Transcript of Case MGMT

Case 9:09-cv-00124-RC Document 98
Case Management Conference
Filed 07/18/12 Page 1 of 26 PageID #: 881 1
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS LUFKIN DIVISION UNITED STATES, EX REL, ET AL VS. PLANNED PARENTHOOD, ET AL | | | | | | | DOCKET 9:09CV124 NOVEMBER 22, 2011 10:43 A.M. BEAUMONT, TEXAS
-------------------------------------------------------VOLUME 1 OF 1, PAGES 1 THROUGH 26 REPORTER'S TRANSCRIPT OF CASE MANAGEMENT CONFERENCE BEFORE THE HONORABLE RON CLARK UNITED STATES DISTRICT JUDGE --------------------------------------------------------
13 APPEARANCES: 14 15 16 17 18 19 20 21 22 23 24 25 Christina L. Bickham, RMR, CRR

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FOR THE PLAINTIFF KAREN REYNOLDS: JOHN MICHAEL LOVE LOVE & WILLS 202 E. LUFKIN AVENUE SUITE 201 LUFKIN, TEXAS 75901 LARRY L. CRAIN AMERICAN CENTER FOR LAW & JUSTICE 5214 MARYLAND WAY SUITE 402 BRENTWOOD, TN 37027 FRANCIS J. MANION AMERICAN CENTER FOR LAW & JUSTICE P.O. BOX 60 NEW HOPE, KENTUCKY 40052
1 FOR THE DEFENDANT PLANNED PARENTHOOD GULF COAST: 2 3 4 5 6 7 8 COURT REPORTER: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Christina L. Bickham, RMR, CRR
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JAMES W. BOSWELL, III KING & SPALDING - ATLANTA 1180 PEACHTREE STREET, NE ATLANTA, GEORGIA 30309 J. THAD HEARTFIELD THE HEARTFIELD LAW FIRM 2195 DOWLEN ROAD BEAUMONT, TEXAS 77706
CHRISTINA L. BICKHAM, CRR, RMR FEDERAL OFFICIAL REPORTER 300 WILLOW, SUITE 221 BEAUMONT, TEXAS 77701
PROCEEDINGS REPORTED USING COMPUTERIZED STENOTYPE; TRANSCRIPT PRODUCED VIA COMPUTER-AIDED TRANSCRIPTION.
(REPORTER'S NOTES 11-22-2011, PLANNED
2 PARENTHOOD, 10:43 A.M., TUESDAY, NOVEMBER 22, 2011, 3 BEAUMONT, TEXAS, HON. RON CLARK PRESIDING.) 4 5 (OPEN COURT, ALL PARTIES PRESENT.) THE COURT: I call -- well, I guess
6 technically it's still United States versus Planned 7 Parenthood; but since the United States and the State 8 have both declined to be active, it would be Reynolds 9 versus Planned Parenthood , et al , Number 9:09cv124. 10 11 Who is here for plaintiffs? MR. LOVE: Your Honor, Mike Love on behalf of
12 relator, along with Larry Crain and Francis Manion. 13 14 15 THE COURT: Very good. Welcome.
And for defendants? MR. HEARTFIELD: Good morning, your Honor. I have with me
16 Thad Heartfield for Planned Parenthood. 17 Mr. Jim Boswell from Atlanta, Georgia. 18 19 MR. BOSWELL: THE COURT:
Good morning, your Honor. Okay. And we had a motion to
20 substitute out counsel early on, right? 21 MR. HEARTFIELD: Yes. Alissa Rubin has gone
22 into a nonprofit organization and -23 24 25 THE COURT: MR. LOVE: THE COURT: Okay. Any objection?
No objection, your Honor. All right. And have you filed
Christina L. Bickham, RMR, CRR

