Dye v. BNSF Railway Company
Filing
32
ORDER granting 24 Motion to Compel. On or before September 1, 2015, BNSF may move for the award of reasonable fees and costs incurred in making the motion. Signed by Magistrate Judge Carolyn S Ostby on 8/18/2015. (JDR, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
S. Dye,
CV-14-150-BLG-CSO
Plaintiff,
ORDER
vs.
BNSF RAILWAY COMPANY,
Defendant.
Plaintiff S. Dye (“Dye”) brings this action against Defendant
BNSF Railway Company (“BNSF”) alleging: (1) Quid Pro Quo Sexual
Harassment; (2) Negligent Supervision; (3) Negligent Infliction of
Emotional Distress; and (4) Defamation. ECF 4.
Now pending is BNSF’s Motion to Compel Discovery (ECF 24).
Having considered the parties’ arguments and submissions, the Court
will grant the motion for the reasons set forth below.
I.
PERTINENT BACKGROUND
BNSF represents that it served its first set of discovery requests
on Dye on March 5, 2015. ECF 25 at 4. 1 Request for Production No. 5
BNSF did not comply with Local Rule 26.2(b), which requires that “when any motion is filed
relating to discovery, the party filing the motion must attach as exhibits to the motion all of the
1
-1-
asked Plaintiff to “[p]roduce a copy of all medical records, including
psychological and psychiatric records, concerning any treatment you
have received for any condition or issue in any way relating to the
allegations set forth in your Complaint.” ECF 25-4. Dye eventually
responded with 19 pages of medical records dated between February 18,
2013 and May 17, 2013. ECF 25-5. On May 21, June 5, June 16, and
June 23, 2015, BNSF requested Dye to supplement her response by
producing the entirety of her psychological treatment records. ECF 251. Although Dye’s counsel eventually represented that the records
would be forwarded to BNSF “upon receipt” (ECF 25-1 at 7), Dye has
not provided the requested information. ECF 25 at 3. 2
II.
LEGAL STANDARD
A party may move to compel discovery responses when the party
disagrees with the objections interposed by the other party or wants to
compel more complete answers. If no claim of privilege applies, the
production of evidence may be compelled regarding any matter that is
“relevant to any party’s claim or defense....” Fed. R. Civ. P. 26(b)(1).
documents relevant to the motion….” (Emphasis added.) Compliance with this rule promotes clarity
and efficient review of discovery motions and is appreciated by the Court.
2 BNSF’s motion also argued that Dye should be compelled to produce her time books and journals,
but BNSF has withdrawn this portion of its motion. ECF 29 at 7.
-2-
The Court has broad discretion to manage discovery. Hunt v. County of
Orange, 672 F.3d 606, 616 (9th Cir. 2012) (citation omitted); Jeff D. v.
Otter, 643 F.3d 278, 289 (9th Cir. 2011) (citing Little v. City of Seattle,
863 F.2d 681, 685 (9th Cir. 1988)).
A party may request the production of documents that are “in the
responding party’s possession, custody, or control.” Fed. R. Civ. P.
34(a)(1). To be deemed within a party’s possession, custody, or control,
the party needs actual possession, custody, or control or the party must
have the legal right to obtain the documents on demand. United States
v. Int’l Union of Petroleum and Indust. Workers, AFL-CIO, 870 F.2d
1450, 1452 (9th Cir. 1989).
The Federal Rules of Civil Procedure and this Court’s Local Rules
require that objections be stated with specificity and a statement of
reasons. See Fed. R. Civ. P. 33(b)(4); 34(b)(2)(B) and (C); Local Rule
26.3(a)(2)-(3). Stating a bare objection is not sufficient to preserve the
objection. See Covad Communications Co. v. Revonet, Inc., 258 F.R.D.
17, 19 (D. D.C. 2009) (answers to discovery must be “true, explicit,
responsive, complete, and candid”).
-3-
The burden lies on the objecting party to show that a discovery
request is improper. Where a party’s objections are themselves vague
and impermissibly overbroad, and no specifics are given, the objecting
party fails to carry its burden. See McLeod, Alexander, Powel & Apffel,
P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (holding that the
party resisting discovery must show specifically how each discovery
request is not relevant or how each question is overly broad,
burdensome, or oppressive); Contratto v. Ethicon, Inc., 227 F.R.D. 304,
308-09 (N.D. Cal. 2005) (finding declaration of counsel insufficient to
warrant protection of documents). Even when the required showing is
not made, however, the Court still has the obligation to review the
discovery requests to ensure that they are non-frivolous requests.
Moreno Rivera v. DHA Global Forwarding, 272 F.R.D. 50, 57 (D. P.R.
2011).
III. ANALYSIS
BNSF argues that Dye’s previous treatment records and
subsequent treatment records are relevant and discoverable based on
her claim for substantial emotional distress damages. ECF 25 at 9–10.
BNSF argues that Dye placed her psychological state at issue and that
-4-
she has not asserted any privilege, so the motion to compel discovery
should be granted. Id.
Dye’s only response to BNSF’s motion simply states: “Plaintiff
does not have the requested Records, prior to February 18, 2013, in her
possession, and is therefore not in a position to make the requested
documents available to Defendant for inspection in conformity with
Rule 34(b)(2)(B).”
ECF 26 at 2. Dye does not argue that the
documents sought are not discoverable.
BNSF replies that Dye has the right and ability to obtain her
medical records even if they are not in her immediate physical
possession. ECF 29 at 2. And even if this new objection were valid,
BNSF argues, it should be denied because Dye waived the objection by
not promptly asserting it in her response to the request for production.
ECF 29 at 3. BNSF notes that it sent Dye’s counsel several releases for
the records and offered to obtain the records itself and to provide Dye
with copies of any and all information received. ECF 29 at 6. BNSF
received no response to this offer. Id.
The Court agrees with BNSF that the objection to the request has
been waived. See Fed. R. Civ. P. 33(b)(4) (“Any ground not stated in a
-5-
timely objection is waived unless the court, for good cause, excuses the
failure.”).
The Court also agrees that the records are within Dye’s possession
and control for the purposes of Federal Rule of Civil Procedure 34(a)(1).
Though Dye may not have the records in her physical control, she has
the legal right to obtain those records. Dye has “an affirmative duty to
seek that information reasonably available[,]” and must make a
reasonable inquiry to determine whether the responsive documents
exist. Rogers v. Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012). And not
only could Dye request them, but she could also sign the waivers to
allow BNSF to request them. The Court thus concludes that Dye has
possession and control of the records and must produce them in
response to BNSF’s Request for Production No. 5.
IV.
FEES and EXPENSES INCURRED
Fed. R. Civ. P 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.” Accordingly, the Court will allow
-6-
BNSF to file a motion claiming its reasonable fees and costs incurred in
presenting this motion to compel production.
IV.
CONCLUSION
Based on the foregoing, IT IS ORDERED that:
(1) BNSF’s Motion to Compel (ECF 24) is GRANTED, and
(2) On or before September 1, 2015, BNSF may move for the
award of reasonable fees and costs incurred in making the motion.
DATED this 18th day of August, 2015.
/s/ Carolyn S. Ostby
United States Magistrate Judge
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?