Morgan v. Saint Francis Hospital

Filing 71

ORDER granting in part and denying in part 53 Motion for Protective Order; granting 59 Motion to Compel. Signed by Chief Magistrate Judge Tu M. Pham on 7/24/2020. (jrs)

Case 2:18-cv-02042-TLP-tmp Document 71 Filed 07/24/20 Page 1 of 17

PageID 458

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
CLIFFRIE MORGAN,

)
)
Plaintiff,
)
)
v.
)
No. 18-cv-2042-TLP-tmp
)
AMISUB (SFH), INC.
)
d/b/a SAINT FRANCIS HOSPITAL,
)
)
Defendant.
)
________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR PROTECTIVE ORDER AND
ORDER GRANTING DEFENDANT’S MOTION TO COMPEL
________________________________________________________________
On April 8, 2020, plaintiff Cliffrie Morgan filed a motion
for a protective order.1 (ECF No. 53.) Defendant AMISUB (SFH), Inc.
d/b/a Saint Francis Hospital (“AMISUB”) filed a response on April
23, 2020. (ECF No. 60.) On April 23, 2020, AMISUB filed a motion
to compel discovery responses. (ECF No. 59.) Morgan filed a
response on June 5, 2020. (ECF No. 66.) For the reasons below,
Morgan’s motion for a protective order is GRANTED in part and
DENIED in part, AMISUB’s motion to compel is GRANTED, and AMISUB’s
motion for attorneys’ fees is DENIED.
1Pursuant

to Administrative Order No. 2013-05, this case has been
referred to the United States magistrate judge for management and
for all pretrial matters for determination or report and
recommendation, as appropriate.

Case 2:18-cv-02042-TLP-tmp Document 71 Filed 07/24/20 Page 2 of 17

I.

PageID 459

BACKGROUND

Plaintiff Cliffrie Morgan filed a pro se complaint against
AMISUB on January 17, 2018, asserting failure-to-accommodate and
discriminatory termination claims under the ADA stemming from an
on-the-job injury. (ECF No. 1.) AMISUB served its first set of
interrogatories,

requests

for

admission,

and

requests

for

production of documents on Morgan on March 5, 2020. (ECF No. 59,
at 1.) In lieu of providing formal responses to these requests,
Morgan filed a motion for a protective order on April 8, 2020.
(ECF No. 53.)
Morgan sent an email to counsel for AMISUB on March 31, 2020,
stating that she intended to file her motion for a protective
order. (ECF No. 59-1, at 31.) Counsel for AMISUB responded later
that day by stating that AMISUB could not take a position on the
motion because Morgan did not detail the relief sought or the
discovery requests she found objectionable. (Id.) On April 8, 2020,
Morgan responded by outlining the bases for her motion for a
protective order and a list of additional objections to AMISUB’s
discovery requests. (ECF No. 59-1, at 36-38.)
According to Morgan’s motion for a protective order, AMISUB’s
interrogatories

and

requests

for

production

seek

privileged

information. (ECF No. 53-1, at 1.) Morgan states three bases for
such

privilege:

the

Fifth

Amendment
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right

against

self-

Case 2:18-cv-02042-TLP-tmp Document 71 Filed 07/24/20 Page 3 of 17

incrimination,

attorney-client

privilege,

and

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psychotherapist-

patient privilege. (Id.)
On April 23, 2020, AMISUB filed a motion to compel responses
to its interrogatories and requests for production of documents.
(ECF No. 59, at 1-2.) AMISUB also asks that its requests for
admissions be deemed admitted based on Morgan’s failure to timely
answer or properly object to them. (Id. at 2.) Lastly, AMISUB
argues that it is entitled to reasonable expenses and attorneys’
fees regarding its motion to compel and its response to the motion
for a protective order. (ECF Nos. 59, at 3; 60, at 6.) Because
there is significant overlap between the issues presented in
Morgan’s motion for a protective order and AMISUB’s motion to
compel, the undersigned will address both motions in this order.
II.
A.

