Somers v. Digital Realty Trust Inc et al

Filing 116

ORDER by Judge Edward M. Chen Sustaining in Part and Overruling in Part 111 Plaintiff's Objections to July 8, 2016 Order. (emclc1, COURT STAFF) (Filed on 8/8/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

PAUL SOMERS,

7

Plaintiff,

8

v.

9
10

DIGITAL REALTY TRUST INC., et al.,

11

Defendants.

ORDER SUSTAINING IN PART AND
OVERRULING IN PART PLAINTIFF'S
OBJECTIONS TO THE JULY 8, 2016
ORDER
Docket No. 111

12
For the Northern District of California

United States District Court

Case No. 14-cv-05180-EMC

On August 2, 2016, Plaintiff Paul Somers filed objections to Judge Westmore‟s July 8,

13
14

2016 order regarding the parties‟ discovery letter brief. Docket No. 111 (Obj.). Having reviewed

15

Somers‟s objections and Defendant Digital Realty‟s opposition, the Court SUSTAINS IN PART

16

and OVERRULES IN PART Somers‟s objections.
As an initial matter, the Court recognizes that Somers‟s objections were not timely filed.

17
18

See Fed. R. Civ. P. 72(a) (“A party may serve and file objections to [a magistrate judge‟s non-

19

dispositive] order within 14 days after being served with a copy”). However, Somers is also a pro

20

se litigant, and the Court will therefore consider his untimely objections on the merits this one

21

time.1
Under Federal Rule of Civil Procedure 72(a), a district judge “may modify or set aside any

22
23

part of [a magistrate judge‟s] order that is clearly erroneous or is contrary to law.” Clear error

24

exists when this Court is “„left with the definite and firm conviction that a mistake has been

25

committed.‟” Titus v. Humboldt Cnty. Fair Ass’n, Case No. 14-0143 SBA, 2015 U.S. Dist.

26
27
28

1

Somers is forewarned that he must review the applicable federal and local rules, and will be
expected to comply with the required deadlines in the future.

1

LEXIS 162517, at *3 (N.D. Cal. Dec. 1, 2015) (quoting Easley v. Cromartie, 532 U.S. 234, 242

2

(2001)). For the most part, Somers‟s objections do not reach this high standard.

3

First, Somers objects to the narrowing of the time frame and search terms for Outlook

4

calendar appointments. Obj. at 2. However, Judge Westmore did not improperly narrow either;

5

she simply ordered that the parties meet and confer regarding a date range and search terms to

6

narrow the search. Docket No. 110 (Ord.) at 2. Further, Somers does not explain why a

7

narrowing of either is an error or would be prejudicial, as he does not explain why he had chosen a

8

3-month search period to begin with, or why he would require all calendar appointments rather

9

than calendar appointments with a particular person or on a particular meeting subject. In any

to narrow the search terms, rendering this objection moot. See Docket No. 115 (Petersen Dec.),

12
For the Northern District of California

case, it appears that Digital Realty has produced all calendar entries to Somers, despite his refusal

11

United States District Court

10

Exh. B (Digital Realty e-mail sending calendar entries, and acknowledgment of receipt by

13

Somers).

14

Second, Somers argues that Judge Westmore erred in requiring Somers to make himself

15

available for deposition in the next 30 days, without making a similar requirement of Digital

16

Realty Trust. Obj. at 3. In short, Somers does not challenge the 30-day deadline, so much as the

17

lack of a deadline for Digital Realty Trust, but it is not apparent from the record that Somers even

18

requested such a deadline. See Docket No. 108 (Joint Discovery Letter); Docket No. 114 (Opp.).

19

This is not a basis for finding error. The Court overrules this objection; Somers must make

20

himself available for deposition.

