Montin v. Gibson et al
MEMORANDUM AND ORDER - Plaintiff's Motion for Judicial Notice (Filing No. 73 ), construed as a Motion to Supplement, is granted. Plaintiff's Motion to Comply (Filing No. 60 ), construed as a Motion to Compel, is granted as stated in this M emorandum and Order. Defendants shall have until October 7, 2011, to respond to requests 1, 2, 4, 5, 6 and 8 of plaintiff's Request of Records and Other Materials. Ordered by Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN MAXWELL MONTIN,
BILL GIBSON, CEO, DR. Y.
SCOTT MOORE; DR. RAJEEN
CHATURVEDI; and MARC
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s Motion
to Comply, construed as a Motion to Compel (Filing No. 60).
his motion, plaintiff asks the court to order defendants to
produce several records that he believes are material to his
In response, defendants have filed a brief in
Opposition and an Index of Evidence in Support (Filing Nos. 68
Plaintiff has also filed a Motion for Judicial Notice
along with an Index of Evidence in Support (Filing Nos. 73 and
The Court will address plaintiff’s Motion for Judicial
Notice and then his Motion to Compel.
Motion for Judicial Notice
In his Motion for Judicial Notice, plaintiff asks the
Court to take notice of the corresponding Index of Evidence
(Filing No. 74) because it supports his Motion to Compel (Filing
In light of this request, the Court will liberally
construe plaintiff’s Motion for Judicial Notice as a Motion to
Supplement his Motion to Compel.
The Court will grant this
Motion and consider his Index of Evidence (Filing No. 74) in
exploring his Motion to Compel.
Motion to Compel
In his Motion to Compel, plaintiff asks the Court to
enter an order compelling defendants to produce the following
All “Doctor Notes” of Dr. Y.
Scott Moore from his employment at
the Lincoln Regional Center in 1998
to date of June 2011 pertaining to
the plaintiff’s treatment.
All “Doctor Notes” of Dr.
Louis Martin from his employment at
the Lincoln Regional Center in or
about 1999 to the end of his
service pertaining to the
All “Doctor Notes” of Dr.
Rajeen Chaturvedi from his
appointment as primary caregiver to
the plaintiff pertaining to
treatment under his direction to
date, June 2011.
All “Doctor Notes” of Dr.
Klaus Hartmann from January 2007 to
date of June 2011 pertaining to the
evaluation and treatment of the
plaintiff for the purposes of
recommendations to the State
All “Clinical Team” minutes
from the time of Dr. Y. Scott
Moore’s appointment as Clinical
Director of the Lincoln Regional
Center sometime about January 2000
to this date of June 2011 that
pertain to the treatment of the
plaintiff. [That such records may
be redacted to protect the medical
information of other patients].
All “Master Treatment Plans”
January 2007 to this date of
2011 pertaining to the medical
of the plaintiff.
All “Annual Reports” submitted
for review before the State
District Court generated by the
Lincoln Regional Center from August
1993 to date of June 2011,
certified as authentic and complete
in number and content.
The “Competency Evaluation and
Report” performed and generated by
the defendant Dr. Y. Scott Moore
dated April 11, 1993, used later by
the Lincoln Regional Center to
defer diagnosis from August 1993 to
or about January 1997.
All patient grievances and the
responses thereof filed by
plaintiff at the Lincoln Regional
Center since 1998.
10) Certified copy of “Axis sheet”
demonstrating present diagnostic
history of the plaintiff since 1993
(Filing No. 60 at CM/ECF pp. 1-2.)
Defendants assert that these
requests are irrelevant, overly broad and unduly burdensome
(Filing No. 68).
Specifically, defendants state that plaintiff’s
requests do not have a connection to the issue in this case and
would require hand searches taking at least 48 staff hours.
Nevertheless, defendants have attempted to meet plaintiff
halfway by submitting a full response to request number 7 and a
partial response to request number 6, agreeing to produce the
documents in request number 3, providing a computer summary
report to comply with request number 9, and informing plaintiff
that the information sought in request number 10 was included in
defendants’ responses to his second set of requests for
(Id.; Filing No. 69-1, Attach. 1 at CM/ECF pp. 1-3.)
