Carter v. State Farm Mutual Automobile Insurance Company et al

Filing 29

OPINION AND ORDER by Magistrate Judge Frank H McCarthy ; granting 26 Motion to Compel (sdc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
DONNA CARTER,
Plaintiff,
vs.

Case No. 17-CV-563-CVE-FHM

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, et al.,
Defendants.
OPINION AND ORDER
Defendant State Farm Mutual Automobile Insurance Company’s Motion to Compel,
[Dkt. 26], is before the undersigned United States Magistrate Judge for decision. The
matter has been fully briefed, [Dkt. 26, 27, 28], and is ripe for decision.
Discovery was mailed to Plaintiff on November 2, 2017. Plaintiff’s responses were
mailed on December 2, 2017. On January 3, 2018, counsel for Defendant sent a letter
outlining the deficiencies in the responses and requested to meet and confer. A meet and
confer was held on February 7, 2018. Plaintiff’s counsel promised to supplement the
responses, but as of the date the motion to compel was filed, April 6, 2018, no responses
had been forthcoming. Plaintiff provided supplemental responses on the same day the
response to the motion to compel was filed, April 23, 2018.
The court finds that Plaintiff’s initial discovery responses are unacceptable. A fair
reading of Plaintiff’s discovery responses suggests they were designed to provide little to
no responsive information and delay or resist setting forth the specific facts and
circumstances which she contends support her claims. Plaintiff interposed inapplicable

objections1 to every discovery request and failed to provide responses to some basic
innocuous discovery requests. If the plainly stated requirements of Fed.R.Civ.P. 26 were
not sufficient to put Plaintiff’s attorneys on notice of the requirements imposed on parties
and counsel to respond to discovery, this court has recently informed these same
attorneys, John Paul Truskett OBA # 20550 and Samuel T. Perrine OBA # 32165, of their
obligations.
In Grubaugh v. CSAA, Case No. 17-CV-273-JED-FHM, Attorneys Truskett and
Perrine were counsel for Plaintiff. Defendant in that case filed a motion to compel after
Plaintiff provided similarly unacceptable discovery responses and counsel failed to respond
to several requests for a meet and confer. The order entered disposing of the motion to
compel advised:
It is unacceptable to answer every discovery request with a
string of general unsupported objections. Such objections
evince an uncooperativeness that is contrary to the command
that the Federal Rules of Civil Procedure are to be construed
to secure the “just, speedy, and inexpensive determination of
every action and proceeding.” Fed.R.Civ.P. 1. Furthermore,
when discovery responses are provided “subject to” boilerplate
objections or “without waiving objections” with no regard to the
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Interrogatory No. 1 stands as an example of the nonsensical and inapplicable
objections interposed:
Interrogatory No. 1: State all personal information about
yourself. Specifically, full name, previous names known by,
social security number, driver’s license number, date of birth,
address, present telephone number, present employer, and
present employer’s telephone number.
Response:
Objection,
compound,
irrelevant,
private/confidential information, public information is equally
available to Defendant, vague, confusing, unlimited
timeframe, irrelevant.
[Dkt. 26, p. 4].
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applicability of those objections, it is unclear whether the
discovery request has received a complete response. In
addition, such objections may violate the requirement of
Fed.R.Civ.P. 26(g)(1)(B) that every objection is warranted by
existing law or a nonfrivolous legal argument and not
interposed for delay.
The objection that a discovery request is vague or ambiguous
can almost always be resolved by phone calls or meetings
between counsel. Therefore the objection that a discovery
request is vague or ambiguous should almost never appear in
a discovery response. The court expects that the additional
supplement to Plaintiff’s discovery responses will not contain
these or other specious objections.
Grubaugh v. CSAA General Insurance Co., 2018 WL 445108, *1 (N.D. Okla., Jan. 16,
2018). The order in Grubach was entered on January 16, 2018, after the initial discovery
responses at issue in this case, but before the meet and confer in this case, before the
April 6 filing of the instant motion to compel, and before the April 23, 2018 letter from
Attorney Perrine that purports to be a supplemental discovery response. [Dkt. 27-1].
Counsel for Plaintiff were thus made personally aware that what appear to be their standard
objections to routine discovery are not acceptable.
The problem with interposing baseless objections as Plaintiff’s counsel have done
in this case is not rectified or ameliorated by making supplemental responses after the
opponent has been put to the trouble of filing a motion to compel. At a bare minimum, the
actions of Plaintiff’s attorneys have delayed Defendant’s receipt of basic information by
months. The court rejects Plaintiff’s assertion that Defendant’s motion is premature.
Fed.R.Civ.P. 33(b)(1)(B)(2) and 34(b)(2)(A) provide that discovery responses are due
within 30 days after being served. Taking an obstructionist discovery posture does not
serve to lengthen this time frame.
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Under Fed.R.Civ.P. 37(a)(5)(A), unless conditions not present here exist, when a
motion to compel is granted or when requested discovery is provided after a motion to
compel is filed, the court must require the party whose conduct necessitated the motion or
counsel advising the conduct to pay the reasonable expenses in making the motion,
including attorney fees. In view of the similar discovery problems encountered in Grubach
and in view of the fact that the same attorneys are involved, the court finds that Plaintiff’s
counsel, Perrine and Truskett, are responsible for the current discovery problems and that
it is appropriate for the expenses of the instant motion, including attorney fees to be
assessed against them. Counsel have had an opportunity to be heard on this topic in the
form of their response to the motion to compel. That response contains no excuse or
justification for their resistance to discovery. Contrary to the assertions contained in
Plaintiff’s response brief, the court sees no abuse in Defendant’s discovery.
The following discussion addresses the matters identified in Defendant’s reply brief
as being outstanding after Plaintiff’s supplemental responses.
Identity of Plaintiff’s Health Care Providers
In this personal injury case, Plaintiff claims physical and mental injuries as part of
her damages. Defendant sought discovery of the identities of Plaintiff’s health care
providers, in part, to see if there were other possible causes or contributors to Plaintiff’s
injuries. Plaintiff objects to providing the identities of any health care providers other than
those Plaintiff determines are related to the body parts at issue in the case.

