Zipperer v. Premera Blue Cross Blue Shield of Alaska, 3:15-cv-00208

Background

Plaintiffs John D. Zipperer, Jr., M.D., and his LLC (ZMG) objected to multiple interrogatories and document requests served by Premera, asserting relevancy and proportionality objections rather than providing substantive answers for several requests.
Premera also attempted to notice Dr. Zipperer’s deposition; ZMG objected to taking the deposition before resolution of ZMG’s summary judgment motion. The court later denied ZMG’s summary judgment motion.
Premera moved to compel under Fed. R. Civ. P. 37, citing Rule 37(d) and seeking sanctions and compelled responses; ZMG opposed and argued Rule 37(d) did not apply.
The court found Premera’s reliance on Rule 37(d) misplaced because ZMG did not wholly fail to respond to written discovery (objections were made) and Premera’s deposition notice was deficient (no time stated) so Rule 37(d) sanctions were inappropriate.
The court construed the motion under Rule 37(a) and evaluated specific interrogatories and requests for production: it ordered ZMG to answer certain interrogatories and produce documents responsive to specific RFPs, denied compel as to others (including voluminous medical records due to proportionality), and denied as moot Premera’s request to compel a deposition now that summary judgment was decided.
Deadline: ZMG must serve answers to Interrogatories 2 and 13–15 and produce responsive documents to RFPs 1 and 13–14 within 14 days of the order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of Rule 37(d) to written discovery objections	ZMG: objections are permissible responses; not a total failure to respond	Premera: ZMG refused to respond to most requests, so 37(d) sanctions appropriate	Court: 37(d) inapplicable; objections = responses; treat under Rule 37(a)
Applicability of Rule 37(d) to deposition	ZMG: deposition premature pending summary judgment ruling; did not willfully fail to attend	Premera: sought sanctions for failure to appear	Court: Premera’s notice was defective (no time) and deponent did not literally fail to appear; 37(d) inapplicable; deposition issue now moot after summary judgment denial
Relevance/proportionality of discovery on alleged misconduct, audits, suspensions, Medicare/Medicaid exclusions (Interrogs. 2,13–15; RFPs 1,13–14)	ZMG: disputes relevance to core claims (prompt pay, HIPAA); resists production	Premera: seeks info to support defenses of unclean hands and bad faith	Court: ZMG failed to justify withholding; compelled responses and production for these requests
Request for voluminous medical records showing medical necessity (RFP 16)	ZMG: producing entire medical records is unduly burdensome and disproportionate	Premera: seeks proof medical claims were medically necessary	Court: production disproportionate given burden; compel denied as to RFP 16
Communications with third-party billers/ClaimCare (Interrogs. 5–6; RFP 4)	ZMG: limited relevance; previously objected	Premera: relevant to preparing defense	Court: requests may have been relevant earlier but, after court’s summary judgment ruling, are no longer sufficiently relevant; motion to compel denied

Key Cases Cited

Estrada v. Rowland, 69 F.3d 405 (9th Cir.) (discussing scope of discovery relevance)
R.W. Int’l Corp. v. Welch Foods, Inc., 937 F.2d 11 (1st Cir.) (addressing standards for discovery relevance)
DIRECTV, Inc. v. Trone, 209 F.R.D. 455 (C.D. Cal.) (party resisting discovery bears burden to justify objections)
Hallett v. Morgan, 296 F.3d 732 (9th Cir.) (district court has broad discretion over discovery)