United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant Hidalgo Medical
Services' Motion to Compel [Doc. 93], filed on April 25,
2018. Plaintiff responded on May 5, 2018. [Doc. 96].
Defendant replied on May 7, 2018. [Doc. 98]. No hearing is
necessary because the motion can be decided on the briefs.
Having considered the briefing, relevant portions of the
record, relevant authorities, and materials submitted for in
camera review regarding the proposed testing, and being
otherwise fully advised in the premises, the Court finds that
Defendant's motion is well-taken and will be GRANTED.
action, Plaintiff sues her former employer, Hidalgo Medical
Services (“HMS”), and its Chief Executive
Officer, Dan Otero, for sexual harassment and retaliation.
Plaintiff was the Chief Operations Officer of HMS. She
alleges that Defendant Otero sexually harassed her and
ultimately retaliated against her by terminating her
employment when she rejected his advances. Plaintiff alleges
violation of Title VII of the Civil Rights Act of 1964 and
the New Mexico Human Rights Act, among other related claims.
See [Doc. 1].
filed the instant motion to compel the production of
Plaintiff's day planner, which Plaintiff alleges in her
complaint contains contemporaneous notes regarding her
allegations of harassment and discrimination. [Doc. 93] at 1.
Defendant further moves to compel Plaintiff's response to
an interrogatory regarding the chain of custody of the day
planner. Id. Defendant contends that Plaintiff has
placed the authenticity and contemporaneity of the day
planner at issue; therefore, the requested materials are
relevant and within the scope of discovery. Id. at
4-5. Plaintiff objects to the discovery requests. Plaintiff
contends that the request for production fails to
“specify a reasonable time, place, and manner for the
inspection” in violation of Fed.R.Civ.P. 34(b)(1)(B).
[Doc. 96] at 2-3. Plaintiff also contends that the request is
not relevant and otherwise not proportional to the needs of
the case pursuant to Fed.R.Civ.P. 26(b). Id. at 4-5.
Finally, Plaintiff argues Defendant failed to comply with the
meet-and-confer requirements of Fed.R.Civ.P. 37 and
D.N.M.LR-Civ. 7.1. Id. at 6-8.
proper scope of discovery is “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); see also Sanchez v. Matta, 229 F.R.D. 649,
654 (D.N.M. 2004) (“The federal courts have held that
the scope of discovery should be broadly and liberally
construed to achieve full disclosure of all potentially
relevant information.”). Whether requested discovery is
proportional depends on “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.”
to Fed.R.Civ.P. 34(a)(1), a party may request to
“inspect, copy, test, or sample . . . any designated
tangible things.” Rule 34(b) provides that such a
request must: (A) “describe with reasonable
particularly each item or category of items to be
inspected” and (B) “specify a reasonable time,
place, and manner for the inspection and for performing the
related acts.” Fed.R.Civ.P. 34(b)(1)(A)-(B).
planner is relevant and discoverable. In her complaint,
Plaintiff refers to her own “contemporaneous
notes” as showing that she was “offensively
hugged and sexually harassed.” [Doc. 1] at 2. Likewise,
Plaintiff identifies her notes as a potential exhibit in the
parties' Joint Status Report and Provisional Discovery
Plan. [Doc. 28] at 24. Defendant is entitled to discover the
contents of the day planner and to inspect the original to
evaluate its authenticity and contemporaneity.
Plaintiff's speculation about the potential cost of
inspection, see [Doc. 96] at 5, does not tip the
proportionality scales. For one, as Defendant points out, the
costs that Plaintiff identifies are not the costs of
production that Plaintiff would be forced to endure. The
actual burden of production is minimal. Rather, the costs
Plaintiff identifies are costs that Defendant may
incur in conducting the ink testing and costs that Plaintiff
expects it will be forced to incur to rebut Defendant's
expert. Those costs do not bear on the proportionality
analysis here. Moreover, as Defendant rightly points out, the
potential costs that Plaintiff identifies are not altogether
out of line with the total amount in controversy, which
Plaintiff places in excess of a million dollars in economic
damages alone. See [Doc. 1] at 3.
Plaintiff's concerns about the reliability of ink testing
reason to deny discovery and inspection. See [Doc.
96] at 4-5. To be sure, Plaintiff is free to challenge the
admissibility of such evidence and may otherwise argue the
weight of the evidence at trial. However, her argument on
this point is no reason to deny the discovery of relevant
information at this time. See Fed. R. Civ. P. 26
(b)(1) (“Information . . . need not be admissible in
evidence to be discoverable.”). Plaintiff's
objections are without merit.
Court will therefore order Plaintiff to produce the day
planner for inspection by Defendant's expert.
Additionally, to the extent it has not already been produced,
the Court will order Plaintiff to produce a Bates-stamped
copy of the day planner. The Court will also order Plaintiff
to submit a supplemental response to Defendant's
Interrogatory 1, regarding the chain of custody of the day
planner. The Court sets out the following requirements for
the inspection of the day planner (the
1. Plaintiff's counsel must deliver the original document
in a sealed envelope to defense counsel no later than
May 31, 2018, at 5:00 p.m.
2. Once the document is delivered to defense counsel,
Defendant is responsible for its safety until it is
returned to Plaintiff's counsel. If it is lost or
destroyed before it is returned to Plaintiff's counsel,
Plaintiff may file a motion for sanctions based on
3. Defense counsel may not open the envelope. Counsel
must forward the envelope to its expert, as received, for
analysis and testing. It must be delivered either by hand or
through a commercial delivery service, e.g., FedEx. It may
not be placed in the mail.
4. Defendant's expert must return the document in a
sealed envelope to defense counsel as soon as possible, but
in any event, no later than June 20, 2018.
5. Defense counsel may not open the envelope on its
return. Counsel must deliver it to Plaintiff's counsel,
either by hand or through a commercial delivery service, no
later than June 25, 2018, at 5:00
6. If Defendant discloses an expert regarding the
document's authenticity or contemporaneity with the
events described therein, Plaintiff shall be permitted to
disclose a rebuttal expert. Plaintiff must disclose her
rebuttal expert and produce the expert's report no
later than 30 days from service of
Defendant's expert report.
IS THEREFORE ORDERED, ADJUDGED, AND DECREED that
Defendant Hidalgo Medical Services' Motion to Compel
[Doc. 93] is GRANTED. The day planner must
be produced for inspection in accordance with the
instructions set out above. To the extent Plaintiff has not
already provided Defendant with a Bates-stamped copy of the
day planner, Plaintiff must do so no later than May