Avis v. Eagle Transport Corporation et al

Filing 46

ORDER AND OPINION granting 30 Motion to Compel. Signed by Honorable J Michelle Childs on 6/8/2017.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Teresa Avis, as Personal Representative
of the Estate of Kenneth Edward Avis,

)
)
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Plaintiff,
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v.
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Eagle Transport Corporation and
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David Lee Gullikson,
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Defendants.
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____________________________________ )

Civil Action No. 5:16-cv-03551-JMC

ORDER AND OPINION

Plaintiff Teresa Avis, as personal representative of the estate of Kenneth Edward Avis
(“Plaintiff”), filed the instant wrongful death and survival action against Defendants Eagle
Transport Corporation and David Lee Gullikson (“Defendants”). (ECF No. 1.) This matter is
before the court pursuant to Plaintiff’s motion to compel David Lee Gullikson (“Gullikson”) to
respond to Plaintiff’s supplemental interrogatories and supplemental requests for production.
(ECF No. 30.) Gullikson has filed a response to the motion (ECF No. 32), and Plaintiff has filed
a reply (ECF No. 33). For the reasons that follow, the court GRANTS Plaintiff’s motion to
compel. (ECF No. 30.)
I.

FACTUAL AND PROCEDURAL BACKGROUND

On March 22, 2017, Plaintiff filed a motion to compel the production of Gullikson’s
medical and prescription records and information from a short period after the car crash at issue.
(ECF No. 30-1 at 1.) Specifically, Plaintiff requested (1) a copy of Gullikson’s “health insurance
card in effect during 2016, or, if not available, please provide the name, address and telephone
number of the health insurance company, along with the policy number and member number,”;
(2) “[a]ll medical records, psychiatric records and/or counseling records for Defendant Gullikson
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from January 1, 2016 to date,”; and (3) “[a]ll prescription records and pharmacy records for
Defendant Gullikson from January 1, 2016 through August 19, 2016.” (ECF No. 30-2 at 3.)
Plaintiff also requested that Gullikson identify (1) “all hospitals, practices, clinics, physicians,
psychiatrists, counselors or other health care providers who have treated [Gullikson] from
January 1, 2016 to date,”; and (2) “all pharmacies at which [Gullikson] filled prescriptions from
January 1, 2016 through August 19, 2016.” (ECF No. 30-3 at 2-3.) Plaintiff claims that discovery
of this information is critical because it was shown through other discovery requests that
Gullikson “tested positive in his post-accident drug test for amphetamine and methamphetamine”
and that Gullikson had asserted that the positive result was due to prescription medication. (ECF
No. 30-1 at 2.)
Gullikson’s counsel, in response, claims that “despite repeated attempts, defense counsel
has been unsuccessful in obtaining the requested information” and that counsel “continue[s] to
attempt to contact Gullikson.” (ECF No. 32 at 1-2.) Plaintiff replied that Gullikson is not
participating in discovery “simply because [he] choose[s] not to,” and reiterated the critical
nature of the evidence sought. (ECF No. 33 at 2.) Plaintiff requested that the court grant the
motion to compel and, in a single sentence, requests that the court impose sanctions in order to
encourage Gullikson’s “future compliance . . . with his obligations is [sic] the discovery
process.” (Id.)
II.

LEGAL STANDARDS

The amended Fed. R. Civ. P. 26 provides that “[p]arties may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.” Fed. R. Civ. P. 26(b)(1). The scope of discovery permitted by Rule 26 is
designed to provide a party with information reasonably necessary to afford a fair opportunity to

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develop its case. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc.,
967 F.2d 980, 983 (4th Cir. 1992). Nevertheless, discovery is not limitless, and the court has the
discretion to protect a party from “oppression” or “undue burden or expense.” Fed. R. Civ. P.
26(c). “If a party fails to make a disclosure” required by Rule 26, “any other party may move to
compel disclosure . . . [after it has] in good faith conferred or attempted to confer with the person
or party failing to make disclosure or discovery in an effort to obtain it without court action.” Fed
R. Civ. P. 37(a). Specifically, a party “may move for an order compelling an answer,
designation, production, or inspection.” Fed. R. Civ. P. 37(a)(3)(B). The party resisting a
discovery request bears the burden of persuading the court that the requested information is
outside the scope of discovery. See Volumetrics Med. Imaging, LLC v. Toshiba Am. Med. Sys.,
2011 U.S. Dist. LEXIS 65422, at *20-21 (M.D.N.C. 2011) (collecting cases in the Fourth
Circuit).
III.

ANALYSIS

Interrogatories and requests for the production of documents are integral parts of the
discovery process. The court concludes that the particular answers and documents requested are
both relevant and proportional to the needs of the case, something which Gullikson has not
contested in his response. Gullikson’s response to Plaintiff’s motion to compel is essentially a
non-answer.1 In the absence of any compelling reason not to grant a motion for discovery of
evidence that is both relevant and proportional, the court concludes that a motion to compel
should be granted. However, the court declines to impose sanctions on Gullikson at this point in
the discovery process, because Plaintiff’s request for sanctions was not filed in either the original

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The court notes that it is Gullikson who has not responded, not Gullikson’s counsel. See Fed.
R. Civ. P. 26 (placing obligation to comply with discovery rules on the party, not counsel). It
appears that Gullikson’s counsel has made reasonable efforts to contact Gullikson and has not
received a response. (ECF Nos. 32-1 & 32-2.)
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motion to compel or a separate motion for sanctions, but rather in Plaintiff’s reply to Defendant’s
response, (ECF No. 33 at 2), thus giving Defendant no opportunity to respond. See Fed. R. Civ.
P. 37(d)(1)(A)(ii) (“The court . . . may, on motion, order sanctions if a party, after being properly
served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve
its answers, objections, or written response.”); Fed. R. Civ. P. 7(b) (“A request for a court order
must be made by motion.”)2
IV.

CONCLUSION

Because Defendant has filed to adequately respond to Plaintiff’s discovery request, the
court GRANTS Plaintiff’s motion to compel, (ECF No. 30). Gullikson must comply with this
Order on or before June 23, 2017.
IT IS SO ORDERED.

United States District Judge
June 8, 2017
Columbia, South Carolina

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This order does not prejudice the ability of Plaintiff to seek sanctions through a separately filed
and adequately argued and supported motion, which the court would entertain when filed.
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