Echon et al v. Sackett et al
Filing
73
ORDER by Magistrate Judge Nina Y. Wang on 5/2/16. Plaintiffs' Third Motion to Compel Discovery 64 is GRANTED IN PART and DENIED IN PART; The Motion is GRANTED as to the Interrogatory Responses and Defendants are COMPELLED to respond to the ou tstanding interrogatories fully, in narrative form, no later than May 16, 2016 and Defendants MUST PAY the portion (but in any case, no more than fifty percent (50%)) of the reasonable expenses associated with this instant Motion to Compel attri butable to the deficient interrogatory responses, to be determined by a forthcoming motion for reasonable expenses to be filed by Plaintiffs no later than May 16, 2016; The Motion is DENIED as to the Requests for Production. (Attachments: # 1 Exhibit Gonzales v City of Albuquerque Case Law, # 2 Exhibit Smith v Pizza Hut Inc Case Law, # 3 Exhibit Bouchard v Whetstone Case Law, # 4 Exhibit Miller v Kastelic)(bsimm, )
Bouchard v. Whetstone, Not Reported in F.Supp.2d (2010)
2010 WL 1435484
2010 WL 1435484
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
James B. BOUCHARD, Plaintiff,
v.
Denver Police Officer M. WHETSTONE,
Denver Police Officer K. Jimenez,
and City of Denver, Defendants.
Civil Action No. 09–cv–01884–REB–BNB.
|
April 9, 2010.
Attorneys and Law Firms
Arthur S. Bowman, Jr., Bowman & Bowman, LLC, Denver,
CO, for Plaintiff.
Cathy Havener Greer, Wells, Anderson & Race, LLC,
Michael Turner Lowe, Bruno, Colin, Jewell & Lowe, P.C.,
Denver, CO, for Defendants.
to require the plaintiff to produce “all Employee Benefits
information from his current employer ....”
Request to Execute Release:
In Morris v. City of Colorado Springs, 2009 WL 4927618 *2
(D.Colo.2009), the court correctly noted:
A review of cases addressing whether a court may order
production of executed medical releases reveals a split
of authority. The first view looks to the plain language
of Rule 34 to conclude that records not in the party's
possession may not be compelled and that Rule 34 does not
permit the Court to order the party's signature on a medical
release form. The second view generally permits an order
compelling a signature on a release form when the party
has placed his or her medical condition at issue in the case.
However, even courts that compel authorizations from the
plaintiff typically require the defendant first to seek the
documents directly from the third party who has custody
of the documents....
[T]he release of medical records should not be routinely
compelled, even when it may be the most efficient manner
for such discovery.
(Internal citations omitted.)
ORDER
BOYD N. BOLAND, United States Magistrate Judge.
*1 This matter arises on the following discovery motions:
(1) Defendants' Motion to Compel Discovery Responses
[Doc. # 48, filed 3/23/2010] (“Defendants' Motion to
Compel”); and
Plaintiff's Motion to Compel [Doc. # 52, filed 3/26/2010]
(“Plaintiff's Motion to Compel”).
A. Defendants' Motion to Compel
The Defendants' Motion to Compel was filed on March 23,
2010. I ordered the plaintiff to respond by April 2, 2010, but
none was received.
The defendants seek an order compelling two things. First,
the defendants seek to require the plaintiff to execute a
military records request form. In addition, the defendants seek
Nor is there anything unique about releases of medical
records. Rule 34, Fed.R.Civ.P., does not expressly authorize
a court to order a party to sign a release concerning any
kind of record. See, e.g., White v. Kansas City Peterbilt,
2010 WL 996427 *1 (D.Kan. March 17, 2010)(refusing
to require execution of release of employment records);
P.S. v. The Farm, Inc., 2008 WL 185801 *1 (D.Kan.
Jan.18, 2008)(same, applied to medical, educational, law
enforcement, and state child services agency records); Ice
Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 515
(D.Kan.2007)(same, applied to product design records);
EEOC v. Thorman & Wright Corp., 243 F.R.D. 426, 428
(D.Kan.2007)(same, applied to past employment records);
Becker v. Securitas Security Services USA, Inc., 2007 WL
677711 (D.Kan. March 2, 2007)(same, applied to medical,
employment, and educational records).
