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IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
CARLOS VEGA,
Plaintiff, CIVIL ACTION
FILE NO, 23-C-03122-S3
vs.
STACY YOUNG EXCAVATION, INC., and
ELTONJ. HAWKINS,
Defendants.
DEFENDANTS’ RESPONSE TO OMNI HEALTHCARE’S MOTION TO QUASH
AND DEFENDANTS’ CROSS-MOTION FOR SANCTIONS AND FEES AS TO OMNI
COME NOW Defendants and file this Response to non-party Omni Healthcare, LLC
(“Omni’)’s procedurally-improper and legally frivolous Motion to Quash, filed December 20,
2023.
Because (1) Omni lacks any standing to file a motion on behalf of a completely different
non-party, because (2) it has failed to advise this Court of controlling caselaw that is directly
contra. to its positions (including a recent case dealing with Omni’s contract specifically), and
because (3) Omni has intentionally failed to confer with counsel and instead moved to “quash” a
“subpoena” that does not exist, Defendants hereby MOVE to be reimbursed their reasonable fees
and expenses pursuant to 0.C.G.A. § 9-15-14(b). Defendants show as follows:
SHORT SUMMARY OF ARGUMENT
Defendants served an 0.C.G.A. § 9-11-34 (c) non-party discovery request, (not an
0.C.G.A. § 9-11-45 subpoena duces tecum, as Omni claims) upon Northlake Anesthesia
Professionals, LLC (“Northlake”) on November 20, 2023. Ex. A, attached.
Omni’s “Motion to Quash” completely mischaracterizes the discovery request at issue,
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apparently in a bid to skip the USCR 6.4B conferral process that is mandatory for discovery
disputes. There is no quashal procedure for a 0.C.G.A. § 9-11-34 (c) discovery request under
Georgia law, nor is any actual subpoena currently pending for this Court to quash.
Obviously, Defendants also served their request upon Northlake, not upon Omni, meaning
Omni also has no standing or legal basis to move to quash (or otherwise object) to Northlake
producing anything to Defendants. Omni does not speak for Northlake, and Northlake has not filed
anything in this case—neither an objection nor any motion. Northlake is a completely different
entity than Omni. To the extent that Omni has any concems about Northlake potentially violating
some private agreement between Omni and Northlake, that is an issue for Omni to take up directly
with Northlake—not for this Court to issue an advisory opinion upon in a discovery dispute.
Moreover, as discussed extensively below, private confidentiality agreements cannot be grounds
to deny discovery for sound public policy reasons under very clear-cut Georgia law, and discovery
exceptions will be read into any confidentiality contract that fails to contemplate them.'
! “The public policy of Georgia does not permit parties to contract privately for the
confidentiality of documents or testimony, and thereby foreclose others from obtaining, in the
course of litigation, materials that are relevant to their efforts to vindicate a legal position. To hold
otherwise would clearly not serve the truth-seeking function of discovery in civil litigation.”
Barger v. Garden Way, Inc., 231 Ga. App. 723, 725, 499 S.E.2d 737, 741 (1998) (editorial
emendations omitted, and superseded by statute only as to different proposition of law); see also
[Redacted] v. [Redacted], 326 F. Supp. 3d 1349, 1355 (M.D. Ga. 2018) (“Moreover, Georgia law
does not support the proposition that a confidentiality agreement is void in its entirety simply
because the agreement does not expressly allow a party to testify or otherwise comply with a
subpoena, court order, or applicable law. In those cases, the courts have instead found that the
confidentiality agreements implicitly allow for such disclosure”) citing Barger.
“The common law, too, embodies the principle that the public has a right to every man’s evidence.
If the testimony plaintiffs seek is otherwise discoverable, Corizon and Riner’s agreement cannot
prevent it.” Ajibade v. Wilcher, CV 416-082, 2017 WL 5196608, at *1 (S.D. Ga. Nov. 9, 2017)
citing United States v. Bryan, 339 U.S. 323, 331 (1950); Doe No. 1 v. United States, 749 F.3d 999,
1009 (11th Cir. 2014) (declining to recognize a common-law privilege for plea negotiations).
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Notably, Omni has also completely failed to confer with Defense counsel (as is mandatory
under USCR 6.4B) prior to filing its Motion. It appears to have misleadingly re-characterized
Defendants’ requests as a “subpoena” specifically so it could try to get around that requirement.
Had it conferred, Defense counsel would have pointed Omni to the numerous cases discussed
herein that all prove Omni’s objections are completely baseless. Most notably, Omni knows or
should already be aware that the Georgia Court of Appeals has specifically endorsed this exact
same discovery with specific reference to Omni itself, in a holding issued earlier this year; but,
remarkably, Omni has completely failed to disclose that “directly adverse” controlling authority
to this Court.
Furthermore, Defendants have very “good cause” to seek all communications and contracts
between Omni and Plaintiff’s lien-based care providers involved in this case, because Omni’s
contract has been produced before and contains some very conceming provisions. Moreover,
recent discovery in other matters has shown that Omni makes de facto medical treatment decisions
for lawsuit plaintiffs based upon its assessment of the strength or weakness of their legal cases,
conveying those decisions via back-channel email communications to the lawsuit plaintiffs’
medical providers with whom it is in business.
Omni’s Motion to Quash is legally baseless, improperly interposed on behalf of a different
non-party that it lacks any standing to speak for, and clearly intended to deny Defendants lawful
2 See Benchmark Rehab. Partners, LLC v. SDJ Logistics, LLC, 367 Ga. App. 203, 203, 885 S.E.2d
224, 226 (2023), affirming order requiring non-party to produce “(1) All correspondence with
Plaintiff’s counsel and/or counsel’s firm, as well as any factoring, funding, or similar company,
including but not limited to Glofin, Medchex, Omni [the movant at bar], pertaining to this
Plaintiff and/or this case; [] (3) Any contract with any factoring, funding, or similar company,
including but not limited to Glofin, Medchex, Omni [the movant at bar], applicable to this
Plaintiff and/or the case”; see also Ga. R. Prof. Cond. 3.3(a)(3).
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discovery that the Court of Appeals has recently held to be proper. Accordingly, Omni’s motion
“lacks substantial justification,” was interposed for “purposes of delay or harassment,” and has
“unnecessarily expanded these proceedings” in an effort to force Defendants to incur inflated legal
expenses, as contemplated by 0.C.G.A. § 9-15-14. Omni’s motion was clearly intended to be a
brush-back to Discovery—a tactic defense counsel is more than familiar with from abundant
litigation with personal injury lien clinics and their associated medical funding companies. Omni
should be sanctioned for filing its frivolous motion, and ordered to reimburse Defendants their
reasonable fees and expenses incurred in responding to same.
FACTS
Defendants served Northland Anesthesia (not Omni) with the non-party discovery request
attached as Ex. “A,” on November 20, 2023. Northlake’s records custodian Cathy Packwood
properly conferred with Defense counsel Luke Kennedy on November 28, 2023, indicating by
phone that she (incorrectly) believed she was not allowed to produce materials in Northlake’s
possession that were subject to a private confidentiality agreement with Omni. As addressed
herein, Georgia law explicitly states that a private confidentiality agreement is no barto discovery.
Therefore, Defense counsel encouraged Northlake both by phone and by email to make a full
production, or to otherwise file a motion if it believed it could not.
However, Northlake has not filed any objections whatsoever. Instead, Omni, which lacks
any standing to speak for Northlake, has improperly filed its “Motion to Quash” without making
any effort to confer with Defense counsel, as is mandatory under USCR 6.4B. Omni makes only
two arguments in its perfunctory six-page brief: (1) alleged “confidentiality” as to amorphous,
undefined “trade secrets,” and (2) the “collateral source rule” — neither of which are bars to
discovery as a matter of clear Georgia law, addressed below.
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CONTROLLING PROCEDURE
Dekalb County State Court Judge Wayne Purdom is the author of GEORGIA CIVIL
DISCOVERY WITH ForMS. That useful work addresses the distinction between a true subpoena
duces tecum (which is what Omni incorrectly claims Defendants served upon Northlake), and a
non-party request issued under 0.C.G.A. § 9-11-34, as follows:
Confusion exists over the distinction between a request for the production of
documents under the discovery rules and a notice to produce under the rules of
evidence. Each is a different rule of procedure, and the difference between them
should be kept in mind.
A request for the production of documents (0.C.G.A. § 9-11-34) is a discovery tool,
designed to determine facts before a hearing or trial. A notice to produce (0.C.G.A.
§ 24-13-27) is not a discovery tool. Notices to produce are authorized by provisions
in the evidence code which are designed to ensure that documents will be brought
to a trial for examination and possibly for introduction as evidence in the
proceeding. In particular, a notice to produce should not be used in connection with
a deposition; a request for production or a subpoena should be used instead.
Subpoenas for production of documents and notices to produce, GA. CIviL DIScovERY § 13:5.
With respect to an O.C.G.A. § 9-11-45 subpoena, which again is what Omni incorrectly
claims Northlake received here, Judge Purdom has this to say:
If the witness is not a party to the litigation, they must be subpoenaed under the
procedure set forth in 0.C.G.A. §§ 9-11-45, 24-13-21, and 24-13-22. A subpoena
merely requiring the attendance of the witness will not ensure that the witness
brings the appropriate documents. Therefore, it is necessary to issue a subpoena
for the production of documents.
The witness must then produce the documentary evidence called for in the
subpoena (sometimes called a subpoena duces tecum) unless the items are not
properly subjectto discovery. This procedure is set out in 0.C.G.A. § 24-13-23(b).
§ 9:12. Production of documents at deposition, GA. CIVIL DISCOVERY § 9:12.
Here, Defendants have not issued any witness subpoena under 0.C.G.A. § 9-11-45 to
anyone at Northlake, nor have they issued any subpoena to produce records under 0.C.G.A. § 24-
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13-27. Instead, Defendants merely served a non-party document request, the procedure for which
is as follows:
Requests for production of documents can be used to secure documents from nonparties.
