Reber v. Laboratory Corporation of America et al
OPINION AND ORDER denying Plaintiff's 67 Motion to Compel and granting Defendants' 77 Motion for Costs and Fees. Defendants must file a supplemental memorandum in support of its requested attorneys' fees and expenses within fourteen (14) days of the date of this Order. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/3/2017. (kdp) Modified text on 5/3/2017 (kdp).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
BRYAN D. REBER, individually
and as Administrator of the ESTATE
OF LISA KAY REBER, Deceased,
Civil Action 2:14-cv-02694
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers
LABORATORY CORPORATION OF
AMERICA, et al.,
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion to Compel Production of ESI (ECF
No. 67), Defendants’ Memorandum in Opposition to Plaintiff’s Motion to Compel Production of
ESI and accompanying Motion for Costs and Fees (ECF No. 77), and Plaintiff’s Reply in
Support of his Motion to Compel. (ECF No. 83.) For the reasons that follow, Plaintiff’s Motion
is DENIED and Defendants’ Motion for Costs and Fees is GRANTED.
This is a medical negligence and wrongful death action in which Plaintiff, Bryan Reber,
proceeding on behalf of himself and as the Administrator of the Estate of Lisa Kay Reber,
alleges that Defendants, Medical Laboratories and a cytotechnologist, Jessica Queen, failed to
properly examine, interpret, and report the results of a Pap smear slide (“the Slide”), resulting in
delay in the diagnosis and treatment of the Decedent’s cancer and her consequent death.
Plaintiff filed this Motion to Compel on January 23, 2017. In his motion, Plaintiff asserts
that he has repeatedly requested, and not received, production of “the exact start and stop time of
Ms. Queen’s review of the subject slide.” (Plaintiff’s Motion to Compel (“Pl.’s Mot. Compel”)
at 2, ECF No. 67.) In response to his First Set of Interrogatories requesting such information,
Defendant, Jessica Queen (“Queen”), responded that she did not have the information in her
possession, custody, or control and that to the extent such responsive information existed, Queen
referred Plaintiff to Defendant LabCorp. Defendant LabCorp responded to Plaintiff’s request by
stating that “Jessica Queen screened Specimen Number 101-CS0-2055-0 at 5:35 PM Eastern
Time.” (Pl.’s Mot. Compel at 2.) On November 9, 2015, Plaintiff filed his Second Request for
Production of Documents with Defendant LabCorp, seeking production of all electronically
stored information pertaining to “the Slide.” (Id.) In response to Plaintiff’s request, Plaintiff
claims that LabCorp responded, stating that it did not have the date/time stamp of when the
review of the Slide began in its possession, custody, or control. (Id. at 3.)
In January of 2017, Plaintiffs obtained an affidavit from Jack McCrorey (“McCrorey”),
Director of Imaging Product Development at Hologic, Inc., the manufacturer of the equipment
used by LabCorp to review slides. In the affidavit, McCrorey provided Plaintiff with the exact
start and stop times spent examining the Slide. (Id. at 4.) Plaintiff asserts that in light of the
knowledge that the start and stop time was available to LabCorp, Plaintiff requested that
LabCorp update its discovery responses. Plaintiff contends that this Court should compel
production of the “requested start and end time of the review of ‘the Slide’” or alternatively
reopen discovery on this limited issue.
In response to Plaintiff’s Motion, Defendant LabCorp explains that Plaintiff has already
received the information he seeks to compel. (Defendant LabCorp’s Response in Opposition to
Plaintiff’s Motion to Compel (“Defs. Opp.”) at 1, ECF No. 77.) First, LabCorp points out that it
provided Plaintiff with the information during discovery. Defendant states that “in response to
Interrogatory No. 13, LabCorp provided the start time of Ms. Queen’s review (5:35 PM)” and
that LabCorp produced a Slide Data Record that showed the end time of Ms. Queen’s review
(5:38 PM). (Id. at 2.) Second, prior to responding to this Motion, LabCorp reached out and
“told Plaintiff that it had no objection to reopening discovery for the sole and limited purpose of
obtaining an affidavit from Hologic identifying the start and stop times of Jessica Queen’s slide
review.” (Id. at 2–3.) Plaintiff has since received this affidavit.
Plaintiff clarified his position in his Reply. (See Plaintiff’s Reply in Support of his
Motion to Compel (“Pl.’s Reply”), ECF No. 83.) Plaintiff contends that the information
provided was insufficient for two main reasons. First, he maintains it is deficient because the
information is not in an admissible form and second, because Plaintiff does not have all the
necessary information as the responses raised additional questions. Specifically, Plaintiff
contends that the start time in the affidavit of 5:34:26 p.m. is inconsistent with Defendant
LabCorp’s discovery responses of 5:35 p.m. As a result, Plaintiff requests that the Court reopen
discovery “for the narrow purpose of deposing Jack McCrorey, limited to the exploration of the
uncertainties described above.” (Id. at 7.)
LAW AND ANALYSIS
Federal Rule of Civil Procedure 37 allows for a motion to compel discovery responses
when a party fails to answer an interrogatory submitted under Rule 33 or fails to produce
documents as requested pursuant to Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iv). Evasive or
incomplete disclosures, answers, or responses must be treated as a failure to disclose, answer, or
respond. Fed. R. Civ. P. 37(a)(4). Under Federal Rule of Civil Procedure 34, a party may
request the opposing party to produce relevant documents “which are in the possession, custody
or control of the party upon whom the request is served.” Fed. R. Civ. P. 34(a)(1). However, “a
party may not be compelled to produce papers or things which are not in his possession, custody,
or control….” Cent. Sts., S.E. & S.W. Areas Pension Fund v. R-W Serv. Sys., 1984 U.S. App.
LEXIS 14002, at *6 (6th Cir. August 25, 1984) (quoting 4A J. Moore, Moore’s Federal Practice
P34.17 (2d ed. 1983 revision)).
As set forth above, Plaintiff seeks an order compelling Defendants to respond to
discovery or to reopen discovery for the limited purpose of deposing the Director of Imaging
Product Development at Hologic, Inc., Jack McCrorey. Discovery will not be reopened for the
reasons discussed below.
To begin, Plaintiff misapprehends the concept of possession, custody, or control.
Defendant provided Plaintiff with the information in its possession, custody, or control as
required. Plaintiff received the start time Defendant had in its possession in response to
Plaintiff’s Interrogatory No. 13 and Plaintiff received the stop time during the production of
documents. Plaintiff takes issue with the discrepancy between the start time provided by
Defendant, 5:35 p.m., and the start time provided by McCrorey’s affidavit, 5:34:36 p.m. (Pl.’s
Reply at 4.) Plaintiff does not contend that Defendants purposely provided a different time or
that Defendants had the 5:34:36 time in their possession. Moreover, Defendants had no
obligation to supplement their discovery responses relating to the start time because they
provided the information regarding the time they had in their possession. In re Bankers Tr. Co.,
61 F.3d 465, 469 (6th Cir. 1995) (“documents are deemed to be within the possession, custody or
control for purposes of Rule 34 if the party has actual possession, custody or control, or has the
legal right to obtain the documents on demand.”) Plaintiff never sought information from
Hologic during the discovery period. (Defs.’ Opp. at 2.) The information regarding the start
time in the McCrorey affidavit reveals information Hologic had in its possession, custody, and
control. Moreover, the first time Plaintiff took issue with the time difference was in his Reply;
he never brought this issue to Defendants’ attention during previous communications.
Further, Defendant LabCorp contacted Plaintiff on multiple occasions to explain that, in
its view, Plaintiff frivolously filed the instant Motion because “[Defendants] gave you the very
information you seek in that case; that is, the start and stop time for Jessica Queen’s slide read.
Please see LabCorp’s response to interrogatory 13, as well as the slide data record produced as
LabCorp 1515-16.” (Defs. Ex. B, ECF No. 77-2.) Defendant then asked Plaintiff to withdraw
the Motion. Additionally, Defendants asked Plaintiff to identify what information he thought he
had not been provided, but Plaintiff did not respond to Defendants’ question. (Id.)
Finally, Plaintiff takes issue with the admissibility of the evidence Defendants provided.
Specifically, Plaintiff claims that Defendants have not provided sufficient information because
they will not stipulate to the admissibility of McCrorey’s affidavit. (Pl.’s Mot. Compel at 5.)
Defendants however, have no legal obligation to stipulate to the affidavit’s admissibility and
Plaintiff has failed to provide any contrary authority. Defendant LabCorp correctly expressed to
Plaintiff that “[LabCorp] will not dispute the admissibility of the Hologic affidavit. Like any
discovery obtained during litigation from a third party, it can be used for all purposes allowed
under the Federal Rules of Civil Procedure or/and the Federal Rules of Evidence.” (Defs. Ex. B,
ECF No. 77-2.)
While a party is entitled to move for a motion to compel when the opposing party fails to
respond properly to discovery requests, Plaintiff has not shown that Defendants failed to provide
the discovery he requested. Accordingly, Plaintiff’s Motion to Compel is DENIED.
MOTION FOR COSTS AND FEES
Pursuant to Federal Rule of Civil Procedure 37, the Court has “broad, well-recognized
inherent authority to protect the administration of trials by levying sanctions in response to
abusive litigation practices.” Dietrich v. Sun Expl. & Prod. Co., No. 92-1981/93-1442, 1994
U.S. App. LEXIS 6906, at *24 (6th Cir. March 30, 1994). Under Federal Rule of Civil
Procedure 37(a)(5)(B), if a motion to compel is denied the court must . . . require the movant, the
attorney filing the motion, or both to pay the party or deponent who opposed to motion its
reasonable expenses incurred in opposing the motion, including attorney’s fees” unless the
motion was substantially justified or other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(B).
Defendant LabCorp requests this Court to award it the reasonable expenses incurred in
opposing the Motion, including attorney’s fees. (Defs. Opp. at 4.) Plaintiff opposes the award of
reasonable expenses, claiming that Defendants mischaracterized the facts to establish that his
motion was moot because they had provided the very information he sought. The Court
Defendant LabCorp’s counsel repeatedly requested Plaintiff’s counsel to withdraw the
Motion to Compel as Plaintiff had the information in his possession. Defendant also offered to
reopen discovery on a limited basis and voluntarily obtained the affidavit from Hologic.
As a result of Plaintiff’s refusal to withdraw his Motion to Compel, even after Defendants
repeatedly pointed Plaintiff towards the exact information requested, the Court concludes that
Defendants are entitled to reasonable attorneys’ fees for the fees incurred in connection with
filing the instant Motion pursuant to Federal Rule of Civil Procedure 37. Fed. R. Civ. P.
The Court encourages the parties to reach an agreement concerning the appropriate
amount of fees to be awarded. In the event the parties cannot reach such an agreement,
Defendants shall file a supplemental memorandum in support of its requested attorneys’ fees and
expenses, setting forth information that would permit the Court to assess the reasonableness of
the fees requested, including the timekeeper, rate, and explanation of work, to the extent counsel
may do so without violating the attorney-client privilege WITHIN FOURTEEN (14) DAYS
OF THE DATE OF THIS ORDER.
IT IS SO ORDERED.
Date: May 3, 2017
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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