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Eagle Air Med Corp. v. Sentinel Air Medical Alliance

United States District Court, D. Nevada

July 10, 2018

EAGLE AIR MED CORPORATION, et al., Plaintiffs,
v.
SENTINEL AIR MEDICAL ALLIANCE, et al., Defendants.

          ORDER (MOT COMPEL - ECF NO. 1; MOT FILE REDACTED FORM - ECF NO. 8)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE.

         This is a miscellaneous action filed to compel a non-party, AC Global Medical Transports (“AC Global”), to provide further deposition testimony in a case pending in the District of Utah, Case No. 2:16-cv-00176-TC, Eagle Air Med Corp. v. Sentinel Air Medical Alliance and Jeffrey Frazier.

         BACKGROUND

         The case was initiated when a Motion to Compel (ECF No. 1) was filed April 13, 2018, along with a Motion to File the Motion to Compel in Redacted Form (ECF No. 2). Proof of Service (ECF No. 4) was filed May 2, 2018 indicating that a private investigator served non-party AC Global with a conformed copy of the plaintiffs' Motion to File Motion to Compel Further Deposition Testimony from AC Global Medical Transports in Redacted Form; Plaintiffs' Motion to Compel Further Deposition Testimony from AC Global Medical Transports (Redacted Version), Exhibits A-D; and Plaintiff's Motion to Compel Further Deposition Testimony from AC Global Transports (Unredacted Version), Exhibits A-D on Chuck Veta as Chief Flight Nurse of AC Global. The documents were served on AC Global at 8775 Aero Drive, Suite 120, in San Diego, California.

         The motion to compel is filed by plaintiffs in the pending District of Utah action, Eagle Air Medical Corporation (“Eagle Air”) and Valley Med Flight Inc. (“Valley Med”). The motion represents that plaintiffs are in the business of providing air medical transport services. Many of the patients Eagle Air transports have insurers and administrators that engage defendants Sentinel Air Medical Alliance (“Sentinel Air”) and Jeffrey Frazier (“Frazier”) to determine whether the transports Eagle Air provided were medically necessary, and whether the charges billed were reasonable. The motion represents that Sentinel Air and Frazier provided review letters in which they made a number of false and defamatory statements about Eagle Air that form the basis of plaintiffs' defamation and tortious interference claims in the Utah action.

         The motion to compel asserts that Sentinel Air and Frazier rely on “several data points” including a comparison of Eagle Air's charges with what a competing air ambulance provider would have charged for the same transport. However, the review letters do not identify the competing provider by name. Eagle Air seeks discovery from AC Global of the names of the competing providers to determine the truth or falsity of the review letters' claims. Eagle Air attempted to get the names of these competing providers from defendants, but Frazier testified in his deposition in the underlying case that he did not know. He also testified the defendants obtained quotes used in approximately six review letters from AC Global. Eagle Air therefore served AC Global with a subpoena to testify at a deposition scheduled on January 24, 2018, at 9:30 a.m., at the law offices of McDonald Carano in Las Vegas, Nevada. Milan Floribus reportedly appeared as AC Global's Rule 30(b)(6) designee. However, he refused to identify the names of air ambulance providers that AC Global obtained the quotes from that were used by Sentinel Air and Frazier in their review letters.

         The motion is supported by the declaration of attorney Rachel Lassig who states she attempted to resolve this matter in good faith before filing the motion to compel by sending a letter via certified mail and email to AC Global on March 29, 2018, and April 2, 2018, respectively. She also “reached out” to AC Global and Mr. Floribus by telephone on April 4, 2018, requesting the name of the air ambulance providers that Mr. Floribus obtained rates from on behalf of the defendants. However, Mr. Floribus reasserted his objection that the information was irrelevant and plaintiffs were embarking on a “fishing expedition.” On April 5, 2018, Ms. Lassig followed up with an email requesting Mr. Floribus provide contact information for his attorney. However, as of the date the motion was filed, neither AC Global nor Mr. Floribus provided the requested information, or contacted plaintiffs or their counsel.

         Eagle Air offered to designate the information as “Confidential Attorneys Eyes Only” and narrow the scope of the names of air ambulance providers located in Michigan and Wisconsin, but AC Global would still not agree to produce the information.

         The motion is also supported by the attached Exhibits B-D, which consist of excerpts of the deposition of Mr. Floribus, excerpts of the deposition of Jeffrey Frazier, and a form standard protective order for the District of Utah. The form standard protective order does not bear the case caption of the underlying case or contain any indication that it was filed in the case, but counsel for Eagle Air alleges it is binding on the parties in the District of Utah case.

         DISCUSSION

         The court finds the motion is deficient in multiple respects and will therefore deny it. The motion is not supported by a memorandum of points and authorities and cites only the provisions of Rule 26 of the Federal Rules of Civil Procedure[1] as it existed prior to the 2015 amendments to the rule. Eagle Air argues that Rule 26(b) broadly permits a party to discovery “any non-privileged matter that is relevant to any party's claims or defense” or information that “appears reasonably calculated to lead to the discovery of admissible evidence.” However, Rule 26(b)(1) was amended effective December 1, 2015, to address the problem of overbroad, abusive, and expensive discovery. See Advisory Committee Notes to 2015 Amendment. Rule 26(b)(1) now provides:

Parties may obtain discovery regarding any non-privileged matter that is 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. Information within the scope of discovery need not be admissible in evidence to be discoverable.

         Exhibit A is a copy of the subpoena to testify at the deposition, which contains no proof of service or proof that it was issued by this or any other court. The face of the subpoena does not request the production of any documents from AC Global. However, topic 1 of the attached deposition notice requests testimony regarding a subpoena to produce documents and information issued by Eagle Air and Valley Med in this matter that ...


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