Marshall et al v. Billings Clinic

Filing 35

ORDER granting 23 Motion to Compel. Signed by Magistrate Judge Carolyn S Ostby on 11/25/2015. (SEE ORDER FOR SPECIFICS.) (JDR, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ANNE B. MARSHALL,

CV-14-93-BLG-SPW-CSO

Plaintiff,
ORDER GRANTING
DEFENDANT’S
MOTION TO COMPEL

vs.
THE BILLINGS CLINIC, a
Montana Corporation,
Defendant.

Plaintiff Anne B. Marshall (“Marshall”) alleges in her First
Amended Complaint that the medical malpractice of “various agents
and employees” of Defendant The Billings Clinic (“Billings Clinic”)
injured her. She maintains that the malpractice began with an IV
insertion performed as part of medical procedures she underwent on
February 15, 2011, and continued during care and treatment
thereafter. First Am. Cmplt. (ECF 16) at ¶¶ 7-79.
Marshall asserts the following claims against Billings Clinic: (1)
professional negligence (First Claim for Relief), id. at ¶¶ 80-88; (2)
negligent hiring, retention, supervision, and management (Second
Claim for Relief), id. at ¶¶ 89-99; and (3) battery (Fourth Claim for

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Relief),1 id. at ¶¶ 100-104. Marshall seeks compensatory and punitive
damages. Id. at ¶¶ 105-112.
Now pending is Billings Clinic’s motion to compel (ECF 23).2 For
the reasons discussed below, the Court will grant the motion.
I.

BACKGROUND
In addition to filing briefs and supplemental materials respecting

the motion, the parties also filed a “Joint Stipulation of Fact Regarding
Discovery Motions.” ECF 22.3 They agree that the motion to compel
centers around Billings Clinic’s discovery requests for Marshall’s
medical history and records reflecting prior medical treatment by other
providers. Id. at 2. In addition, the parties agree as follows:
1.

Marshall asserts that she has suffered general and special
damages. Id. at ¶ 4.a.

2.

Marshall has admitted the following treatment records are
discoverable:

1

Marshall’s First Amended Complaint misidentifies her third
claim for relief as her fourth claim for relief.
2

Also pending is Marshall’s motion for a protective order. ECF 25.
The Court will address that motion in a subsequent order.
3

Having reviewed the parties’ Joint Stipulation, the Court is
satisfied that the parties have complied with Rule 37(a)(1), Fed. R. Civ.
P., and Local Rule 26.3(c)(1), both of which require the parties to confer
and attempt to resolve discovery disputes before seeking court action.
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a.

Treatment records created by Billings Clinic for the
procedures and treatment that give rise to this lawsuit, id.
at 4.b.i.;

b.

Care and treatment by subsequent providers for the injuries
Marshall alleges arose from the claimed negligence by
Billings Clinic, id. at 4.b.ii.; and

c.

Other records not relevant to the parties’ stipulation. Id. at
¶4.b.iii.

3.

Marshall has asserted that records of medical treatment not
related to her right wrist, or corrective, or allegedly corrective,
treatment for the injuries allegedly sustained in February of
2011, are not discoverable in this lawsuit. Id. at ¶4.c.

4.

Billings Clinic has offered to enter into a confidentiality
agreement and protective order covering all these records. Id. at
4.d.

5.

Billings Clinic seeks additional records from medical providers
who were either identified by Marshall as being one of her health
care providers or listed in the medical records Marshall was
willing to produce. Id. at 4.e.4
Billings Clinic’ motion seeks the Court’s order requiring Marshall

to respond fully to Interrogatory No. 10 and Request for Production
(“RFP”) No. 1. Billings Clinic’s Br. in Support (ECF 24) at 2. As noted,
both discovery requests seek information concerning Marshall’s medical
history that predates the alleged injury giving rise to this action.

4

The parties’ Joint Stipulation contains the list of providers from
whom Billings Clinic seeks records. See ECF 22 at 6-8.
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Interrogatory No. 10 seeks the name, address, telephone number,
and specialty of each health care provider who has examined or treated
Marshall, or with whom Marshall has consulted, for any reason, during
the past 20 years. It also asks Marshal to provide the date of any such
examination, treatment, or consultation, and the illness or condition for
which she sought treatment. Pltf’s Answers to Billings Clinic’s First
Interrogatories (ECF 24-2) at 2.
Marshall objected to this interrogatory arguing that it: (1) “seeks
information that is not reasonably calculated to lead to the discovery of
admissible information[,]” id.; (2) “is unduly burdensome, oppressive
and embarrassing,” id.; (3) “seeks information that is protected from
disclosure[ ]” because “Art. II, § 10 of the Montana Constitution
provides citizens a right of privacy in medical information[,]” id.; and
(4) “seeks medical and private information that is unrelated to the
injury claimed in this lawsuit[,]” id. at 3. Marshall also responded that
she “has previously produced all relevant medical records at
MARSHALL-000012–521[.]” and noted that she “produces additional
documents herewith . . . [p]ursuant to Fed. R. Civ. P. 33(d), [and notes]
that the burden of extracting the requested information would be

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substantially the same for both [Marshall] and [Billings Clinic].” Id.
RFP No. 1 provides: “Please produce copies of all medical records
of Plaintiff Marshall from January 1, 2000 to present.” ECF 24-3 at 2.
Marshall objected arguing RFP No. 1: (1) seeks information that is not
reasonably calculated to lead to the discovery of admissible
information,” id.; (2) “is unduly burdensome, oppressive, and
embarrassing[,]” id.; (3) seeks information that “is otherwise protected
from disclosure” by “Art. II, § 10 of the Montana Constitution [which]
provides citizens a right of privacy in the medical information[,]” id.;
and (4) “seeks medical and private information that is unrelated to the
injury claimed in this lawsuit[,]” id. Marshall also responded that she
“has previously produced all relevant medical records at MARSHALL000012–521, and is producing additional material related to the clams
an injuries giving rise to this lawsuit[,]” id. at 2-3.
II.

SUMMARY OF PARTIES’ ARGUMENTS
Billings Clinic argues that: (1) although Marshall provided a list

of health care providers that she could recall seeing in the past 20
years, she did not modify or withdraw her objections to Interrogatory
No. 10 leaving Billings Clinic unable to determine whether her

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responses are complete, Billings Clinic’s Br. in Support (ECF 24) at 3-4;
(2) Marshall did not authorize disclosure of medical records from health
care providers that she believes do not possess discoverable
information, impermissibly refusing to respond to discovery requests
that she unilaterally believes seek information or documents not
relevant to any claim or defense, id. at 4-6; (3) Marshall cannot
demonstrate that the discovery requests seek irrelevant information
because she alleges injury not only to her wrist, hand, and arm, but
also “serious and permanent injury, disability, pain and suffering,
emotional distress, disfigurement, consistent pain, loss of functional
mobility and substantial limitation or foreclosure of leisure activities[,]”
making her medical history relevant, id. at 5-6; and (4) Marshall’s
right-to-privacy objection is inapplicable because there is no state actor
in this case, Marshall has put her medical condition at issue, and
Montana law permits Billings Clinic to have Marshall’s medical history
to determine whether her other medical conditions and treatment could
provide an alternative explanation for her alleged injuries. Id. at 6-11.
In response, Marshall argues that Billings Clinic’s discovery
requests seeking her medical history are unreasonable. Specifically,

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she argues that: (1) Billings Clinic has similarly objected to some of
Marshall’s discovery requests on the same basis upon which Marshall
relies here – that the information sought is not reasonably calculated to
lead to the discovery of admissible evidence regarding a claim or
defense, Marshall’s Resp. Br. (ECF 30) at 7; (2) Billings Clinic’s request
for the identification of medical providers for the past 20 years and
medical treatment records for the past 15 years is unprecedented in
Marshall’s counsel’s experience handling cases in the Northwest United
States, id. at 7-12 (citing ECF 30-1 – 30-10); (3) even though
Interrogatory No. 10's request for 20 years of medical history is
“burdensome and unnecessary,” Marshall answered it fully, initially
not including records that were “unrelated to the injury claimed in this
lawsuit[,]” but subsequently supplementing the response without
waiving “any right to privacy or admit[ting] relevance[ ]” by providing
the entire 20-year history fully and completely, id. at 12-18; (4) the 15
years of medical records sought in RFP No. 1 is unreasonable under
this case’s facts because: (a) Billings Clinic has relied on the same
right-to-privacy objection in responding to Marshall’s discovery
requests that Marshall now relies upon in responding to Billings

