Avalos v. Carpenter et al

Filing 40

ORDER Granting Defendant's 26 27 28 Motions to Compel signed by Magistrate Judge Jennifer L. Thurston on 01/26/2017. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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1:15-cv-00369-LJO-JLT (PC)

ANGEL AVALOS,

ORDER GRANTING DEFENDANT’S
MOTIONS TO COMPEL

Plaintiff,
v.

(Docs. 26, 27, 28)

CARPENTER,

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Defendant.

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I. Background
On July 8, 2016, the only remaining Defendant in this action, Carpenter, filed three
motions to compel: (1) to compel Plaintiff to respond to deposition questions regarding his
mental health condition and treatment received for it prior to the events at issue in this action
(Doc. 26); (2) to compel Plaintiff to produce documents in response to requests for production
(Doc. 27); and (3) to compel Plaintiff to provide responses to interrogatories (Doc. 28). Plaintiff

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filed an opposition in which he states that the documents and/or information Defendant seeks “is

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not entirely available” to him; that he’s not the custodian of CCI’s records, but that Defendant

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may subpoena CCI’s records; that he produced some documents that Defendant requested at his

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deposition; and that in his deposition, he told defense counsel that he will produce documents and
provide the responses sought if Defendant obtained a court order directing it, but that he believed
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his prior condition is not related and played no part in his injuries from this incident. (Doc. 38.)

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II. Motions to Compel Discovery

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Parties are entitled to seek discovery of any non-privileged matter that is relevant to any

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claim and/or defense in the action. Fed. R. Civ. P. 26(b)(1). The discovery sought may include

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information that is not admissible as long as it appears reasonably calculated to lead to the

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discovery of admissible evidence. Id. This defines the scope of discovery in federal civil

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litigation in general. The party responding to discovery requests shall use common sense and

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reason. E.g., Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008 WL 1924935, *8 (D.

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Kan. Apr. 30, 2008). Hyper-technical, quibbling, or evasive objections are not viewed with favor.

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Further, the responding party has a duty to supplement any previously provided responses if the

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information sought is later obtained, or the response provided needs correction. Fed. R. Civ. P.

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26(e).

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The Discovery and Scheduling Order limits the parties to 25 interrogatories as permitted

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by Federal Rule of Civil Procedure 33; 25 requests for admission made according to Federal Rule

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of Civil Procedure 36; and 25 requests for production made according to Federal Rule of Civil

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Procedure 34.

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If the responding party objects to a discovery request, it is the moving party’s burden, in a

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motion to compel, to demonstrate why the objection is not justified. In general, the moving party

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must inform the Court which discovery requests are the subject of the motion to compel, and, for

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each disputed response, inform the Court why the information sought is relevant, why the

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response is deficient, and why any objections stated are not justified.

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A. Plaintiff’s Mental Health Condition

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It appears that Plaintiff feels that his prior mental/emotional health treatment is off limits.

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In general, a party’s medical records are protected by the right to privacy. See Bertram v.

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Sizelove, 2012 WL 273083, at *2 (E.D. Cal. Jan. 30, 2012). However, privacy rights in medical

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records are neither fundamental, nor absolute. Whalen v. Roe, 429 U.S. 589, 603-604, 97 S.Ct.

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869, 51 L.Ed.2d 64 (1977). The holder of a privacy right can waive it through a variety of acts,

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including by written authorization, or as Plaintiff has done here, instituting a lawsuit. Id. Privacy
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rights are waived if the party puts their medical condition, and thus the contents of their medical

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records, at issue in a case. Smith v. Solano Cnty., 2012 WL 3727332, at *1 (E.D. Cal. Aug. 24,

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2012); Bertram, 2012 WL 273083, at *3.

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Plaintiff seeks damages from Defendant for mental/emotional injuries that he alleges were

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caused by the incidents at issue in this case. By doing so, Plaintiff placed his mental/emotional

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condition in issue in this case. See In re Lifschutz, 2 Cal.3d 415, 433-34, 85 Cal.Rptr. 829, 467

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P.2d 557 (1970) (under California law, the patient-physician privilege is waived where the

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patient's specific medical condition is placed into issue by the patient); see also Sarko v. Penn-Del

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Directory Co., 170 F.R.D. 127, 130 (E.D.Pa.1997) (under federal law, the privilege may be

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waived when the patient files a lawsuit that places the content of the privileged communications

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in issue); Vann v. Lone Star Steakhouse & Saloon, Inc., 967 F.Supp. 346, 349-50 (C.D.Ill.1997);

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cf. Home Indem. Corp. v. Lane Powell Moss and Miller, 43 F.3d 1322, 1326 (9th Cir.1995)

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(applying waiver to the attorney-client privilege).

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Any waiver, however, is “limited to the private information that is relevant to the lawsuit.”

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Enwere v. Terman Associates, L.P., 2008 WL 5146617, at *2 (N.D. Cal. Dec. 4, 2008) (citation

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omitted). Thus, records of mental/emotional care and treatment that Plaintiff received within a

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couple years prior to, and all years subsequent to, the alleged incidents in this action are at issue

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and Defendant is entitled to them.

