FIFTH DIVISION
BROWN, C. J.,
RICKMAN, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.gov/rules
June 24, 2026
In the Court of Appeals of Georgia
A26A0295. ORTHO SPORT & SPINE PHYSICIANS, LLC v.
SNOWDEN et al.
RICKMAN, Presiding Judge.
This is the second appearance of this contentious discovery dispute before our
Court.1 Once again, non-party Ortho Sport & Spine Physicians, LLC (“Ortho Sport”)
challenges trial court orders requiring it to produce database reports and other
1
The dispute arose in Glenda Ochoa’s personal injury suit against John Ernest Snowden, New South Trucking, LLC, LAD Truck Lines, Inc., and Protective Insurance Company in the Superior Court of Oconee County for damages arising from an automobile accident. As part of her damages, Ochoa sought to recover her past and future medical expenses, and she relied on medical treatment and bills she received from different providers, including Ortho Sport & Spine Physicians, LLC, an orthopedic medical practice. Medernix, LLC v. Snowden, 372 Ga. App. 48, 48 (903 SE2d 728) (2024).
documents to the defendants. For the reasons set forth below, we vacate in part the
trial court orders and remand for further proceedings consistent with this opinion.
In the prior appeal, non-parties Ortho Sport and Medernix, LLC, challenged
the trial court’s order compelling them to produce a database report and other
documents to the defendants (“Production Order”) and a related protective order
(“Protective Order”). Medernix, LLC v. Snowden, 372 Ga. App. 48, 48 (903 SE2d
728) (2024). This Court concluded that the trial court had abused its discretion in
requiring Ortho Sport and Medernix to create and produce a requested database
report containing extensive financial and billing information because the report was
overly broad and was not reasonably calculated to lead to the discovery of admissible
evidence. Id.
We did, however, conclude that
the amount that Ortho Sport charged, wrote off, adjusted, or accepted
as payment in full from other patients for the same types of treatment at the
same medical facility during the same general time period as [plaintiff
Glenda] Ochoa may have some relevance – “particularly in the broad
discovery sense” – to the reasonableness and necessity of the charges for
Ochoa’s care and thus be discoverable.
2
Medernix, 372 Ga. App at 53-54(1). In addition, we recognized that “evidence that the
plaintiff’s counsel has a close relationship with and a history of making referrals to the
plaintiff’s treating physician can be relevant to show the bias of that physician” and
determined that documents reasonably calculated to lead to financial information
concerning a treating physician’s bias would be discoverable. Id. at 54(1). We then
vacated the Production Order and the Protective Order to the extent they required
Ortho Sport to create and produce the requested database report and remanded for
the trial court to determine whether a more limited report could be generated that
would be consistent with our opinion, “subject to reasonable restrictions on the use
and dissemination of any such report.”2 Id. at 56(1).
2
The Production Order also compelled Ortho Sport to produce (1)
communications between Ortho Sport, plaintiff’s attorneys, and any litigation funding companies involved in the case, including communications logged into eClinicalWorks and/or Salesforce (another software database utilized by Ortho Sport); (2) all applicable contracts between Ortho Sport, plaintiff, plaintiff’s attorneys, and any litigation funding companies involved in the case; (3) “HIPAA audit logs” reflecting who had accessed plaintiff’s medical files and any changes made to those files; and (4) a database report revealing Ortho Sport/Medernix’s billed charges or rates, as well as any adjustments made to those rates charges or rates, “categorized by associated law firm referral partner.” In the prior appeal, Ortho Sport did not contest the portions of the Production Order that compelled it to produce those records and materials. Medernix, 372 Ga. App. at 56(1), n.8.
3
On remand, the trial court conducted a lengthy hearing to determine whether
a report could be prepared that would be consistent with this Court’s opinion in
Medernix. During the April 2025 hearing, the trial court heard from Ortho Sport’s
revenue cycle management director, who oversees billing in the medical records
department and has ten years of experience using the eClinicalWorks system, a
medical billing and records software program utilized by Ortho Sport. Defendants’
healthcare consultant, who had been using eClinicalWorks since 1999, also testified.
The Ortho Sport employee initially testified that the manner in which Ortho Sport
posted most of its payments would not be conducive to producing a report showing
the amount that Ortho Sport charged, wrote off, adjusted, or accepted as payment in
full from other patients for the same types of treatment at the same medical facility
during the same general time period as Ochoa. Defendants’ healthcare consultant
testified that it is possible to run that information in eClinicalWorks but it would not
be possible to do so in one report because of the manner in which Ortho Sport applies
certain of its payments. Instead, it would require multiple reports and some
compilation of that information. The healthcare consultant testified that she could
explain in writing how to run the respective reports, and the trial court requested that
4
she do so, narrowing the scope as outlined in Medernix. After hearing from the
consultant, Ortho Sport’s employee agreed that it sounded possible to obtain the
requested information through multiple reports, although she was not familiar with
all of them, and that it would be helpful to her to have written instructions if she were
asked to run the reports.
