MKB Management Corp et al v. Burdick et al
Filing
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ORDER Ruling on Scope of Discovery, Discovery Disputes, and Schedules. By Magistrate Judge Charles S. Miller, Jr. (BG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
MKB Management Corp, d/b/a Red River
Women’s Clinic, and Kathryn L.
Eggleston, M.D.,
Plaintiffs,
vs.
Birch Burdick, in his official capacity as
State Attorney for Cass County; Wayne
Stenehjem, in his official capacity as
Attorney General for the State of North
Dakota; and Larry Johnson, M.D., Robert
Tanous, D.O., Kate Larson, P.A.C.,
Norman Byers, M.D., Cory Miller, M.D.,
Kayleen Wardner, Gaylord Kavlie, M.D.,
Kent Martin, M.D., Kent Hoerauf, M.D.,
Burt Riskedahl, Jonathan Haug, M.D.,
Genevieve Goven, M.D., and Robert J.
Olson, M.D., in their official capacities as
members of the North Dakota Board of
Medical Examiners,
Defendants.
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ORDER RULING ON
SCOPE OF DISCOVERY,
DISCOVERY DISPUTES, AND
SCHEDULING
Case No. 1:13-cv-071
______________________________________________________________________________
I.
BACKGROUND
Plaintiffs in this case challenge the constitutionality of 2013 N.D. Sess. Laws ch. 119, §§ 1-
3, codified at N.D.C.C. §§ 14-02.1-05.1,14-02.1-05.2, & 43-17-31(29), that bans abortions if a fetal
heartbeat can be detected, except in cases of medical emergency, by making the performance of such
an abortion a criminal act and grounds for disciplinary action against the doctor performing it (“fetal
heartbeat law”). On July 22, 2013, District Judge Hovland granted a temporary injunction enjoining
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its enforcement. MKB Management Corp. v. Burdick, No. 1:13-CV-071, 2013 WL 3779740
(D.N.D. July 22, 2013) (“MKB Management”). The temporary injunction currently remains in place.
On August 26, 2013, Judge Hovland conducted a telephonic status conference and the next
day entered the following order setting deadlines for the filing of dispositive motions and allowing
limited discovery:
1)
The parties shall have until October 15, 2013, to file dispositive motions
2)
The parties shall have until December 15, 2013, to file responses to the dispositive
motions
3)
The parties shall have until January 15, 2014, to file any reply briefs
4)
The parties are allowed to serve discovery requests (interrogatories, requests for
admission, etc.) during the above time frame
5)
Depositions shall be completed on or before December 15, 2013, and no more than
three (3) depositions shall be allowed during this time frame.
Before the court are disputes between plaintiffs and defendants (collectively the “State”)
over: (1) the scope of discovery; (2) particular discovery requests; and (3) schedule matters. The
court held a telephonic hearing on the disputes on November 12, 2013. During the hearing, the court
made on-the-record rulings with respect to the scope of discovery and the discovery requests in
dispute. What follows is the court’s written order summarizing the court’s rulings.
II.
DISCOVERY DISPUTES
A.
Scope of discovery
The court’s rulings restricting the scope of discovery pending resolution of an early
dispositive motion are reflective of the fact that, for all practical purposes, this case has been decided
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unless the State is able to demonstrate that viability begins on or before the time when a fetal
heartbeat can be detected. This appears to be unlikely.
In the court’s order granting the preliminary injunction, Judge Hovland made clear that this
court is bound by prior United States Supreme Court precedent governing when a woman has the
right to choose to have an abortion, including at what point the State cannot prohibit the exercise of
that right. In summarizing that law, he observed:
A woman’s constitutional right to terminate a pregnancy before viability has
consistently been upheld by the United States Supreme Court in the forty years since
Roe v. Wade. See e.g., City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462
U.S. 416, 420, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (a woman has a constitutional
right to terminate her pregnancy) (overruled on other grounds); Casey, 505 U.S. at
846, 112 S.Ct. 2791 (a woman has a right to an abortion before viability without
undue interference from the state); Stenberg, 530 U.S. at 921, 120 S.Ct. 2597 (a
woman has the right to choose an abortion before viability); Gonzales, 550 U.S. 124,
127 S.Ct. 1610 (the state may not prevent “any woman from making the ultimate
decision to terminate her pregnancy”).
The right to terminate a pregnancy is not absolute, and must be balanced with
the state’s interest in protecting the woman’s health and the potential life of the fetus.
Roe, 410 U.S. at 162, 93 S.Ct. 705. After the fetus becomes viable, a state’s interest
in protecting its potential life becomes compelling enough in certain circumstances
to outweigh the woman’s right to seek an abortion. See Casey, 505 U.S. at 845–46,
112 S.Ct. 2791. However, it is clear that before viability, “the State’s interests are not
strong enough to support a prohibition of abortion or the imposition of a substantial
obstacle to the woman’s effective right to elect the procedure.” Id. The state can
impose regulations aimed at ensuring a thoughtful and informed choice, but only if
such regulations do not unduly burden the right to choose. Id. at 872, 112 S.Ct. 2791.
The Supreme Court’s central holding in Roe and Casey is that viability marks the
earliest point at which a state’s interest in fetal life may be adequate to justify a ban
on non-therapeutic abortions. Thus, it is well-established in United States Supreme
Court precedent that before viability a woman has a right to choose to terminate her
pregnancy.
MKB Management, at *7 (italics added).
Judge Hovland next considered the medical evidence proffered by plaintiffs that (1) viability
generally occurs 23 or 24 weeks after commencement of the pregnancy (which is reflective of
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conclusions reached in other recent cases and is somewhat less than the time period discussed in Roe
given advances in medical care), and (2) that a fetal heartbeat can be detected beginning in about the
sixth week of pregnancy. Id. at **6, 8-10. He then concluded, based on the proffered medical
evidence as to when the fetal heartbeat can be detected relative to when viability occurs (medical
evidence which was not contested by the State at that point), that the prohibition enacted by the fetal
heartbeat law is directly contrary to the prior Supreme Court cases prohibiting states from imposing
bans on abortion before viability, and that this court is bound to follow that precedent. Id. at *10.
Judge Hovland concluded his discussion stating:
A woman’s constitutional right to terminate a pregnancy before viability has
been recognized by the United States Supreme Court for forty years. The undersigned
is bound to follow that precedent and uphold the law. Because the United States
Supreme Court has clearly determined the dispositive issue presented in this dispute,
this Court is not free to impose its own view of the law. The State of North Dakota
has presented no evidence to justify the passage of this troubling law. The State has
extended an invitation to an expensive court battle over a law restricting abortions
that is a blatant violation of the constitutional guarantees afforded to all women. The
United States Supreme Court has unequivocally said that no state may deprive a
woman of the choice to terminate her pregnancy at a point prior to viability. North
Dakota House Bill 1456 is clearly unconstitutional under an unbroken stream of
United States Supreme Court authority.
Id. at *13.
The State contends that it should be permitted expansive discovery even though there is little,
if anything, that remains to be resolved unless the State can demonstrate that viability occurs at or
before the time that a fetal heartbeat can be detected, which appears improbable. One argument
made by the State is that certain language in the Supreme Court’s opinion in Gonzales v. Carhart,
550 U.S. 124 (2007) suggests that the Supreme Court has already abandoned its holdings in Roe and
Casey that a state may not prohibit a woman from exercising her right to choose prior to viability and
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that a state can impose restrictions that amount to a prohibition if a state can demonstrate a
substantial state or public interest in protecting the fetus and the health of the mother. The problem
with this argument is that Judge Hovland has already considered the State’s argument that Gonzales
altered the landscape in terms of the holdings in Roe and Casey that a woman has the right to choose
to have an abortion up to the point of viability and rejected that argument. MKB, at *4.
The State’s next argument is that a substantial part of its defense of the fetal heartbeat law
will be a challenge to the essential holdings in Roe and Casey that a state may not prohibit a woman
from exercising her right to choose prior to viability and that it is entitled to expansive discovery in
order to create a record to support the challenge. And here, Judge Hovland has clearly stated that
this court is bound by what the Supreme Court has decided in Roe and Casey.
Notwithstanding what Judge Hovland has decided, the State contends it is entitled to
expansive discovery to help create a record that will demonstrate its substantial interests in restricting
the performance of abortions prior to viability, if not in hope that it will persuade Judge Hovland to
change his mind when he rules on dispositive motions, then for the purpose of creating a record for
appeal. The court concludes that the State should not be permitted the expansive discovery it seeks
- at least not at this time - for the following reasons:
C
First, given the nature of plaintiffs’ challenge to the fetal heartbeat law and what
remains to be decided, the State does not have an absolute right to this discovery
under the federal rules of procedure or otherwise. See, e.g., Allno Enterprises, Inc.
