Sambrooks et al v. Choiseme et al
Filing
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OPINION AND ORDER granting 45 Motion for Rule to Show Cause for Failure toComply With Subpoena; Motion for Protective Order 46 is DENIED; and the Motion to Dismiss Defendants Rule to Show Cause 47 is DENIED. Dr. Michael is ORDERED to show caus e why he should not be held in contempt for failure to comply with the subpoena within 14 days of this order. If he turns over the requested information prior to this date, the court will consider that compliance with this order. If he turns over the requested information prior to this date, the court will consider that compliance with this order. Signed by Magistrate Judge Andrew P Rodovich on 9/10/2014.(rmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TAMMY SAMBROOKS and DALE
SAMBROOKS,
)
)
)
Plaintiffs,
)
)
vs.
) CAUSE NO. 2:12-cv-102
)
CLAUDE CHOISEME, individually and as )
an agent, servant and/or employee of
)
Walgreen-Oshkosh Inc., d/b/a Walgreen
)
Corporation and WALGREEN-OSHKOSH, )
INC., d/b/a WALGREEN CO; and
)
TRANSERVICE LEASE CORP., d/b/a
)
TRAVERSE LEASE CORP.,
)
)
Defendants.
)
OPINION AND ORDER
This matter is before the court on the Motion for Rule to Show Cause for Failure to
Comply With Subpoena [DE 45] filed by the defendants, Claude Choiseme, Transervice Lease
Corp., and Walgreen-Oshkosh Inc., on July 17, 2014; the Motion for Protective Order [DE 46]
filed by the plaintiffs, Tammy and Dale Sambrooks, on July 21, 2014; and the Motion to Dismiss
Defendants’ Rule to Show Cause [DE 47] filed by the plaintiffs on July 21, 2014. For the
following reasons, the Motion for Rule to Show Cause for Failure to Comply With Subpoena
[DE 45] is GRANTED; the Motion for Protective Order [DE 46] is DENIED; and the Motion to
Dismiss Defendants’ Rule to Show Cause [DE 47] is DENIED.
Background
This matter arises from a rear-end motor vehicle accident that occurred on May 14, 2010
between the defendant, Claude Choiseme, and the plaintiff, Tammy Sambrooks. The defendants
have admitted that Choiseme was negligent in the operation of the equipment and that he is one
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hundred percent at fault for the collision with Sambrooks. Sambrooks suffered injuries, and her
attorney recommended that she see Dr. Ronald Michael. Dr. Michael treated Sambrooks for her
injuries and was identified as one of her treating physicians.
The defendants served a subpoena via certified mail to Dr. Ronald Michael on May 19,
2014, which was returnable on June 21, 2014. The subpoena originally was served on counsel
for the plaintiffs on May 14, with a request that any objections be presented on or before May 19.
On May 15, the plaintiffs’ attorney sent correspondence objecting to certain portions of the
subpoena. Later that same day, the plaintiffs’ attorney sent an identical subpoena to the
defendants’ expert, Dr. Harel Deutch. Defense counsel wrote back, stating that he assumed all
objections were withdrawn because the plaintiffs’ counsel served an identical subpoena.
Defense counsel states that he did not receive any further correspondence regarding Dr.
Michael’s subpoena. The plaintiffs’ attorney attached a letter maintaining his objections to his
motion to dismiss the defendants’ motion for order to show cause. He stated that he sent the
letter to defense counsel on May 16, 2014. Defense counsel denies having received this letter
and states that because he did not hear anything further from the plaintiffs’ counsel, he proceeded
to file the present motion when he did not receive a response from Dr. Michael.
The plaintiffs’ counsel responded by filing a motion for protective order, stating broadly
that the defendants’ discovery request is overly broad and exceeds the scope of Rule 26(a)(2)(B),
(b)(4)(B)-(C). The plaintiffs also move to dismiss the defendants’ motion for failure to comply
with the meet and confer requirements of Rule 37 and Northern District of Indiana Local Rule
37-1.