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Plaintiff relies on Nitzel v Jackson, 879 P.2d 1222 (Okla. 1994) and 12 Okla.Stat.
§2503 as authority for resisting disclosure of the identity of Plaintiff’s other health care
providers. On their face, these authorities do not provide any protection from discovery of
the identity of Plaintiff’s health care providers. Nitzel holds, in part, that the patientphysician privilege is waived only to the extent of the condition claimed to have been
caused by the negligence and that filing a personal injury claim does not require a plaintiff
to execute a general authorization which would enable the defendant to obtain all of the
plaintiff’s medical records. Answering a question about the identity of past health care
providers does not equate to signing a blanket medical release. Nor does answering the
question disclose any communications between Plaintiff and her health care providers so
as to implicate any privilege.
While it is certainly understandable and proper for Plaintiff to want to protect her
privacy in her unrelated medical history, Defendant also has a strong interest in discovering
whether there were other causes or contributors to the injuries Plaintiff is claiming.
Plaintiff’s approach leaves Defendant with only Plaintiff’s unilateral determination of what
medical history is related and what is not. At this point, Defendant is only seeking the
identities of Plaintiff’s health care providers, not the medical records or communications
with the health care providers.

In this situation, the balance supports granting the

discovery. Defendant’s motion is granted as to Interrogatory No. 2.
If after receiving the identities of Plaintiff’s health care providers Defendant seeks
discovery from Plaintiff’s health care providers, the court expects good faith cooperation
and communication between counsel. This cooperation and communication may include

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a discussion concerning the general nature of Plaintiff’s prior health care so that the
discovery does not unnecessarily intrude on unrelated areas.
Interrogatory Nos. 22, 23, 24, 25
These interrogatories seek an explanation of the factual support for particular
allegations in Plaintiff’s amended petition. Plaintiff initially interposed a litany of inapplicable
objections which she has made no effort to defend in her response brief.

In her

supplemental response Plaintiff made a verbatim recitation of some of the allegations
contained in her amended petition. Plaintiff’s supplemental responses do not sufficiently
answer the interrogatories. Fed.R.Civ.P. 33(a)(2) provides that an interrogatory is not
objectionable merely because it asks for an opinion or contention that relates to fact or the
application of law to fact.
Defendant State Farm Mutual Automobile Insurance Company’s Motion to Compel,
[Dkt. 26], is granted as to Interrogatory Nos. 22, 23, 24, 25.
Conclusion
Defendant State Farm Mutual Automobile Insurance Company’s Motion to Compel,
[Dkt. 26], is GRANTED as set out herein. Plaintiff and her counsel are advised that failure
to provided properly executed discovery responses in accordance with this order may result
in further sanctions under Fed.R.Civ.P. 37.
The REASONABLE expenses incurred in making the motion to compel, including
REASONABLE attorney’s fees, are assessed against Plaintiff’s attorneys John Paul
Truskett, OBA # 20550, and Samuel T. Perrine, OBA # 32165. Counsel for the parties are

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directed to meet and confer about the amount. If no agreement can be reached, Defendant
may file a motion for the court to determine the amount.
SO ORDERED this 6th day of June, 2018.

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