Oklahoma Emsa Amr Lawsuit

Case 4:20-cv-00455-GKF-CDL Document 99 Filed in USDC ND/OK on 04/27/21 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF OKLAHOMA
EMERGENCY MEDICAL SERVICES )

AUTHORITY, )
An Oklahoma public trust, )
)
Plaintiff, )
)
v. ) Case No. 20-cv-00455-GKF-CDL
)
AMERICAN MEDICAL RESPONSE )
AMBULANCE SERVICE, INC., )
)
Defendant. )
DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION FOR ORDER COMPELLING

DISCOVERY AND FOR SANCTIONS
______________________________________________________________________________
Kathy R. Neal, OBA #674

McAfee and Taft A Professional Corporation
Williams Center Tower II
Two W. Second Street, Suite 1100
Tulsa, OK. 74103
Telephone: (918) 587-0000
Facsimile: (918) 599-9317
kathy.neal@mcafeetaft.com
Ronald T. Shinn Jr., OBA #19569

Elke C. Meeus, OBA #34439
Two Leadership Square, 10th Floor
211 N. Robinson
Oklahoma City, OK 73102
Telephone: (405) 235-9621
Facsimile: (405) 235-0439
Ron.shinn@mcafeetaft.com
Elke.Meeus@mcafeetaft.com
April 27, 2021 ATTORNEYS FOR DEFENDANT

TABLE OF CONTENTS
BRIEF IN SUPPORT ..................................................................................................................... 1
1. Defendant’s attempts to request discovery have been futile. Plaintiff has

stonewalled any discovery attempts with a view to withholding
information to its case prior to court-mandated settlement attempts ...................... 2
2. As Defendant demonstrates, the information sought is highly relevant to

the claim, counterclaims and affirmative defenses of this lawsuit ......................... 6
3. Plaintiff’s Response and prior filings indicate that the records Defendant
seeks are readily available for production by Plaintiff ......................................... 11
CONCLUSION ............................................................................................................................. 13
i
TABLE OF AUTHORITIES
Cases Page(s)
Caves v. Beechcraft Corp.,

No. 15-CV-125-CVE-PJC, 2016 WL 355491 (N.D. Okla. Jan. 29, 2016)........................10, 11
Cotracom Commodity Trading Co. v. Seaboard Corp.,

189 F.R.D. 456 (D. Kan. 1999)..................................................................................................2
Grubaugh v. CSAA Gen. Ins. Co.,

2018 U.S. Dist. LEXIS 6627 (N.D. Okla. Jan. 16, 2018) ..........................................................4
Hay Creek Royalties, LLC v. Roan Res. LLC,

No. 19-CV-177-CVE-JFJ, 2020 WL 2850902 (N.D. Okla. June 2, 2020) ..............................11
Howard v. Segway, Inc.,

2013 U.S. Dist. LEXIS 31402 (N.D. Okla. Mar. 7, 2013).......................................................11
O’Mara v. Gov’t Emps. Ins. Co.,

No. 09-CV-229-GKF-FHM, 2009 WL 10675364, at *3 (N.D. Okla. Nov. 18,
2009) ..........................................................................................................................................5
RoDa Drilling Co. v. Siegal,

2008 U.S. Dist. LEXIS 42338 (N.D. Okla. May 29, 2008) .......................................................6
Schulte v. Potter,
218 Fed. App’x. 703 (10th Cir. 2007) .......................................................................................5
Terrell v. IRS (In re Terrell),

