Quinones v. University of Puerto Rico et al

Filing 93

OPINION AND ORDER regarding 77 Motion for extension of time; 82 Response in Opposition; 84 Emergency Motion; 85 Response in Opposition; 87 Informative Motion; 89 Motion In Compliance; and 90 Motion In Compliance. Signed by US Magistrate Judge Marcos E. Lopez on 6/8/2015. (MT)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

KARINA QUIÑONES,
Plaintiff,
v.

CIVIL NO.: 14-1331 (MEL)

THE UNIVERSITY OF PUERTO RICO,
et al.,
Defendants.

OPINION AND ORDER
On August 14, 2014, an initial scheduling conference was held in this case at which the
following deadlines were set: August 29, 2014 to serve written discovery, including
interrogatories, requests for production of documents, and requests for admissions; 30 days from
the date of service to respond to written discovery requests; October 10, 2014 for plaintiff’s
deposition to be taken; February 27, 2015 for the conclusion of all other depositions and for the
conclusion of the discovery; and April 10, 2015 to file motions for summary judgment. ECF No.
39. On January 21, 2015, defendants filed a motion to dismiss for lack of prosecution, informing
the court, among other things, that plaintiff had not responded to their written discovery requests,
which defendants served in compliance with the deadline, on August 29, 2014. See ECF No. 54.
The court denied defendants’ motion to dismiss for lack of prosecution on February 17, 2015,
ordering the parties “to meet in good faith to resolve any pending discovery disputes as required
by Local Rule 26 . . . .” ECF No. 62. On April 6, 2015, the court granted in part and denied in
part defendants’ request for additional discovery, setting a deadline of May 22, 2015 for the
conclusion of discovery and a deadline of July 1, 2015 to file dispositive motions. ECF No. 72.

On May 5, 2015, defendants filed a motion for an additional extension of time, in which
they request until August 15, 2015 to conclude discovery and until September 30, 2015 to file
motions for summary judgment (ECF No. 77). They assert that since the court reopened the
discovery period on April 6, 2014 they “made efforts designed to get their discovery on track,”
but that the only document plaintiff provided them was a medical record concerning her onemonth stay from March 5, 2011 until April 5, 2011 (see ECF No. 89, at 6) at the Watershed
Rehabilitation Facility in Florida (the “Watershed record”), which plaintiff produced to them on
April 20, 2015 although it had been in her possession since at least March 26, 2015.1 ECF No.
77, at 2-3. Defendants claim that the Watershed record revealed to them that plaintiff had been
treated by physicians that she had not mentioned in her answers to defendants’ interrogatories
and that “[p]laintiff’s conditions are far more serious and go deeper than her addictions alone
might suggest.” Id. On April 21, 2015, defendants began requesting that plaintiff supplement her
answers to interrogatories and provide either her medical records from those providers or
medical record authorizations so that defendants could obtain the records through subpoenas. Id.
at 3; see also ECF Nos. 77-5, 77-6, 77-7. On May 1, 2015 plaintiff provided the medical record
authorizations that defendants requested. ECF No. 77, at 3. Defendants seek the additional time
for discovery in order to obtain additional medical records and “to determine whether [it] is
necessary

to

submit

[p]laintiff

to

an

independent

medical/psychiatric/psychological

examination(s), pursuant to Fed. R. Civ. P. 35.” Id. at 10-11. Plaintiff opposed the request for an
extension of time, asking in the alternative for the court to permit her to conduct additional

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Defendants include several e-mails that defense counsel sent to plaintiff’s counsel attempting to confer regarding
the remaining discovery. See ECF Nos. 77-2, 77-3, 77-4.

