Stransky et al v. HealthONE of Denver, LLC et al

Filing 140

ORDER: WHEREFORE, based upon these findings of fact and conclusions of law thiscourt ORDERS: 1. That Plaintiffs' Motion for Sanctions Pursuant to Fed. R. Civ. P. 37 (docket no. 132 ) is DENIED; and 2. That each party shall pay their own attorney fees and costs for this motion. By Magistrate Judge Michael J. Watanabe on 05/17/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02888-WJM-MJW
LISA STRANSKY,
NATALIE FIORE,
ERIN PEREZ,
HELEN GEIST,
ANGIE VANLENGEN,
BROOKE THOMPSON,
MILDRED HAMILTON and
NICOLE WAGNER,
individually and on behalf of others similarly situated,
Plaintiff(s),
v.
HEALTHONE OF DENVER, INC.,
Defendant(s).

ORDER REGARDING
PLAINTIFFS’ MOTION FOR SANCTIONS PURSUANT TO FED. R. CIV. P. 37

Entered by Magistrate Judge Michael J. Watanabe
This matter is before the court on Plaintiffs’ Motion for Sanctions Pursuant to
Fed. R. Civ. P. 37 (docket no. 132). The court has reviewed the subject motion (docket
no. 132) and the response (docket no. 139). In addition, the court has taken judicial
notice of the court’s file and has considered applicable Federal Rules of Civil Procedure
and case law. The court now being fully informed makes the following findings of fact,
conclusions of law, and order
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:

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1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard; and

4.

That the Kronos system used by each of the Defendant hospitals is
the system that tracks time-keeping, and it does not contain data in
“native” electronic spreadsheet format. See Palmer Aff., ¶ 5,
attached to Response (docket no. 139) as Exhibit A. Rather, the
data’s “native” electronic form is a PDF format from the Kronos time
card system, which may be printed out by individual pages. For
discovery in this case, those PDF pages were converted to TIFF
format, Bates stamped, and provided to Plaintiffs, who did not
indicate that there was a problem with the production format when
delivered, nor did the Plaintiffs inform Defendant that Plaintiffs’
expert needed such data in a different format at that time. Instead,
Plaintiffs have waited over seven (7) months to now raise a concern
over the delivery of such data. Nothing prevented the Plaintiffs
from raising this issue much sooner instead of waiting over seven
(7) months, which this court finds to be untimely. A lack of
communication by Plaintiffs has caused this situation. Absent in
Plaintiffs’ Motion is any representation by Plaintiffs’ counsel that
they ever passed Dr. Cohen’s [Plaintiffs’ expert] request along to

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Defendant’s counsel to have the data delivered to him in a different
format. In fact, in the subject motion (docket no. 132) at page 7,
Plaintiffs state: “It is true that Plaintiffs’ Request for Production No.
9 does not specify the format for the payroll records requested.” All
Plaintiffs’ counsel had to do was to pick up the telephone and call
Defendant’s attorney and ask that this data be delivered in the
format requested by Dr. Cohen. If the Plaintiffs’ counsel had done
so, this motion would have never had to be filed. Such conduct by
Plaintiffs’ counsel is a complete failure of the conferral process
regarding discovery. Under these facts, Plaintiffs have no basis for
any sanctions to be imposed.
ORDER
WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiffs’ Motion for Sanctions Pursuant to Fed. R. Civ. P. 37
(docket no. 132) is DENIED; and

2.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 17th day of May 2013.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE