Stenson v. Radiology Limited PLC

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
United States of America, ex rel. Eric James
Stenson,
Plaintiff-Relator,
v.
Radiology Ltd, LLC,
Defendant.
No. CV-19-00306-TUC-JGZ
ORDER
Pending before the Court is Plaintiff-Relator’s Motion to Compel Discovery. (Doc.
101.) The Motion is fully briefed. (See Docs. 107, 110.)1 For the following reasons, the
Court will grant Relator’s Motion to Compel.
I. Background
A. Underlying Litigation
On June 7, 2019, Plaintiff-Relator Eric James Stenson (“Relator”) filed this action
under seal pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. § 3729, et
seq. (“FCA”). (Doc. 1.)2 The United States declined to intervene, reserving its right to
intervene at a later date for good cause. (See Doc. 19.) On August 24, 2021, the Court
1 The Court finds that oral argument would not aid its decision on this matter. See LRCiv
7.2(f); Fed. R. Civ. P. 78(b).
2 The qui tam provisions allow private individuals, or relators, to bring an FCA “action
‘for the person and for the United States Government’ against an alleged false claimant,
‘in the name of the Government.’” Vt. Agency of Nat. Res. v. United States ex rel. Stevens,
529 U.S. 765, 769–70 (2000) (quoting 31 U.S.C. § 3730(b)(1)). If the United States
declines to intervene, the relator retains the exclusive right to conduct the action and can
receive a share of any proceeds from the action. Id. (citing 31 U.S.C. §§ 3730(b)–(d)).
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unsealed the action. (Doc. 20.) In his First Amended Complaint (“FAC”), Relator asserted
five FCA claims all arising from Defendant’s alleged unlawful use of “non-diagnostic”
computer monitors to interpret radiology images. (See Doc. 25.) Relator withdrew one
claim, and the Court granted Defendant’s motion to dismiss the remaining claims,
concluding Relator failed to sufficiently plead two of the four elements necessary to prove
an FCA claim: falsity and materiality. (See Doc. 38 at 15; Doc. 43.)3 The Court denied
leave to amend, finding Relator’s “action turns on the incorrect legal conclusion that
radiologists must use a particular type of monitor to read general radiological images,” and
thus, amendment would be futile. (Doc. 43 at 12.)
On May 20, 2024, the Ninth Circuit Court of Appeals reversed the dismissal in part
and remanded for further proceedings. The court held that Relator had sufficiently pleaded
the elements of falsity and materiality, but only as to Relator’s claim that Defendant
violated the general Medicare statute’s requirement that claimed services be reasonable
and necessary. United States ex rel. Stenson v. Radiology Ltd., LLC, No. 22-16571, 2024
WL 1826427, at *2–3 (9th Cir. Apr. 26, 2024).4 The court instructed this Court to “grant
Stenson leave to amend the FAC to the extent that he wishes to proceed on grounds other
than an FDA-approval theory.” Id. at *5.
On June 28, 2024, Relator filed his Second Amended Complaint (“SAC”). (Doc.
53.) The SAC asserts the single FCA claim recognized by the court of appeals—that
Defendant knowingly presented, or caused to be presented, false claims for medically
unreasonable or unnecessary services under 31 U.S.C. § 3729(a)(1)(A). (Id. at 19–21.)
Defendant moved to dismiss the SAC because it “does not plead plausible facts that
Radiology Ltd. acted with scienter, nor does it allege with particularity the submission of
false claims.” (Doc. 56-1 at 6.) On January 14, 2025, the Court denied Defendant’s second
motion to dismiss. (Doc. 63.) Defendant answered the SAC, and the Court issued a
Scheduling Order which set July 24, 2026 as the deadline for the completion of all
3 Record citations refer to the page numbers generated by the Court’s CM/ECF filing
system.
4 The Ninth Circuit’s memorandum opinion is also found on the docket at (Doc. 50-1).
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discovery. (Docs. 64, 69, 70.) On March 14, 2025, Defendant filed a motion for judgment
on the pleadings on constitutional grounds, which the Court denied. (Docs. 71, 90.)
Thereafter, the parties exchanged initial disclosures, and discovery commenced. (See Docs.
93, 94.)
B. Discovery Dispute
In the pending discovery dispute, Relator challenges Defendant’s responses to
Relator’s written discovery requests. On August 25, 2025, Relator served Defendant with
his First Set of Requests for Production and First Set of Non-Uniform Interrogatories. (Doc.
103 ¶ 3.) On October 10, 2025, Relator served his Second Set of Requests for Production
and Second Set of Non-Uniform Interrogatories. (Id. ¶ 4.) On October 25, 2025, Defendant
served initial Responses and Objections to Relator’s First Set of Requests for Production
and First Set of Non-Uniform Interrogatories. (Id. ¶ 5; see Doc. 103-1 at 3–87.) Defendant
raised several general objections applicable to all of Relator’s Requests for Production
(“RFPs”) and Interrogatories, including that the discovery requests are overbroad,
disproportionate, unduly burdensome, and irrelevant, (Doc. 103-1 at 6–8, 52–54),5 and
various objections to each individual RFP and Interrogatory. Defendant also responded it
would “agree to meet-and-confer with Relator to discuss the scope of th[e] [RFPs and
Interrogatories] and a reasonable approach to collecting and producing relevant, responsive
documents to the extent any exist.” (See, e.g., Doc. 103-1 at 11, 59.)
On November 12, 2025, Relator sent defense counsel a letter identifying
deficiencies in Defendant’s responses. (Id. at 96–104.) The parties conferred and resolved
two of Defendant’s objections regarding temporal scope and discovery related to
mammography readings. (Doc. 102 at 5; Doc. 103 ¶¶ 10–11; Doc. 103-1 at 106–07.) In a
December 19, 2025 letter, Defendant maintained its other objections, stating “Relator’s
requests broadly seek discovery that are unrelated to Relator’s alleged theory of liability,”
attached a declaration of an official at the Centers for Medicare and Medicaid Services
5 Defendant also asserts blanket objections to the extent the discovery requests seek
documents or information in the possession of other entities, confidential, proprietary, or
privileged information, and information not kept in the ordinary course of business. (Doc.
103-1 at 6–8, 52–54.)
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(“CMS”), and indicated it was finalizing supplemental responses to Relator’s discovery
requests. (Doc. 103-1 at 107–08; see also id. at 109–11.) Relator avers that despite
extensive meet-and-confer efforts, the parties are at an impasse on multiple discovery
issues, including Defendant’s refusal to provide compliant amended responses and ongoing
failure to produce documents. (Doc. 103 ¶ 14.)
Defendant disagrees with Relator’s summation of the parties’ discovery efforts,
stating it is “incomplete and misleading.” (Doc. 108 at 4.) Defendant challenges Relator’s
allegations that “Rad Ltd.’s initial discovery responses failed to ‘provide[] substantive
responses,’ failed to provide sufficient detail about withheld or responsive materials, and
‘resulted in no documents produced’—stating instead that Rad Ltd. ‘would “meet and
confer” regarding scope and a “reasonable approach” to collection and production.’” (Id.)
Defendant suggests that “the need to meet and confer about a reasonable approach to
collection and production of responsive materials was a product of the 52 facially
overbroad discovery requests [Relator] served, which seek extensive discovery unrelated
to the allegations in his complaint.” (Id.) Defendant asserts that it had stated it would serve
supplemental discovery responses and most of the deficiencies Relator alleges have now
been resolved by Defendant’s supplemental responses. (Id. at 4–6.)
On January 9, 2026, the Court held a telephonic conference to discuss the parties’
discovery dispute and set a schedule for briefing Relator’s Motion to Compel. (Doc. 100.)
On the evening of January 20, 2026, two business days before the Motion deadline,
Defendant served Supplemental Objections and Responses to Relator’s First Set of
Requests for Production and First Set of Non-Uniform Interrogatories, (Doc. 103-1 at 182–
277), and Objections and Responses to Relator’s Second Set of Requests for Production
and Second Set of Non-Uniform Interrogatories, (Doc. 103-1 at 278–92). On January 22,
2026, the evening before the Motion deadline, Defendant served a small document
production. (Doc. 101 at 2 n.2.)
In the pending Motion to Compel, Relator identifies four overlapping categories of
disputed discovery: “(i) workstation hardware and configuration, including calibration,
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quality assurance, and related operational controls; (ii) Rad Ltd’s internal knowledge and
communications concerning selection, implementation, and risks; (iii) claims and
reimbursement information bearing on scope and damages; and (iv) government
interactions and external representations bearing on materiality and scienter.” (Doc. 101 at
7.) Relator asserts Defendant’s responses are deficient because: (i) Defendant fails to
identify and produce business records while invoking Rule 33(d); (ii) Defendant’s “meet-
and-confer” responses fail to state whether Defendant would produce documents or if
materials were being withheld; (iii) Defendant’s merits-based objections improperly
mischaracterize Relator’s theory of liability, assuming Defendant was required to use
FDA-cleared equipment; (iv) Defendant improperly objects that standard terms like “FDA-
cleared” and “FDA-approved” are vague and ambiguous; and (v) Defendant fails to
produce non-privileged information and identify any information withheld on the basis of
privilege or confidentiality. (Id. at 13–16.)
Defendant asserts that “most of the deficiencies Relator alleges have now been
resolved by [Defendant]’s supplemental responses.” (Doc. 108 at 5–6.) Defendant states
that the primary issue in the discovery dispute is Relator’s attempt to obtain evidence
unrelated to the central theory of the SAC, which Defendant characterizes as Defendant’s
use of consumer-grade monitors that can “never qualify for Medicare reimbursement
because they are never ‘reasonable and necessary.’” (Id. at 6.) Thus, according to
Defendant, any information beyond the monitor model type and specifications—including
workstation calibration, configuration, maintenance, cleaning, software updates, quality
control testing, training procedures, diagnostic checks, holistic performance monitoring,
quality assurance, graphic cards, reading environment, computer processing units,
peripherals, operating systems, image-processing software, and other software or
hardware—is irrelevant and exceeds the permissible scope of discovery. (Id. at 7.)
Relator asserts that Defendant’s supplemental responses and limited document
production failed to cure deficiencies in Defendant’s initial responses, and that Defendant
continues to withhold core information, fails to specify what Defendant is withholding, and
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improperly reserves Defendant’s ability to produce materials at some undefined future
time. (Doc. 110 at 2.)
II. Legal Standard
“[P]retrial discovery is ordinarily ‘accorded a broad and liberal treatment.’” Shoen
v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (quoting Hickman v. Taylor, 329 U.S. 495, 507
(1947)). The scope of allowable discovery is governed by Federal Rule of Civil Procedure
26(b)(1), which provides:
Parties may obtain discovery regarding any nonprivileged 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 this scope of discovery need not be
admissible to be relevant.
Fed. R. Civ. P. 26(b)(1). The operative “complaint guides the parties’ discovery, putting
the defendant on notice of the evidence it needs to adduce in order to defend against the
plaintiff’s allegations.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000);
see also In re German Auto. Mfrs. Antitrust Litig., 335 F.R.D. 407, 408–09 (N.D. Cal.
2020) (explaining that courts “cannot grant discovery based on a complaint that has already
been dismissed”). But discovery is not limited to the issues raised in the pleadings because
discovery itself is designed to narrow, define, and clarify the issues in the case. See
Hampton v. City of San Diego, 147 F.R.D. 227, 229 (S.D. Cal. 1993) (citing Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).
As relevant here, a party may serve interrogatories and requests for production of
documents within the scope of Rule 26(b). See Fed. R. Civ. P. 33(a)(2), 34(a). If the
responding party believes a request is outside the scope of Rule 26(b) or otherwise
improper, it may object in lieu of answering or producing documents. See Fed. R. Civ. P.
33(b)(3)–(4), 34(b)(2)(C). Correspondingly, a party seeking discovery may move for an
order compelling an answer or production if “a party fails to answer an interrogatory
submitted under Rule 33; or . . . to produce documents . . . as requested under Rule 34.”
Fed. R. Civ. P. 37(a)(3)(B)(iii)–(iv). “[A]n evasive or incomplete disclosure, answer, or
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response must be treated as a failure to disclose, answer, or respond.” Fed. R. Civ. P.
37(a)(4).
The party seeking to compel discovery has the initial burden of establishing that the
discovery sought is relevant. Mi Familia Vota v. Hobbs, 343 F.R.D. 71, 81 (D. Ariz. 2022).
