Morris
Filing
29
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 03/29/2012. The instant matter comes before the Court for disposition of Defendant Lowe's Home Centers, Inc's ("Lowe's") Motion to Compel. IT IS THEREFORE ORDERED that Defendant's Motion to Compel (Docket Entry 23 ) is GRANTED IN PART as set out herein.(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MELINDA GAY MORRIS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
LOWE’S HOME CENTERS, INC.,
Defendant.
1:10CV388
MEMORANDUM OPINION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
The instant matter comes before the Court for disposition of
Defendant Lowe’s Home Centers, Inc’s (“Lowe’s”) Motion to Compel
(Docket Entry 23). For the reasons that follow, the instant Motion
will be granted in part.
Background
Plaintiff,
an
employee
of
Lowe’s
in
Burlington,
North
Carolina, from January 2005 until May 1, 2007, was diagnosed with
metastasized breast cancer in October 2006.
¶¶ 13, 14, 25.)
Her treatment caused her to miss work from October
2006 until January 29, 2007.
Plaintiff
sought
disability.
(See Docket Entry 1,
several
(See id. ¶ 17.)
(See id. ¶ 15.)
workplace
Upon her return,
accommodations
for
her
With the exception of some initial
receptiveness to her requests for consecutive days off to allow for
greater recovery, Plaintiff alleges that her supervisor and the
human
resources
harassed
her
department
about
her
otherwise
medical
denied
condition.
her
requests
(Id.
¶¶
and
17-22.)
Plaintiff
claims she
could
not
work
in
this
environment
and
submitted a resignation letter, with an effective date of May 1,
2007.
(Id. ¶ 25.)
Plaintiff
alleging
thereafter
claims
for
(1)
filed
a
Complaint
discrimination
in
with
this
violation
Court
of
the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12010-12213
(id. ¶¶ 35-39); (2) constructive discharge in violation of the ADA
(id. ¶¶ 49-55); (3) wrongful discharge in violation of the ADA (id.
¶¶ 63-64); and (4) intentional infliction of emotional distress
under North Carolina law (id. ¶¶ 36-48).1
Plaintiff seeks back pay
for the period from May 1, 2007, to December 31, 2008, as well as
damages for emotional and mental distress and reimbursement of
medical expenses related to her treatment for emotional and mental
distress.
(See Docket Entry 23-1 at 8.)
Defendant served its First Set of Interrogatories and First
Request for Production of Documents on Plaintiff on August 19,
2011.
(See
Docket
Entry
23,
¶
2.)
On
November
1,
2011,
Plaintiff’s counsel served Plaintiff’s Answers to Defendant’s First
Set of Interrogatories and Plaintiff’s Responses to Defendant’s
First Requests for Production of Documents.
1
(Id. ¶ 5.)
Defendant
Plaintiff’s claim for wrongful discharge in violation of
the ADA is actually made up of paragraphs appearing consecutively
as 63, 61, 62, 63 and 64. (See Docket Entry 1 at 14.) After the
first paragraph 63, Plaintiff’s Complaint appears to restart its
numbering beginning with paragraph 61, resulting in two paragraphs
each numbered as 61, 62 and 63. (See id. at 14-15.)
-2-
thereafter “wrote a letter to Plaintiff’s counsel describing in
detail the deficiencies of Plaintiff’s discovery responses and
demanding that Plaintiff supplement her responses and document
production” prior to the mediation between the parties scheduled
for December 7, 2011.
(Docket Entry 24 at 3.)
Defendant contends
that, at mediation, the parties discussed Defendant’s concerns
regarding Plaintiff’s production and Defendant “was informed by
Plaintiff’s counsel that Plaintiff would provide a response to
[Defendant’s] December 5th letter on the following day.”
(Id.)
Defendant further contends that it heard from Plaintiff on December
8, 2011, when “Plaintiff’s counsel e-mailed Defendant’s counsel and
represented that [Plaintiff] would respond to the December 5th
letter by the close of business on December 9, 2011.”
