Escalante v. LifePoint Hospital Inc. et al

Filing 143

MEMORANDUM AND ORDER granting 129 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 4/19/19. (df)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF KANSAS
RAQUEL ESCALANTE, et al.,

)
)
Plaintiffs,
)
)
vs.
)
)
LIFEPOINT HOSPITAL dba WESTERN )
PLAINS MEDICAL COMPLEX, et al.
)
)
Defendants.
)
___________________________________ )

Case No. 17-2035-JWL-KGG

MEMORANDUM AND ORDER ON
DEFENDANT’S OBJECTION AND MOTION FOR PROTECTIVE ORDER
Defendant Tanya Williams, M.D. (herein “Defendant”) has moved for the
Court for an Order than she need not respond to Plaintiffs’ Second Request for
Production. (Doc. 129.) For the reasons stated herein, Defendant’s motion is
GRANTED.
BACKGROUND
This is a medical malpractice case in which Plaintiffs allege that Defendants
provided negligent medical care during the prenatal care and birth of B.E., a minor.
More specifically, Plaintiffs allege that B.E. “suffered permanent injury resulting
right birth brachial plexus palsy.” (Doc. 1, at 5.)
Pursuant to the Revised Scheduling Order entered December 5, 2018, “[a]ll

discovery in this case must be commenced or served in time to be completed by
January 30, 2019.” (Doc. 112 at 2, emphasis in original.) Two days before the
close of discovery, on January 28, 2019, Plaintiffs served Defendant with their
Second Requests for Production of Documents. (Doc. 120.) The requests sought
information regarding defense experts. (Doc. 129-1.)
Defendant served her expert witness designations on August 24, 2018.
(Doc. 96.) Defendant also provided some potential dates for depositions of the
experts. (Doc. 129, at 3; Doc. 129-7.) Plaintiffs’ counsel did not respond until
October 1, 2018, requesting deposition dates. (Id.) Various communication
between the parties regarding deposition scheduling occurred over the next several
weeks. (Id.; see also Doc. 134, at 2-3.) At that time, the discovery deadline was
scheduled for November 23, 2018 (Doc. 65), so the parties ultimately agreed to
request an extension from the Court. This resulted in the Revised Scheduling
Order which included the January 30, 2019, discovery deadline. (Doc. 112.)
Two of Defendant’s experts were deposed in January – Dr. O’Hara on
January 4, 2019, and Dr. Mandel on January 21, 2019. (Docs. 129-4, 129-5.) The
document requests at issue relate to topics that were addressed during the
depositions and/or information that was requested in the deposition notices. (See
Doc. 134, at 3-6.) The document requests were served a week after Mandel’s
deposition and 24 days after O’Hara’s deposition.

DISCUSSION
Protective Orders are governed by Fed.R.Civ.P. 26(c), “which confers broad
discretion on the trial court to decide when a protective order is appropriate and
what degree of protection is required.” Layne Christensen Co. v. Purolite Co.,
271 F.R.D. 240, 244 (D. Kan. 2010) (quoting Seattle Times Co. v. Rhinehart, 467
U.S. 20, 36 (1984) ). See also Thomas v. IBM, 48 F.3d 478, 482 (10th Cir. 1995);
Terry v. Unified Gov't of Wyandotte Co., No. 09-2094-EFM-KGG, 2011 WL
795816 (D. Kan. March 1, 2011). The rule provides, in relevant part:
A party or any person from whom discovery is sought
may move for a protective order in the court where the
action is pending.... The motion must 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. The
court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following:
***
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for
the disclosure or discovery;
***
(D) forbidding inquiry into certain matters, or
limiting the scope of disclosure or discovery to
certain matters; ....

Fed.R.Civ.P. 26(c)(1).
Defendant asks the Court to sustain her objections to the discovery and enter
the requested Protective Order because Plaintiffs’ requests were served “weeks out
of time” pursuant to the Revised Scheduling Order and Plaintiffs “did not move to
extend the deadline.” (Doc. 129, at 5.) Thus, according to Defendant, the Court
should enter an Order protecting her from the “undue annoyance of responding to
untimely discovery.” (Id.)
Plaintiffs acknowledge it has been “difficult” for the parties to schedule
depositions but contends Plaintiffs are not solely to blame. (Doc. 134, at 2.) The
Court understands the difficulty of coordinating calendars between multiple
parties, their counsel, and medical experts.
The fact remains, however, that the discovery requests were served in an
untimely manner. The Revised Scheduling Order – which was altered specifically
to enable expert depositions – includes the unambiguous language that “[a]ll
discovery … must be commenced or served in time to be completed by January
30, 2019.” (Doc. 112, at 2 (emphasis in original).) Plaintiffs did not move to
extend this deadline or request permission from the Court to conduct the discovery
out of time. Rather, Plaintiffs merely served discovery requests two days before
the expiration of this deadline – which was four weeks after the last day the
requests could be served to be answered in a timely manner.

Plaintiffs point out that the information requested was not “learned” until the
depositions on January 4 and 21, 2019. (Doc. 134, at 7.) Thus, Plaintiffs argue
“[i]t would have been impossible to requests such information 30 days before
January 30, 2019 …” (Id.) While the Court acknowledges this circumstance, the
document requests were clearly out of time. The motion before the Court is a
motion for a protective order filed by Defendant, not a timely motion to extend the
discovery deadline or a request to conduct discovery out of time – either of which
could have been filed by Plaintiffs but was not.
The Court thus sustains Defendant’s timeliness objection. Plaintiffs’
discovery will not be allowed because of the timing under the facts presented.
Plaintiffs have provided no valid justification for a failure to request an extension
of the discovery deadline or a request to conduct discovery out of time.
Defendant’s motion (Doc. 129) is GRANTED. As such, the Court need not
address the merits of Plaintiff’s requests.

IT IS THEREFORE ORDERED that Defendant’s Motion for Protective
Order (Doc. 129) is GRANTED.

IT IS SO ORDERED.

Dated at Wichita, Kansas, on this 19th day of April, 2019.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge