Garcia Hernandez v. VanVeen

Filing 61

ORDER Denying 20 Motion to Compel. IT IS FURTHER ORDERED that Defendants shall have until May 21, 2015, to file a motion for fees incurred for having to oppose this motion. Plaintiff's response is due on or before June 1, 2015. Signed by Magistrate Judge Carl W. Hoffman on 5/7/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARIA GARCIA HERNANDEZ,

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Plaintiffs,
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vs.
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CASE PETER VANVEEN, et al.,
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Defendants.
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__________________________________________)

Case No. 2:14-cv-01493-JCM-CWH
ORDER

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This matter is before the Court on Plaintiff’s Emergency Motion to Compel Discovery
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Responses (#20), filed January 14, 2015; Defendants’ Response (#29), filed February 2, 2015; and
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Plaintiff’s Reply (#33), filed February 3, 2015.
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BACKGROUND
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This matter was removed on September 15, 2014, based on diversity under 28 U.S.C. §
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1332. (#1). Plaintiff seeks damages for injuries sustained when involved in an automobile
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accident allegedly caused by the negligence of Defendant Case Peter Vanveen. Plaintiff alleges
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causes of action for (1) negligence, (2) negligence per se, (3) negligent entrustment, (4) negligent
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hiring, and (5) negligent training/supervision.
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Plaintiff seeks an order compelling responses to discovery requests. It is Plaintiff’s
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contention that Defendant VanVeen failed to submit to an alcohol and controlled substances test as
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mandated by federal regulation. It appears that, after reviewing a response to a request for
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production, Plaintiff demanded that Defendant VanVeen execute an authorization to obtain a report
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from the Nevada Prescription Monitoring Program, but that request was refused. Plaintiff does not
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identify any specific discovery wherein a request to execute an authorization was made, relying
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solely on the email demand. See Pl’s Mot. (#20) at 2:23-26; see also Ex. 7 attached to Mot. (#20).
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Additionally, Plaintiff notes that she “propounded written discovery seeking identification of

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medical providers and production of medical records[,]” but has been unable to get Defendants to

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agree to the relevance of the medical information or execute multiple authorization to obtain

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medical records. Plaintiff’s counsel indicates that he twice attempted to resolve the alleged

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discovery impasse with opposing counsel absent court intervention, but to no avail. Characterizing

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it as a “fishing expedition,” Defendants request the motion to compel be denied because (1) the

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demand to execute an authorization to obtain a report from Nevada Prescription Monitoring

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Program was not properly made, and (2) the information sought is not relevant.

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DISCUSSION
Plaintiff’s motion is captioned as a motion to compel discovery responses. Unfortunately,

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the specific discovery requests and responses are not set forth. See Local Rule 26-7(a) (“All

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motions to compel discovery or for protective order shall set forth in full the text of the discovery

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originally sought and the response thereto, if any.”). Plaintiff has attached most of her discovery

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requests as exhibits, but does not point to any specific discovery request that is deficient, instead

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broadly proclaiming entitlement to discovery because it is relevant under Fed. R. Civ. P. 26(b)(1).

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Motions to compel discovery responses are governed by Rule 37, not Rule 26(b)(1) (which

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provides the general scope of discovery). Rule 37 provides that “[o]n notice to other parties and all

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affected persons, a party may move for an order compelling disclosure or discovery.” See Fed. R.

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Civ. P. 37(a)(1). It specifically permits “[a] party seeking discovery” to “move for an order

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compelling an answer, designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). Such a

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motion may be made (1) for failure of a deponent to answer a question asked under Rule 30 or 31;

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(2) failure of a corporation or other entity to make a designation under Rule 30(b)(6) or 31(a)(4);

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(3) failure of a party to answer a Rule 33 interrogatory; or (4) failure to respond to Rule 34 request.

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Fed. R. Civ. P. 37(a)(3)(B)(i)-(iv).

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Plaintiff’s request that the Defendant VanVeen execute an authorization permitting Plaintiff

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to obtain a report from the Nevada Prescription Monitoring Program is not the subject of a

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specifically identified, formal discovery request . Plaintiff concedes that the request was made in

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an email between counsel. To be sure, the Court reviewed the voluminous formal discovery

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attached, but cannot find where the request was made in a manner consistent with the civil rules.
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The only request appears to be the request made via email. See Exhibit 7 to (#20). The Court is

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unaware of any authority for the proposition that it may compel compliance with a discovery

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request made via email. To the extent such authority exists, it is incumbent on the party making

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such a request to provide it. Moreover, to the extent Plaintiff seeks to compel Defendant VanVeen

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to sign authorizations for either the prescription report or medical records, such a request is not

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appropriate. See Powell v. Texvans, Inc., 2010 WL 4791507 (D. Nev.) (citing Clark v. Vega

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Wholesale, Inc., 181 F.R.D. 470 (D. Nev. 1988)); see also Lopez v. Cardenas Markets, Inc., 2011

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WL 4738111 (D. Nev.) (a party may not be compelled to execute an authorization for release of his

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medical records from third party providers).

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Federal Rule of Civil Procedure 37(a)(5)(B) provides that a court “must, after giving an

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opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party .

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. . who opposed the motion its reasonable expenses incurred in opposing the motion, including

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attorney’s fees.” Such an award is not appropriate if “the motion was substantially justified or

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other circumstances make an award of expenses unjust.” In light of the foregoing, Defendants are

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invited to submit a motion for reasonable expenses, including attorney’s fees, for having to oppose

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this motion.

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Based on the foregoing and good cause appearing,

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IT IS HEREBY ORDERED that Plaintiff’s Emergency Motion to Compel Discovery

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Responses (#20) is denied.
IT IS FURTHER ORDERED that Defendants shall have until May 21, 2015, to file a

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motion for fees incurred for having to oppose this motion. Plaintiff’s response, including any

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argument that this motion was substantially justified or an award of expenses would be unjust, is

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due on or before June 1, 2015.

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DATED: May 7, 2015.

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______________________________________
C.W. Hoffman, Jr.
United States Magistrate Judge

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