“Mutual knowledge of all the relevant facts gathered by
both parties is essential to proper litigation.”
Taylor, 329 U.S. 495, 507 (1947).
As a starting point, parties
may discover any relevant, unprivileged information that is
admissible at trial or is reasonably calculated to lead to
See Fed. R. Civ. P. 26(b)(1).
obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense --including the
existence, description, nature, custody, condition, and location
of any documents . . . .”
Relevancy is to be broadly
construed for discovery issues and encompasses “any matter that
could bear on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).
However, the proponent of discovery must make “[s]ome threshold
showing of relevance . . . before parties are required to open
wide the doors of discovery and to produce a variety of
information which does not reasonably bear upon the issues in the
Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir.
“Determinations of relevance in discovery rulings are
left to the sound discretion of the trial court and will not be
reversed absent an abuse of discretion.”
Hayden v. Bracy, 744
F.2d 1338, 1342 (8th Cir. 1984).
“To assess relevance in a given case, the court must
view the matter in light of the specific claims and defenses
asserted by the parties.”
Fletcher v. Atex, Inc., 156 F.R.D. 45,
48 (S.D.N.Y. 1994) (citations omitted).
Here, plaintiff’s claim
is that defendants deprived him of personal property because he
refused to participate in “unnecessary” treatment groups1 (Filing
No. 13 at CM/ECF p. 8).
Evidence related to plaintiff’s
participation, or lack of participation, in treatment groups may
be contained in doctor’s notes and clinical team minutes
pertaining to plaintiff’s treatment.
Stated another way, these
documents could bear on, or could lead to other information that
could bear on, plaintiff’s claim.
Moreover, the Court does not
agree that plaintiff’s request is overly broad or unduly
Plaintiff’s Motion to Compel will be granted with
respect to requests 1, 2, 4, 5, 6 and 8 in plaintiff’s Request of
Records and Other Materials.
In contrast, defendants assert that plaintiff’s personal
property was removed because of a facility-wide policy change at
the Lincoln Regional Center (Filing No. 60 at CM/ECF pp. 1-2).
With regard to motions to compel discovery, Federal
Rule of Civil Procedure 37(a)(5)(A) provides that:
If the motion is granted -- or if
the disclosure or requested
discovery is provided after the
motion was filed -- the court must,
after giving an opportunity to be
heard, require the party or
deponent 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.
But the court must not order this
(i) the movant filed the motion
before attempting in good faith to
obtain the disclosure or discovery
without court action;
(ii) the opposing party’s
nondisclosure, response, or
objection was substantially
(iii) other circumstances make
an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5).
Although defendants failed to provide
adequate discovery responses, causing plaintiff to file a Motion
to Compel, the Court finds that defendants’ objections were
substantially justified under the circumstances.2
See Fed. R.
Civ. P. 37(a)(5)(A)(ii).
IT IS ORDERED:
Plaintiff’s Motion for Judicial Notice (Filing No.
73), construed as a Motion to Supplement, is granted.
Plaintiff’s Motion to Comply (Filing No. 60),
construed as a Motion to Compel, is granted as stated in this
Memorandum and Order.
Defendants shall have until October 7, 2011, to
respond to requests 1, 2, 4, 5, 6 and 8 of plaintiff’s Request of
Records and Other Materials.
DATED this 21st day of September, 2011.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
The Court notes that because a pro se litigant’s time
working on discovery does not constitute “expenses incurred”
under Rule 37, defendants would not be required to show cause why
plaintiff is not entitled to attorney’s fees. See, e.g.,
Pickholtz v. Rainbow Techs., Inc., 284 F.3d 1365, 1374-75 (Fed.
Cir. 2002) (concluding that Rule 37 does not allow a pro se
litigant to receive fees for his own time because “one cannot
‘incur’ fees payable to oneself, fees that one is not obliged to
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