569 B.R. 881 (Bankr. W.D. Okla. 2017) .............................................................................1, 11
Other Authorities
Fed.R.Civ.P. 1 ..................................................................................................................................4
Fed. R. Civ. P. 26 .....................................................................................................................1, 2, 4
Fed. R. Civ. P. 37 ...........................................................................................................................12
Local Rule 37.1 ................................................................................................................................5
ii
BRIEF IN SUPPORT
Pursuant to LCvR 7.1(f), Defendant American Medical Response Ambulance Service, Inc.
(“AMR”) submits its reply brief in support of its Motion to Compel Discovery and for Sanctions,
[Dkt. No. 84] (hereinafter “Motion”), and refutes any and all assertions made by Plaintiff in its
Response to Defendant’s Motion for Order Compelling Discovery and for Sanctions, [Dkt. No.
91] (hereinafter, “Response to Motion”), where (1) the Parties have conferred telephonically; (2)
Defendant has met the requirements of Fed. R. Civ. P. 26; (3) Defendant has not made sweeping
discovery requests, and has anchored each and every request to a claim, defense, and/or
counterclaim, and is certainly not demanding Plaintiff to prove its entire case; (4) Plaintiff has
answered and/or responded to nearly every discovery request with boilerplate answers and/or
responses; and (5) Plaintiff has not met its burden of showing that Defendant’s discovery requests
are “overly broad, unduly burdensome, oppressive or irrelevant.” Terrell v. IRS (In re Terrell), 569
B.R. 881, 888 (Bankr. W.D. Okla. 2017).
Plaintiff’s responses continue to be incomplete, as Plaintiff persists in evading Defendant’s
Discovery requests through unjustified boilerplate objections, objections to definitions, and other
misguided excuses.1 See generally, Defendant’s Letter of Deficiency to Plaintiff, [Dkt. No. 84-2],
1
Plaintiff feigns incomprehension of certain terms used in Defendant’s discovery requests. Yet,
after seven months of litigation, and consistent use of certain terms by the Parties in their filings
(invoice, arrangement, materially different, etc.), it is apparent Plaintiff is merely using its
discovery responses as a strategic way of delaying Defendant’s access to information to which
Defendant is entitled under the Federal Rules. The meaning of certain other terms used – e.g.,
“termination date” of the Parties’ Contract – does not prevent Plaintiff from answering and/or
responding to the Discovery Requests, where Defendant has clarified specifically, for example,
what it believes is the termination date of the Parties’ Contract (i.e. September 29, 2020).
Plaintiff also objects to Defendant’s use, at times, of “any and all” documents or “each and every”
document. This Court is, however, invited to read such terms in context of the discovery request
that narrows the field of invited information and/or documents.
1
Plaintiff’s Amended Answers and Responses to Defendant’s First Discovery Requests, [Dkt. No.
84-5], and Plaintiff’s Response to Motion, [Dkt. No. 91]. Defendant’s requests, however, seek
information that is not only discoverable pursuant to Fed. R. Civ. P. 26, Defendant’s Motion to
Compel Discovery, [Dkt. No. 84], at 11-13, but also critical to Defendant’s counterclaims and
affirmative defenses. See id., at 14-25. Accordingly, Defendant’s Motion should be granted.2
1. Defendant’s attempts to request discovery have been futile. Plaintiff has stonewalled
any discovery attempts with a view to withholding information to its case prior to
court-mandated settlement attempts
Although Plaintiff characterizes itself as having been exceedingly cooperative throughout
discovery, the truth of the matter is that while counsel have been civil in their dealings with each
other, Plaintiff has been uncooperative in producing responsive discovery materials. In
determining whether the moving party has satisfied its “meet and confer” duty, the Court “looks
beyond the sheer quantity of contacts.” Cotracom Commodity Trading Co. v. Seaboard Corp., 189
F.R.D. 456, 459 (D. Kan. 1999). It examines their quality as well. “The quality of the contacts is
far more important than the quantity.” Id. Plaintiff’s strategy has been to go round in circles since
Defendant filed its First Discovery requests on it on December 14, 2020. Over four months have
Also, contrary to Plaintiff’s allegations, Response to Motion, [Dkt. No. 91], at 18, 23, Defendant
does not seek, and has never sought, any privileged information. Defendant has repeatedly stated
in its Discovery Requests that it seeks only “non-privileged” information.
2
Defendant apologizes that its Motion did not advise the Court in its introductory paragraph each
and every discovery request that is subject to the Motion to Compel. Defendant did, however, in
the first section of its Motion (labelled “Discovery Background”) clearly indicate to Plaintiff that
virtually every interrogatory and request for production was objected to, Motion, [Dkt. No. 84], at
6. Defendant also specifically listed, twice, in its brief in support of its Motion to Compel all
problematic requests. See id., at 5, ns. 2-7; 13, n. 11. Plaintiff, twice in its Response, acknowledged
the list of deficiencies to which Defendant was referring. Response to Motion, [Dkt. No. 91], at
18, 23.
2
gone by, Plaintiff’s discovery production is negligible, and the Parties have reached an impasse
with regard to their discovery disputes, resulting in this Motion.
Naively perhaps, Defendant actually believed Plaintiff was taking its discovery requests
seriously when Plaintiff requested – a month after discovery requests had been served on Plaintiff
– a continuance until January 29, 2021, to respond to Defendant’s First Set of Discovery Requests.
Defendant granted the extension. However, on January 29, 2021, Defendant was served with 58
pages of boilerplate, frivolous and/or inapplicable objections to discovery. Not a single document
was produced, and no promise was made to produce any at a future date either. Defendant saw no
other option but to serve Plaintiff, on February 4, 2021, with a deficiency letter, in the hope that
both parties could in good faith attempt to meet and confer to informally resolve the inadequacies
of Plaintiff’s responses and answers. Defendant’s invitation was in vain. The Parties conferred
telephonically on February 8, 2021. That telephone conversation left Defendant with the
understanding that Discovery would not be forthcoming. Defendant’s premonition was confirmed
when Plaintiff sent Defendant a very lengthy letter refuting Defendant’s discovery requests, and
reiterating the same arguments it had already made in its responses to Defendant’s First Set of
Discovery Requests. That letter was cloaked with what Defendant understood to be a disingenuous
desire to further meet-and-confer with a view to resolving the Parties’ discovery dispute.3
Notwithstanding Plaintiff’s repeated arguments protesting discovery production, Defendant held
on to some hope Plaintiff would produce something, when it promised to amend its answers and
responses.
3
Plaintiff, in its Response, claims Plaintiff was ready to spend considerable time going over each
of Defendant’s discovery requests and objections. Even if this were true, Defendant submits the
“considerable time” Plaintiff would have taken, would be just that: considerable time to further
delay discovery, given Plaintiff’s approach to discovery since December 2020, with a view to
withholding as much information as it could prior to the April 2021 settlement conference.
3
Likely in an attempt to appease Defendant, and to further prevent discovery prior to this
Court’s mandated settlement conference, Plaintiff produced 143 documents in response to
Defendant’s First Set of Discovery requests. Yet, to Defendant’s dismay, nearly every document
it produced was a copy-paste from Plaintiff’s website or information readily found online, or
already in the possession of the Parties pursuant to their Contract. See Motion, [Dkt. No. 84], at 8-
9, ¶ 13. Adding insult to injury, Plaintiff added additional boilerplate4 answers and responses to
its Amended Answers and Responses.5 See Motion, [Dkt. No. 84], at 10, ¶ 15.
The Parties were at a deadlock. Defendant concluded it had no choice but to file its Motion
to Compel, where any further Discovery discussions appeared futile given (1) the Parties’ litigation
history in the present dispute, (2) Plaintiff’s circular arguments with a view to refusing to produce
4
This Court has held that
[i]t is unacceptable to answer every discovery request with a string of general

