Goines v. Lee Memorial Health System et al

Filing 105

ORDER denying 90 Plaintiff's Motion to Compel Production of Defendant Jeovanni Hechavarria's Military Records or in the Alternative Request for Certified Court-Ordered, Signed Subpoena, Duces Tecum, for Production of Said Milit ary Records. Plaintiff's counsel is directed to SHOW CAUSE by December 3, 2018 why they should not be ordered under Federal Rule of Civil Procedure 37(a)(5)(B) to pay the reasonable expenses, including attorneys' fees, incurred by Mr. Hechavarria and Lee Health in opposing 90 the Motion to Compel Military Records. The Clerk of Court is directed to SEAL Doc. 90-4. Signed by Magistrate Judge Carol Mirando on 11/19/2018. (DRS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.

Case No: 2:17-cv-656-FtM-29CM

LEE MEMORIAL HEALTH
SYSTEM and JEOVANNI
HECHAVARRIA,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Motion to Compel
Production of Defendant Jeovanni Hechavarria’s Military Records or in the
Alternative Request for Certified Court-Ordered, Signed Subpoena, Duces Tecum, for
Production of Said Military Records (“Motion to Compel Military Records”) filed on
October 23, 2018.

Doc. 90.

Plaintiff seeks to compel production of Mr.

Hechavarria’s “full Military Records.”

Id. at 1. Both Mr. Hechavarria and Lee

Memorial Health System (“Lee Health”) oppose the request. See Docs. 100, 102.
For the reasons stated herein, the motion will be denied.
I.

Background

On November 30, 2017, this case was removed from the Circuit Court for the
Twentieth Judicial Circuit in and for Lee County, Florida. Doc. 1. On April 25,
2018, Plaintiff filed an Amended Complaint against Defendants Lee Health and Mr.
Hechavarria, alleging 42 U.S.C. § 1983 violations and claims for negligent hiring,

supervision and retention; negligence; and assault and battery. Doc. 31. Plaintiff
alleges that Mr. Hechavarria, a nurse employed by Lee Health, sexually assaulted
her while she was a patient at Cape Coral Hospital in July 2016.1 Id. ¶¶ 7-11, 17.
Plaintiff claims another female patient at Cape Coral Hospital2 filed a police report
and informed Lee Health staff and management in March 2015 that she had been
sexually assaulted by Mr. Hechavarria, but Lee Health did not take effective action
or implement appropriate policies and procedures as Mr. Hechavarria’s employer to
oversee or restrain his conduct; namely, Lee Health did not properly investigate him,
discipline him, terminate him, require additional training or supervision of him, or
limit his access to female patients’ hospital rooms.

Id. ¶¶ 12-14, 16, 28-29.

Plaintiff seeks monetary damages, interest and costs from Lee Health and Mr.
Hechavarria given Plaintiff’s mental pain and suffering, loss of capacity, disability
and physical impairment, and medical expenses. Id. ¶ 67.
The original Case Management and Scheduling Order in this case set the
discovery deadline for August 31, 2018, the dispositive motions deadline for October
15, 2018, and the trial term for March 4, 2019. Doc. 25. On May 18, 2018, upon
the parties’ joint motion, the Court entered an Order extending the deadline for the
parties to disclose expert witness reports, and on July 9, 2018, upon another joint
motion, the Court entered an Order and Amended Case Management and Scheduling
Order extending the discovery deadline to September 21, 2018, the dispositive motion

1
2

1.

Lee Health operates Cape Coral Hospital. See Doc. 31 ¶ 6; Doc. 33 ¶ 6.
This individual has since been identified as Brianna Hammer. See, e.g., Doc. 67 at

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deadline to November 5, 2018, and the trial term to April 1, 2019. Docs. 38, 54, 55.
On August 23, 2018, Lee Health moved to extend the discovery deadline and its
expert disclosure deadline, which Plaintiff opposed.

Docs. 68, 69.