The leading case on the issue is EEOC v. Thorman &
Wright, 243 F.R.D. at 428–29, where the Kansas district court
explained:
Defendant requests Plaintiff Sonntag sign an authorization
for release of information and records with regard to
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Bouchard v. Whetstone, Not Reported in F.Supp.2d (2010)
2010 WL 1435484
her past employment with Simplex Grinnell. Defendant
asserts it requested Plaintiff Sonntag execute the referenced
authorization in conjunction with its written discovery
requests in order to obtain relevant documents from a
third party. The Court, however, finds no basis within
Fed.R.Civ.P. 34 to compel a party signature.
*2 The purpose of Rule 34 is to make relevant and
nonprivileged documents and objects in the possession of
one party available to the other.... Here, it appears the
employment records are documents or tangible items as
defined by Rule 34(a). It also appears that ... Plaintiffs do
not have actual possession or custody of the employment
records at issue.
***
Apparently, Defendant has not yet attempted to secure
copies of the requested documents from the non-party
custodian of the records via subpoena. The appropriate
procedure to compel a nonparty to produce documents is to
serve them a subpoena as set forth in Rule 45 of the Federal
Rules of Civil Procedure. It is only after the individuals or
entities object on grounds of privilege or otherwise fail to
produce the documents pursuant to subpoena that the Court
will consider a motion requesting (1) the Court compel the
entity to produce the documents pursuant to Rule 45; or (2)
compel the party to execute appropriate releases pursuant
to the Court's general powers to enforce its own orders.
(Internal quotations and notes omitted.)
Where, as here, the defendants have not attempted to obtain
by subpoena the documents from the third party custodian, I
will not compel the plaintiff to sign a release form.
Documents relating to employee benefits information:
I find that the employee benefits information requested from
the plaintiff is relevant to matters at issue in this case
and is discoverable. I will order the plaintiff to product all
documents in his possession, custody, or control responsive
to the request.
2. Plaintiff's Motion to Compel
Initially, the plaintiff argues that the defendants' objections
are waived because they did not make objections timely.
I disagree. The defendants initially objected to all of
the plaintiff's discovery as exceeding the numerical limits
imposed by the scheduling order. See Defendants' Combine
Responses [Doc. # 52–1]. Following a conference pursuant
to D.C.COLO.LCivR 7.1A, the defendants' submitted their
Amended Responses [Doc. # 52.2] which contain their
objections. I find that the objections are timely.
Interrogatory No. 1:
The plaintiff seeks to compel an answer to Interrogatory No.
1, which requests:
How many lawsuits claiming
excessive force have been filed against
the City and County of Denver or
any police officer employed by the
City and County of Denver in the Past
10 years. For each lawsuit state, a.
the caption of the case; b. the court
in which the case was filed; c. date
of filing; d. names of all Plaintiff9s)
and Defendant(s); e. whether the case
is open, pending and/or resolved; f.
what the outcome of the case was;
and, g. for any case not resolved state
whether there is a hearing or trial date
scheduled and what the date is.
Plaintiff's Motion to Compel [Doc. # 52] at p. 4.
The defendants objected, asserting that the interrogatory is
overbroad, unduly burdensome, not reasonably calculated to
lead to the discovery of admissible evidence, and because the
information “is available in public documents by a search of
case filings in either state or federal court which would be
equally available to Plaintiff.” Id. at p. 5.
*3 The defendants failed to provide specific evidence of
the burden imposed in answering the interrogatory, which
they should have done. I will not leave my common sense at
the courthouse door in ruling on this motion, however. It is
patently obvious that responding to this interrogatory would
impose an enormous burden on the Denver Police Department
and unreasonably distract it from its crucial function of law
enforcement. Nor does the information requested appear to
be particularly probative of the issue of whether the City of
Denver had a policy or custom of deliberate indifference to
Constitutional rights or that it inadequately and improperly
investigated citizen complaints of police misconduct. See
Plaintiff's Motion to Compel at p. 6.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Bouchard v. Whetstone, Not Reported in F.Supp.2d (2010)
2010 WL 1435484
Rule 26(b)(2)(C), Fed.R.Civ.P., requires a court to consider
proportionality when confronting discovery issues:
(C) When Required. On motion or on its own, the court
must limit the frequency or extent of discovery otherwise
allowed by these rules or by local rule if it determines that:
***
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the
case, the amount in controversy, the parties' resources, the
importance of the issue at stake in the action, and the
importance of the discovery in resolving the issues.