21

Finally, Somers contends that he should not be required to turn over his medical records

22

because beyond claiming “garden-variety” emotional distress damages, he has not placed his

23

psychological state in controversy. Obj. at 3. With respect to psychotherapist-patient privilege,

24

the courts have generally found a waiver only “when the plaintiff has done more than allege

25

„garden-variety‟ emotional distress,” with “garden-variety” emotional distress being described as

26

“ordinary or commonplace emotional distress” or that which is “simple or usual.” Fitzgerald v.

27

Cassil, 216 F.R.D. 632, 637 (N.D. Cal. 2003); EEOC v. Lexus Serramonte, 237 F.R.D. 220, 224

28

(N.D. Cal. 2006) (finding no waiver of right of privacy where the plaintiff asserted garden-variety
2

support her claim). In contrast, emotional distress that is not garden variety “may be complex,

3

such as that resulting in a specific psychiatric disorder.” Ruhlmann v. Ulster Cnty. Dep’t of Soc.

4

Servs., 194 F.R.D. 445, 449 n.6 (N.D.N.Y. 2000); cf. Jackson v. Chubb Corp., 193 F.R.D. 216,

5

226 (D.N.J. 2000) (finding that if a plaintiff alleged garden-variety emotional distress, and not “a

6

separate tort for the distress, any specific psychiatric injury or disorder, or unusually severe

7

distress,” she did not waive the psychotherapist-patient privilege). As to physician-patient

8

privilege, California “recognizes a medical records privilege that allows a patient to refuse to

9

disclose, or prevent another from disclosing, confidential communications with a physician in the

10

course of the patient-physician relationship.” Johnson v. Northwest Airlines, Inc., No. C 08-2272

11

VRW, 2009 U.S. Dist. LEXIS 30731, at *7 (N.D. Cal. Marc. 30, 2009) (citing Cal. Evid. Code §§

12
For the Northern District of California

claim for emotional distress and did not intend to rely on medical records or medical testimony to

2

United States District Court

1

990-994). Two exceptions exist: when the patient places his physical condition at issue, and when

13

waived. Id.
Here, Digital Realty argues that there is waiver of both the psychotherapist-patient and

14
15

physician-patient privilege because Somers has alleged more than garden-variety emotional

16

distress. See Opp. at 3. The Court disagrees, and finds that Somers has not waived either

17

privilege. Having reviewed the complaint, the Court does not agree that Somers has alleged

18

something more complex than typical emotional distress, such as a psychiatric disorder or any

19

physical condition resulting from Digital Realty‟s actions. While Somers has alleged that Digital

20

Realty has acted badly, that goes to Digital Realty‟s behavior, not necessarily that Somers is

21

suffering a harm greater than what would be expected for the situation.2 Thus, the Court will

22

sustain this objection, and will not require Somers to turn over his medical records. However,

23

should Somers later expand his claims to include something more than “garden-variety” emotional

24

distress, discovery on such claims (including of his psychological or medical records) may be

25

appropriate. See Smith v. Equinox Holdings, Inc., Case No. 14-cv-846-LB, 2015 U.S. Dist.

26
2

27
28

To the extent that Digital Realty argues that Somers is seeking “$1,000,000 in emotional distress
damages,” this is a mischaracterization of the complaint as the $1,000,000 is not limited to
emotional distress, but includes his “substantial losses in earnings and job benefits.” Docket No.
51 (First Amended Compl.) (FAC) at ¶ 40; see also id. at ¶ 57.
3

1

LEXIS 17527, at *11 (N.D. Cal. Feb. 12, 2015) (“Should [the plaintiff‟s emotional distress]

2

claims later expand beyond the limits he has described, the court will entertain a request to open

3

attendant evidence to discovery”).

4
5
6

In conclusion, the Court OVERRULES Somers‟s first and second objections, but
SUSTAINS Somers‟s third objection regarding his medical records.
This Order disposes of Docket No. 111.

7
8

IT IS SO ORDERED.

9
10

12
For the Northern District of California

United States District Court

11

Dated: August 8, 2016
______________________________________
EDWARD M. CHEN
United States District Judge

13
14
15
16
17
18
19
20
21

22
23
24
25
26
27
28

4