The Court

granted in part and denied in part the motion, extending the expert disclosure
deadline and giving the parties until October 12, 2018 to complete expert depositions,
but keeping the discovery deadline as September 21, 2018. Doc. 71.
As Mr. Hechavarria explained in his response in opposition to the present
motion, Plaintiff served Mr. Hechavarria with her requests for production on April
20, 2018, which included a request that Mr. Hechavarria complete, sign and date an
authorization to release military records, also known as a Form 180. Doc. 100 at 2;
Doc. 100-1 at 1. Mr. Hechavarria objected to the request, explaining that he did not
wish to grant permission for disclosure of documents “which are protected by HIP[A]A
and other Federal protections.”

Doc. 100-3.

Plaintiff followed up with Mr.

Hechavarria on May 25, 2018, stating that the requests for production included the
request for the signed authorization form, but it had not been received. Doc. 100-4.
Mr. Hechavarria responded by reiterating his objection. Doc. 100-5.
Plaintiff sent Freedom of Information Act (“FOIA”) requests to the U.S.
Department of Navy FOIA Office, the Department of Navy Office of the Judge
Advocate General and the Naval Criminal Investigative Service on June 13 and 20,
2018. See Doc. 90-3 at 1-2, 5-8. On June 19, 2018, the Department of Navy Bureau
of Personnel responded to Plaintiff’s June 13, 2018 FOIA request, providing a
releasable, redacted copy of Mr. Hechavarria’s Official Military Personnel File. See

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Doc. 90 at 3; Doc. 90-3 at 3-4.

Counsel for Plaintiff again requested that Mr.

Hechavarria sign the authorization to release his military records during Mr.
Hechavarria’s deposition on July 2, 2018, 3 but Mr. Hechavarria repeated his
objection to signing the Form 180 because he did not want to disclose his personal
health and medical information. Doc. 90-1 at 2-3. Counsel for Plaintiff asked if
Mr. Hechavarria would be amenable to signing the authorization if it was phrased so
that it would not include any medical records, and Mr. Hechavarria indicated he
might agree to such an authorization after having an opportunity to review it. Id.
at 3.
On August 27, 2018, Plaintiff served a subpoena duces tecum on the
Department of Navy Office of the General Counsel Navy Litigation Office.4 Doc. 90
at 4; see Doc. 90-5. On October 9, 2018, the Department of Navy Office of the Judge
Advocate General sent Plaintiff’s counsel a letter—apparently in response to the
subpoena duces tecum—explaining that Plaintiff’s counsel would need to provide a
subpoena signed by a judge or a Form 180 signed by the service member for the
Department of the Navy to process the information request. Doc. 90-6 at 5-7. The
letter also identified all of the information Plaintiff’s counsel would need to provide
to facilitate the Department of Navy’s response to Plaintiff’s request, including a
statement that the United States is not a reasonably anticipated party to the

Plaintiff and Mr. Hechavarria state the deposition took place on July 2, 2018, but
Lee Health claims it took place on June 12, 2018. See Doc. 90 at 1-2; Doc. 100 at 2; Doc. 102
at 1 n.1.
3

Lee Health indicates it did not receive notice of this subpoena, and there is no
indication Mr. Hechavarria received notice of it. Doc. 102 at 5-6.
4

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litigation, contact information for counsel for each party, a summary of the facts of
the case, a detailed description of the documents and information sought, a statement
of the requester’s willingness to pay in advance for reasonable expenses in identifying
and producing documents, etc.

Id.

On the same day, Plaintiff’s counsel

corresponded with a Department of Navy Agency Litigation Attorney, who also
provided information that Plaintiff’s counsel would need to submit a subpoena or
Court Order “signed by the judge who has cognizance over the case to obtain the
release of records.” Doc. 90 at 4 (quoting Doc. 90-6 at 1); see also Doc. 90-6 at 4.
On October 23, 2018—thirty-two (32) days after the discovery deadline—
Plaintiff filed the present motion seeking to compel production of Mr. Hechavarria’s
military records. Doc. 90. More specifically, Plaintiff requests the Court either (a)
enter an Order directing Mr. Hechavarria to complete and sign the authorization to
release his military records, or (b) sign and issue a subpoena duces tecum to the
General Counsel of the Department of Navy directing the release of Mr.
Hechavarria’s military records.5 Id. at 4-5. Mr. Hechavarria and Lee Health both
filed responses in opposition to the motion. Docs. 100, 102.
II.

