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Tanner v. McMurray

United States District Court, D. New Mexico

September 5, 2018



         THIS MATTER comes before the Court on Plaintiff's Motion to Compel Defendant Bernalillo County's (“BCC”) Response to Request for Production No. 5, filed April 9, 2018 (Doc. 38), and Plaintiff's Motion to Compel Defendant Correct Care Solution, LLC's (“CCS”) Response to Plaintiff's Request for Production No. 12, filed June 4, 2018 (Doc. 52). Having reviewed the parties' submissions and all pertinent authority, the Court denies Plaintiff's Motions to Compel based upon the Stipulated Confidentiality Orders entered by the Honorable James A. Parker in McClendon, et al. v City of Albuquerque, et al. (“McClendon”), CIV 95-0024 JAP/KBM, Doc. 1276 (April 4, 2017) and Doc. 1285 (April 28, 2017).

         I. Background

         On October 4, 2016, Plaintiff Shawna Tanner, while in the last month of gestation of her pregnancy, was placed in the custody of the Bernalillo County Metropolitan Detention Center (“MDC”) based upon an alleged probation violation. In this action, she alleges that she was denied appropriate medical care at MDC leading to the stillbirth of her baby on October 17, 2016.

         In the long existing McClendon class action lawsuit, Judge Parker gave preliminary approval on March 22, 2016 to a settlement agreement entered by the parties in that litigation. Final approval followed shortly thereafter on June 27, 2016. The McClendon settlement agreement requires BCC to demonstrate compliance with certain standards including those in the area of the provision of medical services. Accordingly, court-appointed medical expert, Dr. Robert Greifinger, visited MDC in April and November 2016 and produced reports regarding medical care provided at MDC.

         In the present case, Plaintiff sent a request for production to both BCC and CCS, requesting copies of the documents that MDC provided to Dr. Greifinger during certain of his site visits for the McClendon case. Specifically, Plaintiff requested the BCC and CCS

[p]roduce the records that officials or agents of the Metropolitan Detention Center provided to the court-appointed medical expert, Dr. Robert Greifinger, during his April 2016 and November 2016 site visits, including but not limited to Continuous Quality Improvement (CQI) and Quality Assurance (QA) reports, Mortality Reports, matrices or reports regarding medical care prepared or signed by the County's contract compliance officer, and documents prepared or signed by Dr. Ron Shansky and Dr. Kenneth Ray.

Doc. 38-9 at 2 (Request for Production No. 5 to BCC); see also Doc. 52-1 at 4 (Request for Production No. 12 to CCS). In response, BCC produced only Dr. Greifinger's reports (Doc. 38-8 at 2) and asserted that it had “no additional materials to produce in response to RFP No. 5” (Doc. 38-9 at 1). CCS provided this response:

CCS, through counsel, objects to this Request and respectfully directs Plaintiff to General Objections Nos. 2, 4 through 6 above. [Objections based on proportionality, relevance, attorney-client privilege and/or work-product doctrine, and that the request is overly-broad.] CCS, through counsel, further objects to this Request because it seeks information that is not relevant to Plaintiff's claims or CCS's defenses. CCS, through counsel, further objects to this Request because the phrase “your agents or principles” is unclear and calls for a legal conclusion. Without waiving these or any other objection, CCS states that potential documents responsive to this Request may be contained in the reports on MDC that Plaintiff obtained from MDC by IPRA request. Documents submitted to Dr. Greifinger are subject to a confidentiality order in the McClendon case.

Doc. 52-1 at 4-5.

         Plaintiff now moves to compel the requested documents from both BCC and CCS. “When ruling upon a motion to compel, the court generally considers those objections which have been timely asserted and relied upon in response to the motion. It generally deems objections initially raised but not relied upon in response to the motion as abandoned.” Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 655, 622 (D. Kan. 1999). The Court finds that CCS has waived some of its objections because it did not address them in response to the Motion to Compel. Additionally, when ruling on a motion to compel, the court generally “deems objections not initially raised as waived.” Id. BCC did not raise any objections in its discovery response because it maintains that the requested documents are not in its possession and “given that [BCC] was unable to review the documents in question, [BCC] was hardly in a position to assert any objections or privileges.” Doc. 39 at 4. The Court will therefore address only those objections Defendants initially raised in discovery responses and relied upon in their responses to the Motions to Compel.

         II. Analysis

         Under Federal Rule of Civil Procedure 26(b)(1), the scope of discovery is as follows:

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, considering 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. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). The scope of discovery is broad, Gomez v. Martin MariettaCorp., 50 F.3d 1511, 1520 (10th Cir. 1995), but a court is not “required to permit plaintiff to engage in a fishing expedition in the hope of supporting his claim, ” Brown v. Montoya, No. CIV 10-0081 JB/ACT, 2013 WL 1010390, at *16 ...

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