2

discovery, if the court were to grant defendants’ request for an enlargement of the discovery
period.2 ECF No. 82.
On May 20, 2015, defendants filed an “emergency motion,” reiterating their request for
an extension of time and requesting an order “authorizing them to take [plaintiff’s] deposition
over no more than 3 days,” instructing the parties to dispense with the use of an interpreter
during [p]laintiff’s deposition,” and authorizing defendants to postpone her deposition, which
was scheduled for May 21, 2015, until after defendants received all of plaintiff’s medical
records. ECF No. 84. They informed the court that on May 20, 2015, plaintiff’s counsel had
requested the use of an interpreter for plaintiff’s deposition for the first time, despite defendants’
contention that plaintiff is fluent in the English language. Id. at 2-3. Plaintiff responded to
defendants’ motion, informing the court that on May 19, 2015 at 7:33 p.m. defendants sent
plaintiff’s counsel an e-mail informing them that plaintiff’s deposition would be taken in English
and “that if they did not hear from [plaintiff’s counsel] they [would] understand that the
deposition would indeed be taken in English.” ECF No. 85. Plaintiff’s counsel responded to
defense counsel the following day, at 12:39 p.m., informing defense counsel that plaintiff
“indeed needed an interpreter.” Id. at 2. Plaintiff argues that her request for an interpreter “is not
a capricious one” and that although she can understand English and have an conversation in
English, “her maternal language is Spanish” and she “needs an interpreter to be present at her
deposition in order to help her in the process of providing the best answers possible for the
record of this case.” Id. On May 21, 2015, plaintiff informed the court that she arrived to

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Additionally, plaintiff requests that “paragraph 2.8” of defendants’ motion for an enlargement of time, which
includes a description of her substance abuse history from the Watershed record, be stricken from the record,
arguing that it is irrelevant to the decision of whether to allow additional time for the completion of discovery. ECF
No. 82, at 2, 5. The request to strike is denied, as the contents of the Watershed record are in fact pertinent to the
matter of whether defendants’ need for additional time; however, defendants’ motion for extension of time will
remain under restricted access.

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defense counsel’s offices for her scheduled deposition and was informed that defense counsel
had cancelled the deposition, via an e-mail sent at 10:24 p.m. the prior evening. ECF No. 87-1.
The e-mail states:
Dear counsel,
Given the positions you articulated in your Response filed today,
no good would come from trying to begin the deposition today. For
instance, you insist in the use of an interpreter and in the 7-hour
limit. That means that in 7 hours, the real time of questions and
answers would be 4 hours at the most, given the time wasted in the
translation of questions and answers. That is, you want to have
your cake and to it too; but the Court would have to agree with
you. Thus, we will wait for a Court ruling and we are hereby
cancelling [p]laintiff’s deposition until further notice. Thank you.
Cordially,
Roberto Ariel Fernández
ECF No. 89-2.
On May 27, 2015, the court ordered plaintiff’s counsel and defendants’ counsel to certify
as officers of the court certain matters regarding the pending disputes and ordered plaintiff to
provide a statement under penalty of perjury providing clarification as to her knowledge of the
English language. ECF No. 88. The motions in compliance with the court’s order (ECF Nos. 89,
90) are noted. Taking into consideration the contents of those motions and the procedural history
summarized above, it is evident that the conduct of both sides throughout the discovery process
has fallen below par and has led to unnecessary delays in this case.
Plaintiff alleged in the complaint that she “has a record of mental impairment or
disability” and that during March 2011 she “enrolled in an alcohol rehabilitation program” at
which she was prescribed Adderall “to enhance focus during her residency program.” ECF No.
1, ¶¶ 10, 26-27. In defendants’ requests for written discovery, served on August 27, 2014, they
requested, inter alia, that plaintiff “[d]escribe in full detail what was the mental impairment of
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disability [she] referred to in paragraph 10 of [her] Complaint, when it started, who diagnosed it
and the treatment that [she] underwent as a result of said diagnosis” and “[p]rovide [a] copy of
all medical records or documents in support of [her] answer.” ECF No. 90-1, at 7 ¶ 9.
Additionally, defendants requested that she “[d]escribe in full detail the type of alcohol
rehabilitation program that, accordingly to paragraphs 26 and 27 of the Complaint, [she was]
enrolled in during March 2011; treatment or therapies received, names of doctors or health
providers and address[es]” and “[p]rovide a copy of all records or documents in support of [her]
answer.” Id. at 7, ¶ 11. In view that plaintiff put her mental health at issue in this case by
claiming that defendants’ actions caused her “severe emotional pain and mental anguish,” (see
ECF No. ¶ 53), her failure to disclose the names of each and every one of the medical
professionals from whom she has received treatment in her initial disclosures and—at the
latest—in response to defendants’ interrogatories and requests for production of documents is
inexcusable. By plaintiff’s counsel’s own statement, plaintiff did not produce any medical
records to the defense until February 26, 2015—that is, one day before all discovery was set to
close and nearly 5 months after all responses to written discovery requests were due. Moreover,
plaintiff did not produce the Watershed record to defendants until April 20, 2015, and the
Watershed record revealed additional providers whose names had not been previously disclosed
to defendants. Not only was her production of the record highly untimely, but plaintiff’s counsel
fail to offer an adequate explanation for why the names of her providers were not disclosed
earlier in the discovery period or for the fact that plaintiff’s counsel had the Watershed record in
their possession for 3 weeks before turning the record over to the defense. Unlike other types of
documents which need to be sorted based on the attorney-client privilege or the work product
doctrine prior to turning them over to the opposing side, plaintiff was obligated to produce the

