eDiscovery Daily Blog
Court Orders Defendant to Supplement Data Used for Statistical Sampling: eDiscovery Case Law
In United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, (D. Nev. Sep. 1, 2015), Nevada Magistrate Judge Valerie P. Cooke agreed with the relator’s contention that the data used to finalize the relator’s proposed statistical sampling plan was incomplete due to how data was identified within one of two billing systems used by the defendant. As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE” the additional data (and, yes, she used all caps).
In this qui tam action under the False Claims Act (for which we covered a previous ruling here), the court had already held, in November 2014, that statistical sampling of claims was appropriate to save costs by enabling the parties to avoid examining every potential claim. In the attempt for the relator (the person bringing the qui tam action on behalf of the United States) to finalize her proposed sampling plan, a dispute developed over the meaning of a zero-day stay at the defendant’s facilities.
The dispute arose because one of the defendant’s two billing systems used the patient’s registration time instead of the time the patient actually begins receiving inpatient medical care as the admit time – as a result, claims were falling out of the zero day stay population, which was defined as less than 24 hours from patient admit time to discharge time. When reviewing the initial data for sampling, the relator was surprised that there were fewer claims than she expected – which lowered her chance of recovery in the case and ultimately later learned that this was due to how the billing system determined the admit time. So she requested additional data to be produced. The defendant objected, arguing that the relator sought “at this late hour” to acquire more data and alter the definition of a zero-day stay to include said data.
Noting that “[t]he question of relevancy should be construed liberally and with common sense and discovery should be allowed unless the information sought has no conceivable bearing on the case”, Judge Cooke stated:
“The time-adjusted data is discoverable, for it is indisputably relevant. Evidence is relevant when ‘it has any tendency to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of consequence in determining the action.’…Relator has adequately explained the basis for her belief that the time-adjusted claims properly fall within the data universe for zero-day stays, based upon the guidelines for an inpatient stay and the problem with the Siemens’ ‘admit time.’”
Judge Cooke also noted that the defendant “retain[s] the right, and will have the opportunity, to question or attack the reliability of” the expert and the statistical sampling process.
Judge Cooke also considered whether her November order allowing for statistical sampling permitted the inclusion of the time-adjusted data in the sampling plan. Based on the definition of a zero-day stay as “a hospital stay of less than 24 hours” (from time of admission), she ruled that “the November order permits inclusion of the time-adjusted claims.” As a result, she ordered the defendant to “EXPEDITIOUSLY PRODUCE data consistent with relator’s proposal to include the time-adjusted claims” and for the parties to meet and confer to determine the plan for producing the data and finalizing the statistical sampling plan.
So, what do you think? Was inclusion of the additional data appropriate? Please share any comments you might have or if you’d like to know more about a particular topic.
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