unsupported objections. Such objections evince an uncooperativeness that is
contrary to the command that the Federal Rules of Civil Procedure are to be
construed to secure the ‘just, speedy, and inexpensive determination of every action
and proceeding.’ Fed.R.Civ.P. 1. Furthermore, when discovery responses are
provided ‘subject to’ boilerplate objections or ‘without waiving objections’ with no
regard to the applicability of those objections, it is unclear whether the discovery
request has received a complete response. In addition, such objections may violate
the requirement of Fed.R.Civ.P. 26(g)(1)(B) that every objection is warranted by
existing law or a nonfrivolous legal argument and not interposed for delay.
The objection that a discovery request is vague or ambiguous can almost always be
resolved by phone calls or meetings between counsel. Therefore the objection that
a discovery request is vague or ambiguous should almost never appear in a
discovery response.
Grubaugh v. CSAA Gen. Ins. Co., 2018 U.S. Dist. LEXIS 6627, at *2-3 (N.D. Okla. Jan. 16, 2018).
5
Contrary to Plaintiff’s allegations, much of Defendant’s criticisms are directed to Plaintiff’s
Amended Answers and Responses to the First Set of Discovery Requests. However, because
Plaintiff merely reiterated most of its initial objections, and even added new boilerplate answers
and responses, Defendant’s original objections to Plaintiff’s answers and responses remain
relevant.
4
anything substantive, and (3) months’ long production delaying tactics. This strategy is contrary
to Fed. R. Civ. P. 1, and the “public’s interest in speedy, fair, and efficient justice.” Chief Justice
John G. Roberts Jr.’s 2015 Year-End Report on the Federal Judiciary,
https://www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf (“I cannot believe
that many members of the bar went to law school because of a burning desire to spend their
professional life wearing down opponents with creatively burdensome discovery requests or
evading legitimate requests through dilatory tactics.”) (emphasis added).
To the extent that this Court were, nonetheless, to find that Defendant did not strictly
comply with the letter of Local Rule 37.1 and that it filed its Motion too soon – which Defendant
refutes – it, nonetheless, has discretion to waive compliance with the conference requirements.
Although LCvR 37.1 reads that the Court “shall refuse to hear” a discovery motion
unless the parties certify that they had an informal conference, the Court has
discretion to waive any requirement of the local rules. The purpose of the “meet
and confer requirement” is to ensure that the Court will not be burdened with
discovery motions that could be resolved by the parties. It is not meant to limit the
Court’s jurisdiction over discovery disputes that are clearly within its purview.
O’Mara v. Gov’t Emps. Ins. Co., No. 09-CV-229-GKF-FHM, 2009 WL 10675364, at *3 (N.D.
Okla. Nov. 18, 2009), on reconsideration in part, No. 09-CV-229-GKF-FHM, 2010 WL 11520678
(N.D. Okla. May 4, 2010) (Frizzell, J.) (internal quotation marks and brackets omitted), citing
Owens v. Res. Life Ins. Co., 2007 WL 1206726, at * 2 (N.D. Okla.) (Eagan, C.J.), and Schulte v.
Potter, 218 Fed. App’x. 703, 708 (10th Cir. 2007) (recognizing possibility of a futility exception
to LCvR 37.1’s meet and confer requirement).
The circumstances of this dispute warrant such a waiver where Plaintiff has completely
stalled Defendant’s discovery. Further, Plaintiff’s assertion that Defendant could have done more
to meet and confer is mistaken. Plaintiff had plenty of time to respond to discovery requests.
5
Defendant made sincere efforts to cooperate and even granted Plaintiff an extension of time (for
both sets of Discovery requests), only to be further obstructed by Plaintiff.
2. As Defendant demonstrates, the information sought is highly relevant to the claim,

