Wine v. Johnston et al

Filing 27

DECISION AND ORDER signed by Judge Rudolph T Randa on 6/7/2016 GRANTING 18 Defendants Motion to Compel; GRANTING 19 Defendants Motion to Stay; DENYING 23 Plaintiffs Motion for Protective Order; DENYING 24 Plaintiffs Motion to Compel; DENY ING 24 Plaintiffs Motion to Stay. The defendants shall provide the plaintiff with a new authorization form within 7 days of the date of this Order. The plaintiff has 10 days from receipt to return the signed authorization to defendants. The defenda nts shall then file a letter with the Court confirming they received the authorization. Then an Amended Scheduling Order with new deadlines for the close of discovery and dispositive motions will be entered. If the plaintiff does not return the signed authorization form, the Court will entertain a motion to dismiss. (cc: all counsel - via US Mail to Jeremy L Wine - Wisconsin Secure Program Facility, Boscobel, WI) (lz)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEREMY M. WINE ,
Plaintiff,
-vs-

Case No. 14-C-1276

SANDRA JOHNSTON, et al.,
Defendants.

DECISION AND ORDER
The plaintiff, Jeremy Wine, a state prisoner, is proceeding pro se
and in forma pauperis on claims under 42 U.S.C. § 1983. On October 23,
2015, the Court entered a Scheduling Order that set a discovery deadline of
January 29, 2016, and a dispositive motion deadline of February 29, 2016.
(ECF No. 15). This matter is now before the court on motions filed by the
defendants and the plaintiff.
The defendants’ motion to compel and motion to stay and the
plaintiff’s motion for protective order are related, and the Court will
consider them together.
On February 16, 2016, the defendants filed a motion to compel the
plaintiff to sign an authorization for release of his medical and
psychological

services

records

with

the

Wisconsin

Department

of

Corrections (DOC).

The defendants argue that the plaintiff placed his

physical and mental health at issue when he brought this action and that
they are unable to investigate the plaintiff’s claims or adequately defend
against them without access to the plaintiff’s records.
The defendants served the plaintiff on November 9, 2015, with their
first request for production of documents and asked the plaintiff to provide
certified copies of his medical and psychological services records contained
in his DOC file. In the alternative, the defendants asked the plaintiff to
sign an authorization form so that they could obtain the records
themselves.

The plaintiff did not provide the records or the signed

authorization.
On February 2, 2016, the defendants’ counsel sent a letter to the
plaintiff giving him another opportunity to provide an authorization before
the defendants filed a motion to compel. Again, the plaintiff did not return
the signed authorization; he did not respond to the letter in any way.
The plaintiff responded to the motion to compel on February 22,
2016.

He asserts that he never received either authorization from the

defendants. He asks for a protective order limiting the records he needs to
disclose. According to the plaintiff, he has no problem sitting down with
the defendants’ attorneys as they pick what they want to copy out of his
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records. However, he does not want the defendants reading or copying
documents that are not relevant to this lawsuit.

He proposes that the

parties could forward any documents they disagree about to the Court to
decide whether the defendants are entitled to them. The plaintiff believes
that this procedure would protect his rights under the First Amendment
and the Health Insurance Portability and Accountability Act (HIPAA).
Also on February 16, 2016, the defendants filed a motion asking to
stay the Scheduling Order, including the deadline for filing motions for
summary judgment until the plaintiff has authorized disclosure of his
medical and psychological records to the defendants. The plaintiff agrees
that deadlines should be stayed until the discovery motions are resolved.
The Court considers an inability to obtain the plaintiff’s relevant records
good cause for an extension of time. See Fed. R. Civ. P. 6(b).
On February 22, 2016, the plaintiff filed a response to the
defendants’ motions. He also filed a motion for a protective order and a
motion to compel and stay.

