Hitachi Medical Systems America, Inc. v. Southwest Mississippi Anesthesia, P.A., Inc. d/b/a Pain Treatment Center of Baton Rouge

Filing 28

RULING: The Motion to Compel Answers to Interrogatories, the Production of Documents, and for Sanctions, filed by defendant Southwest Mississippi Anesthesia, P.A., Inc. is granted. Defendants Request for Expedited Hearing and Briefing Deadlines is denied as moot. Signed by Magistrate Judge Stephen C. Riedlinger on 07/31/2013. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

HITACHI MEDICAL SYSTEMS
AMERICA, INC.

CIVIL ACTION

VERSUS

NUMBER 12-273-BAJ-SCR

SOUTHWEST MISSISSIPPI
ANESTHESIA, P.A., INC.
RULING ON MOTION TO COMPEL ANSWERS TO INTERROGATORIES,
THE PRODUCTION OF DOCUMENTS, FOR SANCTIONS, AND FOR
EXPEDITED HEARING AND BRIEFING DEADLINES
Before the court is the Defendant’s Motion to Compel Answers
to Interrogatories, the Production of Documents, for Sanctions, and
Request for Expedited Hearing and Briefing Deadlines, filed by
defendant Southwest Mississippi Anesthesia, P.A., Inc.
document number 23.

Record

The motion is opposed by plaintiff Hitachi

Medical Systems America, Inc.1
Background
The subject of this discovery dispute is interrogatories and
document production requests the defendant served on the plaintiff
February 26, 2013.

Plaintiff did not provide its answers and

responses to this discovery until May 21, 2013.2

One week later,

on May, 28 a status conference was held, after which the scheduling
order was amended to allow time for completion of both fact and

1

Record document number 24.

2

Record document number 23-4, Exhibit B.

expert discovery. During that conference counsel for the defendant
advised the court that the parties would try to resolve the dispute
over the sufficiency of the plaintiff’s discovery responses, but if
they failed to do so promptly a motion to compel discovery would be
filed.3

The Amended Scheduling Order changed the deadline for

completion of discovery and filing motions to compel to August 16,
2013.
Defendant

did

not

advise

the

plaintiff

of

the

claimed

deficiencies until June 14, and the plaintiff did not respond to
this

letter

until

June

24.

Plaintiff

disputed

some

of

the

defendant’s arguments with regard to Interrogatory Number 1 and the
FDA documents, but otherwise indicated that it was searching for
responsive documents and hoped to provide them “shortly.”4 Counsel
for the plaintiff suggested that the issues be discussed later in
the week.

According to the defendant, an email was sent in

response to this suggestion, but the plaintiff never responded and
this motion to compel was filed on June 28.5

Three weeks after

this motion was filed, the plaintiff sent a letter stating that it

3

Record document number 12. The primary reason for modifying
the scheduling order was to include expert deadlines, after counsel
for the defendant advised of the need to offer expert testimony.
4

Record document number 23-5, Exhibit C; record document
number 23-6, Exhibit D.
5

Record document number 23-7, Exhibit E.
Rather than
promptly filing a motion to compel as was stated at the status
conference, the defendant waited one month, until June 28, to file
the motion.
2

was supplementing its May 21 discovery responses with a privilege
log,

a disc containing emails numbered 000602 through 012092, and

confidential documents numbered 012034 through 012092.

However,

the plaintiff’s counsel stated that the emails and confidential
documents would not be provided until the defendant signed a
stipulation regarding confidentiality and non-waiver of protected
material.6
In

its

related

Motion

for

Modification

of

the

Current

Scheduling Order, the defendant stated that the number of pages of
additional documents the plaintiff intends to produce is 11,491.7
Defendant noted that it has no way of knowing until the court
approves the stipulation, the documents are produced and it can
review them, whether or not the supplemental production cures the
deficiencies it raised in the present discovery motion.8
Analysis
The specific discovery responses that the defendant claims are
deficient are the answers to Interrogatory Numbers 1, 2, 6, 21, 22,
and the responses to Requests for Production Numbers 5, 7-17, 2123, 26, 27, 30, 35-37.

In its opposition to the motion, the

plaintiff essentially raised only two arguments: (1) the defendant

6

Record document number 24-1, Exhibit D; record document
number 25.
7

Record document number 26-1, p. 3.

8

Id., p. 5.
3

has failed to provide complete discovery responses and should be
sanctioned for this failure, and (2) shortly after receiving the
defendant’s discovery requests it began to investigate procedures
for

searching

its

electronically

stored

information

(ESI),

ultimately searched its ESI, and is ready to produce more than
12,000 pages of emails and confidential documents, but it will do
so only when the defendant agrees to a proposed stipulation related
to the designation of confidential material and non-waiver of
protected material.
These arguments do not provide any basis for denying the
defendant’s motion to compel. The fact that the plaintiff contends
the defendant’s discovery responses are inadequate,9 does not
excuse its dilatory and deficient responses to the defendant’s
interrogatories and document requests.

Plaintiff also should not

have withheld the supplemental production of the ESI and other
documents until the defendant agreed to sign the stipulation.
Rather, the plaintiff should have anticipated the need for a
protective order, and no later than when it was ready to provide
the outstanding discovery, the plaintiff should have promptly moved
for a protective order.

It is clear that under Rule 26(c),

Fed.R.Civ.P., the party desiring the protection has the burden of
moving for a suitable protective order.
It is possible that much, if not all, of this discovery motion

9

Plaintiff did not file a motion to compel.
4

will be moot once the defendant receives and reviews the ESI and
documents the plaintiff will be producing.

However, given the

present record the court cannot find that motion is moot, and
therefore the defendant is entitled to the relief sought in this
motion. In the supplemental production ordered in this ruling, the
plaintiff

is

not

required

to

duplicate

any

information

and

documents that are already included in the emails and confidential
documents the plaintiff notified the defendant it was ready to
provide. But to the extent the plaintiff’s supplemental production
does not correct the deficiencies raised in this motion, the
plaintiff

must

provide

supplemental

answers

to

Interrogatory

Numbers 1, 2, 6, 21, 22 and supplemental responses to Requests for
Production Numbers 5, 7-17, 21-23, 26, 27, 30, 35-37, without
objections, within 7 days.
With

regard

to

the

recovery

of

expenses,

under

Rule

37(a)(5)(A), Fed.R.Civ.P., if the motion is granted or if the
disclosure or requested discovery is provided after the motion the
was

filed,

the

court

must

require

the

party

whose

conduct

necessitated the motion, or the attorney advising that party, or
both, to pay the movant’s reasonable expenses incurred in making
the motion,

including attorney’s fees, unless the movant did not

make a good faith attempt to resolve the dispute without court
action, the opposing party’s position was substantially justified
or other circumstances make an award of expenses unjust.

5

Under this rule the defendant did make a good faith attempt to
resolve the discovery problem, the plaintiff’s position was not
substantially justified and no circumstances exist that would make
an award of expenses unjust. The background and analysis set forth
in this ruling demonstrate that the defendant is entitled to
recovery of its expenses.

Defendant did not claim a specific

amount for the expenses incurred in filing this motion.

However,

a review of the motion and memorandum supports the conclusion that
an award of $300.00 is reasonable.
Accordingly, the Motion to Compel Answers to Interrogatories,
the Production of Documents, and for Sanctions, filed by defendant
Southwest Mississippi Anesthesia, P.A., Inc. is granted.
Plaintiff Hitachi Medical Systems America, Inc. shall produce
supplemental answers to Interrogatory Numbers 1, 2, 6, 21, 22, and
produce for inspection and copying the documents responsive to
Requests for Production Numbers 5, 7-17, 21-23, 26, 27, 30, 35-37,
without objections, within 7 days.

Pursuant to Rule 37(a)(5)(A),

the

defendant,

plaintiff

shall

pay

to

the

within

14

days,

reasonable expenses in the amount of $300.00.
Defendant’s

Request

for

Expedited

Hearing

and

Briefing

Deadlines is denied as moot.
Baton Rouge, Louisiana, July 31, 2013.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

6