Saguaro Medical Associates, P.C., et al v. Banner Health

Filing 177

ORDER denying 135 Motion for Ruling re request for access to sealed documents. Signed by Judge David G Campbell on 1/22/2010.(NVO)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) ) ) Plaintiffs, ) ) vs. ) Banner Health, an Arizona corporation, ) ) d/b/a Banner Thunderbird Medical ) Center, ) ) Defendant. ) ) Saguaro Medical Associates, P.C., an Arizona professional corporation; and Rakesh Malhotra, M.D.,

No. CV-08-1386 PHX-DGC ORDER

On August 3, 2009, Defendant Banner Health moved to intervene in an unrelated case, AAA Arizona, Inc. v. American Commerce Insurance Co., CV 05-1426-PHX-SMM, to gain access to sealed documents that it hoped to use to impeach Plaintiffs' expert witness in this case. See CV 05-1426-PHX-SMM, Dkt. #217. Judge McNamee denied the request, stating that "[d]iscovery in the underlying case before Judge Campbell is over pursuant to the Case Management Order" and that "[a]ny request to intervene to obtain the expert reports and deposition testimony of Dr. Clarke should have occurred during the designated discovery period." CV 05-1426-PHX-SMM, Dkt. #228 at 2-3. Judge McNamee further stated that "Banner Health had knowledge while discovery was still ongoing that Dr. Clarke was retained as an expert by the opposing side" and that it had "sufficient time" to conduct discovery on this issue before the discovery deadline passed. Id. at 3. Judge McNamee stated, however, that if Judge Campbell decided "that the requested information is

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discoverable at this stage in the proceedings," the Court would unseal the reports. Id. at 3. Banner Health now asks this Court to enter an order stating that "the release of these documents would not violate any order of this Court." Dkt. #135. The Court will deny this request. The discovery deadline in this case has long since passed, the Court has ruled on dispositive motions, and motions in limine have been filed. A final pretrial conference will be held next week. Banner Health knew as of April 17, 2009 that Dr. Clarke would serve as an expert for Plaintiffs, yet waited almost four months to request the sealed documents from Judge McNamee. Dkt. #85. After obtaining Judge McNamee's order of November 5, 2009, Banner Health waited another month before filing this request. The discovery period is closed. IT IS ORDERED that Banner Health's request for access to sealed documents (Dkt. #135) is denied. DATED this 22nd day of January, 2010.

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