This “is a relatively low bar.” Id. (quoting Cont’l Cirs. LLC v. Intel Corp., 435 F. Supp. 3d
1014, 1018 (D. Ariz. 2020)). “Thereafter, the party opposing discovery has the burden of
showing that the discovery should be prohibited, and the burden of clarifying, explaining,
or supporting its objections.” Hipschman v. County of San Diego, 738 F. Supp. 3d 1332,
1337 (S.D. Cal. 2024) (citation omitted). Boilerplate objections are not sufficient. See Jane
Doe 130 v. Archdiocese of Portland in Or., 717 F. Supp. 2d 1120, 1126 (D. Or. 2010)
(“Boilerplate, generalized objections are inadequate and tantamount to not making any
objection at all.”); cf. Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. for Dist. of Mont.,
408 F.3d 1142, 1149 (9th Cir. 2005) (holding that “boilerplate objections or blanket
refusals inserted into a response to a Rule 34 request for production of documents are
insufficient to assert a privilege”).
III. Discussion
A. Scope of Discovery & Defendant’s Relevance Objection
1. False Claims Act & Medicare’s “Reasonable and Necessary”
Requirement
As noted above, Count I of the SAC, the only remaining claim in this action, alleges
that Defendant knowingly presented, or caused to be presented, false claims for medically
unreasonable or unnecessary services under 31 U.S.C. § 3729(a)(1)(A). (Doc. 53 ¶¶ 88–
101.) The FCA attaches liability not to underlying fraudulent activity, but to the claim for
payment submitted to the government. United States ex rel. Hopper v. Anton, 91 F.3d 1261,
1266 (9th Cir. 1996). “The FCA was ‘intended to reach all types of fraud, without
qualification, that might result in financial loss to the Government.’” Stenson, 2024 WL
1826427, at *2 (quoting United States v. Neifert-White Co., 390 U.S. 228, 232 (1968)). “A
successful FCA claim ‘requires: (1) a false statement or fraudulent course of conduct, (2)
made with scienter, (3) that was material, causing (4) the government to pay out money or
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forfeit moneys due.’” Id. (quoting United States ex rel. Rose v. Stephens Inst., 909 F.3d
1012, 1017 (9th Cir. 2018)).
Materiality is a demanding standard that looks to the effect of the alleged
misrepresentation on the behavior of the recipient. Universal Health Servs., Inc. v. United
States ex rel. Escobar, 579 U.S. 176, 193–94 (2016); see also 31 U.S.C. § 3729(b)(4)
(“[T]he term ‘material’ means having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.”). For a false statement to be
material, the statutory, regulatory, or contractual violations must be so central to the claims
that the government would not have paid the claims had it known of the violations. See
Winter ex rel. United States v. Gardens Reg’l Hosp. & Med. Ctr., Inc., 953 F.3d 1108, 1121
(9th Cir. 2020)
Regarding scienter, the FCA “imposes liability on anyone who ‘knowingly’ submits
a ‘false’ claim to the Government.” United States ex rel. Schutte v. SuperValu Inc., 598
U.S. 739, 742 (2023). The FCA defines the term “knowingly” as encompassing three
mental states: (1) actual knowledge, (2) deliberate ignorance, and (3) recklessness. Id. at
749–50 (citing 31 U.S.C. § 3729(b)(1)(A)).
As explained by the court of appeals:
CMS regulations require that all reimbursed services be “reasonable and
necessary.” 42 U.S.C. § 1395y(a)(1)(A). And, in this Circuit, “a false
certification of medical necessity can give rise to FCA liability.” Winter, 953
F.3d at 1118. Medicare contractors determine whether services are
reasonable and necessary by assessing whether the service is “(1) safe and
effective; (2) not experimental or investigational, ... and (3) appropriate.” See
Centers for Medicare & Medicaid Services, Medicare Program Integrity
Manual § 13.5.1 (2015) (cleaned up) (describing protocols for local coverage
determinations); see also id. § 13.3 (incorporating § 13.5.1’s standards for
individual claim determinations).
Even if no federal rule, regulation, or law requires radiologists to use FDA-
approved devices outside of the mammography context, the general
Medicare statute nevertheless requires all physicians to provide services that
meet minimum efficacy standards. . . .
“CMS guidance makes clear that safety and efficacy determinations are
based on ‘authoritative evidence’ or ‘general[] accept[ance] in the medical
community.’” Dan Abrams Co. LLC v. Medtronic Inc., 850 Fed. Appx. 508,
509 (9th Cir. 2021).
Stenson, 2024 WL 1826427, at *3 (alterations in original). Mere violations of the
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“reasonable and necessary” requirement are not necessarily material under the FCA; the
Court “must also consider CMS’s actual or likely response to [Defendant]’s claims for
diagnostic readings had it known the readings were conducted on the Dell Monitors.” Id.
at *4.
2. Complaint
In the SAC, Relator summarizes his allegations as follows:
In a nutshell, Rad Ltd cut corners by using inferior, consumer grade
displays to perform diagnostic readings instead of using FDA-approved
medical grade displays. The displays Rad Ltd used were not adequate to
ensure accurate diagnoses, and their use deviated substantially from accepted
standards of medical practice.
Even though Rad Ltd’s physicians used ineffective equipment, and
even though Rad Ltd knew that the equipment was not medical grade, the
physicians billed the government as if they had used compliant, medical
grade displays. These claims for reimbursement were false. That is because,
as the Ninth Circuit recognized in this case, “the general Medicare statute …
requires all physicians to provide services that meet minimum efficacy
standards.” See United States ex rel. Stenson v. Radiology Ltd., LLC, No. 22-
16571, 2024 WL 1826427, at *3 (9th Cir. Apr. 26, 2024). This is known as
the “reasonable and necessary” requirement—and services provided using
unapproved, inferior equipment violate it. By knowingly billing Medicare for
services that were not reasonable and necessary (or causing its physicians to
do so), Rad Ltd violated the FCA.
(Doc. 53 ¶¶ 2–3.) The SAC describes standards for medical grade diagnostic monitors and
differences between medical grade and consumer grade monitors. (See id. ¶¶ 33–59.)
As Class II medical devices, primary diagnostic displays for use in radiology image
interpretation are subject to FDA premarket clearance and special controls to govern safe
and effective use. (Id. ¶¶ 33–34, 39.) When seeking FDA-clearance, the manufacturer of a
primary radiological diagnostic imaging device must submit information establishing
compliance with special controls, including “firmware and software for software
functionalities like display controls; ambient light sensing; luminance calibration tools; and
quality-control software.” (Id. ¶¶ 36, 41.) The FDA requires these devices’ user manuals
to include information like “hardware/software compatibility requirements, conformity
with voluntary consensus standards, performance specifications, calibration procedures,
and a full description of recommended quality assurance testing.” (Id. ¶ 45.) Relator alleges
“medical practitioners in the field of radiology look to FDA-cleared or FDA-approved
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medical grade devices as the baseline standard for safe and effective practice.” (Id. ¶ 47.)
Relator alleges the “use of non-diagnostic consumer grade monitors to perform
primary radiological diagnostic readings is not recognized in the medical community as
safe or effective. Those devices cannot meet minimum efficacy standards without
substantial modifications or when used with specific software packages.” (Id. ¶ 48.) Relator
alleges non-diagnostic monitors: (a) fail to meet recommended values for specifications
like screen size, resolution, brightness, grayscale contrast, and connectivity options to the
master workstation; (b) “struggle to reveal critical anatomical information, partly because
the display will have luminescence limitations that are also impacted by performance of
other systems like the graphics card”; (c) “may not have the required dynamic range of
brightness. . . . even if the monitor is calibrated”; (d) may produce variable outputs and
lack automatic calibration systems; and (e) have a shorter lifespan than medical grade
monitors and require more consistent maintenance and evaluation. (Id. ¶¶ 50–56.)
Relator alleges Defendant “was aware of the distinction between medical grade
displays and non-diagnostic consumer grade systems. . . . understood the limitations of
non-diagnostic systems, but still elected to use [non-diagnostic] inferior equipment to
improve profits.” (Id. ¶ 60.) Defendant used non-diagnostic monitors manufactured by Dell
Inc., including Dell model UP3017, and Dell had not introduced nor endorsed those
monitors for use in diagnostic imaging. (Id. ¶ 63.) The FDA cleared the use of Dell UP3017
monitors only when used with an FDA-cleared software called PerfectLum, which
Defendant did not use. (Id. ¶ 64.) Relator alleges Defendant knew use of Dell UP3017
monitors “without the PerfectLum software was medically improper because, in part, the
hardware could not be calibrated or regulated for reliable use in primary radiological
diagnostics.” (Id. ¶ 65.) Relator alleges the Dell monitors “should not have been used for
human diagnostic readings given the unacceptably high risk of errors, omissions, and
misdiagnosis.” (Id. ¶ 66.)
Relator alleges reimbursement amounts for Medicare billing codes that include a
technical component are based in part on the cost of equipment and assume the use of
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medical grade diagnostic displays, reflecting “the common understanding within [the]
industry that radiologists must use . . . medical grade components to deliver safe and
reliable radiological services.” (Id. ¶¶ 71–79.) Thus, “[b]y submitting claims for radiology
services performed on inferior, consumer grade equipment, Rad Ltd defrauded the United
States and received payment for services that were not furnished in accordance with
accepted standards of medical practice.” (Id. ¶ 80.)
As Director of Information Technology for a medical imaging services provider,
Relator learned of Defendant’s use of non-diagnostic monitors through his employment.
(Id. ¶¶ 7–12, 83–84.) Relator corresponded with Defendant’s IT Director regarding
technology-related initiatives for their radiology practices. (Id. ¶ 83.) “After learning that
Defendant used non-diagnostic monitors, . . . Relator sought more information on Rad
Ltd’s technology ecosystem and configuration. . . . to discern whether Rad Ltd had reached
an economically viable solution for use of consumer grade displays while meeting
appropriate standards for radiological technology.” (Id.)
3. Analysis
In general, the Court resolves Defendant’s relevance objections in favor of Relator.6
Defendant’s objections rely on a fundamental mischaracterization of Relator’s complaint
and legal claim and an overly limited view of the rules governing discovery procedure.
Contrary to Defendant’s argument, Relator’s central theory of liability is not that Defendant
used monitors that can never qualify for Medicare reimbursement because the monitors
themselves are per se improper for use in human diagnostic radiological imaging. Rather,
Relator’s complaint alleges:
Radiology diagnostic services are inextricably intertwined with the
quality and efficacy of the technology platform used by a radiologist to
interpret medical imaging. . . . A radiologist can provide effective service
only if the diagnostic workstation produces an image that is consistently
capable of accurate interpretation. Because Rad Ltd used technology that
hindered or obstructed the clear interpretation of complex radiological
readings, Rad Ltd failed to provide medical services that were “reasonable”
under the Medicare statutory scheme. When Rad Ltd physicians conducted
diagnostic readings on non-diagnostic monitors, they failed to provide
covered services.
6 The Court addresses challenges to specific discovery requests infra Section III.C.
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(Doc. 53 ¶ 94.) Because “the general Medicare statute . . . requires all physicians to provide
services that meet minimum efficacy standards,” the key question is whether diagnostic
readings performed on less sophisticated, non-FDA cleared monitors fall below that
minimum standard of care. See Stenson, 2024 WL 1826427, at *3. Monitors are central to
Relator’s theory, and Relator first learned of the alleged fraudulent scheme when he
discovered Defendant was using consumer grade Dell monitors. However, liability hinges
on the efficacy of the readings performed on the monitors, as determined by authoritative
evidence or general acceptance in the medical community, not on the specific model of
monitor used in isolation. See id.
Defendant argues it makes no difference how the monitors were maintained,
configured, cleaned, or calibrated; what software, hardware, graphics cards, or other
technical components were used in combination with the monitors; or what other factors
exist that affected Defendant’s diagnostic reading environment. (Doc. 107 at 17–20; Doc.
