In Duffy v. Lawrence Memorial Hospital, No. 2:14-cv-2256 (D. Kan. Mar. 31, 2017), a qui tam action plaintiff brought under the False Claims Act against her former employer, the defendant hospital was ordered to produce documents responsive to certain requests.  Nevertheless, the hospital withheld over 15,000 patient records that were responsive to the requests after determining that each record would take 30 minutes to process and review, for a total of 7,787 worker hours over 97 days at a cost of $196,933.23, and redaction of patients’ personal confidential information would take an additional fourteen days at a cost of $37,259.50.  In light of total costs over $230,000, the hospital requested that the court modify its order by limiting the required production to a random sampling of patient records using a statistical tool known as “RAT-STATS.”  The plaintiff opposed modification on the grounds that the hospital had not attempted to meet and confer before requesting the modification; redaction was unnecessary because a protective order was already in place in the case; and the court had already rejected the hospital’s contention of undue burden when the hospital had raised it in an attempt to avoid the production in the first instance.

The district court granted the hospital’s request relief, finding that, if presented with the evidence of the cost of the production, “the [c]ourt may have found the requests at issue unduly burdensome and disproportional to the needs of the case” in the first instance.  Furthermore, the hospital had not “waive[d] its right to seek protection once the enormity of the task became apparent.” The court also found that the hospital did not need to attempt to meet and confer, as the parties had already conferred following the hospital’s objections to the plaintiff’s requests, and the hospital was now “seeking relief from [the court’s] order rather than from a party’s discovery request.”  Accordingly, the court held that “a random sampling” of the patient records “is justified by the time and expense of a full production.”  The court further opined that there was “merit in the method” of random sampling because “the myth that exhaustive manual review is the most effective – and therefore, the most defensible – approach to document review is strongly refuted.”  The court therefore ordered the hospital to produce randomly selected patient records using the RAT-STATS statistical tool, to which the plaintiff had raised no specific criticism or objection.  The court left open the possibility for the plaintiff to address any further issues following the hospital’s production.  Finally, the court permitted the hospital to redact the patient records, notwithstanding the protective order, because “the data at issue relates to patients who are not parties to this action and whose personal confidential information [the hospital] has a legal duty to safeguard.”