CHAMBERS v. PERDUE et al

Filing 62

MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 7/17/2013, that Plaintiff's Motion to Compel Discovery (Docket Entry 56 ) is DENIED. FURTHER that, on or before July 24, 2013, Defenda nt shall either: 1) file a Notice indicating that it does not seek cost-shifting under Federal Rule of Civil Procedure 37(a)(5)(B); or 2) serve Plaintiff with a statement of reasonable expenses, including attorney fees, incurred in opposing Plaintiff 's Motion to Compel. Failure by Defendant to comply with this order will result in denial of any cost-shifting. FURTHER that, if Defendant timely serves Plaintiff with a statement of its reasonable expenses, on or before August 7, 2013 , Plaintiff shall file either: 1) a Notice indicating his agreement to pay the claimed expenses; or 2) a memorandum of no more than five pages explaining why his Motion to Compel was substantially justified or why other circumstances make an awar d of expenses unjust, as well as any basis on which Plaintiff contests the reasonableness of the claimed expenses. Failure by Plaintiff to comply with this order will result in the Court ordering, upon the filing of a Notice by Defendant of its reaso nable expenses as contained in the statement it served upon Plaintiff, the payment of such expenses by Plaintiff. FURTHER, that, on or before August 21, 2013, Defendant shall file a response of no more than five pages to any memorandum timely filed by Plaintiff contesting cost-shifting. Failure by Defendant to comply with this order will result in the denial of any cost-shifting. FURTHER that, on or before August 28, 2013, Plaintiff may file a reply of no more than three pages to any response timely filed by Defendant regarding cost-shifting. FURTHER, that Plaintiff's Motion to Extend Time for Discovery Plan (Docket Entry 55 ) is DENIED AS MOOT. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TONY E. CHAMBERS,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF
JUVENILE JUSTICE AND
DELINQUENCY PREVENTION,
Defendant.

1:10CV315

MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the undersigned Magistrate
Judge for a ruling on Plaintiff’s Motion to Extend Time for
Discovery Plan (Docket Entry 55) and Plaintiff’s Motion to Compel
Discovery (Docket Entry 56).
2013.)

(See Docket Entry dated July 9,

For the reasons that follow, the Motion to Compel will be

denied and the Motion to Extend will be denied as moot.
I.

Procedural Background

Pursuant to the Joint Rule 26(f) Report filed by the Parties
in this action (Docket Entry 46), the deadline for the close of
discovery was June 3, 2013 (see Docket Entry dated Feb. 2, 2013).
On May 15, 2013, Plaintiff filed the instant Motion to Extend Time
for Discovery Plan (Docket Entry 55) in which he asked the Court to
extend the discovery period an additional 90 days because Defendant
“has

stalled

and

prolong

[sic]

distribution

[o]f

requested

interrogatories #3 and #7” (id. at 1). He further stated the following:
Defendant . . . objects on grounds that this
information is confidential, Plaintiff [f]eels
the information is reasonable and discoverable
due to the fact [sic] potential witness and
the
opportunity
to
gain
testimony
and
deposition
will
come
from
these
interrogatories. That’s why I am filing this
motion to extend time to file other motions to
compel, supplement to discovery. . . .
Plaintiff is not at a position to bring forth
his [c]ase in a matter [sic] that is
satisfactory to end Plaintiff’s discovery
plan.
Plaintiff feels it is [D]efendant’s
obligation and responsibility to comply with
interrogatories
in
good
faith
and
all
[h]onesty within a timely matter. Plaintiff
needs more time to compel discovery and do
[d]epositions.
(Id.)

Plaintiff attached two exhibits to his Motion, which

apparently contain the two “interrogatories” he references.
Docket Entries 55-1, 55-2.)

(See

Based on their language (see id.) and

documentation submitted by Defendant (see Docket Entry 57-1 at 2931),

it

appears

these

“interrogatories”

actually

constitute

requests for production of documents.
The next day, Plaintiff filed the instant Motion to Compel
(Docket Entry 56), the relevant part of which states in its
entirety:
I have requested from [Defendant] names,
address [sic] and telephone numbers from
current and [f]ormer employees from specific
department and facility locations.
I also
would like to dispute [p]ersonal files and
records from one former employee. Defendant
has cited confidentiality as [r]easons [sic]
for not turning over what I, [P]laintiff
consider reasonable and highly important
2

discover [a]ble [sic] material to complete my
discovery plan. Plaintiff again is requesting
an expedited [r]esolution of some discovery
disputes.
(Id. at 1-2.)
56.)

