Rodriguez et al v. Warren Theatres LLC et al

Filing 92

ORDER denying 78 Motion to Compel. Signed by Honorable Timothy D. DeGiusti on 2/3/2017. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NAIR RODRIGUEZ, as next of kin to )
THE ESTATE OF LUIS RODRIGUEZ, )
et al.,
)
)
Plaintiffs,
)
)
v.
)
)
WARREN THEATRES, LLC, et al.,
)
)
Defendants.
)

Case No. CIV-16-150-D

ORDER
Before the Court is the Motion to Compel [Doc. No. 78] of Defendants Midwest
Regional Medical Center, LLC, Jason Smith, and Guy Rodolph (collectively, the “EMS
Defendants”), filed pursuant to Fed. R. Civ. P. 37(a). Plaintiffs have responded in
opposition to the Motion, which is fully briefed.
The EMS Defendants seek to obtain from Plaintiffs: a signed authorization for
release of the decedent’s medical records; documents responsive to discovery requests
issued before the case was removed to federal court and orally requested during the
deposition of Nair Rodriguez; and a signed expert report to replace an unsigned report
previously provided by Plaintiffs. In response, Plaintiffs assert that the EMS Defendants
issued discovery in state court and “have never issued discovery in this case,” meaning
the federal court case governed by the Federal Rules of Civil Procedure. See Pls.’ Resp.
Br. [Doc. No. 85], ¶¶ 2-3. Further, Plaintiffs contend they have already provided a signed
expert report and have been working cooperatively with the EMS Defendants to produce

other requested documents. Plaintiffs assert that the “Motion to Compel is completely
unnecessary” and “is premature.” Id., ¶¶ 10,13. In reply, the EMS Defendants admit
their written discovery requests were issued in state court, but they argue that requiring
them to reissue the requests after removal “would be a waste of time and resources;” they
argue in favor of a rule that all “pleadings and discovery filed in state court have full
force and effect in federal court.”

See Reply Br. [Doc. No. 86], p.2.

The EMS

Defendants also complain of Plaintiffs’ delay in providing materials they had previously
agreed to produce. Id. p.3.
The rule advocated by the EMS Defendants is contrary to LCvR81.2(c), which
provides: “In the absence of contrary stipulation or court order, discovery pending in
state court at the time of removal is considered void.” Further, the Federal Rules of Civil
Procedure require certain initial disclosures but otherwise prohibit a party from
“seek[ing] discovery from any source before the parties have conferred as required by
Rule 26(f),” absent a stipulation of the parties or court order.

See Fed. R. Civ.

P. 26(d)(1). The parties submitted their Joint Status Report and Discovery Plan [Doc.
No. 50], on August 25, 2016, stating the discovery conference was held August 16, 2016.
Thus, unless the parties stipulated otherwise, that was the first date for issuing written
discovery requests in this case.

Also, the Court entered a Scheduling Order on

August 30, 2016, setting a deadline of March 7, 2017, for Plaintiffs to disclose expert
witnesses and provide expert reports. Plaintiffs are not obligated to provide expert
disclosures before that deadline.
2

For these reasons, the Court agrees with Plaintiffs that the EMS Defendants’
Motion is premature. However, the Court encourages counsel for the parties to continue
working together cooperatively to provide discovery materials and to resolve discovery
matters by stipulation or agreement. Further, under the circumstances, the Court finds
that no award of expenses incurred in opposing the Motion should be made. See Fed. R.
Civ. P. 37(a)(5)(B).
IT IS THEREFORE ORDERED that the Motion to Compel [Doc. No. 78] is
DENIED, without prejudice to a future motion as appropriate.
IT IS SO ORDERED this 3rd day of February, 2017.

3