“Defendant is not required to create documents in response to plaintiff’s requests for discovery.”
How later courts described this case
- “Defendant is not required to create documents in response to plaintiff’s requests for discovery.”
- “But until this existence is established so that the documents asked for can be identified and this materiality established, there can be no order to produce under Rule 34.”; Alexander v FBI, 194 F.R.D. 305, 2000 U.S. Dist. LEXIS 8867 (D.D.C. 2000
- “Rule 34 only requires a party to produce documents that are already in existence.”
Written by the judges who cited it.
The opinion
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
January 2021 Term
June 15, 2021
__________________ released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
No. 20-1029 OF WEST VIRGINIA
__________________
STATE OF WEST VIRGINIA EX REL. HEALTH CARE ALLIANCE, INC.
AND HCFS HEALTH CARE FINANCIAL SERVICES, LLC D/B/A ALCOA
BILLING CENTER,
Petitioners
v.
THE HONORABLE ERIC O’BRIANT, JUDGE OF THE CIRCUIT COURT OF
LOGAN COUNTY, AND KELSEY STARR,
Respondents
____________________________________________________________
ORIGINAL PROCEEDING IN PROHIBITION
WRIT GRANTED AS MOULDED
____________________________________________________________
Submitted: May 4, 2021
Filed: June 15, 2021
Michael D. Dunham, Esq. Steven S. Wolfe, Esq.
Caleb B. David, Esq. Wolfe, White & Associates
Shuman McCuskey Slicer PLLC Logan, WV
Charleston, WV Counsel for Respondent Starr
Counsel for Petitioners, Health Care
Alliance, Inc. and HCFS Health
Care Financial Services, LLC d/b/a
Alcoa Billing Center
JUSTICE ARMSTEAD delivered the Opinion of the Court.
JUSTICE HUTCHISON concurs and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “‘A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.’ Syllabus
Point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).”
Syllabus Point 1, State ex rel. Healthport Technologies, LLC v. Stucky, 239 W. Va. 239,
800 S.E.2d 506 (2017).
2. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
i
3. “A writ of prohibition is available to correct a clear legal error
resulting from a trial court’s substantial abuse of its discretion in regard to discovery
orders.” Syllabus Point 1, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622,
425 S.E.2d 577 (1992).
4. “The party who seeks to establish the propriety of a class action has
the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil
Procedure have been satisfied.” Syllabus Point 6, Jefferson County Board of Education v.
Jefferson County Education Association, 183 W. Va. 15, 393 S.E.2d 653 (1990).
5. “Before certifying a class under Rule 23 of the West Virginia Rules of
Civil Procedure [1998], a circuit court must determine that the party seeking class
certification has satisfied all four prerequisites contained in Rule 23(a) – numerosity,
commonality, typicality, and adequacy of representation – and has satisfied one of the three
subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a
case should be allowed to proceed on behalf of the class proposed by the party.” Syllabus
Point 8, In re West Virginia Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).
6. “When a class action certification is being sought pursuant to West
Virginia Rule of Civil Procedure 23(b)(3), a class action may be certified only if the circuit
court is satisfied, after a thorough analysis, that the predominance and superiority
prerequisites of Rule 23(b)(3) have been satisfied. The thorough analysis of the
ii
predominance requirement of West Virginia Rule of Civil Procedure 23(b)(3) includes (1)
identifying the parties’ claims and defenses and their respective elements; (2) determining
whether these issues are common questions or individual questions by analyzing how each
party will prove them at trial; and (3) determining whether the common questions
predominate. In addition, circuit courts should assess predominance with its overarching
purpose in mind—namely, ensuring that a class action would achieve economies of time,
effort, and expense, and promote uniformity of decision as to persons similarly situated,
without sacrificing procedural fairness or bringing about other undesirable results. This
analysis must be placed in the written record of the case by including it in the circuit court’s
order regarding class certification.” Syllabus Point 7, State ex rel. Surnaik Holdings of
WV, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748 (2020).
iii
ARMSTEAD, J.:
This case involves a petition for writ of prohibition seeking to preclude the
Circuit Court of Logan County from enforcing its order granting a motion to compel
discovery. The order at issue compelled Petitioner to disclose: (1) the names and addresses
of all individuals with a West Virginia billing address who received communications from
Health Care Financial Services (hereinafter “HCFS”) between June 2016 and the time
Respondent Starr filed her Complaint; and (2) account information regarding the
individuals who received these particular communications. Further, Petitioner was ordered
to provide this information “in searchable format.” The circuit court further ordered that
such responses “shall not be disclosed by [Respondent Starr], or [Respondent Starr’s]
counsel, outside the scope of this litigation, and [Respondent Starr] shall return or destroy
the protected health information at the end of the litigation or proceeding.”