ANALYSIS

Legal Standard
The scope of discovery is governed by Federal Rule of Civil

Procedure 26(b)(1), which 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 party seeking discovery is
obligated to demonstrate relevance. Johnson v. CoreCivic, Inc.,
No. 18-CV-1051-STA-tmp, 2019 WL 5089086, at *2 (W.D. Tenn. Oct.
10, 2019). Upon a showing of relevance, the burden shifts to the
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party

opposing

discovery

to

show,

with

specificity,

PageID 461

why

the

requested discovery is not proportional to the needs of the case.
William Powell Co. v. Nat'l Indem. Co., No. 1:14-CV-00807, 2017 WL
1326504, at *5 (S.D. Ohio Apr. 11, 2017), aff'd sub nom. 2017 WL
3927525 (S.D. Ohio June 21, 2017), and modified on reconsideration,
2017 WL 4315059 (S.D. Ohio Sept. 26, 2017). Six factors are
relevant to proportionality: (1) “the importance of the issues at
stake in the action;” (2) “the amount in controversy;” (3) “the
parties'

relative

access

to

relevant

information;”

(4)

“the

parties' resources;” (5) “the importance of the discovery in
resolving the issues;” and (6) “whether the burden or expense of
the proposed discovery outweighs its likely benefit.” Fed. R. Civ.
P. 26(b)(1).
Rule 26 also provides that “[t]he court may, for good cause,
issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense[.]” Fed. R.
Civ. P. 26(c)(1). “To determine whether good cause exists, and the
proper level of protection, the court ‘must balance the requesting
party's need for discovery against the resisting party's claimed
harm that will result from disclosure.’” Westbrook v. Charlie
Sciara & Son Produce Co., No. 07-2657 MA/P, 2008 WL 839745, at *4
(W.D.

Tenn.

Mar.

27,

2008)

(quoting

In

re

Michael

Wilson

&

Partners, Ltd., No. 06-cv-02575-MSK-KLM, 2007 WL 3268475, at *1
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(D. Colo. Oct. 30, 2007)).
Pursuant to Rule 37, a party may file a motion to compel if
another party “fails to answer an interrogatory submitted under
Rule 33” or “fails to produce documents . . . as requested under
Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)-(iv). As for requests
for admission, Rule 36 provides that “[a] party may serve on any
other party a written request to admit, for purposes of the pending
action only, the truth of any matters within the scope of Rule
26(b)(1)[.]” Fed. R. Civ. P. 36(a)(1). Such requests for admission
may pertain to “facts, the application of law to fact, or opinions
about either,” or “the genuineness of any described documents.”
Fed. R. Civ. P. 36(a)(1)(A)-(B). “A matter is admitted unless,
within 30 days after being served, the party to whom the request
is directed serves on the requesting party a written answer or
objection addressed to the matter and signed by the party or its
attorney.” Fed. R. Civ. P. 36(a)(3).
B.

Fifth Amendment
Morgan first asserts that

protective

order

because

the

the court should grant her a
defendant’s

interrogatories

and

requests for production violate her Fifth Amendment right against
self-incrimination. (ECF No. 53-1, at 2-4.) Morgan identifies a
series of interrogatories seeking admissions as to the injury she
sustained, her work conditions afterwards, and the treatment she
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underwent. (ECF No. 53-1, at 5-6.) However, Morgan provides no
explanation of how or why responding to these interrogatories would
require Morgan to incriminate herself. Similarly, Morgan objects
to numerous production requests, such as a request for documents
identified or used by Morgan in responding to the interrogatories.
(ECF No. 53-1, at 7-8.) Again, Morgan provides no indication of
how these requests for production relate to or implicate the Fifth
Amendment

right

against

self-incrimination.

Such

a

“blanket

assertion” of Fifth Amendment privilege is impermissible. United
States v. Conces, 507 F.3d 1028, 1040 (6th Cir. 2007). Accordingly,
the request for a protective order in this regard is hereby DENIED.
Moreover, to the extent that Morgan objects to AMISUB’s discovery
requests on this basis, any such objection is overruled.
C.

Attorney-Client Privilege
Morgan

next

asserts

that

the

court

should

grant

her

a

protective order because information and documents sought by the
defendant are protected by the attorney-client privilege. (ECF No.
53-1, at 10-11.) Morgan seems to assert that certain information
is protected by attorney-client privilege because, by proceeding
pro se, she is acting both as attorney and client. (Id.) Morgan
writes: “When the Plaintiff put[s] on her attorney hat she must
confer with her client the Plaintiff. Therefore by confer[ring]
with

her

client

Plaintiff

is invoking
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her

attorney

client

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privilege.” (Id. at 11.) This argument lacks merit. See Svete v.
Wunderlich, No. 2:07-CV-156, 2009 WL 1687952, at *1 (S.D. Ohio
June 11, 2009) (“Many of the objections asserted by plaintiff lack
even an arguably colorable basis. For example, plaintiff, who is
proceeding pro se, invokes the attorney-client privilege or workproduct doctrine.”). To the extent that Morgan seeks to assert
such an argument, the motion for a protective order in this regard
is hereby DENIED. Again, to the extent that Morgan objects to
AMISUB’s discovery requests on this basis, any such objection is
overruled.
D.

Psychotherapist-Patient Privilege
Lastly,

Morgan

production

and

concerning

her

argues

that

interrogatories
mental

psychotherapist-patient

health

defendant’s

seek

information

that

privilege.

requests

(ECF

are
No.

and

protected
53-1,

at

for

records
by

the

19-25.)

Defendant argues that such medical records are relevant to Morgan’s
alleged disability and thus to her ADA claims, as well. (ECF No.
60, at 4-5.) As defendant points out, medical records relating to
a purported disability are highly relevant to ADA claims. See
Shahbabian v. TriHealth, Inc., No. 1:18-CV-790, 2020 WL 419443, at
*8 (S.D. Ohio Jan. 27, 2020); see also Lankford v. Reladyne, LLC,
No. 1:14-CV-682, 2016 WL 1444307, at *3 (S.D. Ohio Apr. 8, 2016).
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In this case, however, the disability Morgan alleges is physical
in nature. In addition,
the complaint requests only compensatory damages. At this time,
there is no reason to believe that medical records pertaining to
Morgan’s mental health are relevant to her disability or the
calculation of damages. Because Morgan has not put her mental
health at issue, the court hereby GRANTS Morgan’s request for a
protective order as to information and records regarding her mental
health.2 To the extent that Morgan puts her mental health at issue
in the future, defendant may move to have the protective order
reexamined at that time.
E.

Requests for Production
AMISUB

seeks

to

compel

responses

to

its

requests

for

production because Morgan has not yet provided a formal response.
(ECF No. 59, at 2.) Morgan’s only response to the requests for
production was her email to counsel for AMISUB on April 8, 2020,
in

which

Morgan

objected

to

“all

production

of

documents

request[ed].” (ECF No. 59-1, at 36.) This email does not satisfy
the requirement of Federal Rule of Civil Procedure 34(b)(2)(B)
that “[f]or each item or category, the response must either state
2It

is worth noting that defendant, notwithstanding its arguments
above, “is willing to consent to a standard Protective Order and/or
Confidentiality Agreement to safeguard confidential information.”
(ECF No. 60, at 6.)
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that

inspection

and

related

activities

will

be

PageID 466

permitted

as

requested or state with specificity the grounds for objecting to
the request, including the reasons.” Fed. R. Civ. P. 26(b)(2)(B).
In addition, Morgan’s email did not state whether she withheld any
responsive materials on the basis of her objections as required by
Rule 34. See Fed. R. Civ. P. 34(b)(2)(C) (“An objection must state
whether any responsive materials are being withheld on the basis
of that objection. An objection to part of a request must specify
the part and permit inspection of the rest.”).
Aside from the objections asserted in her motion for a
protective order, Morgan asserts that she was not required to
respond because AMISUB either already possesses the documents it
requested

or

impermissibly

referenced

its

interrogatories

in

production requests. (ECF No. 66, at 12.) Even if AMISUB already
has all relevant documents in its possession, this does not relieve
Morgan of her obligation to respond in accordance with the Federal
Rules of Civil Procedure. In addition, nothing in the Federal Rules
of

Civil

Procedure

prohibits

AMISUB

from

referencing

its

interrogatories in its requests for production. Moreover, Morgan
asserts these objections only generally and does not state to which
requests for production her objections apply. See Fed. R. Civ. P.
34(b)(2)(B); see also Strategic Mktg. & Research Team, Inc. v.
Auto Data Sols., Inc., No. 2:15-CV-12695, 2017 WL 1196361, at *2
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(E.D. Mich. Mar. 31, 2017) (“Boilerplate or generalized objections
are tantamount to no objection at all and will not be considered
by the Court.”). These general objections are overruled.
The only specific objection Morgan provides is to request for
production number 6, on the grounds that it requests documents
protected by the psychotherapist-patient privilege. (ECF No. 66,
at 12.) Request for production number 6 states: “Please produce
fully executed Employment, Medical, and Mental Health Records
Authorization release forms, which are attached hereto for your
signature.” (ECF No. 59-1, at 24.) Because the undersigned granted
Morgan a protective order as to her mental health records, she
need not provide the Mental Health Records Authorization. However,
Morgan must provide the other release forms requested.
AMISUB’s motion to compel responses to its requests for
production is hereby GRANTED in accordance with the above. Morgan
must respond to AMISUB’s requests for production within thirty
(30) days from the entry of this order. Morgan must also provide
AMISUB with signed employment and medical release forms within
thirty (30) days from the entry of this order.
F.