4.)
(Id. at 3-
However, prior to Defendant’s filing of the instant Motion on
December
29,
2011,
Plaintiff
did
Defendant’s December 5, 2011 letter.
not
offer
any
response
to
(See id.)
Defendant’s instant Motion “moves that Plaintiff be compelled
to
supplement
her
responses
to
Defendant’s
First
Set
of
Interrogatories and First Request for Production of Documents, and
that the Court require Plaintiff to pay to Defendant the reasonable
expenses incurred in making this motion, including attorney’s
fees.”
(Docket Entry 13 at 1.)
After the filing of the instant
Motion, and on the same day that Plaintiff filed her Response
Brief,
Plaintiff
responded
to
Defendant’s
-3-
December
5,
2011
correspondence regarding Plaintiff’s production. (See Docket Entry
25-1.)
In Plaintiff’s letter to Defendant, Plaintiff noted her
position regarding the sufficiency of certain of her responses and,
with
respect
to
other
requests,
provided
“Supplemental
Interrogatory Answers and Supplemental Responses to Request for
Production of Documents with any and all documentation which
[Plaintiff] has in her possession, custody or control that is
responsive to those requests” (Docket Entry 25 at 2).
thereafter
filed
Plaintiff’s
its
Reply
supplemental
Brief,
offerings,
contending
Plaintiff
that
Defendant
despite
“continues
to
withhold documents which are clearly discoverable and relevant to
the underlying dispute.”
(See Docket Entry 26 at 1.)
Discussion
A.
Standard
“The purpose of discovery is to provide a mechanism for making
relevant information available to the litigants.”
26 advisory committee’s notes, 1983 Amendment.
Fed. R. Civ. P.
Accordingly, under
the Federal Rules of Civil Procedure, “[u]nless otherwise limited
by court order . . . [p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or
defense . . . .”
Fed. R. Civ. P. 26(b)(1) (emphasis added).
“Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of
admissible
evidence.”
Id.;
see
-4-
also
Elkins
v.
Broome,
No.
1:02CV305,
2004
WL
3249257,
at
*2
(M.D.N.C.
Jan.
12,
2004)
(unpublished) (“[R]elevancy at discovery is a far different matter
from relevancy at trial.
At discovery, relevancy is more properly
considered synonymous with ‘germane’ as opposed to competency or
admissibility.”); Flora v. Hamilton, 81 F.R.D. 576, 578 (M.D.N.C.
1978) (“It is clear that what is relevant in discovery is different
from what is relevant at trial, in that the concept at the
discovery stage is much broader.”).
However,
imposed
by
“[a]ll
Rule
discovery
is
26(b)(2)(C).”
subject
Fed.
R.
to
the
Civ.
limitations
P.
26(b)(1).
Specifically, Rule 26(b)(2)(C), sets out the following limitations:
(i) the discovery sought is unreasonably cumulative or
duplicative, or can be obtained from some other source
that is more convenient, less burdensome, or less
expensive;
(ii) the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action; or
(iii) the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of
the case, the amount in controversy, the parties'
resources, the importance of the issues at stake in the
action, and the importance of the discovery in resolving
the issues.
Fed. R. Civ. P. 26(b)(2)(C); see also Nicholas v. Wyndham Int’l,
Inc., 373 F.3d 537, 543 (4th Cir. 2004) (“Even assuming that this
information is relevant (in the broadest sense), the simple fact
that requested information is discoverable . . . does not mean that
discovery must be had.
On its own initiative or in response to a
-5-
motion for protective order under Rule 26(c), a district court may
limit [such discovery] . . . if it concludes that [a limitation in
Rule 26(b)(2)(C) applies].”); Fed. R. Civ. P.
26(c)(1) (stating
that “court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue
burden or expense, including . . . forbidding . . . discovery [or]
. . . inquiry into certain matters, or limiting the scope of . . .
discovery to certain matters”).