108 at 6–7.) Defendant argues discovery into any of these factors amounts to a fishing
expedition that would allow Relator to formulate his theory at trial. (Doc. 107 at 19.) But
the claim pleaded in the SAC is clear.7 Whether the monitors Defendant used fell below
minimum efficacy standards, i.e., the extent to which the readings conducted on the
monitors lacked accuracy and reliability, is a key issue in the case. The SAC alleges that
software, graphics cards, calibration, and other technical components and factors bear on
7 Additionally, in the parties’ Rule 26(f) Joint Report, Relator explained he must prove:
(1) Defendant used equipment falling below minimum efficacy standards; (2) Defendant
understood or was recklessly indifferent to those deficiencies; and (3) the deficiencies were
material. (Doc. 67 at 3.) Relator’s position on the nature of the case was that “Defendant
. . . submitted false claims to Medicare when it billed CMS for diagnostic radiological
readings performed on over-the-counter computer (COTS) monitors that fell below
medical standards. . . . those non-compliant devices compromised the accuracy or
reliability of radiological interpretations.” (Id. at 2.) Relator’s list of disputed issues
included: (1) whether the use of consumer-grade monitors is appropriate or medically
reasonable under accepted medical imaging standards; (2) the reliability of consumer grade
monitors for making primary diagnostic reads and whether they meet professional
standards for accuracy, resolution, and consistency; (3) whether use of consumer grade
monitors compromised diagnostic accuracy, leading to potential misdiagnoses or
inaccuracies in patient care; and (4) the sufficiency of expert testimony on medical imaging
standards, the adequacy of Defendant’s equipment, and the impact on diagnostic accuracy.
(Id. at 5.) Defendant has received sufficient notice that the functionality of the monitors
and the efficacy of readings performed on the monitors are core aspects of Plaintiff’s claim.
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the efficacy of diagnostic readings performed on the non-FDA cleared, consumer grade
monitors. (See Doc. 53 ¶¶ 45, 48, 52–56, 64–65, 68, 83, 94.) Thus, how Defendant’s
monitors function in practice, as affected by a combination of technical factors, is, at
minimum, a legitimate topic of discovery. Cf. DR Distribs., LLC v. 21 Century Smoking,
Inc., 513 F. Supp. 3d 839, 880 n.20 (N.D. Ill. 2021) (explaining that the meaning of
“relevance” in discovery is much broader than the meaning of “relevance” under Federal
Rule of Evidence 401); Fed. R. Evid. 401 (evidence is relevant if it (a) has any tendency to
make a fact more or less probable, and (b) is of consequence in determining the action). To
restrict discovery to the model type and specifications of the monitors themselves would
be to improperly narrow the issues in the case.
Defendant argues discovery must be limited to the type of monitors because Relator
lacks knowledge about other factors that might affect Defendant’s reading environment
and therefore failed to plead facts relating to deficiencies other than the type of monitors.
(Doc. 107 at 18–19, 19 n.2.) This argument fails because (1) discovery is not strictly limited
to facts alleged in the pleadings; and (2) other factors affecting the reading environment
are relevant to the parties’ claims and defenses. Relator alleges that prior to filing the
lawsuit, Relator “sought more information on Rad Ltd’s technology ecosystem and
configuration. . . . to discern whether Rad Ltd had reached an economically viable solution
for use of consumer grade displays while meeting appropriate standards for radiological
technology.” (Doc. 53 ¶ 83.) Whether Defendant found such a solution that met medical
standards is a defense to Relator’s claims that the radiological services provided fell below
minimum efficacy requirements. Defendant acknowledges as much. (Doc. 107 at 19 n.5
(“[T]here are many reasons why Rad Ltd. might decline to produce information that could
support its defenses.”).8 Thus, facts relevant to that question fall within the scope of
8 Defendant suggests it is withholding information about its reading environment because
of “burden, expense, and the desire to keep proprietary information confidential from
individuals known for filing serial or meritless lawsuits.” (Doc. 107 at 19.) These are not
relevance objections, and moreover, they are not explained in sufficient detail to meet
Defendant’s burden of showing the discovery of relevant information should be prohibited.
See Hipschman, 738 F. Supp. 3d at 1337; Jane Doe 130 v. Archdiocese of Portland in Or.,
717 F. Supp. 2d at 1126 (“Boilerplate, generalized objections are inadequate and
tantamount to not making any objection at all.”).
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discovery. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” (emphasis added)).9
The Court agrees with Relator that Defendant “cannot block discovery into the controls,
software, and calibration practices that determine whether its platform met minimum
efficacy standards only to later argue that it took adequate measures.” (Doc. 110 at 6.)
Defendant’s argument that discovery should be limited to the types of monitors
might be persuasive if Relator’s FDA-approval theory were still at issue. In that
hypothetical situation, the legal claim would be based on a regulation or rule mandating
the use of FDA-cleared or approved monitors. Thus, Relator’s FCA claim would hinge on
Defendant’s violation of that rule, through the use of non-FDA-cleared or approved
monitors, regardless of efficacy. But Relator’s reasonable and necessary claim is based on
the efficacy of the diagnostic readings produced on the monitors, and liability hinges on
whether Defendant’s readings met accepted medical standards despite being performed on
consumer grade monitors.
Defendant also argues its relevance objection is supported by the declaration of
Lindsey Baldwin, Director of the Division of Practitioner Services with CMS. (Doc. 108
at 8–9; see Doc. 107-1 at 4–6.) First, while Baldwin’s testimony may be evidence relevant
to the parties’ claims and defenses in the case, it has no bearing on whether other evidence
is or is not discoverable. See, e.g., Gordon v. Nexstar Broad., Inc., No. 18-CV-0007, 2018
WL 5920781, at *5 (E.D. Cal. Nov. 13, 2018) (quoting FTC v. AMG Servs., 2015 WL
5097526, at *8 (D. Nev. Aug. 28, 2015)) (“A party may not resist discovery by challenging
the merits of a claim or defense.”). Second, Baldwin’s amended declaration provides, “the
statements in this declaration are made individually and only on the basis of my personal
knowledge, . . . and I otherwise lack subject matter expertise to opine on medical
reasonableness or medical necessity in this matter.” (Doc. 107-1 at 6 ¶¶ 5–6.) Thus, it
appears that Baldwin’s declaration does not provide the official positions of CMS with
9 Put another way, steps Defendant took to improve the efficacy of readings performed on
its monitors are relevant to Relator’s claim because they have a tendency to make it more
likely that Defendant provided services that met efficacy standards and were therefore
reasonable and necessary.
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respect to Relator’s reasonable and necessary claim. Third, Defendant seems to argue that
Relator, when confronted with Baldwin’s statement in the original declaration that CMS
“knows of no basis to deny the payment of claims for radiological services rendered to
Medicare beneficiaries based on the type of monitor used,” realized he could not prove the
materiality element of his claim and then drafted discovery requests in search of novel
theories of liability. (See Doc. 107 at 5–6.) But Relator’s first set of discovery requests was
served months before Baldwin’s original declaration was prepared. (See Doc. 101 at 2
(“Relator served written discovery on Rad Ltd in August 2025.”); Doc. 103-1 at 110–11
(declaration signed on November 20, 2025).)
In sum, the Court overrules Defendant’s relevance objections to RFPs and
Interrogatories seeking information on Defendant’s workstation hardware and
configuration, including calibration, calibration software, quality assurance, and related
operational controls.
B. Remaining Objections & Alleged Deficiencies
1. Use of Rule 33(d)
Defendant argues the references in its interrogatory responses to production of
documents under Rule 33(d) demonstrate that it agrees to produce responsive documents,
and therefore, there is no deficiency for the Court to resolve. (Doc. 107 at 20.) However, a
party invoking Rule 33(d) must “specify[] the records that must be reviewed, in sufficient
detail to enable the interrogating party to locate and identify them.” Fed. R. Civ. P. 33(d).
Defendant’s responses, which invoke Rule 33(d) but fail to identify any records or
documents whatsoever, are therefore deficient. See Fed. R. Civ. P. 37(a)(4); see also, e.g.,
WATM LLC v. Payment All. Int’l, Inc., No. 24-CV-00405, 2025 WL 1736609, at *6–7
(W.D. Wash. June 23, 2025) (reasoning interrogatory responses that only stated that
business records “will be produced” pursuant to Rule 33(d) or that the party “would
produce responsive documents” were deficient); Davis v. Pinterest, Inc., No. 19-CV-7650,
2021 WL 3044957, at *3 (N.D. Cal. July 20, 2021) (holding party’s Rule 33(d) reference
insufficient where it did not specify any records and “just gesture[d] at forthcoming
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document productions”). Defendant’s amended responses must comply with the Rule, i.e.,
by answering the interrogatories or specifying records in detail from which the answer may
be determined and producing those records. See Fed. R. Civ. P. 33(b), (d).
2. Meet-and-Confer Responses
Relator argues Defendant’s initial responses were deficient because they “stated
only that [Defendant] would ‘meet and confer’ rather than stating whether it would produce
documents or if materials were instead withheld based on objections.” (Doc. 101 at 13–
14.) Defendant argues the purported “meet-and-confer” deficiency is moot in light of its
supplemental responses and agreement to produce responsive documents. The Court agrees
that the initial responses were deficient, and Defendant must provide compliant responses
and produce responsive documents as explained throughout this Order.
3. “Merits-Based” Objections
Relator argues Defendant improperly asserted relevance objections based on an
inaccurate characterization of Relator’s theory of the case that assumes Defendant was
required to use FDA-cleared equipment for non-mammographic radiological readings.
(Doc. 101 at 14–15.) Defendant asserts it is not withholding information or declining to
produce documents on the basis of these objections. (Doc. 107 at 21.) Be that as it may,
these objections are flawed both because Relator’s discovery requests do not assume that
Defendant was required to use FDA-cleared equipment,10 and because, to the extent
Defendant challenges Relator’s theory, “whether [Relator’s] theory of the case is viable is
not at issue at this juncture, and the Court need not weigh the merits of the [theory].”
Gordon, 2018 WL 5920781, at *5. To the extent this objection is not moot, it is overruled.
4. Vague & Ambiguous FDA Terminology
Defendant asserts its vagueness and ambiguity objections are not frivolous because
there is no “FDA Approval” for the monitors Defendant used to read non-mammographic
10 This Court’s dismissal of Relator’s FDA-approval claim was upheld by the Ninth
Circuit. References to FDA-clearance in the SAC and discovery requests do not revive that
claim. As explained above, with respect to Relator’s reasonable and necessary claim,
liability hinges on the efficacy of the readings performed on the monitors, as determined
by authoritative evidence or general acceptance in the medical community, upon which
FDA premarket clearance standards for medical devices may have some bearing.
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imaging studies, and in any event, Defendant has agreed to produce documents and
communications in response to the discovery requests for which it raises those objections.
(Doc. 107 at 21–22.) As explained in the SAC, Relator refers to FDA approval and FDA
clearance in the context of introducing, marketing, and selling devices used in medical
practice; in this context, those terms do not imply that the FDA regulates the type of
monitors that must be used in non-mammography radiology readings. To the extent this
objection is not moot, it is overruled.
5. Confidentiality, HIPAA, and Privilege Objections
Relator argues Defendant’s blanket privilege objections do not justify
nonproduction of documents. (Doc. 101 at 16.) Defendant asserts it is not withholding any
materials on the basis of confidentiality, HIPAA, or privilege objections. (Doc. 107 at 22.)
Defendant “acknowledges that it agreed to the Protective Order in the case,” and therefore,
at Relator’s request, it agreed to remove confidentiality designations made to its initial
discovery responses when serving supplemental responses. (Id.) The Court entered the
Protective Order on April 22, 2025. (Doc. 81.) Defendant’s initial discovery responses
should have fully complied with it, and Relator should not have had to “request” Defendant
comply with it months later. In any event, “boilerplate objections or blanket refusals
inserted into a response to a Rule 34 request for production of documents are insufficient
to assert a privilege.” Burlington N. & Santa Fe Ry. Co., 408 F.3d at 1149. In Defendant’s
amended supplemental responses, Defendant must identify any material withheld on the
basis of privilege in a privilege log and otherwise fully comply with the Protective Order.
6. Preservation of Objections
Relator argues Defendant’s supplemental discovery responses failed to cure
deficiencies in its original responses because they explicitly preserve Defendant’s original
objections. (See, e.g., Doc. 102 at 8; Doc. 103-1 at 189 (supplemental response to RFP
No. 1 begins, “Subject to and without waiving its objections, . . .”).) Defendant states it is
“simply preserv[ing] objections in case issues cannot be resolved through the meet and
confer process.” (Doc. 108 at 10–11.) Based on Defendant’s representations, the Court will
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take Defendant at its word that it is no longer withholding documents based on the
objections in its initial responses unless either an objection is specifically addressed in a
supplemental response, or the supplemental response explicitly references and reasserts the
entirety of the corresponding initial response.
