Free Response in Opposition to Motion - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc. IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 Shannon Michael Clark, 9 Plaintiff, 10 v. 11 ValueOptions, Inc., 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VALUEOPTIONS' RESPONSE TO PLAINTIFF'S MOTION APPEALING AN OBJECTION TO MAGISTRATE'S ORDERS DENYING PLAINTIFF'S MOTION TO REOPEN DISCOVERY AND MOTION TO APPOINT COUNSEL Case No. CIV 03-1344-PHX-EHC (MS)

Defendant ValueOptions, Inc. ("ValueOptions"), through counsel, hereby files its Response to Plaintiff's Motion Appealing and Objection to Magistrate's Orders Denying Plaintiff's Motion to Reopen Discovery and Motion to Appoint Counsel. Though findings of fact and legal conclusions are reviewed de novo, procedural matters are reviewed only for an abuse of discretion. Rule 53, Fed.R.Civ.P. I. MOTION TO REOPEN DISCOVERY Unless Plaintiff can demonstrate an abuse of discretion, the Court may not set aside the Magistrate's ruling on a procedural matter. Rule 53(g)(5), Fed.R.Civ.P. In the Order dated October 27, 2005 the Magistrate, citing Fed.R.Civ.P. 26(f), denied Plaintiff's Motion to Reopen Discovery since Plaintiff failed to make a sufficient showing that the documents were relevant or likely to lead to discovery of admissible evidence. [Dkt. 157]. Additionally, Plaintiff's Motion was denied as it was brought beyond the discovery cutoff of November 18, 2004 previously established by this Court. Plaintiff's Appeal and Objection fail to raise sufficient facts or legal authority to support modification or reversal of the Magistrate's Order.

Case 2:03-cv-01344-EHC-HCE

Document 174

Filed 11/23/2005

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Plaintiff's Motion to Reopen Discovery clearly intends to utilize discovery to seek disclosure of information and documents protected under the Health Insurance Portability and Accountability Act of 1996 ("HIPPA") and A.R.S. § 36-509 as argued in ValueOptions' Response and Objections to Plaintiff's Motion to Reopen Discovery and as recognized by the Magistrate in his Order denying Plaintiff's Motion. [Dkt. 137 and 157]. In response to the congressional directive of HIPPA, the Secretary of Health and Human Services promulgated 45 C.F.R. § 164.512, which established narrow exceptions to HIPPA's general prohibition against the dissemination of private patient medical records. Plaintiff failed to establish that any of these exceptions to the blanket prohibition apply to the current matter.1 Additionally, the request for discovery is not relevant. Specifically, this Court recognized the ruling of the United States Supreme Court requiring that a Plaintiff seeking to impose liability on a municipality under § 1983 must identify a municipal policy or custom that caused the injury. [Dkt. 121, p. 8; citing Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1987)]. It goes without saying that events occurring subsequent to the alleged liability-causing event in the present matter are not relevant to establish such a policy or custom for the alleged liability creating event.2 Based on the foregoing reasons, this Court should adopt the Magistrate's Order denying Plaintiff's Motion to Reopen Discovery.

Further legislative authority and case law supporting denial of Plaintiff's 22 Motion to Reopen Discovery are cited in ValueOptions' Response and Objection to Plaintiff's Motion to Reopen Discovery. [Dkt. 137]. 23 2 Though ValueOptions limits its opposition of the referenced information 24 to relevance for the purpose of this Response, ValueOptions reserves its right to 25 assert further justifications against admission of the referenced information in the event that it becomes necessary later in the litigation. However, ValueOptions in 26 no way concedes that Plaintiff should be granted the opportunity to pursue the 27 requested discovery. 28 2

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Case 2:03-cv-01344-EHC-HCE

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II.

MOTION TO APPOINT COUNSEL ValueOptions further requests this Court uphold the Magistrate's denial of Plaintiff's

Motion to Appoint Counsel based on the reasoning contained in the Order dated October 27, 2005. [Dkt. 157]. Plaintiff has simply failed to present sufficient facts demonstrating the "exceptional circumstances" required by applicable case law. III. CONCLUSION Based on the foregoing and the documents on file in this matter, ValueOptions requests this Court deny Plaintiff's Motion Appealing an Objection to Magistrate's Orders Denying Plaintiff's Motion to Reopen Discovery and Motion to Appoint Counsel. DATED this 23 rd ay of November, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 14 15 16 17 18 19 20 21 22 23 24 25 26 /s/ Brad M. Thies 27 28 3 Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per The Honorable Earl H. Carroll United States District Court 401 West Washington Phoenix, Arizona 85003 Copy of the foregoing mailed this 23 rd day of November, 2005, to: Original of the foregoing e-filed with the Clerk this 23 rd ay of November, 2005. Copy of the foregoing delivered this 23 rd day of November, 2005, to:

/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc.

Case 2:03-cv-01344-EHC-HCE

Document 174

Filed 11/23/2005

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