United States District Court

EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

SANA HEALTHCARE CARROLLTON, 

LLC, d/b/a CARROLTON REGIONAL 

MEDICAL CENTER,

Plaintiff,

v. 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES, et al.,

Defendants.

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Civil Action No. 4:23-CV-738

Judge Mazzant

MEMORANDUM OPINION AND ORDER

Pending before the Court is Plaintiff Sana Healthcare Carrollton, LLC d/b/a Carrollton 

Regional Medical Center’s Motion to Take Discovery and Compel Privilege Log (Dkt. #28). 

Having considered the motion and the relevant pleadings, the Court finds that it should be 

GRANTED in part.

BACKGROUND

I. Factual History

A. The Hospital

This case arises in the context of whether Defendant Health Resources and Services 

Administration (“HRSA”) properly refused to provide Sana Healthcare Carrollton, LLC (the 

“Hospital”) with a reimbursement for COVID-19 treatment and testing services to uninsured 

patients (Dkt. #1 ¶¶ 1–5). The Hospital operates a 216-bed acute care hospital in Carrollton, Texas 

that serves Carrollton, Farmers Branch, Lewisville, the Colony, and other surrounding 

communities near Dallas, Texas (Dkt. #1 ¶ 10). The Hospital provided care for patients with 

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COVID-19, conducted COVID-19 testing, and delivered COVID-19 vaccinations to many 

members of the communities in and surrounding Dallas (Dkt. #1 ¶ 1).

B. The Government

HRSA is a United States government agency to which Defendant United States 

Department of Health and Human Services (“DHHS”) delegated authority to administer certain 

programs relating to COVID legislation, discussed further below. Defendant Xavier Becerra is the 

United States Secretary of DHHS (Dkt. #1 ¶ 14). Defendant Carole Johnson is the Administrator 

of HRSA (Dkt. #1 ¶ 16). The Hospital is only suing Becerra and Johnson in their official capacities 

(Dkt. #1 ¶¶ 14, 16). The Court refers to the Defendants collectively as the “Government.”

C. Framework of the Uninsured Program

To ensure the availability of COVID-19 testing, treatment, and vaccination for the 

approximately 29 million Americans without health insurance, Congress appropriated funds to 

reimburse health care providers for providing these services to the uninsured (Dkt. #14 at pp. 3–

4). Congress appropriated initial funds through the Families First Coronavirus Response Act. PUB.

L 116-127, 134 STAT. 178 (2020). Subsequently, Congress appropriated additional funds through 

the Coronavirus, Aid, Relief, and Economic Security Act; the Paycheck Protection Program and 

Health Care Enhancement Act, and the American Rescue Plan Act of 2021. PUB. L. NO. 116-136,

134 STAT. 281 (2020); PUB. L. 116-139, 134 STAT. 620 (2020); PUB. L. 117-2, 135 STAT. 40 (2021).

DHHS has delegated the responsibility for processing claims and making payments to healthcare 

providers to HRSA (Dkt. #14, Exhibit 1 ¶ 3).

This legislation created and funded the COVID-19 Claims Reimbursement to Health Care 

Providers and Facilities for Testing, and Vaccine Administration for the Uninsured Program (the 

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“UIP”) (Dkt. #14, Exhibit 1 ¶ 3).1 The UIP provided reimbursement to eligible healthcare 

providers and facilities for the testing, treatment, and vaccine administration to uninsured 

individuals (Dkt. #14, Exhibit 1 ¶ 17). HRSA contracted with UnitedHealth Group 

(“UnitedHealth”) to help administer the UIP (Dkt. #14, Exhibit 1 ¶ 18). The UIP existed entirely 

in an electronic format and required healthcare providers to use two (2) systems, the UIP Portal 

and the Medicare Electronic Data Interchange (“MEDI”) (Dkt. #14, Exhibit 1 ¶ 19). The primary 

factual disputes in this case relate to the UIP Portal. HRSA has provided various resources to 

healthcare providers indicating how to use the UIP Portal and MEDI and receive reimbursements 

under the UIP (See Dkt. #14, Exhibits 2–3, 5–14).

D. Submitting a Claim Under the Uninsured Program

Although the parties dispute exactly how many steps are required to receive a 

reimbursement under the UIP, a healthcare provider must clearly complete certain actions to 

receive a reimbursement (Dkt. #14, Exhibit 1 ¶ 21; Dkt. 16 at p. 8; Dkt. #17 at p. 4 n.2). The most 

important actions for the purposes of this case were that a healthcare provider must have submitted 

a patient roster in the UIP Portal and received corresponding temporary patient identification 

numbers (“temporary IDs”) (the healthcare provider would then use the temporary IDs to submit 

claims for reimbursement using MEDI) (Dkt. #14, Exhibit 1 ¶ 19; Dkt. #14, Exhibit 3 at pp. 18–20, 

26; Dkt. #14, Exhibits 4–8; Dkt. #14, Exhibit 9 at p. 16).

To submit a patient roster, a healthcare provider first accessed the UIP Portal (Dkt. 14, 

Exhibit 1 ¶ 24). The healthcare provider may have submitted the patient information either for 

individual patients or for multiple patients simultaneously (Dkt. #14, Exhibit 1 ¶ 26). The patient 

1 The UIP received funds through the Provider Relief Fund (Dkt. #14 at p. 2).

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roster must have occurred in the form of a .csv file and complied with certain technical 

specifications (Dkt. #14, Exhibit 1 ¶ 26; Dkt. #14, Exhibits 5–7). If the healthcare provider 

attempted to submit a non-conforming patient roster, an error screen would appear indicating that 

an error occurred in the submission process (Dkt. #14, Exhibit 6). If the healthcare provider 

successfully uploaded a patient roster, the UIP Portal immediately provided a reference number 

indicating that the submission was successful (Dkt. #14, Exhibit 7). 

