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Dorn-Kerri v. South West Cancer Care

August 18, 2008


The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge


Before this Court is Plaintiff Diane Dorn-Kerri's Motion to Compel Defendant South West Cancer Care to supplement its response to her request for production of certain medical billing records [Doc. No. 28]. Defendant opposes the motion [Doc. No. 31]. The Court finds the issues appropriate for a decision on the papers and without oral argument pursuant to Local Rule 7.1(d)(1). For the reasons explained below, the Court DENIES Plaintiff's Motion to Compel.


This action arises from events alleged to have occurred between March 2004 and March 2005. On March 15, 2004, Defendant South West Cancer Care ("Defendant") hired Plaintiff to fill the position of "Insurance Billing Representative," responsible for managing accounts receivable, billing, and collections. (See Letter Complaint, Doc. No. 1, at 4, 7.) Plaintiff alleges that during the approximately one year that she held the position, her supervisors subjected her to verbal racial harassment and accompanying workplace hostility. (Id. at 4.) She also alleges that during her employment, she advised her boss that the company was engaging in unlawful billing practices. (Id.) After receiving an unfavorable performance review in February 2005, and based on the alleged racial harassment, Plaintiff notified her supervisors that she planned to file a complaint with the Equal Employment Opportunity Commission ("EEOC"). On March 25, 2005, Defendant terminated Plaintiff's employment. (Id.) On May 13, 2005, Plaintiff filed a complaint against Defendant with the California Department of Fair Employment and Housing ("DEFH"), in which she claimed that her termination had been the result of racial discrimination and retaliation for having protested unlawful billing practices. (Id. at 4-8.) On May 17, 2006, DEFH found that she lacked probable cause to prove a violation of the applicable statutes, and her case was closed. (Id. at 11-12.) On June 6, 2006, the EEOC notified Plaintiff that the Commissioner had adopted the findings of DEFH, her file was closed, and she was notified of her right to sue. (Id. at 9.) On August 29, 2006, Plaintiff, proceeding pro se, filed her federal complaint.

Despite Plaintiff's unrepresented status, this case has proceeded on a regular litigation schedule since January 23, 2007, when Defendant filed its answer to the complaint [Doc. No. 9]. The Court conducted an Early Neutral Evaluation Conference in March 2007. The case did not settle, the Court scheduled Rule 26 deadlines, and held a Case Management Conference on June 15, 2007, at which time Plaintiff advised the Court that she would proceed pro se. A Scheduling Order regulating discovery and pretrial proceedings issued that same date, and the parties did not contact or otherwise appear before the Court again until May 14, 2008 at the final pretrial Mandatory Settlement Conference. The case did not settle, and the parties began preparing for trial.

At the request of the District Judge presiding over the case at the time, the Court held a second Case Management Conference on June 13, 2008. During the conference, the parties consented to proceed before the undersigned for all purposes, including trial. The Court discussed final pretrial preparations and a pretrial schedule, and inquired whether either party had any final discovery needs. Plaintiff advised the Court that she required a supplemental response to one of her previously propounded document production requests. The specific request to which she alluded during the June 13, 2008 conference, Request No. 7,*fn1 states:

"Full and complete copy of the aging summaries*fn2 (to exclude patient names and personal information by means of blacking information out on summaries) please arranged by procedures performed, dates of service and payer (e.g.) Medical/Medicare and all Third Party Payers contracted with South West Cancer Care for the services provided and billed in the year 2004 and 2005 that were issued to me for review and collections during my period of employment."

Plaintiff's Motion to Compel, Separate Statement Briefing, 3.) Defendant provided a response to the request on July 2, 2007, which states:

"Each aging report/summary is generated only for the purpose of 'working it' and therefore is destroyed/shredded after the accounts have been 'worked on' and/or paid.

All of the aging reports requested herein have been finished and destroyed. This is standard operating procedure for SWCC."

Defendant's Opposition, 2.) This was the only discovery issue raised by Plaintiff at the June 13, 2008 conference.

The Court advised Plaintiff at the close of the conference that she would be permitted to seek a supplemental response to the request, with the aid of an onsite inspection of Defendant's pertinent computer systems. Plaintiff raised no other discovery issues at the conference, and accordingly the Court issued a post-conference order allowing the computer inspection to go forward at Defendant's offices, with Plaintiff present at the inspection. In its order, the Court clarified that once the parties complete the site inspection, discovery would be closed. (See June 13, 2008 Order of the Court, Doc. No. 23, para. 1.) The Court permitted Plaintiff to file the instant motion only in so far as it seeks an order compelling a further response to Request No. 7,*fn3 the only discovery issue remaining before the


Plaintiff's Motion to Compel and ...

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