Defendant responded in opposition.

Plaintiff did not reply.

(Docket Entry

(See Docket Entries dated June 10,

2013, to present.)
II.

Discussion

As a preliminary matter, Plaintiff’s Motion to Compel does not
indicate which specific discovery requests Defendant allegedly
failed to answer.

(See Docket Entry 56 at 1-2.)

Moreover, even

if the Court assumes Plaintiff’s Motion to Compel refers to the two
“interrogatories” referenced in his Motion to Extend (see Docket
Entry

55

at

1),

inadequate

grounds

exist

to

compel

further

discovery responses.
The two “interrogatories” Plaintiff attached to his Motion to
Extend read as follows:
3. Produce each and every document which you
contend refer to facts or support your
[p]osition
or
legal
argument
made
in
Plaintiff’s [C]omplaint filed 23 April 2010
and the [A]mended [C]omplaints filed 20 July
2010 and 20 September 2012.
(Docket Entry 55-1 at 1.)
7. Produce names, address and telephone number
records for every employee not to exclude
management that worked for the [D]epartment of
[J]uvenile
[J]ustice
and
[P]revention
[D]elinquency [sic] at the Samarkand Manor
Training school in Eagle Springs NC from May
And those
2007 to November 30th 2008.
employees that where [sic] in human resource
3

[sic] in the Raleigh office and any upper
management that was connected with Samarkand
Manor.
(Docket Entry 55-2 at 1.)

However, Plaintiff’s Interrogatories 3

and 7 in fact read:
3. Please state department of juvenile justice
prevention and delinquency policy and protocol
for receiving grievances.
. . .
7. Please give dates upon receipt of Equal
Employment
Opportunity
Commissions
[sic]
initial
contact
for
investigation
and
conclusion of investigation.
(Docket Entry 57-1 at 20-22.)

On the other hand, Plaintiff’s

Requests for Production 3 and 7 do match the discovery requests
referenced in his Motion to Extend.

(Compare Docket Entries 55-1

and 55-2, with Docket Entry 57-1 at 29, 30-31.)
Plaintiff’s Motion to Compel first alleges that Defendant has
not provided Plaintiff with “names, address [sic] and telephone
numbers

from

current

and

[f]ormer

employees

from

specific

departments and facility locations.” (Docket Entry 56 at 1.) This
requested information apparently matches Plaintiff’s Request for
Production 7. (Compare id., with Docket Entry 57-1 at 30-31.)
Defendant objected to that Request as vague and overly broad and
because, “pursuant to N.C. Gen. Stat. §§[] 126-22, 126-24 and 12627, the personnel files of State employees, former state employees
or applicants for State employment are confidential.”
Entry 55-2 at 1.)

(Docket

Without waiving those objections, Defendant
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produced “a list of all employees that were employed with Defendant
from 2007 through 2008, an online email and telephone directory for
Defendant’s employees, and a directory for the current Youth
Development Center with the contact information for the Facility
Directors.”

(Docket Entry 57 at 5-6.)

Defendant also informed

Plaintiff that the Samarkand Youth Development Center had since
closed.

(Id. at 6.)

Defendant thus contends it “has responded to

Plaintiff’s request for production of documents . . . in good faith
as required by Local Rule 26.1.”

(Id.)

The Court agrees.

Request for Production 7 actually asks Defendant to generate
a document rather than to produce documents in existence. “Rule 34
requires a party to produce documents that already exist and a
party does not have to create a document in response to a request
for production.”

Harris v. Advance Am. Cash Advance Cntr., Inc.,

288 F.R.D. 170, 174 (S.D. Ohio 2012); accord Alexander v. Federal
Bureau of Investigation, 194 F.R.D. 305, 310 (D.D.C. 2000).

Given

that fact, as well as Defendant’s uncontested explanation regarding
what documents it provided Plaintiff, the Court denies any relief
as to this aspect of Plaintiff’s Motion to Compel.
Plaintiff’s next contention (i.e., that Defendant failed to
produce “[p]ersonal files and records from one former employee”
(Docket Entry 56 at 1-2)) also fails.

As an initial matter,

Plaintiff’s Motion to Compel neglects to name the individual whose
files Defendant allegedly did not produce.

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(Id.)

Plaintiff

similarly has failed to identify the discovery request to which he
refers. (Id.) None of the discovery requests discussed previously
appear relevant.