After careful review of the parties’ briefs and oral arguments, the appendix
record, and the applicable law, we find that the circuit court clearly erred and exceeded its
legitimate powers by granting the motion to compel. We therefore grant the writ of
prohibition, as moulded, and remand this case to the circuit court for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
On June 8, 2020, Respondent Starr filed a Complaint against Health Care
Alliance, Inc. (“HCA”) and Alcoa Billing Center in the Circuit Court of Logan County.
1
On June 29, 2020, Respondent Starr filed an Amended Class Action Complaint against
HCA and HCFS Health Care Financial Services, LLC, dba Alcoa Billing Center (“HCFS”).
In her Amended Complaint, Respondent Starr alleges that HCA and HCFS are debt
collectors pursuant to the West Virginia Consumer Credit and Protection Act
(“WVCCPA”). She further alleges that HCFS sent her a collection letter in 2019, but the
letter appears to be from “Alcoa Billing Center.” With respect to Alcoa, she alleges that
HCFS “has not registered the tradename or dba Alcoa Billing Center with the State of West
Virginia” and has, thus, violated the WVCCPA. 1 In particular, Respondent Starr alleges
that HCFS violated West Virginia Code § 46A-2-127 which prohibits, in part, the use of
“fraudulent, deceptive or misleading representation or means to collect or attempt to collect
claims” including “[t]he use of any business, company or organization name while engaged
in the collection of claims, other than the true name of the debt collector's business,
company or organization[.]” See W. Va. Code § 46A-2-127(a).
On or about June 30, 2020, Respondent Starr served her First Set of
Interrogatories and Requests for Production of Documents to HCFS. On August 13, 2020,
HCFS responded to the discovery requests, and by letter dated August 18, 2020, counsel
1
In her Amended Class Action Complaint, Respondent Starr alleges the following
violations: (1) In Count I, violation of W. Va. Code § 46A-2-127 et seq. as well as W. Va.
Code § 46A-1-101 et seq; (2) In Count II, violations of the public policy of West Virginia;
(3) In Count III, violation of W. Va. Code § 47-16-1 et seq., W. Va. Code § 46A-2-127 et
seq., and W. Va. Code § 46A-6-104 et seq.; (4) In Count IV, Respondent Starr seeks
declaratory judgment; and (5) In Count V (individual account), violation of W. Va. Code
§ 46A-2-127.
2
for Respondent Starr requested supplementation of HCFS’s discovery responses.
Counsel’s letter referenced Interrogatory Nos. 3, 13, and 14 as well as Request for
Production Nos. 7 and 11. Respondent Starr filed a Motion to Compel on August 28, 2020,
and on the same date, HCFS served supplemental responses to the discovery requests.
HCFS served its second supplemental response to the discovery requests on November 12,
2020. Following the supplemental responses, Respondent Starr requested that the circuit
court proceed with consideration of her Motion to Compel. However, by that time, the
parties had narrowed the issues to be considered down to three discovery disputes: (1)
Interrogatory No. 3; (2) Interrogatory No. 13; and (3) Request for Production No. 11.
The requests and the responses are as follows:
INTERROGATORY NO. 3
INTERROGATORY NO. 3: For a period between June
2016 and present, identify all individuals with a West Virginia
address whom Defendant HCFS sent written statements,
letters, or other written communications evidencing an amount
due or allegedly due. Please list the consumer’s name and
address, date letter was sent, the name of original creditor,
original creditor’s account or reference number, the amount
owed or allegedly owed, and the current balance. 2
2
HCFS’s responses to Interrogatory No. 3 were as follows:
[ORIGINAL] ANSWER: Objection. This
Interrogatory seeks information that is not relevant and not
3
likely to lead to the discovery of admissible evidence.
Furthermore, Defendant HCFS provides billing services for
Defendant Health Care Alliance and, thus, cannot release
patient account information, pursuant to HIPAA, 45 CFR
164.512(e). Defendants do not currently possess any
authorizations from patients that are required under HIPAA to
examine records or documents containing protected health
information. Additionally, Defendant HCFS does not maintain
account information in the manner requested by Plaintiff and
is not required to create documents under the West Virginia
Rules of Civil Procedure.
SUPPLEMENTAL ANSWER: Subject to the previously
stated objections, Defendant reiterates that this Interrogatory
seeks information that is not relevant and not likely to lead to
the discovery of admissible evidence. Simply filing a suit
styled as a purported class action does not entitle Plaintiff to
information or documents related to specific individuals that
would be included in a certified class. Numerosity does not
require Plaintiff to know the names and account information
for alleged members of the purported class. Instead, the proper
procedure would be for a class certification motion to be ruled
upon prior to the release of individuals’ protected health
information. Plaintiff’s proposed Stipulated Protective Order
does not provide satisfactory assurance that the information
requested will not be used outside this lawsuit. Plaintiff simply
cites to “numerosity, typicality, commonality, adequacy, and
superiority/predominance,” without any explanation as to why
the actual names and account information are relevant to any
of the class certification elements. The names and account
information of individuals receiving billing statements from
Defendant would only be relevant for notification purposes
following certification. Because Plaintiff has failed to provide
any explanation as to the relevance of the names and account
information and how, at this stage, the information would be
used for purposes of this lawsuit, Defendant maintains its
objections and is not satisfactorily assured that the HIPAA-
protected information would only be used for purposes of this
lawsuit. Furthermore, Defendant does not maintain account
4
INTERROGATORY NO. 13
INTERROGATORY NO. 13: Please provide a list of all
medical or health care providers in West Virginia towit [sic]
the Defendant HCFS provides services. 3
information in the manner requested by Plaintiff and is not
required to create documents.