Notwithstanding the foregoing limitations, the United States
Court
of
Appeals
for
the
Fourth
Circuit
has
declared
that
“[d]iscovery under the Federal Rules of Civil Procedure is broad in
scope and freely permitted.”
Carefirst of Md., Inc. v. Carefirst
Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003) (emphasis
added).
Moreover, the commentary to the Rules indicates that “[a]
variety of types of information not directly pertinent to the
incident in suit could be relevant to the claims or defenses raised
in a given action.”
Fed. R. Civ. P. 26 advisory committee’s notes,
2000 Amendment, Subdivision (b)(1).
In conducting an analysis under this framework in the context
of a motion to compel, district judges and magistrate judges in the
Fourth Circuit (including members of this Court) have repeatedly
ruled that the party or person resisting discovery, not the party
moving to compel discovery, bears the burden of persuasion.
See
Kinetic Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 243–44
-6-
(M.D.N.C. 2010) (citing Wagner v. St. Paul Fire & Marine Ins. Co.,
238 F.R.D. 418, 424–25 (N.D.W. Va. 2006)); United Oil Co., Inc. v.
Parts Assocs., Inc., 227 F.R.D. 404, 411 (D. Md. 2005); Elkins,
2004 WL 3249257, at *2 (Dixon, M.J.); Spell v. McDaniel, 591 F.
Supp. 1090, 1114 (E.D.N.C. 1984); Flora, 81 F.R.D. at 578 (Gordon,
C.J.); Rogers v. Tri–State Materials Corp., 51 F.R.D. 234, 247
(N.D.W.
Va.
1970);
Pressley
v.
Boehlke,
33
F.R.D.
316,
318
of
the
(W.D.N.C. 1963)).
B.
Application
The
interrogatory
requests
in
dispute
consist
following:
INTERROGATORY NO. 3
State whether you have been employed in any manner
(or self-employed) at any time from May 1, 2007, to the
present. For each such period of employment or
self-employment, state the name and address of each
company, business enterprise, organization or public
employer where you are or have been employed or
self-employed, the nature of its business, the title of
each position you have held, the dates you have held each
position, the wages and benefits you have received from
each position, and the duties of each position.
. . .
INTERROGATORY NO. 4
For the period of time after May 1, 2007, describe
in detail, and identify all documents relating to, all
efforts made by you to seek or obtain employment,
including but not limited to:
a.
the name and address of each company, business
enterprise, organization or public employer with
whom you sought employment;
-7-
b.
the name and address of each public or private
employment service or agency you contacted to
assist you in seeking or obtaining employment;
c.
all sources you used in seeking to obtain
subsequent employment; including, but not limited
to,
personal
contacts,
newspapers,
trade
publications, etc.;
d.
whether or not you received a job offer and if so
the date of such offer, the terms and conditions of
such offer, including the position, title, salary
level and other benefits and whether or not you
accepted said offer; and
e.
the reason you did or did not commence employment
with each employer identified.
. . .
INTERROGATORY NO. 5
If you have received any income from any sources
from May 1, 2007, to the present (including any
unemployment, disability, or other government benefits),
state the nature and source of any such income, the gross
amounts of any such income, the dates on which it was
received, and identify any documents related to the
foregoing answers.
. . .
INTERROGATORY NO. 6
State whether you have been incapable of working for
any reasons, including but not limited to health reasons
or any kind of disability, for any period from May 1,
2007, to the present. If so, specify the reason and dates
of incapacity.
. . .
INTERROGATORY NO. 7
For each item of damages or other relief sought by
you in this action, including any emotional or mental
distress, identify the nature of the damages or relief
sought, the amount of monetary relief claimed, and the
-8-
method of calculating the monetary relief sought,
including but not limited to, the specific elements
included, the amount claimed for each element, and the
period it covers.
. . .