Analysis

As an initial matter, Plaintiff’s motion is untimely. The original Case
Management and Scheduling Order (“CMSO”) in this case clearly states: “The Court

Because Plaintiff’s proposed subpoena contains Mr. Hechavarria’s unredacted Social
Security Number, the Court sua sponte will direct the Clerk to seal the document. See Doc.
90-4.
5

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may deny as untimely all motions to compel filed after the discovery deadline.”6 Doc.
25. The discovery deadline in this case was September 21, 2018. Doc. 55; see Doc.
71. Plaintiff has been seeking the military records since April 2018 and has known
since May 2018 that Mr. Hechavarria objected to signing the Form 180. See Doc.
100-3; Doc. 100-5. But Plaintiff waited until October 23, 2018 to file the present
motion. Doc. 90. Plaintiff provides no explanation for this delay, and Plaintiff has
not sought an extension of the discovery deadline; indeed, Plaintiff opposed Lee
Health’s request for an extension of the discovery deadline. See Doc. 68 at 5; Doc.
69. This unexplained untimeliness is reason enough to deny the motion.
Second, the motion to compel fails to comply with the applicable procedural
rules and this Court’s Orders. Because the Court had repeatedly warned the parties
to comply with Local Rule 3.01(g), the Court made clear in its September 14, 2018
Order:
[F]rom this point forward, all parties are advised they must certify in
any future motions that they conferred through engaging in clear,
substantive discussions involving all issues raised in the motion in
person or by telephone in a good faith effort to resolve any issues raised
prior to motion practice. Failure to comply with the Local Rules and
this Order could result in sanctions.
Doc. 76 at 17 (emphasis in original); see also Doc. 25 at 3 (“The term ‘confer’ in Rule
3.01(g) requires a substantive conversation in person or by telephone in a good faith
effort to resolve the motion without court action, and does not envision an exchange
of ultimatums by fax or letter.” (emphasis in original)).

Nevertheless, Plaintiff’s

The Amended CMSO indicates all directives set forth in the original CMSO remain
in effect. See Doc. 55 at 2.
6

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present motion merely states, “Defendant Hechavarria was contacted via e-mail,
10.18.18, who does not consent/objects to said Motion.” Doc. 90 at 5. Plaintiff’s
failure to properly confer is particularly egregious because Mr. Hechavarria indicated
during his deposition that he may be amenable to signing an authorization form if it
was phrased so that his health and medical records would not be disclosed. See Doc.
90-1 at 3. Plaintiff claims she is not seeking disclosure of Mr. Hechavarria’s health
information, 7 but she fails to provide any indication that she conferred with Mr.
Hechavarria following the deposition in a good faith effort to resolve the dispute.

See Doc. 90 at 3.
The Motion to Compel Military Records also fails to comply with Local Rule
3.04(a) because it does not quote the discovery request and objection giving rise to the
motion. See generally Doc. 90. The Court was only able to review the relevant
request for production and corresponding objection because Mr. Hechavarria—as a

pro se party—had the cognizance to provide them for the Court. See Doc. 100-2;
Doc. 100-3. Further, Lee Health indicates it did not receive notice of the subpoena
Plaintiff served on the Department of Navy as required under Federal Rule of Civil
Procedure 45(a)(4). Doc. 102 at 5. Plaintiff’s flagrant and repeated disregard for
the Federal Rules, the Local Rules and this Court’s Orders warrant denial of the
motion and perhaps sanctions. See, e.g., Docs. 76, 89.

The Court notes Plaintiff’s assertion that she is not seeking disclosure of Mr.
Hechavarria’s health information at least partially conflicts with her statement that she is
seeking to compel production of Mr. Hechavarria’s “full Military Records.” Compare Doc. 90
at 3, with Doc. 90 at 1.
7

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Finally, notwithstanding the motion’s untimeliness and Plaintiff’s failure to
comply with the Local Rules and Court Orders, Plaintiff fails to demonstrate Mr.
Hechavarria’s military records are relevant to this case.

Federal Rule of Civil

Procedure 34 sets forth the procedures for obtaining access to documents and things
within the control of the opposing party. Rule 34(a) allows a party to serve on any
other party a request within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). Rule
26(b) permits discovery:
regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). The decision to compel discovery is within the discretion of
the trial court. See Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th
Cir. 1984).
Plaintiff claims she has “reason to believe [Mr. Hechavarria] is attempting to
hide a pattern of abuse, i.e., stalking, assault, rape, domestic violence, threats of
physical harm and/or life to and against others . . . which is central to Plaintiff’s
claims in this action.”

Doc. 90 at 1-2.

Plaintiff asserts she believes Mr.

Hechavarria’s military records will demonstrate he was subject to disciplinary action
arising from this “pattern of abuse.”

Id. at 2.

Plaintiff also seeks Mr.

Hechavarria’s military records because she believes he was dishonest when he stated
under oath that he was given a “general discharge under ‘honorable conditions.’” Id.

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Plaintiff cites Mr. Hechavarria’s Certificate of Release or Discharge from Active Duty,
which identifies his “Narrative Reason for Separation” as “MISCONDUCT
(SERIOUS OFFENSE).” See id.; Doc. 90-2.
Plaintiff provides no support, however, for her belief that Mr. Hechavarria’s
military records will demonstrate the pattern of abuse alleged, and she fails to
explain how the records are relevant to any claim or defense in this case. Plaintiff
had the opportunity to question Mr. Hechavarria about his military service during
his deposition, and Plaintiff’s mere speculation that the records will contradict his
statements or contain evidence of disciplinary action is insufficient to establish
relevance.

See Wachovia Fin. Srvs., Inc. v. Birdman, No. 09-81252-

MARRA/JOHNSON, 2010 WL 11506044, at *8 (S.D. Fla. Sept. 27, 2010) (finding
speculation that opposing party is withholding information, without more, is
insufficient to support an order compelling discovery). Further, the Certificate of
Release or Discharge from Active Duty—which Plaintiff attaches to her motion—
contradicts Plaintiff’s contention that Mr. Hechavarria is lying about his discharge
status: it clearly identifies Plaintiff’s “Type of Separation” as “DISCHARGED” and
his “ Character of Service” as “GENERAL (UNDER HONORABLE CONDITIONS).”

See Doc. 90-2. Therefore, the Court agrees with Lee Health that Plaintiff’s pursuit
of Mr. Hechavarria’s military records is “nothing but a fishing expedition.” See Doc.
102 at 4; see also Licari Family Chiropractic Inc. v. Eclinical Works, LLC, No. 8:16cv-3461-T-35JSS, 2017 WL 5705793, at *3 (M.D. Fla. Nov. 27, 2017) (“Although the
scope of discovery is broad, ‘the discovery rules do not permit the [parties] to go on a

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fishing expedition.’” (alteration in original) (quoting Porter v. Ray, 461 F.3d 1315,
1324 (11th Cir. 2006)).
III.

Sanctions

Because Plaintiff’s motion does not appear to be substantially justified—
especially in light of the Court’s repeated warnings about compliance with procedural
rules and Court Orders—the Court will direct Plaintiff’s counsel to show cause why
they should not be ordered under Federal Rule of Civil Procedure 37(a)(5)(B) to pay
the reasonable expenses, including attorneys’ fees, incurred by Mr. Hechavarria and
Lee Health in opposing the Motion to Compel Military Records. See Docs. 76, 89.
ACCORDINGLY, it is
ORDERED:
1.

Plaintiff’s Motion to Compel Production of Defendant Jeovanni

Hechavarria’s Military Records or in the Alternative Request for Certified CourtOrdered, Signed Subpoena, Duces Tecum, for Production of Said Military Records
(Doc. 90) is DENIED.
2.

Plaintiff’s counsel is directed to SHOW CAUSE by December 3, 2018

why they should not be ordered under Federal Rule of Civil Procedure 37(a)(5)(B) to
pay the reasonable expenses, including attorneys’ fees, incurred by Mr. Hechavarria
and Lee Health in opposing the Motion to Compel Military Records.
3.

The Clerk of Court is directed to SEAL Doc. 90-4.

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DONE and ORDERED in Fort Myers, Florida on this 19th day of November,
2018.

Copies:
Counsel of record
Pro se parties

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