Boland v. LaVoie et al

Filing 33

DECISION AND ORDER signed by Magistrate Judge Stephen C Dries on 3/7/2025. The Court GRANTS in part Boland's motion to compel. If by March 25, 2025, the parties are unable to reach an agreement on the scope of Boland's request, Boland may notify the Court, and the Court will schedule a telephonic status conference. (cc: all counsel and mailed to pro se party)(amb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CLIFFORD JAMES BOLAND,
Plaintiff,
v.

Case No. 24-cv-0352-scd

DANIEL LAVOIE et al,
Defendants.

DECISION AND ORDER

Plaintiff Clifford Boland is representing himself in this 42 U.S.C. §1983 case. This matter
is before the Court on Boland’s motion to compel. Boland is proceeding, in part, on an Eighth
Amendment claim based on allegations that Defendant Dr. Daniel LaVoie rejected a specialist’s
recommendation that Boland receive a particular treatment for a serious medical condition. See
Dkt. Nos. 10, 12, 23. Specifically, Boland alleges that Dr. LaVoie denied the recommended
treatment in May 2023 and again in February 2024. Dkt. No. 10 at 4.
On November 22, 2024, Boland served on Dr. LaVoie a second set of discovery requests.
He asked Dr. LaVoie to “provide the search history to determine when Dr. LaVoie searched the
CMS and Cochrane database to obtain the information [he] provided to answer LaVoie’s
Interrogatory #4.” Dkt. No. 30-1 at 1. As Boland explains in his motion to compel, in response
to Boland’s first set of discovery requests, Dr. LaVoie produced a study that he allegedly relied on
when deciding to deny the specialist’s recommended treatment. But, as Boland highlights, the
study produced by Dr. LaVoie was published three months after he first denied the treatment.

Boland’s second set of discovery requests therefore sought clarification of when Dr. LaVoie first
researched the recommended treatment.
On December 17, 2024, defense counsel objected to Boland’s second set of discovery
requests on the ground that the request was “overly burdensome and not proportional to the needs
of the case.” Dkt. No. 30-1 at 3. Defense counsel provided no explanation supporting this
boilerplate objection. About a week later, Boland sent a letter to defense counsel stating that he
believed the requested information was necessary for him to prove his case. He asked defense
counsel to respond “as soon as possible as Discovery ends on Jan. 13. 2025 and [he] will file the
motion [to compel] before this date.” Dkt. No. 30-1 at 4. Defense counsel responded to Boland’s
letter three days later, on January 16, 2025, and confirmed that Dr. LaVoie would not respond to
the discovery request. Counsel explained that Boland had not specified if he is requesting the
search history from a particular search engine. Counsel also suggested that inquiries into an
individual’s internet search and browsing history may be intrusive. Finally, Counsel for the first
time asserted that the request was not relevant to Boland’s claim because he had not “ma[d]e any
allegations as to the timing of Dr. LaVoie’s decision.” Dkt. No. 30-1 at 5.
Boland filed a motion to compel on February 4, 2025. Dkt. No. 28. Defendant responded
on February 18 2025, asserting that, although the parties had exchanged “letters regarding this
dispute, they had yet to confer.” Dkt. No. 32. Defense counsel argues that, because Boland did
not include the date and time of the parties’ conference in his motion, the Court must deny his
motion.
Defense counsel’s argument regarding Boland’s failure to confer is without merit. Boland
filed a declaration in support of his motion in which he stated under penalty of perjury that he
wrote a letter to Defense counsel on December 23, 2024, after receiving Dr. LaVoie’s objection to

2

his second set of discovery requests. Counsel promptly responded to that letter and confirmed that
Dr. LaVoie would not respond to the discovery request. Recognizing the limitations Boland faces
because he is incarcerated, the Court finds that his effort to informally resolve this dispute before
asking the Court to get involved was adequate.
Defense counsel’s assertion that Boland’s request is irrelevant is also without merit. In
response to Boland’s first discovery request inquiring what information Dr. LaVoie relied on when
he decided to deny the specialist’s recommended treatment, i.e., the basis on which he claims to
have exercised his professional judgment, Dr. LaVoie apparently produced a study that had not
yet been published at the time of the denial. Obviously, Dr. LaVoie could not have based his
decision on a study that did not exist (unless he participated in the study, which isn’t likely).
Therefore, Boland’s efforts to determine when Dr. LaVoie researched the recommended treatment
is relevant to his claim that Dr. LaVoie rejected the specialist’s recommendation in the absence of
professional judgment. See Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006).
That said, the Court agrees that Boland’s request for Dr. LaVoie’s “search history” of the
“CMS and Cochrane database” is overbroad and unduly burdensome given that Boland also
explains that he wants that information only to learn the “exact date that Dr. La Voie made the
initial searches and any subsequent searches.” Dkt. No. 30-1. With all of this in mind, the Court
GRANTS in part Boland’s motion to compel. The Court encourages the parties to again confer
to better define the scope of Boland’s request for information about when and how Dr. LaVoie first
researched the recommended treatment. If by March 25, 2025, the parties are unable to reach an
agreement on the scope of Boland’s request, Boland may notify the Court, and the Court will
schedule a telephonic status conference. The Court reminds the parties to confer in good faith with
the understanding that Boland is not a lawyer a faces unique challenges because of his incarcerated

3

status. The Court is confident that the parties can reach an agreement without its further
involvement. The dispositive motion deadline is extended to April 30, 2025.
SO ORDERED at Milwaukee, Wisconsin on March 7, 2025.
STEPHEN C. DRIES
United States Magistrate Judge

4