Frasca et al v. NCL (Bahamas) Ltd. et al
Filing
89
ORDER denying 80 Defendants' Motion for Reconsideration and also denying Plaintiff's ore tenus Motion for Reconsideration; granting in part and denying in part 85 Motion to Compel; and ordering NCL-Bahamas' counsel to pay Plaintiff $175. Signed by Magistrate Judge Jonathan Goodman on 6/12/2013. (oim)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 12‐20662‐CIV‐GOODMAN
[CONSENT CASE]
THOMAS FRASCA,
Plaintiff,
v.
NCL (BAHAMAS) LTD., et al.,
Defendants.
___________________________________/
ORDER ON DEFENSE DISCOVERY MOTIONS
On June 10, 2013, the Court held a hearing on Defendants NCL (Bahamas) Ltd.,
Norwegian Cruise Line, and NCL America’s (collectively “NCL”) Motion for
Reconsideration and NCL (Bahamas) Ltd.’s (“NCL‐Bahamas”) Motion to Compel
Executed Interrogatories and Execution of Authorizations for Disclosure of Protected
Health Information. [ECF Nos. 80; 85].1
I.
NCL’s Reconsideration Motion
In its reconsideration motion, NCL asks the Court to reconsider its Order [ECF
No. 71] granting (in small part) and denying (in large part) Plaintiff Thomas Frasca’s
(“Frasca”) Motion for Protective Order. That Order denied Frasca’s requests to: (1) have
For reasons unknown, the Motion for Reconsideration was filed by all
Defendants, while the Motion to Compel was filed only by NCL‐Bahamas.
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his counsel attend the defense‐arranged compulsory medical examination (“CME”); (2)
videotape and audiotape the CME; (3) determine in advance which questions the
defense‐retained physician could not ask; and (4) have his attorney be permitted to
instruct him which questions he should not answer at the CME. The Order did,
however, permit Frasca to audiotape the oral medical history portion of the CME
(assuming that an oral history is even taken and, if so, requiring the timely production
of a copy to NCL).
In its reconsideration motion, NCL makes two arguments. First, NCL contends
that Frasca secretly obtained his own physical examination in Miami from a doctor
selected by his counsel. NCL argues that this development requires the Court to “even
the playing field” and prohibit Frasca from audiotaping the oral medical history portion
of NCL’s CME because it is now too late to permit NCL to similarly audiotape the oral
medical history portion of Frasca’s examination, which has already occurred.
NCL’s second argument is based on general principles of fairness. NCL suggests
that a prior CME and mediation which were scheduled in Miami were cancelled
because of Frasca’s argument, at the time, that it would be inequitable and “patently
unfair” for him to travel twice to Miami. Because the Court previously continued the
earlier CME and mediation based on Frasca’s preference to not travel to Miami twice
and because Frasca later traveled to Miami to see a consulting physician, NCL suggests
that either it or the Court or both were somehow misled into providing Frasca
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scheduling relief. Therefore, NCL argues that fundamental fairness dictates that Frasca
not be allowed to audiotape the oral medical history portion of the CME.
The Court denies NCL’s reconsideration motion.
First, as Frasca’s counsel explained at the hearing, he did not know that his client
decided to travel to Miami for his own examination by a consulting, non‐treating doctor
until after NCL’s CME and the parties’ mediation had been cancelled. Therefore, his
counsel explained, he was not, and could not have been, misleading NCL or the Court.
Second, even if NCL’s theory was correct, it might warrant a separate motion for
different relief but it would not cause the Court to change the substantive ruling. Third,
the reasoning underlying the Court’s earlier Order is still viable and NCL has not
provided any new grounds to address the ruling on the merits.
Finally, for the reasons set out at the hearing, the Court also denies Frasca’s ore
tenus motion for reconsideration of the Order.
II.
NCL‐Bahamas’ Motion to Compel Executed Interrogatories
NCL‐Bahamas’ motion to compel executed interrogatories is denied as moot, as
Frasca produced the sworn, signed answers before the hearing. [ECF No. 87].
III.
NCL‐Bahamas’ Motion to Compel Medical Record Release Authorizations
NCL‐Bahamas’ motion to compel medical record release authorizations (after
first serving subpoenas which were not complied with because the recipients
demanded Frasca’s signed medical release authorization) is granted. As Frasca is
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seeking damages for lost wages and future lost wages, NCL‐Bahamas’ is entitled to
Frasca’s relevant medical and wage‐related records, and Frasca cannot deprive NCL‐
Bahamas of its ability to adequately investigate the facts of the case by refusing to sign
an authorization. See, e.g., Lischka v. Tidewater Servs., Inc., No. 96‐296, 1997 WL 27066
(E.D. La. Jan. 22, 1997). See also E.E.O.C. v. Thorman & Wright Corp., 243 F.R.D. 426, 429
(D. Kan. 2007) (explaining that the proper procedure is for a party to first serve a third‐
party subpoena under Fed. R. Civ. P. 45 and then file a motion to “compel the party to
execute appropriate releases pursuant to the Court’s general powers to enforce its own
orders.”).
Counsel shall work together to draft acceptable language governing the subject
matter scope of the authorizations concerning records held by the Social Security
Administration and the United States Department of Health and Human Services. The
authorizations shall be specific to each subpoena and shall relate only to those records
requested in the subpoena and which are relevant and discoverable. Frasca need not
sign a general, blanket release authorizing the disclosure of all records in the custody of
government agencies. P.S. ex rel. Nelson v. The Farm, Inc., No. 07‐2210‐JWL‐DJW, 2008
WL 185801 (D. Kan. Jan. 18, 2008) (noting difference between a Rule 34 request for
production and a Rule 45 subpoena on a third‐party, finding that Rule 45 applied
because defendant tried to obtain the documents by subpoena and requiring the
guardians to sign specific authorizations). If the parties are unable to agree upon the
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language, then NCL‐Bahamas will be able to schedule a hearing on short notice and the
Court will determine the language.