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Clinic’s discovery requests, id. at 18-20; (b) RFP No. 1 seeks
information that is not reasonably calculated to lead to the discovery of
admissible evidence because it is not related to any claims or defenses
in this lawsuit, id. at 20-31; and (c) it seeks unrelated and irrelevant
medical information in violation of Marshall’s Art. II, § 10 right to
privacy, id.; and (5) if the Court grants Billings Clinic’s motion to
compel, the Court also should conclude that Marshall’s “nondisclosure,
response, and objections” were “substantially justified” and that “other
circumstances make an award of expenses unjust,” id. at 31-34.
In reply, Billings Clinic argues that: (1) Marshall’s medical
history is relevant not only to the injuries and damages she is claiming
in this action, but also to her allegation that Billings Clinic failed to
gather an adequate medical history, which she alleges would have
revealed prior problems with IVs inserted into her right wrist and a
lack of problems with IVs inserted into her elbow, Billings Clinic’s
Reply Br. (ECF 34) at 2-4; (2) Marshall is not permitted to provide only
those records that she unilaterally deems relevant and withhold those
that she thinks are not relevant without specifically identifying
withheld information and the bases for withholding discoverable

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information, id. at 4-5; (3) if Marshall has fully responded to
Interrogatory No. 10 as she now asserts, “she should supplement her
discovery responses and explain specifically the basis for her
withholding of prior medical records or fail[ure] to identify all her prior
health care providers rather than standing on her objections[,]” and
leaving Billings Clinic “with discovery responses . . . which objected to
providing a complete medical history, and indicated only that ‘relevant’
records had been provided[,]” id. at 5-6; (4) the Court should ignore
Marshall’s attempt to justify her position on the discovery issues here
by referencing Billings Clinic’s discovery responses to her discovery
requests because those responses are not presently before the Court, id.
at 6-7; (5) the Court should compel Marshall to provide complete
discovery responses concerning records from those medical providers
that Billings Clinic has been able to identify from “the incomplete list of
health care providers Marshall provided and a detailed review of the
medical records Billings Clinic has been able to obtain,” id. at 7-9
(listing providers).
III. LEGAL STANDARD FOR MOTIONS TO COMPEL
Courts “have broad discretion to manage discovery and to control

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the course of litigation[.]” Hunt v. County of Orange, 672 F.3d 606, 616
(9th Cir. 2012) (quoting Avila v. Willits Envtl. Remediation Trust, 633
F.3d 828, 833 (9th Cir. 2011)). Generally, litigants in a civil action are
entitled to “discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense[.]” Fed. R. Civ. P. 26(b)(1).
“District courts have broad discretion in determining relevancy for
discovery purposes.” Surfvivor Media, Inc. v. Survivor Productions, 406
F.3d 625, 635 (9th Cir. 2005) (citing Hallett v. Morgan, 296 F.3d 732,
751 (9th Cir. 2002)).
A party may move to compel discovery responses when the party
disagrees with the objections interposed by the other party and wants
to compel more complete answers. Ivins v. Corrections Corp. of
America, 291 F.R.D. 517, 519 (D. Mont. 2013) (citing Moreno Rivera v.
DHL Global Forwarding, 272 F.R.D. 50 (D. P.R. 2011)). If the
responding party asserts no privilege claim, the Court can compel the
production of any relevant evidence. Id. (citing Fed. R. Civ. P. 26(b)(1)).
On the other hand, “[t]he Court can limit discovery requests if it finds
that ‘the burden or expense of the proposed discovery outweighs its
likely benefit, taking into account the needs of the case, the amount in

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controversy, the parties’ resources, the importance of the issues at
stake in the litigation, and the importance of the proposed discovery in
resolving the issues.” Id. (quoting Fed. R. Civ. P. 26(b)(2)(C)(iii)).
The party seeking to compel discovery bears the burden of
showing that the discovery sought is relevant, while the party resisting
discovery bears of the burden of showing that the discovery should not
be allowed. See Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal.
1995); see also DIRECT TV, Inc. v. Trone, 209 F.R.D.455, 458 (C.D. Cal.
2002) (the party resisting discovery bears “the burden of clarifying,
explaining, and supporting its objections”).
IV.