O.C.G.A. § 9-11-34(c) is broader than Federal Rule 34, which does not authorize the
production of documents from nonparties as part of the discovery in the case. However,
the federal rule does not preclude an independent action against a nonparty for production
of documents and things and permission to enter upon land.
It is important to realize that there are procedural protections and barriers in obtaining
nonparty production, but the scope of discovery and the requirements fora protective order
are governed by 0.C.G.A. § 9-11-26 and are the same for parties and nonparties. Thus, we
have the curious situation that the responding party has the burden of showing “good
cause” when filing a motion for a protective order, but when an objection is filed the
requesting party has the burden of showing “good cause.”
Production from nonparties, Ga. CIVIL Discovery § 13:4.
As addressed below, none of Omni’s arguments raised in its Motion to Quash and Motion
for Protective Order show any “good cause” why this Court should deny Defendants lawful
discovery of documents from a completely different non-party than Omni itself. Moreover,
Defendants have very good reasons for wanting to take a look at the Omni contracts with third
parties like Northlake:
First and foremost, Omni’s contract has been produced before. Defense counsel have been
in possession of one version of Omni’s agreement, attached as Ex. “B”, for several years now.
That contract was with lien clinic Barbour Orthopedics, which happens to also be involved in this
case. Among other things, the Omni-Barbour Orthopedics contract carried a stipulation whereby
Omni entered into a joint marketing agreement with that medical provider, thereby allowing Omni
to market on the medical provider’s behalf, presumably to the personal injury law firms with which
Omni has ongoing relationships:
ARTICLE X
PROMOTION AND LISTING OF HOSPITAL AND PROVIDER
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Ex. B at P5, attached.
It goes without saying that it is beyond unusual for a medical funding company to have an
agreement in place whereby it handles the marketing of a medical provider’s services. No
traditional health insurer (i.e. Blue Cross) would ever take it upon itself to market an independent
third party medical clinic’s facilities, or try to sell that clinic’s procedures to anyone. This type of
agreement only makes sense in the context of lien-based care, whereby funder and clinic alike
enter into a de facto joint venture, in the hope of deriving substantial profits from “marketing” to
plaintiffs’ lawyers, and then handling personal injury plaintiffs’ medical care, all at inflated billing
rates.
And that was not the only abnormal thing about Omni’s contract with a lien-based medical
provider. Concerningly, that contract also carried a stipulation that no medical provider privy toa
contract with Omni could treat patients who were enrolled for coverage under the federal Medicare
or Medicaid programs (indeed, this was the very first stipulation in the agreement, so apparently
it was of great importance to Omni):
THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Ll “Covered Individual” or “ Beneficiary Subscriber” means an individual certified
by OMNI or its designee as cligible for Covered Services and who is participating in the
OMNI program. Under no circumstances shall a Covered Individual be enrolled in the
Ex. B at Pl.
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Why would Omni be so adamant that its associated medical clinic business partners must
avoid treating anyone enrolled in these federal programs? The answer may be that Omni needed
its partners to steer clear of the federal Anti-Kickback Statute and Stark Law. The very fact that
Omni’s form contract requires medical providers to opt out of such programs raises reasonable
questions about whether there may indeed be some form of kickback or referral remuneration in
place, between this funding company and the lien clinics who have provided this Plaintiff with
treatment and medical bills in this case. That is an issue Defendants are entitled to investigate.
Moreover, if the contract at issue contemplates a string of patient referrals, indicating an
ongoing business relationship, that could lead to evidence going to the bias, intent and motive of
the healthcare providers who will testify at trial in this case (as the 11" Circuit recognized in its
seminal ML Healthcare holding):
Defendant does not need to be able to prove a premeditated plan of deceit in order
to probe potential bias. [] Instead, Defendant needed only to show that ML
Healthcare’s payment arrangement had “any tendency” to make bias more probable
than it would be without the evidence. See Fed. R. Evid. 401(a). That requirement
is easily satisfied here. A jury might infer that Plaintiff’s doctors were incentivized
by ML Healthcare’s referral and payment arrangement to provide testimony that
was more favorable to Plaintiff than it otherwise would have been. If so, the jury
would have found bias, which is clearly a relevant consideration in evaluating a
witness’s credibility.
ML Healthcare Servs., LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1302-03 (11th Cir.
2018).
A showing of a pattern of compensation in past cases raises an inference of the
possibility that the witness has slanted his testimony in those cases so he would be
3 The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), and Stark Law, 42 U.S.C. § 1395nn,
prohibit medical providers from paying or receiving kickbacks, remuneration, or anything of value
in exchange for referrals of patients who will receive treatment paid for by government healthcare
programs such as Medicare and Medicaid, and from entering into certain kinds of financial
relationships. Notably, the Stark Law, unlike the Anti-Kickback Statute, flatly prohibits a broad
range of financial relationships, and does not require proof of an intent to induce referrals.
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hired to testify in future cases.
Hudsonv. Wal-Mart Stores E., LP, 3:19-CV-58 (CDL), 2020 WL 8882048, at *2 (M.D. Ga. Oct.
28, 2020)
Moreover, Defense counsel have very good reason to believe that Omni actively engages
with the medical providers with whom it has contracts to direct and control lien patients’ medical
care. In a case undersigned counsel tried in September in Hall County, discovery revealed that
Omni had denied a plaintiff funding (and thus denied her the medical care requested), merely
because of what it characterized as the “minimal PD [property damage] on this accident”
~ -
From: Chris Gould
Sent: Thursday, September 16, 2021 8:21 AM
To; Anna E. Rose
Cc; Anna E, Rose
Subject: RE: externa: REN. Baroo BFC Funding Requested
CAUTION: This email originated irom outside of the organization. Do not click links or open attachments unless you
cognize the sender and kisow the content is safe,
Good morning Anna,
(Cia he inal POT Eh Seve Wil have Yo VERY FERURHETORFURGIR® My apologies that we couldnt
more helpon this one,
be of
Thank you,
Chris
Ex. C, above.
If Omni is making funding decisions for plaintiffs based not on the necessity of the medical
treatment, or even on the reasonableness of the billed charges, but instead based on whether or not
the underlying lawsuit seems to be a good business investment, then that type of evidence would
go directly to the bias of any physician who offers treatment associated with Omni payments and
who then testifies favorably for a plaintiff. And, it is important to note that Barbour Orthopedics
is also involved in the case at bar.
Finally, it is notable that Omni’s contract attached as Ex. A is a 2016 document. In recent
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years, these contracts have grown more complex, most notably in the language regarding the lien
doctors’ obligations to the funding company when it comes time to testify favorably for a given
Plaintiff. Many of these medical funding contracts now carry contractual obligations requiring a
physician who accepts funding company money to “support” the funding company’s recovery —
most notably by providing favorable causation testimony. To provide a specific example, a
contract produced in discovery between funding company Pro Med Capital and lien clinic Spine
Center A tlanta’ in 2018 carried the following provision:
4.4. Client shall provide any and all required support reasonably requested by Funder,
including documents, Account Do uments, depositions, ‘live
testimony
in Court, and reports and
memoranda necessary or desirable, ‘Eran OTE He Pianead: aceunanes RACSaLE due in any
court proceeding, arbitration proceeding, mediation, or settlement negotiations relating to the
Financed Accounts due or the Patient’s demand or lawsuit against Funder, Client or any third party
Ex. D, above
If Omni’s current contract with any of Plaintiff’s treating physicians now carries similar
language, thereby contractually obligating Plaintiff's treating physicians to provide live
testimony “to prove the Financed Accounts Receivable,” then any such agreement would raise
substantial questions going to the testifying expert’s bias, intent and motive. ML Healthcare Servs.
LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1302-03 (11th Cir. 2018); see also Canada v
Shropshire, 232 Ga. App. 341, 501 S.E.2d 860 (1998) (evidence that chiropractor and principal in
law firm had personal relationship, that chiropractor had referred patients to firm, and that firm
had referred clients to chiropractor was relevant and, thus, admissible in motorist’s personal injury
action against driver); Salkic v. Heartland Express, Inc 813 Fed.Appx. 444 (11th Cir. 2020)
(evidence doctor performed 90% of his laser spine surgeries on lawsuit plaintiffs went to bias,
4 See Stephens v. Castano-Castano, 346 Ga. App. 284, 290-91 (2018) (exclusion of evidence of
this same lien doctor’s financial bias resulted in reversal of $700,000 jury verdict)
M1139343.1 16330 10
intent and motive). Indeed, if a doctor has contractually obligated himself to Omni to only testify
a certain way, that might well be the most probative evidence possible of the doctor’s bias.
Omni is well aware that multiple courts have already held that the materials Defendants
seek here from Northlake are not only discoverable, but likely to also be admissible at trial. For
instance, in the recent SDJ Logistics case, the Court of Appeals analyzed an identical discovery
request sent to an identically-situated non-party (there, Benchmark Rehabilitation). That discovery
request specifically sought any contracts held by that non-party with Omni (see fn. 1, supra), and
the Court of Appeals found that those defendants had “good cause” to seek that evidence, as
follows:
5. Good cause.
In its final enumeration of error, Benchmark contends that the trial court erred in
finding good cause to grant the motion to compel. Benchmark, however, has failed
to show an abuse of discretion.
“Georgia’s Civil Practice Act provides for broad discovery into all matters that are
relevant and not privileged.” Bethune v. Bethune, 363 Ga. App. 273, 275 (2), 870
S.E.2d 827 (2022).
Under OCGA § 9-11-26 (b) (1), parties may obtain discovery regarding any matter,
not privileged, which is relevant to the subject matter involved in the pending
action, whether it relates to the claim or defense of the party seeking discovery or
to the claim or defense of any other party. Pursuantto OCGA § 9-11-34 (a) (1), a
party may request that another party produce documents containing matter
discoverable within the scope of OCGA § 9-11-26 (b), and OCGA § 9-11-34 (c)
(1) establishes that the discovery of nonprivileged documents also applies to
nonparties. Thus, as with discovery requested from parties, the only requirements
placed by the Georgia legislature on discovery requested from nonparties is that the
documents must be relevant and nonprivileged. Ortho Sport & Spine Physicians v.