C. Specific Discovery Requests
To clarify its rulings, the Court will address each disputed discovery request
individually and specify the action Defendant is compelled to take. In parallel with
Relator’s LRCiv 37.1(a) Statement of Disputes and Defendant’s Response in Opposition
to Relator’s Statement of Disputes, (Docs. 102, 108), the Court first addresses the disputed
RFPs, followed by interrogatories.
1. Requests for Production
a. RFP No. 1
RFP No. 1 states:
Produce all documents and communications relating to Your
acquisition, evaluation, or use of non-FDA cleared or approved displays,
monitors, or radiology workstations (including, but not limited to, Dell
UP3017 UltraSharp 30”, Dell E2318H 23”, or other consumer-grade
monitors). This includes documents sufficient to show whether such devices
were FDA cleared, FDA-approved, or marketed without premarket
clearance.
(Doc. 103-1 at 187.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications regarding Rad
Ltd.’s decision to use certain monitors for non-mammographic diagnostic
readings of radiological images, to the extent any exist and can be located
after a reasonable search. Rad Ltd. otherwise stands on its objections.
(Id. at 189.) Defendant argues it has already produced some responsive materials and
Relator’s Motion should be denied to the extent it seeks additional, irrelevant documents.
For the reasons explained above, Defendant’s relevance objection is overruled. See
discussion supra Section III.A. Defendant must: (a) provide a response that complies with
Rule 34, specifying what will be produced and what will be withheld on the basis of any
other objections; and (b) produce responsive, non-privileged documents within the full
scope of RFP No. 1, including documents related to Defendant’s acquisition, evaluation,
and use of consumer-grade monitors for non-mammographic diagnostic readings of
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radiological images.
b. RFP No. 2
RFP No. 2 states:
Produce all documents and communications, whether internal or
external, from July 1, 2013 through December 31, 2021, relating to Your
decisions to use non-FDA approved displays or monitors (including the Dell
UP3017 UltraSharp 30” and Dell E2318H 23” monitors) for the provision of
non-mammographic, diagnostic radiological readings, including meeting
minutes and documents relating to cost and regulatory considerations.
(Doc. 103-1 at 189.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications regarding Rad
Ltd.’s decision to use certain monitors for non-mammographic diagnostic
readings of radiological images, to the extent any exist and can be located
after a reasonable search. Rad Ltd. otherwise stands on its objections.
(Id. at 190–91.) Relator argues the supplemental response is deficient because it preserves
objections and materially narrows what Defendant will produce compared to what RFP
No. 2 seeks. (Doc. 102 at 12.) Defendant states it has produced some materials responsive
to this request and agreed to produce others. (Doc. 108 at 13.) To the extent Defendant’s
response narrows and rewrites RFP No. 2, Defendant must: (a) provide a response that
complies with Rule 34, specifying what will be produced and what will be withheld on the
basis of any objections; and (b) produce responsive, non-privileged documents within the
full scope of RFP No. 2 as written, including meeting minutes and documents relating to
cost and regulatory considerations.
c. RFP No. 3
RFP No. 3 states:
Produce all documents and communications, whether internal or
external, from July 1, 2013 through December 31, 2021, relating to the use
of FDA-approved displays or monitors (including the Dell UP3017 with
QUBYX PerfectLum Bundle or X-Cal LCD calibration software) for the
provision of non-mammographic, diagnostic radiological readings.
(Doc. 103-1 at 191.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications regarding Rad
Ltd.’s decision to use certain monitors for non-mammographic diagnostic
readings of radiological images, to the extent any exist and can be located
after a reasonable search. Rad Ltd. otherwise stands on its objections,
including its objections to producing information regarding calibration
software because that information is not relevant.
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(Id. at 192.) Defendant’s relevance objection to producing information regarding
calibration software is overruled. See discussion supra Section III.A. Defendant must: (a)
provide a response that complies with Rule 34, specifying what will be produced and what
will be withheld on the basis of any other objections; and (b) produce responsive, non-
privileged documents within the full scope of RFP No. 3, including documents related to
calibration software used in conjunction with displays.
d. RFP No. 4
RFP No. 4 states:
Produce all documents and communications, whether internal or
external, from July 1, 2013 through December 31, 2021, relating to displays
or monitors You considered or used for the provision of non-mammographic,
diagnostic radiological readings, including materials addressing monitor
specifications (such as screen size, resolution, grayscale contrast, and
luminance), limitations, required calibration procedures, quality assurance
testing, and durability.
(Doc. 103-1 at 192.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications regarding
specifications for the monitors Rad Ltd. used for non-mammographic
diagnostic readings of radiological images, to the extent any exist and can be
located after a reasonable search. Rad Ltd. otherwise stands on its objections,
including its objections to producing information regarding calibration
procedures, quality assurance testing, and durability because that information
is not relevant.
(Id. at 192–93.) Defendant’s relevance objection to producing information regarding
calibration procedures, quality assurance testing, and durability is overruled. See
discussion supra Section III.A. Defendant must: (a) provide a response that complies with
Rule 34, specifying what will be produced and what will be withheld on the basis of any
other objections; and (b) produce responsive, non-privileged documents within the full
scope of RFP No. 4, including materials addressing calibration procedures, quality
assurance testing, and durability of monitors and displays used for non-mammographic
diagnostic radiological readings.
e. RFP No. 5
RFP No. 5 states:
Produce all documents and communications, from July 1, 2013
through December31, 2021, related to display software (including but not
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limited to the X-Cal LCD Monitor Calibration Software) You considered or
used in conjunction with displays or monitors for Your provision of non-
mammographic, diagnostic radiological readings.
(Doc. 103-1 at 194.) Defendant’s supplemental response states: “Subject to and without
waiving its objections, Rad Ltd. maintains its objections to this Request in its entirety
because the documents sought are not relevant.” (Id. at 195.) Defendant’s relevance
objection to producing information related to display software is overruled. See discussion
supra Section III.A. Defendant must: (a) provide a response that complies with Rule 34,
specifying what will be produced and what will be withheld on the basis of any other
objections; and (b) produce responsive, non-privileged documents within the full scope of
RFP No. 5, including materials related to display software considered or used in
conjunction with monitors or displays used for non-mammographic diagnostic radiological
readings.
f. RFP No. 6
RFP No. 6 states:
Produce all documents and communications, whether internal or
external, from July 1, 2013 through December 31, 2021, relating to any
meeting, event, webinar, or conference that You attended in which devices
or technology for diagnostic radiological readings were discussed.
(Doc. 103-1 at 195.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications regarding meetings,
events, webinars, or conferences inasmuch as they relate to the monitors Rad
Ltd. used for non-mammographic diagnostic readings of radiological images,
to the extent any such materials exist and can be located after a reasonable
search. Rad Ltd. otherwise stands on its objections.
(Id. at 196.) Relator argues the response is deficient because it materially narrows the scope
of the request. (Doc. 102 at 21–23.) To the extent Defendant’s objections narrow the scope
on the grounds that technology, other than the type of monitors, contributing to the
diagnostic reading environment is irrelevant, the objections are overruled. See discussion
supra Section III.A. Defendant must: (a) provide a response that complies with Rule 34,
specifying what will be produced and what will be withheld on the basis of any other
objections; and (b) produce responsive, non-privileged documents within the full scope of
RFP No. 6, including materials related to meetings and events in which diagnostic
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technology—other than monitor type—was discussed.
g. RFP No. 7
RFP No. 7 states:
Produce all documents and communications, whether internal or
external, from July 1, 2013 through December 31, 2021, relating to any
calibration, maintenance, or other quality assurance measures You took with
respect to the displays or monitors and related hardware You use for Your
provision of non-mammographic, diagnostic radiological readings.
(Doc. 103-1 at 196–97.) Defendant’s supplemental response states: “Subject to and without
waiving its objections, Rad Ltd. maintains its objections to this Request in its entirety
because the documents sought are not relevant.” (Id. at 197.) Defendant’s relevance
objection to producing information related to calibration, maintenance, or other quality
assurance measures it took with respect to displays, monitors, or related hardware is
overruled. See discussion supra Section III.A. Defendant must produce responsive, non-
privileged documents within the full scope of RFP No. 7.
h. RFP No. 8
RFP No. 8 states:
Produce all documents and communications, whether internal or
external, relating to any internal or external audit, inspection, or evaluation
of the accuracy, completeness, correctness, or reliability of the diagnostic
radiological readings You performed from July 1, 2013 through December
31, 2021.
(Doc. 103-1 at 197–98.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications reflecting an audit,
inspection, or evaluation of non-mammography readings related to the types
of monitors used, to the extent any exist and can be located after a reasonable
search. Rad Ltd. otherwise stands on its objections, including its objections
to producing documents and communications reflecting audits, inspections,
or evaluations of radiological readings that are not based on the monitors
used because that information is not relevant.
(Id. at 199.) Relator argues the response improperly narrows the scope of the request
because audits, inspections, and evaluations of diagnostic readings are relevant regardless
of whether the evaluation ultimately or expressly attributes any issues to monitors. (Doc.
102 at 25–26.) The Court agrees. Defendant’s objection that documents and
communications reflecting audits, inspections, or evaluations of radiological readings not
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based on the monitors used are not relevant is overruled. Defendant must: (a) provide a
response that complies with Rule 34, specifying what will be produced and what will be
withheld on the basis of any other objections; and (b) produce responsive, non-privileged
documents within the full scope of RFP No. 8.
i. RFP No. 9
RFP No. 9 states: “Produce all documents relating to any errors, omissions, or
misdiagnoses in Your diagnostic radiological readings performed from July 1, 2013
through December 31, 2021.” (Doc. 103-1 at 199.) Defendant’s supplemental response
states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents reflecting any errors, omissions, or
misdiagnoses in non-mammography readings that were based on the
monitors used, to the extent any exist and can be located after a reasonable
search. Subject to that agreement, Rad Ltd. responds that it is not aware of
documents to produce in response to this Request. Rad Ltd. otherwise stands
on its objections, including its objections to producing documents reflecting
errors, omissions, or misdiagnoses in radiological readings that are not based
on the monitors used because that information is not relevant.
(Id. at 200.) Relator argues the monitors-only limitation improperly narrows the scope of
the request. (Doc. 102 at 27–29.) The Court agrees. Errors and misdiagnoses in diagnostic
readings are relevant regardless of whether Defendant identified them as being caused by
the monitors used. Defendant’s relevance objection is overruled. Defendant must: (a)
provide a response that complies with Rule 34, specifying what will be produced and what
will be withheld; and (b) produce responsive, non-privileged documents within the full
scope of RFP No. 9 without limiting production to materials it deems “based on the
monitors used.”
j. RFP No. 10
RFP No. 10 states:
Produce all documents relating to any state medical board complaints,
medical malpractice lawsuits, or other legal or regulatory investigations,
claims or proceedings involving Your associated radiologists and their
performance of diagnostic radiological readings from July 1, 2013 through
December 31, 2021.
(Doc. 103-1 at 200–01.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
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produce non-privileged documents reflecting any state medical board
complaints, medical malpractice lawsuits, or other legal or regulatory
investigations, claims or proceedings involving Rad Ltd.’s radiologists
related to non-mammography readings that were based on the monitors used,
to the extent any exist and can be located after a reasonable search. Subject
to that agreement, Rad Ltd. responds that it is not aware of documents to
produce in response to this Request. Rad Ltd. otherwise stands on its
objections, including its objections to producing documents reflecting any
state medical board complaints, medical malpractice lawsuits, or other legal
or regulatory investigations, claims or proceedings involving Rad Ltd.’s
radiologists that are not based on the monitors used because that information
is not relevant.
(Id. at 202.) For the reasons discussed above, see supra Section III.C.1(h)–(i), Defendant’s
relevance objection is overruled. Defendant must: (a) provide a response that complies with
Rule 34, specifying what will be produced and what will be withheld; and (b) produce
responsive, non-privileged documents within the full scope of RFP No. 10 without limiting
production to materials it deems “based on the monitors used.”
k. RFP No. 11
RFP No. 11 states:
Produce all documents relating to any sanctions, adverse findings,
adverse rulings, or other remedial actions contrary to Your interests or those
of Your associated physicians, related to those physicians’ performance of
diagnostic radiological readings, from July 1, 2013 through December 31,
2021.