On the day following a healthcare provider’s successful upload of a patient roster, the 

provider would receive an automatically generated email (Dkt. #14, Exhibit 1 ¶ 29). The email 

confirmed the receipt of the patient roster and identified any patients who already had temporary 

IDs that had not expired (Dkt. #14, Exhibit 8).

After a healthcare provider successfully uploaded a patient roster into the UIP Portal, 

UnitedHealth analyzed the patient information to verify eligibility (Dkt. #14, Exhibit 1 ¶ 30). Once 

UnitedHealth verified each patient’s eligibility, it assigned a temporary ID to each of the verified 

patients (Dkt. #14, Exhibit 1 ¶ 30). The process of receiving temporary IDs typically took one (1)

to five (5) days after the successful submission of the patient roster (Dkt. #14, Exhibit 1 ¶ 30). The 

provider could only submit their claims to MEDI after UnitedHealth generated and assigned the 

temporary IDs (Dkt. #14, Exhibit 1 ¶ 31).

E. Impending Shutdown of the Uninsured Program

However, on March 15, 2022, the White House announced the impending shutdown of the 

UIP due to a lack of sufficient funding (Dkt. #14, Exhibit 1 ¶ 40). HRSA reiterated the White 

House’s announcement and announced that it would stop accepting testing and treatment claims 

from providers at 11:59 PM on March 22, 2022 (Dkt. #14, Exhibit 12).

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Following the announcement of the UIP’s impending shutdown, a “significant increase 

UIP Portal activity” occurred as healthcare providers sought to submit claims prior to the deadline 

(Dkt. #17, Exhibit 1 ¶ 10). At that time, UnitedHealth experienced delays in generating temporary 

IDs for successfully uploaded patient rosters (Dkt. #14, Exhibit 1 ¶ 65). The program manager for 

the subsidiary of UnitedHealth, OptumServe Technology Services, Inc. (“OptumServe”), that 

managed the UIP claims that the patient roster upload process was separate and distinct from the 

temporary ID assignment process (Dkt. #17, Exhibit 1 ¶ 10). The program manager further claims 

that no such delays or technical issues extended to the patient roster upload process (Dkt. #17, 

Exhibit 1 ¶ 10). UnitedHealth claims to have no record of a technical issue with the UIP Portal that 

prevented participant providers from uploading patient rosters on March 17, 2023 (Dkt. #17, 

Exhibit 1 ¶¶ 12–13). On that day, 6,291 providers successfully uploaded 5,503,928 patient records 

(within 116,627 batches) (Dkt. #17, Exhibit 1 ¶ 9). The UIP Portal assigned each of these March 17 

upload batches a reference number (Dkt. #17, Exhibit 1 ¶ 9).

Despite the alleged differences between the two (2) processes, UnitedHealth sent an email 

addressed to “Provider” on April 5, 2022, to address concerns regarding technical delays (Dkt. #6, 

Exhibit 3 at p. 3). The email stated in relevant part: 

We are working with HRSA on multiple scenarios that impacted a provider’s ability 

to submit claims by the urgent program shutdown deadlines. As of right now, the 

program is not accepting new claim submissions for testing and treatment claims, 

and currently HRSA is not allowing for any exceptions around the current 

deadlines. If HRSA allows an exception directly related to the provider’s scenarios, 

we will attempt to contact.

(Dkt. #6, Exhibit 3 at p. 3). The Government claims that UnitedHealth sent this email to all 

providers who had contacted UnitedHealth with questions related to patient rosters (Dkt. #14, 

Exhibit 1 ¶ 65). Further, the Government claims that the email was relevant only to providers who 

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had successfully uploaded patient rosters and for whom there was a delay in generating temporary 

IDs (Dkt. #14, Exhibit 1 ¶ 65).

F. The Hospital’s Attempted Patient Roster Upload

On March 17, 2022, the Hospital claims that it, through its Chief Legal Officer, Radha 

Savitala (“Savitala”), uploaded a conforming patient roster (consisting of 285 patients) to the UIP

Portal (Dkt. #6, Exhibit 2 ¶ 4). However, the Hospital claims that it never received temporary IDs 

before the claim submission deadline passed (Dkt. #6, Exhibit 2 ¶ 6). The Hospital characterizes 

the April 5, 2022 UnitedHealth email as confirming that the Hospital had uploaded the patient 

roster on March 17, 2022 (Dkt. #6 at p. 8). The Hospital claims that the “[UIP] portal 

malfunctioned and resulted in the failure to generate” temporary IDs (Dkt. #6 at p. 12).

