Kim v. Southwestco Wireless

Filing 38

ORDER that 32 Motion to Compel is GRANTED and 32 Motion for Sanctions is GRANTED. Signed by Magistrate Judge Nancy J. Koppe on 3/21/2018. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
9
10
11
12
13
14

SOO YOUNG KIM,

)
)
Plaintiff(s),
)
)
v.
)
)
SOUTHWESTCO WIRELESS, INC.,
)
)
)
Defendant(s).
)
__________________________________________)

Case No. 2:17-cv-00706-APG-NJK
ORDER
(Docket No. 32)

15

Pending before the Court is Defendant’s motion to compel and for sanctions. Docket No. 32.

16

Plaintiff filed a response in opposition, and Defendant filed a reply. Docket Nos. 33-34. The Court finds

17

the motion properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below,

18

the motion to compel is GRANTED and the motion for sanctions is GRANTED.

19

I.

STANDARDS

20

“The discovery process in theory should be cooperative and largely unsupervised by the district

21

court.” Sali v. Corona Reg. Med. Ctr., ___ F.3d ____, 2018 WL 1371564, at *1 (9th Cir. Mar. 19, 2018).

22

When a party fails to provide requested discovery and when meet-and-confer efforts prove unsuccessful,

23

however, the requesting party may move to compel that discovery. Fed. R. Civ. P. 37(a). Broad discretion

24

is vested in the trial court to permit or deny discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.

25

2002). Parties are permitted to seek discovery of any nonprivileged matter that is relevant and proportional

26

to the needs of the case. Fed. R. Civ. P. 26(b)(1). The party seeking to avoid discovery bears the burden

27

of explaining why discovery should be denied. See U.S. E.E.O.C. v. Caesars Entertainment, 237 F.R.D.

28

1

428, 432 (D. Nev. 2006); see also Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469 (N.D. Tex.

2

2015) (addressing burdens following 2015 amendments to the discovery rules).

3

II.

ANALYSIS

4
5

As the parties are familiar with the background of this case, the Court will not recite it herein. The
pending motion raises several discovery disputes, which the Court will address in turn below.

6

A.

7

Defendant seeks an order compelling execution of a Medicare release. Docket No. 32 at 9-10.1

8

Roughly nine months before the motion to compel was filed, Plaintiff responded to the discovery request

9

for a Medicare release by agreeing to execute one. Docket No. 32-2 at 23 (response signed May 8, 2017,

10

indicating that “Plaintiff is in the process of gathering the requested signed authorization and will provide

11

it once it has been executed”). Nonetheless, Plaintiff now argues that her Medicare information is irrelevant

12

and overly broad. Docket No. 33 at 3. The time for raising such an objection was in responding to the

13

discovery response, but Plaintiff instead agreed to execute the release. Plaintiff has provided no reason for

14

the Court to allow her to change course at this late date. Cf. Richmark Corp. v. Timber Falling Consultants,

15

959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object to discovery requests

16

within the time required constitutes waiver of any objection”).

17
18

Medicare Discovery

Accordingly, this aspect of the motion to compel will be granted. Plaintiff shall provide Defendant
with an executed Medicare release within 14 days of the issuance of this order.

19

B.

Prescription Records

20

Defendant next seeks an order for the disclosure of Plaintiff’s prescription records. Docket No. 32

21

at 11-12. Plaintiff does not oppose this request, but asserts that her counsel was never provided with a draft

22

stipulation. Docket No. 33 at 3. That assertion is belied by the record, as a draft stipulation was emailed

23

to Plaintiff’s counsel several times. Docket Nos. 34-1, 34-2, 34-3; see also Docket No. 34 at 9. Having

24

provided no legitimate reason to deny this request, this aspect of the motion to compel will be granted.

25
26
27
28

1

Defendant asks alternatively for Plaintiff to provide a Medicare printout. See Docket No. 32 at 911. It does not appear the Court needs to opine on that issue given that it is compelling the execution of a
Medicare release.
2

1

IT IS HEREBY ORDERED that, pursuant to NRS 453.164(8)(b), the Prescription Monitoring

2

Program shall release Plaintiff Soo Young Kim’s records to defense counsel LEWIS BRISBOIS

3

BISGAARD & SMITH LLP. No further authorization from patient Soo Young Kim is required to release

4

the records.

5

C.

6

Defendant next seeks an order compelling records regarding a subsequent alleged slip-and-fall at

7

a Donna Karan store (and lawsuit stemming therefrom) and from a subsequent car accident. Docket No.

8

32 at 12-13. Plaintiff’s response does not address this aspect of the motion to compel, other than asserting

9

that some records related to the alleged incident at Donna Karan were provided concurrently with the filing

10

of the responsive brief. Docket No. 33 at 3. No response was provided as to the subsequent car accident.

11

Accordingly, this aspect of the motion to compel will be granted.2 Plaintiff shall provide Defendant

12

Records for Subsequent Slip-and-Fall and Subsequent Car Accident

with these records within 14 days of the issuance of this order.

13

D.

Golfing Friends

14

Defendant next seeks an order compelling the identification of Plaintiff’s golfing friends. Docket

15

No. 32 at 14. Plaintiff testified at her deposition that these friends could attest to her physical condition

16

prior to the incident alleged in this case. Id. Defendant argues that these friends must be identified in

17

response to Interrogatory No. 3, which seeks the names and addresses of “each person . . . having

18

knowledge of facts relevant to the subject matter.” Id. Plaintiff argues that this interrogatory is overly

19

broad. Docket No. 33 at 3-4.

20

The Court agrees with Plaintiff that the interrogatory, as written, is overly broad. The Court does

21

not agree, however, that such overbreadth gives Plaintiff a pass on providing the information now being

22

sought. Plaintiff does not dispute that the identity of her golfing friends is relevant and discoverable.