INTERROGATORY NO. 8
If you contend that you are entitled to damages for
alleged emotional or mental distress, state whether at
any time since May 1, 2007, you have sought or received
any type of medical treatment, psychological or
psychiatric care, or counseling of any kind from or by
any
doctor,
nurse,
chiropractor,
psychiatrist,
psychologist, clinic, clinical psychologist, therapist,
hospital, emergency room, or any other kind of medical
provider; any family counselor, marital counselor, school
counselor, or any other kind of counselor; social worker,
priest, minister or rabbi. For each such practitioner,
state the following:
a.
his or her name and title;
b.
his or her business address and phone number; and
[sic]
c.
each and every date on which you were treated by or
consulted with such person; [and]
d.
the specific nature
psychological care,
obtained by you.
of
or
the medical treatment,
counseling sought or
INTERROGATORY NO. 8 (sic)
State whether you made an application to any local,
state, or federal agency (including but not limited to
the Social Security Administration), or to any insurance
company for benefits on account of any disability during
the period from January 1, 2007 to the present. If so,
state separately for each such application:
a.
The date of application;
b.
The name and address of the agency or insurance
company;
-9-
c.
Whether your application for benefits was accepted
or denied;
d.
The date(s) you received disability benefits and
the amount (if applicable).
(Docket Entry 23-1 at 4-11.)
The document requests at issue consist of the following:
REQUEST NO. 1
The “threatening and discriminatory emails” referred
to in paragraph 17 of the Complaint, and the "harassing
emails" referred to in paragraphs 24 and 25 of the
Complaint.
. . .
REQUEST NO. 2
All documents concerning each and every “reasonable
accommodation” requested by Plaintiff during time period
of January 1, 2007 through April 30, 2007.
. . .
REQUEST NO. 3
All documents associated with each and every
application made by you during the period of January 1,
2007 to the present for disability benefits, including
but not limited to supporting statements from treating
physicians, documents concerning the disposition of your
application, documents showing the dates you started
receiving benefits, and the amount of benefits you have
received.
. . .
REQUEST NO. 4
All of your federal and state income tax returns and
W-2 statements for the calendar years 2007 through the
present.
. . .
-10-
REQUEST NO. 5
All documents relating to any source of income
received by you from May 1, 2007, to the present,
including,
but
not
limited
to, paycheck
stubs,
employer-sponsored disability benefits, social security
disability benefits, unemployment compensation benefits,
financial records of any enterprise of which you are or
were an owner or part owner, and financial records from
self employment.
. . .
REQUEST NO. 6
All documents relating to your efforts, if any, to find
employment from May 1, 2007, until the present, including
but not limited to:
a.
All documents sent to or
prospective employer by you;
received
from any
b.
All resumes or other documents reflecting your
skills and/or job history and/or references used in
an effort to obtain employment; and
c.
All job search records provided by you, or filled
out by you, to the State of North Carolina.
. . .
REQUEST NO. 8
If you contend you are entitled to compensatory
damages for emotional or mental distress, all documents
since May 1, 2007, relating to your medical (i.e.,
physical and mental) condition, including but not limited
to all records, medical or otherwise, maintained by all
individuals, groups, or organizations identified in your
responses to interrogatories.
(Id. at 17-22.)
In its instant Motion, Defendant argued initially, as a
general matter, that Plaintiff improperly limited her production to
the time period from May 1, 2007, to December 31, 2008.
-11-
(See
Docket Entry 23, ¶ 6.)
In addition, Defendant offered specific
arguments regarding why the Court should compel Plaintiff to
respond to Defendant’s Interrogatory Nos. 5, 7 and 9 and Document
Request Nos. 1, 2, 3 and 8.
(Id. ¶¶ 7-10.)
After receiving
Plaintiff’s supplemental discovery answers and documents, which
corresponded
with
the
filing
of
Plaintiff’s
Response
Brief,
Defendant’s Reply Brief narrowed the focus of the production
sought, contending:
Plaintiff continues to withhold documents which are
clearly discoverable and relevant to the underlying
dispute.