Counsel then debated the appropriate time period for the reports, with
defendants seeking information spanning a period of three years from when Ochoa
began treatment and Ortho Sport trying to limit the range to the actual dates of
Ochoa’s treatment. The trial court ultimately determined that the reports should
cover an 18-month period, beginning with Ochoa’s first treatment at Ortho Sport.
The trial court also requested that the defendants and Ortho Sport agree to a
protective order to protect the information contained in the reports. Counsel for
defendants responded, “we generally are agreeable to a broad protective order with
two caveats. We just don’t want to have to throw it away because we want to be able
to show it to another judge if they ever take a position other than what is real.”
Following the hearing, the trial court issued an order compelling Ortho Sport
and Medernix to produce three eClinicalWorks reports based on certain search
5
criteria to the defendants (“Second Production Order”). The trial court included a
requirement in the Second Production Order that defendants and their counsel hold
the reports strictly confidential, subject to certain exceptions. As requested by the trial
court, the healthcare consultant provided detailed instructions on how to run the
eClinicalWorks reports with the applicable search criteria in the form of an affidavit
with an attached exhibit containing guidance applicable to each report.
During the post-remand hearing, counsel for defendants also requested a show
cause order requiring Ortho Sport and Medernix to produce previously requested
records and materials that were not part of the eClinicalWorks reports. The trial court
subsequently issued an order requiring Ortho Sport to produce numerous documents
in addition to the eClinicalWorks reports (“Show Cause Order”).
Ortho Sport’s appeal challenging the Second Production Order and the Show
Cause Order followed.3
1. Ortho Sport contends that the Second Production Order and the Show Cause
Order disregard this Court’s instructions in Medernix.
3
Ortho Sport also challenges a show cause order directed to Medernix to the extent that it seeks to impose obligations on Ortho Sport. Medernix is not a party to this appeal.
6
With respect to the eClinicalWorks reports required under the Second
Production Order, Ortho Sport argues that they are not properly limited to “patients
[who received] the same types of treatment at the same medical facility during the
same general time period as Ochoa.” Medernix, 372 Ga. App. at 54(1) (emphasis
omitted). Ortho Sport complains that they include patients who did not receive all of
the same medical treatments/CPT4 codes as Ochoa; they include patients who may
have received one of the same diagnostic codes, low back pain or lumbar facet joint
syndrome, but received different medical treatment; the time period improperly
exceeds the time during which Ochoa was being treated; and the clinical locations are
4
“CPT” code
stands for Current Procedural Terminology codes. CPT codes are a
national uniform coding structure created for use in billing and overseen
by the American Medical Association. They are used by all health
insurance companies and by Medicare and Medicaid. A code represents
at least two things: the procedure or service performed and the level of
complexity involved in it.
Medernix, 372 Ga. App. at 50, n.4.
7
tied to the practitioners who provided treatment to or oversaw the treatment of Ochoa
instead of being limited to the locations where Ochoa was treated.5
During the post-remand hearing, the trial court and counsel for Ortho Sport and
the defendants thoroughly examined the witnesses knowledgeable about the
eClinicalWorks system in an effort to comply with the remand instructions in
Medernix. As previously noted, adjustments to the original plan for obtaining the
requested information were necessitated by certain aspects of Ortho Sport’s billing
system. Under the circumstances presented here and given the trial court’s broad
discretion in controlling discovery, the trial court did not violate this Court’s opinion
in Medernix in ordering Ortho Sport to produce the eClinicalWorks reports outlined
in the Second Production Order. See Johnson v. Adcock, 377 Ga. App. 375, 381(2) (922
SE2d 668) (2025) (“Trial judges have broad discretion in controlling discovery,
including imposition of sanctions, and appellate courts will not reverse a trial court’s
decision on such matters unless there has been a clear abuse of discretion.”)
(punctuation omitted). See also Gen. Motors v. Buchanan, 313 Ga. 811, 814-15(2)(a)
5
Ortho Sport also complains that one of the reports addresses payments made at the “global level,” but as discussed at length during the post-remand hearing, multiple reports were necessitated by the way in which Ortho Sport posts certain of its payments.
8
(874 SE2d 52) (2022) (“[I]t is not ground for objection that the information sought
will be inadmissible at the trial if the information sought appears reasonably calculated
to lead to the discovery of admissible evidence.”) (punctuation omitted).
Ortho Sport also complains that the Second Production Order improperly
requires the identification of patient identification numbers and payor names. With
respect to the patient identification numbers, the Second Production Order appears
to be internally inconsistent. On the one hand, it incorporates the healthcare
consultant’s affidavit and instructions on how to generate the eClinicalWorks reports
that are to be produced, and those instructions state that the patient account number
should be redacted before delivery.6 But the Second Production Order states that
Ortho Sport may not redact the patient identification numbers for any of its patients
whose information may be captured by the ordered search and production.