counterclaims and affirmative defenses of this lawsuit
Contrary to Plaintiff’s allegations, Response to Motion, [Dkt. No. 91], at 19, Defendant
has anchored its requests to Plaintiff’s claim, and Defendant’s counterclaims and defenses in this
lawsuit. Defendant’s Motion to Compel explains the importance of this discovery. See Motion,
[Dkt. No. 84], at 11-13. The First Set of Discovery requests Defendant served on Plaintiff primarily
sought information and documents concerning (1) the factual and legal bases for Plaintiff’s claim,
and the amounts Plaintiff alleges Defendant owes it, (2) the legality of the Gain Sharing provision
in the Parties’ Contract, which this Court has determined to be the “central issue” of this lawsuit,
Order, [Dkt. No. 86], at 8, (3) the ability of Plaintiff to pay in the event this Court decides the Gain
Sharing provision is legal, but the federal government nonetheless institutes a suit under the False
Claims Act, (4) the motives behind Plaintiff’s withholding of amounts owed to Defendant for
services rendered in 2020, which is the basis for Defendant’s breach of contract counterclaim, and
(5) the letter of credit issues raised by Defendant in its Amended Answer and Counterclaims.
Yet Plaintiff continues to resist cooperating in discovery even though the filings in this
lawsuit reinforce the importance of the information requested by Defendant to the claim,
counterclaims, and defenses. Plaintiff states that this is a complex case. Response to Motion, [Dkt.
No. 91], at 6. Yet, despite acknowledging the complexity of the present litigation, Plaintiff would
limit Defendant’s discovery requests to the bare-bones of information available to the public at
large, as published chiefly on its own website, See Motion, [Dkt. No. 84], at 9, thereby withholding
critical information from Defendant that only Plaintiff has access to, especially, but not limited to
6
the correspondence and communications of EMSA President and CEO, James O. Winham. See
Motion, [Dkt. No. 84], at 17, n. 12.
Further, Plaintiff contradicts itself: on the one hand, it argues Defendant’s requests are
“sweeping,” Response to Motion, [Dkt. No. 91], at 10; on the second hand, it argues – by citing to
this Court’s decision in RoDa Drilling Co. v. Siegal, 2008 U.S. Dist. LEXIS 42338 (N.D. Okla.
May 29, 2008) – that Defendant’s requests are too detailed. Response to Motion, [Dkt. No. 91], at
10. Plaintiff is arguing anything and its opposite in an attempt to further thwart any production of
permissible discovery.
The information requested by Defendant is highly relevant because Defendant wishes to
show the jury the “full picture” at trial, namely that Plaintiff’s breach of contract claim for non-
payment of purported amounts due under the Parties’ contractual Gain Sharing provision was, in
reality, just a pretext for what has been Plaintiff’s ultimate goal, since at least 2018: to “take over”
the EMS system and operate it without a contractor (e.g. Requests for Production Nos. 22-23, 26,
30-32; Interrogatories Nos. 17-18, etc.). Indeed, Defendant believes that the evidence will show
that EMSA President and CEO James O. Winham often publicly stated – in not so veiled terms –
that he did not believe in the public utility model and wanted to rid EMSA of its contractor. The
problem for Plaintiff was that it was bound by its Contract with Defendant until 2023. The COVID-
19 global pandemic conveniently presented Plaintiff an opportunity to manufacture a pretext to
attempt to terminate the Agreement between the Parties, when response times dipped slightly as
the State plunged into a national health disaster, as declared by President Trump, Governor Stitt,
and even by Plaintiff. See EMSA Special Board Meeting, Mar. 27, 2020, Pt. 3,
https://emsaonline.com/wp-content/uploads/2020/04/Special-Board-.pdf (last visited 04/19/2021)
7
[hereinafter, “EMSA BOT”].6 In so doing, Plaintiff sought to end the relationship with as much
cash as it could collect, regardless of the appropriateness of its actions, and the irreparable harm it
has since caused the citizens of greater Oklahoma City and Tulsa in increased delayed response
times.7 Importantly, throughout the six-year period of performance and prior to the COVID-19
disaster response time requirements in Oklahoma City and Tulsa were met more than 97% of the
time (Nov. 2013 – Feb. 2020) with only eight deficits in 304 reporting categories. Although the
Contract provides for response time requirements, it also provides for exemptions. The Contract
namely provides that “it is understood that from time to time unusual factors beyond the
contractor’s reasonable control affect the achievement of specified response time standards. These
unusual factors are limited to … declared disasters.” See id., at 15, ¶3(e) [hereinafter, “Exemption
clause”]. The pandemic was such a declared disaster, and, therefore, application of the Exemption
clause was warranted to Defendant’s response times.
At a July 24, 2020 meeting recorded by EMSA, James O. Winham, President and CEO of
EMSA, acknowledged that the COVID-19 pandemic had placed the entire emergency medical
services system under a disaster declaration. Moreover, before then, at a March 27, 2020 Special
EMSA Board Meeting, held just days after President Trump and Governor Stitt declared a national
and state emergency, EMSA Trustee and Medical Director Dr. Goodloe declared that
[the COVID-19 pandemic] is an unprecedented challenge to the health, safety, and

welfare of the communities that EMSA serves and that we are realistically not able
to conduct business as normal given every credible scientific evidence data, to date,
6
Plaintiff erroneously alleges that “AMR seeks to show that it has been the ‘better’ provider of
services in the field, or that EMSA has not performed to the same standards which were imposed
upon AMR in the Contract.” Response to Motion, [Dkt. No. 91], at 30. Although it is true that
AMR performed better, Plaintiff is missing the point: Defendant submits Plaintiff created a pretext
to attempt to terminate the Agreement between the Parties.
7
See EMSA Compliance Response times, September 2019 – February 2021, attached hereto as
Exhibit 1.
8
that extensive operational changes that are necessary to protect the safety and
welfare of our EMS personnel.
EMSA BOT, Mar. 27, 2020, Pt. 2. He added that “the same can be said about our response patterns
given the important precepts of Infectious Disease Control.” Id. At that same Special Meeting, Dr.
Goodloe added that “this pandemic will overwhelm the healthcare systems in Metropolitan Tulsa
and Oklahoma City.” Id., Pt. 3.
Some of the unprecedented response time challenges Defendant has encountered as a result
of COVID-19 are namely decontamination procedures, staffing shortfalls due to national guard
call-ups and employee isolation and quarantining due to COVID-19 exposure or contraction,
facility and CDC guidelines, as well as the taking of all proper precautions when responding to
calls for ambulance services, including the proper donning and doffing of personal protective
equipment (PPE). Additionally, hospital systems were stretched so thin that ambulances had to
wait several hours to offload patients, contributing further to delayed response times. Defendant’s
proposals to cure such delays went ignored or rejected.
Regardless, Plaintiff’s tunnel-vision to drive out its Contractor and operate the system
alone guided its actions, and led it to ignore and/or disregard the serious effects the COVID-19
pandemic was wreaking on response times within the EMS system.
While Plaintiff has attempted to make this case about Defendant’s desire to keep the Gain
Sharing funds, such a contention is wrong. Defendant repeatedly made offers to amend the
Contract and lower its rates to Plaintiff to allow Plaintiff an opportunity to achieve cost savings in
lieu of enforcing the problematic Gain Sharing arrangement contained in the Contract. However,
Plaintiff ultimately declined these invitations, and a key component of Defendant’s case will be
showing that EMSA desired to take over the system in the middle of a COVID pandemic, driving
it to unilaterally withhold over $16 million, based on false allegations that Defendant failed to
9
meet contractually-agreed-to compliance response times.8 This also led Plaintiff to erroneously
draw on an additional $5 million Letter of Credit. It is preposterous that Plaintiff would even
attempt to argue that any discovery related thereto would be irrelevant.9
Indeed, it is only just that Defendant be entitled to discovery so that it can obtain discovery
that could result in evidence being presented that would allow the jury to determine whether, either
Defendant breached its contract with Plaintiff – which Defendant refutes – by not making payment
on a potentially illegal and/or against public policy provision in the Parties’ Contract,10 or whether
instead, Plaintiff materially breached the Parties’ Contract by unilaterally withholding monies it
admits it owes Defendant for life-saving emergency and non-emergency ambulance services
rendered to the citizens of Oklahoma City and Tulsa. Complaint, [Dkt. No. 2], at 11, ¶ 65.
Not only is relevancy liberally construed under the Federal Rules of Discovery, Caves v.
Beechcraft Corp., No. 15-CV-125-CVE-PJC, 2016 WL 355491, at *1 (N.D. Okla. Jan. 29, 2016),
but any and all discovery requests pertaining to response times, gain sharing, letter of credit issues,
etc., are actually highly relevant to the claim, counterclaims and affirmative defenses at issue in
the present litigation. Defendant merely wishes to explore in discovery the facts Defendant
8
The circumstances of that alleged breach are important, for it will show Defendant, in fact, never
did breach the Parties’ Contract, per the Exemption Clause. Cf. supra.
9
This Court recently determined that Defendant has sufficiently pled its case to warrant dismissal
of Plaintiff’s Rule 12 Motion to Dismiss the letter of credit counterclaim, Order, [Dkt. No. 86], at
9.
10
Even if the Gain Sharing provision is held to be legal and not against public policy, Defendant
submits Plaintiff withheld far too much, based on a calculation of Gain Sharing amounts Plaintiff
believes Defendant owes it. Plaintiff, however, continues to keep Defendant in the dark on how it
calculates the Gain sharing amounts it believes it is owed. Plaintiff also refuses to explain its
definition of what the vague and ambiguous term “overhead” signifies, and which is the crux of
determining how much would be owed under the Gain Sharing provision. See Hearing Transcript,
Dec. 3, 2020, at 80-83, attached hereto as Exhibit 2.
10
believes support its counterclaims and defenses, or that go to the accuracy of Plaintiff’s breach of
contract claim. Without this, Defendant is unable to adequately attack the legitimacy of Plaintiff’s
claim, defend itself against Plaintiff’s claim, or even completely bring forth its own counterclaims.
3. Plaintiff’s Response and prior filings indicate that the records Defendant seeks are
readily available for production by Plaintiff
Defendant grouped its Discovery requests into categories based on the type of information
sought (cf. supra), all of which are relevant under the Federal Rules of Discovery. It is Plaintiff’s
burden to “show how each objectional Discovery Request is overly broad, unduly burdensome,
oppressive or irrelevant by submitting affidavits or offering evidence revealing the nature of the
burden.” Terrell, 569 B.R. at 888; see also Caves, 2016 WL at *3. Often, “the burden of responding
to discovery lies heavier on the party who has more information, and properly so.” Hay Creek
Royalties, LLC v. Roan Res. LLC, No. 19-CV-177-CVE-JFJ, 2020 WL 2850902, at *1 (N.D. Okla.
June 2, 2020), citing Fed. R. Civ. P. 26(b) advisory committee’s note (2015 amendment)
(discussing relevancy to a party’s claim or defense, and proportionality of the needs of the case).
Further, “BOILERPLATE OBJECTIONS, WITHOUT MORE, EQUATE TO NO OBJECTION.”
Terrell, 569 B.R. at 887 (emphasis in original); see also Howard v. Segway, Inc., 2013 U.S. Dist.
LEXIS 31402, at *6-8 (N.D. Okla. Mar. 7, 2013). Plaintiff has failed to meet its burden.
Despite attempting to create the impression that answering and responding to Defendant’s
discovery would present an insurmountable burden, Plaintiff’s Response and Plaintiff’s other
11
filings indicate that the information sought is readily accessible.11 Instead, Plaintiff hides behind
the excuse that Defendant has not provided it proportional and reasonable ESI search terms and
custodians. Response to Motion, [Dkt. No. 91], at 14. Certainly, Plaintiff’s experienced counsel
who have lived and breathed this case since they first filed their lawsuit over seven months ago,
Complaint, [Dkt. No. 2], can come up with some common-sense search terms just as easily as
Defendant can. Undue burden does not mean no burden at all.
In reality, Plaintiff has not attempted to conduct a reasonable search for any of the
documents Defendant requested, and has put the least possible effort into complying with its
discovery obligations. It is evident from Plaintiff’s baseless responses that Plaintiff simply refuses
to produce relevant discovery because the documents would reveal the real reasons and
circumstances behind its fabricated breach of contract claim, material breach of the Parties’
Contract (Defendant’s counterclaim), and wrongful draw on the Letter of Credit (same). Plaintiff’s
discovery production will also likely uncover evidence reflecting Plaintiff’s knowledge that the
Gain Sharing provision in the Parties’ Contract is illegal and/or against public policy, or even that
the provision does not form a part of the Parties’ contract due to mutual disagreement about its
inclusion, before and after the Contract Extension was entered into (e.g. Interrogatory No. 15, etc.)
(Defendant’s declaratory action counterclaim).
11
For example, if Plaintiff can sue Defendant for a sum certain, it can also readily provide
Defendant with a method of calculation how it came to the amount it believes Defendant owes it.
Instead, it hides behind the ambiguous notion of “overhead,” which even this Court has recognized
is not a clear-cut notion. See Hearing Transcript, [Exh. 2]. Obtaining such information is not
burdensome, and does not require Plaintiff to await the deposition of Lora Conger, as repeatedly
proposed by Plaintiff in its Response to Defendant’s Motion to Compel. An understanding of how
Plaintiff calculates the amounts it is suing Defendant for, is necessary for Defendant’s defense,
and will further determine the credibility of Plaintiff’s explanations for breaching the Parties’
Contract by unilaterally withholding amounts owed for life-saving emergency and non-emergency
ambulance services rendered by Defendant in 2020. Complaint, [Dkt. No. 2], at 11, ¶ 65.
12
Defendant continues to pursue discovery in this case, and would like to schedule
depositions as soon as possible. However, until Plaintiff has gathered and provided responsive
materials, Defendant cannot responsibly proceed with preparing the defense of this case. The
requested discovery is highly relevant to Defendant’s counterclaims and defenses, and is,
therefore, discoverable. Defendant is entitled to such discovery, and respectfully requests this
Court overrule Plaintiff’s objections.
CONCLUSION
Accordingly, Defendant moves the Court for an order: (1) compelling Plaintiff to produce
the requested information and documents; and (2) awarding Defendant its attorneys’ fees and costs
incurred in bringing this Motion, pursuant to Fed. R. Civ. P. 37.
Respectfully submitted,
/s/ Ronald T. Shinn, Jr.