This includes, but is not limited to: (1)
documents (including medical records) and information for
the time period after December 31, 2008; (2) the
Psychosocial Assessment of Plaintiff prepared by Duke
University Medical Center in 2007; (3) the complete
records of Plaintiff’s treatment by Dr. Gary Clary; and
(4) Plaintiff’s applications for disability benefits.
(Docket Entry 26 at 1.)
The Court will address each of the categories of information
sought in Defendant’s Reply Brief in turn.
i.
Information from January 1, 2009 to Present
Defendant contends that “Plaintiff should be required to
supplement her responses to Interrogatory Nos. 3, 4, 5, 6, 8 and 9
and Document Request Nos. 3, 4, 5, 6, and 8 to include all
responsive information for the time period following December 31,
2008 to the present.”
(Docket Entry 23 at 3.)
Plaintiff offered
the following objection to explain her decision to limit her
discovery responses to the time period before January 1, 2009:
-12-
Plaintiff is not seeking back pay from January 1, 2009,
to the present, nor front pay in this action and
therefore information requested for any date after
December 31, 2008, is not reasonably calculated to lead
to the discovery of admissible evidence.
(See Docket Entry 23-1 at 5.) Plaintiff’s objection in this regard
cannot stand.
Information regarding Plaintiff’s work history and medical
treatments after December 31, 2008, is relevant to Plaintiff’s
claim
of
emotional
distress,
regardless
of
Plaintiff has placed on her claim for back pay.
the
limitations
The Fourth Circuit
has affirmed a district court’s determination that medical records
were subject to discovery where the plaintiff sought damages for
mental/emotional damages.
Coffin v. Bridges, No. 95–1781, 72 F.3d
126 (decision without opinion), 1995 WL 729489, at *1, 3–4 (4th
Cir. Dec. 11, 1995) (unpublished).
Moreover, this Court, per
Magistrate Judge Wallace W. Dixon, has ordered production of
medical records where the plaintiff sought “compensatory damages
for ‘past and future emotional distress, humiliation, anxiety,
inconvenience, and loss of enjoyment of life,’” and concluded that
the defendant was “entitled to discover information concerning [the
plaintiff’s]
medical,
mental,
and
pharmaceutical
history
to
determine if any prior event may affect [the] demand for damages.”
EEOC v. Sheffield Fin. LLC, No. 1:06CV00889, 2007 WL 1726560, at *4
(M.D.N.C. June 13, 2007) (unpublished).
Magistrate Judge Dixon
explained that such “‘information is further relevant to the
-13-
preparation
of
defendant’s
defenses
.
.
.,
because
[the
plaintiff’s] medical records may reveal stressors unrelated to
defendants which may have affected plaintiff’s emotional well
being.’”
1217,
Id. (quoting LeFave v. Symbios, Inc., No. CIV.A. 99–Z-
2000
WL
(unpublished)).
1644154,
at
*2
(D.
Colo.
Apr.
14,
2000)
Other courts in the Fourth Circuit have reached
the same basic conclusion.
See, e.g., Pressley v. Caromount
Health, Inc., Civil No. 3:09CV460-FDW-DSC, 2010 WL 4026561, at *1
(W.D.N.C. May 11, 2010) (unpublished) (“As the Court has concluded
on two earlier occasions, Plaintiff has placed her emotional and
mental state at issue.
discovery
of
Accordingly, Defendants are entitled to
Plaintiff’s
medical
information
and
records.”
(internal quotation marks and citations omitted).)
The same reasoning applies to the instant facts.
Although
Plaintiff may have limited her claim for back pay to the time
period from May 1, 2007 to December 31, 2008, she has adopted no
similar limitation on her claim for emotional damages. (See Docket
Entry 1; Docket Entry 23-1 at 8.)