IV.
NCL‐Bahamas’ Motion for Sanctions
NCL‐Bahamas’ motion to compel also includes a request for sanctions, which the
Court denies because NCL‐Bahamas did not adequately confer with Frasca’s counsel
before filing the motion, a requirement of both Fed. R. Civ. P. 37(a)(1) and Local Rule
7.1(a)(3). In addition, this Court’s Scheduling Order [ECF No. 36] specifically reminds
counsel of their obligation to actually “confer (in person or via telephone) and engage in
reasonable compromise in a genuine effort to resolve their discovery disputes before
filing discovery motions. In other words, there must be an actual conversation before a
discovery motion is filed.” (emphasis in original).
Moreover, the Court’s Scheduling Order also notes the type of effort to confer
which will typically be unacceptable: “Sending an email or telefax to opposing counsel
with a demand that a discovery response or position be provided on the same day will
rarely, if ever, be deemed a good faith effort to confer before filing a discovery motion.”
In the instant case, NCL‐Bahamas’ counsel sent an email to Frasca’s counsel at
11:34 a.m. on June 6, 2013 concerning Frasca’s February 22, 2013 supplemental
interrogatory answers. These answers were unsigned and unverified. In more than
three months since they were served, NCL‐Bahamas’ counsel had not previously raised
the issue of the answers being unverified. The June 6, 2013 email did not mention the
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delay of more than three months, did not take the position that verified answers needed
to be provided by a date certain, and did not raise any concern that a response needed
to be provided immediately. To the contrary, the email was casual and, quite frankly,
friendly. Here is the email in its entirety: “Hello, Mike. I need these executed. Thanks.”
Slightly more than five hours later, without having an actual conversation with
Frasca’s counsel, NCL‐Bahamas filed its motion to compel. In addition to seeking an
order compelling production of a verified version of the answers (and medical
authorizations), NCL‐Bahamas demanded sanctions against Frasca for “failing to
comply with a court order.”
The very next day, Frasca filed [ECF No. 87] his notice of serving executed
interrogatory answers. Although Frasca’s response was surely a diligent and timely
response ‐‐ the very next day after receiving what seemed like a standard email about
an ordinary, garden‐variety discovery issue ‐‐ it was too late to avoid a motion to
compel, complete with a sanctions demand, which had been filed the afternoon before.
If NCL‐Bahamas had followed the Court’s Scheduling Order and had an actual
conversation with Frasca’s counsel, then it likely would have learned that the verified
answers to the supplemental interrogatories could have been served within a short
time. Likewise, had NCL‐Bahamas actually made a good faith effort to engage in a pre‐
filing conferral, then it would have learned the same thing. But NCL‐Bahamas, after
doing nothing about the unsigned and unverified answers for more than three months,
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pulled the discovery motion trigger far too quickly (and in violation of the applicable
rules and this Court’s Scheduling Order).
Fed. R. Civ. P. 37 requires an award of fees and costs to the party prevailing on a
discovery motion, absent certain limited exceptions inapplicable to the unsigned
interrogatory answers component of the motion. Therefore, NCL‐Bahamas’ counsel
shall pay to Frasca $175 in fees and costs. If either party (or counsel) believes that the
amount of the award is unreasonable, then that party may file a motion and the Court
will schedule an evidentiary hearing in which counsel shall produce their respective
time records. NCL‐Bahamas’ counsel shall pay the $175 by June 21, 2013 and shall
submit an affidavit of compliance to the Court’s efile inbox (which is not a public record
available through CM/ECF). NCL‐Bahamas’ counsel shall pay the award personally and
shall not, either directly or indirectly, pass on the cost to his client or to his law firm.2
Although NCL‐Bahamas was successful on part of its motion (concerning a
medical records release authorization), Rule 37 does not justify an award of fees or costs
in NCL‐Bahamas’ favor for two reasons. First, NCL‐Bahamas did not properly engage
in a pre‐filing inquiry. Second, the law on the issue of medical records authorizations is
far from clear. The Eleventh Circuit Court of Appeals has not issued any published
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This $175 award is not a sanction. Instead, it is a mandatory fee‐shifting
mechanism required by Fed. R. Civ. P. 37. Therefore, this Order would not require
NCL‐Bahamas’ counsel to answer “yes” if ever asked (e.g., by an insurance carrier, by a
judicial nominating commission, by a prospective employer) if a court had ever
imposed sanctions against him.
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opinions on point, as best as the Court can tell,3 and the district courts have taken
inconsistent positions.
Accordingly, it is ORDERED and ADJUDGED as follows:
1.
The Court denies NCL’s reconsideration motion and Frasca’s ore tenus
reconsideration motion.
2.
Frasca shall sign the required medical release authorizations. However,
with regards to the authorizations for the release of records from the Social Security
Administration, the United States Department of Health and Human Services, or any
other government agency, Frasca shall sign agency‐specific, subpoena‐specific
authorizations. If the parties are unable to agree on upon the language of the
authorizations, then they shall contact the Court in order to schedule a hearing for the
Court to determine the language.
3.
NCL‐Bahamas’ counsel shall pay $175 to Frasca.
DONE AND ORDERED in Chambers, Miami, Florida, June 12, 2013.
Copies furnished to:
All Counsel of Record
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At the hearing, NCL‐Bahamas’ counsel advised that the Eleventh Circuit has not
decided this specific issue, and the Court has been unable to locate any authority either.
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