Pinkney v. Winn-Dixie Stores, Inc.
Filing
58
ORDER granting 44 Motion to Compel Medical Records from Non-Party; granting in part and denying in part 50 Motion to Compel Witness Statements; granting 51 Motion for Extension of Time to Obtain Additional Records in Response to Subpoenas; a nd dismissing 52 Motion for Protective Order as to Subpoenas. Nonparty Southeast Georgia Physician Associates must produce the subpoenaed documents within ten days of receiving service of this Order. The Scheduling Order in this case is modified , as set forth herein, to extend the period of discovery until April 13, 2015. Last Day for Filing all Civil Motions Including Daubert Motions, but Excluding Motions in Limine due May 13, 2015 and Pre-Trial Order due July 12, 2015. Signed by Magistrate Judge R. Stan Baker on 3/6/2015. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
LADONNA PINKNEY,
:
:
Plaintiff,
:
:
v.
WINN-DIXIE STORES, INC.,
Defendant.
CIVIL ACTION NO.: CV214-075
:
:
:
:
ORDER
This matter comes before the Court for the resolution of several motions filed by
Defendant: a Motion to Compel Medical Records from Non-Party (Doc. 44), a Motion to
Compel Witness Statements (Doc. 50), a Motion for Extension of Time to Obtain Additional
Records in Response to Subpoenas (Doc. 51), and a Motion for Protective Order as to Subpoenas
(Doc. 52). Plaintiff has filed Responses to all but the Motion to Compel Medical Records from
Non-Party (Doc. 44). (Docs. 53–55.) For the reasons that follow, Defendant’s unopposed
Motion to Compel Medical Records from Non-Party (Doc. 44) is GRANTED, such that
nonparty Southeast Georgia Physician Associates must produce the subpoenaed documents
within ten (10) days of receiving service of this Order. Defendant’s Motion to Compel Witness
Statements (Doc. 50) is GRANTED IN PART and DENIED IN PART as follows: Plaintiff
must produce, within ten (10) days of the date of this Order, a privilege log for the witness
statements that Plaintiff has withheld on the basis of privilege or protection, but Plaintiff need
not produce those statements themselves and is not prohibited from calling those witnesses at
trial. Defendant’s Motion for Extension of Time to Obtain Additional Records in Response to
Subpoenas (Doc. 51) is GRANTED, and the Scheduling Order in this case is modified, as set
forth herein, to extend the period of discovery until April 13, 2015. Finally, Defendant’s Motion
for Protective Order as to Subpoenas (Doc. 52) is DISMISSED as prematurely filed.
BACKGROUND
Plaintiff filed this slip-and-fall action against Defendant on March 20, 2014. (Doc. 1,
Ex. A, p. 4.) Plaintiff alleges that her fall in Defendant’s grocery store was caused by a leaking
freezer cooler. (Id. at Ex. A, pp. 2–3.) Plaintiff contends that her fall resulted in permanent
physical and mental injuries that require substantial medical treatment. (Id. at Ex. A, p. 3.)
Based on these allegations, Plaintiff seeks compensation for her injuries as well as her past and
future medical expenses, which Plaintiff alleges to have incurred from Southeast Georgia Health
System, Southeast Georgia Radiology, Dr. Darrin A. Strickland, Summit Sports Medicine, and
Georgia Emergency Associates. (Id. at Ex. A, p. 4.)
Plaintiff served Answers to Interrogatories on April 29, 2014, and Initial Disclosures on
June 23, 2014, both of which added the following providers to this list: Southeastern OB/GYN,
Brunswick Orthotics & Prosthetics, and Bone & Joint Institute of South Georgia. (Doc. 50,
Ex. A, pp. 1, 6; Doc. 54, p. 2.) Plaintiff’s Initial Disclosures also informed Defendant that her
potential witnesses included “[a]ll current and former employees of Defendant” who were on
duty at the store in question on the day of Plaintiff’s fall, who had repaired coolers at that store,
who had received training on incident reports at that store, or who had reported slipping on water
at that store. (Doc. 50, Ex. A, pp. 2–3.) As discovery progressed, Defendant learned from other
sources that Southeast Georgia Physician Associates and Key Health also were involved in
2
Plaintiff’s medical treatment and expenses, though the parties dispute at what point in the
discovery period Defendant obtained this information. (See Doc. 51, p. 2; cf. Doc. 54, p. 3.)
