Free Motion to Compel - District Court of Colorado - Colorado

Case 1:00-cv-02350-LTB-MJW

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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-2350-LTB-MJW PAULETTE GOMEZ, Plaintiff, v. KING SOOPERS, INC., Defendant.

DEFENDANT'S MOTION TO COMPEL

Defendant King Soopers, Inc. ("Defendant"), through its attorneys Sherman & Howard L.L.C. and pursuant to F.R.C.P. 37(a)(2)(B) and D.C.COLO.LCivR 37.1, files this Motion to Compel Plaintiff to respond more fully to Defendant's First Set of Requests for Production of Documents to Plaintiff. In support of this Motion, Defendant states as follows: INTRODUCTION On April 20, 2005, Defendant's counsel served its first set of discovery requests on Plaintiff. The responses were then due on May 23, 2005. Plaintiff did not serve her responses by that date. Defendant's counsel's office followed up with Plaintiff's counsel about the failure to file responses or move for an extension of time but Plaintiff's counsel continued to fail to provide responses. On June 13, 2005, counsel for Defendant sent a letter to Plaintiff's counsel about the continuing failure to provide responses. See Exhibit A. In that letter, Defendant's counsel stated that

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any objections Plaintiff may have had to the requests were waived due to the untimely response. Defendant's counsel also requested that the responses be provided by June 20. On June 22, 2005, Plaintiff finally served her responses to Defendant's first set of discovery requests. Plaintiff's responses to Defendant's discovery requests are deficient in a number of respects, as more fully outlined below. On June 28, 2005, counsel for Defendant sent a letter to Plaintiff's counsel, setting forth in detail the various deficiencies in Plaintiff's discovery responses. See Exhibit B. Plaintiff's counsel did not respond to Defendant's counsel's letter, and thus on July 15, 2005, Defendant's counsel sent another letter to Plaintiff's counsel regarding Plaintiff's deficient discovery responses. See Exhibit C. In that letter, the undersigned counsel stated that if Plaintiff did not provide supplemental discovery responses and signed releases by July 22, Defendant would file a motion to compel, and seek fees for preparing the motion. Defendant's counsel also requested that Plaintiff produce the documents identified in her discovery responses. On July 25, 2005, Plaintiff's counsel left a voice mail message for the undersigned counsel advising that she would be withdrawing as attorney of record for Plaintiff, but would obtain Plaintiff's signature on the requested releases and produce them to Defendant by the end of that week. Defendant's counsel confirmed this message with a letter dated July 26, 2005, and requested that in addition to producing the requested releases, Plaintiff produce all documents identified in her discovery responses. See Exhibit D. Plaintiff's counsel did not respond to that letter, nor did she provide the releases.

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On August 2, 2005, Defendant's counsel again wrote to Plaintiff's counsel and requested Plaintiff supplement her discovery responses, produce the requested releases and copies of the documents identified in Plaintiff's discovery responses, and respond to Defendant's counsel's July 25, 2005, letter. Defendant's counsel stated that if Plaintiff did not produce the requested information and documents by August 9, 2005, Defendant would file a motion to compel and seek its fees incurred in preparing the motion. See Exhibit E. Once again, Plaintiff's counsel did not respond to the undersigned counsel's letter. On August 12, 2005, Defendant's counsel's paralegal spoke with Plaintiff's counsel, who stated that she now was not certain if she would be withdrawing as counsel of record for Plaintiff. In addition, Plaintiff's counsel stated that she was meeting with Plaintiff over the weekend, and would produce the requested documentation by Monday, August 15, 2005. At the time of the filing of this Motion, none of the requested releases or documents have been produced to Defendant. Because Plaintiff's counsel has failed to provide the releases and documents that she repeatedly stated she would produce, Defendant is now filing this Motion to Compel. The specific issues regarding Plaintiff's deficient discovery responses are detailed below. ARGUMENT I. Plaintiff Should Be Ordered To Produce Documents Identified In The Discovery Responses. In response to Defendant's Requests for Production Nos. 1 through 10, Plaintiff stated that responsive documents will be produced. See Exhibit F. However, despite numerous written requests to Plaintiff's counsel as noted above, to date, Plaintiff's counsel has failed to provide any