Kathy R. Neal, OBA #674
Williams Center Tower II
Two W. Second Street, Suite 1100
Tulsa, OK. 74103
Telephone: (918) 587-0000
Facsimile: (918) 599-9317
kathy.neal@mcafeetaft.com
Ronald T. Shinn Jr., OBA #19569

Elke C. Meeus, OBA #34439
Two Leadership Square, 10th Floor
211 N. Robinson
Oklahoma City, OK 73102
Telephone: (405) 235-9621
Facsimile: (405) 235-0439
Ron.shinn@mcafeetaft.com
elke.meeus@mcafeetaft.com
ATTORNEYS FOR DEFENDANT
13
CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of April, 2021, I electronically transmitted the
foregoing document to the Court Clerk using the ECF System for filing. The Court Clerk
will transmit a Notice of Electronic Filing to the following ECF registrants:
Kristopher E. Koepsel
Donald M. Bingham
Sharon K. Weaver
K. Blair Pallarez
Robert A. Nance
ATTORNEYS FOR PLAINTIFF
s/Ronald T. Shinn, Jr.
14
Case 4:20-cv-00455-GKF-CDL Document 99-1 Filed in USDC ND/OK on 04/27/21 Page 1 of 4
Response times September 2019 - Present
EMSA Board of Trustees Minutes [“EMSA BOT”]: Compliance data September 2019
Priority 1 Priority 2 Priority 3 Priority 4

East Ben. Total 93% 98% 91% 100%
West Ben. Total 91% 98% 91% 100%
Exclusions E. Division: 0.7%

Exclusions W. Division: 0.5%
EMSA BOT: Compliance data October 2019

East Ben. Total 93% 98% 93% 100%
West Ben. Total 93% 98% 95% 88%

EMSA BOT: Compliance data November 2019

East Ben. Total 94% 98% 94% 100%
West Ben. Total 91% 98% 91% 91%

Compliance data December 2019.

East Ben. Total 93% 98% 94% 100%
West Ben. Total 89% 97% 86% 100%

EMSA BOT: Compliance data January 2020.

East Ben. Total 95% 99% 96% 100%
West Ben. Total 91% 98% 89% 94%

EMSA BOT: Compliance data February 2020

East Ben. Total 94% 98% 91% 100%
West Ben. Total 88% 98% 83% 100%

EMSA BOT: Compliance data March 2020

East Ben. Total 93% 98% 91% 93%
West Ben. Total 89% 97% 80% 100%

EMSA BOT: Compliance data April 2020.

East Ben. Total 94% 99% 96% 100%
West Ben. Total 91% 99% 94% 85% (7/1)

EMSA BOT: Compliance data May 2020.

East Ben. Total 93% 98% 92% 100%
West Ben. Total 90% 98% 89% 100%

EMSA BOT: Compliance data June 2020.

East Ben. Total 92% 97% 89% 100%
West Ben. Total 84% 97% 79% 100%

EMSA BOT: Compliance data July 2020.