On October 22, 2014, Defendant served a Second Request for Production of Documents
asking Plaintiff to produce any witness statements she had obtained from Defendant’s current
and former employees. (Doc. 50, p. 2, Ex. B.) Plaintiff objected to Defendant’s request “to the
extent that [it] [sought] documents containing information that constitutes the work product or
trial preparation materials of Plaintiff’s attorneys or other representatives or reflect the mental
impressions . . . of Plaintiff’s attorneys or other representatives.” (Id. at Ex. B, p. 2.) Defendant
then asked Plaintiff to provide a privilege log for the witness statements withheld (id. at Ex. C,
p. 1), which Defendant contends Plaintiff never provided. (Id. at p. 2.)
Defendant also served subpoenas on Plaintiff’s medical providers, requesting that they
produce all records relating to Plaintiff’s medical treatment and bills. (See Doc. 44,
p. 2;
Doc. 51, p. 2.) On December 29, 2014, Southeast Georgia Health System responded to a
subpoena dated December 1, 2014, stating that it could not disclose Plaintiff’s medical records to
Defendant without a signed authorization from Plaintiff, pursuant to the Health Insurance
Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996)
(“HIPAA”). (Doc. 44, Ex. A, pp. 1–3.) Defendant had asked Plaintiff to execute a HIPAA
authorization for Southeast Georgia Health System (id. at Ex. B, p. 1), but Defendant maintains
that Plaintiff ignored its requests (id. at p. 2). In addition to Southeast Georgia Health System,
Defendant contends that it never received any records from Southeastern OB/GYN, Southeast
Georgia Physician Associates, and Key Health in response to outstanding subpoenas. (Doc. 51,
p. 2.)
3
Also on December 29, 2014, Plaintiff sent Defendant copies of subpoenas that were
directed to Dr. Ralph Morales (“Dr. Morales”) and his professional corporation, Southern
Orthopaedics & Sports Medicine, P.C. (“Southern Orthopaedics”), whom Defendant retained to
perform an independent medical examination of Plaintiff during the discovery period. (Doc. 52,
p. 1, Ex. A.) The subpoenas requested certain medical records and were not signed. (Id. at
Ex. A.) According to Defendant, the requests were unduly burdensome or outside the scope of
discovery. (Id. at p. 5.)
Seeking the Court’s resolution of these outstanding discovery matters, Defendant filed
the instant Motions before the February 12, 2015 close of discovery. (See Docs. 44, 50–52.)
Specifically, Defendant filed a Motion to Compel Medical Records from Non-Party on
January 16, 2015, requesting a Court Order that would enable Southeast Georgia Health System
to produce Plaintiff’s medical records, without an authorization, in compliance with HIPAA.
(Doc. 44, p. 3.) Defendant then filed a Motion to Compel Witness Statements, dated
February 10, 2015. (Doc. 50, p. 5.) In this Motion, Defendant sought a Court Order requiring
Plaintiff to produce the statements obtained from any witness or a privilege log reflecting the
same. (Id. at pp. 1, 4.) In the alternative, Defendant sought an Order preventing these witnesses
from testifying at trial. (Id. at p. 4.) On February 11, 2015, Defendant filed a Motion for
Extension of Time to Obtain Additional Records in Response to Subpoenas, seeking to extend
the discovery period in light of its outstanding subpoenas to Southeast Georgia Health System,
Southeastern OB/GYN, Southeast Georgia Physician Associates, and Key Health. (Doc. 51,
p. 2.) Finally, on February 12, 2015, Defendant filed a Motion for Protective Order as to
Subpoenas, in which Defendant asks the Court to quash or modify Plaintiff’s subpoenas directed
to Dr. Morales and Southern Orthopaedics. (Doc. 52, p. 5.)
4
The Court will address Defendant’s request to extend the discovery period in its Motion
for Extension of Time to Obtain Additional Records in Response to Subpoenas (Doc. 51) before
considering Defendant’s other pending Motions in the order in which they were filed (Docs. 44,
50, 52).
DISCUSSION
I.
Defendant’s Motion for Extension of Time to Obtain Additional Records in
Response to Subpoenas (Doc. 51)
Defendant argues that the Scheduling Order in this case should be modified to allow for
an extended discovery period. (Id. at p. 3; see also Doc. 24, p. 1 (showing February 12, 2015, as
the close of discovery).) Defendant relies on Federal Rule of Civil Procedure 16(b)(4) for the
proposition that a scheduling order may be modified for good cause and with the judge’s
consent. (Doc. 51, p. 2 (citing Fed. R. Civ. P. 16(b)(4)).) Defendant argues that Plaintiff had a
knee arthroscopy on October 7, 2014, which has delayed Defendant’s completion of discovery in
this case. (Id. at p. 1.) For example, Defendant deposed Plaintiff’s arthroscopy surgeon, Dr.
Christopher E. Swanson (“Dr. Swanson”), on November 7, 2014, but Dr. Swanson’s time
constraints were such that the deposition could not be completed until January 15, 2015. (Id. at
pp. 1–2.) In addition, Defendant maintains that its discovery efforts revealed additional medical
providers not disclosed by Plaintiff and that it did not learn of Key Health’s involvement in the
payment of Plaintiff’s medical bills until January 15, 2015. (Id. at p. 2.) According to
Defendant, Key Health, Southeast Georgia Physician Associates, Southeast Georgia Health
System, and Southeastern OB/GYN have not provided records in response to Defendant’s
subpoenas, and additional time is necessary for Defendant to obtain these records and to pursue
follow-up discovery. (Id. at pp. 2–3.)
5
In her Response, Plaintiff urges the Court to deny Defendant’s Motion, because
Defendant already received two extensions of time to complete discovery and has failed to
diligently conduct discovery. (Doc. 54, p. 1.) In support of these contentions, Plaintiff states
that Defendant did not schedule an adequate amount of time with Dr. Swanson to complete his
deposition on November 7, 2014, and did not promptly make arrangements to do so on a later
date. (Id. at pp. 1–2.) Furthermore, according to Plaintiff, Defendant misrepresents that it only
recently learned of certain medical providers: Defendant learned of all providers other than Key
Health and Southeast Georgia Physician Associates through Plaintiff’s Answers to
Interrogatories served on April 29, 2014 (id. at p. 2), and Defendant was aware of the existence
of Key Health at least as early as December 15, 2014, when Defendant served its Third Request
for Production seeking “[a]ny and all contracts, agreements, correspondence or other
documentation to or from Key Health” (id. at pp. 2–3, Ex. B). Noting that Key Health is not a
medical provider with medical records, Plaintiff concludes that, in any event, Defendant’s failure
to complete discovery within the allotted time is attributable only to its own lack of due
diligence. (Id. at pp. 2–3.)
Under Federal Rule of Civil Procedure 16(b) (“Rule 16(b)”), a district court must issue a
scheduling order limiting the time for parties to complete discovery. Fed. R. Civ. P. 16(b)(3)(A).
Once the court issues a scheduling order, it “may be modified only for good cause and with the
judge’s consent.” Fed. R. Civ. P. 16(b)(4). The “good cause” standard “precludes modification
unless the schedule cannot ‘be met despite the diligence of the party seeking the extension.’”
Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (quoting Fed. R. Civ. P. 16(b)
advisory committee’s note); see also id. (“If [a] party was not diligent, the [good cause] inquiry
should end.” (alterations in original) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d
6
604, 609 (9th Cir. 1992))). Even if the good cause requirement is met, it is within the judge’s
discretion whether to consent to the modification. See Rowell v. Metropolitan Life Ins. Co., 579
F. App’x 805, 807 (11th Cir. 2014) (“Once a scheduling order is set, a district court ‘may’ amend
the order, but is under no obligation to do so.”).
The Court is not persuaded that the delay in completing Dr. Swanson’s deposition
supports extending the discovery deadline. Defendant completed the deposition of Dr. Swanson
on January 15, 2015, before the close of discovery on February 12, 2015. (Doc. 51, p. 2; see also
Doc. 24, p. 1.) Furthermore, Defendant does not contend that Dr. Swanson’s deposition gave
rise to additional, follow-up discovery that could not be obtained before the discovery deadline.
Accordingly, the undersigned need not reach the parties’ arguments as to whether Defendant was
diligent in scheduling the deposition. Because the discovery deadline was met—regardless of
Defendant’s diligence or lack thereof—any delay in completing Dr. Swanson’s deposition would
not constitute good cause to modify the close of discovery in the Scheduling Order.