v. Baltimore County, MD, 10 Fed.Appx. 197, 203–04 (4th Cir. 2001) (unpublished
per curiam); Act Now to Stop War and End Racism Coalition v. District of
Columbia, 286 F.R.D. 117, 131 & n.7 (D.D.C. 2012); Shelby County, Ala. v. Holder,
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270 F.R.D. 16, 19-20 (D.D.C. 2010); National Paint & Coatings Ass’n v. City of
Chicago, 147 F.R.D. 184, 185 (N.D. Ill. 1993); cf. Shelby County, Ala. v. Holder, __
U.S. __, 133 S.Ct. 2612 (2013) (reaching the constitutional issue and abrogating
provisions of the Voting Rights Act despite the lower court’s restrictions on
discovery); Davis v. Federal Election Com’n, 554 U.S. 724 (2008) (reaching the
constitutional issue and declaring the “Millionaire’s Amendment” to the Bipartisan
Campaign Reform Act to be unconstitutional despite the lower court’s rejection of
FEC’s contention that it needed substantial discovery).
To the contrary, Fed. R. Civ. P. 26(b)(1) limits discovery to that which is
relevant or is likely to lead to the discovery of admissible evidence.1 In addition, a
court may further limit the discovery of arguably relevant evidence under Rule
26(b)(2)(C)(i)&(iii) when, among other things, the information can be obtained from
other sources that are less burdensome or less expensive or when “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.” E.g., Steede v. General Motors, LLC, No. 11–2351, 2013 WL 142484, at *7
(W.D. Tenn. Jan. 11, 2013); Andrades v. Holder, 286 F.R.D. 64, 66 (D.D.C. 2012).
Further, Fed. R. Civ. P. 16 vests the court with substantial discretion over the
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The State contends that a number of its discovery requests are relevant to matters alleged in the plaintiffs’
complaint. To the extent that may be true, the legal determinations made by Judge Hovland have narrowed the issues
for the court’s consideration. Further, a number of the allegations in plaintiffs’ complaint were directed toward
establishing a basis for preliminary relief and are not necessarily relevant when considering the merits.
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management of the case before it, including the power to sequence the resolution of
the issues that need to be decided and the timing of the discovery related to those
issues. See, e.g., Pacific Indem. Co. v. Broward County, 465 F.2d 99, 103 (5th Cir.
1972).2
C
Second, given the clearly established Supreme Court precedent extending back for
forty years, plaintiffs should not be required to incur the substantial costs and other
burdens of the expansive discovery the State requests based upon the mere hope that
it can later convince the Eighth Circuit Court of Appeals, or perhaps, the United
States Supreme Court that either Judge Hovland is wrong as a matter of law or that
Roe and Casey should be abrogated.
C
Third, the State’s discovery requests are highly invasive of plaintiffs’ patients’ rights
to the confidentiality of their medical records.
C
Fourth, the State has other sources it can turn to for the information it claims it needs
to support its Gonzales argument and its challenge to Roe and Casey. Given the
arguments that it wants to make and what is at issue, the State can rely upon any
determinations made by the North Dakota Legislature as reflected in the statute or its
legislative history. The State can retain its own experts and present their affidavit
testimony, including attaching any studies or treatises that they may rely upon. The
State can present affidavits from cooperating lay persons to demonstrate what it
claims are the negative impacts on a woman’s health who have abortions rather than
2
In several recent cases, this court has directed the sequence in which issues would be resolved and limited
discovery accordingly. E.g., Star Ins. Co. v. Continental Resources, Inc., No. 4:12–cv–121, 2013 WL 1702653 (D.N.D.
Apr. 19, 2013); Pieloor v. Gate City Bank, No. 1:12–cv–039, 2012 WL 4894683 (D.N.D. Oct. 15, 2012).
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“root around” in plaintiffs’ patients’ records hoping to find such information. The
State can proffer records of statistical information gathered by the state agencies that
have regulatory authority in this area. The State can also point to “legislative facts”
of the type that reviewing courts often rely upon in considering whether
constitutional precedents like Roe and Casey should be overturned, even when not
developed in the record. See, e.g., Issacson v. Horne, 716 F.3d 1213, 1220 n.7 (9th
Cir. 2013) (discussing the use by the courts of “legislative facts”). In fact, the State
has already gathered substantial information using these other available sources and
has presented it to the court in opposition to plaintiffs’ motion for a temporary
injunction.
C
Fifth, because of the substantial burdens that the State’s requested discovery imposes
on plaintiffs and the degree to which it invades upon plaintiffs’ patients’ rights to the
confidentiality of their medical records, this court is likely to be burdened with
having to resolve a number of difficult disputes over the particulars of the discovery.