Savitala claims that she called UnitedHealth’s support line on March 22, 2022, to complain 

that it had not assigned temporary IDs (Dkt. #6, Exhibit 2 ¶ 7). She claims that “[UnitedHealth]

stated that the system was ‘overwhelmed’ by the number of claims being submitted, but indicated 

that that they did see [the Hospital’s] March 17, 2022 submission on their end in the system” 

(Dkt. #6, Exhibit 2 ¶ 7). The Hospital claims that it made daily calls and outreach in the days after 

its submission (Dkt. #16 at p. 9). However, the Government disputes this claim and states that the 

first time the Hospital reached out regarding its issue was on March 23, 2022 (Dkt. #14 at p. 12 

n.5) (citing Dkt. #14, Exhibit 21). The Government claims that no record exists of the help center 

agent confirming that the alleged patient roster submission was visible (Dkt. #14 at p. 12). Instead, 

the Government claims that the help center agent could not find the patient roster and a sample 

name that the Hospital had provided (Dkt. #14 at p. 12; Dkt. #14, Exhibit 21). UnitedHealth 

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created a claim ticket #D1237 following one (1) of these two (2) alleged calls (Dkt. #6, Exhibit 2 

¶ 7; Dkt. #14, Exhibit 1 ¶ 68).

In contrast, the Government claims that the Hospital never submitted a patient roster on 

March 17, 2022 (Dkt. #14 at p. 20). Before this instance, the Hospital had successfully uploaded 

24 separate batches of patient information over an approximately two (2)-year timespan (Dkt. #14, 

Exhibit 1 ¶¶ 45, 59). However, the Government does not have any record indicating that the 

Hospital submitted a patient roster on March 17, 2022 (Dkt. #17, Exhibit 1 ¶ 13). The Hospital’s 

last patient roster upload into the UIP Portal, according to UnitedHealth’s records, occurred on 

February 22, 2022 (Dkt. #17, Exhibit 1 ¶ 7). A record exists that a Hospital representative logged 

into the UIP Portal on March 17, 2022 (Dkt. #17, Exhibit 1 ¶ 5). No record of a reference number 

corresponding to a patient roster upload for the Hospital exists after February 22, 2022 (Dkt. #17, 

Exhibit 1 ¶¶ 6–7).

The Hospital and HRSA exchanged subsequent correspondence after March 2022 

(Dkt. #6, Exhibits 4–5; Dkt. #14, Exhibits 15–20). However, the parties were not able to resolve 

this dispute in those communications (Dkt. #6, Exhibits 4–5; Dkt. #14, Exhibits 15–20).

II. Procedural History

The Hospital brought suit against the Government for declaratory and injunctive relief, 

claiming that the Government’s actions were arbitrary, capricious, and exceeded statutory 

authority under the Administrative Procedure Act (the “APA”) (Dkt. #1 ¶¶ 63–81). 

On August 16, 2023, the Hospital filed the present motion requesting that the Court issue 

a preliminary injunction requiring the Government to “set aside, obligate, or deposit into the 

Court’s Registry sufficient funds to reimburse $6,419,414 in gross charges from remaining 

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[Provider Relief Fund] funds, or funds recouped from [Provider Relief Fund] overpayments to 

providers” (Dkt. #6 at p. 16). The Court denied the Hospital’s motion for preliminary injunctive 

relief (Dkt. #20).

On February 27, 2024, the Government produced a certified administrative record 

consisting of “the information that was considered in connection with the [Government’s] 

determination . . . that [the Hospital] did not submit a patient roster on March 17, 2022” (Dkt. #31, 

Exhibit 1 at p. 2). However, the Government did not produce a privilege log in connection with the 

administrative record (Dkt. #28 at p. 5).

On April 10, 2024, the Hospital filed the present motion (Dkt. #28). The Hospital believes 

the administrative record is incomplete and seeks to take extra-record discovery from OptumServe 

regarding technical issues with the UIP Portal (Dkt. #28 at pp. 1–2).

2 On April 24, 2024, the 

Government filed its response (Dkt. #31). If the Court grants the Hospital’s motion, the 

Government requests “leave to propound deposition notices and requests upon the Hospital and 

[Savitala]” (Dkt. #31 at pp. 17–18). On May 1, 2024, the Hospital filed its reply (Dkt. #33). On May 

8, 2024, the Government filed its sur-reply (Dkt. #34).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery regarding 

any nonprivileged matter that is relevant to any party’s claim or defense . . . ” FED. R. CIV. P.

26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be 

discoverable.” FED. R. CIV. P. 26(b)(1). The Local Rules of the Eastern District of Texas provide 

2 The Hospital has already served subpoenas duces totem on OptumServe and Avro Deb, an employee of OptumServe 

(Dkt. #31, Exhibit 2; Dkt. #31, Exhibit 3). These subpoenas provide notices of deposition and requests for the 

production of various materials (Dkt. #31, Exhibit 2; Dkt. #31, Exhibit 3).

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that information is “relevant to any party’s claim or defense [if]: (1) it includes information that 

would not support the disclosing parties’ contentions; . . . (4) it is information that deserves to be 

considered in the preparation, evaluation or trial of a claim or defense . . . ” LOCAL RULECV-26(d). 

It is well established that “control of discovery is committed to the sound discretion of the trial 

court.” Freeman v. United States, 556 F.3d 326, 341 (5th Cir. 2009) (quoting Williamson v. U.S. 

Dep’t of Agric., 815 F.2d 368, 382 (5th Cir. 1987)).

Rule 37 of the Federal Rules of Civil Procedure allows a discovering party, on notice to 

other parties and all affected persons, to “move for an order compelling disclosure or discovery.”

FED. R. CIV. P. 37(a)(1). The moving party bears the burden of showing that the materials and 

information sought are discoverable. Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. 

Tex. 2006). Once the moving party establishes that the materials requested are within the scope of 

permissible discovery, the burden shifts to the party resisting discovery to show why the discovery 

is irrelevant, overly broad, unduly burdensome or oppressive, and thus should not be permitted. 

Id.

Federal Rule of Civil Procedure 34 governs requests for production of documents, 

electronically stored information, and tangible things. Rule 34 requires responses to “either state 

that inspection and related activities will be permitted as requested or state with specificity the 

grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B). “An 

objection [to the entire request] must state whether any responsive materials are being withheld 

on the basis of that objection.” FED. R. CIV. P. 34(b)(2)(C). On the other hand, “[a]n objection to 

part of a request must specify the part and permit inspection of the rest.” FED. R. CIV. P.

34(b)(2)(C).

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ANALYSIS

Three (3) issues lie before the Court. First, the Hospital requests that the Court allow the 

Court to take extra-record discovery via subpoenas to OptumServe and Avro Deb, the individual 

responsible for overseeing the UIP Portal for OptumServe (Dkt. #28, Exhibit 5). Second, the 

Hospital requests the Court to order the Health Resources and Services Administration and the 

United States Department of Health and Human Services to provide privilege log accounting for 

all documents withheld form the administrative record on account of privilege requests (Dkt. #28, 

Exhibit 5). Third, the Government requests that the Court grant it leave to propound deposition 

notices and requests upon the Hospital and Savitala (Dkt. #31 at pp. 17–18). The Court addresses 

each issue in turn.

I. Extra-Record Discovery

Regarding extra-record discovery (beyond the administrative record), two (2) questions lie 

before the Court. First, the Court determines whether it should allow the Hospital to conduct 

extra-record discovery at all. Second, the Court addresses additional considerations about the 

extra-record discovery. Third, the Court considers whether the Hospital’s document requests to 

OptumServe are inappropriate because of the Government’s alleged control over the materials at 

issue.

A. Whether the Court Should Allow Extra-Record Discovery

The Court will allow the Hospital to conduct limited extra-record discovery via modified 

versions of Topic #5 and #8 in Schedule B to the Hospital’s subpoena to OptumServe. This extrarecord discovery will likely provide background information to assist the Court in its determination 

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of the Government considered all of the relevant factors in its decision to not reimburse the 

Hospital under the UIP.

The Hospital argues that the Court should allow extra-record discovery to provide the 

Court with background information in order to determine whether the Government considered all 

of the relevant factors (Dkt. #33 at pp. 3–7). Recognizing that extra-record discovery is not the 

norm in APA cases, the Hospital claims the undiscovered information would reveal whether the 

Government considered whether “the broken [UIP Portal] prevented the Hospital from 

submitting a patient roster on March 17, 2022” (Dkt. #33 at p. 4). Further, the Hospital asserts 

that the current administrative record contains “no information about known and admitted 

problems with the UIP Portal that prevented provider submissions” (Dkt. #33 at pp. 5–6). 

According to the Hospital, the administrative record is silent on this issue despite the 

Government’s alleged admission that the UIP Portal experienced multiple technical issues 

(Dkt. #33 at pp. 5–6).

The Government claims that extra-record discovery is not appropriate in this case because 

the Court should review the existing administrative record, rather than a “new record” made in 

the reviewing court (Dkt. #31 at pp. 8–11). The Government argues that no exception to this 

general rule applies in this case (Dkt. #31 at pp. 9–11). Rather, the Government claims that the 

existing administrative record shows that the Hospital did not upload a patient roster on March 17, 

2022 despite thousands of other providers uploading more than 116,000 patient rosters on the 

same day (Dkt. #31 at p. 10). The Government argues that the information in the existing 

administrative record is sufficient and no supplemental background information is needed 

(Dkt. #31 at p. 10).

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The APA provides that “the Court shall review the whole record or those parts of it cited 

by the party,” and makes no provision for extra-record review. 5 U.S.C. §§ 701–706. Accordingly, 

judicial review of an APA claim is generally limited to the administrative record underlying the 

challenged decision. Camp v. Pitts, 411 U.S. 138, 142 (1973); Geyen v. Marsh, 775 F.2d 1303, 1309 

(5th Cir. 1985). The administrative record includes “all documents and materials directly or 

indirectly considered by agency decision-makers and includes evidence contrary to the agency’s 

position.” Exxon Corp. v. Dept. of Energy, 91 F.R.D. 26, 33 (N.D. Tex. 1981) (citing Universal 

Camera Corp. v. NLRB, 340 U.S. 474, 487–88 (1951)).

Nevertheless, a party may seek to supplement the administrative record with documents 

or testimony. See Knight v. U.S. Army Corps of Eng’rs, No. 4:18–CV–352, 2019 WL 3413423, at *1 

(E.D. Tex. July 29, 2019). The United States Court of Appeals for the Fifth Circuit allows a 

reviewing court to consider extra-record materials in an APA case under three (3) narrow 

circumstances:

(1) The agency deliberately or negligently excluded documents that may have been 

adverse to its decision;

(2) The district court needed to supplement the record with “background 

information” in order to determine whether the agency considered all of the 

relevant factors, or;

(3) The agency failed to explain administrative action so as to frustrate judicial 

review.

Medina Cty. Envt’l Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 706 (5th Cir. 2010) (citing 

Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008)). “The [Hospital] must make 

the requisite strong or substantial probabilistic showing that discovery is sufficiently likely to 

unearth evidence relevant to deciding whether the record should be supplemented or added to 

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through one of the previously stated extra-record exceptions.” Aderholdt v. Bureau of Land Mgmt., 

No. 7:15-cv-00162, 2017 WL 11698630, at *3 (N.D. Tex. May 1, 2017) (cleaned up) (internal 

citations omitted); see also City of Dall. v. Hall, Nos. 3:07–CV–060P, 3:07–CV–0213, 2007 WL 

3257188, at *14 (N.D. Tex. Oct. 29, 2007) (“The party [seeking extra-record discovery] must 

provide the court with reasonable, non-speculative grounds to believe that materials considered in 

the decision-making process are not included in the record or the party must make a significant 

showing that it will find material in the agency’s possession indicative of bad faith or an incomplete 

record.”) (internal citations omitted).

The Court will allow the Hospital to conduct limited extra-record discovery to locate 

background information to assist the Court’s determination of whether the Government 

considered all of the relevant factors in its decision to not reimburse the Hospital under the UIP. 

The Hospital received an email from HRSA stating that its support service was “working with 

HRSA on multiple scenarios that impacted a provider’s ability to submit claims by the urgent 

program shutdown deadlines” (Dkt. #6, Exhibit 3 at p. 3). The Hospital claims that the 

administrative record contains no information about known and admitted problems with the UIP 

Portal that prevented provider submissions in the relevant time period (Dkt. #33 at pp. 4–5). The 

Government does not rebut this claim, particularly regarding providers’ ability to submit patient 

rosters due to technical issues with the UIP Portal.

3 Based on the existence of this email, the 

3 On September 7, 2023, the Government produced a declaration by Alexandra Huttinger, the Deputy Associate 

Administrator for a Bureau within HRSA (Dkt. #14, Exhibit 1). Within this declaration, Huttinger states that technical 

delays only impacted the generation and assignment of temporary patient IDs for submitted patient rosters (rather 

than provider’s ability to upload patient rosters) (Dkt. #14, Exhibit 1 § 66). Further, she claims that no providers, other 

than the Hospital, reported technical issues uploading patient rosters (Dkt. #14, Exhibit 1 § 66). It is unclear to the 

Court whether this declaration is part of the administrative record. Regardless, additional limited discovery will likely 

provide background information to assist the Court’s determination of whether the Government considered all of the 

relevant factors. This limited discovery will relate to technical issues involving healthcare providers’ ability to submit 

patient rosters to the UIP Portal between Mar15ch 15, 2022 and March 22, 2022.

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Hospital has made a substantial showing that extra-record discovery is likely to unearth evidence 

relevant to deciding whether the administrative record should be supplemented with background 

information in order to determine whether the Government considered all of the relevant factors. 

See Aderholdt, 2017 WL 11698630, at *3. Such additional background information regarding 

whether the Government considered in its decision any technical issues that prevented provider 

submissions of patient rosters would enable the Court to determine whether the Government 

considered all relevant factors. 

“Whether an agency considered all relevant factors ‘can sometimes only be determined by 

looking outside the record to see what the agency may have ignored.’” Texas v. U.S. Dep’t of 

Homeland Sec., No. 6:23–CV–007, 2023 WL 2842760, at *3 (S.D. Tex. Apr. 7, 2023) (quoting City 

of Dall., 2007 WL 3257188, at *4). “A primary source for ‘unconsidered’ factors is necessarily 

outside the administrative record.” Id. “It may well be that the evidence . . . will not show any 

factors were ignored, but the evidence itself is required to make that determination.” Id. 

Therefore, the Court will permit the Hospital to take limited extra-record discovery on its claim.

However, the Court will limit the extra-record discovery that the Hospital may take to

modified versions of Topic #5 and #8 in Schedule B to the Hospital’s subpoena to OptumServe. 

As the Hospital recognizes, the issue before the Court is whether “the [Government] considered 

whether [technical issues with the UIP Portal] prevent the Hospital from submitting a patient 

roster on March 17, 2022” (Dkt. #33 at p. 4). The Hospital has not shown how technical issues

with the UIP Portal not impacting healthcare providers’ ability to submit patient rosters to the UIP 

Portal are relevant to this case. The Hospital’s current discovery requests greatly exceed the scope 

of the background information the Court needs to determine whether the Government considered 

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all of the relevant factors. Therefore, the Court will limit the Hospital’s extra-record discovery to 

inquiries about technical issues with the UIP Portal specifically impacting healthcare providers’ 

ability to submit patent rosters. The following modified versions of Topics #5 and #8 in Schedule 

B in the Hospital’s subpoena to OptumServe accomplish this goal:

Topic #5: Telephone calls from healthcare providers between March 17, 2022 and 

March 22, 2022 regarding healthcare providers experiencing technical issues

submitting patient rosters to the UIP Portal.

Topic #8: Telephone calls from healthcare providers between March 17, 2022 and 

March 22, 2022 concerning any technical issues with the UIP Portal impacting 

healthcare providers’ ability to submit patient rosters.

The Hospital has made a substantial showing that extra-record discovery would likely 

unearth evidence relevant to deciding whether the administrative record should be supplemented 

with background information in order to determine whether the Government considered all of the 

relevant factors in its decision to not reimburse the Hospital under the UIP. Therefore, the Court 

will allow the Hospital to conduct limited extra-record discovery.

B. Additional Considerations Regarding Extra-Record Discovery

The Court must consider three (3) additional issues regarding extra-record discovery. 

