Blackburn v. USA et al

Filing 204

ORDER granting in part and denying in part 172 Motion for Sanctions. Signed by Magistrate Judge Evelyn J. Furse on 4/23/20. (jwt)

Case 2:18-cv-00116-DBB-EJF Document 204 Filed 04/23/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
TONYA KIM BLACKBURN,

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR SANCTIONS
(ECF NO. 172)

Plaintiff,
vs.

Case No. 2:18-cv-00116-DBB-EJF

UNITED STATES; MOAB FAMILY
MEDICINE; EVE MAHER-YOUNG, PA-C;
and DOE INDIVIDUALS 1 through 10,

Judge David Barlow
Magistrate Judge Evelyn J. Furse

Defendants.

Ms. Blackburn seeks a variety of sanctions for discovery violations by the United
States/Moab Family Medicine. (Pl.’s Mot. for Sanctions, ECF No. 172.) As addressed
below, the Court GRANTS IN PART and DENIES IN PART Ms. Blackburn’s Motion for
Sanctions.
Ms. Blackburn renews her request for the Court to strike the United States’
thirteenth affirmative defense, for the costs and fees associated with bringing Plaintiff’s
Short Form Discovery Motion regarding payments for made for her care (ECF No. 89),
and the costs of the meet and confers leading to the filing of the discovery motions. The
Court previously denied all these requests. (Order Re: Pl.’s Short Form Discovery
Motions (ECF Nos. 87, 88, 89, & 91) (“Order”), ECF No. 110.) Nothing in the interim
changes the Court’s opinion with respect to denial of any of these sanctions, and
therefore denies them again.

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Ms. Blackburn also seeks some new sanctions:
1. the fees and costs associated with the July 16, 2019 inspection, which the
United States indicates it is willing to pay;
2. the fees and costs associated with issuing the third set of discovery requests;
3. the fees for taking William Cornett and Sean Buck’s depositions;
4. the fees and costs associated with piecing together the Volgistics
spreadsheet; and
5. the fees and costs incurred in bringing and arguing Plaintiff’s Short Form
Discovery Motion regarding volunteer records (ECF No. 117) and the present
Motion(ECF No. 172).
Given that the United States agrees to pay the fees associated with the one hour
July 16, 2019 inspection, and the Court finds that inspection critical in Ms. Blackburn’s
obtaining full discovery in this case, the Court awards fees of $3501 to Ms. Blackburn.
The Court disagrees with the Government’s position that Request for Production
No. 8 did not request volunteer time sheets and records and held as much in its Order,
ECF No. 110. The Court finds the Government’s refusal to produce those records
absent a new request for production needlessly increased Ms. Blackburn’s costs and
took time. Therefore, the Court awards Ms. Blackburn her fees and costs in preparing
the third set of document requests. To avoid further motion practice and based on the
Court’s experience, the Court finds $1,400 should appropriately compensate for
expenditures of time and money and deter future misconduct.

In prior motions, the Court has found counsel for Ms. Blackburn’s reasonable hourly
rate for this case to be $350.
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As to the deposition of William Cornett, the deposition lasted from roughly nine in
the morning to four in the afternoon. Approximately eleven pages appear to relate to
the volunteer time issue. Much of Mr. Cornett’s deposition related to clinic practices and
his role in Ms. Blackburn’s care. Similarly, Dr. Sean Buck answered questions about his
role on the Board of Directors, clinic practices, and his relationship to two of Ms.
Blackburn’s treaters in addition to his management of volunteers. While both of these
depositions played significant roles in helping Ms. Blackburn uncover information
important to her case, including the names of the volunteers involved in her care and
moneys expended in connection with volunteers, the Court cannot say these
depositions would not have been necessary absent the United States’ discovery
failings. The Court will award Ms. Blackburn one hour of counsel’s time for each
deposition to compensate for the time that she could have avoided having to spend in
the deposition absent the discovery problems, for a total of $700.
The Government contends that it produced the Volgistics spreadsheet in the
most accessible fashion it could and that it received the spreadsheet in PDF format.
Taking the Government’s counsel at his word that the spreadsheet only existed in PDF
format, the Government should have provided some sort of instructions on how to
assemble the spreadsheet to avoid wasting time and creating confusion. That said, Ms.
Blackburn’s counsel should have contacted the Government’s counsel prior to spending
time trying to piece together the spreadsheet to see if they could have provided
assistance. Given that Ms. Blackburn’s counsel did not reach out to the Government’s

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counsel regarding the spreadsheet before attempting to piece it together, the Court
finds an award of fees for the time spent unwarranted.
The Court ordered briefing on this Motion for a variety of reasons, not the least of
which was Plaintiff’s Short Form Discovery Motion regarding volunteer records (ECF
No. 117) did not actually request any relief. The Court will not award the fees and costs
for bringing or arguing a Motion that does not request any relief. As to the instant
Motion, again the Court finds a portion of the Motion warrants relief and another portion
does not. Under the circumstances, the Court will award Ms. Blackburn an additional
$5,000 to compensate for the reasonable fee incurred in bringing this Motion.
In sum, the Court GRANTS IN PART Ms. Blackburn’s request for monetary
sanctions and ORDERS the United States to pay Ms. Blackburn an additional $7,450.00
within fourteen (14) days of the date of this Order.

DATED this 23rd day of April, 2020.
BY THE COURT:

Evelyn J. Furse
United States Magistrate Judge

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