Moreover, Plaintiff seeks
reimbursement for her prescription medication for the period from
January 1, 2007 through December 12, 2011, thereby placing her
emotional health, and alternate causes for any emotional distress,
directly at issue.
at 9.)
(Docket Entry 26 at 3; see also Docket Entry 25
An examination of Plaintiff’s medical records “may reveal
stressors
unrelated
to
defendants
-14-
which
may
have
affected
[P]laintiff’s emotional well being,” Sheffield, 2007 WL 1726560, at
*4 (quoting LeFave, 2000 WL 1644154, at *2), and, accordingly,
affect a computation of Plaintiff’s damages due to emotional
distress caused by Defendant.
Similarly, Plaintiff has failed to persuade the Court that
Plaintiff’s work history since January 1, 2009 is irrelevant and
not reasonably calculated to lead to the discovery of admissible
evidence.
Though, again, Plaintiff has limited her back pay
damages to a discrete period, no reason exists to bar Defendant’s
examination into Plaintiff’s work history as such may reveal, or
shed light on, Plaintiff’s emotional well-being.
ii.
The Psychosocial Assessment of Plaintiff
Defendant contends that the medical records provided thus far
reveal that a psychosocial assessment of Plaintiff was completed at
Duke University Medical Center on September 12, 2007, and that,
“[d]espite
Defendant’s
repeated
requests
for
assessment, Plaintiff has failed to produce it.”
at 5.)
a
copy
of
the
(Docket Entry 26
Plaintiff’s Response Brief notes that “Plaintiff has
produced all medical and/or psychological treatment records which
she has in [her] possession.
Plaintiff has produced everything
relevant to this case, including any and all documents referencing
any type of psychological assessment or evaluation which had been
provided by Duke University Medical Center.”
4.)
(Docket Entry 25 at
Plaintiff’s Response Brief does not make it clear whether
-15-
Plaintiff asserts that (1) the actual assessment has been produced;
(2) the only documents in existence merely reference the assessment
and they have been produced; or (3) Plaintiff lacks an obligation
to produce the assessment because it is not in her “possession”
(id.).
To the extent said assessment exists, it is relevant to
Plaintiff’s
claims
for
reasons
discussed
in
the
preceding
subsection.
Although Plaintiff notes that she has produced the
“records which she has in [her] possession” (id.), the obligations
under Rule 34(a)(1) are broader, requiring the production of
documents
“in
the
responding
party’s
control,” Fed. R. Civ. P. 34(a)(1).
possession,
custody,
or
“A document is in a party’s
control when the party has ‘the right, authority or practical
ability to obtain the documents from a non-party to the action.’”
Hosch v. United Bank, Inc., Civil Action No. 4:09-cv-1490-TLW-TER,
2012 WL 486478, at *5 (D.S.C. Feb. 13, 2012) (unpublished) (citing
Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 515 (D. Md.
2009)) (additional internal quotation marks and citation omitted).
Accordingly, “Plaintiff has not discharged [her] obligation to
produce responsive documents by stating that [she] has no such
documents in [her] possession.”
Equal Emp’t Opportunity Comm’n v.
Luihn Food Sys., Inc., No. 5:09-CV-387-D, 2011 WL 649749, at *6
(E.D.N.C. Feb. 10, 2011) (unpublished) (internal quotation marks
and citation omitted).
In the instant case, Plaintiff has not
-16-
argued that she lacks custody or control of the assessment at
issue.
(See Docket Entry 25.)
Moreover, “[c]ourts have held that
a party has control over his medical records because, by either
granting or denying consent, he may determine who shall have access
to them.”
Washam v. Evans, No. 2:10CV00150 JLH, 2011 WL 2559850,
at *1 (E.D. Ark. June 29, 2011) (unpublished) (citing Bertrand v.
Yellow Transp., Inc., No. 3:08-1123, 2010 WL 2196584, at *1 (M.D.