SECOND SUPPLEMENTAL ANSWER: Subject to the
previously stated objections, and per the parties’ agreement
regarding resolution of a discovery dispute, Defendant states
that, from June 1, 2016 to the present, approximately 11,630
individuals may have received statements sent by Defendant
HCFS with the name of Alcoa Billing Center listed as the
return address for services rendered by Defendant Healthcare
Alliance, Inc. at Logan Regional Medical Center. Defendant
cannot state this figure with absolute certainty because it would
require Defendant to access and review the confidential
account information for each and every patient separately. Not
all of these 11,630 patients may have received a statement from
Defendant HCFS; however, these 11,630 patients’ accounts
were in a status in which the patient, rather than an insurer, was
identified as the responsible party for the services received.
Thus, 11,630 represents the maximum number of patients that
may have received a statement. These 11,630 patients account
for 21,775 dates of service.
3
HCFS’s responses to Interrogatory No. 13 were as follows:
[ORIGINAL] ANSWER: Objection. This
Interrogatory seeks information that is not relevant nor likely
to lead to the discovery of admissible evidence.
SUPPLEMENTAL ANSWER: Subject to the
previously stated objection, Defendant reiterates that this
5
REQUEST FOR PRODUCTION NO. 11
REQUEST FOR PRODUCTION NO. 11: For
Defendant HCFS, please produce in searchable formatting
(such as excel) the identification of every individual with a
West Virginia address that was sent a letter, account statement,
bill, or written request for payment between June 2016 and
present. For every such individual, please produce in
electronic searchable format, excel format, or other format the
consumer’s name and address, date letter was sent, the name
of original creditor, original creditor’s account or reference
number, the amount owed or allegedly owed, and the current
balance. 4
Interrogatory seeks information that is not relevant nor likely
to lead to the discovery of admissible evidence. Plaintiff
asserts that “the information sought is highly relevant to the
scope, size, and appropriate parties in the lawsuit.” Plaintiff’s
claims relate to a bill received for services provided by Health
Care Alliance, Inc. at Logan Regional Medical Center. There
is no relevance to Defendant HCFS’s business relationships
with any other entities.
4
HCFS’s responses to Request for Production No. 11 are as follows:
[ORIGINAL] RESPONSE: Objection. This Request
seeks information that is not relevant and not likely to lead to
the discovery of admissible evidence. Furthermore, Defendant
HCFS provides billing services for Defendant Health Care
Alliance and, thus, cannot release patient account information,
pursuant to HIPAA, 45 CFR 164.512(e). Defendants do not
currently possess any authorizations from patients that are
required under HIPAA to examine and disclose records or
documents containing protected health information.
Additionally, Defendant HCFS does not maintain account
6
information in the manner requested by Plaintiff and is not
required to create documents under the West Virginia Rules of
Civil Procedure.
SUPPLEMENTAL RESPONSE: Subject to the
previously stated objections, Defendant reiterates that this
Request seeks information that is not relevant and not likely to
lead to the discovery of admissible evidence. Simply filing a
suit styled as a purported class action does not entitle Plaintiff
to information or documents related to specific individuals that
would be included in a certified class. Numerosity does not
require Plaintiff to know the names and account information
for alleged members of the purported class. Instead, the proper
procedure would be for a class certification motion to be ruled
upon prior to the release of individuals’ protected health
information. Plaintiff’s proposed Stipulated Protective Order
does not provide satisfactory assurance that the information
requested will not be used outside this lawsuit. Plaintiff simply
cites to “numerosity, typicality, commonality, adequacy, and
superiority/predominance,” without any explanation as to why
the actual names and account information are relevant to any
of the class certification elements. The names and account
information of individuals receiving billing statements from
Defendant would only be relevant for notification purposes
following class certification. Furthermore, in the event that the
Court would certify a class, an administrator would be
appointed to arrange for notification and would be the only
individual with need for the requested information. Thus,
because the names and account information of individuals
receiving billing statements from Defendant are irrelevant and
cannot be sued for purposes of this litigation, Defendant is not
satisfactorily assured that the requested information would be
used only for purposes of this litigation.