(Doc. 103-1 at 202.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents reflecting any sanctions, adverse
findings, adverse rulings, or other remedial actions against Rad Ltd. or its
radiologists related to the monitors used for non-mammography readings, to
the extent any exist and can be located after a reasonable search. Subject to
that agreement, Rad Ltd. responds that it is not aware of documents to
produce in response to this Request. Rad Ltd. otherwise stands on its
objections, including its objections to producing documents reflecting any
sanctions, adverse findings, adverse rulings, or other remedial actions against
Rad Ltd. or its radiologists that are not based on the monitors used because
that information is not relevant.
(Id. at 203–04.) For the reasons discussed above, see supra Section III.C.1(h)–(i),
Defendant’s relevance objection is overruled. Defendant must: (a) provide a response that
complies with Rule 34, specifying what will be produced and what will be withheld; and
(b) produce responsive, non-privileged documents within the full scope of RFP No. 11
without limiting production to materials it deems “based on the monitors used.”
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l. RFP No. 12
RFP No. 12 states: “Produce all documents and communications, from July 1, 2013
through December 31, 2021, between You and CMS relating to Your provision of non-
mammographic, diagnostic radiological readings.” (Doc. 103-1 at 204.) Defendant’s
supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications between Rad Ltd.
and CMS regarding the monitors used for non-mammographic diagnostic
readings of radiological images, to the extent any exist and can be located
after a reasonable search. Subject to that agreement, Rad Ltd. responds that
it is not aware of documents or communications to produce in response to
this Request. Rad Ltd. otherwise stands on its objections, including its
objections to producing documents and communications between Rad Ltd.
and CMS that are not about the monitors used because that information is not
relevant.
(Id. at 204–05.) Relator misstates Defendant’s supplemental response to RFP No. 12 as the
supplemental response to RFP No. 14. (Compare Doc. 102 at 33, with id. at 35–36.) Thus,
Relator does not make specific arguments against Defendant’s objections to RFP No. 12.
However, for the reasons discussed above, see supra Section III.C.1(h)–(i), Defendant’s
relevance objection is overruled. Defendant must: (a) provide a response that complies with
Rule 34, specifying what will be produced and what will be withheld; and (b) produce
responsive, non-privileged documents within the full scope of RFP No. 12 without limiting
production to materials “regarding the monitors used.”
m. RFP No. 13
RFP No. 13 states:
Produce all communications, from July 1, 2013 through December 31,
2021, between You and CMS relating to the use of particular displays,
monitors, or display software for the provision of non-mammographic,
diagnostic radiological readings.
(Doc. 103-1 at 205.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications between Rad Ltd.
and CMS regarding the monitors used for non-mammographic diagnostic
readings of radiological images, to the extent any exist and can be located
after a reasonable search. Subject to that agreement, Rad Ltd. responds that
it is not aware of documents or communications to produce in response to
this Request. Rad Ltd. otherwise stands on its objections.
(Id. at 206.) For the reasons discussed above, Defendant’s relevance objection to
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communications relating to the use of displays or display software is overruled. See
discussion supra Section III.A. Defendant must: (a) provide a response that complies with
Rule 34, specifying what will be produced and what will be withheld; and (b) produce any
responsive, non-privileged CMS communications.
n. RFP No. 14
RFP No. 14 states: “Produce all claims You submitted to CMS from July 1, 2013
through December 31, 2021, seeking payment for the provision of non-mammographic,
diagnostic radiological readings.” (Doc. 103-1 at 206.) Defendant’s supplemental response
states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce claims data for non-mammographic diagnostic readings of x-ray,
CT, and MRI images performed for traditional Medicare beneficiaries from
July 1, 2013 to December 31, 2021, to the extent it exists and can be located
after a reasonable search. Rad Ltd. otherwise stands on its objections.
(Id. at 207–08.) Relator argues Defendant’s response fails to comply with Rule 34 and
narrows the scope of the request—from “all claims” to claims data for “diagnostic readings
of x-ray, CT, and MRI images performed for traditional Medicare beneficiaries”—
“without confirming whether that is intended as a complete production for this Request or
an objection-based limitation.” (Doc. 102 at 36.) Defendant must: (a) provide a response
that complies with Rule 34, specifying what will be produced and what is being withheld
and why; and (b) produce any responsive, non-privileged materials.
o. RFP No. 15
RFP No. 15 states: “Produce all documents showing all payments that You received
from CMS for the provision of non-mammographic, diagnostic radiological readings from
July 1, 2013 through December 31, 2021.” (Doc. 103-1 at 208.) Defendant’s supplemental
response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce payment data associated with claims for non-mammographic
diagnostic readings of x-ray, CT, and MRI images performed for traditional
Medicare beneficiaries from July 1, 2013 to December 31, 2021, to the extent
it exists and can be located after a reasonable search. Rad Ltd. otherwise
stands on its objections.
(Id. at 209.) Relator argues Defendant’s response to RFP No. 15—like Defendant’s
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response to RFP No. 14—fails to comply with Rule 34 and narrows the scope of the request
“without confirming whether that is intended as a complete production for this Request or
an objection-based limitation.” (Doc. 102 at 38.) Defendant must: (a) provide a response
that complies with Rule 34, specifying what will be produced and what is being withheld
and why; and (b) produce any responsive, non-privileged materials.
p. RFP No. 18
RFP No. 18 states:
Produce all documents and communications, including emails, text
messages, meeting minutes, or memoranda, between You (including Your
employees, officers, directors, contractors, or agents) and Ron Cornett
concerning the decision to acquire, implement, or use any monitor, display,
or radiology workstation that was not cleared or approved by the FDA for
diagnostic purposes. This request also includes communications with any
third-party vendors or consultants regarding the use of Dell or other
consumer-grade monitors for diagnostic radiology.
(Doc. 103-1 at 211.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications regarding Rad
Ltd.’s decision to use certain monitors for non-mammographic diagnostic
readings of radiological images, including communications regarding those
monitors that involve Ron Cornett or vendors, to the extent any exist and can
be located after a reasonable search. Rad Ltd. otherwise stands on its
objections.
(Id. at 213.) Relator argues the response fails to comply with Rule 34 and rewrites the
request by agreeing only to produce communications regarding Defendant’s decision to
use certain monitors. (Doc. 102 at 40.) Defendant must: (a) provide a response that
complies with Rule 34, specifying what will be produced and what is being withheld and
why; and (b) produce any responsive, non-privileged communications within the full scope
of RFP No. 18, as written.
q. RFP No. 20
RFP No. 20 states:
Produce all training materials, policy manuals, standard operating
procedures, compliance guidelines, or other internal or external guidance
provided or made available to Your radiologists, information technology
personnel, administrators, or other staff concerning the selection,
configuration, use, or adequacy of diagnostic monitors, radiology
workstations, or display standards (including FDA, ACR, or DICOM
requirements).
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(Doc. 103-1 at 215.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents regarding Rad Ltd.’s decision to use
certain monitors for non-mammographic diagnostic readings of radiological
images, to the extent any exist and can be located after a reasonable search.
However, Rad Ltd. otherwise stands on its objections, including its
objections to producing training, policy, or guidance documents regarding
Rad. Ltd.’s monitors or their configuration that were given to Rad Ltd.’s
radiologists because that information is not relevant.
(Id. at 217.) For the reasons discussed above, see supra Section III.A, Defendant’s
relevance objection is overruled. Defendant must: (a) provide a response that complies with
Rule 34, specifying what will be produced and what will be withheld; and (b) produce
responsive, non-privileged documents within the full scope of RFP No. 20, including
training, policy, and guidance documents concerning the selection, configuration, use, and
adequacy of diagnostic monitors and workstations.
r. RFP No. 21
RFP No. 21 states:
Produce all communications, including emails, text messages,
meeting notes, and memoranda, with any vendors, suppliers, or consultants
concerning the actual or potential acquisition, configuration,
implementation, or suitability of consumer-grade or non-FDA cleared
monitors or displays for use in diagnostic radiology.
(Doc. 103-1 at 217.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged communications regarding Rad Ltd.’s decision to
use certain monitors for non-mammographic diagnostic readings of
radiological images, including communications regarding those monitors
that involve vendors, to the extent any exist and can be located after a
reasonable search. However, Rad Ltd. otherwise stands on its objections,
including its objections to producing communications regarding monitor
configuration.
(Id. at 218–19.) For the reasons discussed above, see supra Section III.A, Defendant’s
relevance objection is overruled. Defendant must: (a) provide a response that complies with
Rule 34, specifying what will be produced and what will be withheld; and (b) produce
responsive, non-privileged documents within the full scope of RFP No. 21, including
communications with vendors, suppliers, or consultants concerning acquisition,
configuration, implementation, or suitability of consumer-grade monitors.
//
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s. RFP No. 22
RFP No. 22 states: “Produce all documents and communications, including but not
limited to emails, text messages, contracts, purchase orders, invoices, proposals, or
technical specifications, exchanged between You and Double Black Imaging Corp.” (Doc.
103-1 at 219.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged communications with Double Black Imaging Corp.
that relate to Rad Ltd.’s decision to use certain monitors for non-
mammographic diagnostic readings of radiological images or those
monitors’ specifications, to the extent any exist and can be located after a
reasonable search. Rad Ltd. otherwise stands on its objections.
(Id. at 220.) Relator argues the response fails to comply with Rule 34 and narrows the
request by agreeing only to produce communications relating to Defendant’s decision to
use certain monitors. (Doc. 102 at 45.) To the extent Defendant asserts a relevance
objection to producing broader technical or procurement communications, including those
related to acquisition, implementation, configuration, and suitability, the objection is
overruled. See supra Section III.A. Defendant must: (a) provide a response that complies
with Rule 34, specifying what will be produced and what is being withheld and why; and
(b) produce any responsive, non-privileged documents and communications within the full
scope of RFP No. 22, including contracts, purchase orders, invoices, and proposals.
t. RFP No. 24
RFP No. 24 states:
Produce all documents and communications, including emails, text
messages, contracts, purchase orders, invoices, proposals, or technical
specifications, exchanged between You and Dell, Inc. (or its affiliates or
agents) concerning the acquisition, configuration, testing, implementation, or
suitability of Dell monitors, displays, or workstations for use in diagnostic
radiology.
(Doc. 103-1 at 221–22.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications with Dell, Inc. that
relate to Rad Ltd.’s decision to use certain monitors for non-mammographic
diagnostic readings of radiological images or those monitors’ specifications,
to the extent any exist and can be located after a reasonable search. Rad Ltd.
otherwise stands on its objections, including its objections to producing
documents and communications regarding monitor configuration and testing
because that information is not relevant.
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(Id. at 223.) For the reasons discussed above, see supra Section III.A, Defendant’s
relevance objection to producing information regarding configuration and testing is
overruled. Defendant must: (a) provide a response that complies with Rule 34, specifying
what will be produced and what will be withheld and why; and (b) produce responsive,
non-privileged documents and communications within the full scope of RFP No. 24,
including those related to configuration and testing.
u. RFP No. 25
RFP No. 25 states:
Produce all literature, scientific studies, publications, articles,
presentations, research papers, guidance documents, or other materials that
You contend support or otherwise justify the use of consumer-grade or non-
FDA cleared/approved monitors, displays, or workstations for primary
diagnostic radiological readings. This request includes all documents
identified in Your response to Interrogatory No. 16.
(Doc. 103-1 at 223.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. responds that
it is unaware of any literature, scientific studies, publications, articles,
presentations, research papers, guidance documents, or other materials
indicating that Rad Ltd. was required to use any particular type of monitor,
or to refrain from using any particular type of monitor, for non-
mammographic diagnostic readings of radiological images. Rad Ltd.
otherwise stands on its objections.
(Id. at 224–25.) Relator argues the response fails to comply with Rule 34 and rewrites the
request by stating Defendant is unaware of documents indicating it was required to use a
particular type of monitor. (Doc. 102 at 49.) The Court agrees. Relator did not request
production of documents “indicating that Rad Ltd. was required to use any particular type
of monitor.” As explained above, see discussion supra Section III.A, Relator’s reasonable
and necessary claim turns in part on whether readings performed on Defendant’s consumer
grade monitors met minimum efficacy standards. Defendant must: (a) provide a response
that complies with Rule 34, specifying what will be produced and what is being withheld
and why; and (b) produce responsive documents within the full scope of RFP No. 25, as
written.
