In Babakhanov v. Ahuja, No. 23-cv-2785 (LJL) (S.D.N.Y. Oct. 23, 2023), the defendants’ motion to compel native form production from the plaintiffs was denied by New York District Judge Lewis J. Liman, who found that the documents in PDF form contained all of the relevant information and that requiring the defendants to reproduce the records in native format would impose an undue burden on the plaintiffs.

Case Background

This case involved claims of systemic waste, fraud and abuse in the operations of a medical facility (Perry Avenue Family Medical, Inc. – PAMF), which was sold from the defendants to the plaintiffs. The billing practices of PAFM were the subject of a review by the New York State Office of the Medicaid Inspector General (“OMIG”). The plaintiffs provided the pertinent patient files from the electronic medical records (“EMR”) of PAMF in PDF form. The defendants sought an inspection of the electronic medical records in their native form and filed a motion to compel native form production of those records.

Defendants argued that, in addition to the PDF records, they needed access to the EMR in native form to (1) see the templates, functions, dropdowns and buttons available when completing a chart; (2) identify who prepared, reviewed, viewed or documented entries in a particular chart; (3) confirm that there are no other records or documents stored on the EMR system which relate to the claims at issue; (4) examine “the full medication records and history maintained by the practice for the entire universe of patients at issue under the Complaint,” as well as the OMIG audit and a self-disclosure that was made to the New York State Office of the Inspector General (“OIG”); and (5) obtain access to all medical records for that universe of patients.

Plaintiffs countered that Defendants did not request that the ESI be produced in native format and that they produced the ESI in a reasonably usable form. They argued that they produced the ESI in the form that such information is produced in the ordinary course of business to the insurance carriers, OMIG, and OIG. They respond to Defendants that: (1) templates are modified case by case, are incorporated into the EMR, and are irrelevant to the question of the information recorded in the records; (2) the electronic health records produce indicate the provider who treated the patient and signed the electronic health record; (3) in addition to the electronic health records, Plaintiffs produced any other records, attachments, or documents stored within the EMR for the subject patients; (4) the records produced included the full medication records and history; and (5) Plaintiffs have produced to Defendants the files provided to OIG in the format those files were provided to OIG.

Judge’s Ruling

In ruling on the dispute, Judge Liman stated: “Plaintiffs have demonstrated that the requested information has been produced in an ordinary form such information is kept in business and in a reasonably usable form. They also have demonstrated that the documents in PDF form contain all of the information relevant to the litigation. Defendants have not articulated any non-speculative reason to believe that the failure to produce the EMR in native form will make it any more difficult or burdensome for Defendants efficiently to defend against the claims in the complaint. The only information Defendants identify that is not in the PDF documents is the identity of the person who input the information into the EMR, but the PDF documents indicate who signed the electronic health record.”

Judge Liman also stated, referencing FRCP Rule 34(b)(2)(E)(iii): “The documents have already been produced in PDF form. Further, ‘[a] party need not produce the same electronically stored information in more than one form.’… Defendants knew the form in which PAMF kept records. If they wanted the records in native format, they should have asked for such records up front… The Court is convinced that requiring Defendants to reproduce the EMR in native format would impose an undue burden on Plaintiffs far exceeding any value or potential relevance records in that format would have for this litigation.” As a result, the defendants’ motion to compel native form production from the plaintiffs was denied by Judge Liman.

So, what do you think? Did the defendants “blow it” in their original discovery request? Please share any comments you might have or if you’d like to know more about a particular topic.

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