Durr v. Davis et al
ORDER granting in part and denying in part 10 Motion to Compel. Signed by Judge Kristine G. Baker on 1/17/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 4:12-cv-272-KGB
SHALON DAVIS, MANAGER AT WORLEY’S
PLACE APARTMENTS; ELDERLY HOUSING
DEVELOPMENT AND OPERATIONS CORPORATION;
AND JACKSONVILLE GARDENS, INC.
Plaintiff Otis Durr brings this claim pursuant to the Fair Housing Act, 42 U.S.C § 3601,
et seq., the Rehabilitation Act, 29 U.S.C. § 794, the Arkansas Fair Housing Act, Ark. Code Ann.
§ 16-123-201, et seq., the Arkansas Civil Rights Act, Ark. Code Ann. § 16-123-101, et seq., and
abuse of process under Arkansas law. In short, Mr. Durr claims that he was subjected to
different terms and conditions of residence because of his race and because of a handicapping
Mr. Durr seeks declaratory, equitable, and injunctive relief, as well as
compensatory damages (Dkt. No. 1, ¶¶ 52-53). He is not seeking damages for lost wages or lost
earning capacity (Dkt. No. 14, at 2).
Before the Court is defendants’ motion to compel (Dkt. No. 10).
Mr. Durr responded
(Dkt. No. 13). On January 16, 2013, the Court conducted a hearing on the motion. For the
reasons discussed below, the motion is granted in part and denied in part.
As a threshold matter, the Court notes that the parties agree that this case is in the early
stages of discovery and that no depositions have been taken. The Court will entertain further
discovery motions on these matters pending the development of the case through discovery.
Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that “[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense . . .
For good cause, the court may order discovery of any matter relevant to the subject matter
involved in the action.” Although it need not be admissible at trial if it is reasonably calculated
to lead to the discovery of admissible evidence, the discovery sought must be relevant to a
party’s claim or defense. See Fed. R. Civ. P. 26. Rule 26 has been construed broadly, but it does
have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978). The Eighth Circuit has held that, despite Rule 26 being “liberal in scope and
interpretation, extending to those matters which are relevant and reasonably calculated to lead to
the discovery of admissible evidence,” it “should not be misapplied so as to allow fishing
expeditions in discovery.” Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
Medical Authorization. The Court finds that defendants are entitled to Mr.
Durr’s medical records dating back ten years from his admittance to defendants’ facility,
Worley’s Place Apartments. The parties agreed at the hearing that Mr. Durr was admitted to
Worley’s Place Apartments in March 2011. Therefore, defendants are entitled to a medical
authorization that will give them access to Mr. Durr’s medical records including psychotherapy
notes from 2001 to present.
The Court notes Mr. Durr was willing to permit access to
psychotherapy notes from 2008 to present (Dkt. No. 13, at 5).
Employment Record Authorization. The Court concludes that defendants are
not entitled to the blanket employment authorization that they seek. The authorization is not
restricted by date or employer and therefore could be used to access information that is not
relevant to Mr. Durr’s claims. Moreover, the nature of Mr. Durr’s allegations and the fact that
Mr. Durr has not worked since approximately 2004 persuade the Court that defendants are not
entitled to such a broad employment authorization at this time.
Request for Copy of Tax Form. Because income is at least one requirement for
admission to Worley’s Place, which is a federally subsidized housing facility, the Court finds
that defendants are entitled to Mr. Durr’s tax returns for the years 2010, 2011, and 2012 (when
those become available). At this point, the Court concludes that defendants are not entitled to
Mr. Durr’s tax returns prior to 2010 because defendants have not demonstrated that those earlier
tax returns are relevant to the claims and defenses at issue in this case.
Consent for Release of Information of Social Security Administration
Records. Because of the nature of Mr. Durr’s allegations, the Court concludes that defendants
are entitled to have Mr. Durr execute the Social Security Administration Consent for Release of
Information that they seek. Defendants are entitled to an earnings statement and disability
Workers’ Compensation Authorization.
The Court denies at this time
defendants’ request for Mr. Durr to execute the workers’ compensation authorization. Mr. Durr
has not worked since approximately 2004. Defendants present no information that Mr. Durr
filed for workers’ compensation. At this point, the Court concludes defendants are not entitled to
an executed workers’ compensation authorization because defendants have not demonstrated that
such records exist or, if they exist, are relevant to the claims and defenses at issue in this case.
Educational Records Release. The Court denies at this time defendants’ request
for Mr. Durr to execute the educational records release. Mr. Durr’s counsel represents Mr. Durr
left high school in the early 1960s and since then attended one correspondence course in 1996-97
to obtain a paralegal certificate (Dkt. No. 13, at 2). Defendants have not demonstrated the
relevance of Mr. Durr’s educational records to the claims or defenses involved in this case.
Military Records Release. The Court denies at this time defendants’ request for
Mr. Durr to execute a blanket release of Mr. Durr’s military records. The Court notes, however,
that Mr. Durr’s counsel agreed at the hearing to enter into a limited release that will provide
defendants with information regarding Mr. Durr’s discharge and his condition at the time of his
discharge, specifically whether he was disabled or not. Mr. Durr’s complaint states he is a
veteran, although no claims are based on his veteran status (See Dkt. No. 1, at 2-3). His counsel
represented at the hearing that Mr. Durr’s disability postdates his military discharge. In other
words, Mr. Durr’s counsel represented that Mr. Durr was not disabled at the time of his
discharge from the military. The Court rules defendants are entitled to a release executed by Mr.
Durr narrowly tailored to permit defendants to verify these representations.
Defendants’ request for costs and fees associated with the filing of this motion is denied.
For those reasons, defendants’ motion to compel is granted in part and denied in part
(Dkt. No. 10).
SO ORDERED this the 17th day of January, 2013.
Kristine G. Baker
United States District Judge
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