in this matter materially shrinks, making Plaintiffs' requests more proportional to the needs of this case. *6 Moreover, Judge Carter has noted that “this case concerns health insurance and healthcare providers, matters of widescale public concern,” where the public has a “strong interest” in seeing that justice is done. This sentiment has been echoed by reputable news sources who investigated health care providers' use of MultiPlan for cost containment. See Motion to Compel, at 5, n. 3. Plaintiffs' case (as well as Defendants' counterclaims) is designed to unearth any malfeasance in this area of “public concern,” underscoring the propriety of Plaintiffs' RFPs. See ECF No. 463, at 7-8. Pursuant to the above, the Special Master does not find that Cigna has adequately demonstrated that the RFPs are disproportional to the needs of the case. See RG Abrams Ins. v. Law Offices of C.R. Abrams, No. 2:21-cv-00194-FLA-MAAx, 2021 WL 10312432, at * 10 (C.D. Cal. Nov. 5, 2021) (“With respect to Counter-Claimants' proportionality concerns, the Court notes other than uttering the word ‘proportional’ and pointing to Rule 26(b) [ ], Counter-Claimants fail to meet their burden of specifying how the discovery sought through the Requests at Issue is disproportional to the needs of the case.”). 3. Based on the Above Findings, Cigna's Objections Are (Mostly) Without Merit It is well-settled that “general or boilerplate objections such as ‘overly burdensome and harassing’ ” or “overbroad” are improper, “especially when a party fails to submit any evidentiary declarations supporting such objections.” See A. Farber and Partners, Inc., 234 F.R.D. at 188, citing Paulsen v. Case Corp., 168 F.R.D. 285, 289 (C.D. Cal. 1996); see also McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.1990) (objections that document requests were overly broad, burdensome, oppressive, and irrelevant were insufficient to meet objecting party's burden of explaining why discovery requests were objectionable); Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir.1985) (conclusory recitations of expense and burdensomeness are not sufficiently specific to demonstrate why requested discovery is objectionable). While it is true that Cigna relied on boilerplate objections in its response to Plaintiffs' RFPs, the Special Master does not find that the objections “have been lodged for an improper purpose.” The arguments Cigna included in its Opposition demonstrate that Cigna opposes Plaintiffs RFPs on the grounds that the RFPs are overbroad, unduly burdensome, and disproportionate to the needs of the case. Cigna's arguments in opposition parallel many of Cigna's objections. However, Cigna has failed to evidence its objections with a declaration or affidavit in support (or other competent, persuasive evidence), and Plaintiffs have set forth persuasive arguments as to why the requested discovery is appropriate, relevant, and proportional to the needs of this case. Thus, to the extent Cigna is relying on its boilerplate objections to withhold documents responsive to the RFPs, that is improper. In responding to Plaintiffs' RFPs, Cigna shall amend its responses to only include objections on which Cigna is relying to withhold documents (if any). For example, the Special Master notes that with respect to RFP Nos. 52 and 53, objecting to these requests on the basis that Cigna has already agreed to designate a 30(b)(6) witness who will be producing documents responsive to RFP Nos. 52 and 53 may be appropriate. See Motion to Compel Hearing Tr. (Feb. 13, 2025). Thus, said objection is not “boilerplate.” Additionally, to the extent Cigna is withholding “privileged” documents (i.e., documents related to DOL investigations), such an objection may be proper. However, Cigna's privilege log, which the Special Master has not seen but which Cigna states it has produced, must be sufficiently detailed to allow Plaintiffs to analyze Cigna's assertion of privilege. See RG Abrams Ins. v. Law Offices of C.R. Abrams, 342 F.R.D. 461, 527 (C.D. Cal. 2022) (privilege log must provide the “information necessary for Plaintiffs to evaluate the claimed privilege,” and further noting that unreasonable delay [i.e., 5-months] in producing a privilege log may waive the privilege). Following the above-mentioned recommendations will limit and narrow and further discovery disputes. IV. CONCLUSION *7 The Special Master GRANTS Plaintiffs' Motion to Compel, as set forth above. Footnotes [1] “Plaintiffs” refers to Plaintiffs and Counterclaim-Defendants The Discovery House, LLC; Discovery Transitions Outpatient, Inc.; DHP Heights, LLC d/b/a/ Circle of Hope; MT Golden Corporation, d/b/a/ Adjustments Family Services; and MT Process LLC, d/b/a Divine Detox. [2] “Cigna” refers to Defendants and Counterclaim-Plaintiffs Cigna Corporation; Cigna Health and Life Insurance Company; Connecticut General Life Insurance Company; Cigna Behavioral Health, Inc.; Cigna Behavioral Health of California, Inc.; and Cigna Health Management, Inc. [3] The “other lawsuits” are TML Recovery, LLC et al. v. Cigna Corporation et al., Case No. 8:20-cv-00269-DOC-JDE (C.D. Cal.) (“TML”), and R.J., et al. v. Cigna Behavioral Health, Inc., et al., Case No. 5:20-cv-02255-EJD (N.D. Cal.) (“RJ”). [4] The parties further represented that the continuance of the fact discovery cutoff would not impact any other scheduled dates in this case. See ECF 157-1, at 2; ECF 158, at 2. [5] The Special Master understands that Cigna's position is that Plaintiffs' claimed damages in their operative complaint ($8.5 million) is the amount at issue. See Cigna's Supp. Ltr., at 1. The Special Master's recommendation would not change, even if $8.5 million was the “damages ceiling.”