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of the responsive documents. Accordingly, Defendant's counsel requests that the Court order Plaintiff's counsel to produce the documents.1 II. Plaintiff's Discovery Responses Were Untimely and Thus Any Objections Are Waived. To the extent that Plaintiff objected to Defendant's discovery requests when she finally responded to them, those objections are waived due to her untimely response. In general, objections to written discovery responses must be made timely or they are waived. 10 Fed Proc, L Ed § 26:411 ("There is no provision in the federal rules for preserving objections to interrogatories beyond the time that FRCP 33 allows."); 10A Fed Proc, L Ed § 26:488 ("A party's failure to file timely objections to a request for production may result in a waiver of objections."). Indeed, as to responses to Interrogatories, the rules specifically provide that untimely objections are waived. F.R.C.P. 33(b)(4) ("Any ground [for objection] not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown."). The exact same rule has been applied by numerous courts concerning untimely objections to requests for production of documents. See, e.g. Pham v. Hartford Fire Ins. Co., 193 F.R.D. 659, 661 (D. Colo. 2000) ("a failure to object to requests for production of documents within the time permitted by the federal rules has been held to constitute a waiver of any objection.") (citing cases); Starlight Intern., Inc. v. Herlihy, 181 F.R.D. 494, 496-97 (D. Kan. 1998) (same).

It also is worth noting that Plaintiff's counsel has never served initial disclosures in this case, nor has Plaintiff's counsel filed an Amended Complaint in this matter, as she stated she was going to do at the Scheduling Conference. See Exhibit G. 4

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As set out in detail above, Plaintiff served her responses to Defendant's discovery requests 30 days late, without obtaining any extension of time from the Court. Accordingly, any objections to Defendant's discovery requests contemplated by Plaintiff at this late date, are waived. III. Even If Plaintiff's Objections Were Not Waived, They Are Without Merit. Defendant's Request for Production No. 12 requested Plaintiff: Please execute the attached Authorization for Use or Disclosure of Protected Health Information, Authorization for Use or Disclosure of Psychotherapy Notes, Authorization for Release of Employment and Payroll Records, Authorization for Release of Information to the Division of Worker's Compensation, Authorization to Release Social Security Records and Reports, and Authorization to Release Academic Records and Reports, before a notary public and produce the executed authorizations. Plaintiff responded as follows: Gomez objects to this document request to the extent it seeks production of documents protected by the doctor-patient privilege. Gomez also objects to this document request as overly broad to the extent it requests Gomez to sign a release for social security documentation although Gomez has not applied for social security benefits. Gomez further objects to this document request as overly broad to the extent it seeks release of academic records and reports without any time limitations. Gomez lastly objects to this document request to the extent that the releases provided does [sic] not require production of the documents to both opposing counsel and Gomez' [sic] counsel. Subject to these objections, Gomez has executed the releases attached. The releases executed by Plaintiff in response to this request were releases specifically directed to only one of Plaintiff's health care providers, Plaintiff's current employer, two of Plaintiff's former employers, and one location where Plaintiff received workforce training.

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Plaintiff refused to provide a release for Plaintiff's records from the Division of Workers' Compensation. Information contained in Plaintiff's worker's compensation files clearly is relevant and discoverable in this case because Plaintiff is claiming disability discrimination under the Americans with Disabilities Act (ADA) stemming from a workplace accident, and because Plaintiff has pled a workers' compensation retaliation claim. See Complaint ¶¶ 31-49, 56-60. Accordingly, Defendant requests that this Court order Plaintiff to sign Defendant's release for her workers' compensation records. Second, also in response to Request for Production No. 12, Plaintiff refused to provide a release for all of Plaintiff's medical records, instead providing a release only for Kaiser Permanente. There are many other doctors Plaintiff has seen and other medical facilities where she has been treated. Plaintiff is claiming not only that she is disabled under the ADA, but also that she has suffered emotional distress. She has, therefore, placed her entire medical history in issue. See Fox v. Gates Corp., 179 F.R.D. 303, 305 (D. Colo. 1998) (compelling plaintiff to disclose health providers' names and dates of treatment because she was seeking damages for emotional distress); Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 129 (E.D. Pa. 1997) (holding that plaintiff who claimed to be disabled under the ADA was required to disclose the records of her medical providers); Butler v. Burroughs Wellcome, Inc., 920 F. Supp. 90, 92 (E.D.N.C. 1996) ("In an action under the ADA, a plaintiff's medical history is relevant in its entirety."); Whitbeck v. Vital Signs, Inc., 163 F.R.D. 398, 400 (D.D.C. 1995) (compelling plaintiff in a disability discrimination case to produce all medical records before and after the date she claimed the disability began).