In his motion for a protective order, the

plaintiff asks for a protective order denying the defendants unlimited
access to the plaintiff’s medical and psychological records. He references a
stipulated protective order entered in Case No. 14-cv-838 (E.D. Wis.)
The plaintiff asserts that he never received the authorizations the
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defendants allege they sent on November 9, 2015, and February 2, 2016.
The plaintiff believes that an authorization sent November 9, 2015, would
have been premature because the defendants had not yet filed their answer
in this case. Further, the plaintiff submits that the defendants’ request is
overly broad and would give the defendants access to medical and
psychological records that have no relevance to the facts of this lawsuit.
The plaintiff asserts that the defendants are not entitled to unfettered
access to his medical and psychological records and suggest that their basis
for exploring these files is specious. The plaintiff says the defendants need
to specify what records they are seeking and that a broad request for all
documents is inappropriate and excessive. The plaintiff asserts that he
cannot be compelled to sign a medical information release.
As relief, the plaintiff asks the court to grant his motion for
protective order, immediately schedule this motion for a telephone hearing,
issue a protective order that directs defendants and their attorney to make
specific discovery requests that specify what information they are seeking,
and allow the plaintiff to be present in person when the defendants’
attorney wants to come to the prison to review and copy records to ensure
that non-relevant documents are not being copied and forward those to the
court for a decision on relevance.
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“Parties 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). When determining whether
discovery is appropriate, the Court considers “the importance of the issues
at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.” Id.
For discovery purposes, relevancy is construed broadly to encompass
“any matter that bears on, or that reasonably could lead to other matter[s]
that could bear on, any issue that is or may be in the case.” Chavez v.
DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D.Ind.2002) (quoting
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389,
57 L.Ed.2d 253 (1978)). Even when information is not directly related to
the claims or defenses identified in the pleadings, the information still may
be relevant to the broader subject matter at hand and meet the rule's good
cause standard. Borom v. Town of Merrillville, 2009 WL 1617085, at *1
(N.D.Ind. June 8, 2009) (citing Sanyo Laser Prods., Inc. v. Arista Records,
Inc., 214 F.R.D. 496, 502 (S.D.Ind.2003)); see Adams v. Target, 2001 WL
987853, at *1 (S.D.Ind. July 30, 2001) ("For good cause, the court may
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order discovery of any matter relevant to the subject matter involved in the
action."); Shapo v. Engle, 2001 WL 629303, at *2 (N.D.Ill. May 25, 2001)
("Discovery is a search for the truth.").
The plaintiff placed his physical and mental condition at issue when
he filed this case. Although the plaintiff’s claims relate primarily to his
mental health, both his medical and psychological records may provide
information that is relevant to the plaintiff’s claims. The defendants are
entitled to review those records as part of the discovery process, but that
does not mean that the records will necessarily be admissible later in the
case.
The Court will direct the defendants to provide the plaintiff with a
new authorization, and the plaintiff will have ten (10) days to return the
signed authorization to the defendants. The defendants shall advise the
Court by filing a letter when they receive the authorization. At that time,
the Court will enter an Amended Scheduling Order with new deadlines for
the close of discovery and dispositive motions.
The Court will now turn to the plaintiff’s motion to compel and stay.
The plaintiff asserts that the defendants have not fully responded to
discovery requests he sent them on December 28, 2015. The plaintiff asks
the Court to direct the defendants to re-answer the plaintiff’s December 28,
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2015, requests for production of documents as though they never answered
them before.

The plaintiff wants the Court to order the defendants to

produce all the documents he requested to ensure the plaintiff’s due
process rights. As relief, the plaintiff asks that the Court order: (1) the
defendants to answer the plaintiff’s request for production of documents
fully with a copy of all requested documents within 30 days of this order;
(2) the defendants’ attorney to conduct a telephone conference with the
plaintiff to discuss cooperation and resolution of discovery issues; and (3) a
stay of all proceedings in this lawsuit until all discovery issues are
resolved.
The plaintiff asserts that the defendants are refusing to produce
documents that exist, are relevant, and that they can obtain. The plaintiff
wants each defendants’ personnel file and history of discipline and
investigations against them. He seeks to establish a pattern and history of
misconduct and rule violations.

Plaintiff says he sent the defendants’

attorney a letter asking her to call him at the prison to discuss and resolve
discovery matters, and she ignored it.
The defendants filed a response to the plaintiff’s motions. They
argue that the plaintiff failed to comply with the requirement to confer in
good faith before filing a motion to compel, that the plaintiff failed to meet
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his burden to prove that the defendants’ responses were insufficient, and
that they have adequately responded to the plaintiff’s discovery requests.
The defendants’ attorney declares that the plaintiff never contacted her in
an attempt to resolve the discovery dispute.
Under Federal Rule of Civil Procedure 37, a party is permitted to
file a motion to compel discovery where another party fails to respond to
interrogatories or requests for production of documents. See Fed. R. Civ. P.
37(a)(3)(B)(iii) and (iv). The movant “must include a certification that the
movant 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)(1). Additionally, Civil Local
Rule 37 requires the movant to “recite the date and time of the conference
or conferences and the names of all parties participating in the conference
or conferences.” A motion to compel discovery pursuant to Rule 37(a) is
addressed to the sound discretion of the trial court. EEOC v. Klockner H &
K Machines, Inc., 168 F.R.D. 233, 235 (E.D. Wis. 1996) (citation omitted).
It does not appear that the plaintiff properly complied with Rule 37
and Civil Local Rule 37(a). At best, his request for the defendants’ counsel
to call him to discuss a discovery matter was vague. In any event, the
defendants responded to the plaintiff’s requests for production of
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documents, and the plaintiff has not shown that the responses were
inadequate. The Court will deny the plaintiff’s motion to compel.
The Court also will deny the plaintiff’s motion to stay the case, but
the Court will amend the Scheduling Order, as discussed above.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the defendants’ motion to compel (ECF No.
18) is GRANTED.
IT IS FURTHER ORDERED that the defendants’ motion to stay
scheduling order (ECF No. 19) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motion for
protective order (ECF No. 23) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion to compel
(ECF No. 24) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion to stay
(ECF No. 24) is DENIED.
IT IS FURTHER ORDERED that the defendants shall provide the
plaintiff with a new authorization within seven (7) days of this Order. The
plaintiff must return the signed authorization to the defendants within ten
(10) days of receiving it. The defendants shall advise the Court when they
receive the authorization by filing a letter. At that time, the Court will
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enter an Amended Scheduling Order with new deadlines for the close of
discovery and dispositive motions.

If the plaintiff does not return the

signed authorization, the Court will entertain a motion to dismiss.
Dated at Milwaukee, Wisconsin, this 7th day of June , 2016.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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