//
//
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v. RFP No. 27
RFP No. 27 states:
Produce all CMS, MAC, or other Medicare contractor bulletins,
notices, FAQs, or educational materials received or maintained by You
concerning diagnostic radiology equipment, technology standards, or billing
requirements, and all documents reflecting Your internal distribution,
review, or discussion of such materials.
(Doc. 103-1 at 226.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce CMS, MAC, or other Medicare contractor bulletins, notices, or
educational materials in Rad Ltd.’s possession that concern the monitors to
be used for non-mammographic diagnostic readings of radiological images,
to the extent any exist and can be located after a reasonable search. Subject
to that agreement, Rad Ltd. responds that it is not aware of documents to
produce in response to this Request. Rad Ltd. otherwise stands on its
objections.
(Id. at 228.) Relator argues the response fails to comply with Rule 34 and narrows the
request by limiting production to materials that concern the monitors to be used. (Doc. 102
at 45.) For the reasons discussed above, to the extent Defendant asserts a relevance
objection to producing educational materials that pertain to technology or radiology
equipment other than monitors, that objection is overruled. See discussion supra Section
III.A. Defendant must: (a) provide a response that complies with Rule 34, specifying what
will be produced and what is being withheld and why; and (b) produce responsive, non-
privileged documents within the full scope of RFP No. 27.
w. RFP No. 29
RFP No. 29 states:
Produce all documents sufficient to show the costs, amounts paid, or
financial expenditures associated with each item of equipment, hardware, or
software identified in response to Interrogatory No. 7. This request includes,
without limitation, purchase orders, invoices, contracts, receipts, licensing
agreements, subscription or maintenance fees, service contracts, and related
accounting records.
(Doc. 103-1 at 230.) Defendant’s supplemental response states: “Subject to and without
waiving its objections, Rad Ltd. maintains its objection to this Request in its entirety
because the documents sought are not relevant.” (Id. at 231.) To the extent Defendant
asserts a relevance objection based on its characterization of Relator’s claim as limited to
whether Defendant’s monitors were per se improper, (see Doc. 108 at 37), that objection
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is overruled. Defendant must: (a) provide a response that complies with Rule 34, specifying
what will be produced and what is being withheld and why; and (b) produce responsive,
non-privileged documents sufficient to show the costs, amounts paid, or expenditures for
the specific items identified in response to Interrogatory No. 7.
x. RFP No. 30
RFP No. 30 states:
Produce all documents and communications, whether internal or
external, reflecting any patient complaints, inquiries, grievances, or legal
claims received by You from July 1, 2013 through December 31, 2021,
relating to the quality of diagnostic radiology services provided by You. This
request includes, without limitation, complaints or claims concerning missed
diagnoses, image quality, monitor adequacy, workstation performance,
delays in service, or any other issues relating to the adequacy, safety, or
effectiveness of diagnostic radiology services.
(Doc. 103-1 at 231–32.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
agree to [sic] produce non-privileged documents and communications
reflecting any patient complaints, inquiries, grievances, or legal claims
related to the monitors used for non-mammographic diagnostic readings of
radiological images, to the extent any exist and can be located after a
reasonable search. Subject to that agreement, Rad Ltd. responds that it is not
aware of documents to produce in response to this Request.
(Id. at 233.) Relator argues the response fails to comply with Rule 34 and improperly
narrows the request by limiting production to patient complaints or claims related to the
monitors used. For the reasons discussed above, see supra Section III.C.1.(h)–(j),
Defendant’s stated limitation is overruled. Defendant must: (a) provide a response that
complies with Rule 34, specifying what will be produced and what will be withheld; and
(b) produce responsive, non-privileged documents within the full scope of RFP No. 30
without limiting production to materials it deems “related to the monitors used.”
y. RFP No. 32
RFP No. 32 states:
All communications between You (including Your counsel,
employees, agents, or representatives) and any recipient of a subpoena issued
by You in this action that relate to this case or to the subpoena or subpoena
process, including but not limited to correspondence regarding service,
compliance, responses, or production of documents.
(Doc. 103-1 at 282.) Defendant objects on relevance grounds. (Doc. 103-1 at 282–83.) In
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relevant part, Defendant’s response states:
Subject to and without waiving its objections, Rad Ltd. will produce
its counsel’s communications with CMS regarding the subpoena. By doing
so, Rad Ltd. does not concede—and expressly reserves—its objections to the
relevancy of those communications. Rad Ltd. otherwise objects to this
Request and declines to produce documents, including communications with
other recipients of third-party subpoenas issued by Rad Ltd.
(Id. at 283.) Relator argues the response remains deficient because it preserves objections,
refuses to produce communications with subpoena recipients other than CMS, and fails to
state whether responsive materials are being withheld. (Doc. 102 at 55–56.) Relator asks
the Court to overrule Defendant’s relevance objection, including with respect to the CMS
communications Defendant has already produced. (Id.; see Doc. 110 at 7.) Defendant
maintains that contemporaneous communications between it and subpoena recipients are
not relevant. (Doc. 108 at 39–40.)
With respect to Defendant’s counsel’s communications with CMS, there does not
appear to be any dispute remaining for the Court to resolve. Defendant has produced its
communications with CMS regarding the subpoena and declaration. The Court notes those
communications have proven relevant; their discovery led to the withdrawal and
amendment of the initial Baldwin declaration. (See Doc. 110 at 7.) With respect to
Defendant’s communications with other subpoena recipients, Defendant’s relevance
objection is overruled. If Defendant has subpoenaed another third party for potential
evidence, the documents and evidence Defendant receives in response to the subpoena are
plainly relevant. See Wells Fargo Bank NA v. Wyo Tech Inv. Grp. LLC, 385 F. Supp. 3d
863, 873 (D. Ariz. 2019) (“The test for ‘relevance,’ in the context of a Rule 45 subpoena
to a non-party, is no different than the test under Rule 26.”); Fed. R. Civ. P. 26(b) (the
scope of discovery includes “any nonprivileged matter that is relevant to any party’s claim
or defense”). Correspondence “that relate[s] to this case or to the subpoena or subpoena
process,” including “service, compliance, responses, or production of documents,” is
sufficiently related to the subpoenaed information or evidence and, like the CMS
communications, may bear on the weight of such evidence. Additionally, the case
Defendant cites is distinguishable. (See Doc. 108 at 39 (citing Free Steam Media Corp. v.
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Alphonso, Inc., No. 17-mc-00011, 2017 WL 11632962, at *6 (C.D. Cal. May 4, 2017)).)
In Free Stream, a patent plaintiff sought to compel a third party to produce “any
communications concerning the . . . litigation between [the third party] and [the
defendant].” 2017 WL 11632962, at *1. The court denied the request in part because the
plaintiff could have requested the communications directly from the defendant, as Relator
has done here. Id. at *6. Defendant must: (a) provide a response that complies with Rule
34, specifying what will be produced and what will be withheld (and on what basis); and
(b) produce responsive, non-privileged documents within the full scope of RFP No. 32, to
the extent any exist.
2. Interrogatories
a. Interrogatory No. 1
Interrogatory No. 1 states: “Identify all radiologists employed by or associated with
Your practice from July 1, 2013 through December 31, 2021, including for each person
their full name, National Provider Identifier (NPI) number, and dates of association with
Your practice.” (Doc. 103-1 at 240.) Defendant provided a list of radiologists that included
dates of employment but not NPI numbers. (Doc. 103-1 at 241–44.) Relator argues the NPI
numbers are relevant because they are standardized identifiers necessary to link identified
radiologists to Medicare claims and payment data, and to make sense of claims and
payment materials produced in response to RFPs. (Doc. 102 at 57.) Defendant summarily
argues that the NPI numbers are irrelevant. (Doc. 108 at 41.) As there is no apparent reason
to withhold the NPI numbers, and Defendant provides none, Defendant must: (a)
supplement Interrogatory No. 1 by providing the NPI number for each identified
radiologist; or (b) produce a Rule 33(d) dataset or document set that clearly maps each
identified radiologist to his or her NPI.
b. Interrogatory No. 2
Interrogatory No. 2 states:
Identify all claims You submitted to CMS from July 1, 2013 through
December 31, 2021, seeking payment for the provision of non-
mammographic diagnostic radiological readings. For each claim, state the
date of submission; the name of the rendering physician; the CPT code(s)
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identified in the claim; any CPT code modifier(s), including those for
technical and professional components; and the amount of payment sought.
(Doc. 103-1 at 244.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce claims data under Rule 33(d) for non-mammographic diagnostic
readings of x-ray, CT, and MRI images performed for traditional Medicare
beneficiaries from July 1, 2013 to December 31, 2021, to the extent it exists
and can be located after a reasonable search. Rad Ltd. otherwise stands on its
objections.
(Id. at 245.) Relator argues the response is deficient because it (1) invokes Rule 33(d)
without identifying records as Rule 33(d) requires, and (2) narrows the scope to “traditional
Medicare beneficiaries” and x-ray, CT, and MRI readings. (Doc. 102 at 58–59.) To the
extent Defendant asserts a relevance objection on grounds discussed above, the objection
is overruled. Defendant does not attempt to justify the limitations described in its
response.11 Thus, Defendant must: (a) provide a sworn, complete answer to Interrogatory
No. 2; or (b) produce responsive records pursuant to Rule 33(d) and identify them with the
specificity required by the Rule.
c. Interrogatory No. 3
Interrogatory No. 3 states:
Identify all CPT codes and CPT code modifiers (including those for
technical and professional components) You utilized in submitting claims for
non-mammographic, diagnostic radiological readings from July 1, 2013
through December 31, 2021.
(Doc. 103-1 at 245.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce claims data under Rule 33(d) for non-mammographic diagnostic
readings of x-ray, CT, and MRI images performed for traditional Medicare
beneficiaries from July 1, 2013 to December 31, 2021, to the extent it exists
and can be located after a reasonable search, which includes CPT codes. Rad
Ltd. otherwise stands on its objections.
(Id. at 246.) For the reasons discussed above, see supra Section III.C.2.b., Defendant must:
(a) provide a sworn, complete answer to Interrogatory No. 3 identifying the CPT codes and
modifiers used; or (b) produce responsive records pursuant to Rule 33(d) and identify them
with the specificity required by the Rule.
11 In response to the alleged deficiencies, Defendant reiterates what it “has agreed to
provide,” and states Relator’s Motion should be denied “[t]o the extent Relator seeks the
production of additional, irrelevant information.” (Doc. 108 at 41–42.)
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d. Interrogatory No. 4
Interrogatory No. 4 states:
Identify all payments You received from CMS related to the claims
identified in response to Interrogatory No. 2. For each payment, state the date
of receipt; the amount received; and the claim number associated with the
payment.
(Doc. 103-1 at 246.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce payment data under Rule 33(d) associated with claims for non-
mammographic diagnostic readings of x-ray, CT, and MRI images
performed for traditional Medicare beneficiaries from July 1, 2013 to
December 31, 2021, to the extent it exists and can be located after a
reasonable search. Rad Ltd. otherwise stands on its objections.
(Id. at 247.) For the reasons discussed above, see supra Section III.C.2.b., Defendant must:
(a) provide a sworn, complete answer to Interrogatory No. 4 identifying the payments,
dates, amounts, and claim numbers for the full responsive claims universe; or (b) produce
responsive records pursuant to Rule 33(d) and identify them with the specificity required
by the Rule.
e. Interrogatory No. 5
Interrogatory No. 5 states:
Identify all instances in which CMS denied or partially denied a claim
You submitted for non-mammographic diagnostic radiological readings on
the basis that the services, or any component of same, were not reasonable
and necessary for the diagnosis or treatment of illness or injury within the
meaning of 42 U.S.C. § 1395y(a)(1)(A). For each such instance, state the
date of the denial; the claim number; the reason provided by CMS for the
denial; and the amount of reimbursement denied.
(Doc. 103-1 at 247.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents under Rule 33(d) showing claims for non-
mammographic diagnostic readings of x-ray, CT, and MRI images
performed for traditional Medicare beneficiaries from July 1, 2013 to
December 31, 2021 that were denied by CMS based on medical necessity, to
the extent any exist and can be located after a reasonable search. Rad Ltd.
otherwise stands on its objections.
(Id. at 248.) For the reasons discussed above, see supra Section III.C.2.b., Defendant must:
(a) provide a sworn, complete answer to Interrogatory No. 5 identifying the denials; or (b)
produce responsive records pursuant to Rule 33(d) and identify them with the specificity
required by the Rule.