City of Duluth, 352 Ga. App. 215, 216 (2), 834 S.E.2d 315 (2019) (citation and
punctuation omitted).
[...] Benchmark has also misconstrued the trial court’s order by claiming that it
M1139343.1 16330 11
merely made a finding of relevance. “In the context of discovery, courts should and
ordinarily do interpret ‘relevant’ very broadly to mean matter that is relevant to
anything that is or may become an issue in the litigation.” Bethune, 363 Ga. App.
at 275-276 (2), 870 S.E.2d 827 (citation and punctuation omitted). Contrary to
Benchmark’s claim, the trial court did not make such a broad finding that the
documents were merely relevant to anything that may become an issue in the case.
Rather, the trial court also expressly found that the documents were “reasonably
calculated to lead to the discovery of admissible evidence.” Cf. RTA Strategy v.
Silver Comet Terminal Partners, 347 Ga. App. 266, 268-269, 817 S.E.2d 720
(2018) (trial court erred in granting motion to compel production of information
that was neither relevant to the subject matter of the underlying dispute nor
reasonably calculated to lead to admissible evidence). “Even if [such relevant]
information ... would be inadmissible at trial, it is not a ground for objection if the
information sought appears reasonably calculated to lead to the discovery of
admissible evidence.” Ortho Sport & Spine Physicians, 352 Ga. App. at 216 (2),
834 S.E.2d 315 (citation and punctuation omitted).
[...] A party moving to compel discovery against a non-party “shall make a
showing of good cause to support [the] motion.” OCGA § 9-11-34 (c) (1). “What
constitutes good cause is to a very large degree left to the judgment of the trial
court.” Leonard Bros. Trucking Co. v. Crymes Transports, 123 Ga. App. 424, 426
(2), 181 S.E.2d 296 (1971) (citation and punctuation omitted). “This good cause
may be shown in a number of ways, depending on the particular situation involved,
and is largely within the sound discretion of the trial judge. Because the matter is
so highly discretionary — the results [will] vary[ ] from case to case depending on
the specific facts shown to a particular judge[.]” Atlantic Coast Line Railroad Co.
v. Daugherty, 111 Ga. App. 144, 156-57 (3) (a), 141 S.E.2d 112 (1965) (citations
and punctuation omitted). Under the circumstances of this case, Benchmark has
failed to show that the trial court abused its discretion in finding good cause to
compel production of relevant documents that were reasonably calculated to lead
to admissible evidence. See generally McMillan v. General Motors Corp., 122 Ga.
App. 855, 856 (1), 179 S.E.2d 99 (1970) (good cause for production of witness
statement).
Benchmark v. SDJ Logistics, 367 Ga. App. at 205-07 (approving discovery of the very same
contracts and communications that Omni objects to production of here).
Accordingly, Omni has failed to inform this court of the directly on-point controlling
authority holding that its contracts with a non-party medical provider are discoverable, and that
M1139343.1 16330 12
Defendants have “good cause” to seek them.
ARGUMENT AND CITATION OF AUTHORITY
1. Georgia law does not permit a party to shield records from discovery via a private
confidentiality agreement.
Omni’s first bad argument is that this Court should “quash” Defendants’ non-party request
to a completely different entity, because Omni allegedly has a confidentiality agreement in place
with that entity. Georgia law is crystal clear on this situation:
The public policy of Georgia does not permit parties to contract privately for
the confidentiality of documents or testimony, and thereby foreclose others from
obtaining, in the course of litigation, materials that are relevant to their efforts to
vindicate a legal position. To hold otherwise would clearly not serve the truth-
seeking function of discovery in civil litigation.
Barger, 231 Ga. App. 723, 725, 499 S.E.2d 737, 741 (1998). Further, Barger has repeatedly been
re-affirmed:
Moreover, Georgia law does not support the proposition that a confidentiality
agreement is void in its entirety simply because the agreement does not expressly
allow a party to testify or otherwise comply with a subpoena, court order, or
applicable law. In those cases, the courts have instead found that the confidentiality
agreements implicitly allow for such disclosure.
[Redacted] v. [Redacted], 326 F. Supp. 3d 1349, 1355 (M.D. Ga. 2018) (citing Barger).
As the Court’s last Order explained, the private agreement between Riner and
Corizon cannot, under Georgia law, remove her obligation to provide truthful
testimony in response to plaintiffs’ subpoena. See Barger v. Garden Way, Inc., 231
Ga. App. 723, 725 (1998) (“The public policy of Georgia does not permit parties to
contract privately for the confidentiality of documents or testimony and thereby
foreclose others from obtaining, in the course of litigation, materials that are
relevantto their efforts to vindicate a legal position. To hold otherwise could clearly
not serve the truth-seeking function of discovery in civil litigation.” (quotes,
alterations, and cite omitted)). The common law, too, embodies the principle that
“the public has a right to every man’s evidence.” United States v. Bryan, 339 U.S.
323, 331 (1950); Doe No. 1 v. United States, 749 F.3d 999, 1009 (11th Cir. 2014)
(declining to recognize a common-law privilege for plea negotiations). If the
testimony plaintiffs seek is otherwise discoverable, Corizon and Riner’s agreement
M1139343.1 16330 13
cannot prevent it.
Ajibade v. Wilcher, CV 416-082, 2017 WL 5196608, at*1 (S.D. Ga. Nov. 9, 2017).
Moreover, our Court of Appeals has consistently held that non-parties are not entitled to
any special treatment under Georgia’s discovery rules, even if the information sought may be
financial in nature:
[T]he Sechler entities urge this Court to adopt a standard of review recognizing that
anonparty who receives discovery is entitled to additional deference so as to protect
against harassment, inconvenience, or unnecessary disclosure of confidential
documents. We decline to adopt such a standard. []
Here, the subpoenas request nonprivileged, relevant information. Although the
discovery does seek financial information, there is no evidence that the information
could be obtained by other means or that Prime Group’s subpoenas are meant
merely to embarrass or harass Sechler.
Sechler Family P’ship v. Prime Grp., Inc., 255 Ga. App. 854, 856 and 859, 567 S.E.2d 24, 26 and
28 (2002).
Indeed, courts across the country agree that private confidentiality contracts cannot be a
bar to discovery, for the obvious reason that if that were really the law, every litigant would quickly
sign an agreement with some third party straw man, in the hopes of denying his or her adversary
access to otherwise discoverable evidence. The implications of Omni’swag ee “confidentiality” argument
are, frankly, hilarious. Imagine a scenario where a trucking company defendant could simply bind
all its drivers to “confidentiality” and then claim not to owe any records in discovery. Such a claim
would be laughed out of court—as should Omni’s here:
But the mere existence of non-disclosure agreements does not preclude discovery.
Multiven, Inc. v. Cisco Sys., Case No. 08-05391 JW (HRL), 2010 WL 583955, at *
3 (N.D. Cal. Feb. 16, 2010); see also Shvartser v. Lekser, 270 F. Supp. 3d 96, 97
(D.D.C. 2017) (“the non-disclosure agreement itself does not confer a legal
privilege from discovery on any documents that were not already privileged.”).
Indeed, courts “commonly require parties to produce confidential documents.”
Promotional Marketing Insights, Inc. v. Affiliated Computer Servs., Inc., Case No.
M1139343.1 16330 14
11-CV-2795 (PJS/AJB), 2012 WL 3292888, at *1 (D. Minn. Aug.13, 2012).”
BLK Enterprises, LLC v. Unix Packaging, Inc., CV 18-2151-SVW (KS), 2018 WL 5993841, at
*4 (C.D. Cal. Sept. 26, 2018).
Other courts have come to the same conclusion. For example, in Shvartser v.
Lekser, the court found that as “a general rule, ‘confidentiality agreements will not
stand as a barrierto discovery between two parties in litigation.’ ” 270 F. Supp. 3d
96, 98 (D.D.C. 2017) (citing cases in the Ninth and Fifth Circuits); see also Micron
Tech., Inc. v. Factory Mut. Ins. Co., No. 3:18 Civ. 7689 (LB), 2022 WL 1687156,
at *1 (N.D. Cal. May 26, 2022) (“[P]arties cannot simply vitiate their discovery
obligations by asserting third party privacy rights based on NDAs”) (citing BLK
Enterprises, LLC v. Unix Packaging, Inc., No. 18 Civ. 2151 (SVW) (KS), 2018
WL 5993841, at *4 (CD. Cal. Sept. 26, 2018)). In fact, “courts commonly require
parties to produce confidential documents; the confidentiality of those documents
is protected not by denying access to them, but by entering a protective order to
cover them.” United States v. Newman, 531 F. Supp. 3d 181, 193 (D.D.C. 2021);
see also Shvartser, 270 F. Supp. 3d at 98 (citing case from the Eighth Circuit).
Doe v. Benjamin Zaremski M.D., P.C., 21 CIV. 3187 (ER), 2022 WL 2966041, at*10 (S.D.N.Y.
July 27, 2022).
In addition, UPM states in its letter that a witness may not refuse to answer based
on a non-disclosure agreement (NDA). The Court generally agrees with UPM on
this point and hereby orders that an NDA is an insufficient basis to decline to
answer a question at a Rule 30(b)(6) deposition. []
Finally, the Court advises the parties that if a Rule 30(b)(6) witness refuses to
answer a deposition question and the Court later determines that the refusal was
without proper basis, the Court likely will order that the deposition reopened at the
expense of the party producing the witness and the Court would likely also award
all reasonable costs to the party taking the deposition. Further, if the deposition
cannot be reopened or if a wrongful refusal to answer was done in bad faith, the
Court may impose other sanctions, as appropriate, on the organizational party
producing the witness.
Unigestion Holdings, S.A. v. UPM Tech., Inc., 3:15-CV-185-SI, 2021 WL 7710796, at*5 (D. Or.
Oct. 19, 2021).
As a general rule, “confidentiality agreements will not stand as a barrier to
discovery between two parties in litigation.” Saini v. Jnt’/ Game Tech., 434
M1139343.1 16330 15
F.Supp.2d 913, 922 (D. Nev. 2006); see also Multiven, Inc. v. Cisco Sys., Inc., 2010
WL 583955, at *3 (N.D. Cal., Feb. 16, 2010); Inre Grand J ury Subpoena, 148 F.3d
487, 492 (5th Cir. 1998) (““Confidential’ does not necessarily mean ‘privileged.’
»); Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1205 (9th Cir. 1975).
Shvartser v. Lekser, 270 F. Supp. 3d 96, 98 (D.D.C. 2017).
Omni’s counsel are sophisticated, and it is hard to believe that they were unaware that
private confidentiality agreements are no bar whatsoeverto discovery. Even cursory legal research
into this issue would have quickly raised the numerous cases cited above—and Omni’s counsel
are clearly able to research the law.
The fact that Omni nevertheless raised this bad faith argument is simply proof of its anti-
discovery intent, in filing a “Motion to Quash” a non-existent subpoena addressed to a totally
different entity than itself. This is the type of stubbomly-litigious argument that “it could not be
reasonably believed that a court would accept,” and provides further grounds for Omni to be
sanctioned under 0.C.G.A. § 9-15-14 as Defendants have moved.
2. Similarly, Georgia law clearly shows that the Collateral Source Rule is not a bar to
discovery.
Omni’s second bad argument is that the “Collateral Source Rule” somehow bars the
discovery Defendants seek from a completely different entity. This argument is even worse than
Omni’s wo 6, “confidentiality” claim.
First and foremost, the Collateral Source Rule is an evidentiary admissibility standard, not
a discovery rule. And, there are many circumstances where evidence may well be a legitimate
collateral source, but nevertheless be admitted at trial on good grounds, as both the Georgia
Supreme Court and the 11" Circuit have held:
[T]he Georgia Supreme Court has recognized that “there may be another issue in a
case to which evidence of collateral benefits is material.” [Polito v. Holland, 258
Ga. 54, 56, 365 S.E.2d 273, 274-75 (1988)]. When that happens and the evidence
is admitted for that other purpose, the court should nonetheless “charge the jury that
M1139343.1 16330 16
collateral benefits shall not reduce damages the tortfeasor is otherwise liable to
pay.” Id. Indeed, Georgia appellate courts have recognized that evidence of
collateral benefits received by the plaintiff may be admissible for impeachment
purposes when a witness gives false evidence relating to a material issue in the case.
Kelley v. Purcell, 301 Ga. App. 88, 90, 686 S.E.2d 879 (2009) (citing Warren v.
Ballard, 266 Ga. 408, 410, 467 S.E.2d 891 (1996)). In short, under Georgia law,
evidence of collateral benefits is not typically admissible in a personal injury tort
case unless that evidence serves a valid evidentiary purpose other than just
revealing to the jury those benefits. When that occurs and the evidence is admitted,
the trial court should instruct the jury about the limited purpose of the evidence and,
in particular, remind the jury not to consider the collateral payments to reduce its
award of reasonable and necessary medical expenses.
ML Healthcare Servs., LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1298-99 (11th Cir.
2018).
Two ways in which even legitimate collateral source evidence may become relevant are
(1) the bias, intent and motive of a testifying witness (particularly an expert) and (2) the
reasonableness and necessity of medical bills asserted by a plaintiff. For example, the Court of
Appeals has explained:
Roman sought to depose WellStar regarding its “rates or charges for those services
... if provided to uninsured patients; to insured patients; to patients under workers
compensation plans; to patients under Medicare or Medicaid plans; and to litigant
and non-litigant patients[.]” [...]
The trial court found that the evidence sought by Roman was not barred by the
collateral source rule:
[The] collateral source rule bars defendants from presenting
evidence that the claimant has received payment from a third party.
Thus, [Roman] would be precluded from introducing evidence of
WellStar's write-off of Plaintiff's medical treatment. However, the
Court finds no authority in Georgia law to support Non-Party
WellStar's contention that the collateral source rule bars the
discovery of the medical rates and charges of third parties that are
not involved in this case. [...]
The issue before us is not whether the information sought is relevant and admissible
at trial, but whether the trial court abused its discretion in denying the motion to
M1139343.1 16330 17
modify the subpoena. We find no abuse of discretion, particularly in light of the
wide latitude given to make complete discovery possible, the burden on WellStar
“to show more than that the materials would not themselves be admissible at
trial[,]” and the fact that WellStar does not argue that the material is privileged or
that the discovery request is burdensome.
WellStar Kennestone Hosp. v. Roman, 344 Ga. App. 375, 378, 810 S.E.2d 600, 600, 602 (2018)
(discovery request targeting “write-offs” issued to uninsured, insured, worker’s compensation,
Medicare/Medicaid, and litigant versus non-litigant patients is reasonably calculated to lead to
admissible evidence).
In its own landmark holding regarding reasonableness of medical bills, the Georgia
Supreme Court held (in a similar discovery battle):
The fair and reasonable value of goods and services is often determined by
considering what similar buyers and sellers have paid and received for the same
product in the same market, with adjustments upward or downward made to
account for pertinent differences, and we see no reason why the same cannot be
true of health care. []
Bowden v. The Med. Ctr., Inc., 297 Ga. 285, 292, 773 S.E.2d 692, 697 (2015) (e.g. Bowden 1).
Notably, Bowden also makes it quite clear that a medical provider’s reimbursement
percentage is not some kind of closely-held trade secret. The mere cost of goods and services is
not and should not be a secret in Georgia. In fact, the Supreme Court of Georgia directly quoted
and discussed the hospital reimbursement percentages under discussion in its published holding in
Bowden III:
Hospitals [like TMC] set their rates by calculating a “chargemaster rate,” like the
sticker price of a new car, for each service provided, and that rate applies to all
patients receiving that particular service. The hospital determines its chargemaster
rate by factoring in the cost of the service along with the overall costs of operating
the hospital. Every patient is charged the chargemaster rate, but very few patients
actually pay that amount because insurance companies, including Medicare,
Medicaid, and other third-party payers, negotiate a reduced reimbursement rate.
Thus, for patients with insurance, the insurance company will reimburse TMC
pursuant to the negotiated rates. Additionally, Medicare and other govemment
programs have a set methodology used to calculate their reimbursement amounts.
M1139343.1 16330 18
Patients without any insurance or third-party payment source are billed the full
chargemaster rate. For the relevant years pre-dating this lawsuit, the percentage of
TMC patients who paid less than the chargemaster rate was 98.84 percent, while
only 1.16 percent paid the full rate. Regardless of the reimbursement scheme, and
despite the chargemaster rates, TMC collects, on average, about 33 percent of the
chargemaster rate.
To place this rate in context, [because] ... Bowden’s bills totaled approximately
$21,000[,] [and] [b]ecause she lacked any insurance, she was billed that full
amount. Had she been covered by Medicaid, the hospital would have received
$9,895.24 for reimbursement. Medicare would have reimbursed $11,238.11, and
Blue Cross/Blue Shield PPO would have paid $10,644.
Bowden, 309 Ga. 188, 191, 845 S.E.2d 555, 558 (2020).
Moreover, unlike the health insurers whose reimbursement rates were held to be the proper
subject of discovery in Bowden I, then openly discussed in Bowden III, Omni is not even a true
Collateral Source in the first place! Omni is not a health insurer, but rather is a medical funding
company trying to make a profit on this lawsuit. The Southern District has explained Omni’s
business model well, in a case involving an identically-positioned litigation funding company:
Similarly in this case, Key Health, a medical lien funding company, is not a
traditional collateral source. Key Health has not paid or even reduced Plaintiff’s
medical bills. Rather, Key Health has essentially fronted Plaintiff the money for her
treatment, and then Key Health intends to recover that money from Plaintiff after
the lawsuit. Thus, unlike an insurance company, Key Health’s payments do not
reduce Plaintiff's financial obligations.
Rangel v. Anderson, 202 F. Supp. 3d 1361, 1373 (S.D. Ga. 2016).
Omni’s 2016 contract shows how this works. Ex. A reveals that Omni had an arrangement
with Barbour Orthopedics whereby Omni purchased Barbour Ortho’s accounts receivable for only
43% of their stated value (i.e. what the Supreme Court likened to the “sticker price of a new car”):
ADDENDUM A
PAYMENT
M1139343.1 16330 19
Fees will be as follows:
1. Allstandard
services will be paid at 43% of all gross CTP coded charges.
2. All Invoices will be paid with-in 30 days upon receiving all medical notes and
HICFA’s/Invoices.
Ex. B at P8.
However, even though it collected only 43% of its “sticker price,” pursuant to Omni’s
contract, Barbour Ortho was contractually- obligated to accept that amount for any accounts it sold
to Omni “as payment in full”:
ARTICLE IV
PAYMENT
41 The Provider shall be compensated in accordance with Addendum A.
The Provider hereby acknowledges and
Aas
payment
in full for Covered Servi
Ex. B at P3.
If the provider has been “paid in full” for services at only 43% of its “sticker price” charges,
does that not raise reasonable questions about whether its stated charges actually reflect usual,
reasonable and customary rates? Is that not particularly true when the amount the provider has
been paid already exceeds usual, reasonable and customary rates paid by any other payor? Or, as
the Supreme Court put it:
Suppose that, as Bowden argued at the motion to compel hearing, 99% of TMC's
patients who received the same care as she did during the same time period had
insurance and therefore paid the same much lower sum for their care—say, just
$1,000. Under that scenario, a fairminded juror might conclude that the “reasonable
charge” for that care was much closer to $1,000 than to the $21,409.59 that TMC
billed Bowden. Bowden is entitled to determine if evidence exists to support
such an argument.