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1 with the Eastern District Clerk's Office? 2 already a member of the bar? 3 MR. BOSWELL:
Are you
I have filed for pro hac status,
4 your Honor; and it has been granted. 5 THE COURT: Okay. Then I will grant that
6 motion to let her withdraw and let you appear. 7 8 9 MR. BOSWELL: Thank you. Thank you, your Honor. We're here on the
MR. HEARTFIELD: THE COURT: Okay.
10 scheduling conference.
It's under the False Claims Act;
11 so, jurisdiction will be uncontested. 12 We just had defendant's motion to dismiss the That was filed on the 17th; so,
13 third amended complaint. 14 it's not ripe yet. 15
One of the reasons I wanted counsel here in
16 person, although local counsel are probably familiar with 17 this, is that I want to be very sure that both sides are 18 very familiar with our local rules dealing with 19 disclosure and discovery. If you're used to practice in
20 other jurisdictions, you may be more in tune with the 21 Federal Rules on disclosure which are much more limited 22 than ours. 23 And I'm sure you've talked with Mr. Heartfield But one of the ways that Judge
24 about this, or you will.
25 Ward put it was if there are documents that you don't Christina L. Bickham, RMR, CRR
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1 want to turn over, those are the ones that you have to 2 turn over. If they're going to hurt you, well, that
3 makes them relevant. 4 And the whole purpose of this, of course, is This goes back to 1992 when this All of the studies showed
5 to reduce expense.
6 district adopted those rules.
7 that it was discovery that was pushing the expense of 8 cases beyond the reach of ordinary people. And in this
9 particular case, obviously, presumably the Planned 10 Parenthood entities do not want to be spending endless 11 money in litigation. They want to be serving clients.
12 Likewise, those who are bringing the case, especially 13 since the government has stepped back, will probably want 14 to conserve their resources. So, I'm going to be looking
15 very closely at Federal Rules of Civil Procedure 1 in 16 terms of discovery; and I'm going to expect counsel to 17 work together on getting the disclosures out and 18 cooperating in that regard. 19 20 other. I'm not expecting you to have to like each I understand that this is an emotional -- I mean,
21 the kind of case that both sides may have -- especially 22 clients may have very definite views. 23 Congress. 24 forum. I don't set policy. But this isn't
This is not a political
I'm going to decide the issues of law and fact,
25 or a jury will, depending on how many different issues Christina L. Bickham, RMR, CRR
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1 are before this particular court.
So, I'm cautioning
2 counsel to focus on those kinds of things as opposed to 3 the more emotional arguments that might be made in a 4 different forum. 5 One of the things that -- you seem to have a
6 tremendous number of people identified for depositions. 7 And, of course, it's always possible to go talk to some 8 witnesses and find out what they're going to say and 9 present them without a deposition, unless you're thinking 10 that a -11 Well, let me ask plaintiff. I mean, are you
12 thinking these people are going to have to be 13 presented -- their testimony is going to have to be 14 presented by deposition? Are you really trying to get
15 discovery from them or are you talking about preserving 16 their testimony or what? 17 18 both. MR. LOVE: Your Honor, it's a little bit of
The case theory of plaintiff is that the corporate
19 office has set up some policies and procedures regarding 20 maximizing revenue, billing everything they can on 21 certain government programs regardless of medical 22 necessity; and that's -- if we boil it down to a 23 nutshell, that's kind of the issue. 24 And plaintiff worked in the Lufkin office and
25 would testify that these directives came from corporate Christina L. Bickham, RMR, CRR
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1 to the Lufkin branch and also witnessed it disseminated 2 to the other areas, to all of the branches; and she has 3 some knowledge of what was going on in different 4 branches. 5 The defense, from conversations that we've
6 already had as well as looking at motions that have been 7 filed, has kind of focused on the idea that our 8 plaintiff, our relator, only has knowledge of what 9 happened in Lufkin and that if there is anything going 10 astray, it's only in Lufkin and not everywhere else. 11 And, so, one of the reasons that we've
12 identified potentially this many depositions is that -13 to go and verify, basically take corporate people, take 14 Lufkin people. 15 And that's a pretty good number there.
But now we've got 11 clinics; and what we kind
16 of did as a good faith estimate is if we have to go and 17 get evidence locked down that what's happening at one 18 clinic is happening at all these other clinics, well, 19 that's 11 times -- and we just chose the number of two 20 per clinic; and that would give us 22. 21 By conversations I've had with counsel, I
22 think there is a good chance that as we move forward with 23 this and we start seeing the same kind of documents 24 proving things out and witnesses proving things out from 25 one clinic to the next, then certainly we'll be looking Christina L. Bickham, RMR, CRR