Interrogatories
AMISUB

seeks

to

compel

answers

to

its

interrogatories,

because Morgan has not yet formally answered. (ECF No. 59, at 2.)
Morgan’s only response to the interrogatories was her email to
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counsel for AMISUB on April 8, 2020, in which Morgan objected to
several of the interrogatories. (ECF No. 59-1, at 36.) This email
does not satisfy the requirement of Federal Rule of Civil Procedure
33(b)(3) that “[e]ach interrogatory must, to the extent it is not
objected to, be answered separately and fully in writing under
oath.” Fed. R. Civ. P. 33(b)(3).
Aside from the objections asserted in her motion for a
protective order, Morgan objects to several of the interrogatories
on the grounds that the information requested has already been
provided in her initial disclosure or by other means. (ECF No. 66,
at 12-14.) Morgan also argues that some of the interrogatories
impermissibly reference AMISUB’s requests for production. (ECF No.
66, at 12.) As addressed above, nothing in the Federal Rules of
Civil Procedure prohibits AMISUB from referencing other discovery
requests

in

its

interrogatories

or

requests

for

production.

Furthermore, AMISUB’s ability to obtain the information sought
from alternative sources does not relieve Morgan of her obligation
to respond in accordance with the Federal Rules of Civil Procedure.
Nor does it excuse the failure to answer these interrogatories.
See Malone v. City of Memphis, No. 18-2201-MSN-tmp, 2020 WL 465036,
at *3 (W.D. Tenn. Jan. 28, 2020) (“[P]arties must make a reasonable
effort to answer interrogatories, including reviewing information
available to them.”). Accordingly, these objections are overruled.
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Morgan objects to interrogatory numbers 1, 2, 3, 4, 5, 6, 10,
and 12 as being overbroad and unduly burdensome. (ECF No. 66, at
12-14.)

These

general

objections

violate

the

specificity

requirement of Rule 33. See Sobol v. Imprimis Pharms., No. 1614339,

2017

WL

5035837,

at

*1

(E.D.

Mich.

Oct.

26,

2017)

(“[B]oilerplate objections are legally meaningless and amount to
a waiver of an objection.”) (citing Auto Data Sols., 2017 WL
1196361, at *2). These objections are likewise overruled.
Lastly, Morgan objects to interrogatory numbers 11 and 13 on
the

basis

that

the

information

sought

is

protected

by

the

psychotherapist-patient privilege. (ECF No. 66, at 14.) These
interrogatories state as follows:
11. Please identify every health care institution,
medical and/or mental health care provider, medical
doctor,
physician,
psychiatrist,
psychologist,
therapist, counselor, practitioner, nurse practitioner,
and/or other like individuals you have seen for reasons
related to the factual and/or legal allegations in your
Complaint, including the date and nature of treatment,
the condition for which treatment was provided, and any
work restriction recommended or imposed by a health care
provider.
. . .
13. Please identify all medical providers, physicians,
counselors you have seen since the date of your alleged
on-the-job injury, their place of employment, address,
and the reason for such visit(s).
(ECF No. 59-1, at 11.) Because the undersigned granted Morgan a
protective order as to her mental health records, she need not
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provide

information

about

her

mental

healthcare

PageID 470

providers

in

responding to interrogatory numbers 11 and 13. Morgan must fully
answer the interrogatories regarding all other medical care and
attest to her answers in a formal response.
AMISUB’s motion to compel answers to its interrogatories is
hereby GRANTED in accordance with the above. Morgan must answer
AMISUB’s interrogatories within thirty (30) days from the entry of
this order.
G.