DISCUSSION
Applying the foregoing standard to the case at hand, the Court

concludes that the information sought in both Interrogatory No. 10 and
RFP No. 1 is relevant both to Marshall’s claims and to Billings Clinic’s
defenses. Marshall has not asserted any privilege over any responsive
information, and has directly placed her medical condition at issue by
claiming injuries that go well beyond her wrist, hand, and arm.
As noted, Marshall’s claim for compensatory damages is premised
on her contention that Billings Clinic caused her to suffer the following:

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(1) “permanent personal injuries and disabilities in the past, and . . . in
the future for the rest of her life, as well as special and general
damages[,]” ECF 16 at ¶ 112; (2) “pain and suffering, emotional distress
and disfigurement[,]” id. at ¶ 113; (3) limitations upon or foreclosure of
“leisure activities, including, but not limited to, gardening, painting,
and flower arranging” because of “the continuing effects of the
infectious process[,]” id.; (4) “consistent[] pain[,]” id. at ¶ 114; and (5)
“lost functional mobility in her right (dominant) hand, wrist and arm[,]”
id. Marshall’s medical records that predate the IV insertion and
subsequent treatment involving Billings Clinic are relevant respecting
any determination about the extent of her claimed injuries in this
action and whether those injuries were in fact caused by Billings Clinic
or whether such injuries, or some of them, may be the result of another
cause or pre-existing condition. See Keller v. National Farmers Union
Property & Cas. Co., 2013 WL 27731, at *2 (D. Mont., Jan. 2, 2013).
In addition, Marshall also asserts that Billings Clinic negligently
failed to “conduct an adequate preoperative clinical examination of
[Marshall], including, but not limited to, obtaining adequate patient
history[ ]” including “prior problems, if any, in the use of IVs and IV

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insertion sites[.]” ECF 16 at ¶¶ 84.b., c., and bb. Marshall’s medical
history respecting such “prior problems” is relevant both to Marshall’s
claim and to possible defenses Billings Clinic may assert in response to
such allegations.
The Court is not persuaded by Marshall’s arguments in response
to Billings Clinic’s motion to compel. First, contrary to Marshall’s
suggestion, Billings Clinic’s responses to Marshall’s discovery requests
are not relevant to the Court’s consideration of Billings Clinic’s motion
to compel now at issue. Any issues Marshall may have with Billings
Clinic’s responses to her discovery are not now properly before the
Court. If Marshall believes that Billings Clinic has failed to disclose
information that she has sought through her discovery requests, she
may seek relief through an appropriate Rule 37(a) motion.
Second, counsel’s prior litigation experience also is not relevant to
the Court’s consideration of the pending motion. Instead, the Court
must examine the controlling authorities and apply the applicable
standards in light of the circumstances of this case. The Court
understands counsel’s concern that some defendants overreach in
discovery and seek documents to which they are not entitled and that

