Riggs v. City of Wichita, Kansas et al
MEMORANDUM AND ORDER denying 45 Plaintiff's Motion to Compel Production of Documents; denying 46 Plaintiff's Motion to Order Mediation; denying 52 Defendant's Motion for Order for Medical Records. Signed by Magistrate Judge Kenneth G. Gale on 4/20/2011. Mailed to pro se party Rowana Riggs by regular mail. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CITY OF WICHITA, KANSAS,
NORMAN WILLIAMS and,
Case No. 09-1105-EFM-KGG
MEMORANDUM AND ORDER
Numerous motions are currently pending before the Court, including the
Plaintiff’s Motion to Compel Production of Documents
Plaintiff’s Motion to Order Mediation (Doc. 46); and
Defendant’s Motion for Order for Medical Records (Doc.
Each will be addressed in turn.1
Plaintiff has also filed her “Motion for Protective Order,” which actually requests
an injunction. As such, this motion will be addressed under a separate order by the District
The facts of this case were summarized in the Court’s Orders of February
17, 2010 (Doc. 19) and June 7, 2010 (Doc. 28) denying Plaintiff’s requests for
counsel as well as the District Court’s December 21, 2010, Memorandum and
Order (Doc. 32) relating to certain dispositive motions. Those summaries will not
be repeated here, but are instead incorporated by reference.
Plaintiff’s Motion to Compel Production of Documents (Doc. 45).
Plaintiff brings this motion seeking an Order compelling Defendant to
produce the following: 1) a fine of $150.00 apparently entered by the Sedgwick
County, Kansas District Court against Defendant; 2) photographs of injuries to
Plaintiff’s body; 3) “complaints” filed against Defendant Cory, during his
employment and presumably at any point during his lifetime; 4) copies of the “FBI
investigation of this beating”; and 5) photographs or video of Plaintiff taken by
employees of the Sedgwick County Jail. (See Doc. 45, at 1-2.)
Defendant responds, in part, that Plaintiff has failed to comply with the
requirement of D.Kan. Rule 37.2, which states that “[t]he court will not entertain
any motion to resolve a discovery dispute . . . unless . . . the moving party has
conferred or made reasonable effort to confer with opposing counsel concerning
the matter in dispute prior to the filing of the motion.” (Emphasis added.) The
local rule also requires a motion to compel to include a certification describing
with particularity the steps taken by the parties to resolve the issue in dispute.
These requirements encourage parties to resolve discovery disputes “without
judicial intervention.” Cotracom Commodity Trading Co. v. Seaboard
Corporations, 189 F.R.D. 456, 459 (D.Kan.1999); see also VNA Plus, Inc. v.
Apria Healthcare Group, Inc., No. 98-2138-KHV,1999 WL 386949, at *1
(D.Kan. June 8, 1999).
This Court has recently addressed the issue of what constitutes “conferring”
between the parties.
The conference mandate of ‘reasonable efforts to confer’
requires ‘more than mailing or faxing a letter to the
opposing party.’ D. Kan. Rule. 37.2. Rather, the parties
must ‘in good faith converse, confer, compare views, and
consult and deliberate or in good faith attempt to do so.’
Id.; see also Cotracom, 189 F.R.D. at 459. ‘[The parties]
must make genuine efforts to resolve the dispute by
determining precisely what the requesting party is
actually seeking; what responsive documents or
information the discovery party is reasonably capable of
producing, and what specific, genuine objections or other
issues, if any, cannot be resolved without judicial
intervention.’ Cotracom, 189 F.R.D. at 459.
Stephenson v. Young, No. 10-2197-KHV-KGG, 2010 WL 4961709, at *2 (D.
Kan. Nov. 29, 2010). D.Kan. Rule 37.2 “contemplates a conference, either
face-to-face or by telephone (not via electronic message) in which the parties, in
good faith, discuss and attempt to resolve the dispute.” Id. There is no evidence –
and certainly no certificate of compliance – to indicate that Plaintiff has made any
effort to confer. As such, the Court will not entertain Plaintiff’s motion to compel
(Doc. 45), which is DENIED. Plaintiff is instructed to confer with Defendant
regarding the issues contained in this motion in accordance with Fed.R.Civ.P.
37(a)(1) and D. Kan. Rule 37.2, as discussed above.
To the extent the parties cannot resolve these differences, Plaintiff may file a
renewed motion. While the Court does not rule on the substance of Plaintiff’s
underlying motion to compel, it will, however, provide some guidance for the
parties to consider as they confer and/or file renewed motions. Initially, the Court
does not have jurisdiction to compel Defendant to pay a fine issued by another
court. As such, Plaintiff should be mindful of this when conferring with Defendant
and/or considering filing a renewed motion on that issue. Likewise, Plaintiff can
only request from Defendant Cory documents in his possession, custody, or
control. Fed.R.Civ.P. 34. It is apparent that Defendant Cory does not possess or
control the requested photographs (which should be requested from the City of
Wichita and/or Sedgwick County), or copies of any FBI investigation (which can
be requested from the FBI, if it exists). Finally, Plaintiff’s requests for
“complaints” regarding Defendant Cory is somewhat broadly worded. Even so,
the Court anticipates Plaintiff would be entitled to complaints filed against Cory
during his employment with the City that are similar in nature to the events
contained in Plaintiff’s federal court Complaint.
Plaintiff’s Motion to Order Mediation (Doc. 46).
Plaintiff next moves the Court for an order compelling the parties to
participate in mediation. (Doc. 46.) Plaintiff cites no authority to support her
request. Rather, she argues that she “filed a good faith proposal to settle this case,”
but that “the City of Wichita and Officer Cory have not made any attempt to
contact [her] by phone or letter to negotiate a settlement.” (Id.) She does state,
however, that Defendant Cory’s attorney rejected her settlement offer by letter
dated March 9, 2011. (Id.)
Defendant responds that, pursuant to the Court’s Scheduling Order,
Defendant made a “good faith” response to Plaintiff’s settlement offer. (Doc. 48,
at 1.) Also pursuant to the Scheduling Order, Defendants provided the Court with
their confidential report evaluating the prospects of settlement. (Id.)
The Court finds that Defendant has acted in good faith and that mediation, at
the present time, would not be helpful. Without commenting on the merits of
Plaintiff’s claims, the Court notes that an out right rejection of a settlement offer by
a party may constitute a “good faith” response when a party does not believe the
claims of the other party to be viable. In other words, a defendant is not expected
to offer to settle a case simply because the case was filed against it. Plaintiff’s
Motion to Order Mediation (Doc. 46) is DENIED.
Defendant’s Motion for Order for Medical Records (Doc. 52).
Defendant Cory moves the Court for an Order for Plaintiff’s medical
providers to produce her medical records.2 (Doc. 52.) Prior to filing the present
motion, Defendant contends that he sent Plaintiff “authorizations to obtain medical
records” in February, but has received no response. (Doc. 53, at 1.) From the
contents of Defendant’s motion, it is apparent that Defendant has not made a good
faith effort to confer with Plaintiff on this issue. See Stephenson, 2010 WL
4961709, at *2, supra. As such, Defendant’s motion is DENIED.
The Court notes that Defendant has submitted a proposed order “which
expressly authorizes each medical provider to produce plaintiff’s medical records .
. . . [and] complies with HIPPA [sic].” (Id., at 3.) Even assuming Defendant had
conferred with Plaintiff, the Court would not approve Defendant’s proposed order.
Rather, the Court directs Defendant to the procedures outlined in its recent
The Court notes that the time has not expired for Plaintiff to respond to this
motion. Even so, the Court finds that argument from Plaintiff is unnecessary as the Court
is denying Defendant’s motion.
decisions on this issue in Spraggins v. Sumner Regional Medical Center, et al.,
No. 10-2276-WEB-KGG (Docs. 42, 56). See 2010 WL 4568715 (D. Kan. Nov. 3,
2010) and 2010 WL 5137439 (D. Kan. Dec. 10, 2010). As stated in the former
Spraggins decision, issuance of a records subpoena under Fed.R.Civ.P. 45 “is the
appropriate procedure for obtaining records.” 2010 WL 4568715, at *3.
Upon motion to reconsider the initial Spraggins ruling, this Court provided
further guidance on the subject:
Rule 45 of the Rule of Civil Procedure governs the
acquisition of records from nonparties. The rule includes
a requirement that a subpoena requesting the production
of documents be proceed by a notice to each party, Fed.
R. Civ. Proc. 45(b)(1), thus providing other parties an
opportunity to object to the issuance of the subpoena by
proper motion. The Rule also provides protections to the
subject non-party. Fed. R. Civ. Proc. 45(c). After notice,
a party can challenge the appropriateness of the subpoena
by motion. Fed. R. Civ. Proc. 45(c)(3). If a subpoenaed
party fails to respond, the Court may issue an order to
enforce the subpoena. Fed. R. Civ. Proc. 45(3)(c).
The defense requests this Court issue an order which
would allow it to completely bypass Rule 45 procedures
and protections. The proposed order would compel all
medical providers, unnamed and unidentified, with no
restriction on subject or time, to provide all records
concerning the plaintiff. Such an order would allow the
defense to completely avoid the notice requirement of
Rule 45, and deprive the plaintiff or other party of the
opportunity to contest the records request. In short, the
requested order would permit the defense to issue secret
records requests. The Court is not convinced that this
extraordinary procedure is fair, wise or necessary.
The opportunity to object is of more than academic
concern. Although the Court has previously ruled that
the physician-patient evidentiary privilege does not apply
in this case, a person's medical records are profoundly
personal and private. Any subpoena must be within the
proper scope of discovery, that is the requested
information must be relevant to the claims or defenses in
the case. Fed. R. Civ. Proc. 26(b). Even in the absence of
privilege and given the broad scope of discovery, the
Court does not have sufficient evidence to rule in this
case that any and all providers which might be served
with the requested order possess discoverable evidence.
The Defendant's primary argument is that the HIPAA
regulation 45 C.F.R. § 164.512(e)(1)(i) gives the defense
a “right” to the proposed order. (Doc. 48 at page 5).
Even accepting the dubious proposition that a right to a
court order could be created by such a regulation, the
defense misreads the provision. HIPAA generally
prohibits the disclosure of medical information. The cited
provision is an exception which “permits” the provider to
comply with a court order (such as an order under Rule
45 enforcing a subpoena). The provision does not give
the defense a “right” to a court order. As detailed in the
previous Memorandum and Order, HIPAA equally
permits compliance with a Rule 45 subpoena, provided
certain routine safeguards are met. 45 C.F.R. §
2010 WL 5137439, at *1-2. The Court will, however, approve stipulated orders to
produce records, as they can expedite the case for both parties. However, in the
absence of an agreement, the Court directs Defendant to follow this procedure in
seeking Plaintiff’s medical records.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
Production of Documents (Doc. 45) is DENIED.
IT IS FURTHER THEREFORE ORDERED that Plaintiff’s Motion to
Order Mediation (Doc. 46) is DENIED.
IT IS FURTHER THEREFORE ORDERED that Defendant’s Motion for
Order for Medical Records (Doc. 52) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas on this 20th day of April, 2011.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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