Bowden, 297 Ga. 285, 292, 773 S.E.2d 692, 697 (2015) (e.g. Bowden 1).
The 11" Circuit devoted lengthy analysis to the disparities that have grown up between the
M1139343.1 16330 20
“sticker price” amount a provider charges and the amount that treatment is actually worth in its
recent Higgs v. Costa Crociere holding:
Today, we adopt the rule that best reflects the idiosyncratic realities of the
healthcare market, avoids reliance on
Preview
IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA CARLOS VEGA, Plaintiff, CIVIL ACTION FILE NO, 23-C-03122-S3 vs. STACY YOUNG EXCAVATION, INC., and ELTONJ. HAWKINS, Defendants. DEFENDANTS’ RESPONSE TO OMNI HEALTHCARE’S MOTION TO QUASH AND DEFENDANTS’ CROSS-MOTION FOR SANCTIONS AND FEES AS TO OMNI COME NOW Defendants and file this Response to non-party Omni Healthcare, LLC (“Omni’)’s procedurally-improper and legally frivolous Motion to Quash, filed December 20, 2023. Because (1) Omni lacks any standing to file a motion on behalf of a completely different non-party, because (2) it has failed to advise this Court of controlling caselaw that is directly contra. to its positions (including a recent case dealing with Omni’s contract specifically), and because (3) Omni has intentionally failed to confer with counsel and instead moved to “quash” a “subpoena” that does not exist, Defendants hereby MOVE to be reimbursed their reasonable fees and expenses pursuant to 0.C.G.A. § 9-15-14(b). Defendants show as follows: SHORT SUMMARY OF ARGUMENT Defendants served an 0.C.G.A. § 9-11-34 (c) non-party discovery request, (not an 0.C.G.A. § 9-11-45 subpoena duces tecum, as Omni claims) upon Northlake Anesthesia Professionals, LLC (“Northlake”) on November 20, 2023. Ex. A, attached. Omni’s “Motion to Quash” completely mischaracterizes the discovery request at issue, M1139343.1 16330 apparently in a bid to skip the USCR 6.4B conferral process that is mandatory for discovery disputes. There is no quashal procedure for a 0.C.G.A. § 9-11-34 (c) discovery request under Georgia law, nor is any actual subpoena currently pending for this Court to quash. Obviously, Defendants also served their request upon Northlake, not upon Omni, meaning Omni also has no standing or legal basis to move to quash (or otherwise object) to Northlake producing anything to Defendants. Omni does not speak for Northlake, and Northlake has not filed anything in this case—neither an objection nor any motion. Northlake is a completely different entity than Omni. To the extent that Omni has any concems about Northlake potentially violating some private agreement between Omni and Northlake, that is an issue for Omni to take up directly with Northlake—not for this Court to issue an advisory opinion upon in a discovery dispute. Moreover, as discussed extensively below, private confidentiality agreements cannot be grounds to deny discovery for sound public policy reasons under very clear-cut Georgia law, and discovery exceptions will be read into any confidentiality contract that fails to contemplate them.' ! “The public policy of Georgia does not permit parties to contract privately for the confidentiality of documents or testimony, and thereby foreclose others from obtaining, in the course of litigation, materials that are relevant to their efforts to vindicate a legal position. To hold otherwise would clearly not serve the truth-seeking function of discovery in civil litigation.” Barger v. Garden Way, Inc., 231 Ga. App. 723, 725, 499 S.E.2d 737, 741 (1998) (editorial emendations omitted, and superseded by statute only as to different proposition of law); see also [Redacted] v. [Redacted], 326 F. Supp. 3d 1349, 1355 (M.D. Ga. 2018) (“Moreover, Georgia law does not support the proposition that a confidentiality agreement is void in its entirety simply because the agreement does not expressly allow a party to testify or otherwise comply with a subpoena, court order, or applicable law. In those cases, the courts have instead found that the confidentiality agreements implicitly allow for such disclosure”) citing Barger. “The common law, too, embodies the principle that the public has a right to every man’s evidence. If the testimony plaintiffs seek is otherwise discoverable, Corizon and Riner’s agreement cannot prevent it.” Ajibade v. Wilcher, CV 416-082, 2017 WL 5196608, at *1 (S.D. Ga. Nov. 9, 2017) citing United States v. Bryan, 339 U.S. 323, 331 (1950); Doe No. 1 v. United States, 749 F.3d 999, 1009 (11th Cir. 2014) (declining to recognize a common-law privilege for plea negotiations). M1139343.1 16330 Notably, Omni has also completely failed to confer with Defense counsel (as is mandatory under USCR 6.4B) prior to filing its Motion. It appears to have misleadingly re-characterized Defendants’ requests as a “subpoena” specifically so it could try to get around that requirement. Had it conferred, Defense counsel would have pointed Omni to the numerous cases discussed herein that all prove Omni’s objections are completely baseless. Most notably, Omni knows or should already be aware that the Georgia Court of Appeals has specifically endorsed this exact same discovery with specific reference to Omni itself, in a holding issued earlier this year; but, remarkably, Omni has completely failed to disclose that “directly adverse” controlling authority to this Court. Furthermore, Defendants have very “good cause” to seek all communications and contracts between Omni and Plaintiff’s lien-based care providers involved in this case, because Omni’s contract has been produced before and contains some very conceming provisions. Moreover, recent discovery in other matters has shown that Omni makes de facto medical treatment decisions for lawsuit plaintiffs based upon its assessment of the strength or weakness of their legal cases, conveying those decisions via back-channel email communications to the lawsuit plaintiffs’ medical providers with whom it is in business. Omni’s Motion to Quash is legally baseless, improperly interposed on behalf of a different non-party that it lacks any standing to speak for, and clearly intended to deny Defendants lawful 2 See Benchmark Rehab. Partners, LLC v. SDJ Logistics, LLC, 367 Ga. App. 203, 203, 885 S.E.2d 224, 226 (2023), affirming order requiring non-party to produce “(1) All correspondence with Plaintiff’s counsel and/or counsel’s firm, as well as any factoring, funding, or similar company, including but not limited to Glofin, Medchex, Omni [the movant at bar], pertaining to this Plaintiff and/or this case; [] (3) Any contract with any factoring, funding, or similar company, including but not limited to Glofin, Medchex, Omni [the movant at bar], applicable to this Plaintiff and/or the case”; see also Ga. R. Prof. Cond. 3.3(a)(3). M1139343.1 16330 discovery that the Court of Appeals has recently held to be proper. Accordingly, Omni’s motion “lacks substantial justification,” was interposed for “purposes of delay or harassment,” and has “unnecessarily expanded these proceedings” in an effort to force Defendants to incur inflated legal expenses, as contemplated by 0.C.G.A. § 9-15-14. Omni’s motion was clearly intended to be a brush-back to Discovery—a tactic defense counsel is more than familiar with from abundant litigation with personal injury lien clinics and their associated medical funding companies. Omni should be sanctioned for filing its frivolous motion, and ordered to reimburse Defendants their reasonable fees and expenses incurred in responding to same. FACTS Defendants served Northland Anesthesia (not Omni) with the non-party discovery request attached as Ex. “A,” on November 20, 2023. Northlake’s records custodian Cathy Packwood properly conferred with Defense counsel Luke Kennedy on November 28, 2023, indicating by phone that she (incorrectly) believed she was not allowed to produce materials in Northlake’s possession that were subject to a private confidentiality agreement with Omni. As addressed herein, Georgia law explicitly states that a private confidentiality agreement is no barto discovery. Therefore, Defense counsel encouraged Northlake both by phone and by email to make a full production, or to otherwise file a motion if it believed it could not. However, Northlake has not filed any objections whatsoever. Instead, Omni, which lacks any standing to speak for Northlake, has improperly filed its “Motion to Quash” without making any effort to confer with Defense counsel, as is mandatory under USCR 6.4B. Omni makes only two arguments in its perfunctory six-page brief: (1) alleged “confidentiality” as to amorphous, undefined “trade secrets,” and (2) the “collateral source rule” — neither of which are bars to discovery as a matter of clear Georgia law, addressed below. M1139343.1 16330 CONTROLLING PROCEDURE Dekalb County State Court Judge Wayne Purdom is the author of GEORGIA CIVIL DISCOVERY WITH ForMS. That useful work addresses the distinction between a true subpoena duces tecum (which is what Omni incorrectly claims Defendants served upon Northlake), and a non-party request issued under 0.C.G.A. § 9-11-34, as follows: Confusion exists over the distinction between a request for the production of documents under the discovery rules and a notice to produce under the rules of evidence. Each is a different rule of procedure, and the difference between them should be kept in mind. A request for the production of documents (0.C.G.A. § 9-11-34) is a discovery tool, designed to determine facts before a hearing or trial. A notice to produce (0.C.G.A. § 24-13-27) is not a discovery tool. Notices to produce are authorized by provisions in the evidence code which are designed to ensure that documents will be brought to a trial for examination and possibly for introduction as evidence in the proceeding. In particular, a notice to produce should not be used in connection with a deposition; a request for production or a subpoena should be used instead. Subpoenas for production of documents and notices to produce, GA. CIviL DIScovERY § 13:5. With respect to an O.C.G.A. § 9-11-45 subpoena, which again is what Omni incorrectly claims Northlake received here, Judge Purdom has this to say: If the witness is not a party to the litigation, they must be subpoenaed under the procedure set forth in 0.C.G.A. §§ 9-11-45, 24-13-21, and 24-13-22. A subpoena merely requiring the attendance of the witness will not ensure that the witness brings the appropriate documents. Therefore, it is necessary to issue a subpoena for the production of documents. The witness must then produce the documentary evidence called for in the subpoena (sometimes called a subpoena duces tecum) unless the items are not properly subjectto discovery. This procedure is set out in 0.C.G.A. § 24-13-23(b). § 9:12. Production of documents at deposition, GA. CIVIL DISCOVERY § 9:12. Here, Defendants have not issued any witness subpoena under 0.C.G.A. § 9-11-45 to anyone at Northlake, nor have they issued any subpoena to produce records under 0.C.G.A. § 24- M1139343.1 