Davis v. Apollo Mechanical, Inc.
MINUTE ORDER; Defendant's 30 Motion to Compel Plaintiff to Submit to an F.R.C.P. 35(a) Independent Medical Examination is STRICKEN. The parties shallfollow Magistrate Judge Mixs discovery dispute procedure for this issue. See Minutes 15 at 3-6, by Magistrate Judge Kristen L. Mix on 11/30/15.(morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00607-WYD-KLM
WILLIAM SCOTT DAVIS,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Motion to Compel Plaintiff to
Submit to an F.R.C.P. 35(a) Independent Medical Examination [#30] (the “Motion”).
IT IS HEREBY ORDERED that the Motion [#30] is STRICKEN. The parties shall
follow Magistrate Judge Mix’s discovery dispute procedure for this issue. See Minutes
[#15] at 3-6. This procedure is as follows:
Counsel must meaningfully confer regarding one or more discovery disputes
pursuant to Local Rule 7.1(a). Counsel may choose to confer about only one
dispute at a time or several disputes at once. This decision is up to counsel,
not the Court.
If the dispute relates to taking a deposition, see Step 2.A. below. If the
dispute relates to written discovery, see Step 2.B. below. If the dispute
relates to any other type of discovery issue, see Step 2.C. below.
If the dispute about taking a deposition is not resolved, counsel for the party
seeking the protective order must send an email addressed to and to
opposing counsel stating that the parties have a dispute about taking a
deposition. The email must also contain the case number, the name of the
party seeking the protective order, and the name of the deponent. The email
should not contain argument about the merits of the discovery issue. The
deposition shall be stayed pursuant to Local Rule 30.2(a) when the email
is sent. The Court will contact counsel within three (3) court business days
to set a hearing on the dispute. The stay of the deposition shall remain in
effect until the Court issues its ruling.
Step 2.B.: If the dispute about written discovery (requests for production,
interrogatories, etc.) is not resolved, the moving party must complete the
written discovery dispute chart in the form attached. The moving party must
send the chart, the disputed discovery requests and the disputed responses
to opposing counsel and to the Court at The Court will contact counsel
within three (3) court business days to set a hearing on the dispute.
If a dispute does not involve written discovery and is not resolved through
conferral with opposing counsel, counsel then must agree on a mutually
convenient time to call the Court for a discovery hearing regarding all
disputes about which they have fully conferred but failed to reach agreement.
No attorney can insist on contacting the Court for a discovery hearing at a
time when another attorney is not available. If an attorney is not available for
a conference call to the Court for a discovery hearing when contacted by
opposing counsel, s/he must provide opposing counsel with alternate dates
and times to contact the Court. This eliminates the possibility that one party
will have an unfair advantage over another in preparation for a discovery
The Court is not responsible for assuring that multiple counsel for the same
party are on the line for a telephone hearing. The Court requires only one
attorney of record on the line for each party involved in the dispute. If counsel
for a party want co-counsel for the same party to participate in the telephone
hearing, they are responsible for ensuring that co-counsel are available to
participate on the date and time chosen by them for the hearing.
The Court will not continue hearings based on the sudden unavailability of
co-counsel for a party. As long as each party involved in the dispute is
represented by at least one attorney of record, the hearing will proceed.
When counsel call the Court for the discovery hearing, the Court may
determine, off the record, whether the issue is appropriate for immediate
adjudication. If not, the Court will set the matter for a hearing at a mutually
convenient date and time in the future.
If the matter is appropriate for immediate adjudication, the call will be
transferred to the courtroom and the hearing will be conducted. If the judge
determines that the matter is complex and briefing is required, the judge will
set a briefing schedule. If the judge is not immediately available, the
hearing will be set at a mutually convenient date and time in the future.
The discovery dispute process outlined above may be your only
opportunity to present legal authority supporting your position to the
Court. Hence, be prepared to do so at the time of the hearing.
Filing a disputed discovery motion without permission from the court
will result in the motion being stricken, and may result in the
imposition of sanctions. To the extent that these procedures conflict
with the Local Rules of the Court, these procedures take priority over
the Local Rules.
Spoliation is a discovery issue, and hence these procedures apply to
disputes regarding spoliation. If the alleged spoliation involves
written discovery, the parties shall use Step 2.B. above.
Dated: November 30, 2015
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