United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
H. RITTER UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on BNSF Railway Company's
(“BNSF”) First Motion to Compel Discovery from
Plaintiff Jeremy Lajeunesse [Doc. 83], filed February 7,
2019. Mr. Lajeunesse filed a Response [Doc. 92');">92] and BNSF
filed a Reply [Doc. 99');">99], completing the briefing on March 5,
2019.[1" name="FN1" id=
"FN1">1] Having considered the parties'
arguments and pertinent authority, the Court
grants BNSF's Motion.
Lajeunesse was working for BNSF as a Motorized Track
Inspector when he alleges he was injured while driving a
Kubota during an inspection on December 20, 2017.
[See Doc. 1, p. 2]. Specifically, Mr. Lajeunesse
asserts that he injured his lower back when “his Kubota
struck a consecutive series of 3 large washed-out holes that
were about 18” deep.” [Id.]. According
to Mr. Lajeunesse, the Kubota was subsequently pulled from
service due to a worn-out suspension. [Id., p. 3].
Mr. Lajeunesse subsequently sued BNSF for negligence under
the Federal Employers' Liability Act. [Id., p.
case proceeded to discovery, and BNSF served its first
Requests for Production under Rule 34 of the Federal Rules of
Civil Procedure to Mr. Lajeunesse on May 21, 2018.
[See Doc. 22]. In Request for Production No. 15,
BNSF asked Mr. Lajeunesse to “[p]roduce all medical and
health records which may include health, dental, psychiatric,
psychological, counseling, hearing, vision records and
reports, hospital records and reports, laboratory tests, and
pharmacy records relating to plaintiff for the time period of
January 1, 2010 to date.” [Doc. 83-1, pp. 2-3]. Mr.
Lajeunesse did not object to the request, but stated that
“[r]eleases have already been provided.”
[Id., p. 3]. Additionally, Mr. Lajeunesse had a duty
to disclose his “healthcare providers” and
releases for their records pursuant to D.N.M.LR-Civ. 26.3(d).
It is these releases that are at the heart of the current
Motion, BNSF states that it “has struggled to obtain
medical releases from Plaintiff throughout the discovery
process, culminating to Plaintiff's counsel's
arbitrary refusal to provide any more than sixty (60)
releases.” [See Doc. 83, p. 3]. Among the
additional releases that Mr. Lajeunesse will not provide are
“releases for medical marijuana dispensaries Plaintiff
has frequented since his alleged injury.”
[Id.]. Additionally, BNSF requests a release for the
New Mexico Department of Health, because one of the medical
marijuana dispensaries Mr. Lajeunesse visited is now closed.
[See id., p. 4, n.3]. Thus, BNSF's Motion
requests that Mr. Lajeunesse complete a total of three
releases: two for dispensaries and one for the Department of
Lajeunesse “opposes Defendant's motion as being
unfounded.” [Doc. 92');">92, p. 1]. Specifically, Mr.
Lajeunesse argues that, despite his failure to object to
Request for Production No. 15, he “believes it is
reasonable to now restrict releases to solely those
authorized under Local Rule 26.3.” [Id.]. Mr.
Lajeunesse explains that, as of the filing of his Response,
over eighty (80) releases have been provided, many of which
have “failed to yield any documents whatsoever.”
[Id., p. 2]. Mr. Lajeunesse accuses BNSF of
“simply selecting names out of a phone book rather than
limiting their requests to releases for providers who
actually treated Mr. Lajeunesse.”
[Id. (emphasis in original)]. Moreover, Mr.
Lajeunesse argues that “it is not at all clear that
dispensaries, like pharmacies, are included in the term
‘healthcare provider'” as defined by Local
Rule 26.3(d). [Id.]. He argues that the same applies
to the New Mexico Department of Health. As such, Mr.
Lajeunesse asks the Court to deny BNSF's Motion.
Reply, BNSF points out that Mr. Lajeunesse failed to object
to Request for Production 15, which included pharmacy
records, regardless of whether they are included in the
definition of “healthcare provider” under the
Court's Local Rules. [See Doc. 99');">99, p. 1]. BNSF
also explains that, because Mr. Lajeunesse could not remember
the name of the medical marijuana dispensary on Menaul
Boulevard he visited, it is entitled to releases for all
dispensaries located on Menaul. [Id., p. 5]. BNSF
further represents, as it did in its Motion, that the New
Mexico Department of Health “holds certain records for
facilities Plaintiff has frequented, ” including a
facility that has closed. [Id., p. 6].
[p]arties 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
Fed. R. Civ. p. 26(b)(1). “Information within this
scope of discovery need not be admissible in evidence to be
discoverable.” Id. Parties may issue requests
for production pursuant to Federal Rule of Civil Procedure 34
“within the scope of Rule 26(b)[.]” Fed.R.Civ.P.
34(a). Each request must be responded to or addressed by
specific objection. Fed.R.Civ.p. 34(b)(2). Responses are due
within 30 days of service absent an agreement to an
extension. Fed.R.Civ.p. 34(b)(2)(A). “An objection must
state whether any responsive materials are being withheld on
the basis of that objection. An objection to part of a
request must specify the part and permit inspection of the
rest.” Fed.R.Civ.p. 34(b)(2)(C). A party may move to
compel a response to a request for production if good faith
attempts to secure the answer are unsuccessful. Fed.R.Civ.P.
Court begins by noting what it is not deciding. The Court is
not deciding whether the definition of “healthcare
provider” under Local Rule 26.3(d) includes pharmacies
or medical marijuana dispensaries. Mr. Lajeunesse failed to
raise any objection to producing his pharmacy records when
confronted with Request for Production No. 15. “As a
general rule a party who fails to assert timely objections to
discovery waives them.” Lawrence v. First Kansas
Bank & Tr. Co., 169 F.R.D. 657');">169 F.R.D. 657, 659 (D. Kan. 199');">996).
In other words, because Mr. Lajeunesse did not object to
producing his pharmacy records, the Court finds that Local
Rule 26.3(d) is inapplicable to this dispute. The Court is
also not deciding whether there should be a limit imposed on
the amount of releases produced. Again, rather than object to
Request for Production No. 15, Mr. Lajeunesse agreed to
produce releases. To the extent that BNSF has a reasonable
basis for requesting a release related to Mr.
Lajeunesse's medical or health records, he simply has no
choice other than to produce one. Finally, the Court is not
deciding whether Mr. Lajeunesse should be compelled to
execute educational releases, as those releases were not
addressed by BNSF until the last full paragraph of its Reply
brief. [See Doc. 99');">99, p. 6]; Lowe v. New ...