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1 to try to limit those depositions and won't be trying to 2 go get 22 depositions that are all identical. 3 THE COURT: Well, for example, the identities
4 you list on page 6 starting with Peter Durkin through 5 Ella Conrad, are those individuals employed at these 6 various clinics or -- in other words, people who are 7 listed A through M there, are those the ones at the 8 clinic; or is that under N where you've got this other 9 group of... 10 MR. LOVE: Yes, your Honor, the identities A
11 through M are the corporate representatives, a good many 12 of which are still employees of the defendant. They're
13 the corporate officers of the main defendant in Houston, 14 and those are kind of the top people with relevant 15 knowledge. We certainly don't anticipate to depose all
16 of those folks actually. 17 THE COURT: Well, you do understand that if
18 you go ahead and depose, say, Pam Garrett, that's not a 19 30(b)(6) deposition; and she doesn't bind the 20 corporation. I mean, the whole purpose of 30(b)(6) is They get to pick who has the
21 you put out the notice. 22 most knowledge.
Then they're expected to prepare that
23 person, and then they're stuck with that person's 24 testimony as to the corporation. 25 But if you try to just depose all of these Christina L. Bickham, RMR, CRR
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1 people, it's not quite the same as a binding on the 2 corporation. I mean, it's hard, I guess, to -- if you've
3 got the president of the corporation saying "X," it's a 4 little hard for a lawyer to come in and say, "No, no, Y." 5 But at the same time technically -- I mean, you do 6 understand technically speaking, you may be, one, 7 deposing way too many people and, two, not getting the 8 information you need. 9 MR. LOVE: Certainly, your Honor. We plan to
10 rely primarily on the 30(b)(6) as far as binding the 11 corporation, but we did want to list some of these folks 12 as additional witnesses outside of the 30(b)(6). 13 THE COURT: Well, given the number of people,
14 it would appear to the court that while normally a 15 deposition can take seven hours under the rules, 16 especially if it's going to be repetitive and especially 17 if some of these can be gone down to a 30(b)(6) 18 deposition, it might be better to look at just a total 19 number of hours of deposition time, which gives you an 20 incentive to get right to the point rather than going 21 through somebody's entire history in high school and 22 college before you finally start asking them a question 23 about the case. Not that you would do that, but we've
24 all seen young attorneys do that when they show up with a 25 form book at a deposition. Christina L. Bickham, RMR, CRR
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And, so, I'm wondering if maybe, given this
2 large number of people, I could set a time limit like, 3 say, 45 or 50 hours and then you could go ahead and 4 depose the people and that would give some incentive to 5 move along quickly. 6 Obviously if a witness is instructed to have
7 long delays between each answer or pretend not to 8 understand English, that's going to cause a problem. 9 I'm sure with Mr. Heartfield on your side, that's not 10 going to happen. 11 12 13 14 MR. BOSWELL: THE COURT: That won't happen, your Honor. No. I didn't think it would. But
What's your thought on that? MR. LOVE: Your Honor, we're certainly open to
15 that, whatever the court would like to do or counsel 16 would like to do in that regard. 17 THE COURT: Well, what I think I will do,
18 then, is I will give each side 50 hours of deposition 19 time; and that's whether you're asking questions on 20 direct or cross -- let's do it this way. We'll do If you
21 45 hours for all these witnesses plus experts.
22 identify experts, you can go ahead and take them under 23 the rules, the normal seven hours. I don't know how many
24 experts each side is going to do, but we'll put them 25 aside. So, 45 hours for fact witnesses and then your Christina L. Bickham, RMR, CRR
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1 experts. 2 What kind of experts do you think you're going What kinds of
3 to be bringing up in this kind of a case?
4 expert testimony would you think is relevant? 5 MR. LOVE: Your Honor, several. Off the top
6 of my head -- and I want to confer with counsel on that 7 to give you a complete answer. But the best I can do for
8 right now is we're definitely going to probably need some 9 statistician testimony. 10 THE COURT: We -To show that the expected
What?
11 billing is statistically an anomaly or something, or 12 what's the -13 MR. LOVE: Yes, your Honor. I think some of
14 that is going to be kind of a software analysis, and some 15 of it is going to be expert testimony on medical 16 necessity. 17 I can tell the court is interested in my
18 statistician -19 20 21 court. 22 THE COURT: I'm just trying to figure out what I mean, okay, THE COURT: MR. LOVE: No, not particularly. Okay. Then I'm misreading the
23 areas of expertise we're looking at.
24 medical necessity, somebody with -- I mean, a doctor, a 25 physician, a health care provider of some kind who is Christina L. Bickham, RMR, CRR