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full Watershed record to the defense, rendering their explanation for the delay—that they needed
time to verify and review the documents prior to producing them (see ECF No. 89, at 7)—
unavailing. In response to the court’s inquiry as to when plaintiff responded to defendants’
written discovery requests, counsel for plaintiff indicate that on various occasions in November
2014, after plaintiff’s response was due, they “agreed” to extensions of time for plaintiff to
respond with defense counsel. They did so in clear violation of the court’s order at the initial
scheduling conference that “[t]he parties shall not amend these deadlines without prior leave
from the court.”3 ECF No. 39, at 2. Finally, plaintiff requested an interpreter for her deposition
without a good faith basis for doing so. In addition to having studied English “all throughout
[her] education until [her] first year of College,” having “taken classes in English throughout
[her] graduate and post-graduate courses,” having taken a medical licensure examination in
English, having lived in Massachusetts from 2005 until 2009 working as a Post Doctoral
Research Fellow, and having published several articles in the English language, plaintiff’s
résumé even explicitly states that she is fluent in written and spoken English. ECF No. 89-1, 892. It is abundantly clear from plaintiff’s responses to the court’s questions regarding her
knowledge of the English language and from her résumé that she is capable of being deposed in
English, without the need for an interpreter.
While the defense appear to have made more effort to comply with the deadlines imposed
by the court in this case than plaintiff has, counsel for defendants are not blameless for the
current status of the proceedings. In response to the court’s question as to why they waited until
January 21, 2015 to bring to the court’s attention that plaintiff had not responded to their written
discovery requests, which were due on September 18, 2014, counsel for defendants stated:
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Although in February 2015 court ordered the parties to confer in order resolve their pending disputes, prior to that
date the parties were specifically ordered not to amend the deadlines from the ISC on their own and that order
remained in effect at the time the parties appear to have meddled with the deadlines.