Tenn. May 28, 2010) (unpublished), and Klesch & Co. Ltd. v. Liberty
Media Corp., 217 F.R.D. 517, 520 (D. Colo. 2003)).
Therefore, the Court will order Plaintiff to supplement her
responses to provide the psychosocial assessment of Plaintiff
performed
by Duke
University
Medical
Center
in 2007
if
said
assessment has not previously been provided.
iii. The Complete Records of Plaintiff’s Treatment by Dr. Gary
Clary
In her Response, Plaintiff notes that, after receiving the
December 5, 2011 inquiry from Defendant regarding Plaintiff’s
production, Plaintiff’s counsel “learned that [Plaintiff] did see
Dr. Gary Clary very briefly and [Plaintiff’s counsel has] been in
contact with [Dr. Gary Clary’s] office concerning those records.”
(Docket Entry 25 at 4.)
The Response further notes that, “[a]s
soon as those records are produced, [Plaintiff] will promptly
provide those records.”
(Id.)
In Defendant’s Reply, Defendant
contends that Plaintiff’s failure to disclose Dr. Clary’s treatment
-17-
until
after
Defendant’s
instant
Motion
shows
Plaintiff’s
noncompliance with her discovery obligations. (See Docket Entry 26
at 4-5).
Defendant further argues that, “[a]lthough Plaintiff
states that she is awaiting her medical records from Dr. Clary,
Defendant
is entitled
to an
order from the
Court
compelling
production of these records given Plaintiff’s repeated delay and
outright failure to comply with Defendant’s discovery requests.”
(Id. at 5.)
No dispute appears to exist between the parties regarding
Plaintiff’s obligation to provide the records of Dr. Clary to
Defendant.
before
Although Plaintiff’s failure to act on this matter
Defendant
moved
to
compel
shows
the
insufficiency
of
Plaintiff’s initial production, Plaintiff apparently since has
acted diligently in attempting to retrieve said records.
Docket Entry 25-1 at 6-9.)
(See
Accordingly, the Court sees no reason
to order Plaintiff to do anything further at this point.
iv.
Plaintiff’s Applications for Disability Benefits
Defendant next argues that “Plaintiff continues to object to
and resist producing her applications for disability benefits,
which would include the medical evaluations that support her
applications for disability benefits.”
(Docket Entry 26 at 6.)
Plaintiff’s Response noted that “[Plaintiff] does not have copies
of any of the applications for disability benefits or any other
documents related to disability benefits other than those produced
-18-
with the attached supplemental responses. [Plaintiff] did not keep
copies of those documents and does not have them in her custody,
control or possession.
If Defendant seeks additional information
or documents concerning social security disability benefits, they
are
free
to
obtain
Administration.”
those
through
the
Social
Security
(Docket Entry 25 at 6.)
The Court notes initially that it does not appear that either
party has made any attempt to obtain the documents at issue from
the
Social
Security
Administration.
Moreover,
because
the
documents at issue rest with an independent third-party over which
Plaintiff lacks any authority, it is not clear that said documents
fall within Plaintiff’s “possession, custody, or control,” Fed. R.
Civ. P. 34(a)(1).
In addition, Defendant has not cited any
authority that the responsibility to retrieve government records
rests on Plaintiff rather than on the Defendant through the use of
the procedures outlined in Fed. R. Civ. P. 45.
Accordingly, the
Court declines to grant Defendant’s instant Motion in this regard.
Costs and Attorneys’ Fees under Rule 37
Defendant
requests
that
“it
be
awarded
costs,
including
reasonable attorneys’ fees, necessitated by bringing this motion.”
(Docket Entry 14 at 9.)
Under Fed. R. Civ. P. 37, “[i]f the motion
is granted–-or if the disclosure or requested discovery is provided
after the
motion
was filed--the
court
must,
after
giving
an
appropriate opportunity to be heard, require the party . . . whose
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conduct
necessitated
reasonable
expenses
attorney’s fees.”
the
motion,
incurred
in
.