Because Plaintiff has failed to provide any explanation as to
the relevance of the names and account information and how,
at this stage, the information would be used for purposes of this
lawsuit, Defendant maintains its objections and is not
7
By order entered on December 4, 2020, the Circuit Court of Logan County
granted Respondent Starr’s motion to compel. In its order, the circuit court found that the
account information requested by Respondent Starr (including the name of original
creditor, account number, amount allegedly owed, and current balance) “goes towards
proving at the certification stage common questions of fact or law, typical claims or
common defenses, i.e., ‘commonality’ and ‘typicality.’” As to the specific discovery
satisfactorily assured that the HIPAA-protected information
would only be used for purposes of this lawsuit.
Furthermore, Defendant does not maintain account
information in the manner requested by Plaintiff and is not
required to create documents. See Scantibodies Lab., Inc. v.
Church & Dwight Co., Civil Action No. 14-cv-2275, 2016 U.S.
Dist. LEXIS 154396 *68-69 (Nov. 4, 2016 S.D.N.Y) (“[T]his
Court notes that a party has no obligation to create new
documents in discovery.”) (citing R.F.M.A.S., Inc. v. So, 271
F.R.D. 13, 44 (S.D.N.Y. 2010); see also Condry v. Buckeye
S.S. Co., 4 F.R.D. 310, 1945 U.S. Dist. LEXIS 1372 (D. Pas.
1945) (“But until this existence is established so that the
documents asked for can be identified and this materiality
established, there can be no order to produce under Rule 34.”;
Alexander v FBI, 194 F.R.D. 305, 2000 U.S. Dist. LEXIS 8867
(D.D.C. 2000) (“Rule 34 only requires a party to produce
documents that are already in existence.”); Harris v. Advance
Am. Cash Advance Ctrs., 288 F.R.D. 170, 2012 U.S. Dist.
LEXIS 173081 (S.D. Ohio 2012) (“Defendant is not required
to create documents in response to plaintiff’s requests for
discovery.”).
SECOND SUPPLEMENTAL RESPONSE: Subject to the previously stated
objections, please see Defendant HCFS’s Second Supplemental Answer to Interrogatory
No. 3.
8
requests, the order required Petitioner HCFS to supplement its responses to Request for
Production No. 11 and Interrogatory No. 3 within sixty days of the entry of the order.
Petitioner was further ordered to supplement its response to Interrogatory Nos. 13 and 14
within ten (10) days of the ruling. 5
Petitioners then filed the instant petition for writ of prohibition.
II. STANDARD OF REVIEW
The factors to be considered for issuance of a writ of prohibition are well-
established:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a
5
Prior to entry of the circuit court’s order, Respondent Starr filed a reply indicating
that the parties had narrowed the issues down to the following three discovery disputes:
Interrogatory No. 3, Request for Production No. 11, and Interrogatory No. 13. Therefore,
it appears that Interrogatory No. 14 was not at issue at the time of the hearing. However,
the circuit court’s order of December 4, 2020, ordered HCFS to supplement its response to
Interrogatory No. 14 within ten (10) days of the ruling. From the text of the petition it does
not appear that Petitioner HCFS specifically seeks extraordinary relief as to this aspect of
the order and we therefore decline to address it.
9
useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
“‘A writ of prohibition will not issue to prevent a simple abuse of discretion
by a trial court. It will only issue where the trial court has no jurisdiction or having such
jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.’ Syllabus Point 2, State
ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).” Syl. Pt. 1, State
ex rel. Healthport Technologies, LLC v. Stucky, 239 W. Va. 239, 800 S.E.2d 506 (2017).
In addition, this Court has held that “[a] writ of prohibition is available to correct a clear
legal error resulting from a trial court’s substantial abuse of its discretion in regard to
discovery orders.” Syl. Pt. 1, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622,
425 S.E.2d 577 (1992). With these standards in mind, we turn to the parties’ respective
arguments.
III. DISCUSSION
Petitioners argue that the circuit court committed clear legal error and
exceeded its legitimate powers by granting Respondent Starr’s motion to compel. They
advance multiple arguments as to why the information sought should not be produced. We
will begin our review by looking at the specific information that is sought by Respondent
Starr in Interrogatory No. 3 and Request for Production No. 11. In Interrogatory No. 3,
10
Respondent Starr seeks the following information about individuals to whom HCFS sent
written communications between June 2016 and the present:
(1) consumer’s names and addresses;
(2) date letter was sent;
(3) the name of the original creditor;
(4) original creditor’s account or reference number;
(5) the amount owed or allegedly owed; and
(6) the current balance.
In Request for Production No. 11, Respondent Starr requested Petitioners to produce the
information above in an electronic searchable format “such as [E]xcel.”