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f. Interrogatory No. 6
Interrogatory No. 6 states:
Identify all communications between You and CMS relating to the
submission, processing, or payment of claims for non-mammographic
diagnostic radiological readings, and the technology, equipment, or monitors
used to perform such readings.
(Doc. 103-1 at 248.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged communications under Rule 33(d) between Rad Ltd.
and CMS regarding the monitors Rad Ltd. used for non-mammographic
diagnostic readings of radiological images, to the extent any exist and can be
located after a reasonable search. Subject to that agreement, Rad Ltd.
responds that it is not aware of communications to produce in response to
this Interrogatory.
(Id. at 249.) To the extent Defendant asserts a relevance objection on grounds discussed
above, the objection is overruled. See discussion supra Section III.A. And for the reasons
discussed above, see supra Section III.C.2.b., Defendant must: (a) provide a sworn,
complete answer to Interrogatory No. 6 identifying responsive CMS communications
within its full scope and not limited to those “regarding the monitors”; or (b) produce
responsive records pursuant to Rule 33(d) and identify them with the specificity required
by the Rule.
g. Interrogatory No. 7
Interrogatory No. 7 states:
Identify and describe all equipment and software used in any
workstation for the provision of non-mammographic diagnostic radiological
readings from July 1, 2013 through December 31, 2021. This interrogatory
includes, without limitation, the identification of displays, monitors, graphics
cards, CPUs, peripherals, operating systems, image-processing software,
calibration tools, and any other hardware or software components used in
Your diagnostic workstations. For each item identified, state the make,
model, version, or edition; the dates of use; and the purpose or function of
the equipment or software within the workstation.
(Doc. 103-1 at 250.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. responds that
its radiologists interpreted non-mammographic radiological images on Dell
UP3017 and U3219Q monitors, and that Windows 7 and 10 were used as
operating systems between the time period of January 1, 2016 and December
31, 2021. Rad Ltd. will supplement this response under Rule 26(e), including
by producing non-privileged documents under Rule 33(d), to the extent
additional responsive information becomes available through discovery. Rad
Ltd. otherwise stands on its objections, including its objections to producing
information regarding non-monitor equipment and software, graphics cards,
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CPUs, peripherals, image-processing software, and calibration tools because
that information is not relevant.
(Id. at 251.) Defendant’s relevance objection to producing information related to non-
monitor equipment and software, graphics cards, CPUs, peripherals, image-processing
software, and calibration tools is overruled. See discussion supra Section III.A. Defendant
must: (a) provide a sworn, complete answer to Interrogatory No. 7 identifying and
describing non-monitor workstation hardware and software components; or (b) produce
responsive records pursuant to Rule 33(d) and identify them with the specificity required
by the Rule.
h. Interrogatory No. 8
Interrogatory No. 8 states:
For each item of equipment or software identified in response to
Interrogatory No. 7, state the cost or amount paid by You for its acquisition,
installation, licensing, or use, including purchase price, subscription or
licensing fees, maintenance charges, service contracts, and any other related
expenditures.
(Doc. 103-1 at 251.) Defendant’s supplemental response states: “Rad Ltd. maintains its
objection to producing information in response to this Interrogatory because the
information sought is not relevant.” (Id. at 252.) Defendant’s relevance objection to
producing cost information related to non-monitor equipment and software, graphics cards,
CPUs, peripherals, image-processing software, and calibration tools is overruled. See
discussion supra Section III.A. Additionally, cost information is relevant to the elements
of Relator’s FCA claim. Defendant must: (a) provide a sworn, complete answer to
Interrogatory No. 8; or (b) produce responsive records pursuant to Rule 33(d) and identify
them with the specificity required by the Rule.
i. Interrogatory No. 10
Interrogatory No. 10 states:
Describe in detail the process by which You decided to use the
displays, hardware, equipment, monitors, or software identified in response
to Interrogatories No. 7. As part of your response, provide or describe all
steps You took to determine whether Your use of non-FDA cleared or
approved monitors or displays would render the related radiological services
reasonable and necessary for the diagnosis or treatment of illness or injury
(see 42 U.S.C. § 1395y(a)(1)(A)).
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(Doc. 103-1 at 253–54.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications under Rule 33(d)
regarding Rad Ltd.’s decision to use monitors for non-mammographic
diagnostic readings of radiological images, to the extent any exist and can be
located after a reasonable search. Rad Ltd. otherwise stands on its objections,
including its objections to producing information regarding non-monitor
hardware, equipment, and software.
(Id. at 255.) Defendant’s relevance objection to producing information regarding non-
monitor hardware, equipment, and software is overruled. See discussion supra Section
III.A. Relator argues the response is deficient also because it fails to identify specific
documents under Rule 33(d) and does not answer the Interrogatory as written. Interrogatory
No. 10 asks for a description of the process by which Defendant decided to use monitors
and related technology. Defendant must: (a) provide a sworn, complete answer to
Interrogatory No. 10; or (b) produce responsive records pursuant to Rule 33(d) and identify
them with the specificity required by the Rule.
j. Interrogatory No. 11
Interrogatory No. 11 states:
Describe in detail all policies, practices, and procedures in effect at
any time from July 1, 2013 through December 31, 2021, relating to the
maintenance of the displays, monitors, or other equipment You used for non-
mammographic diagnostic radiological readings, including cleaning,
software updates, quality control testing, calibrations, diagnostic checks, and
holistic performance monitoring.
(Doc. 103-1 at 255.) Defendant’s supplemental response states: “Subject to and without
waiving its objections, Rad Ltd. maintains its objection to this Interrogatory in its entirety
because the information sought is not relevant.” (Id. at 256.) Defendant’s relevance
objection to producing information regarding maintenance of displays, monitors, and other
equipment is overruled. See discussion supra Section III.A. Defendant must: (a) provide a
sworn, complete answer to Interrogatory No. 11 describing all responsive maintenance,
calibration, quality-control, and monitoring policies, practices, and procedures; or (b)
produce responsive records pursuant to Rule 33(d) and identify them with the specificity
required by the Rule.
//
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k. Interrogatory No. 12
Interrogatory No. 12 states:
Identify all facts supporting Your contention that Your use of non-
FDA cleared or approved monitors and related software for diagnostic
radiology was reasonable, safe and effective for such use, and in
conformance with generally accepted standards of the relevant medical
community.
(Doc. 103-1 at 256.) Defendant’s supplemental response states: “Subject to and without
waiving its objections, Rad Ltd. maintains that it has not made any contentions yet in this
litigation.” (Id. at 258.) Relator asks the Court to overrule Defendant’s relevance and
prematurity objections. (Doc. 102 at 71–72.) Defendant states that it has not objected to
providing information in response to Interrogatory No. 12 and relies on its supplemental
response to RFP No. 16, in which Defendant stated it will produce responsive materials
that support its defenses. (Doc. 108 at 52.)
To the extent Defendant asserts a relevance objection based on its characterization
of Relator’s theory as limited to the monitors’ per se unreasonableness, that objection is
overruled. See discussion supra Section III.A. To the extent Defendant’s answer
incorporates its answer to RFP No. 16 by reference, “incorporation by reference is not a
responsive answer.” Frederics v. City of Scottsdale, No. CV-21-00001, 2022 WL 60546,
at *1 (D. Ariz. Jan. 6, 2022) (quoting Lawman v. City & County of San Francisco, 159 F.
Supp. 3d 1130, 1140 (N.D. Cal. 2016)). To the extent Defendant objects to this
interrogatory as premature, by claiming it has not made any contentions yet, the objection
is overruled.12
“An interrogatory is not objectionable merely because it asks for an opinion or
contention that relates to fact or the application of law to fact, but the court may order that
the interrogatory need not be answered until designated discovery is complete, . . . or some
other time.” Fed. R. Civ. P. 33(a)(2). “Courts generally look with disfavor to broad
contention interrogatories served early during litigation.” Cardoza v. Bloomin' Brands,
12 As mentioned above, Defendant maintains it “has not objected” to Interrogatory No. 12.
(Doc. 108 at 52.) If Defendant’s answer does not state an objection, it is still “evasive or
incomplete” and “must be treated as a failure to . . . answer.” See Fed. R. Civ. P. 37(a)(4);
37(a)(3)(B)(iii).
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Inc., No. 13-CV-01820, 2015 WL 3875916, at *1 (D. Nev. June 22, 2015). “Contention
interrogatories are premature if a propounding party cannot present plausible grounds
showing that early answers . . . will efficiently advance litigation, or if the answering party
does not have adequate information to assert its position.” Id. (cleaned up) (quoting
Facedouble, Inc. v. Face.com, Inc., 2014 WL 585868, *2 (S.D. Cal. Feb. 13, 2014)).
Here, the contention interrogatory is not premature. First, Relator argues the refusal
to answer deprives him “of the basic factual predicate necessary for expert analysis,
depositions, and efficient discovery planning.” (Doc. 102 at 72.) Thus, Relator has
provided plausible grounds that an answer to Interrogatory No. 12 will efficiently advance
litigation. Second, the contention interrogatory does not come early in litigation, and
Defendant has adequate information to assert its position. Defendant was initially served
with this lawsuit in 2021, the operative SAC was filed over two years ago, and initial
disclosures were exchanged in July 2025, approximately one year ago. Importantly,
Defendant filed an answer to the SAC on January 28, 2025, denying allegations that its
radiological services fell below accepted medical standards and violated the reasonable and
necessary requirement. (See Doc. 64.) The Court agrees with Relator. By denying the
SAC’s allegations Defendant has necessarily taken the position that its use of consumer-
grade monitors was reasonable and necessary. Thus, Defendant must provide a complete,
sworn response identifying the principal or materials facts supporting the contention
described in Interrogatory No. 12 and supplement its response as discovery proceeds
pursuant to Rule 26(e). To the extent Defendant relies on documents, Defendant must
identify them with sufficient specificity. Cf. Frederics, 2022 WL 60546, at *1 (citing Gov’t
Benefits Analysts, Inc. v. Gradient Ins. Brokerage, Inc., 2012 WL 3238082, at *9 (D. Kan.
Aug. 7, 2012) (stating contention interrogatories that call for a narrative account of a
party’s case are generally considered overbroad and unduly burdensome).)
l. Interrogatory No. 13
Interrogatory No. 13 states:
Identify all meetings, events, webinars, or conferences (collectively,
“Sessions”) that You (or any person acting on Your behalf) attended in which
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devices or technology used for diagnostic radiological readings were
discussed. For each Session identified, state the title of the Session; the date
of the Session; the person(s) who attended on Your behalf; and a detailed
description of the topics presented or discussed.
(Doc. 103-1 at 258.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents and communications under Rule 33(d)
regarding meetings, events, webinars or conferences inasmuch as they relate
to the monitors Rad Ltd. used for non-mammographic diagnostic readings of
radiological images, to the extent any such materials exist and can be located
after a reasonable search. Rad Ltd. otherwise stands on its objections.
(Id. at 259–60.) Defendant’s relevance objection to producing responsive information that
relates to technology beyond monitor type is overruled. See discussion supra Section III.A.
Defendant must: (a) provide a sworn, complete answer to Interrogatory No. 13; or (b)
produce responsive records pursuant to Rule 33(d) and identify them with the specificity
required by the Rule.
m. Interrogatory No. 16
Interrogatory No. 16 states:
Identify all literature, scientific studies, publications, articles,
presentations, research papers, guidance documents, or other materials that
You contend support or otherwise justify the use of consumer-grade or non-
FDA cleared/approved monitors, displays, or workstations for primary
diagnostic radiological readings. For each item identified, state the full
citation or bibliographic information; the author(s) and publisher; the date of
publication; the manner in which You obtained or accessed the material; and
the specific respect in which You contend the material supports Your use of
such monitors, displays, or workstations.
(Doc. 103-1 at 266–67.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. responds that
it has not made any contentions yet in this litigation, but that Rad Ltd. is
unaware of any literature, scientific studies, publications, articles,
presentations, research papers, guidance documents, or other materials
indicating that Rad Ltd. was required to use any particular type of monitor,
or to refrain from using any particular type of monitor, for non-
mammographic diagnostic readings of radiological images.