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1 going to say all of these procedures were not medically 2 necessary and therefore there was overbilling? Is
3 that -- I'm not trying to make you waive anything, but is 4 that generally the kind of thing we're talking about? 5 MR. LOVE: It is generally, your Honor. Our
6 theory of the case is basically that a lot of -- with 7 people on government paying programs, they kind of get 8 everything on a policy basis, tests done and procedures; 9 and people that are cash pay get it as medically 10 necessary. 11 But to fully answer the court's question in
12 that regard, there will be experts regarding medical 13 records, medical necessity, and billing practices. 14 THE COURT: Well, to make it a false claim,
15 aren't you going to have to somehow be showing that 16 unnecessary -- I mean, you know -- well, the classic 17 example is the man in the hospital being charged for 18 feminine hygiene products or the person who just had -19 the case I saw, the lady who just had hip surgery and was 20 being billed for bicycle therapy hours after the surgery. 21 Obvious nonsense but -- I mean, that's one thing. 22 It's a little bit different when someone is
23 saying, "Yeah, I think we need to have this test for 24 possible heart attack" or blood sugar problems or 25 whatever and someone else says, "Well, I'd be willing to Christina L. Bickham, RMR, CRR
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1 let them take the risk." 2 about here? 3 MR. LOVE:
I mean, what are we talking
Exactly.
And that, I think, is why
4 we're going to be looking at some of the statistical 5 evidence as well because medical necessity -- granted, 6 there is a certain amount of gray area where reasonable 7 minds could differ; and, so, I think that's when some of 8 the statistical evidence is going to be pretty important 9 when we say the cash pay 5 percent got this procedure and 10 the Medicaid 95 percent got this procedure. I don't know
11 that it's going to be that dramatic; but I think from 12 what we've already seen, there are some pretty 13 significant differences regarding some of the procedures 14 that are done. 15 And, so, medical necessity -- it would be our
16 position of the case -- applies no matter who is paying 17 the bill. And, so, when you see some of these stark
18 differences, that would be evidentiary in our frame of 19 the case. 20 21 THE COURT: MR. LOVE: Okay. And then there's also policies and
22 procedures and billing practices, revenue goals, things 23 like that that are coming that we anticipate documentary 24 evidence. We have some already that's going to be --
25 there was a corporate policy to maximize the amount that Christina L. Bickham, RMR, CRR
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1 they got from these government programs. 2 THE COURT: Well, that may be true; but are
3 you going to need an expert to say profits are bad? 4 5 MR. LOVE: THE COURT: No, sir. I mean, that's going to be a tough
6 one to make. 7 8 MR. LOVE: THE COURT: Right. Okay. Let me hear from
9 defendants, then.
What kind of expert testimony, if any, You don't have to
10 do you think is going to be needed?
11 identify the expert but just what areas. 12 MR. BOSWELL: Sure. We believe -- and, again, But
13 you said you're not going to bind us with this.
14 there are about 1.8 million patient encounters that are 15 covered by the claims that the relator has made; and we 16 think that to determine if a service was medically 17 necessary, you have to look at the chart. 18 19 20 THE COURT: MR. BOSWELL: THE COURT: The charge or the chart? The chart. Okay. For example --
Is it worth counsel --
21 maybe you've already talked about this -- doing sampling 22 techniques, especially early on? 23 For example, the claim is made that
24 Procedure X is overused; so, rather than go spend the 25 money to go through all 1.4 [sic] million patients, you Christina L. Bickham, RMR, CRR
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1 have a statistically proper sample done.
And if it turns
2 out that it's all normal, then maybe there's not a need 3 to spend endless money to go through every single one. 4 mean, that's similar to, in electronic discovery, going 5 through hashing or other techniques. 6 MR. BOSWELL: I agree, your Honor, again, I
7 without being bound because I hate to bind my client. 8 THE COURT: Well, I haven't -- have counsel
9 even talked about -10 11 12 13 14 MR. BOSWELL: THE COURT: MR. BOSWELL: THE COURT: MR. BOSWELL: We have, your Honor. Okay, good. And I'm very new into the case. Okay. But, you know, I believe that's
15 probably the direction that will be necessary to go. 16 We find in cases a lot of times when the
17 Department of Justice is on the other side, we don't see 18 the sampling process the same way that the government may 19 see it, or in this case the relator; and it may be 20 necessary for both sides to do their own process and then 21 discuss which one is right. 22 But from an expert standpoint, it would be It would be necessary
23 necessary to have a statistician.
24 to have someone to look at medical necessity who has a 25 clinical background. In this case also I think it's