East Ben. Total 89% 96% 74% 93%
West Ben. Total 78% 94% 61% 77%

EMSA BOT: Compliance data August 2020

East Ben. Total 90% 96% 80% 83%
West Ben. Total 76% 93% 65% 75%

EMSA BOT: Compliance data Sept. 2020

East Ben. Total 92% 98% 89% 92%
West Ben. Total 79% 95% 69% 58%

November 18, 2020 – EMSA BOT: Compliance data October 2020

East Ben. Total 91% 97% 78% 96%
West Ben. Total 75% 91% 66% 88%

EMSA BOT: Compliance data November 2020

East Ben. Total 90% 96% 84% 66%
West Ben. Total 68% 86% 54% 88%

December 1, 2020 – EMSA takes over operations
EMSA BOT: Compliance data December 2020.

East Ben. Total 88% 94% 73% 90%
West Ben. Total 63% 80% 47% 69%

EMSA BOT: Compliance data January 2020

East Ben. Total 88% 94% 69% 82%
West Ben. Total 68% 86% 64% 100%

EMSA BOT: Compliance data February 2021

East Ben. Total 92% 96% 85% 95%
West Ben. Total 75% 91% 71% 91%

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
EMERGENCY MEDICAL SERVICES AUTHORITY, )

)
Plaintiff, )
)
-vs- ) No. 20-CV-455-GKF-CDL
)
AMERICAN MEDICAL RESPONSE )
AMBULANCE SERVICE, INC., )
)
Defendant. )
TRANSCRIPT OF PRELIMINARY INJUNCTION MOTION HEARING
BEFORE THE HONORABLE GREGORY K. FRIZZELL
UNITED STATES DISTRICT JUDGE
DECEMBER 3, 2020
A P P E A R A N C E S
Kristopher E. Koepsel and Donald M. Bingham, Attorneys

at Law, Riggs, Abney, Neal, Turpen, Orbison & Lewis, 502 West
6th Street, Tulsa, Oklahoma, 74119, attorneys on behalf of the
Plaintiff;
Ronald T. Shinn, Jr., Kathy R. Neal, and Elke C.
Meeus, Attorneys at Law, McAfee & Taft, 211 North Robinson,
10th Floor, Oklahoma City, Oklahoma, 73102, attorneys on behalf
of the Defendant.
REPORTED BY: BRIAN P. NEIL, RMR-CRR

United States Court Reporter
Case 4:20-cv-00455-GKF-CDL Document 99-2 Filed in USDC ND/OK on 04/27/21 Page 280
of 5
1 over 10 percent and letting a court determine the legality of
2 the gainsharing provision?
3 THE WITNESS: Your Honor, I don't think that was a
4 conversation I was ever involved in but it's possible that that
5 discussion took place.
6 THE COURT: Okay. Go ahead.
7 Q. (BY MR. SHINN) I just want to briefly touch on this.
8 There's obviously this amount of a little in excess of
9 $16 million that has been withheld in payments to AMR by EMSA.
10 You're aware of that; correct?
11 A. Yes.
12 Q. Now, regardless of the appropriateness of the gainsharing
13 provision, does AMR agree that EMSA has calculated the correct
14 amount that is allegedly owed under the gainsharing provision
15 between the parties?
16 MR. KOEPSEL: I'm going to object, Your Honor.
17 THE COURT: Overruled. I'm curious.
18 A. No, we do not agree.
19 Q. (BY MR. SHINN) And why not?
20 A. We believe there is still -- there's a disagreement
21 between how you categorize what would be considered
22 gainsharing, specifically related to overhead and what overhead
23 costs are a part of the financial statements.
24 Q. Okay.
25 THE COURT: I'm not going to hold you to this, but
Brian P. Neil, RMR-CRR

U.S. District Court - NDOK
of 5
1 has anybody within AMR come up with a tentative number of what
2 you believe the gainsharing for the years that EMSA withheld
3 should be?
4 THE WITNESS: Yeah. We have done some -- some
5 internal modeling, and, again, it depends on the
6 interpretation, but we think it's somewhere between 6 and 9
7 million dollars.
8 THE COURT: Okay. Go ahead.
9 Q. (BY MR. SHINN) And I want to understand. You said AMR
10 had some concerns and, you know, there's a lot of focus in this
11 case on a big number which is $16 million and a lot of money.
12 Is AMR's concern in this case just about the money? Is that
13 what this is about?
14 A. No, not at all. We obviously spent a considerable amount
15 of money defending this, both prior in the previous litigation
16 that we were released from as well as trying to work out a
17 settlement or an agreement on what we believe was an
18 appropriate way to address this --
19 MR. KOEPSEL: Objection, Your Honor. He's
20 testifying as to settlement negotiations between AMR and EMSA
21 now. Highly inappropriate under Rule 408. And counsel knows
22 this is out of line.
23 THE COURT: Sustained. Let me go back here. And I
24 don't know how far into the weeds you are, but I suspect you've
25 got a pretty good grasp as to money, as to figures.

