Dorn-Kerri v. South West Cancer Care, Case No. 06-1754 (S.D. Cal. Aug. 18, 2008):

This was an employment discrimination case where the pro se plaintiff sought discovery of certain information regarding her employer’s medical billing practices. The plaintiff first sought hard-copies of the requested material, but was informed that such information is destroyed as the medical bills were paid by the patients and/or their insurers. Therefore, the trial court ordered that the plaintiff be permitted to conduct an on-site inspection of the employer’s computer systems, with the aid of a computer expert, to see if the information could be regenerated.

Prior to the on-site computer system inspection, the defendant searched its archived tangible files for the requested information, but found no such documents. The defendant also contacted the manufacturer of the medical billing software at issue to determine if the information could be reproduced, but was informed that the software was incapable of such actions. Apparently the evolving nature of the medical billing information input into the system, wherein updates were made as medical bills were paid, thereby altering the status of the accounts tracked therein, prevented the reports from being regenerated.

During this on-site computer inspection, the plaintiff’s computer expert was permitted to instruct the defendant’s employee concerning how to regenerate the reports at issue. However, neither the plaintiff’s expert’s process, nor any attempt by the defendant, succeeded in reproducing the requested reports. Thereafter, the plaintiff sent additional discovery requests (outside the discovery period), to which the defendant refused to respond. Therefore, the plaintiff filed a motion to compel the requested information, as well as electronically stored versions of the requested medical billing reports.

In ruling on that motion to compel, the trial court noted that the plaintiff met her initial burden to establish that the requested information was relevant to the case. However, the requested information was destroyed in the ordinary course of business. (Remarkably, no mention is made concerning if and/or when the defendant employer should have taken steps to prevent this information from being destroyed in the ordinary course of business). The trial court denied the motion to compel, holding that the defendant had “performed its discovery obligations to the best of its ability.” Stating the obvious, the trial court noted that, “[i]f a document or thing does not exist, it cannot be in the possession, custody, or control of a party and therefore cannot be produced for inspection.” Slip Opinion at 8.

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