C
Finally, if for some reason this court denies an early motion for summary judgment,
the court can revisit the issue of what discovery should be allowed going forward.
Further, the same holds true if this court proceeds to permanently enjoin enforcement
of the fetal heartbeat law, the court is reversed on appeal, and the case comes back
on remand.
Based on the foregoing, the court concludes that the discovery in this case should generally
be limited to the questions of when viability occurs, when a fetal heartbeat can be detected, and the
relationship between the two - at least pending resolution of an early dispositive motion as
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contemplated by Judge Hovland’s earlier order. In addition, although it appears plaintiffs’ standing
is well-established, some discovery regarding that issue may be undertaken if the State is going to
contest it. Finally, some limited information may be sought for purposes of background and context
as well as information that, within reason, may bear upon the credibility of those persons who may
be presenting evidence with respect to the limited issues identified above.3
B.
Scheduled depositions
Plaintiffs have expressed concerns about the upcoming depositions and whether the attorneys
for the State will proceed on a course reflective of the breadth of the written discovery that has been
propounded to date. The court, however, believes that the attorneys for the State understand the
scope of the court’s rulings and will attempt in good faith to abide by them. Consequently, the court
declines the request to sit in and monitor the depositions. However, if issues arise and the parties
in good faith cannot resolve them, the parties can call the undersigned or make their record and
submit the deposition transcripts to the court for resolution of any disputes.
The attorneys for the State have expressed concern about whether they need to ask certain
questions and receive an objection in order to make a record. While the attorneys for the State will
have to make their own judgment, the court questions the necessity of their having to do that given
the court’s ruling regarding the scope of discovery during the hearing and in this written order and
what the court understands to be the State’s objections to it as expressed during the hearing. Further,
as the court has indicated, more expansive discovery may be permitted if circumstances change, e.g.,
the court denies an early dispositive motion or the case comes back following an appeal, and this
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It appears plaintiffs have already provided the State with most of this information but limited questioning on
these matters may be undertaken during the scheduled depositions.
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broader discovery could very well include supplemental depositions of those who are now scheduled
to be deposed.
C.
Court’s rulings on the written discovery that has been propounded
During the November 12 hearing, the court made on-the-record rulings with respect to the
following discovery requests and ordered either that plaintiffs did not have to respond to the requests
or that further responses were not necessary:
1.
Defendants’ requests for admissions (second set) numbers 1-4, 10, 12, 14-16, 18, &
20.
2.
Defendants’ requests for production of documents (second set) numbers 2-5, & 9-10.
Generally speaking, most of the requests went beyond the limited discovery that the court
determined was appropriate. In addition, most of the discovery requests were deficient for other
reasons as well. Some were irrelevant even when measured by the State’s arguments for why it
needed the information. Some were vague or argumentative. Many were overly broad, unduly
burdensome in terms of the amount of time and costs required for a response, and/or unduly intrusive
upon the rights of plaintiffs, their employees, and their patients - particularly when balanced against
the State’s ability to gather the information from other sources, including, for some of the
information requested, the State regulatory authorities that already compile it. In fact, a number of
the discovery requests suffered from multiple other deficiencies.4
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Examples of some the requests that the court found objectionable on several grounds include:
REQUEST FOR ADMISSION NO. 2: Admit that an unborn child is a human being or person which
has life, and even prior to the process of birth can experience death.
REQUEST FOR ADMISSION NO. 4: Admit that when a physician is treating a pregnant woman, that
both the pregnant woman and the unborn child are the physician’s patients.
(continued...)
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III.
SCHEDULE
Defendants express some concern about the schedule established by Judge Hovland prior to
the court ruling on the discovery disputes. However, at the conclusion of the hearing and after the
court had made its rulings, both parties concluded that, at least for the present, they wanted to
continue with the same schedule. If that changes, the parties should try to stipulate to what they
believe would be reasonable in terms of any proposed changes. That being said, the court most
likely is prepared to be flexible if some additional time is later required.
IV.
ORDER
Until the court rules on an early dispositive motion within the framework established by
Judge Hovland, the scope of the permitted discovery shall be in accordance with this order. The
particular discovery requests by the State as discussed earlier are DENIED for the reasons expressed
by the court on the record during the hearing on November 12, 2013, and as further stated in this
written order.
IT IS SO ORDERED.
Dated this 15th day of November, 2013.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court
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(...continued)
REQUEST FOR PRODUCTION OF DOCUMENTS NO. 9: Identify and produce all documents
relating to abortions performed by you from and after January 1, 2003 to the present date.
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