In support of its decision to grant the discovery at issue, the circuit court
relied upon this Court’s ruling in Love v. Georgia Pacific Corp., 214 W. Va. 484, 590
S.E.2d 677 (2003) in which we concluded that:
Where a party seeks to proceed as a class representative under
Rule 23 of the West Virginia Rules of Civil Procedure [1998],
and where issues related to class certification are present,
reasonable discovery related to class certification issues is
appropriate, particularly where the pleadings and record do not
sufficiently indicate the presence or absence of the requisite
facts to warrant an initial determination of class action status.
Id. at 488, 590 S.E.2d at 681 (2003). Because the circuit court relied upon our decision in
Love, it is evident that it determined that issues related to class certification are, in fact,
present in this case. However, our review of whether the circuit court correctly ordered
disclosure of the subject material does not stop with its determination that “issues related
11
to class certification are present.” Instead, we must also determine whether the discovery
the circuit court compelled was “reasonable.”
Petitioners argue that the detailed disclosures ordered by the circuit court are
not reasonable, particularly where, as here, no class has yet been certified. First, Petitioners
maintain the disclosure of health information related to non-party individuals involves
patient information protected by the federal Health Insurance Portability and
Accountability Act (“HIPAA”). The requested discovery at issue includes the names,
addresses and account information for health care services of non-litigant third-party
individuals. In its original responses to Respondent’s discovery requests, Petitioner HCFS
claimed that the information sought is “patient account information” and cannot be released
pursuant to HIPAA, 45 CFR 164.512(e). Because the circuit court included specific
provisions within its order to protect the requested information from improper disclosure,
we are not persuaded by Petitioner’s argument in this regard. The circuit court correctly
addressed the HIPAA argument and ordered that the disclosure would be made pursuant to
45 C.F.R. 164.512(e)(v) 6, which permits disclosures in judicial proceedings if appropriate
measures are taken to ensure that the information is protected from improper disclosure.
6
Although the circuit court erroneously cited the provisions of 45 C.F.R.
164.512(e)(v), it is evident from the language referenced in the circuit court’s order that
the appropriate section to which the court was referring was 45 C.F.R. 164.512(e)(1)(v).
12
See 45 C.F.R. 164.512(e). The circuit court’s order contains protective order language set
forth in 45 C.F.R. 164.512(e)(1)(v), which provides:
(v) For purposes of paragraph (e)(1) of this section, a qualified
protective order means, with respect to protected health
information requested under paragraph (e)(1)(ii) of this
section, an order of a court or of an administrative tribunal or
a stipulation by the parties to the litigation or administrative
proceeding that:
(A) Prohibits the parties from using or disclosing the
protected health information for any purpose other than the
litigation or proceeding for which such information was
requested; and
(B) Requires the return to the covered entity or destruction of
the protected health information (including all copies made) at
the end of the litigation or proceeding.
45 C.F.R. 164.512(e)(1)(v). The circuit court not only stated that its order was made
pursuant to the applicable HIPAA provisions, but appropriately ordered, in Paragraph 7 of
its order, that “[t]he responses and answers are deemed protected and shall not be disclosed
by Plaintiff, or Plaintiff’s counsel, outside the scope of this litigation, and Plaintiff shall
return or destroy the protected health information at the end of the litigation or proceeding.”
Accordingly, we find that the ordered disclosures are not prohibited pursuant to the
provisions of HIPAA.
Although we are unpersuaded by Petitioner’s HIPAA argument, we are
concerned about the broader privacy interests where, as here, health-related records
concerning non-litigant, third-party individuals are at issue. Respondent Starr has
13
requested Petitioner HCFS provide the names, addresses and account information for all
persons with a West Virginia address to whom it sent written statements, letters, or other
written communications evidencing an amount due or allegedly due. 7 Significantly,
Respondent Starr is asking for the names, addresses, and information contained in medical
billing statements that were sent to non-litigant third-party individuals. Although it is
assumed that Respondent Starr will seek to certify a class that may include these
individuals in the future, no such class has been certified at this stage of the proceedings.
This case is in the pre-certification stage and the records requested relate to individuals
who have not yet been, and who may or may not be, named as class members in the future.
The United States Supreme Court has clearly recognized the distinction
between disclosure of information related to class members where a class has, in fact, been
certified, as opposed to pre-certification disclosure designed to assist in determining the
appropriateness and scope of a class certification. In Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340 (1978) the United States Supreme Court stated that while it did not hold that
class members’ names and addresses never can be obtained under the discovery rules,
“[t]here is a distinction in principle between requests for identification of class members
that are made to enable a party to send notice and requests that are made for true discovery
purposes.” Id. at n. 20. In the case sub judice, Respondent Starr is clearly not seeking the
7
The discovery request was limited in time for “a period between June 2016 and
present.”
14
names and addresses in order to send notice as this case has not yet been, and may or may
not be, certified.