First, the Court considers whether the extra-record discovery it will allow is duplicative of the 

existing administrative record. Second, the Court considers whether the subpoenas place an undue 

burden on OptumServe from the perspective of compliance cost. Third, the Court considers 

whether a protective order is necessary for OptumServe to fully comply with the Hospital’s 

discovery requests.

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1. Duplicative Discovery Requests

The Government argues that substantial portions of the Hospital’s subpoenas are 

duplicative of materials already in the administrative record (Dkt. #31 at pp. 3, 12–13). The Court 

has already limited the Hospital’s discovery requests to two (2) document requests about technical 

issues impacting healthcare providers’ ability to submit patient rosters. See Supra Section I.A. The 

Government does not claim that materials detailing the presence or lack of technical issues 

impacting healthcare providers’ ability to submit patient rosters exist in the administrative record.4

Therefore, the Court finds that the remaining portions of the Hospital’s subpoenas are not 

duplicative of the existing administrative records.

2. Mandatory Cost-Shifting

The Court must employ cost-shifting because OptumServe will experience significant 

compliance costs due to the Hospital’s subpoena.

The Government claims OptumServe would experience an undue burden and expense to 

comply to comply with the Hospital’s subpoenas (Dkt. #31 at pp. 3, 7). To comply with the 

Hospital’s request (prior to the Court’s modifications), counsel for OptumServe claims that 

OptumServe would need to manually review tens of thousands telephone calls, which would take 

thousands of hours (Dkt. #31, Exhibit 6 at p. 3).5 These telephone calls were from healthcare 

providers from March 15, 2022 through March 22, 2022 related to the UIP Portal on (Dkt. #31, 

Exhibit 6 at p. 3). Counsel for OptumServe further claims that “[w]ithout substantial limitations 

4 The administrative record contains a spreadsheet documenting approximately 116,628 successful patient roster 

uploads by thousands of healthcare providers on March 17, 2022 (Dkt. #31 at pp. 3, 12). However, this information 

does not reveal whether any healthcare providers experienced difficulties uploading patient rosters due to technical 

issues with the UIP Portal.

5 Over 49,000 telephone calls occurred between March 15, 2022 and March 22, 2022 (Dkt. #31, Exhibit 6 at p. 3). The 

number of telephone calls that OptumServe would need to review would be less, but still a very large number in the 

date range from March 17, 2022 and March 22, 2022.

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on the type of records sought by [the Hospital], it is not possible for OptumServe to comply with 

the subpoenas” (Dkt. #31, Exhibit 6 at p. 3). The Hospital did not respond regarding this issue.

OptumServe and Avro Deb filed objections to the Hospital’s subpoenas (Dkt. #31, Exhibit 

6 at pp. 17–23). OptumServe objected in part that “compliance with the subpoena would subject 

OptumServe—a third party—to undue burden and expense” (Dkt. #31, Exhibit 6 at p. 18). 

Additionally, OptumServe objected on the grounds that the subpoena was overly broad, unduly 

burdensome, and fails to provide OptumServe reimbursement for the “substantial time and 

expense . . . that would be incurred in responding to the subpoena” (Dkt. #31, Exhibit 6 at pp. 18–

19). Further, OptumServe objects to document requests 5 and 8 (among others) “as overly broad, 

unduly burdensome, and seeking confidential and proprietary information . . . without any 

reference to a protective order or other protection for the information. Specifically, the requests 

improperly, and without adequate safeguards, seek documents related to other healthcare 

providers, including information that those providers submitted to OptumServe” (Dkt. #31, 

Exhibit 6 at pp. 19–20).

The Court has already limited the scope of the Hospital’s discovery requests by retaining 

only two (2) document requests and limiting these two (2) requests to telephone calls from 

healthcare providers on the topic of technical difficulties submitting patient rosters. The Court will 

not further reduce the scope of these two (2) remaining document requests.

The Court will require the Hospital to reimburse OptumServe for its reasonable expenses 

to comply with the Hospital’s subpoena (as modified by the Court) because OptumServe’s costs 

of complying with the subpoena are significant. Federal Rule of Civil Procedure 45(d)(2)(B)(ii) 

requires that when the Court orders the nonparty to comply with a subpoena despite timely 

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objections, “the order must protect” the nonparty “from significant expense resulting from 

compliance.” FED. R. CIV. P. 45(d)(2)(B)(ii). In the Fifth Circuit, this rule “requires a district 

court to shift a nonparty’s cost of complying with a subpoena if those costs are significant.” 

Leonard v. Martin, 38 F.4th 481, 490 n.8 (5th Cir. 2022). The cost of complying with a subpoena 

may be significant at values as low as $20,000 or $9,000. See id. (citing Legal Voice v Stormans Inc., 

738 F.3d 1178, 1184 (9th Cir. 2013) & Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir. 

2001)). OptumServe’s costs of complying are clearly significant because it will have to review tens 

of thousands of telephone calls over the span of thousands of hours (Dkt. #31, Exhibit 6 at p. 3).6

Therefore, cost-shifting is mandatory. Leonard, 38 F.4th at 490 n.8.

3. Protective Order

The Court will not at this time require the parties to submit a proposed protective order to 

protect OptumServe’s confidential or proprietary information.