of 5
1 I found the contractual definition of the word "profit"
2 in the contract to be interesting. Because it's defined as
3 earnings prior to deduction for corporate overhead, contractual
4 penalties, and taxes or earnings. Obviously it makes sense to
5 me that it would be defined as earnings prior to contractual
6 penalties, but why would profit be defined as earnings prior to
7 deduction for a corporate overhead?
8 THE WITNESS: Well, that's EMSA's language so I
9 would hate to proffer --
10 THE COURT: Well, but it's in the contract; correct?
11 THE WITNESS: -- proffer a guess. I know what my
12 interpretation was from my years at EMSA. I believe there was
13 a concern potentially that an organization or a corporate
14 entity could just inflate corporate overhead in order to reduce
15 profit margins.
16 THE COURT: Sure.
17 THE WITNESS: So --
18 THE COURT: To gross up that overhead?
19 THE WITNESS: That's correct. That's correct.
20 THE COURT: Sure.
21 THE WITNESS: So the challenge is what is in there,
22 though, that is directly responsible for providing services to
23 the system. So every company is structured differently. I
24 worked for Paramedics Plus. We had one type of structure. I
25 work for AMR now. It's a very different structure as to where

of 5
1 support staff are located and the services that they provide to
2 the EMSA contract versus a larger corporate entity.
3 So that's where some of the disagreement is, is a
4 payroll person that doesn't reside in Oklahoma that provides
5 payroll services to the employees of Oklahoma under this
6 contract, are they really corporate overhead or are they direct
7 services cost to this contract?
8 THE COURT: I see. So the distinction is direct
9 services versus corporate overhead?
10 THE WITNESS: Yes, sir.
11 THE COURT: Interesting. Okay. Go ahead.
12 Q. (BY MR. SHINN) And without going into any details, the
13 parties engaged in significant discussions and negotiations
14 about that; correct?
15 MR. KOEPSEL: Objection, Your Honor.
16 THE COURT: Overruled. Go ahead. You can answer.
17 A. Yes.
18 Q. (BY MR. SHINN) Okay. And if a false claims case were to
19 be brought again about the gainsharing arrangement, does AMR
20 have any concern about the impact it would have had on the EMSA
21 system?
22 MR. KOEPSEL: Objection, Your Honor; calls for
23 speculation.
24 MR. SHINN: I don't think it calls for speculation,
25 Your Honor, in the sense that it is a consideration and a risk


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Case 4:20-cv-00455-GKF-CDL Document 99 Filed in USDC ND/OK on 04/27/21 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR

EMERGENCY MEDICAL SERVICES )

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION FOR ORDER COMPELLING

Kathy R. Neal, OBA #674

Ronald T. Shinn Jr., OBA #19569

April 27, 2021 ATTORNEYS FOR DEFENDANT

BRIEF IN SUPPORT ..................................................................................................................... 1

1. Defendant’s attempts to request discovery have been futile. Plaintiff has

2. As Defendant demonstrates, the information sought is highly relevant to

Caves v. Beechcraft Corp.,

Cotracom Commodity Trading Co. v. Seaboard Corp.,

Grubaugh v. CSAA Gen. Ins. Co.,

Hay Creek Royalties, LLC v. Roan Res. LLC,

Howard v. Segway, Inc.,

O’Mara v. Gov’t Emps. Ins. Co.,

RoDa Drilling Co. v. Siegal,

Terrell v. IRS (In re Terrell),

Fed. R. Civ. P. 26 .....................................................................................................................1, 2, 4

Fed. R. Civ. P. 37 ...........................................................................................................................12

Local Rule 37.1 ................................................................................................................................5

B.R. 881, 888 (Bankr. W.D. Okla. 2017).

Plaintiff’s responses continue to be incomplete, as Plaintiff persists in evading Defendant’s

Although Plaintiff characterizes itself as having been exceedingly cooperative throughout

other, Plaintiff has been uncooperative in producing responsive discovery materials. In

with regard to their discovery disputes, resulting in this Motion.

Notwithstanding Plaintiff’s repeated arguments protesting discovery production, Defendant held

Court’s mandated settlement conference, Plaintiff produced 143 documents in response to

[i]t is unacceptable to answer every discovery request with a string of general

John G. Roberts Jr.’s 2015 Year-End Report on the Federal Judiciary,

https://www.supremecourt.gov/publicinfo/year-end/2015year-endreport.pdf (“I cannot believe

evading legitimate requests through dilatory tactics.”) (emphasis added).

to LCvR 37.1’s meet and confer requirement).

both sets of Discovery requests), only to be further obstructed by Plaintiff.

2. As Defendant demonstrates, the information sought is highly relevant to the claim,

Motion, [Dkt. No. 84], at 17, n. 12.

The information requested by Defendant is highly relevant because Defendant wishes to

19 global pandemic conveniently presented Plaintiff an opportunity to manufacture a pretext to

https://emsaonline.com/wp-content/uploads/2020/04/Special-Board-.pdf (last visited 04/19/2021)

clause was warranted to Defendant’s response times.

[the COVID-19 pandemic] is an unprecedented challenge to the health, safety, and

and Oklahoma City.” Id., Pt. 3.

proposals to cure such delays went ignored or rejected.

pandemic was wreaking on response times within the EMS system.

attempt to argue that any discovery related thereto would be irrelevant.9

Further, “BOILERPLATE OBJECTIONS, WITHOUT MORE, EQUATE TO NO OBJECTION.”

Defendant can. Undue burden does not mean no burden at all.

(Defendant’s declaratory action counterclaim).

Court overrule Plaintiff’s objections.

incurred in bringing this Motion, pursuant to Fed. R. Civ. P. 37.

/s/ Ronald T. Shinn, Jr.

Ronald T. Shinn Jr., OBA #19569

ATTORNEYS FOR DEFENDANT

ATTORNEYS FOR PLAINTIFF

s/Ronald T. Shinn, Jr.

Response times September 2019 - Present

Priority 1 Priority 2 Priority 3 Priority 4

Exclusions E. Division: 0.7%

EMSA BOT: Compliance data October 2019