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are outside the scope of discovery. The Court disagrees, however, that
this is such a case. Also, no party may unilaterally decide what is
relevant and produce only those documents she chooses to produce.
Third, Marshall’s position that she now has fully and completely
responded to Interrogatory No. 10 is confusing. As noted, she initially
responded that she had answered it fully but conceded that she did not
include information that she deemed was “unrelated to the injury
claimed in this lawsuit.” Although she subsequently supplemented her
response, she did so without waiving “any right to privacy or
admit[ting] relevance.” And, she continues to maintain that the
interrogatory’s request for information is “burdensome and
unnecessary[,]” although she now argues that she has answered
Interrogatory No. 10 fully. ECF 30 at 12.
This Court, more than a decade ago, expressly disapproved of the
practice of objecting and then responding to discovery requests. In
Simonsen v. Allstate Insur. Co., 31 Mont. Fed. Rpts. 154, 157 (D. Mont.
2003), Judge Anderson explained:
Answers to discovery requests must be complete, clear, and
responsive. An evasive or incomplete response is treated as a
failure to respond. Rule 37(a)(3), Fed. R. Civ. P. The Court finds
Allstate’s practice of objecting and then responding to be
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confusing and evasive. It therefore deems both the original and
the supplemental objections waived.
Recent amendments to the Federal Rules of Civil Procedure are
consistent with this holding. See Fed. R. Civ. P. 34(b)(2)(C) (effective
December 1, 2015) (“An objection must state whether any responsive
materials are being withheld on the basis of that objection”).
Although Marshall now attempts to argue that correspondence
between the parties respecting Marshall’s responses to Interrogatory
No. 10 shows that it is no longer part of the instant dispute, the Court
is not persuaded. It remains unclear to the Court whether Marshall
continues to withhold information responsive to Interrogatory No. 10
based on relevance or on some other objection.
Fourth, for reasons already explained above, the Court is not
persuaded by Marshall’s argument that RFP No. 1 is unreasonable
because of Billings Clinic’s responses to Marshall’s discovery requests
or because the information RFP No. 1 seeks lacks relevance. And, the
Court also is not persuaded by Marshall’s argument that RFP No. 1
seeks information protected by her right to privacy under Art. II, § 10,
of Montana’s Constitution. As this Court noted in Ivins, supra:
[T]he Montana Supreme Court has clearly established that
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“the privacy section of the Montana Constitution applies to
state action only.” Weinheimer v. Omniflight Helicopters,
Inc., CV 09-06-M-DWM (Order filed Sept. 9, 2009) (ECF 20 )
(citing State v. Malkuch, 336 Mont. 219, 154 P.3d 558, 560
(2007) and State v. Long, 216 Mont. 65, 700 P.2d 153 (1985))
(emphasis in original). Thus, “there is no constitutional
issue as to disclosure of records between private parties[ ]”
absent a claim of privilege protection over the information.
Id.
Ivins, 291 F.R.D. at 522-23.
Here, Billings Clinic is not a state actor. Rather, it is a defendant
in a civil action in which it has been accused of causing physical and
mental injury to Marshall. As noted above, Marshall has put her
medical condition directly at issue in this case based both on the factual
allegations that she asserts and on the nature and scope of damages
that she claims. Under the foregoing authority, she cannot now rely on
individual privacy rights to withhold information relevant either to her
claims or to Billings Clinic’s defenses.
Having so concluded, the Court is sensitive to Marshall’s interest
in limiting disclosure of her medical history and records. Thus, under
Rule 26(c), Fed. R. Civ. P., the Court will direct that information
disclosed in response to the discovery requests at issue here be handled
in accordance with an appropriate protective order which the parties

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may jointly submit to the Court for approval.
Finally, Billings Clinic has requested an award of fees incurred in
bringing the instant motion. Rule 37(a)(5) mandates that the Court
“must, after giving an opportunity to be heard, require the party …
whose conduct necessitated the motion, the party or attorney advising
that conduct, or both to pay the movant’s reasonable expenses incurred
in making the motion, including attorney’s fees.” Marshall relies on an
exception to the mandatory imposition of fees which provides that the
Court must not award payment of fees if “the opposing party’s
nondisclosure, response, or objection was substantially justified[.]” Fed.
R. Civ. P. 37(a)(5)(A)(iii).
Here, for the reasons discussed above, the Court cannot conclude
that Marshall’s nondisclosure, responses, or objections were
substantially justified. As noted, the information sought is relevant
both to Marshall’s claims and to Billings Clinic’s defenses thereto.
Marshall does not enjoy a constitutional right to privacy over the
information without state action. She placed her medical condition at
issue by bringing this lawsuit. And her responses interlaced with
persistent and continuing objections are sufficiently confusing that
neither the Court nor Billings Clinic is able to ascertain whether she
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has, in fact, fully answered the discovery requests. Accordingly, the
Court will allow Defendants to file a motion claiming their reasonable
fees and costs incurred in presenting this motion to compel.
V.

CONCLUSION
Based on the foregoing, IT IS ORDERED that:
(1) Billings Clinic’s motion to compel (ECF 23) is GRANTED. By

December 15, 2015, Marshall must fully answer Interrogatory No. 10
and produce all responsive documents to RFP No. 1; and
(2) By December 8, 2015, the parties must work cooperatively to
file a joint proposed protective order or, if they are unable to agree,
each party must by that date file a proposed protective order limiting
disclosure of Marshall’s medical records.
IT IS FURTHER ORDERED that by December 10, 2015,
Billings Clinic may move for the award of reasonable fees and costs
incurred in making its motion.
DATED this 25th day of November, 2015.

/s/ Carolyn S. Ostby
United States Magistrate Judge

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