OptumServe objected to the Hospital’s subpoena on the grounds that it seeks confidential 

and proprietary information without reference to a protective order (or other protection) 

(Dkt. #31, Exhibit 6 at pp. 19–20). Absent a form of protection, OptumServe claims that it “will be 

materially limited in the documents it can produce in response to those topics” (Dkt. #31, Exhibit 

6 at p. 20). OptumServe’s counsel claims the subpoena “implicates protected health and other 

confidential commercial data involving millions of patients and thousands of [healthcare] providers 

across the country” (Dkt. #31, Exhibit 6 at p. 3). The Hospital does not respond to these 

objections.

6 OptumServe timely served its objections on the Hospital fourteen (14) days after the Hospital served the subpoena 

on OptumServe. FED. R. CIV. P. 45(d)(2)(B). The Hospital served the subpoena on OptumServe on March 5, 2024 

(Dkt. #31, Exhibit 6 at p. 5). OptumServe served its objections on the Hospital on March 19, 2024 (Dkt. #31, Exhibit 

6 at p. 21).

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A district court must modify or quash a subpoena that “requires disclosure of privileged or 

other protected matter, if no exception of waiver applies.” The Court has already significantly 

limited the Hospital’s discovery requests. The Court does not find a protective order to be 

necessary because the Hospital’s extra-record discovery is limited to telephone calls between 

OptumServe personnel and healthcare providers about technical difficulties submitting patient 

rosters (as opposed to information containing the contents of the patient rosters) between March 

17, 2022 to March 22, 2022. See supra Section I.A. If OptumServe later determines that a 

protective order is necessary, it may file a motion for a protective order.

The Court finds that a protective order is not needed at this time. However, the Court will 

require the Hospital to reimburse OptumServe for its reasonable expenses to comply with the 

Hospital’s two (2) remaining document requests because OptumServe’s costs of compliance are 

significant.

C. HRSA’s Alleged Control of the Materials at Issue

The Hospital’s two (2) remaining document requests to OptumServe are not inappropriate 

because HRSA does not control the materials at issue.

The Government claims that all requests for documents within the Hospital’s subpoenas 

to OptumServe are improper because all of the documents at issue are under HRSA’s control 

pursuant to HRSA’s contract with OptumServe (Dkt. #31 at p. 13). Therefore, the Government 

claims that the Hospital should have directed its request for documents to HRSA (Dkt. #31 at 

p. 31). The Hospital does not respond to this argument.

HRSA’s contract with OptumServe clarifies that the United States government has the 

sole legal right to control “Uninsured Provider Submission Data”: 

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With respect to any legal process from third-parties (including, but not limited to, 

subpoenas or discovery requests) seeking disclosure of the Uninsured Provider 

Submission Data, [OptumServe] will oppose such legal process seeking discovery 

on the ground that the U.S. government is the real party in interest and has the sole 

legal right to possess, control, release, disclose, or utilize such data.

(Dkt. #30, Exhibit 5 at p. 89). HRSA’s contract with OptumServe also defines “Uninsured 

Provider Submission Data”:

[D]ata related to testing, treatment or vaccination services rendered by providers 

to patients that is submitted to [OptumServe] in order to receive payment of 

uninsured claims.

(Dkt. #30, Exhibit 5 at p. 89). “[Federal Rule of Civil Procedure] 45 subpoenas are not meant to 

circumvent the regular discovery process under [Federal Rules of Civil Procedure] 34 and 26.” 

United States v. Cabelka, No. 7:16–CV–00126, 2017 WL 11814622, at *2 (N.D. Tex. Oct. 5, 2017) 

(citing Ntakirutimana v. CHS/Cmty. Health Sys., Inc., No. L–09–114, 2011 WL 13135608, at *2 

(S.D. Tex. June 29, 2011)). “‘[I]f documents are available from a party, it has been thought 

preferrable to have them obtained pursuant to [Federal Rule of Civil Procedure] 34 rather than 

subpoenaing them’ pursuant to [Federal Rule of Civil Procedure] 45.” Thomas v. EIM, Inc., No. 

06-886-B-M2, 2008 WL 695230, at *2 (M.D. La. Mar. 12, 2008) (quoting Burns v. Bank of Am., 

No. 03 Civ. 1685, 2007 WL 1589437, at *14 (S.D.N.Y. June 4, 2007)). Under Federal Rule of Civil 

Procedure 34, “[a] party may serve on any other party a request . . . to produce . . . items in the 

responding party’s possession, custody, or control.” FED. R. CIV. P. 34(a)(1) (emphasis added).

Assuming that HRSA has “control” of Uninsured Provider Submission Data for the 

purposes of Federal Rules of Civil Procedure 34 and 45, none of the materials subject to limited 

extra-record discovery are Uninsured Provider Submission Data and available from HRSA. The 

only extra-record discovery the Court is allowing is for telephone calls between OptumServe 

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personnel and healthcare providers about technical difficulties submitting patient rosters between 

March 17, 2022 to March 22, 2022. See Supra Section I.A. No evidence before the Court suggests 

that telephone calls about technical difficulties submitting patient rosters contain data related to 

testing, treatment or vaccination services rendered by healthcare providers to patients that is 

submitted to OptumServe. Thus, the telephone calls at issue do not contain Uninsured Provider 

Submission Data (See Dkt. #30, Exhibit 5 at p. 89). The telephone calls at issue are not subject to 

HRSA’s possession, custody, or control and a subpoena pursuant to Federal Rule of Civil 

Procedure 45 to OptumServe is appropriate (See Dkt. #30, Exhibit 5 at p. 89).