On balance, I find that the burden of providing the requested
information far outweighs is probative value. Plaintiff's
Motion to Compel is denied with respect to Interrogatory No.
1.
Interrogatories No. 7 and 8:
Plaintiff's Interrogatories No. 7 and 8 are related and seek
information concerning any investigation by the City of
Denver “[a]fter receipt of the 24–10–109 Notice under
Governmental Immunity letter” dated December 8, 2008.
Defendants' Supplemental Responses [Doc. # 52–3] at p.
6–7. The defendants objected to the interrogatories “to the
extent that the information requested would be subject to
attorney-client privilege or work-product privilege,” id., but
then responded:
Without waiving the objection,
Defendant City and County of Denver
states that Sgt. Wyckoff conducted
a use of force investigation at the
scene of the incident on the date
of the incident, which was prior to
the correspondence dated December
8, 2008. Defendant City and County
of Denver is not aware of any other
non-privileged investigation that was
conducted. A copy of Sgt. Wyckoff's
report was previously provided as
bates numbered documents Bouchard
0001 and 0002.
Id.
The supplemental response fully answers the interrogatories.
Plaintiff's Motion to Compel is denied with respect to
Interrogatories No. 7 and 8.
Plaintiff's Remaining Issues:
Finally, the plaintiff seeks an order compelling further
answers to 27 additional interrogatories. The motion is
patently inadequate, however. The plaintiff's argument with
respect to the remaining 27 interrogatories states, in its
totality:
*4
The following additional
interrogatories have not been
answered, objections have not been
made timely, and orders compelling
are requested....
Plaintiff's Motion to Compel [Doc. # 53] at p. 8.
Contrary to the plaintiff's assertion, the defendants have
responded to each of the remaining 27 interrogatories. See
Defendants' Supplemental Responses [Doc. # 52–3].
3. Attorneys Fees and Costs
Rule 37(a)(5)(B), Fed.R.Civ.P., provides:
(5) Payment of Expenses: Protective Orders
(B) If the Motion Is Denied. If the motion [to compel]
is denied, the court ... must, after giving an opportunity
to be heard, require the movant, the attorney filing the
motion, or both to pay the party ... who opposed the motion
its reasonable expenses incurred in opposing the motion,
including attorney's fees. But the court must not order this
payment if the motion was substantially justified or other
circumstances make an award of expenses unjust.
The Defendants' Motion to Compel was granted in part and
denied in part. On the issue where the defendants' motion
was denied, there is a split of authority concerning whether
and when to require execution of releases. Importantly, the
plaintiff had agreed to sign a release, and the defendants were
attempting to enforce that agreement. Finally, the plaintiff
did not respond to the Defendants' Motion to Compel. Under
these facts, it would be unjust to award the plaintiff his costs
and attorney fees (if any) in resisting the Defendants' Motion
to Compel.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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Bouchard v. Whetstone, Not Reported in F.Supp.2d (2010)
2010 WL 1435484
By contrast, the Plaintiff's Motion to Compel was denied
in its entirety because it was meritless. Consequently, I
will entertain the defendants' motion for award of costs
and attorney fees, pursuant to Rule 37(a)(5)(B), incurred in
opposing the Plaintiff's Motion to Compel. Such a motion
must be filed, if at all, on or before April 23, 2010.
IT IS ORDERED that the Defendants' Motion to Compel
[Doc. # 48] is GRANTED IN PART and DENIED IN PART
as follows:
GRANTED to require the plaintiff to produce, on or before
April 23, 2010, all documents in his possession, custody, or
control concerning “Employee benefits information from his
current employer, Stancorp Registered Investment Advisors,
including, but not limited to, enrollment documents for
End of Document
health care, vision care and dental care coverage; handbooks
detailing health, vision and dental coverage; waiting period
for pre-existing conditions, and employee handbook”; and
DENIED in all other respects.
IT IS FURTHER ORDERED that the Plaintiff's Motion to
Compel [Doc. # 52] is DENIED.
IT IS FURTHER ORDERED that the defendants shall file,
on or before April 23, 2010, a motion for an award of costs
and attorney fees, pursuant to Rule 37(a)(5)(B), incurred in
opposing the Plaintiff's Motion to Compel.
All Citations
Not Reported in F.Supp.2d, 2010 WL 1435484
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works.
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