The only discovery request that references

individuals’ files or records is Request for Production 4, which
states: “Produce each and every mental examinations [sic] and work
evaluations on Sandra Vamper, Mack Simmons, Donald Burns and Roger
Reynolds made by Department of Juvenile Justice Prevention and
Delinquency.”

(Docket Entry 57-1 at 29-30.)

Defendant objected to this Request
on the grounds that individually identifiable
medical information cannot be disclosed by
covered entities without the consent of the
individual pursuant to 45 CFR 164.502 Health
Information Portability and Accountability
Act.
Defendant also objected to this
[R]equest on the grounds that medical records
are protected under N.C.[ Gen. Stat.] §8-53.
Defendant further objected on the grounds that
pursuant to N.C.[ Gen. Stat.] §§[] 126-22,
126-24 and 126-27, the personnel files of
State employees, former state employees or
applicants
for
State
employment
are
confidential.
(Docket Entry 57 at 7 (internal citation omitted).)

Under North

Carolina law, “[c]onfidential information obtained in medical
records shall be furnished only on the authorization of the patient
. . . .”

N.C. Gen. Stat. § 8-53.

Furthermore, to the extent

Plaintiff intended to refer to “personnel” rather than “personal”
files of an individual, “personnel files contain very sensitive
private information about non-parties to th[e] litigation, [and
therefore] th[e] Court must weigh the significant privacy interests
6

at stake against the need for the information contained in the
personnel files.” Halim v. Baltimore City Bd. of Sch. Comm’rs, No.
WMN-11-2265,

2012

WL

2366338,

at

*2

(D.

Md.

Jun.

20,

2012)

(unpublished). To the extent this Request seeks medical, personal,
or personnel information, Plaintiff has failed to provide any
explanation

as

to

why

he

views

these

materials

as

“highly

important” (Docket Entry 56 at 2) for the prosecution of his case.
(Id. at 1-2.)
principles

of

Under these circumstances and in light of relevant
proportionality

that

apply

to

discovery,

see

generally Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226,
239 (M.D.N.C. 2010), the Court will deny Plaintiff’s Motion to
Compel to the extent it seeks the personal, medical, or personnel
files of an unnamed former employee of Defendant.
Given the Court’s disposition of Plaintiff’s Motion to Compel,
the Court will deny as moot Plaintiff’s Motion to Extend, which, as
discussed above, seeks time to compel further responses to certain
discovery requests. (See Docket Entry 55 at 1.) Because the Court
has denied Plaintiff’s Motion to Compel, no reason remains to
extend the discovery period.
III.

Conclusion

Plaintiff has failed to identify the discovery requests to
which Defendant allegedly failed to respond.

Further, to the

extent the Court can identify the requests to which he refers, no
basis exists to compel a further response.

7

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
Discovery (Docket Entry 56) is DENIED.
IT IS FURTHER ORDERED that, on or before July 24, 2013,
Defendant shall either: 1) file a Notice indicating that it does
not seek cost-shifting under Federal Rule of Civil Procedure
37(a)(5)(B); or 2) serve Plaintiff with a statement of reasonable
expenses, including attorney fees, incurred in opposing Plaintiff’s
Motion to Compel.

Failure by Defendant to comply with this order

will result in denial of any cost-shifting.
IT

IS

FURTHER

ORDERED

that,

if

Defendant

timely

serves

Plaintiff with a statement of its reasonable expenses, on or before
August

7,

2013,

Plaintiff

shall

file

either:

1)

a

Notice

indicating his agreement to pay the claimed expenses; or 2) a
memorandum of no more than five pages explaining why his Motion to
Compel was substantially justified or why other circumstances make
an award of expenses unjust, as well as any basis on which
Plaintiff contests the reasonableness of the claimed expenses.
Failure by Plaintiff to comply with this order will result in the
Court ordering, upon the filing of a Notice by Defendant of its
reasonable expenses as contained in the statement it served upon
Plaintiff, the payment of such expenses by Plaintiff.
IT IS FURTHER ORDERED that, on or before August 21, 2013,
Defendant shall file a response of no more than five pages to any
memorandum timely filed by Plaintiff contesting cost-shifting.
8

Failure by Defendant to comply with this order will result in the
denial of any cost-shifting.
IT IS FURTHER ORDERED that, on or before August 28, 2013,
Plaintiff may file a reply of no more than three pages to any
response timely filed by Defendant regarding cost-shifting.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Extend Time
for Discovery Plan (Docket Entry 55) is DENIED AS MOOT.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
July 17, 2013

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