II. Production of a Privilege Log

The Court will require the Government to either produce a privilege log for materials it 

withheld from the administrative record on the basis of privilege or to provide a sworn statement 

that it did not withhold any materials from the administrative record on the basis of privilege.

The parties dispute whether the Government withheld documents from the administrative 

record on the basis of privilege (Dkt. #28 at pp. 12–14; Dkt. #31 at pp. 13–17; Dkt. #33 at pp. 7–8; 

Dkt. #34 at pp. 3–4). A miscommunication between the parties likely occurred on this issue.

An administrative record is not complete if an agency does not provide a privilege log 

describing all materials that the agency directly or indirectly considered but withheld on the basis 

of privilege. Exxon Mobile Corp. v. Mnuchin, No. 3:17–CV–1930, 2018 WL 4103724, at *2 (N.D. 

Tex. Aug. 29, 2018). “But the scope of the privilege [does not] define the scope of the material 

directly or indirectly considered.” Id. (internal citations omitted). “If a privilege applies, the 

proper strategy [is not] pretending the protected material [was not] considered, but withholding or 

redacting the protected material and then logging the privilege.” Id. (internal citations omitted).

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If the Government has directly or indirectly considered materials but withheld these 

materials from the administrative record on the basis of privilege, then the Government must 

provide a privilege log describing said materials. Exxon Mobile Corp., 2018 WL 4103724, at *2. 

However, if the Government has not withheld any materials that it directly or indirectly considered 

from the administrative record on the basis of privilege, then the Court will require the 

Government to provide a sworn statement explaining that no materials have been withheld from 

the administrative record on the basis of privilege. See Knight, 2019 WL 3413423, at *3.

III. The Government’s Requested Discovery

The Court will deny the Government’s request for leave to propound deposition notices 

and document requests to the Hospital and Savitala.

If the Court allows the Hospital to conduct extra-record discovery, the Government asks 

that the Court also grant it leave to “propound deposition notices and document requests upon

the [Hospital] and [Savitala]” (Dkt. #31 at p. 17). According to the Government:

Parity and fairness auger in favor of allowing Defendants the opportunity to depose 

Ms. Savitala under oath to probe the veracity and credibility of her story, and to 

seek documents from the Plaintiff regarding the use and operation of the Plaintiff’s 

data systems and networks on and around March 17, 2022, and its internal 

communications, including text messages, regarding the alleged March 17 upload 

to the UIP Portal.

(Dkt. #31 at pp. 17–18). In response, the Hospital argues that the Government’s request lacks any 

legal support (Dkt. #33 at pp. 8–9). The Hospital claims that “[t]here is no legal basis or reason to 

permit [the Hospital] to discover facts after they already made the decision being challenged in this 

litigation” (Dkt. #33 at p. 8). According to the Hospital, “[t]his action is about the Hospital’s 

challenge to [the Governments] decision below under the APA and will be decided on the records 

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considered and/or available to, but ignored by, [the Government] at the time the decision was 

made” (Dkt. #33 at p. 8).

The Court finds no basis for the Government’s requested discovery. As previously 

mentioned, judicial review of an APA claim is generally limited to the administrative record 

underlying the challenged decision. Camp, 411 U.S. at 142; Geyen, 775 F.2d at 1309. A party may 

supplement the administrative record or conduct extra-record discovery under limited 

circumstances. Medina Cty. Envt’l Action Ass’n, 602 F.3d at 706; Aderholdt, 2017 WL 11698630, at 

*3. The Government’s explanation of “[p]arity and fairness” is insufficient to justify 

supplementation of the administrative record or extra-record discovery (Dkt. #31 at pp. 17–18). 

Therefore, the Court denies the Government’s request for leave to propound deposition notices 

and document requests to the Hospital and [Savitala].

CONCLUSION

It is therefore ORDERED that Plaintiff Sana Healthcare Carrollton, LLC d/b/a Carrollton 

Regional Medical Center’s Motion to Take Discovery and Compel Privilege Log (Dkt. #28) is 

hereby GRANTED in part. Sana Healthcare Carrollton, LLC may conduct limited extra-record 

discovery only with following modified versions of Topic #5 and #8 in Schedule B to Sana 

Healthcare Carrollton, LLC’s subpoena to OptumServe Technology Services, Inc.:

Topic #5: Telephone calls from healthcare providers between March 17 and March 

22, 2022 regarding healthcare providers experiencing technical issues submitting 

patient rosters to the UIP Portal.

Topic #8: Telephone calls from healthcare providers between March 17 and March 

22, 2022 concerning any technical issues with the UIP Portal impacting healthcare 

providers’ ability to submit patient rosters.

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It is further ORDERED that Sana Healthcare Carrollton, LLC shall reimburse

OptumServe Technology Services, Inc. for its reasonable expenses incurred in complying with 

Sana Healthcare Carrollton, LLC’s limited extra-record discovery requests.

It is further ORDERED that Defendants Department of Health and Human Services and 

Health Resources and Services Administration shall provide a privilege log detailing all materials, 

if any, that they directly or indirectly considered but withheld from the administrative record on 

the basis of privilege within fourteen (14) days following the issuance of this Order. However, if 

Department of Health and Human Services and Health Resources and Services Administration 

did not withhold any such materials from the administrative record on the basis of privilege, then 

they shall instead provide to Sana Healthcare Carrollton, LLC a sworn statement that they did not 

withhold any materialsfrom the administrative record on the basis of privilege within fourteen (14) 

days following the issuance of this Order.

IT IS SO ORDERED.

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