This Court has also recognized that the privacy rights of non-parties to
litigation must be protected in the discovery process. When “[w]eighing the requesting
party’s need to obtain the information against the burden that producing the information
places upon [the disclosing party], [courts] must be cognizant of the privacy rights of non-
litigant third parties.” State ex rel. West Virginia Fire & Cas. Co. v. Karl, 202 W. Va. 471,
476, 505 S.E.2d 210, 215 (1998). Although the Karl case did not involve class
certification, it involved a request for claim files of non-litigants, and this Court required
the copies of the claim files to be redacted to “adequately protect the privacy interests of
the non-litigants by redacting names, addresses, personal medical information, and other
identifying material from the records.” Id. at 476, 505 S.E.2d at 215. Eighteen years later,
this Court relied upon Karl in again holding that the names, addresses and telephone
numbers of non-party insureds should be redacted from any documents produced in
discovery in that case. State ex rel. State Farm Mut. Auto. Ins. Co. v. Cramer, 237 W. Va.
60, 785 S.E.2d 257 (2016).
In seeking the discovery at issue, we are mindful of the burden imposed upon
Respondent Starr. “The party who seeks to establish the propriety of a class action has the
burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil
Procedure have been satisfied.” Syl. Pt. 6, Jefferson Cty. Bd. of Educ. v. Jefferson Cty.
15
Educ. Ass’n., 183 W. Va. 15, 393 S.E.2d 653 (1990). As we noted in Love, a party who is
not permitted to conduct discovery on the prerequisites for class certification, may be
“severely hampered” in his or her “ability to address and to meet [his or] her burden for
class certification under Rule 23.” Love 214 W. Va. at 488, 590 S.E.2d at 681. However,
a party seeking to establish the propriety of a class action does not have the right to conduct
unlimited discovery. In this case, Respondent Starr served discovery requests with the
Amended Class Complaint on or about June 30, 2020. Unlike the appellant in Love who
was denied the ability to conduct discovery, it is clear from the record before us that
Respondent Starr has served, and received responses to, various interrogatories and
requests for production of documents. Therefore, discovery had been ongoing prior to the
filing of the instant Petition for Writ of Prohibition. In addition, counsel for Petitioner
HCFS represented to the Court, during oral argument in this matter, that class discovery is
still ongoing and that the depositions of a corporate representative and Respondent Starr
still needed to be taken.
While Respondent must certainly be permitted to engage in certain
appropriate discovery, even at the pre-certification stage of her alleged class action suit,
such discovery must meet the relevancy requirements of the West Virginia Rules of Civil
Procedure. Rule 26 of these rules provide that “[p]arties may obtain discovery regarding
any matter, not privileged, which is relevant to the subject matter involved in the pending
16
action. . . .” W. Va. R. Civ. P. 26(b)(1). Accordingly, at this stage of the proceedings,
discovery must be relevant to the certification of the proposed class action.
This court has held that
[b]efore certifying a class under Rule 23 of the West Virginia
Rules of Civil Procedure [1998], a circuit court must determine
that the party seeking class certification has satisfied all four
prerequisites contained in Rule 23(a)–numerosity,
commonality, typicality, and adequacy of representation–and
has satisfied one of the three subdivisions of Rule 23(b). As
long as these prerequisites to class certification are met, a case
should be allowed to proceed on behalf of the class proposed
by the party.”
Syl. Pt. 8, In re W. Va. Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003). The circuit
court noted that the information sought in Interrogatory No. 3 and Request For Production
No. 11 was “relevant and permissible discovery pursuant to Rule 26 at this pre-certification
stage of discovery to afford Plaintiff the opportunity to meet their [sic] burden under Rule
23(a) 8 [as to] numerosity, commonality, typicality, adequacy, and at least one Rule 23(b) 9
8
West Virginia Rule of Civil Procedure 23(a) provides as follows:
(a) Prerequisites to a class action.---One or more members of
a class may sue or be sued as representative parties on
behalf of all only if (1) the class is so numerous that joinder
of all members is impracticable, (2) there are questions of
law or fact common to the class, (3) the claims or defenses
of the representative parties are typical of the claims or
defenses of the class, and (4) the representative parties will
fairly and adequately protect the interests of the class.
9
West Virginia Rule of Civil Procedure 23(b) provides that a class action may be
maintained only if the prerequisites of Rule 23(a) are met in addition to at least one of the
following requirements:
17
ground.” However, the circuit court did not provide any findings explaining why such
information would help Respondent meet her burden or to which specific prerequisites of
a class action set forth in Rule 23 the requested discovery would be relevant.
(1) The prosecution of separate actions by or against individual
members of the class would create risk of
(A) Inconsistent or varying adjudications with respect to
individual members of the class which would establish
incompatible standards of conduct for the party opposing the
class, or
(B) Adjudications with respect to individual members of the
class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications
or substantially impair or impede their ability to protect their
interests; or
(2) The party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to
the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy. The matters pertinent to the
findings include: (A) the interest of members of the class in
individually controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of
the class; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a
class action.
W. Va. R. Civ. P. 23(b).
18
Indeed, Respondent Starr has failed to establish how a non-litigant third-
party individual’s name, address or account information will help prove any of the Rule 23
prerequisite factors for certifying a class. By her own admission, “the central issue raised
by this action is whether defendant violated W. Va. Code §46A-2-127 et seq. in collecting
debt in the name of Alcoa Billing Center[.]” The specific information sought (name,
address and account information) does not appear relevant in meeting her burden in this
regard.
Further, in her Amended Class Action Complaint, Respondent Starr does not
identify the non-litigant third-party individuals’ names, addresses, or account information
as “[q]uestions of law and fact that are common to the entire Class[.]” The Amended Class
Action Complaint contains a paragraph that identifies questions of law and fact that are
common to the entire class under the heading “Predominance.” The questions are:
a. Whether the defendant HCFS was using the name Alcoa
Billing Center illegally and without registering the name as
a trademark or DBA (doing business as) with the State of
West Virginia to legally use the name in the pursuit of the
collection of claims;
b. Whether Plaintiff and Class Members were contacted by
the defendants for the purpose of collecting consumer debt
in the State of West Virginia when the defendant were [sic]
not licensed and bonded to do so in violation of the law;
c. Whether Alcoa Billing Center is a true name of the
defendant Health Care Services Financial, LLC;
d. Whether defendants are legally responsible for damages
incurred by Plaintiffs and the Class Members for their
19
conduct surrounding the use of Alcoa Billing Center and
the unlicensed collection of debt;
e. Whether either of the Defendants are unlicensed collection
agencies engaged in the collection of debt.
Respondent Starr purports to bring claims “on behalf of all West Virginia
residents who [] received written communications from defendants attempting to collect
debt using the name Alcoa or Alcoa Billing Center while defendants were not licensed and
bonded in West Virginia to do so.” We are at a loss to understand how names, addresses
and account information of non-litigant, third-party individuals will help Respondent Starr
meet her burden at this stage given that the central issue and questions of fact and law she
identified focus on the conduct of HCFS, not the identities or addresses of potential class
members or specific amounts owed by such perspective class members.
Respondent Starr argues that the information she seeks will permit the circuit
court to “meaningfully address the predominance issues that the Surnaik decision
discussed.” 10 In Syllabus Point 7 of Surnaik Holdings of WV, LLC v. Bedell, 244 W. Va.
248, 852 S.E.2d 748 (2020), we held that
[w]hen a class action certification is being sought pursuant to
West Virginia Rule of Civil Procedure 23(b)(3), a class action
may be certified only if the circuit court is satisfied, after a
thorough analysis, that the predominance and superiority
10
The circuit court’s order does not mention our decision in Surnaik. Respondent
Starr argues that the circuit court made its decision at a hearing which appears to have been
held on November 18, 2020, prior to our holding in Surnaik. However, the circuit court’s
order was entered after the Surnaik case was decided.
20
prerequisites of Rule 23(b)(3) have been satisfied. The
thorough analysis of the predominance requirement of West
Virginia Rule of Civil Procedure 23(b)(3) includes (1)
identifying the parties’ claims and defenses and their
respective elements; (2) determining whether these issues are
common questions or individual questions by analyzing how
each party will prove them at trial; and (3) determining whether
the common questions predominate. In addition, circuit courts
should assess predominance with its overarching purpose in
mind—namely, ensuring that a class action would achieve
economies of time, effort, and expense, and promote
uniformity of decision as to persons similarly situated, without
sacrificing procedural fairness or bringing about other
undesirable results. This analysis must be placed in the written
record of the case by including it in the circuit court’s order
regarding class certification.
Although our decision in Surnaik requires the circuit court to conduct a thorough analysis,
it is not to be relied upon as a vehicle to permit unbridled discovery.
We are not convinced that the specific requested information is relevant to
any of the enumerated prerequisites for class certification set forth in Rule 23, including
the predominance factor discussed in Surnaik. Had Respondent alleged that only potential
class members treated at a particular facility or who lived in a particular city or town were
to be included within the class to be certified, their names, addresses and service providers
may be relevant at this pre-certification stage. She has not made any such allegation.
Similarly, had Respondent alleged that only class members who owed in excess of a certain
dollar amount were potential members of the potential class, or that individuals would be
treated differently within the class, perhaps in terms of numerosity or commonality, based
21
on the amounts each individual owed, the amounts owed might be relevant to the class
certification. Again, however, she has made no such allegations.