Requests for Admission
AMISUB argues that its requests for admission should be deemed

admitted based upon Morgan’s failure to respond. (ECF No. 59, at
2.) AMISUB notes that Morgan’s email on April 8, 2020, which served
as her only response to the requests for admission, came after the
30-day deadline to respond to the requests for admission had
already passed. (Id. at 1.) Under Rule 36, “[a] matter is admitted
unless, within 30 days after being served, the party to whom the
request is directed serves on the requesting party a written answer
or objection addressed to the matter and signed by the party or
its attorney.” Fed. R. Civ. P. 36(a)(3). Thus, AMISUB argues that
the matters addressed in its requests for admission should be
deemed admitted. (ECF No. 59, at 2.) In response, Morgan argues
only that she was not required to answer for the reasons stated in
her motion for a protective order, namely, that the information
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sought is protected by her Fifth Amendment right against selfincrimination, psychotherapist-patient privilege, and attorneyclient privilege. (ECF No. 66, at 3.) Morgan does not specify to
which requests these objections apply.3 More importantly, Morgan
does not dispute that she failed to timely respond to the requests
for admission. However, given Morgan’s pro se status and in the
interest of resolving cases on the merits, rather than deeming the
requests admitted, the court will order Morgan to respond to the
requests for admission within thirty (30) days from the entry of
this order.
H.

Costs and Expenses
Lastly, AMISUB asserts that it is entitled to reasonable

expenses and attorneys’ fees regarding its response to the motion
for a protective order and its motion to compel. (ECF Nos. 60, at
6; 59, at 3.) Regarding the response to the motion for a protective
order, AMISUB argues that it is entitled to attorneys’ fees because
Morgan’s arguments about the right against self-incrimination and
attorney-client privilege are “patently frivolous.” (ECF No. 60,
at 6.) Rule 37(a)(5) provides that “[i]f the motion is granted in

3Upon

review of the requests for admission, it does not appear that
any of the requests implicate the protective order regarding
documentation and information pertaining to Morgan’s mental health
protected by psychotherapist-patient privilege. (ECF No. 59-1, at
16-18.)
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PageID 472

part and denied in part, the court may issue any protective order
authorized under Rule 26(c) and may, after giving an opportunity
to be heard, apportion the reasonable expenses for the motion.”
Fed. R. Civ. P. 37(a)(5)(C). While Morgan’s arguments about the
right against self-incrimination and attorney-client privilege
lack merit, the main focus of Morgan’s motion for a protective
order was the psychotherapist-patient privilege. The undersigned
finds that both parties should bear their own costs and expenses
regarding the briefing on the motion for a protective order.
As to AMISUB’s motion to compel, however, the analysis is
different. Because the undersigned granted the motion to compel,
“the court must, after giving an opportunity to be heard, require
the party or deponent whose conduct necessitated the motion . . .
to pay the movant's reasonable expenses incurred in making the
motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A).
However, “the court must not order this payment if: the movant
filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action; the opposing party's
nondisclosure, response, or objection was substantially justified;
or other circumstances make an award of expenses unjust.” Fed. R.
Civ.

P.

37(a)(5)(A)(i)-(iii).

AMISUB

argues

that

its

counsel

attempted to confer with Morgan on numerous occasions regarding
discovery, that there is no substantial justification for Morgan’s
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PageID 473

failure to respond, and that no other circumstances make an award
of expenses unjust. (ECF No. 59, at 2-3.)
In response, Morgan argues only that

she should not be

required to pay AMISUB’s attorneys’ fees because she moved for a
protective order in good faith. (ECF No. 66, at 4.) Morgan does
not dispute that counsel for AMISUB made good faith attempts to
obtain discovery from Morgan before filing its motion to compel,
as demonstrated by the sworn declaration by counsel for AMISUB.
(ECF No. 59-1, at 1-2.) At best, Morgan argues that her filing a
motion for a protective order justified her failure to provide
timely

and

formal

responses

to

AMISUB’s

discovery

requests.

However, even if the court had granted Morgan’s motion in full,
the

resulting

protective

order

would

not

excuse

Morgan

from

providing responses to AMISUB’s discovery requests in accordance
with the Federal Rules of Civil Procedure. Rather, the protective
order would alter the substance of those responses. The fact that
Morgan

moved

for

a

protective

order

does

not

by

itself

substantially justify her failure to comply with the Federal Rules
of Civil Procedure. However, under the circumstances, the court
finds that an award of expenses would be unjust at this time. The
motion for attorney’s fees is denied. However, should Morgan fail
to comply with the Federal Rules of Civil Procedure or this court’s
orders in the future, she may be subject to sanctions, including
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but

not

limited

to

attorneys’

fees

and/or

PageID 474

dismissal

of

her

complaint with prejudice.
III. CONCLUSION
Based

on

the

foregoing

analysis,

Morgan’s

motion

for

a

protective order is hereby GRANTED in part and DENIED in part, and
AMISUB’s motion to compel is GRANTED and its motion for attorneys’
fees is DENIED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
July 24, 2020
Date

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