Tiscareno et al v. Frasier et al

Filing 254

MEMORANDUM DECISION and Ordergranting 188 Motion to Quash; denying 193 Motion for Protective Order; denying 202 Motion to Compel; granting 210 Motion to Compel; granting 216 Motion ; denying 225 Motion for Protective Order; denying 225 Motion to Quash. Amended Scheduling Order- ( Fact Discovery due by 12/31/12, Expert Discovery due by 3/15/2013., Motions due by 2/11/2013.) See Order for further details. Signed by Magistrate Judge Dustin B. Pead on 11/6/12. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
ABBY TISCARENO,
GUILLERMO TISCARENO,

MEMORANDUM DECISION AND ORDER
Case No. 2:07-cv-00336-CW-DBP

Plaintiffs,
District Judge Clark Waddoups
v.
Magistrate Judge Dustin Pead
LORI FRASIER, et al.
Defendants.

I. INTRODUCTION
This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(A). Plaintiffs in this case
are Abby and Guillermo Tiscareno. Defendants relevant to this decision are: (1) Intermountain
Health Care (“IHC”); (2) Intermountain Health Services, which does business as Primary
Children=s Medical Center (APCMC@); (3) Dr. Lori Frasier, a PCMC employee (“Defendant
Frasier”); (4) Dr. Marion Walker, a PCMC employee; and (5) William Beerman (“Defendant
Beerman”), who was the PCMC director of patient administration during the time period set forth
in Plaintiffs’ complaint.
District Judge Ted Stewart provided a factual summary of the case, which involves
Plaintiff Abby Tiscareno’s criminal prosecution for felony child abuse of a 14-month-old child
named N.M., and exculpatory evidence about N.M.’s prior injuries allegedly withheld by
Defendants. (Docket No. 61.)
Pending before this Court are six motions: (1) Defendant Frasier’s motion to compel
Plaintiff Abby Tiscareno’s deposition (Docket No. 210); (2) Plaintiffs’ motion to quash Defendant
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Frasier’s subpoena duces tecum (Docket No. 188); (3) Plaintiffs’ motion to compel Defendant
Frasier’s admissions and interrogatory answers (Docket No. 202); (4) Defendant Frasier’s motion
for a protective order against further written discovery (Docket No. 193); (5) Defendants’
Beerman’s and IHC’s motion to quash Plaintiffs’ fourth set of discovery requests, and for a
protective order against further written discovery (Docket No. 225); and (6) Defendant Frasier’s
motion to extend the amended schedule deadlines (Docket No. 216). On November 5, 2012, the
Court heard oral argument on these motions.
II. ANALYSIS
A. Defendant Frasier’s Motion to Compel Plaintiff Abby Tiscareno’s Deposition
Defendant Frasier moved to compel Plaintiff Abby Tiscareno’s deposition about her care
of N.M., the events giving rise to N.M.=s injuries, and the criminal prosecution giving rise to the
current lawsuit. (Docket No. 210.) Where a deponent fails to answer a deposition question, the
moving party may file a motion to compel the answer, after certifying it has in good faith conferred
or attempted to confer with the other side. Fed. R. Civ. P. 37(a)(3)(B)(i).
Defendant Frasier argues the deposition is relevant because, if it demonstrates probable
cause existed to prosecute Ms. Tiscareno for child abuse, her malicious prosecution complaint
against Defendant Frasier, which requires a lack of probable cause, would fail. (Docket No. 211 at
3.) Plaintiffs mainly oppose the deposition because they argue the parties never met and conferred
prior to Defendant Frasier’s motion. (Docket No. 215 at 1.)
The Court GRANTS the motion. (Docket No. 210.) Substantively, such a deposition is
relevant to refuting Plaintiffs’ malicious prosecution claim. Procedurally, the Court believes a
February 14, 2012 meeting between parties’ counsel, at which Plaintiffs’ counsel Ms. Kathryn