Nevertheless, there appears to be good cause to extend the discovery deadline based on
Defendant’s outstanding subpoenas. Indeed, Defendant was unable to obtain all of Plaintiff’s
medical and financial records relevant to her claims before the February 12, 2015 discovery
deadline, despite diligently pursuing discovery of these records. For example, it appears that
Defendant only recently learned of Key Health’s existence—which, though disputed, appears to
have occurred around December 15, 2014, based on Defendant’s Third Request for Production
(Doc. 54, Ex. B)—and Defendant already had served a request for documents on Key Health
when it filed this Motion on February 11, 2015 (Doc. 51, pp. 2–3). 1 And while Defendant
1
While Plaintiff argues that Key Health is not a medical provider and thus has no relevant medical
documents (Doc. 54, pp. 2–3), Key Health was involved in the payment of Plaintiff’s medical bills and,
therefore, may have financial records relevant to Plaintiff’s damages claims. For this reason, Defendant’s
7
learned of Southeast Georgia Health System much earlier, through Plaintiff’s Complaint filed
March 20, 2014 (Doc. 1, Ex. A, p. 4), and Answers to Interrogatories on April 29, 2014 (Doc. 54,
p. 2), the record shows that Defendant attempted on multiple occasions from May to November
2014 to secure a HIPAA authorization from Plaintiff (Doc. 44, Ex. B), before finally serving this
provider with a subpoena dated December 1, 2014 (id. at Ex. A, p. 3). Furthermore, upon
Southeast Georgia Health System’s refusal to produce the requested documents on December 29,
2014 (id. at Ex. A, p. 2), Defendant promptly filed a Motion to Compel Medical Records from
Non-Party on January 16, 2015 (id. at p. 3). While it is unclear when Defendant served
subpoenas on Southeastern OB/GYN and Southeast Georgia Physician Associates, Defendant’s
discovery efforts with regard to Key Health and Southeast Georgia Health System provide a
sufficient foundation upon which this Court can conclude that Defendant acted diligently in
serving subpoenas for medical and financial records. After serving the subpoenas, Defendant
had no control over the providers’ compliance, and, upon realizing that the providers likely
would not comply within the discovery period, promptly filed the instant Motion before that
period expired. (See Doc. 51, p. 3.) On these facts, the Court finds that the February 12, 2014
discovery deadline was not met despite Defendant’s diligence during the discovery period, and,
accordingly, there is good cause to modify the Scheduling Order in this case.
That the Court has amended this portion of the Scheduling Order twice before does not
change this result. It is true that the Scheduling Order originally set an October 15, 2014
discovery deadline (Doc. 9, p. 1) and that the Court since has extended that deadline to
December 14, 2014 (Doc. 17, p. 1), and then to February 12, 2015 (Doc. 24, p. 1). However,
Plaintiff’s emphasis on this fact is misplaced. Rule 16(b)’s “good cause” standard focuses on a
inability to obtain the requested records from Key Health is relevant in determining whether there is good
cause to extend the discovery period in the Scheduling Order.
8
party’s inability to meet the applicable deadline despite exercising diligence. While previous
deadline extensions undermine a party’s diligence in some cases, the undersigned finds that such
is not the case here.
Based on a finding of good cause, and in the interest of allowing the parties to fully
prepare their case, the undersigned finds adequate reason to modify the Scheduling Order to
provide additional time for the parties to complete discovery. Accordingly, Defendant’s Motion
for Extension of Time to Obtain Additional Records in Response to Subpoenas is GRANTED .
The Scheduling Order in this case is amended as follows:
CLOSE OF DISCOVERY
April 13, 2015
LAST DAY FOR FILING ALL CIVIL MOTIONS,
INCLUDING DAUBERT MOTIONS, BUT
EXCLUDING MOTIONS IN LIMINE
May 13, 2015
PRE-TRIAL ORDER DUE
July 12, 2015
Because the Court is extending discovery for the third time, based on Defendant’s
inability to obtain Plaintiff’s medical records, the Court stresses to the parties and their counsel
that the Court expects the parties to work cooperatively to obtain and exchange discoverable
materials and to complete discovery in this case. The Court will not tolerate further delay in the
discovery process due to gamesmanship or obstructionist tactics employed by either party.
II.
Defendant’s Motion to Compel Medical Records from Non-Party (Doc. 44)
In its first Motion to Compel, Defendant seeks an Order from this Court compelling
Southeast Georgia Health System to produce, within ten days of the Order, Plaintiff’s medical
records in response to Defendant’s subpoena dated December 1, 2014. (Id. at pp. 1–2, Ex. A.)
Defendant explains that Southeast Georgia Health System has refused to disclose Plaintiff’s
9
medical records without a HIPAA authorization from Plaintiff, which Defendant has requested
but never received. (Id. at p. 2, Ex. B.) According to Defendant, Plaintiff’s medical records are
relevant and discoverable, because Plaintiff, in filing this personal injury action, placed her
medical condition at issue. (Id. at pp. 1–2.) Even without a HIPAA authorization, Defendant
argues that Southeast Georgia Health System may produce Plaintiff’s medical records in
compliance with HIPAA “in the course of any judicial or administrative proceeding . . . [i]n
response to an order of a court.” (Id. at p. 2 (quoting 45 C.F.R. § 164.512(e)(1) (2015)).)
Plaintiff did not file any response to this Motion, and Plaintiff has not filed a Motion to Quash
Defendant’s subpoena.
The HIPAA statute provides penalties for “[a] person who knowingly and in violation of
[HIPAA] (1) uses . . . a unique health identifier; (2) obtains individually identifiable health
information relating to an individual; or (3) discloses individually identifiable health information
to another person.” 42 U.S.C. § 1320d-6 (2014). As the HIPAA regulations clarify, the general
rule of the HIPAA statute is that “[a] covered entity . . . may not use or disclose protected health
information, except as permitted or required by [these regulations].” Murphy v. Dulay, 768 F.3d
1360, 1368–69 (11th Cir. 2014) (quoting 45 C.F.R. § 164.502(a)); see also id. at 1369 (stating
that “covered entities” include “health plans, health care clearinghouses, and certain health care
providers” (citing 45 C.F.R. § 160.102(a))). One of the exceptions to the general rule provides
for the disclosure of an individual’s medical information “pursuant to and in compliance with a
valid authorization” from that individual. 45 C.F.R. § 164.502(a)(1)(iv). Another exception
allows disclosure, without the written authorization of the individual, “in the course of any
judicial or administrative proceeding.” Murphy, 768 F.3d at 1369 (quoting 45 C.F.R. §
164.512(e)(1)). A covered entity may make a disclosure under this exception in response to “an
10
order of a court or administrative tribunal, provided that the covered entity discloses only the
protected health information expressly authorized by such order.” 45 C.F.R. § 164.512(e)(1)(i);
see also United States v. Wilk, 572 F.3d 1229, 1236 (11th Cir. 2009) (“HIPAA authorizes the
disclosure of confidential medical records for law enforcement purposes, or in the course of a
judicial proceeding, in response to a court order or grand jury subpoena.”).
Southeast Georgia Health System is a health care provider covered by the HIPAA statute
and, therefore, cannot disclose Plaintiff’s medical records to Defendant, unless an exception
applies. Plaintiff has put her medical condition at issue in this case, yet it appears that Plaintiff
has refused to fully cooperate in the discovery of her medical records. Because Plaintiff
seemingly has ignored Defendant’s requests for a HIPAA release, it appears that a Court Order is
necessary to allow Southeast Georgia Health System to produce Plaintiff’s records in compliance
with HIPAA and to promote the discovery process in this case.
In an abundance of caution, however, the Court orders the following protections: The
parties to this lawsuit are prohibited “from using or disclosing the protected health information
[disclosed to Defendant] for any purpose other than the litigation” of this lawsuit. 45 C.F.R. §
164.512(e)(1)(v)(A). In addition, at the end of this litigation, the parties must return the
protected health information to Southeast Georgia Health System or destroy this information,
including any copies thereof. Id. § 164.512(e)(1)(v)(B).
Subject to those additional protections, Defendant’s Motion to Compel Medical Records
from Non-Party is hereby GRANTED . Counsel for Defendant is ordered to serve a copy of this
Order and Defendant’s original subpoena on Southeast Georgia Health System. Southeast
Georgia Health System must disclose, within ten (10) days of receiving service of this Order, all
11
information relating to the medical condition of Plaintiff that is responsive to Defendant’s
subpoena, including medical and billing records as well as any disks containing imaging or films.
III. Defendant’s Motion to Compel Witness Statements (Doc. 50)
Defendant moves the Court for an Order compelling the disclosure of statements Plaintiff
has obtained from Defendant’s current or former employees or a privilege log showing the
identities of such employees. (Id. at pp. 1, 3.) In the alternative, Defendant seeks an Order
precluding the use of testimony from any witness not yet disclosed. (Id. at p. 3.) Defendant
shows that Plaintiff generally described her witnesses as Defendant’s “current and former
employees” in her Initial Disclosures and that Plaintiff later refused to produce any statements
from these witnesses, on the basis that the statements are “work product or trial preparation
materials of Plaintiff’s attorneys or other representatives.” (Id. at pp. 1–2, Ex. B.) Relying on
Federal Rule of Civil Procedure 26 (“Rule 26”), Defendant contends that Plaintiff had a duty to
disclose the identities of any employees with information relevant to this case and to supplement
those disclosures during the discovery period. (Id. at pp. 3–4 (citing Fed. R. Civ. P. 26(b)(1),
(e)(1)(A)).) Defendant also asserts that Plaintiff did not properly assert a claim of privilege or
protection over the statements of these employees in response to Defendant’s Second Request for
Production of Documents, because Rule 26 required Plaintiff to provide a privilege log—
identifying the employees and the substance of their testimony—rather than a blanket objection.
(Id. at pp. 3–4 (citing Fed. R. Civ. P. 26(b)(5)(A)(ii)).) Defendant goes further to suggest that
Plaintiff’s failure to supplement her disclosures to identify these witnesses justifies excluding
their testimony at trial and that her failure to properly claim privilege or protection over their
statements arguably results in a waiver thereof. (Id. at p. 4.)
12
Plaintiff responds that the Court should deny Defendant’s Motion, because “[t]here are
no witnesses who have not been disclosed by name by one or the other party to this case or their
deposition taken.” (Doc. 55, p. 1.) In particular, Plaintiff discusses one former employee, Isaiah
Brown (“Brown”), and maintains that she gave Defendant notice of Brown’s role as a potential
witness in a Reply brief filed September 11, 2014. (Id. (citing Doc. 16).) Plaintiff avers that her
counsel obtained a statement from Brown in an affidavit dated August 8, 2014, which Plaintiff
intends to use at the summary judgment stage and which is protected from discovery as trialpreparation material until that time. (Id.) Plaintiff also states that, in any event, Defendant
deposed Brown on October 23, 2014, for the purposes of a different case—a loss of consortium
case against Defendant in state court, the companion of which, Pate v. Winn-Dixie Stores, Inc.,
2:13-cv-166 (S.D. Ga. Oct. 27, 2014), is currently pending before this Court. (Id.)
Pursuant to Rule 26, a party must set forth in its initial disclosures “the name and, if
known, the address and telephone number of each individual likely to have discoverable
information—along with the subjects of that information—that the disclosing party may use to
support its claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(i). Additionally, a party must serve
pretrial disclosures that include “the name and, if not previously provided, the address and
telephone number of each witness” that the disclosing party may call at trial, other than solely for
impeachment. Fed. R. Civ. P. 26(a)(3)(A)(i). A party who has made an initial or pretrial
disclosure must supplement or correct its disclosure “(A) in a timely manner if the party learns
that in some material respect the disclosure . . . is incomplete or incorrect, and if the additional or
corrective information has not otherwise been made known to the other parties during the
discovery process or in writing; or (B) as ordered by the court.” Fed. R. Civ. P. 26(e)(1). A
party who “fails to provide information or identify a witness as required by Rule 26 . . . is not
13
allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a
trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
In addition to initial and pretrial disclosures, Rule 26 allows parties to request discovery
“regarding any nonprivileged matter that is relevant to any party’s claim or defense—including
the existence, description, nature, custody, condition, and location of any documents . . . and the
identity and location of persons who know of any discoverable matter.” Fed. R. Civ. P. 26(b)(1).
However, a party generally may not obtain discovery of any documents “prepared in anticipation
of litigation or for trial by or for another party or its representative,” which includes the party’s
attorney. Fed. R. Civ. P. 26(b)(3). A party seeking to withhold information on the basis that it is
subject to protection as trial-preparation material must “(i) expressly make the claim; and (ii)
describe the nature of the documents [or] communications . . . not produced or disclosed—and
do so in a manner that . . . will enable other parties to assess the claim.” Fed. R. Civ. P.
26(b)(5)(A). The party requesting discovery may move for an order compelling production or an
answer if a party gives an incomplete response or answer to its discovery request. Fed. R. Civ.
P. 37(a)(3)(B)(iv), (a)(4).
As an initial matter, if Plaintiff has identified any current or former employees with
discoverable information that she has not specifically disclosed, she must supplement her Initial
Disclosures to reflect these developments. While Plaintiff’s Response to the instant Motion only
mentions having obtained a statement from Brown, Plaintiff represents that she “gave Defendant
notice on September 11, 2014, that Isaiah Brown is a witness” and that “[t]here are no witnesses
who have not been disclosed by name by one or the other party to this case.” (See Doc. 55, p. 1.)
Notably, Plaintiff alleges to have identified Brown as a potential witness in a September 11,
2014 Reply brief on a previous Motion to Compel, in which Plaintiff discussed and attached an
14
affidavit of Brown taken for the Pate case, 2:13-cv-166. (Doc. 16, p. 5, Ex. A.) At the time of
filing the Reply brief, Plaintiff already had obtained a separate affidavit from Brown for use in
this case, but Plaintiff’s Reply did not mention that affidavit, much less imply that Brown would
provide information or testimony in this case. (See id.; Doc. 55, p. 1.) Plaintiff’s Reply brief did
not give adequate notice of Brown as a potential witness with discoverable information in this
case, and the Court cautions Plaintiff that any other employee similarly “disclosed” has not been
clearly identified as a potential witness. While Plaintiff’s Response to the instant Motion now
obviates supplemental disclosures as to Brown, Plaintiff must supplement her disclosures as to
any other employee not yet sufficiently identified as a potential witness. Furthermore, if Plaintiff
intends to call Brown or any other employee as a witness at trial, Plaintiff’s pretrial disclosures
also must be clear to this end. To the extent that Plaintiff needs to make any supplemental
disclosures, Plaintiff must do so within the extended discovery period in a timely manner such
that Defendant has ample opportunity to depose or obtain statements from any individual then
identified. 2 A failure to disclose any potential witness will preclude Plaintiff from using such an
individual to supply evidence on a motion, at a hearing, or at trial. The Court, however, declines
at this time to find that the testimony of any witness not yet identified must be excluded at trial.
As to the statements obtained from potential witnesses, if Plaintiff contends those
statements are protected from disclosure by the work product doctrine, she need not produce
these statements in response to Defendant’s Second Request for Production of Documents at this
time. While the statements of Defendant’s current and former employees are relevant to the
parties’ allegations of negligence and contributory negligence, it appears that these statements
could be protected from discovery as trial-preparation materials. See Hickman v. Taylor, 329
2
Plaintiff notes that Defendant deposed Brown on October 23, 2014, for the purposes of the state-court
corollary to Pate, 2:13-cv-166. (Doc. 55, p. 1.) The Court declines to determine, at this time, whether
that deposition would be admissible in this case.
15
U.S. 495, 508 (1947) (finding “oral and written statements of witnesses” obtained by a party’s
counsel in anticipation of litigation to be protected from discovery under Rule 26). However, the
Court cannot determine whether these statements are, in fact, protected, because Plaintiff’s
discovery response fails to describe the statements or other documents withheld in a manner that
permits any meaningful evaluation of Plaintiff’s claim of protection. See Fed. R. Civ. P.
26(b)(5)(A) (requiring that a claim of privilege or protection “describe the nature of the
documents . . . not produced or disclosed—and do so in a manner that . . . will enable other
parties to assess the claim”). Plaintiff’s conclusory assertion that the “documents contain[ ]
information that constitutes the work product or trial preparation materials of Plaintiff’s
attorneys” (Doc. 50, Ex. B, p. 2) has left Defendant, and the Court, unable to discern what
documents Plaintiff is withholding and whether Plaintiff’s claim of protection is legitimate.
Because the Court cannot evaluate the privileged nature of the witness statements at this
time, the Court declines to compel Plaintiff to produce the statements to Defendant. The Court
also declines to find that Plaintiff waived any protection, because Plaintiff’s failure to respond
completely was not sufficiently egregious so as to justify such an extreme sanction. See In re
RDM Sports Grp., Inc., 277 B.R. 415, 424 (N.D. Ga. 2002) (“[W]aiver of privilege is the most
extreme sanction that a court can impose for failure to follow required procedure, and courts
should reserve it for cases of unjustifiable delay, inexcusable conduct, and bad faith in
responding to discovery requests.” (internal quotation marks omitted) (citing Moore’s Federal
Practice and Procedure § 26.90[1])).
However, to the extent that Plaintiff claims that any witness statements in her possession
are privileged or protected from disclosure, she must provide Defendant a privilege log that
identifies each statement and that complies with the requirements of Rule 26. See Fed. R. Civ. P.
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26(b)(5)(A). In order that any disputes over the protection of any such statements may be timely
resolved, Plaintiff is hereby ordered to provide Defendant with such a privilege log within ten
(10) days of the date of this Order.
Based on the foregoing, Defendant’s Motion is DENIED to the extent that it seeks to
exclude the trial testimony of any witness not yet identified and to compel the production of any
statement that Plaintiff has obtained from a witness. Defendant’s Motion is GRANTED insofar
as Plaintiff must produce a privilege log disclosing the nature of the witness statements withheld
and must do so in a manner that, without revealing information itself privileged or protected, will
enable Defendant to assess the claim of privilege or protection.
IV. Defendant’s Motion for Protective Order as to Subpoenas (Doc. 52)
Defendant moves the Court for a protective order quashing or significantly modifying
Plaintiff’s subpoenas directed to Dr. Morales, who performed an independent examination of
Plaintiff at Defendant’s request, and Southern Orthopaedics, Dr. Morales’s professional
corporation. (Id. at pp. 1, 4 (citing Fed. R. Civ. P. 26, 45(d)).) Specifically, Defendant contends
that Plaintiff’s requests to Dr. Morales are unduly burdensome, because they seek the production
of confidential information that is outside the scope of discovery: (1) “the last fifty reports of
independent medical examinations and medical document reviews prepared by Dr. Morales”; (2)
“the last ten reports of independent medical examinations and medical document reviews where
Dr. Morales agreed with the diagnosis made by the injured person’s treating physician”; and (3)
“the last ten reports of independent medical examinations and medical document reviews where
Dr. Morales agreed with the causation determination made by the injured person’s treating
physician.” (Id. at pp. 2–4.) Defendant also challenges Plaintiff’s subpoena to Southern
Orthopaedics as containing “verbatim repetitions of the requests to Dr. Morales personally,
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requiring an unduly burdensome duplication of efforts.” (Id. at p. 4) Defendant has attached to
its Motion copies of the subpoenas, which were unsigned when delivered to Defendant via email on December 29, 2014. (Id. at Ex. A.)
In her Response, Plaintiff urges the Court to deny Defendant’s Motion, in part because
Defendant never responded to the December 29, 2014 e-mail or otherwise made any good faith
effort to confer with Plaintiff’s counsel before filing the instant Motion. (Doc. 53, p. 1 (citing
L.R. 26.5).) Moreover, Plaintiff alleges that she never signed and served the subpoenas on Dr.
Morales and Southern Orthopaedics, which Defendant would have learned had it contacted
Plaintiff’s counsel to resolve this dispute. (Id. at pp. 1–2.)
Defendant filed a Reply explaining that it filed the instant Motion believing that Plaintiff
would serve the subpoenas and that it needed to file any discovery motion before the imminent
discovery deadline. (Doc. 56, pp. 1–2.) Defendant “concede[s] that its Motion . . . is moot,
provided Plaintiff has no intention to serve the disputed subpoenas, as she hints but does not
affirmatively state in her Reply.” (Id. at p. 2 (internal quotation marks omitted).) Defendant,
therefore, amends its request unto the Court as follows: “that the Court enter a Protective Order
or, if Plaintiff does not intend to serve the contested subpoenas, dismiss the Motion as moot.”
(Id.)
Rule 26, which also governs protective orders, states in pertinent part that “[a] party or
any person from whom discovery is sought may move for a protective order.” Fed. R. Civ. P.
26(c)(1). Rule 26 requires that such motion “include a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in an effort to resolve the
dispute without court action.” Id. The Local Rules of this Court echo Rule 26: “Counsel are
reminded that Fed. R. Civ. P. 26(c) and 37(a)(1) require a party seeking a protective order or
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moving to compel discovery to certify that a good faith effort has been made to resolve the
dispute before coming to court.” L.R. 26.5. The Court, in turn, may issue the protective order
“for good cause” and to prevent “annoyance, embarrassment, oppression, or undue burden or
expense.” Fed. R. Civ. P. 26(c)(1).
Defendant’s Motion contains no certification that Defendant conferred with Plaintiff
before filing, and the parties do not dispute that Defendant, in fact, never attempted to do so.
Moreover, it appears that Defendant still had not conferred with Plaintiff upon filing its Reply, as
Defendant expresses uncertainty as to Plaintiff’s intentions to serve the subpoenas in the future
and purports to make its Motion dependent on those intentions. Based on Defendant’s failure to
attempt to consult with Plaintiff at any time regarding this dispute, the Court will not entertain its
premature arguments and, therefore, DISMISSES its Motion. Even so, Plaintiff is reminded of
her obligation to give prior notice to Defendant in the event that Plaintiff seeks to serve
subpoenas on Dr. Morales and Southern Orthopaedics during the extended discovery period. See
Fed. R. Civ. P. 45(a)(4). If Defendant objects to the scope of those subpoenas at that time,
Defendant must attempt in good faith to resolve the dispute with Plaintiff before asking the Court
to do so.
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CONCLUSION
For the reasons and in the manner set forth above, Defendant’s Motion to Compel
Medical Records from Non-Party (Doc. 44) is GRANTED; Defendant’s Motion to Compel
Witness Statements (Doc. 50) is GRANTED IN PART and DENIED IN PART ; Defendant’s
Motion for Extension of Time to Obtain Additional Records in Response to Subpoenas (Doc. 51)
is GRANTED ; and Defendant’s Motion for Protective Order as to Subpoenas (Doc. 52) is
DISMISSED .
SO ORDERED, this 6th day of March, 2015.
_____________________________________
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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