16330 13-27. Instead, Defendants merely served a non-party document request, the procedure for which is as follows: Requests for production of documents can be used to secure documents from nonparties. O.C.G.A. § 9-11-34(c) is broader than Federal Rule 34, which does not authorize the production of documents from nonparties as part of the discovery in the case. However, the federal rule does not preclude an independent action against a nonparty for production of documents and things and permission to enter upon land. It is important to realize that there are procedural protections and barriers in obtaining nonparty production, but the scope of discovery and the requirements fora protective order are governed by 0.C.G.A. § 9-11-26 and are the same for parties and nonparties. Thus, we have the curious situation that the responding party has the burden of showing “good cause” when filing a motion for a protective order, but when an objection is filed the requesting party has the burden of showing “good cause.” Production from nonparties, Ga. CIVIL Discovery § 13:4. As addressed below, none of Omni’s arguments raised in its Motion to Quash and Motion for Protective Order show any “good cause” why this Court should deny Defendants lawful discovery of documents from a completely different non-party than Omni itself. Moreover, Defendants have very good reasons for wanting to take a look at the Omni contracts with third parties like Northlake: First and foremost, Omni’s contract has been produced before. Defense counsel have been in possession of one version of Omni’s agreement, attached as Ex. “B”, for several years now. That contract was with lien clinic Barbour Orthopedics, which happens to also be involved in this case. Among other things, the Omni-Barbour Orthopedics contract carried a stipulation whereby Omni entered into a joint marketing agreement with that medical provider, thereby allowing Omni to market on the medical provider’s behalf, presumably to the personal injury law firms with which Omni has ongoing relationships: ARTICLE X PROMOTION AND LISTING OF HOSPITAL AND PROVIDER M1139343.1 16330 Ex. B at P5, attached. It goes without saying that it is beyond unusual for a medical funding company to have an agreement in place whereby it handles the marketing of a medical provider’s services. No traditional health insurer (i.e. Blue Cross) would ever take it upon itself to market an independent third party medical clinic’s facilities, or try to sell that clinic’s procedures to anyone. This type of agreement only makes sense in the context of lien-based care, whereby funder and clinic alike enter into a de facto joint venture, in the hope of deriving substantial profits from “marketing” to plaintiffs’ lawyers, and then handling personal injury plaintiffs’ medical care, all at inflated billing rates. And that was not the only abnormal thing about Omni’s contract with a lien-based medical provider. Concerningly, that contract also carried a stipulation that no medical provider privy toa contract with Omni could treat patients who were enrolled for coverage under the federal Medicare or Medicaid programs (indeed, this was the very first stipulation in the agreement, so apparently it was of great importance to Omni): THEREFORE, the parties hereto agree as follows: ARTICLE I DEFINITIONS Ll “Covered Individual” or “ Beneficiary Subscriber” means an individual certified by OMNI or its designee as cligible for Covered Services and who is participating in the OMNI program. Under no circumstances shall a Covered Individual be enrolled in the Ex. B at Pl. M1139343.1 16330 Why would Omni be so adamant that its associated medical clinic business partners must avoid treating anyone enrolled in these federal programs? The answer may be that Omni needed its partners to steer clear of the federal Anti-Kickback Statute and Stark Law. The very fact that Omni’s form contract requires medical providers to opt out of such programs raises reasonable questions about whether there may indeed be some form of kickback or referral remuneration in place, between this funding company and the lien clinics who have provided this Plaintiff with treatment and medical bills in this case. That is an issue Defendants are entitled to investigate. Moreover, if the contract at issue contemplates a string of patient referrals, indicating an ongoing business relationship, that could lead to evidence going to the bias, intent and motive of the healthcare providers who will testify at trial in this case (as the 11" Circuit recognized in its seminal ML Healthcare holding): Defendant does not need to be able to prove a premeditated plan of deceit in order to probe potential bias. [] Instead, Defendant needed only to show that ML Healthcare’s payment arrangement had “any tendency” to make bias more probable than it would be without the evidence. See Fed. R. Evid. 401(a). That requirement is easily satisfied here. A jury might infer that Plaintiff’s doctors were incentivized by ML Healthcare’s referral and payment arrangement to provide testimony that was more favorable to Plaintiff than it otherwise would have been. If so, the jury would have found bias, which is clearly a relevant consideration in evaluating a witness’s credibility. ML Healthcare Servs., LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1302-03 (11th Cir. 2018). A showing of a pattern of compensation in past cases raises an inference of the possibility that the witness has slanted his testimony in those cases so he would be 3 The Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b), and Stark Law, 42 U.S.C. § 1395nn, prohibit medical providers from paying or receiving kickbacks, remuneration, or anything of value in exchange for referrals of patients who will receive treatment paid for by government healthcare programs such as Medicare and Medicaid, and from entering into certain kinds of financial relationships. Notably, the Stark Law, unlike the Anti-Kickback Statute, flatly prohibits a broad range of financial relationships, and does not require proof of an intent to induce referrals. M1139343.1 16330 hired to testify in future cases. Hudsonv. Wal-Mart Stores E., LP, 3:19-CV-58 (CDL), 2020 WL 8882048, at *2 (M.D. Ga. Oct. 28, 2020) Moreover, Defense counsel have very good reason to believe that Omni actively engages with the medical providers with whom it has contracts to direct and control lien patients’ medical care. In a case undersigned counsel tried in September in Hall County, discovery revealed that Omni had denied a plaintiff funding (and thus denied her the medical care requested), merely because of what it characterized as the “minimal PD [property damage] on this accident” ~ - From: Chris Gould Sent: Thursday, September 16, 2021 8:21 AM To; Anna E. Rose Cc; Anna E, Rose Subject: RE: externa: REN. Baroo BFC Funding Requested CAUTION: This email originated irom outside of the organization. Do not click links or open attachments unless you cognize the sender and kisow the content is safe, Good morning Anna, (Cia he inal POT Eh Seve Wil have Yo VERY FERURHETORFURGIR® My apologies that we couldnt more helpon this one, be of Thank you, Chris Ex. C, above. If Omni is making funding decisions for plaintiffs based not on the necessity of the medical treatment, or even on the reasonableness of the billed charges, but instead based on whether or not the underlying lawsuit seems to be a good business investment, then that type of evidence would go directly to the bias of any physician who offers treatment associated with Omni payments and who then testifies favorably for a plaintiff. And, it is important to note that Barbour Orthopedics is also involved in the case at bar. Finally, it is notable that Omni’s contract attached as Ex. A is a 2016 document. In recent M1139343.1 16330 years, these contracts have grown more complex, most notably in the language regarding the lien doctors’ obligations to the funding company when it comes time to testify favorably for a given Plaintiff. Many of these medical funding contracts now carry contractual obligations requiring a physician who accepts funding company money to “support” the funding company’s recovery — most notably by providing favorable causation testimony. To provide a specific example, a contract produced in discovery between funding company Pro Med Capital and lien clinic Spine Center A tlanta’ in 2018 carried the following provision: 4.4. Client shall provide any and all required support reasonably requested by Funder, including documents, Account Do uments, depositions, ‘live testimony in Court, and reports and memoranda necessary or desirable, ‘Eran OTE He Pianead: aceunanes RACSaLE due in any court proceeding, arbitration proceeding, mediation, or settlement negotiations relating to the Financed Accounts due or the Patient’s demand or lawsuit against Funder, Client or any third party Ex. D, above If Omni’s current contract with any of Plaintiff’s treating physicians now carries similar language, thereby contractually obligating Plaintiff's treating physicians to provide live testimony “to prove the Financed Accounts Receivable,” then any such agreement would raise substantial questions going to the testifying expert’s bias, intent and motive. ML Healthcare Servs. LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1302-03 (11th Cir. 2018); see also Canada v Shropshire, 232 Ga. App. 341, 501 S.E.2d 860 (1998) (evidence that chiropractor and principal in law firm had personal relationship, that chiropractor had referred patients to firm, and that firm had referred clients to chiropractor was relevant and, thus, admissible in motorist’s personal injury action against driver); Salkic v. Heartland Express, Inc 813 Fed.Appx. 444 (11th Cir. 2020) (evidence doctor performed 90% of his laser spine surgeries on lawsuit plaintiffs went to bias, 4 See Stephens v. Castano-Castano, 346 Ga. App. 284, 290-91 (2018) (exclusion of evidence of this same lien doctor’s financial bias resulted in reversal of $700,000 jury verdict) M1139343.1 16330 10 intent and motive). Indeed, if a doctor has contractually obligated himself to Omni to only testify a certain way, that might well be the most probative evidence possible of the doctor’s bias. Omni is well aware that multiple courts have already held that the materials Defendants seek here from Northlake are not only discoverable, but likely to also be admissible at trial. For instance, in the recent SDJ Logistics case, the Court of Appeals analyzed an identical discovery request sent to an identically-situated non-party (there, Benchmark Rehabilitation). That discovery request specifically sought any contracts held by that non-party with Omni (see fn. 1, supra), and the Court of Appeals found that those defendants had “good cause” to seek that evidence, as follows: 5. Good cause. In its final enumeration of error, Benchmark contends that the trial court erred in finding good cause to grant the motion to