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Knowing that courts dislike to deal with discovery disputes,
[d]efendants made all efforts to either receive the overdue
discovery in the form of documents and answers; or to engage
[p]laintiff with the possibility of a joint motion for an enlargement
of time to finish the discovery. Plaintiff proved unamenable to
both. Filing a motion is normally a measure of last resort, when all
hope of cooperation is lost.
Indeed, on December 19, 2014, [d]efendants sent [p]laintiff an
email with a Notice of Deposition to Plaintiff, setting the
deposition for January 21, 2015, at 10:00 a.m. and requested her to
provide the documents requested in the Request for Production of
Documents; those that she stated were either included with her
answers to interrogatory [sic], but were not, or that she was in the
process of obtaining. Defendants made clear to [p]laintiff that
those documents were needed at the earliest, in order to adequately
prepare for the taking of her deposition.
Since [p]laintiff produced no document, [d]efendants had no
alternative but to cancel [p]laintiff’s deposition set for January 19,
2015; and file, on January 21, 2015, their Motion to Dismiss for
Lack of Prosecution, informing the Court [of] [p]laintiff’s
noncompliance with the ISC Order.
ECF No. 90, at 4-5. Although Local Rule 26 imposes upon the parties a duty to confer prior to
bringing discovery disputes to the court’s attention, it does not provide carte blanche to wait 4
months to seek the court’s intervention in resolving a pressing discovery matter. While seeking
to coordinate with the opposing side is encouraged, once it became clear that defendants’ efforts
to obtain the information and documents in question were proving unfruitful, a timely motion to
compel the pending discovery could have avoided additional delay. As previously mentioned, the
ISC minutes explicitly instruct the parties that they were prohibited from amending the discovery
deadlines without prior leave from the court. From defense counsel’s response, it appears that the
defense was at least willing to agree upon a new deadline for plaintiff to produce their responses
to defendants’ written discovery once the responses became overdue. Additionally, the defense
ignored the deadline for conducting plaintiff’s deposition, setting a January 19, 2015 for it to be
held, when a deadline of October 14, 2014 had been established at the ISC and the court had not
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extended the deadline. Furthermore, although plaintiff’s request for an interpreter was
unwarranted, defendants were not justified in cancelling her second deposition date, scheduled
for May 22, 2015. The fact that they did not have all of plaintiff’s medical records in their
possession does not suffice as a rationale for the cancellation, absent a prior order from the court
permitting the parties to postpone the deposition or enlarging the discovery period. As to defense
counsel’s explanation regarding plaintiff’s purported “insistence” on having an interpreter
present, in the response to the court’s inquiry regarding whether plaintiff’s counsel insisted on
having an interpreter present, defense counsel have not asserted or claimed that plaintiff’s
counsel in fact conditioned the taking of plaintiff’s deposition on having an interpreter present.
At best, defense counsel admit that they “assum[ed]” as much, given plaintiff’s counsel
statement, “my client will need an interpreter,” and plaintiff’s response in opposition (ECF No.
85), in which plaintiff explained her request for an interpreter and requested that the court order
defendants to provide her with an interpreter and deny defendants’ request for a deposition over
of over 7 hours. As counsel for plaintiff notes, plaintiff made herself available for the May 22,
2015 deposition by appearing at defense counsel’s office, knowing that defendant’s intended to
take her deposition in English, without an interpreter. ECF No. 89, at 7. By cancelling the
deposition prior to a ruling from the court, on the eve of the close of the second discovery period,
defense counsel needlessly put their client’s interests in jeopardy and risked losing the
opportunity to depose plaintiff in this case.
In light of the foregoing, the undersigned makes the following ruling, which is contingent
upon the presiding U.S. District Judge’s willingness to move the jury trial date, which is
currently set for July 27, 2015 (ECF No. 21). If not done already, on or before July 17, 2015
plaintiff shall fully produce certified copies of her entire medical records from any and all