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Collard indicated she would not permit the deposition (Docket No. 211 at 3), satisfies the meet and
confer requirement.
As such, the Court DENIES Plaintiffs’ request for sanctions. (Docket No. 215 at 1.)
However, the Court will NOT AWARD Defendant Frasier reasonable expenses incurred in
bringing the motion because it finds “other circumstances” make such an award “unjust.” Fed. R.
Civ. P. 37(a)(5)(A). Specifically, based on Ms. Collard’s presentations, it appears she genuinely
believed Defendant Frasier’s counsel would discuss the legal basis of the deposition with her in
more detail before filing a motion to compel. (Docket No. 215 at 4.)
B. Plaintiffs= Motion to Quash Subpoena Served by Defendant Frasier
Defendant Frasier served a subpoena duces tecum on nonparty Earl G. Xaiz for a
“complete copy” of Mr. Xaiz’s file relating to his representation of Ms. Tiscareno at her first,
criminal prosecution. (Docket No. 188, Ex. 1.) A party may subpoena a nonparty to produce
documents, Fed. R. Civ. P. 45(a)(C)-(D), but it must first serve notice of the subpoena “on each
party” to the action. Fed. R. Civ. P. 45(b)(1). See also DUCIVR 45-1 (requiring service of a
subpoena on parties at least eight days prior to service of the subpoena on a nonparty).
Plaintiffs objected to the subpoena, and filed a motion to quash it because it was not
properly served on them, and it was cumulative where most of the documents in Mr. Xaiz’s file
had previously been produced in discovery. (Docket No. 188 at 2-3.) Plaintiffs also moved for an
award of attorney’s fees and costs incurred in bringing their motion. (Docket No. 188 at 2.)
At the November 5, 2012 hearing on this motion, Defendant Frasier’s counsel, Mr. Andrew
Morse, conceded he failed to serve the subpoena on Plaintiffs prior to serving it on Mr. Xaiz. He
also conceded the subpoena should have been better tailored.

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Given the subpoena’s admittedly defective service, and overbroad content, the Court
GRANTS Plaintiffs’ motion to quash the subpoena duces tecum served on Mr. Xaiz, and does so
QUASH it. (Docket No. 188.) Defendant Frasier is free to serve Mr. Xaiz a new subpoena as she
sees fit. However, the Court DENIES Plaintiffs= request for attorney=s fees in bringing the motion.
The Court does not believe the conduct gives rise to awarding attorney’s fees, although it is
concerned with Mr. Morse’s admitted failures to follow proper subpoena guidelines.
C. Plaintiffs’ Motion to Compel Defendant Frasier’s Admissions & Interrogatory Answers
Pursuant to Fed. R. Civ. P. 37, Plaintiffs filed a motion to compel forty of Defendant
Frasier=s admissions, and sixty-five of her interrogatory answers because Plaintiffs found her
objections and responses to the requests for admissions and interrogatories were insufficient,
evasive, and incomplete. (Docket No. 202.) Plaintiffs also sought sanctions against Defendant
Frasier. (Id. at 2.)
Defendant Frasier opposed the motion to compel by claiming she spent considerable time
and money sufficiently responding to the requests for admissions and interrogatories. (Docket No.
206 at 2.)
After reviewing the disputed discovery requests and responses, this Court DENIES
Plaintiffs’ motion to compel. (Docket No. 202.) Given the late stage of litigation in this case, the
Court believes a deposition of Defendant Frasier would better provide Plaintiffs the information
they seek. As such, the Court DENIES Plaintiffs’ request for sanctions. However, the Court will
NOT AWARD Defendant Frasier reasonable expenses in opposing Plaintiffs’ motion to compel
because it finds “other circumstances” make an award “unjust” where Plaintiffs’ counsel filed the
motion in a genuine effort to narrow the issues for trial. Fed. R. Civ. P. 37(a)(5)(B).