The record is also unclear with respect to the disclosure of payor names. One
set of instructions attached to the healthcare consultant’s affidavit uses payor name
6
The instructions attached to the healthcare consultant’s affidavit use account numbers as a way to identify individual patients. The record here does not indicate any distinction between patient identification numbers and account numbers — both are used to identify individual patients.
9
as one search criteria for the report, but for another report, the payor name is
information that is to be redacted before delivery.
We need not consider the propriety of requiring the production of the patient
identification/account numbers or payor names when it is not clear that such
production was actually required. We therefore vacate the Second Production Order
to the extent that it required Ortho Sport to reveal patient identification/account
numbers for any of its patients, other than Ochoa, whose information may be captured
by the ordered search and production or to reveal payor names. We remand for the
trial court to clarify its ruling with respect to whether Ortho Sport may redact patient
identification numbers and/or payor names from the reports ordered to be produced.
See Haney v. Camp, 320 Ga. App. 111, 113(1) (739 SE2d 399) (2013) (remanding case
for trial court to clarify inconsistent ruling).
2. Ortho Sport contends that the Second Production Order and the Show Cause
Order require the production of information and documents that were never requested
to be produced.
First, Ortho Sport challenges the required production of three eClinicalWorks
reports instead of the one report mentioned in Medernix as having been requested by
10
defendants. But as explained above, Ortho Sport’s billing system necessitated the
production of three separate reports to obtain information that might have otherwise
been available in one report.
Next, Ortho Sport challenges the Second Production Order to the extent it
requires the disclosure of patient identification numbers for Ortho Sport patients
other than Ochoa because they were not previously requested. As set forth in Division
1 of our opinion, it is unclear whether such disclosure was required, and that issue will
be resolved on remand.
With respect to the Show Cause Order, Ortho Sport argues that the
requirement that it potentially be required to conduct a “hand-review of emails or
even the review of each of its files” to compile lists of the number of patients who
meet certain criteria exceeds both any request made by defendants and its discovery
obligations under OCGA § 9-11-34(a).7
7
OCGA § 9-11-34(a)(1) provides in part:
(a) Scope. Any party may serve on any other party a request:
(1) To produce and permit the party making the request, or someone
acting on his behalf, to inspect and copy any designated documents
11
Relying on Blount v. Blount, 373 Ga. App. 105, 110(4) (907 SE2d 719) (2024),
Ortho Sport argues that defendants’ request that it hand-review emails or files to
create a list was improper because it was not included in defendants’ discovery
requests or motion to compel. In Blount, this Court reversed a trial court order
granting a motion to compel production of documents to the extent that they were not
previously sought in the motion to compel or requested in discovery. Id. But here,
Ortho Sport is not challenging the information sought but the method of obtaining it,
an issue not addressed in Blount.
With respect to Ortho Sport’s obligations under OCGA § 9-11-34(a)(1), it
argues that it cannot be required to hand review emails or files to create a document
that does not already exist. In Medernix, this Court recognized that where a
“requested document is data drawn from the producing party’s electronic computer
storage system, that party can be tasked with translating the document through
detection devices into reasonably usable form.” 372 Ga. App. at 57(3) (punctuation
(including writings, drawings, graphs, charts, photographs,
phono-records, and other data compilations from which information can
be obtained, translated, if necessary, by the respondent through detection
devices into reasonably usable form)[.]
12
omitted). We also recognized the general rule that non-parties are not required to
create documents that do not exist, simply for purposes of discovery. Id. Accordingly,
we vacate the Show Cause Order’s “hand-review” requirement to the extent that it
seeks to impose on Ortho Sport a duty to create a document that does not exist, as
opposed to extracting the information requested from an existing database or program,
and remand for the trial court to clarify the scope of that requirement.
3. Ortho Sport contends that the Second Production Order violates the
procedural and substantive due process rights of its patients, other than Ochoa,
because it requires the production of patient identification numbers. Ortho Sport
concedes that this issue was not raised in the trial court but argues that it could not
have raised it below because defendants had previously agreed that Ortho Sport could
redact that information.8
8
As a general rule, “issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken.” Rodriguez v. State Farm Mut. Auto. Ins. Co., 366 Ga. App. 65, 70 (880 SE2d 606) (2022).
13
As set forth in Division 1 of our opinion, it is unclear whether disclosure of
patient identification numbers was required, and that issue will be resolved on remand.
Accordingly, we need not consider this enumerated error.
Judgment affirmed in part and vacated in part, and case remanded. Brown, C. J.,
and Mercier, J., concur.
14