.
making
.
to
the
pay
the
motion,
movant’s
including
Fed. R. Civ. P. 37(a)(5)(A) (emphasis added).
The Court’s obligation to award expenses in this situation is
limited by only three scenarios:
(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 justified; or
(iii) other circumstances make an award of expenses
unjust.
Fed. R. Civ. P. 37(a)(5)(A).
The Court finds none of these
limitations applicable.
First, with respect to subsection (i), the Court notes that
Defendant initially sought to address perceived deficiencies via
letter sent December 5, 2011, and filed the instant Motion only
after Plaintiff did not adequately respond to those requests.
Second, Plaintiff’s objection (other than as to the Social Security
records)
was
not
37(a)(5)(A)(ii).
“substantially
justified,”
Fed.
R.
Civ.
P.
Rather, notwithstanding Plaintiff’s contentions
that information after December 31, 2008, is irrelevant because
Plaintiff does not seek back pay after that date, the absence of
any similar limitation to Plaintiff’s requests for damages due to
emotional
invalidates
distress
her
and
reimbursement
objection.
Similarly,
-20-
for
medical
treatment
Plaintiff’s
employment
history after December 31, 2008, may reveal information that bears
upon Plaintiff’s emotional distress damages.
reflects no
other
circumstances
that
would
Finally, the record
make
an
award of
expenses unjust.2
Conclusion
Plaintiff has failed to carry her burden of justifying her
resistance to Defendant’s requests for information related to
Plaintiff’s medical and work histories after December 31, 2008, and
the
psychosocial
University.
assessment
Further,
performed
although
the
on
Court
Plaintiff
declines
by
to
Duke
order
Plaintiff to provide the records of Dr. Clary given Plaintiff’s
agreement to do so, no justification exists for Plaintiff’s failure
to produce such discovery until after Defendant moved to compel.
With respect to Plaintiff’s Social Security records, the Court
declines to compel Plaintiff to produce documents absent a further
showing that such materials fall within Plaintiff’s “possession,
custody, or control,”
Fed. R. Civ. P. 34(a)(1).
Finally, the
circumstances of this case present no basis to ignore the feeshifting provisions of Fed. R. Civ. P. 37(a)(5).
IT IS THEREFORE ORDERED that Defendant’s Motion to Compel
(Docket Entry 23) is GRANTED IN PART in that:
2
Because the Court will not grant Defendant’s instant Motion
as it relates to Social Security records, the Court will require an
apportioning of the expenses to discount for that aspect of the
instant Motion and will permit Plaintiff further opportunity to be
heard. See Fed. R. Civ. P. 37(a)(5)(C).
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(1)
by April 11, 2012, Plaintiff shall supplement her prior
responses to Defendant’s discovery requests to provide responsive
information
from
after
December
31,
2008,
as
well
as
the
psychosocial assessment performed at Duke University;
(2)
Plaintiff shall pay an apportioned amount of Defendant’s
reasonable expenses incurred in bringing the instant Motion;
(3)
on or before April 11, 2012, Defendant shall serve
Plaintiff with a statement of the reasonable expenses, including
attorney’s fees, resulting from Defendant’s making of the instant
Motion, reduced in a reasonable fashion to account for the fact
that the Court did not grant any relief as to the Social Security
records;
(4)
if Plaintiff contests the reasonableness of any such
expenses, on or before April 25, 2012, Plaintiff shall file a
memorandum of not more than five pages along with a certification
that Plaintiff has attempted to confer in good faith with Defendant
about that subject;
(5)
on or before May 9, 2012, Defendant may file a response
of not more than five pages to Plaintiff’s foregoing memorandum;
and
(6)
on or before May 16, 2012, Plaintiff may file a reply of
not more than five pages to any such response by Defendant.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
Date:
March 29, 2012
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