Armstrong v. Whalen et al

Filing 60

ORDER denying Defendants' 44 Motion to Compel. The Court ORDERS Plaintiff to provide Defendants with a signed copy of the correct Authorization Form 17-063 within 10 days of the date of this order. The Court also ORDERS Defendants to show cause within 14 days of the date of this order why Defendants and/or Defendants' counsel should not pay DSHSs reasonable expenses incurred in opposing Defendants' motion. DSHS may also file a brief within 14 days of the date of this order explaining why Defendants and/or Defendants' counsel should pay DSHS's reasonable expenses incurred in opposing Defendants' motion. Signed by U.S. District Judge John C Coughenour. (TH)

Case 2:18-cv-00845-JCC Document 60 Filed 06/04/20 Page 1 of 4

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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VIRGIL ARMSTRONG,

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Plaintiff,

ORDER

v.

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CASE NO. C18-0845-JCC

DEPUTY C. WHALEN et al.,

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Defendants.

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This matter comes before the Court on Defendants’ motion to compel the State of

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Washington’s Department of Social and Health Services (“DSHS”) to produce records pursuant

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to a subpoena or, in the alternative, to compel Plaintiff to produce records (Dkt. No. 44). Having

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considered the parties’ briefing, DSHS’s briefing, and the relevant record, the Court hereby

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DENIES the motion for the reasons explained herein.

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I.

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BACKGROUND
On June 11, 2018, Plaintiff filed suit against Snohomish County, a Snohomish County

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sheriff, and several Snohomish County deputies over an incident on June 15, 2015, between

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Plaintiff and the deputies. (See generally Dkt. No. 1.) During discovery, Plaintiff informed

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Defendants that he had received counseling and medical treatment for a mental health or

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psychiatric illness at “Washington State DHR.” (Dkt. No. 45-1 at 21.) Believing that the records

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of that counseling and treatment might be relevant to Plaintiff’s lawsuit, Defendants served
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DSHS with a combined notice of intent to serve a subpoena and a subpoena duces tecum on

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January 10, 2020. (Dkt. No. 45-2 at 2–10.) The subpoena commanded DSHS to produce

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Plaintiff’s records from seven DSHS programs by January 30. (Id. at 5, 8.)

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On January 17, DSHS informed Defendants that it could not provide the requested

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records because the records were confidential and privileged under Wash. Rev. Code

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§ 74.04.060. (Dkt. No. 45-3 at 2.) However, DSHS said that it could provide the records if

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Defendants obtained a valid court order or had Plaintiff sign the “Authorization Form 17-063”

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found on DSHS’s website. (See id.) As it happened, Defendants had already asked Plaintiff to

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sign an Authorization Form 17-063. (See Dkt. No. 45-4 at 4, 7.) Unfortunately, Defendants had

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asked Plaintiff to sign the authorization form for the Washington State Department of Children,

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Youth, and Families (“DCYF”). (See id. at 7.) So when Defendants sent the signed

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“Authorization DCYF 17-063” to DSHS, DSHS unsurprisingly informed Defendants that the

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authorization allowed only DCYF—not DSHS—to release records to Defendants. (Dkt. No. 50-3

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at 2.) DSHS reiterated that it could not release Plaintiff’s records to Defendants without the

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proper authorization. (Id.)

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On February 12, Defendants’ counsel asked Plaintiff’s counsel to have Plaintiff sign the

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correct form by February 26. (Dkt. No. 45-5 at 2.) When Defendants’ counsel did not receive the

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form by February 26, Defendants’ counsel called Plaintiff’s counsel’s office on February 27.

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(See Dkt. No. 45 at 3.) A legal assistant informed Defendants’ counsel that Plaintiff’s counsel

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was in court and not available for a telephone conference call. (Id.) Defendants’ counsel told the

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legal assistant that Defendants would file a motion to compel, which Defendants promptly filed

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the next day. (Dkt. No. 44 at 6.)

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II.

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DISCUSSION
Discovery motions are strongly disfavored. However, if the parties are unable to resolve

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their discovery issues, the requesting party may move for an order to compel. Fed. R. Civ. P.

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37(a)(1), 45(d)(2)(B)(i). Any such motion must contain a certification “that the movant has in
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good faith conferred or attempted to confer with the person or party failing to make disclosure or

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discovery in an effort to resolve the dispute without court action.” W.D. Wash. Local Civ. R.

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37(a)(1). “A good faith effort to confer with a party or person not making a disclosure or

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discovery requires a face-to-face meeting or a telephone conference.” Id. The party requesting a

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motion to compel must also show that their efforts to meet and confer resulted in a genuine

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impasse. See Advanced Hair Restoration, LLC v. Hair Restoration Ctrs., LLC, C17-0709-RSM,

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Dkt. No. 29 at 3 (W.D. Wash. 2018).

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Here, Defendants did not satisfy Local Civil Rule 37’s meet-and-confer requirement

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because Defendants’ counsel did not make a good faith attempt to have a face-to-face meeting or

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a telephone conference with Plaintiffs’ counsel. True, Defendants counsel tried to call Plaintiff’s

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counsel on February 27, 2020. (Dkt. No. 45 at 3.) But when Plaintiff’s counsel could not respond

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because he was in court, Defendants’ counsel did not take the easy and obvious step of trying to

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reach Plaintiff’s counsel on a different day. (See id.) Instead, Defendants’ counsel filed a motion

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to compel after trying to call Plaintiff’s counsel only once. (See id.) A single phone call cannot

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constitute a good faith attempt to comply with the meet-and-confer requirement. If it did, then

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the requirement would not meaningfully encourage parties to resolve discovery disputes without

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unnecessarily involving the Court.

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The importance of the meet-and-confer requirement is illustrated by the present discovery

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dispute. Defendants’ motion forced DSHS, Plaintiff, and Defendants to brief complex issues of

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state and federal law. (See, e.g., Dkt. No. 49 at 3–7.) That briefing appears to be entirely

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unnecessary: DSHS is willing to release Plaintiff’s records if Plaintiff fills out the proper form,

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and Plaintiff seems to have no problem with filling out that form. (See Dkt. Nos. 50-2 at 2, 50-3

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at 2, 51 at 3.) Thus, if Defendants’ counsel had followed up on their first unsuccessful phone

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call, the present discovery dispute could have been avoided altogether.

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III.

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CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ motion to compel (Dkt. No.

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44). The Court ORDERS Plaintiff to provide Defendants with a signed copy of the correct

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Authorization Form 17-063 within 10 days of the date of this order. Pursuant to Federal Rule of

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Civil Procedure 37(a)(5)(B), the Court also ORDERS Defendants to show cause within 14 days

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of the date of this order why Defendants and/or Defendants’ counsel should not pay DSHS’s

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reasonable expenses incurred in opposing Defendants’ motion. If DSHS so chooses, DSHS may

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also file a brief within 14 days of the date of this order explaining why Defendants and/or

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Defendants’ counsel should pay DSHS’s reasonable expenses incurred in opposing Defendants’

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motion.

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DATED this 4th day of June 2020.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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