23

Plaintiff also does not dispute that such information falls within the scope of this interrogatory. “[I]t is well

24

settled that the Court ‘has broad discretion to appropriately narrow the scope of otherwise overly broad and

25
26
27
28

2

Defendant disputes that the recent document production is sufficient. See Docket No. 34 at 5. The
Court does not opine herein on the sufficiency of the production, as that issue is not sufficiently presented
for a resolution. Instead, the Court simply rules that Plaintiff must provide the records requested. Plaintiff’s
counsel shall carefully review the production made to date, and ensure that it is complete.
3

1

objectionable discovery requests, regardless of what the request initially requested.’” Aevoe Corp. v. AE

2

Tech Co., 2013 WL 5324787, *2 (D. Nev. Sept. 20, 2013) (quoting Samsung SDI Co. v. Matsushita Elec.

3

Indus. Co., 2007 WL 4303348, at *3 (C.D. Cal. June 25, 2007)). The Court therefore orders Plaintiff to

4

identify the names and addresses of the golfing friends to whom she was referring at her deposition, within

5

14 days of the issuance of this order.

6

Accordingly, this aspect of the motion to compel will be granted.

7

E.

8

Defendant next seeks an order compelling the production of Plaintiff’s shoes that she wore on the

9

day of the incident alleged in this case. Docket No. 32 at 14-15. Defendant requested production of these

10

shoes a year ago. Id. at 15. Nonetheless, Plaintiff responds that she is still trying to locate the shoes, and

11

simply needs more time. Docket No. 33 at 4. Plaintiff’s position is devoid of merit. Plaintiff chose to

12

litigate this case, and she has a duty to preserve relevant evidence. Cf. Apple v. Samsung Elecs. Co., 888

13

F. Supp. 2d 976, 990-91 (N.D. Cal. 2012). A reasonable period to produce the shoes has long since passed.

14

Accordingly, this aspect of the motion to compel will be granted. Within 14 days of the issuance

15

of this order, Plaintiff shall either (1) produce the shoes, or (2) provide a supplemental response certified

16

under Rule 26(g) of the Federal Rules of Civil Procedure indicating that Plaintiff no longer possesses the

17

shoes and providing a detailed explanation of the search undertaken to find them. See, e.g., Rogers v.

18

Giurbino, 288 F.R.D. 469, 485 (S.D. Cal. 2012).3

Shoes Worn During Subject Incident

19

F.

20

Defendant next seeks to compel Plaintiff to sign various medical releases. Docket No. 32 at 15-16.

21

Plaintiff’s response indicates that her counsel agrees to have the releases signed. Docket No. 33 at 4.

22
23

Authorization Forms

Accordingly, this aspect of the motion to compel will be granted. Plaintiff shall provide Defendant
with all signed medical releases within 14 days of the issuance of this order.

24
25
26
27
28

3

The Court does not opine herein as to the consequences that may befall Plaintiff in the event she
did not preserve the shoes.
4

1

III.

REASONABLE EXPENSES

2

Defendant lastly requests an award of reasonable expenses. Docket No. 32 at 17-18. “When a court

3

grants a motion to compel, the victor is entitled to expenses–including attorneys’ fees–unless the loser was

4

substantially justified or the imposition of sanctions would be unjust.” Kiessling v. Det. Rader P#6099,

5

2018 WL 1401972, at *4 (D. Nev. Mar. 20, 2018) (citing Fed. R. Civ. P. 37(a)(5)(A)). The losing party

6

has the burden of establishing substantial justification or unjust circumstances. E.g., Wood v. GEICO

7

Casualty Co., 2016 WL 6069928, at *1 (D. Nev. Oct. 14, 2016). “The district court has great latitude in

8

imposing sanctions under Fed. R. Civ. P. 37.” Lew v. Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985).

9

In this case, there is no substantial justification nor any unjust circumstances. To the contrary, the

10

discovery in dispute should have been provided months ago and the arguments to the contrary are wholly

11

baseless.4 Accordingly, the request for an award of reasonable expenses will be granted. The parties are

12

encouraged to confer on an amount of expenses without further Court involvement. To the extent they

13

cannot agree, Defendant shall file a “Motion to Calculate Expenses” supported by appropriate documents

14

within seven days of the issuance of this order.

15

IV.

NOTICE TO PLAINTIFF AND HER ATTORNEYS

16

The response to the pending motion raises serious concerns for the Court, as some of the positions

17

advanced appear to run afoul of the requirement that counsel ensure that factual representations and legal

18

arguments have a reasonable basis. See, e.g., Fed. R. Civ. P. 11(b). Plaintiff’s counsel also appears to have

19

engaged in dilatory conduct designed to avoid complying with his discovery obligations. But see Asea, Inc.

20

v. S. Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981) (“The discovery process is subject to the

21

overriding limitation of good faith”). The Court will not tolerate such conduct moving forward.

22
23
24
25
4

26
27
28

The Court notes that some responsive documents were produced after the filing of the motion to
compel. See Section II.C. Providing requested discovery after a motion to compel is filed does not
immunize against an award of reasonable expenses. See, e.g., Fed. R. Civ. P. 37(a)(5)(A) (expenses must
be awarded if the motion to compel is granted “or if the disclosure or requested discovery is provided after
the motion was filed”).
5

1
2
3

V.

CONCLUSION
For the reasons discussed above, the motion to compel is GRANTED and the motion for sanctions

is GRANTED.

4

IT IS SO ORDERED.

5

DATED: March 21, 2018

6
7

______________________________________
NANCY J. KOPPE
United States Magistrate Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6