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providers from whom she has received treatment that could have a bearing on her allegations in
the complaint at paragraphs 10, 26-27, and / or 53, including but not limited to her records from
Dr. Mercedes Velázquez, Dr. Anabel López Rivera, Dr. Leticia Reyes, Dr. Sor María, and Dr.
Yaris Ortiz. By that date she shall certify in writing to defense counsel that she has not received
medical treatment from any other source that could have a bearing on her allegations in the
complaint at paragraphs 10, 26-27, and / or 53.4 If plaintiff fails to produce all of the documents
mentioned by July 17, 2015, she may be precluded from seeking damages for emotional pain and
mental anguish at trial, among other possible sanctions. Defendants shall have until July 31,
2015 in order to conduct a medical examination of plaintiff pursuant to Federal Rule of Civil
Procedure 35. If defendants choose to have plaintiff examined, she shall make herself available
for the examination. By August 14, 2015 plaintiff’s deposition shall occur. Since defendants
cancelled the May 21, 2015 deposition date prematurely and without justification, defendant’s
request for a 3-day deposition is denied. Plaintiff’s deposition shall last no longer than 7 hours. If
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Under Rule 26 of the Federal Rules of Civil Procedure, “a party must, without awaiting a discovery request,
provide to the other parties . . . a copy—or description by category and location—of all documents, electronically
stored information, and tangible things that the disclosing party has in its possession, custody, or control and may
use to support its claims or defenses. . . .” Fed. R. Civ. P. 26(a)(1)(A)(ii) (emphasis added). As plaintiff alleges both
that she had a history of mental impairment or disability and that she suffered damages to her mental health, her
medical records are relevant and fall within the scope of discovery for this case. See Fed. R. Civ. P. 26(b)(1).
Therefore, defendants are entitled to access and obtain certified, complete copies of all such medical records. See
Kline v. Berry, 287 F.R.D. 75, 81-82 (D.D.C. 2012) (noting that, where plaintiff “intends to argue that the emotional
anguish caused her medical issues, and thus damages,” plaintiff’s “medical condition is at issue and she must allow
defendant access to her medical records”). One prevalent interpretation is that “documents are deemed to be within
the possession, custody, or control of a party . . . if the party has actual possession, custody, or control of the
materials or has the legal right to obtain the documents on demand.” Resolution Trust Corp., v. Deloitte & Touche,
145 F.R.D. 108, 109-10 (D. Colo. 1992) (emphasis in original); see, e.g., Searock v. Stripling,736 F.2d 650, 653
(11th Cir. 1984); Klesch & Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 520 (D. Colo. 2003); Scott v. Arex,
Inc., 124 F.R.D. 39 (D. Conn. 1989); Haseotes v. Abacab Internat’l Computers, Inc., 120 F.R.D. 12 (D. Mass.
1988); Buckley v. Vidal, 50 F.R.D. 271, 274 (S.D.N.Y. 1970). “The term ‘control’ includes the ‘legal right of the
producing party to obtain documents from other sources upon demand.’” Soto v. City of Concord, 162 F.R.D. 603,
619-20 (N.D. Cal. 1995) (citing Biben, 119 F.R.D. at 425). Applied in the context of an individual’s medical
records, the patient is deemed to be in “control” of such records because he may request the files at any time, and
because, “by either granting or denying consent, he may determine who shall have access to them.” Washam v.
Evans, 2:10-CV-00150 JLH, 2011 WL 2559850, at *1 (E.D. Ark. June 29, 2011) (citing Bertrand, 2010 WL
2196584, at *1); see also Blackmond v. UT Medical Group, Inc., No. 02-2890 MAV, 2003 WL 22385678, at *2
(W.D. Tenn. Sept. 17, 2003); Lischka v. Tidewater Servs., Inc., No. 96-CV-296, 1997 WL 27066, at *2 (E.D.La.
Jan. 22, 1997).

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plaintiff insists on having an interpreter present for her deposition, she must hire her own
interpreter and pay for the interpreter herself and defendants may then depose her for up to 12
hours, over the course of two days. Dispositive motions shall be due on September 30, 2015.
Plaintiff shall not be permitted to conduct any additional discovery, as a sanction for failing to
comply with the discovery deadlines imposed by the court and for lacking an adequate excuse
for her prolonged delay in responding to defendant’s written discovery requests regarding her
prior medical treatment and the incomplete nature of her response, in a case in which she herself
has put her mental health at issue.
If in his sound discretion the presiding U.S. District Judge is not inclined to move the trial
date, then the discovery phase of the case is closed, with the sole exception that on or before June
19, 2015 plaintiff shall fully produce certified copies of her entire medical records from any and
all providers from whom she has received treatment that could have a bearing on her allegations
in the complaint at paragraphs 10, 26-27, and / or 53, including but not limited to her records
from Dr. Mercedes Velázquez, Dr. Anabel López Rivera, Dr. Leticia Reyes, Dr. Sor María, and
Dr. Yaris Ortiz. Under this scenario, if plaintiff fails to produce all of the documents mentioned
by June 19, 2015, she may be precluded from seeking damages for emotional pain and mental
anguish at trial, among other possible sanctions. If the trial date remains unaltered, in light of its
proximity and taking into account that defendants cancelled the May 22, 2015 deposition date
without substantial justification, defendants will not be permitted to depose plaintiff or to
conduct a medical examination of her pursuant to Rule 35. Motions for summary judgment will
remain due on July 1, 2015.
In the absence of an explicit ruling from the presiding judge, the parties should assume
that the pretrial and settlement conference and trial dates remain as scheduled, and plaintiff shall

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expeditiously proceed to obtain the medical records from the above-mentioned providers and
immediately produce them to defendants, on or before June 19, 2015. The parties shall not
amend the deadlines contained in this order without prior leave from the court.
IT IS SO ORDERED
In San Juan, Puerto Rico, this 8th day of June, 2015.
s/Marcos E. López
U.S. Magistrate Judge

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