Bohm v. Reckitt Benckiser Pharmaceuticals, Inc.
ORDER granting 21 Defendant's Motion to Compel Discovery, as set forth in the Order. By Magistrate Judge Michael J. Watanabe on 10/31/2014.(emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01129-MJW
RECKITT BENCKHISER PHARMACEUTICALS, INC., a Delaware Corporation,
DEFENDANT’S MOTION TO COMPEL DISCOVERY
(Docket No. 21)
MICHAEL J. WATANABE
United States Magistrate Judge
Defendant moved to compel the discovery of five items requested in discovery:
(1) Plaintiff’s e-mail records, which Defendant believes have not been thoroughly
enough searched for; (2) information pertaining to Plaintiff’s mental-health records,
which Defendant believes are not privileged; (3) Plaintiff’s 2013 tax return; (4) Plaintiff’s
social-media postings pertaining to the case; and (5) a privilege log that better comports
with Federal Rule of Civil Procedure 26(b)(5).
The Court has reviewed the parties’ filings (Docket Nos. 21, 22, and 23), the
court’s file on this case, and the relevant Federal Rules of Civil Procedure, statutes, and
case law. Now fully informed, the Court makes the following findings of fact,
conclusions of law, and order granting Defendant’s motion.
As to Plaintiff’s e-mail records and social-media postings, Plaintiff contends that
no further responsive materials exist; Defendant has agreed to accept these averments
provided (1) that they are certified under Rule 26(g), and (2) that newly created or
discovered responsive materials are disclosed under Rule 26(e). The Court finds that
Defendant is entitled to the discovery and that, contrary to Plaintiff’s argument, the
Colorado statute limiting an employer’s access to an employee’s social media accounts
has no relevance here. Accordingly, the Court orders that Plaintiff shall provide the
requested records or provide a signed certification under Rule 26(g) stating that there
are no responsive records, and further that Plaintiff shall seasonably supplement its
responses should further responsive records become available.
As to Plaintiff’s mental-health records, Plaintiff provided a sworn interrogatory
response stating that she seeks “noneconomic damages including, but not limited to,
pain and suffering, loss of enjoyment of life, inconvenience, and impairment of quality of
life, pain and suffering.” (Docket No. 21-2, p.67.) Plaintiff cites out-of-circuit cases for
the proposition that these “garden variety” claims do not put her mental health at issue
and thereby impliedly waive the psychotherapist-patient waiver, but the Tenth Circuit
has not endorsed that line of cases. In this district, Plaintiff’s position waives the
privilege. See Fox v. Gates Corp., 179 F.R.D. 303 (D. Colo. 1998). Plaintiff asserts that
no records exist, but Defendant is entitled to a list of medical providers and to HIPAA
waivers to confirm this fact. Accordingly, the Court orders that Plaintiff shall provide
complete responses to Defendant’s discovery requests concerning medical records.
As to Plaintiff’s tax return, the Court finds that Plaintiff’s W-2 is insufficient in the
current circumstances and that Plaintiff’s privacy interests are adequately protected by
the Rule 26(c) protective order entered on June 18, 2014. (Docket Nos. 18, 19.)
Accordingly, the Court orders that Plaintiff shall provide a complete copy of her 2013 tax
return, with all supporting forms and schedules, to Defendant.
As to the privilege log, “[a] privilege log is sufficient if it describes in detail the
documents sought to be withheld and provides the precise reasons supporting the claim
of privilege. The information provided must be sufficient to enable opposing parties and
the court to determine whether each element of the asserted privilege is satisfied; a
blanket claim of the asserted privilege does not satisfy the burden of proof. Generally, a
privilege log is adequate if it identifies with particularity the documents withheld,
including their date of creation, author, title or caption, addressee and each recipient,
and general nature or purpose for creation. In addition, the particular privilege relied on
must be specified. A privilege log may be supplemented by an affidavit, deposition
testimony, or other evidence, if necessary, to establish that each element of the
asserted privilege has been met.” Zander v. Craig Hosp., 743 F. Supp. 2d 1225, 123132 (D. Colo. 2010) (citing Hill v. McHenry, 2002 WL 598331 at *2 (D.Kan.2002)). The
log provided by Plaintiff does not meet this standard. Accordingly, the Court orders that
Plaintiff shall provide an updated privilege log complying with Rule 26(b)(5).
It is hereby ORDERED that Defendant’s Motion to Compel Discovery (Docket
No. 21) is GRANTED. It is further ordered that:
As to Plaintiff’s e-mail records and social-media postings, Plaintiff shall
provide the requested records or provide a signed certification under Rule
26(g) stating that there are no responsive records, and further that Plaintiff
shall seasonably supplement its responses should further responsive records
As to Plaintiff’s mental-health records, Plaintiff shall provide complete
responses to Defendant’s discovery requests concerning medical records;
As to Plaintiff’s tax return, Plaintiff shall provide a complete copy of her 2013
tax return, with all supporting forms and schedules, to Defendant; and
Plaintiff shall provide an updated privilege log complying with Rule 26(b)(5);
The foregoing shall be completed no later than November 14, 2014; and
Each party shall bear its own costs and fees as to this motion.
Dated: October 31, 2014
/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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