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However, if Plaintiff values his privacy in those records over the mental/emotional

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damages he allegedly sustained as a result of Defendant’s actions in this case, within 15 days of

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the date of service of this order, he may file a statement withdrawing any and all claims for

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mental/emotional damages, signed under penalty of perjury, titled “Plaintiff’s Waiver of

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Mental/Emotional Damages.” If Plaintiff files such a waiver, he will no longer be able to obtain

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monetary damages for mental/emotional injuries. Thereafter, Defendant will no longer be

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entitled to discover information concerning Plaintiff’s mental health in this action and Plaintiff

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will not be required to produce them.

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B. Interrogatory Responses

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Parties may propound interrogatories on other parties in an action. Fed. R. Civ. P. 33.
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The responding party is obligated to respond to the interrogatories to the fullest extent possible,

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Fed. R. Civ. P. 33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P.

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33(b)(4). Failure to timely serve responses waives objections to the interrogatories. Fed. R. Civ.

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P. 33(b)(4).

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Plaintiff's complete failure to respond to Defendant's interrogatories has affected a waiver

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of any objections that he might otherwise have raised. Defendant is entitled to a response to each

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of his interrogatories and his motion to compel is GRANTED. Plaintiff must provide response to

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all of Defendant’s interrogatories. However, if Plaintiff withdraws his claim of mental/emotional

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damages, as described above, he need not respond to any interrogatories related to these damages.

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B. Production of Documents

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Federal Rule of Civil Procedure 34 empowers a party to serve on any other party a request

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to produce “any designated documents . . . which are in the possession, custody or control of the

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party upon whom the request is served.” Fed. R. Civ. P. 34(a). Documents are in the

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“possession, custody, or control” of the served party if “the party has actual possession, custody,

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or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61

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F.3d 465, 469 (6th Cir.1995). Accordingly, a party may be required to produce documents turned

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over to an agent, such as its attorney or insurer. E.g., Henderson v. Zurn Indus., 131 F.R.D. 560,

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567 (S.D. Ind.1990).

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Though Defendant’s motion to compel indicates that he has not received Plaintiff’s

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response to his request for production, (Doc. 27, 2:2:6-11), apparently Plaintiff has produced

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some documents, because in the reply, Defendant indicated that at Plaintiff’s deposition, Plaintiff

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admitted that he has received mental health records that he has not produced (Doc. 39, 2:10-12)

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and seeks for Plaintiff to produce all responsive documents in his possession, custody, or control

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(id., at 2:12-14). In his opposition, Plaintiff acknowledges that he stated in his deposition that he

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would produce the documents he has of his prior mental health care and treatment if ordered to do

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so by this Court. Defendant’s motion to compel is GRANTED as he is entitled to obtain

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Plaintiff’s health records from before and after the incidents in this action. Plaintiff must produce

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all medical records, including those on mental/emotional care and treatment received, in his
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possession, custody, or control from two years prior to the incidents in this action to date. If

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Plaintiff withdraws his claim of mental/emotional damages, he need not produce any records for

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mental/emotional care and treatment.

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C. Deposition Questions

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Federal Rule of Civil Procedure 37 allows a party to depose opposing parties and

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witnesses. Defendant submitted evidence showing that Plaintiff refused to respond to a number

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of questions regarding treatment that he received for his mental/emotional health in the year or so

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prior to the incidents at issue in this action. As discussed above, Plaintiff placed his

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mental/emotional health in issue by seeking damages for injuries to his mental/emotional health

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as a part of this action. Information as to all mental/emotional care and treatment Plaintiff

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received in the year prior to the incidents at issue as well as subsequent thereto are therefore

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relevant and Defendant is entitled to answers to that line of questioning.

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Defendant’s motion to compel responses from Plaintiff to his deposition questions is

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GRANTED. If Defendant prefers, he may propound interrogatories on this issue instead of re-

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deposing Plaintiff. While any such interrogatories will not count towards the 25 limit, Defendant

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may propound no more than 15 interrogatories on Plaintiff concerning his mental/emotional care

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and treatment and is limited to requesting information from two years prior to the incidents in

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question in this action to the date they are served on Plaintiff. If Plaintiff withdraws his claim of

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mental/emotional damages, he need not respond to any questioning thereon.

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IV. Conclusion

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Accordingly, it is the Courts ORDERS:

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(1)

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produce documents, filed on July 8, 2016 (Doc. 26), is GRANTED
(2)

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Defendant's motion to compel production of documents, filed on July 8, 2016
(Doc. 27), is GRANTED;

(3)

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Defendant's motion to compel Plaintiff to answer deposition questions and to

Defendant's motion to compel Plaintiff to respond to his interrogatories, filed on
July 8, 2016 (Doc. 28), is GRANTED;

(4)

Plaintiff SHALL serve all document production and responses to Defendant’s
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interrogatories, as discussed herein, within 30 days of the date of service of this

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order; and

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(5)

If Plaintiff desires to withdraw his claims of mental/emotional injury, within 15

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days of the date of service of this order, he SHALL file a notice “Plaintiff’s

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Waiver of Mental/Emotional Damages,” signed under penalty of perjury.1

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IT IS SO ORDERED.
Dated:

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January 26, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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Any such waiver will only relieve Plaintiff of his obligation to provide responses to discovery pertaining to his prior
and present mental/emotional health care and treatment. He is still required to provide response to all other
outstanding discovery.

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