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Lajeunesse v. BNSF Railway Co.

United States District Court, D. New Mexico

June 24, 2019




         This 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.

         I) BACKGROUND

         Mr. 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. 3].

         The 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 dispute.

         In its 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 Health. [Id.].

         Mr. 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.

         In its 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 benefit.

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. 37(a)(3)(B)(iv).

         III) ANALYSIS

         The 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.[2] 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 ...

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