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1 going to be necessary for somebody to give testimony on 2 certain public health and standards of care topics. 3 example, if it is recognized in the public health 4 community that for a patient who's sexually active, that 5 person should be given this particular test if she's 6 under 25 years old and that the CDC recommends that or 7 that's standard medical practice that's accepted, we 8 would have to have somebody talk about those topics. 9 those are the three -10 THE COURT: Well, wait. Presumably plaintiff So, For
11 is not going to be spending a lot of time bringing up -12 I mean, maybe -- but presumably not a lot of time saying 13 that if someone is active, as you say, and is young, they 14 should be tested for STD. I don't know what test you're That sounds
15 talking about, but this is just an example. 16 pretty logical because they're at risk.
Maybe it's not,
17 but it just sounds off the top of my head that it would 18 be logical. 19 I had the impression that your point would be
20 more in terms of overtesting or you're trying to show 21 pretty statistically significant overtesting or 22 overbilling for tests that were not given. 23 24 25 MR. LOVE: THE COURT: MR. LOVE: That's correct. Okay. Some of that involves STD testing,

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1 but certainly a lot of the STD testing is legitimate. 2 3 THE COURT: Okay. Well, that was just an example.
And I guess what I'm thinking of is it
4 doesn't make a lot of sense for an organization with 5 limited resources in tight economic times to spend a lot 6 of time preparing to defend against something that 7 they're not bringing. I mean, it might be worthwhile --
8 I mean, I understand -- I mean, assuming this was a 9 patent case and you had completely unlimited resources, 10 sure, you might want lots of testimony about all the good 11 stuff you do. But maybe it would be best to focus on
12 disproving their claims as opposed to proving that on the 13 side you do good stuff. 14 15 MR. BOSWELL: THE COURT: Agreed. Okay. And I can see
16 Mr. Heartfield smiling about the unlimited resources in a 17 patent case because he does many of those. 18 19 MR. HEARTFIELD: THE COURT: Yes. Sometimes wasted resources. That's what I'm trying to
20 avoid here because I understand this is public funds and 21 I understand that the plaintiffs are limited also and I'm 22 very cognizant of my role in trying to get this issue 23 tried -- or these issues tried but at the same time look 24 at Federal Rule of Civil Procedure 1 and making sure it's 25 efficient. Christina L. Bickham, RMR, CRR
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Okay.
So, obviously somebody in the health
2 care field, somebody talking about the public health 3 aspects, statistician. Any other kinds of experts you
4 think we're going to get into? 5 6 now. 7 THE COURT: Okay. Sounds like you're both on MR. BOSWELL: That's all I can think of right
8 the same track on that, then, too, in terms of kinds of 9 experts. 10 You seem to have agreed on electronic
11 discovery, and you both agreed that necessary steps would 12 be taken to preserve discoverable information. I have
13 entered a protective order on confidential information. 14 I would remind counsel that when you get into various 15 exhibits and charts, please be very careful to be 16 redacting out identifying information. 17 If somebody's Social Security number is there, If somebody's
18 let's go ahead and white that out.
19 personal telephone number or -- I don't know what you 20 have in your records. But maybe a driver's license
21 number, other kinds of things, let's make sure that's 22 whited out because we're in the era of electronic filing 23 of everything. Once it gets into the system, it's out And we certainly don't want
24 there for everybody.
25 somebody's name or address -- and especially I understand Christina L. Bickham, RMR, CRR
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1 that some of your clients are minors. 2 want them being identified out there.
Definitely don't So, let's be very,
3 very careful when you're exchanging documents. 4 Now, if for some reason for tracking purposes You can use
5 the numbers are needed initially, then fine. 6 that for tracking.
But before things get filed with the
7 court and get into our electronic filing system, go 8 through it. I can order redactions later on but by that
9 time it's already out on the Net and I can't take it 10 back. If somebody gets into the system on PACER, looks
11 at it, and distributes it, I can't order them to bring it 12 back to me. 13 Likewise, in court when you're talking and
14 testifying, no need to ask about somebody's personal 15 address or home address because once it's said on the 16 record, it just is a hassle trying to get it redacted on 17 out. So, let's just be aware of that. In this case it
18 appears to be more than many could have that kind of 19 information about the individuals. 20 And I'm not trying to stop you from being able
21 to present your case, but think about ways we can avoid 22 interfering with somebody's privacy. 23 have already thought about that. 24 emphasize it. 25 Are there any concerns about, given the size Christina L. Bickham, RMR, CRR
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And you probably
I just wanted to
1 of the case, the deadline for trial?
I mean, now it
2 would be very easy to change things; but a month or two 3 before trial is not the time to be coming to me for 4 continuance because -- well, either because you don't 5 think you have enough discovery or that was the date that 6 you were planning on taking your second honeymoon. 7 ought to have that scheduled already. I can change You
8 things now; but a month or two before trial, I'm not 9 nearly as forgiving about motions for continuance. So,
10 is this February 13th -- my vanilla order would have put 11 you to trial in September. 12 February 13th of 2013. 13 plaintiffs? 14 MR. LOVE: The truth is, your Honor, I believe You've asked for
Does that work for the
15 with my conversations with Jim and with his predecessor, 16 Alissa, it's optimistic because of the size of the case 17 that we could get that. I think we all kind of agreed on
18 February because we didn't want you to yell at us for 19 asking for April. 20 And to be perfectly honest -Well, no, believe me, I have been
THE COURT:
21 on -- people forget this, but judges have actually 22 been -- or at least I've been a trial lawyer before. And
23 that's why I'm asking this now is what's it going to take 24 realistically. On the other hand, what's it going to
25 take and let's move the case along? Christina L. Bickham, RMR, CRR
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MR. LOVE:
We could be ready by February but
2 it's putting everybody under a lot of pressure and we 3 could be one of those that show up a couple months out or 4 four or five months out and say, "Judge, it's looking 5 really hard. 6 7 8 February. We'd like a continuance." Does defendant agree? We could go to trial in
THE COURT: MR. BOSWELL:
I was not involved in the discussions leading
9 up to the setting of this date. 10 11 is that -12 13 April. MR. HEARTFIELD: I didn't want to ask for THE COURT: Were you, Mr. Heartfield? I mean,
I was the one that was concerned, and I think
14 February is a realistic date. 15 MR. BOSWELL: I'm a little concerned about the
16 expense to my client to extend the track longer than 17 February. 18 THE COURT: Oh, okay. So, you're thinking you
19 can be ready by February? 20 21 22 MR. BOSWELL: Yes. Yes. And you're thinking
MR. HEARTFIELD: THE COURT:
All right.
23 that -- that's unusual because usually the defendant 24 doesn't want to move forward. 25 Now, tell me again now why you're thinking Christina L. Bickham, RMR, CRR
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1 that more than a year from now is too short. 2 MR. LOVE: Just because of the potential size But let me be clear. We're
3 of the case, your Honor. 4 okay with February and -5 6 THE COURT: MR. LOVE:
Okay. -- pushing it to February. Our
7 earlier conversations with the defense side were they -8 Thad was there, too. They were talking April. Alissa
9 was wanting April and there were some real concerns over 10 that and we wanted to be accommodating and also our 11 evaluation was it's going to be tight. But we certainly
12 think we can do it, and we'll commit to moving forward. 13 THE COURT: Well, since you are new in the
14 case, do you want to -- and evidently your predecessor 15 was talking April and maybe Mr. Heartfield was. 16 I don't have a problem with February. 17 better, from my point of view. I mean,
The quicker, the
But do you want to
18 discuss this with Mr. Heartfield real quick before you -19 20 21 22 23 Honor. 24 25 THE COURT: MR. BOSWELL: Okay. All right. MR. BOSWELL: THE COURT: Sure. Go ahead.
(Off-the-record discussion among counsel.) MR. LOVE: We're comfortable either way, your
Your Honor, I do personally feel