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Defendant modified its HIPAA compliant release to direct the health care providers to produce copies of Plaintiff's medical records to Plaintiff's counsel, as well as Defendant's counsel, and provided this release to Plaintiff's counsel. Defendant requests that this Court order Plaintiff to sign Defendant's HIPAA compliant release for Plaintiff's medical records. Third, also in response to Request for Production No. 12, Plaintiff failed to provide releases which would allow Defendant to obtain Plaintiff's employment records from several locations where Plaintiff was employed subsequent to working for Defendant. Information contained in the employment records for Plaintiff's subsequent employment clearly is relevant and discoverable with regard to a number of issues in this case, including mitigation of damages and whether Plaintiff is a qualified individual with a disability. See EEOC v. Chemsico, Inc., 203 F.R.D. 432, 434-35 (E.D. Mo. 2001) (ordering plaintiff in a religious discrimination case to sign a release so that the defendant could obtain information from the plaintiff's previous and subsequent employers); EEOC v. Fargo Assembly Co., 142 F. Supp. 2d 1160, 1163 (D. N.D. 2000) (holding that information regarding a plaintiff's subsequent employment was relevant and could be introduced at the trial of his disability discrimination claim); Penn v. Heitmeier, 2000 WL 297685, *2 (E.D. La. 2000) (copy attached at Exhibit H, p. 2) (information concerning the plaintiff's subsequent employment was relevant and could be introduced at the trial of his race discrimination claim). The information also is relevant because documentation may include statements made by Plaintiff regarding the reasons she left employment with Defendant. Accordingly, Defendant requests that this Court order Plaintiff to sign Defendant's release for her employment records.

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Fourth, in response to Request for Production No. 12, Plaintiff failed to provide a release which would allow Defendant to obtain any documents Plaintiff submitted to prospective employers subsequent to her employment with Defendant. Instead, Plaintiff provided releases specifically directed to two of the companies where Plaintiff was employed subsequent to King Soopers, but Defendant cannot use these authorizations to obtain records from Plaintiff's prospective employers. Defendant has asserted a mitigation of damages defense, and therefore, has the right to obtain any and all information from Plaintiff's prospective employers pertaining to Plaintiff's attempts to obtain employment with those companies. See Chemsico, Inc., 203 F.R.D. at 434-35 (ordering plaintiff in a religious discrimination case to sign a release so that the defendant could obtain information from the plaintiff's employers and prospective employers). Defendant modified its release to require the production to Plaintiff's counsel of any records obtained through the use of this release. Defendant requests that this Court order Plaintiff to sign Defendant's release for records from Plaintiff's prospective employers. Finally, Plaintiff has refused to sign Defendant's release for Plaintiff's academic records. In answer to Interrogatory No. 13, Plaintiff stated that she was enrolled at the Community College of Denver (West) after she left employment with Defendant. Defendant provided to Plaintiff a release specifically directed to Community College of Denver (West). Defendant requests this Court order Plaintiff to sign Defendant's academic release, as this information goes directly to Defendant's defense that Plaintiff has failed to mitigate her damages. WHEREFORE, Defendant respectfully requests that this Court order Plaintiff to produce the documents identified in her discovery responses, and to sign the requested releases for Plaintiff's 8

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workers' compensation records, medical records, psychotherapy records, employment records, records from prospective employers, and academic records. Moreover, counsel for Defendant has complied fully with the requirements of F.R.C.P. 37 and D.C.COLO.LCivR 37.1, and therefore, respectfully requests that the Court award reasonable attorneys' fees incurred in preparing this Motion. Respectfully submitted this 22nd day of August, 2005. SHERMAN & HOWARD L.L.C.

/s/ Edward J. Butler Raymond M. Deeny Edward J. Butler 90 South Cascade Avenue, Suite 1500 Colorado Springs, Colorado 80903 (719) 475-2440 Attorneys for Defendant

CERTIFICATE OF SERVICE I hereby certify that on August 22, 2005, I electronically filed the foregoing DEFENDANT'S MOTION TO COMPEL with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] Cecilia Serna, Esq. Law Offices of Cecilia M. Serna, Esq. 600 17th Street, Suite 2800 South Denver, CO 80202-5428 /s/ Peggy J. Barber, Secretary to Edward J. Butler

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