Farina et al v. Gee

Filing 59

ORDER granting 48 Motion to Compel. Signed by Jane M Virden on 04/23/2014. (lec)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
FRANK FARINA
VS.

PLAINTIFF
CIVIL ACTION NO.: 3:13-cv-127-NBB-JMV

DON C. GEE

DEFENDANT

ORDER GRANTING MOTION TO COMPEL
This matter is before the court on Plaintiff’s Motion to Compel [48], seeking the
transcript of an interview/inquiry of defendant conducted by his employer pursuant to a
Collective Bargaining Agreement on February 15, 2013, and the Last Chance Settlement
Agreement with that employer.1 Having considered the motion and the accompanying briefs, the
court finds the motion should be granted for the reasons set forth below.
In regard to the Last Chance Settlement Agreement, Defendant contends its production is
barred by Federal Rule of Evidence 408, which states in part:
Evidence of the following is not admissible … either to prove or
disprove the validity or amount of a disputed claim or to impeach
by a prior inconsistent statement or a contradiction: (1) furnishing,
promising, or offering – or accepting, promising to accept, or
offering to accept - a valuable consideration in compromising or
attempting to compromise the claim…
FED. R. EVID. 408. Rule 408, however, is a rule of admissibility of evidence, not a rule of
discoverability pursuant to Federal Rule of Civil Procedure 26. Because the Plaintiff provides no
other authority, other than FRE 408, or argument in support of the transcript’s nondiscoverability, the Last Chance Settlement Agreement should be produced to the Plaintiff.

1

The motion also seeks the transcript of an interview/inquiry conducted on June 29, 2012, but the court has already resolved the production of
such by the Protective Order entered on April 16, 2014 [55].

In regard to the February 15, 2013, transcript, Defendant contends it is protected by his
Physician-Patient Privilege under Mississippi Rule of Evidence 503 and Miss. Code. Ann. § 131-21. This privilege was arguably waived when the Defendant – the holder of the privilege –
spoke of his physical condition and communications with his physician on the record with his
employer at the February 15, 2013, interview. Further, the Defendant affirmatively alleges as a
defense in this case that the Plaintiff’s complained of injury was due to Defendant’s involuntary
drug induced stupor (i.e. the proverbial “mickey”), for which he is not responsible.2 As such, the
Defendant has not merely denied Plaintiff’s allegations, he has affirmatively placed at issue his
medical condition at the time of the injury for discovery purposes, and thus, he has effectively
waived the privilege so far as it relates to the discoverability of the transcript.
Finally, the court does not take up the issue of whether the transcript or settlement
agreement would be admissible at trial in this present ruling on the motion to compel. Nor does
the court’s ruling here extend beyond the specific documents which are the subject of the motion
to compel.
IT IS, THEREFORE, ORDERED that Plaintiff is required to produce, subject to the
existing protective order, (1) the transcript of the interview/inquiry conducted on February 15,
2013, and (2) the Last Chance Settlement Agreement.
SO ORDERED this, the 23rd day of April, 2014.
/s/ Jane M. Virden
UNITED STATES MAGISTRATE JUDGE

2

Plaintiff specifically alleges this affirmative defense in his responses to Plaintiff’s interrogatories. See Def.’s Resp. to Pl.’s Interrog. No. 15 (“In
your first and third affirmative defenses, you contend that Plaintiff’s injuries were ... the direct result of … intentional acts of an unknown
individual for which Defendant is not responsible. Response: …Gee also believes that he may have consumed an unknown substance provided to
him without his knowledge. Prior to the subject incident, Don C. Gee had never experienced physical sickness with consumption of alcohol
similar to what he experienced the night of the subject incident and had never “blacked out.”).