(Id. at 268.) For reasons discussed above, see supra Sections III.C.1.u., III.C.2.k.,
Defendant must: (a) provide a sworn, complete answer to Interrogatory No. 16 identifying
any materials it contends support its use of non-FDA cleared or approved monitors,
displays, or workstations; or (b) confirm that no such materials exist.
//
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n. Interrogatory No. 18
Interrogatory No. 18 states:
Identify all hospitals, clinics, or medical facilities to or for which You
provided diagnostic radiology services from July 1, 2013 through December
31, 2021, including the name of a contact person at each facility regarding
Your diagnostic practices.
(Doc. 103-1 at 270.) Defendant’s supplemental response states: “Subject to and without
waiving its objections, Rad Ltd. maintains its objection to this Interrogatory in its entirety
because the information sought is not relevant.” (Id. at 271.) Defendant’s relevance
objection, based on Defendant’s characterization of Relator’s theory as limited to the
monitors’ per se unreasonableness (Doc. 108 at 55), is overruled. See discussion supra
Section III.A. Additionally, the information sought by Interrogatory No. 18 is relevant for
the reasons described in Relator’s Statement of Disputes. (See Doc. 102 at 77.) Defendant
must: (a) provide a sworn, complete answer to Interrogatory No. 18; or (b) produce
responsive records pursuant to Rule 33(d) and identify them with the specificity required
by the Rule.
o. Interrogatory No. 19
Interrogatory No. 19 states:
Identify all private insurers, managed care organizations, or third-
party payers who denied, partially denied, or otherwise issued adverse
determinations on claims submitted by You for diagnostic radiology services
from July 1, 2013 through December 31, 2021, where the stated basis for the
denial was that the services were not medically reasonable or necessary.
(Doc. 103-1 at 272.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents under Rule 33(d) showing claims for non-
mammographic diagnostic readings of x-ray, CT, and MRI images
performed for traditional Medicare beneficiaries from July 1, 2013 to
December 31, 2021 that were denied by CMS based on medical necessity, to
the extent any exist and can be located after a reasonable search. Rad Ltd.
otherwise stands on its objections, including its objections to producing
information regarding denials by private insurers, managed care
organizations, or third-party payers because that information is irrelevant.
(Id. at 273–74.) Relator argues adverse determinations by non-Medicare payers are relevant
to notice, knowledge, materiality, and whether a pattern of reasonable and necessary
coverage refusals exists that bears on Defendant’s compliance culture and institutional
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controls. (Doc. 102 at 79–80.) To the extent Defendant asserts a relevance objection based
on its characterization of Relator’s theory as limited to the monitors’ per se
unreasonableness (Doc. 108 at 56–57), that objection is overruled. See discussion supra
Section III.A. To the extent they exist, adverse determinations by non-governmental payers
“where the stated basis for the denial was that the services were not medically reasonable
or necessary” fall under the broad definition of “relevance” in Rule 26(b). Such
determinations may have some bearing on the element of scienter and whether Defendant
was aware of alleged technological deficiencies in radiological services provided. While
the materiality element looks to CMS’s decision-making, non-governmental payer
decisions may be relevant to whether Defendant’s diagnostic radiological services met
efficacy standards generally accepted in the medical community. Thus, Defendant must:
(a) provide a sworn, complete answer to Interrogatory No. 19; or (b) produce responsive
records pursuant to Rule 33(d) and identify them with the specificity required by the Rule.
p. Interrogatory No. 20
Interrogatory No. 20 states:
Identify all accreditations, certifications, or inspections of Your
radiology practice by the American College of Radiology (ACR), Joint
Commission, or any other accrediting body from July 1, 2013 through
December 31, 2021, including the date, scope, and any findings or
recommendations related to radiological services, workstations, or
diagnostic imaging standards.
(Doc. 103-1 at 274.) Defendant’s supplemental response states:
Subject to and without waiving its objections, Rad Ltd. will agree to
produce non-privileged documents under Rule 33(d) identifying
accreditations, certifications, or inspections of Rad Ltd. conducted by the
American College of Radiology (ACR) or Joint Commission between July
1, 2013 and December 31, 2021, to the extent any exist and can be located
after a reasonable search. Rad Ltd. otherwise stands on its objections.
(Id. at 275.) To the extent Defendant asserts a relevance objection based on its
characterization of Relator’s theory as limited to the monitors’ per se unreasonableness
(Doc. 108 at 58), that objection is overruled. See discussion supra Section III.A. Relator
argues Defendant’s response improperly narrows the Interrogatory by excluding “any other
accrediting body” from its answer. The Court agrees; Defendant fails to explain how
accreditations from bodies other than the ACR and Joint Commission are irrelevant. See
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Hipschman, 738 F. Supp. 3d at 1337 (“[T]he party opposing discovery has the burden of
. . . clarifying, explaining, or supporting its objections.”). Defendant must: (a) provide a
sworn, complete answer to Interrogatory No. 20; or (b) produce responsive records
pursuant to Rule 33(d) and identify them with the specificity required by the Rule.
q. Interrogatory No. 21
Interrogatory No. 21 states:
Identify all Communications between You (including Your counsel,
employees, agents, or representatives) and any government agency,
regulator, investigator, or other governmental entity, or any person or entity
that received a subpoena issued by You in this action, that relate to the subject
matter of this litigation, any subpoena, or the subpoena process.
(Doc. 103-1 at 289.) In relevant part, Defendant’s response states:
Subject to and without waiving its objections, Rad Ltd. will produce
its counsel’s communications with CMS regarding the subpoena. By doing
so, Rad Ltd. does not concede—and expressly reserves—its objections to the
relevancy of those communications. Rad Ltd. otherwise objects to this
Interrogatory and declines to produce information or documents, including
communications with other recipients of third-party subpoenas issued by Rad
Ltd.
(Id. at 290.) Relator argues the response is deficient because: (1) it does not answer the
Interrogatory as written, which calls for identification, rather than production, of
communications, including non-written communications such as telephone calls and
meetings; (2) it refuses to identify communications with any agencies or subpoena
recipients other than CMS; and (3) communications with “subpoena recipients about
subpoena service, compliance, information exchange, and production are directly relevant
to discovery transparency and to evaluating the circumstances and reliability of third-party
materials Rad Ltd has injected into this case.” (Doc. 102 at 83–84.) Defendant maintains
that its communications with third-party subpoena recipients are irrelevant, but it has
agreed to produce its communications with CMS. (Doc. 108 at 59.) The Court agrees that
Defendant’s answer is not responsive to the interrogatory. With respect to Defendant’s
communications with subpoena recipients other than CMS, Defendant’s relevance
objection is overruled. See discussion supra Section III.C.1.y. Accordingly, Defendant
must provide a complete answer identifying all responsive communications between
Defendant and CMS, and any other subpoena recipients, including non-written
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communications like phone calls and meetings.
D. Fees & Costs
Finally, both parties argue they are entitled to fees and costs under Rule 37(a)(5).
(See Doc. 101 at 19–21; Doc. 107 at 22–24.) Because the Court grants Relator’s Motion,
Rule 37(a)(5)(A) applies. See Fed. R. Civ. P. 37(a)(5)(A). Rule 37(a)(5)(A) requires the
Court to order the non-moving party “to pay the movant’s reasonable expenses incurred in
making the motion, including attorney’s fees.” Id. However, “the Court must not order this
payment if: (i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;13 (ii) the opposing party’s nondisclosure,
response, or objection was substantially justified; or (iii) other circumstances make an
award of expenses unjust.” Id. “A position is substantially justified when ‘the parties had
a genuine dispute on matters on which reasonable people could differ as to the appropriate
outcome.’” Big City Dynasty v. FP Holdings, L.P., 336 F.R.D. 507, 513 (D. Nev. 2020)
(quoting Roberts v. Clark Cty. Sch. Dist., 312 F.R.D. 594, 609 (D. Nev. 2016)). The
opposing party bears the burden of establishing substantial justification. See id. Defendant
has failed to meet that burden.
The Court finds that Defendant’s positions overall, in refusing to produce
documents and answer interrogatories, were not substantially justified, and an award of
expenses is not unjust in light of Defendant’s conduct. The core relevance objection
asserted in the discovery dispute and maintained in Defendant’s supplemental responses
mischaracterizes the SAC’s allegations, the law governing Relator’s single “reasonable and
necessary” claim (as explained by the Ninth Circuit in this case), and the rules governing
the scope of discovery. Defendant’s statement that Relator has only ever alleged that the
monitors Defendant used can never be used to provide reasonable and necessary diagnostic
radiological services is not a reasonable interpretation of Relator’s claim. Although the
Defendant claims the argument was made in good-faith, it is not “grounded in the plain
text of Relator’s complaint.” (Doc. 107 at 23–24.)
13 The Court finds Relator attempted in good faith to obtain the disputed discovery prior
to filing the Motion, and Defendant does not argue otherwise.
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Additionally, almost all of Defendant’s responses—both initial and supplemental—
violate either Rule 33(b), Rule 33(d), or Rule 34(b). Defendant failed to answer
interrogatories to the extent not objected to under Rule 33(b); failed to identify responsive
records when invoking Rule 33(d) as an answer to interrogatories; and failed to state
whether responsive materials were being withheld when objecting to RFPs as required by
Rule 34(b)(2)(D). Defendant argues it has agreed to provide much of the information at
issue in the Motion, but agreeing to produce responsive documents and provide responsive
answers at an unspecified future time is not the same as producing the information in, or
concurrently with, the responses themselves. Discovery responses may not be used as
placeholders for future discovery responses.
Further, the timing of Defendant’s actions—serving supplemental responses two
days before the deadline for Relator’s Motion to Compel, for example—appears aimed at
strategically delaying these proceedings. While true that Defendant stated its intention to
provide supplemental responses on multiple occasions, Defendant was aware of the
briefing schedule when it served the responses two business days before the motion
deadline. Moreover, the supplemental responses did not cure the violations of Rule 33 and
Rule 34 in its initial responses, nor did they resolve more than a few of the dozens of
disputed discovery requests at issue in the Motion.
IV. Conclusion
For the reasons explained above, the Court will grant Relator’s Motion to Compel.
The Court overrules Defendant’s relevance objections to RFPs and Interrogatories seeking
information on Defendant’s workstation hardware and configuration, including calibration,
calibration software, quality assurance, and related operational controls, because that
information falls within the scope of discovery under Rule 26(b)(1).
Accordingly,
IT IS ORDERED:
1. Relator’s Motion to Compel Discovery (Doc. 101) is granted. Defendant
must produce responsive documents and provide responsive answers to Relator’s discovery
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requests, in accordance with this Order, on a rolling basis, to be completed no later than
sixty (60) days from the date of this Order. No responsive documents may be withheld
beyond that date except on the basis of privilege, which must be supported by a timely and
compliant privilege log. Any request for an extension of this deadline must be supported
by good cause and approved by the Court.
2. Defendant’s objections to Relator’s First and Second Requests for
Production and Interrogatories are overruled, consistent with this Order’s reasoning and
explanations.
3. Pursuant to Rule 37(a)(5)(A), Relator is awarded his reasonable expenses
and attorney fees incurred in making the Motion. The parties shall meet and confer
regarding the amount of fees and expenses awarded. If the parties are unable to reach
agreement, Relator shall file an application for fees and expenses within 21 days of the date
of this Order. Any application for an award of attorneys’ fees must be accompanied by an
electronic spreadsheet, to be e-mailed to the Court and opposing counsel, containing an
itemized statement of legal services with all information required by Local Rule 54.2(e)(1).
This spreadsheet must be organized with rows and columns and shall automatically total
the amount of fees requested so as to enable the Court to efficiently review and recompute,
if needed, the total amount of any award after disallowing any individual billing entries.
This spreadsheet does not relieve the moving party of its burden under Local Rule 54.2(d)
to attach all necessary supporting documentation to its memorandum of points and
authorities filed in support of its application. A party opposing an application for attorneys’
fees must e-mail the Court and opposing counsel a copy of the moving party’s spreadsheet
adding any objections to each contested billing entry (next to each row, in an additional
column) so as to enable the Court to efficiently review the objections and recompute the
total amount of any award after disallowing any individual billing entries. This spreadsheet
does not relieve the non-moving party of the requirements of Local Rule 54.2(f) concerning
its responsive memorandum.
//
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4. In accordance with the Court’s order staying deadlines in this case while the
Motion to Compel was pending, (see Doc. 109), an Amended Scheduling Order will issue
separately.
Dated this 13th day of July, 2026.
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