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Discussion
Federal Rule of Civil Procedure 45(g) states that the court “may hold in contempt a
person who, having been served, fails without adequate excuse to obey the subpoena or an order
related to it.” “To prevail on a request for a contempt finding, the moving party must establish
by clear and convincing evidence that (1) a court order sets forth an unambiguous command; (2)
the alleged contemnor violated that command; (3) the violation was significant, meaning the
alleged contemnor did not substantially comply with the order; and (4) the alleged contemnor
failed to make a reasonable and diligent effort to comply.” United States S.E.C. v. Hyatt, 521
F.3d 687, 692 (7th Cir. 2010). After the court identifies an unequivocal command that the party
violated, the burden then shifts, and the party opposing the motion must demonstrate why he is
unable to comply with the order. United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548,
75 L.Ed.2d 521 (1983).
The party seeking to avoid producing the documents requested by the subpoena bears the
burden of demonstrating why the information sought is privileged or subjects it to an undue
burden. Hodgdon v. Northwestern University, 245 F.R.D. 337, 341 (N.D. Ill. 2007). The
privilege must be affirmatively stated, and the objecting party must describe the nature of the
withheld documents or communications. Rule 45(e)(2). Also implicit in the rule is the
requirement that a subpoena seek relevant information. See Stock v. Integrated Health Plan,
Inc., 241 F.R.D. 618, 621–622 (S.D.Ill.2007); Syposs v. United States, 181 F.R.D. 224, 226
(W.D.N.Y.1998) (“The reach of a subpoena issued pursuant to Fed.R.Civ.P. 45 is subject to the
general relevancy standard applicable to discovery under Fed.R.Civ.P. 26(b)(1).”). Relevancy
under this rule is construed broadly to encompass “any matter that bears on, or that reasonably
could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Chavez
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v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D.Ind. 2002) (quoting Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978)). Even when
information is not related directly to the claims or defenses identified in the pleadings, the
information still may be relevant to the broader subject matter at hand and meet the rule's good
cause standard. Sanyo Laser Products, Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502
(S.D.Ind. 2003).
The defendants first argue that the plaintiffs have not raised a single specific objection to
the discovery requests, and rather broadly stated that Rule 26(a)-(b) prohibits production. The
plaintiffs refer the court to the provisions providing for expert reports, seemingly arguing that Dr.
Michael only should be required to produce such a report and should not be compelled to further
respond to the discovery. Although treating physicians are required to prepare a report, this does
not absolve them from further participating in discovery. In fact, Rule 26(b) goes on to state that
communications between an attorney and an expert are discoverable if they relate to the expert’s
study, identify facts and data that the expert considered in forming his opinions, or identify
assumptions the party’s attorney provided that the expert relied on when forming his opinions.
The plaintiffs’ broad objection does not satisfy their obligation to show why the
information sought is privileged, irrelevant, or unduly burdensome to produce. The plaintiffs
have not described the nature of any communications involving Dr. Michael to show why they
are not discoverable, nor have they responded to each discovery request to identify their specific
objection and their basis for so objecting. In fact, the plaintiffs made no effort to show any
privileged communications. For these reasons, the plaintiffs have not satisfied their burden to
show why the requested information is not subject to discovery.
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The plaintiffs also move to dismiss the defendants’ motion, arguing that they did not file
a certificate explaining their efforts to meet and confer to resolve the discovery dispute prior to
filing their motion for order to show cause. Rule 37 states that “a party may move for an order
compelling disclosure or discovery. The motion must include a certification that the movant has
in good faith conferred or attempted to confer with the person or party failing to make disclosure
or discovery . . . .” The defendants are not seeking the production of the documents at this time.
Rather, they are asking the court to conduct a hearing to determine whether Dr. Michael should
be held in contempt for failure to comply. For this reason, it is not clear that Rule 37 is
applicable. In any case, the record reveals that the parties did engage in some discussions in an
effort to resolve the dispute, and the plaintiffs admitted that such discussions occurred. It would
be futile to dismiss this motion without prejudice so that it could be re-filed with the
certification.
Based on the foregoing reasons, the Motion for Rule to Show Cause for Failure to
Comply With Subpoena [DE 45] is GRANTED; the Motion for Protective Order [DE 46] is
DENIED; and the Motion to Dismiss Defendants’ Rule to Show Cause [DE 47] is DENIED.
Dr. Michael is ORDERED to show cause why he should not be held in contempt for
failure to comply with the subpoena within 14 days of this order. If he turns over the requested
information prior to this date, the court will consider that compliance with this order.
ENTERED this 10th day of September, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge
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