Moreover, as to the specific question of predominance as discussed in
Surnaik, it would not appear that the identifying data requested would be relevant to
“identifying the parties’ claims and defenses and their respective elements,” determining
“whether these issues are common questions or individual questions by analyzing how each
party will prove them at trial” or whether “common questions predominate.” Again,
Respondent claims that the members of the potential class would be so included in the
affected class because they were unlawfully contacted by Petitioners for debt collection
purposes. Regardless of the potential class member’s name, address, amount owed or the
identity of the healthcare provider whose services gave rise to the debt, it would appear
that the evidence establishing the alleged illegal contact, and any defense that may be
asserted, would be the same.
Clearly, Respondent seeks certification of a class that would arguably include
any individual in West Virginia who was contacted by HCFS for the purpose of collecting
consumer debt. Specifically, as the circuit court’s order states, Respondent purports to
bring her class action on behalf of all West Virginia residents who “received written
communications from defendants attempting to collect debt using the name Alcoa or Alcoa
Billing Center while defendants were not licensed and bonded in West Virginia to do so.”
22
In this regard, the patients’ name and local address, the identity and account information
of the original creditor, the amount originally owed by the patient and the outstanding
balance would not appear relevant to determining if class certification is appropriate.
Although we are not persuaded that the specific names, addresses and
account information ordered produced is relevant at the pre-certification stage of this
matter, the number of individuals who are prospective class members would appear
relevant, at least to the question of numerosity as set forth in Rule 23 of the West Virginia
Rules of Civil Procedure. In its Second Supplemental Discovery Responses, HCFS
provided, in part, “from June 1, 2016 to the present, approximately 11,630 individuals may
have received statements sent by Defendant HCFS with the name of Alcoa Billing Center
listed as the return address for services rendered by Defendant Healthcare Alliance, Inc. at
Logan Regional Medical Center.” However, as indicated in such response, the numerical
information provided by HCFS was limited to statements sent for services rendered at
Logan Regional Medical Center. The Respondent has asserted that the class for which she
seeks certification includes all West Virginia residents who received written
communications from Petitioners attempting to collect debt using the name Alcoa or Alcoa
Billing Center. Respondent’s claims on behalf of such potential class are not limited only
to patients of Logan Regional Medical Center. Therefore, the number of West Virginia
residents to whom such written communication was forwarded, regardless of the medical
provider to which they relate, is relevant to establishing the class certification prerequisites
23
set forth in Rule 23. Accordingly, Petitioner HCFS should be directed to supplement its
discovery responses to provide the number of West Virginia residents to whom it sent
written communications attempting to collect debt, regardless of the medical facility at
which they received treatment.
Likewise, Interrogatory No. 13 seeks a list of all medical or health care
providers in West Virginia to which the Petitioner HCFS provides services. The circuit
court briefly addressed this interrogatory by ordering HCFS to supplement its response to
Interrogatory No. 13. HCFS objected to this request on the basis of relevancy and indicated
in its original response that Interrogatory No. 13 is “not relevant nor likely to lead to the
discovery of admissible evidence.” In its supplemental response, HCFS reasserted the
relevancy objection and further noted that Respondent Starr’s claim relates to “a bill
received for services provided by Health Care Alliance, Inc. at Logan Regional Medical
Center. There is no relevance to Defendant HCFS’s business relationships with any other
entities.” We disagree with HCFS’s assertion as to the relevance of such information. In
order to establish the scope of the potential class Respondent seeks to have certified, it is
possible that the response to Interrogatory No. 13 may lead to the discovery of admissible
evidence. Respondent Starr may possibly obtain information relevant to the potential
certification of the class from the businesses to whom Respondent provided services.
Therefore, the circuit court did not exceed its legitimate powers in compelling HCFS to
supplement its response to Interrogatory No. 13.
24
IV. CONCLUSION
For the reasons set forth above, this Court finds that the circuit court clearly
erred and exceeded its legitimate powers in compelling Petitioner HCFS to disclose at this
pre-certification stage names and addresses of non-litigant, third-party individuals to whom
debt collection letters were sent, dates of letters sent by HCFS, names of the original
creditors, the original creditors’ account or reference numbers, the amount owed or
allegedly owed and the current balance owed. However, Petitioner HCFS should be
directed to supplement its discovery responses to provide the number of West Virginia
residents to whom it sent written communications during the relevant period, regardless of
the medical facility at which they received treatment. Finally, the circuit court did not
exceed its authority in directing Petitioner HCFS to supplement its response to
Interrogatory 13 and the writ granted herein shall not prohibit enforcement of the circuit
court’s order in relation to Interrogatory No. 13. 11
Accordingly, we grant the requested writ of prohibition, as moulded, and
remand this case for further proceedings consistent herewith.
Writ granted as moulded.
11
Request for Production No. 11 seeks the same information requested in
Interrogatory No. 3, but requests that the information be produced in a searchable format
“such as excel” or “other format.” Because we have ruled, for the reasons set forth above,
that the circuit court clearly erred and exceeded its legitimate powers in compelling
production of such data, it is unnecessary for the court to determine whether the circuit
court further erred in directing that it be produced in “searchable format.”
25