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1 more comfortable with April than February. 2 3 THE COURT: MR. BOSWELL: Okay. In my experience the process of
4 designing the statistical methodology if we do sampling 5 is always complicated and takes longer than everyone 6 thinks. 7 THE COURT: Okay. All right. Let's make it
8 April, then. 9 10 11 it. MR. BOSWELL: THE COURT: Okay. I'm not trying to push you into
Actually, as Mr. Heartfield indicated, my general is
12 nine to ten months is plenty enough time to get a trial 13 ready. 14 so -15 MR. HEARTFIELD: I'm going to wipe this But I do understand there are exceptions and
16 experience from my memory, and it won't occur in the next 17 case. 18 19 THE COURT: All right. It won't come up again? If both sides are more comfortable
20 with April -- and I do understand the problems with the 21 sampling and the statistics you're involved with here, 22 and that's why I'm going into this. All right. So,
23 we'll make that April; and that will extend out probably 24 some of the other deadlines also. 25 After we're through here if perhaps counsel Christina L. Bickham, RMR, CRR
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1 could get together with Ms. Magee and let's, you know, 2 take a look at how the other dates will then change and 3 let's make sure -- I mean, you've given a proposal there. 4 But since we're now moving it out to April, let's take a 5 look at those and get something rational that will work 6 for you and work for us. 7 Just so you know, I set a number of motions,
8 such as dispositive deadlines, based on the trial date so 9 that you can get a ruling before you spend all that money 10 preparing for trial. Probably a good 50 percent, maybe
11 33 percent, somewhere in there, of money is spent in that 12 actual trial preparation; and if you've got this great 13 motion for summary judgment, you probably want me to rule 14 on it before you spend all that time. But to do that,
15 you've got to get that filed so that I have time to do 16 it. So, that deadline I back up from the trial and don't The others, much more
17 give a lot of flexibility on. 18 flexible. 19 Ms. Magee.
So, when we're through here, meet with Let's come up with a schedule based off now
20 April of 2013. 21 Anything else, then, from the plaintiff's
22 point of view, either that I've missed or haven't covered 23 or would just be helpful to be discussed since we're all 24 here together? 25 MR. LOVE: I don't think so, your Honor.