compel. Benchmark, however, has failed to show an abuse of discretion. “Georgia’s Civil Practice Act provides for broad discovery into all matters that are relevant and not privileged.” Bethune v. Bethune, 363 Ga. App. 273, 275 (2), 870 S.E.2d 827 (2022). Under OCGA § 9-11-26 (b) (1), parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. Pursuantto OCGA § 9-11-34 (a) (1), a party may request that another party produce documents containing matter discoverable within the scope of OCGA § 9-11-26 (b), and OCGA § 9-11-34 (c) (1) establishes that the discovery of nonprivileged documents also applies to nonparties. Thus, as with discovery requested from parties, the only requirements placed by the Georgia legislature on discovery requested from nonparties is that the documents must be relevant and nonprivileged. Ortho Sport & Spine Physicians v. City of Duluth, 352 Ga. App. 215, 216 (2), 834 S.E.2d 315 (2019) (citation and punctuation omitted). [...] Benchmark has also misconstrued the trial court’s order by claiming that it M1139343.1 16330 11 merely made a finding of relevance. “In the context of discovery, courts should and ordinarily do interpret ‘relevant’ very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.” Bethune, 363 Ga. App. at 275-276 (2), 870 S.E.2d 827 (citation and punctuation omitted). Contrary to Benchmark’s claim, the trial court did not make such a broad finding that the documents were merely relevant to anything that may become an issue in the case. Rather, the trial court also expressly found that the documents were “reasonably calculated to lead to the discovery of admissible evidence.” Cf. RTA Strategy v. Silver Comet Terminal Partners, 347 Ga. App. 266, 268-269, 817 S.E.2d 720 (2018) (trial court erred in granting motion to compel production of information that was neither relevant to the subject matter of the underlying dispute nor reasonably calculated to lead to admissible evidence). “Even if [such relevant] information ... would be inadmissible at trial, it is not a ground for objection if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Ortho Sport & Spine Physicians, 352 Ga. App. at 216 (2), 834 S.E.2d 315 (citation and punctuation omitted). [...] A party moving to compel discovery against a non-party “shall make a showing of good cause to support [the] motion.” OCGA § 9-11-34 (c) (1). “What constitutes good cause is to a very large degree left to the judgment of the trial court.” Leonard Bros. Trucking Co. v. Crymes Transports, 123 Ga. App. 424, 426 (2), 181 S.E.2d 296 (1971) (citation and punctuation omitted). “This good cause may be shown in a number of ways, depending on the particular situation involved, and is largely within the sound discretion of the trial judge. Because the matter is so highly discretionary — the results [will] vary[ ] from case to case depending on the specific facts shown to a particular judge[.]” Atlantic Coast Line Railroad Co. v. Daugherty, 111 Ga. App. 144, 156-57 (3) (a), 141 S.E.2d 112 (1965) (citations and punctuation omitted). Under the circumstances of this case, Benchmark has failed to show that the trial court abused its discretion in finding good cause to compel production of relevant documents that were reasonably calculated to lead to admissible evidence. See generally McMillan v. General Motors Corp., 122 Ga. App. 855, 856 (1), 179 S.E.2d 99 (1970) (good cause for production of witness statement). Benchmark v. SDJ Logistics, 367 Ga. App. at 205-07 (approving discovery of the very same contracts and communications that Omni objects to production of here). Accordingly, Omni has failed to inform this court of the directly on-point controlling authority holding that its contracts with a non-party medical provider are discoverable, and that M1139343.1 16330 12 Defendants have “good cause” to seek them. ARGUMENT AND CITATION OF AUTHORITY 1. Georgia law does not permit a party to shield records from discovery via a private confidentiality agreement. Omni’s first bad argument is that this Court should “quash” Defendants’ non-party request to a completely different entity, because Omni allegedly has a confidentiality agreement in place with that entity. Georgia law is crystal clear on this situation: The public policy of Georgia does not permit parties to contract privately for the confidentiality of documents or testimony, and thereby foreclose others from obtaining, in the course of litigation, materials that are relevant to their efforts to vindicate a legal position. To hold otherwise would clearly not serve the truth- seeking function of discovery in civil litigation. Barger, 231 Ga. App. 723, 725, 499 S.E.2d 737, 741 (1998). Further, Barger has repeatedly been re-affirmed: Moreover, Georgia law does not support the proposition that a confidentiality agreement is void in its entirety simply because the agreement does not expressly allow a party to testify or otherwise comply with a subpoena, court order, or applicable law. In those cases, the courts have instead found that the confidentiality agreements implicitly allow for such disclosure. [Redacted] v. [Redacted], 326 F. Supp. 3d 1349, 1355 (M.D. Ga. 2018) (citing Barger). As the Court’s last Order explained, the private agreement between Riner and Corizon cannot, under Georgia law, remove her obligation to provide truthful testimony in response to plaintiffs’ subpoena. See Barger v. Garden Way, Inc., 231 Ga. App. 723, 725 (1998) (“The public policy of Georgia does not permit parties to contract privately for the confidentiality of documents or testimony and thereby foreclose others from obtaining, in the course of litigation, materials that are relevantto their efforts to vindicate a legal position. To hold otherwise could clearly not serve the truth-seeking function of discovery in civil litigation.” (quotes, alterations, and cite omitted)). The common law, too, embodies the principle that “the public has a right to every man’s evidence.” United States v. Bryan, 339 U.S. 323, 331 (1950); Doe No. 1 v. United States, 749 F.3d 999, 1009 (11th Cir. 2014) (declining to recognize a common-law privilege for plea negotiations). If the testimony plaintiffs seek is otherwise discoverable, Corizon and Riner’s agreement M1139343.1 16330 13 cannot prevent it. Ajibade v. Wilcher, CV 416-082, 2017 WL 5196608, at*1 (S.D. Ga. Nov. 9, 2017). Moreover, our Court of Appeals has consistently held that non-parties are not entitled to any special treatment under Georgia’s discovery rules, even if the information sought may be financial in nature: [T]he Sechler entities urge this Court to adopt a standard of review recognizing that anonparty who receives discovery is entitled to additional deference so as to protect against harassment, inconvenience, or unnecessary disclosure of confidential documents. We decline to adopt such a standard. [] Here, the subpoenas request nonprivileged, relevant information. Although the discovery does seek financial information, there is no evidence that the information could be obtained by other means or that Prime Group’s subpoenas are meant merely to embarrass or harass Sechler. Sechler Family P’ship v. Prime Grp., Inc., 255 Ga. App. 854, 856 and 859, 567 S.E.2d 24, 26 and 28 (2002). Indeed, courts across the country agree that private confidentiality contracts cannot be a bar to discovery, for the obvious reason that if that were really the law, every litigant would quickly sign an agreement with some third party straw man, in the hopes of denying his or her adversary access to otherwise discoverable evidence. The implications of Omni’swag ee “confidentiality” argument are, frankly, hilarious. Imagine a scenario where a trucking company defendant could simply bind all its drivers to “confidentiality” and then claim not to owe any records in discovery. Such a claim would be laughed out of court—as should Omni’s here: But the mere existence of non-disclosure agreements does not preclude discovery. Multiven, Inc. v. Cisco Sys., Case No. 08-05391 JW (HRL), 2010 WL 583955, at * 3 (N.D. Cal. Feb. 16, 2010); see also Shvartser v. Lekser, 270 F. Supp. 3d 96, 97 (D.D.C. 2017) (“the non-disclosure agreement itself does not confer a legal privilege from discovery on any documents that were not already privileged.”). Indeed, courts “commonly require parties to produce confidential documents.” Promotional Marketing Insights, Inc. v. Affiliated Computer Servs., Inc., Case No. M1139343.1 16330 14 11-CV-2795 (PJS/AJB), 2012 WL 3292888, at *1 (D. Minn. Aug.13, 2012).” BLK Enterprises, LLC v. Unix Packaging, Inc., CV 18-2151-SVW (KS), 2018 WL 5993841, at *4 (C.D. Cal. Sept. 26, 2018). Other courts have come to the same conclusion. For example, in Shvartser v. Lekser, the court found that as “a general rule, ‘confidentiality agreements will not stand as a barrierto discovery between two parties in litigation.’ ” 270 F. Supp. 3d 96, 98 (D.D.C. 2017) (citing cases in the Ninth and Fifth Circuits); see also Micron Tech., Inc. v. Factory Mut. Ins. Co., No. 3:18 Civ. 7689 (LB), 2022 WL 1687156, at *1 (N.D. Cal. May 26, 2022) (“[P]arties cannot simply vitiate their discovery obligations by asserting third party privacy rights based on NDAs”) (citing BLK Enterprises, LLC v. Unix Packaging, Inc., No. 18 Civ. 2151 (SVW) (KS), 2018 WL 5993841, at *4 (CD. Cal. Sept. 26, 2018)). In fact, “courts commonly require parties to produce confidential documents; the confidentiality of those documents is protected not by denying access to them, but by entering a protective order to cover them.” United States v. Newman, 531 F. Supp. 3d 181, 193 (D.D.C. 2021); see also Shvartser, 270 F. Supp. 3d at 98 (citing case from the Eighth Circuit). Doe v. Benjamin Zaremski M.D., P.C., 21 CIV. 3187 (ER), 2022 WL 2966041, at*10 (S.D.N.Y. July 27, 2022). In addition, UPM states in its letter that a witness may not refuse to answer based on a non-disclosure agreement (NDA). The Court generally agrees with UPM on this point and hereby orders that an NDA is an insufficient basis to decline to answer a question at a Rule 30(b)(6) deposition. [] Finally, the Court advises the parties that if a Rule 30(b)(6) witness refuses to answer a deposition question and the Court later determines that the refusal was without proper basis, the Court likely will order that the deposition reopened at the expense of the party producing the witness and the Court would likely also award all reasonable costs to the party taking the deposition. Further, if the deposition cannot be reopened or if a wrongful refusal to answer was done in bad faith, the Court may impose other sanctions, as appropriate, on the organizational party producing the witness. Unigestion Holdings, S.A. v. UPM Tech., Inc., 3:15-CV-185-SI, 2021 WL 7710796, at*5 (D. Or. Oct. 19, 2021). As a general rule, “confidentiality agreements will not stand as a barrier to discovery between two parties in litigation.” Saini v. Jnt’/ Game Tech., 434 M1139343.1 16330 15 F.Supp.2d 913, 922 (D. Nev. 2006); see also Multiven, Inc. v. Cisco Sys., Inc., 2010 WL 583955, at *3 (N.D. Cal., Feb. 16, 2010); Inre Grand J ury Subpoena, 148 F.3d 487, 492 (5th Cir. 1998) (““Confidential’ does not necessarily mean ‘privileged.’ »); Nguyen Da Yen v. Kissinger, 528 F.2d 1194, 1205 (9th Cir. 1975). Shvartser v. Lekser, 270 F. Supp. 3d 96, 98 (D.D.C. 2017). Omni’s counsel are sophisticated, and it is hard to believe that they were unaware that private confidentiality agreements are no bar whatsoeverto discovery. Even cursory legal research into this issue would have quickly raised the numerous cases cited above—and Omni’s counsel are clearly able to research the law. The fact that Omni nevertheless raised this bad faith argument is simply proof of its anti- discovery intent, in filing a “Motion to Quash” a non-existent subpoena addressed to a totally different entity than itself. This is the type of stubbomly-litigious argument that “it could not be reasonably believed that a court would accept,” and provides further grounds for Omni to be sanctioned under 0.C.G.A. § 9-15-14 as Defendants have moved. 2. Similarly, Georgia law clearly shows that the Collateral Source Rule is not a bar to discovery. Omni’s second bad argument is that the “Collateral Source Rule” somehow bars the discovery Defendants seek from a completely different entity. This argument is even worse than Omni’s wo 6, “confidentiality” claim. First and foremost, the Collateral Source Rule is an evidentiary admissibility standard, not a discovery rule. And, there are many circumstances where evidence may well be a legitimate collateral source, but nevertheless be admitted at trial on good grounds, as both the Georgia Supreme Court and the 11" Circuit have held: [T]he Georgia Supreme Court has recognized that “there may be another issue in a case to which evidence of collateral benefits is material.” [Polito v. Holland, 258 Ga. 54, 56, 365 S.E.2d 273, 274-75 (1988)]. When that happens and the evidence is admitted for that other purpose, the court should nonetheless “charge the jury that M1139343.1 16330 16 collateral benefits shall not reduce damages the tortfeasor is otherwise liable to pay.” Id. Indeed, Georgia appellate courts have recognized that evidence of collateral benefits received by the plaintiff may be admissible for impeachment purposes when a witness gives false evidence relating to a material issue in the case. Kelley v. Purcell, 301 Ga. App. 88, 90, 686 S.E.2d 879 (2009) (citing Warren v. Ballard, 266 Ga. 408, 410, 467 S.E.2d 891 (1996)). In short, under Georgia law, evidence of collateral benefits is not typically admissible in a personal injury tort case unless that evidence serves a valid evidentiary purpose other than just revealing to the jury those benefits. When that occurs and the evidence is admitted, the trial court should instruct the jury about the limited purpose of the evidence and, in particular, remind the jury not to consider the collateral payments to reduce its award of reasonable and necessary medical expenses. ML Healthcare Servs., LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1298-99 (11th Cir. 2018). Two ways in which even legitimate collateral source evidence may become relevant are (1) the bias, intent and motive of a testifying witness (particularly an expert) and (2) the reasonableness and necessity of medical bills asserted by a plaintiff. For example, the Court of Appeals has explained: Roman sought to depose WellStar regarding its “rates or charges for those services ... if provided to uninsured patients; to insured patients; to patients under workers compensation plans; to patients under Medicare or Medicaid plans; and to litigant and non-litigant patients[.]” [...] The trial court found that the evidence sought by Roman was not barred by the collateral source rule: [The] collateral source rule bars defendants from presenting evidence that the claimant has received payment from a third party. Thus, [Roman] would be precluded from introducing evidence of WellStar's write-off of Plaintiff's medical treatment. However, the Court finds no authority in Georgia law to support Non-Party WellStar's contention that the collateral source rule bars the discovery of the medical rates and charges of third parties that are not involved in this case. [...] The issue before us is not whether the information sought is relevant and admissible at trial, but whether the trial court abused its discretion in denying the motion to M1139343.1 16330 17 modify the subpoena. We find no abuse of discretion, particularly in light of the wide latitude given to make complete discovery possible, the burden on WellStar “to show more than that the materials would not themselves be admissible at trial[,]” and the fact that WellStar does not argue that the material is privileged or that the discovery request is burdensome. WellStar Kennestone Hosp. v. Roman, 344 Ga. App. 375, 378, 810 S.E.2d 600, 600, 602 (2018) (discovery request targeting “write-offs” issued to uninsured, insured, worker’s compensation, Medicare/Medicaid, and litigant versus non-litigant patients is reasonably calculated to lead to admissible evidence). In its own landmark holding regarding reasonableness of medical bills, the Georgia Supreme Court held (in a similar discovery battle): The fair and reasonable value of goods and services is often determined by considering what similar buyers and sellers have paid and received for the same product in the same market, with adjustments upward or downward made to account for pertinent differences, and we see no reason why the same cannot be true of health care. [] Bowden v. The Med. Ctr., Inc., 297 Ga. 285, 292, 773 S.E.2d 692, 697 (2015) (e.g. Bowden 1). Notably, Bowden also makes it quite clear that a medical provider’s reimbursement percentage is not some kind of closely-held trade secret. The mere cost of goods and services is not and should not be a secret in Georgia. In fact, the Supreme Court of Georgia directly quoted and discussed the hospital reimbursement percentages under discussion in its published holding in Bowden III: Hospitals [like TMC] set their rates by calculating a “chargemaster rate,” like the sticker price of a new car, for each service provided, and that rate applies to all patients receiving that particular service. The hospital determines its chargemaster rate by factoring in the cost of the service along with the overall costs of operating the hospital. Every patient is charged the chargemaster rate, but very few patients actually pay that amount because insurance companies, including Medicare, Medicaid, and other third-party payers, negotiate a reduced reimbursement rate. Thus, for patients with insurance, the insurance company will reimburse TMC pursuant to the negotiated rates. Additionally, Medicare and other govemment programs have a set methodology used to calculate their reimbursement amounts. M1139343.1 16330 18 Patients without any insurance or third-party payment source are billed the full chargemaster rate. For the relevant years pre-dating this lawsuit, the percentage of TMC patients who paid less than the chargemaster rate was 98.84 percent, while only 1.16 percent paid the full rate. Regardless of the reimbursement scheme, and despite the chargemaster rates, TMC collects, on average, about 33 percent of the chargemaster rate. To place this rate in context, [because] ... Bowden’s bills totaled approximately $21,000[,] [and] [b]ecause she lacked any insurance, she was billed that full amount. Had she been covered by Medicaid, the hospital would have received $9,895.24 for reimbursement. Medicare would have reimbursed $11,238.11, and Blue Cross/Blue Shield PPO would have paid $10,644. Bowden, 309 Ga. 188, 191, 845 S.E.2d 555, 558 (2020). Moreover, unlike the health insurers whose reimbursement rates were held to be the proper subject of discovery in Bowden I, then openly discussed in Bowden III, Omni is not even a true Collateral Source in the first place! Omni is not a health insurer, but rather is a medical funding company trying to make a profit on this lawsuit. The Southern District has explained Omni’s business model well, in a case involving an identically-positioned litigation funding company: Similarly in this case, Key Health, a medical lien funding company, is not a traditional collateral source. Key Health has not paid or even reduced Plaintiff’s medical bills. Rather, Key Health has essentially fronted Plaintiff the money for her treatment, and then Key Health intends to recover that money from Plaintiff after the lawsuit. Thus, unlike an insurance company, Key Health’s payments do not reduce Plaintiff's financial obligations. Rangel v. Anderson, 202 F. Supp. 3d 1361, 1373 (S.D. Ga. 2016). Omni’s 2016 contract shows how this works. Ex. A reveals that Omni had an arrangement with Barbour Orthopedics whereby Omni purchased Barbour Ortho’s accounts receivable for only 43% of their stated value (i.e. what the Supreme Court likened to the “sticker price of a new car”): ADDENDUM A PAYMENT M1139343.1 16330 19 Fees will be as follows: 1. Allstandard services will be paid at 43% of all gross CTP coded charges. 2. All Invoices will be paid with-in 30 days upon receiving all medical notes and HICFA’s/Invoices. Ex. B at P8. However, even though it collected only 43% of its “sticker price,” pursuant to Omni’s contract, Barbour Ortho was contractually- obligated to accept that amount for any accounts it sold to Omni “as payment in full”: ARTICLE IV PAYMENT 41 The Provider shall be compensated in accordance with Addendum A. The Provider hereby acknowledges and Aas payment in full for Covered Servi Ex. B at P3. If the provider has been “paid in full” for services at only 43% of its “sticker price” charges, does that not raise reasonable questions about whether its stated charges actually reflect usual, reasonable and customary rates? Is that not particularly true when the amount the provider has been paid already exceeds usual, reasonable and customary rates paid by any other payor? Or, as the Supreme Court put it: Suppose that, as Bowden argued at the motion to compel hearing, 99% of TMC's patients who received the same care as she did during the same time period had insurance and therefore paid the same much lower sum for their care—say, just $1,000. Under that scenario, a fairminded juror might conclude that the “reasonable charge” for that care was much closer to $1,000 than to the $21,409.59 that TMC billed Bowden. Bowden is entitled to determine if evidence exists to support such an argument. Bowden, 297 Ga. 285, 292, 773 S.E.2d 692, 697 (2015) (e.g. Bowden 1). The 11" Circuit devoted lengthy analysis to the disparities that have grown up between the M1139343.1 16330 20 “sticker price” amount a provider charges and the amount that treatment is actually worth in its recent Higgs v. Costa Crociere holding: Today, we adopt the rule that best reflects the idiosyncratic realities of the healthcare market, avoids reliance on