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D. Defendant Frasier’s Motion for Protective Order Against Additional, Written Discovery
Pursuant to Fed. R. Civ. P. 26(c)(1), Defendant Frasier moved for a protective order
Aprohibiting plaintiffs from serving any further written discovery requests upon her.@ (Docket No.
193 at 1.) In light of the amended scheduling order issued below, the Court DENIES Defendant
Frasier’s motion. (Docket No. 193.)
E. Defendants’ Beerman’s and IHC’s Motion to Quash Plaintiffs’ Fourth Set of Discovery
Requests & Motion for Protective Order Forbidding Additional, Written Discovery
Defendants Beerman and IHC moved for a protective order Aprohibiting Plaintiffs from
serving additional written discovery,@ and Aquashing Plaintiffs= fourth set of discovery requests to
Intermountain.@ (Docket No. 225 at 2.) Specifically, Defendants Beerman and IHC argue
Plaintiffs= fourth set of discovery requests, which consists of twelve interrogatories and twenty-one
document production requests, should be quashed because it is oppressive and unduly
burdensome. (Docket No. 226 at 5.)
In their opposition, Plaintiffs persuasively argue discovery is warranted because
Defendants are the Aonly source of information@ for N.M.=s medical records (Docket No. 229 at
7-8), and the fourth set of discovery requests is a follow-up effort to clarify previous discovery
responses Plaintiffs received from Defendants.
This Court agrees with Plaintiffs’ position, and DENIES Defendant Beerman and
Defendant IHC’s motion to quash Plaintiffs’ fourth set of discovery requests. (Docket No. 225.)
In light of the amended scheduling order below, the Court DENIES Defendant Beerman and

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Defendant IHC’s motion for a protective order against further, written discovery. (Docket No.
225.)
F. Defendant Frasier’s Motion to Extend Deadlines in Amended Scheduling Order

Defendant Frasier moved to extend the deadlines in the amended scheduling order because
of discovery disputes. (Docket Nos. 216; 217 at 2.) Plaintiffs responded by seeking to vacate all
discovery and other deadlines in the amended scheduling order pending resolution of these
discovery motions. (Docket No. 218.)
Fed. R. Civ. P. 16(b)(4) allows a judge to modify a scheduling order for Agood cause.@
Because the trial in this matter is fast approaching, the Court finds good cause to GRANT
Defendant Frasier’s motion to extend the deadlines in the amended scheduling order. (Docket No.
216.) The deadlines are listed in the new, amended scheduling order below.
III. CONCLUSION
For the reasons discussed above, IT IS HEREBY ORDERED:
1. Defendant Frasier’s motion to compel Plaintiff Abby Tiscareno’s deposition regarding her
care of N.M., the events giving rise to N.M.’s injuries, and the criminal prosecution giving
rise to the civil suit is GRANTED. (Docket No. 210.) Plaintiffs’ request for sanctions
related to Defendant Frasier’s motion to compel is DENIED. The Court will NOT award
Defendant Frasier reasonable expenses in bringing the motion.
2. Plaintiffs’ motion to quash the subpoena duces tecum served on Mr. Xaiz by Defendant
Frasier is GRANTED. (Docket No. 188.) The subpoena is hereby QUASHED. Plaintiffs=
request for attorney=s fees related to bringing the motion is DENIED.

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3. Plaintiffs’ motion to compel Defendant Frasier’s admissions and interrogatory answers is
DENIED. (Docket No. 202.) Plaintiffs’ request for sanctions related to the motion is
DENIED. The Court will NOT award Defendant Frasier reasonable expenses in opposing
the motion.
4. Defendant Frasier’s motion for a protective order against further, written discovery is
DENIED. (Docket No. 193.)
5. Defendant Beerman’s and Defendant IHC’s motion to quash Plaintiffs’ fourth set of
discovery requests, and for a protective order against further, written discovery is
DENIED. (Docket No. 225.)
6. Defendant Frasier’s motion to extend the deadlines in the amended scheduling order is
GRANTED as outlined in the amended scheduling order below. (Docket No. 216.)
IT IS FURTHER ORDERED that the parties comply with the following discovery
SCHEDULING ORDER, subject to any modifications District Judge Waddoups sees fit to
make:
AMENDED SCHEDULING ORDER
1. Fact discovery deadline: December 31st, 2012
2. Rule 26(a)(2) expert reports deadline: January 15th, 2013
3. Dispositive motions deadline: February 11, 2013
4. Expert discovery deadline: March 15, 2013
All other matters set forth in the March 17, 2012 scheduling order (Docket No. 192) shall
remain without change.

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DATED this 6th

day of November 2012.

Dustin Pead
United States Magistrate Judge

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