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1 2 of view? 3 4
THE COURT:
What about from defendant's point
MR. BOSWELL: THE COURT:
No, your Honor. Okay. Again, I'll remind
5 everybody about the difference between our local rules of 6 disclosure and the Federal Rules, the comment of Judge 7 Ward that one of the best ways to lose a case in the 8 Eastern District is to not comply with the discovery 9 rules, and then remind everybody of the magistrate 10 judges' hotline to handle problems at depositions. Not
11 that I'm inviting them, but we try to move things along 12 as quickly as possible. 13 If on something like that a magistrate judge
14 just isn't available, it's probably better, rather than 15 filing lengthy motions and paperwork, just to call my 16 chambers and see if I want to just go ahead and have a 17 quick telephonic hearing right then to deal with that 18 issue. 19 Okay. It looks like the response deadline --
20 this just was filed on the 17th, the motion to dismiss; 21 so, it will be a while before that's going to be ripe. 22 Okay. Anything else, then, from plaintiff's
23 point of view? 24 25 MR. LOVE: THE COURT: I do not believe, your Honor. From defendant?

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1 2
MR. BOSWELL: THE COURT:
No, your Honor. All right. Then thank you for
3 being here. 4
You are excused, and the court is in recess.
(Proceedings concluded, 11:18 a.m.)
5 COURT REPORTER'S CERTIFICATION 6 I HEREBY CERTIFY THAT ON THIS DATE, JULY 17,
7 2012, THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE 8 RECORD OF PROCEEDINGS. 9
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Christina L. Bickham, RMR, CRR

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Case 9:09-cv-00124-RC Document 98

Case Management Conference

Filed 07/18/12 Page 1 of 26 PageID #: 881 1

13 APPEARANCES: 14 15 16 17 18 19 20 21 22 23 24 25 Christina L. Bickham, RMR, CRR

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(REPORTER'S NOTES 11-22-2011, PLANNED

Good morning, your Honor. Okay. And we had a motion to

No objection, your Honor. All right. And have you filed

Christina L. Bickham, RMR, CRR

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I have filed for pro hac status,

MR. HEARTFIELD: THE COURT: Okay.

It's under the False Claims Act;

13 third amended complaint. 14 it's not ripe yet. 15

One of the reasons I wanted counsel here in

24 about this, or you will.

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6 district adopted those rules.

This is not a political

I'm going to decide the issues of law and fact,

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1 are before this particular court.

So, I'm cautioning

The case theory of plaintiff is that the corporate

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But now we've got 11 clinics; and what we kind

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16 of those folks actually. 17 THE COURT: Well, you do understand that if

21 you put out the notice. 22 most knowledge.

Then they're expected to prepare that

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And, so, I'm wondering if maybe, given this

21 45 hours for all these witnesses plus experts.

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3 to be bringing up in this kind of a case?

23 areas of expertise we're looking at.

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Case 9:09-cv-00124-RC Document 98

Case Management Conference