Miller v. Bartram et al, No. 3:2009cv05094 - Document 63 (W.D. Wash. 2010)
Court Description: ORDER denying plaintiff's third 53 Motion to Compel and denying plaintiff's 57 Motion for Sanctions. Signed by Magistrate Judge Karen L Strombom.(MET) cc: Plaintiff
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Miller v. Bartram et al Doc. 63 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 SKY-STEVEN THOMAS MILLER, No. C09-5094 FDB/KLS 11 12 13 Plaintiff, PERRY B. BARTRAM, JR., et al., 14 15 16 ORDER DENYING THIRD MOTION TO COMPEL DISCOVERY AND MOTION FOR SANCTIONS v. Defendants. Before the court are Plaintiff’s Third Motion to Compel Discovery (Dkt. 53) and Motion for Sanctions (Dkt. 57). Having reviewed the motions, Defendants’ response (Dkt. 60), and 17 18 balance of the record, the Court finds that the motions should be denied. DISCUSSION 19 20 “On notice to other parties and all affected persons, a party may move for an order 21 compelling . . . discovery,” including an order to compel production, or if “a party fails to 22 respond . . . as requested under” Fed. R. Civ. P. 34. Fed. R. Civ. P. 37(a)(1), (a)(3)(B)(iii). “The 23 motion must include a certification that the movant has in good faith conferred or attempted to 24 confer with the person or party failing to make disclosure or discovery in an effort to obtain it 25 26 without court action.” Fed. R. Civ. P. 37(a)(1). “If the motion is granted -- or if the . . . requested discovery is provided after the motion was filed -- the court must, after giving ORDER - 1 Dockets.Justia.com 1 opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or 2 attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in 3 making the motion, including attorney’s fees,” except if: 4 5 6 7 8 9 (i) the movant filed the motion before attempting in good faith to obtain the . . . discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A). In addition, the Court may “apportion the reasonable expenses” 10 incurred, in the event the motion “is granted in part and denied in part.” Fed. R. Civ. P. 11 37(a)(5)(C). 12 This is Plaintiff’s third motion to compel discovery relating to Defendants’ August 3, 13 2009 responses to two requests for production of documents. The court dealt with the majority 14 15 of Plaintiff’s motion in its Order dated October 9, 2009 (Dkt. 33) and denied Plaintiff’s second 16 motion (Dkt. 48) because Plaintiff failed to include a certification in accordance with 17 Fed.R.Civ.P. 37(a)(2)(B). Dkt. 48, p. 2. In addition, the Court directed the parties to confer 18 telephonically. Id. In his “Certificate of Compliance with CR 26(i) and Local Rule 37(e), 19 20 Plaintiff identifies “18 documents [he] is asking the court to make ruling on.” Dkt. 56, p. 4. The court addresses each of these in turn: 21 22 23 1. Defendant Bartram’s License to Practice Medicine During the parties’ teleconference on February 17, 2010, Plaintiff advised counsel that 24 Defendants had not responded to his request for licensing information on P.A. Bartram. After the 25 teleconference, counsel rechecked the file and confirmed that this appeared to be the case, and he 26 obtained the licensing information from the Department of Health web page which indicated that ORDER - 2 1 P.A. Bartram had a valid active license and sent a copy of this to plaintiff and the court two days 2 later. Dkt. 61, pp. 2-3; Dkt. 51, Exh. A. 3 4 As Plaintiff is now in possession of information reflecting that Dr. Bartram was licensed, Plaintiff’s motion to compel this information is DENIED. 5 6 7 2. Copy of Certificate from Washington State’s Medical Quality Assurance Commission and Copy of Contract with DOC to Practice Medicine at McNeil Island Correctional Center 8 The time for filing a discovery motion on these requests has passed. See Dkt. 33 9 (discovery deadline extended until December 10, 2009) and Dkt. 48 (discovery deadline 10 extended until March 5, 2010 for limited purpose of resolving questions surround the production 11 of documents identified in Dkt. 33). In addition, Plaintiff offers no explanation and the court 12 sees no relevance of these requests to his claim that he was denied special orthotic shoes and that 13 he suffered a fall as a result of his old footware. Accordingly, Plaintiff’s motion to compel 14 15 responses to these requests are DENIED. 16 3. 17 In Request No. 11, Plaintiff asked for a “[c]opy of all medical kites” he filed between the 18 19 20 Copy of Original 11 Medical Kites period of January 2008 and June 2009. Dkt. 33, p. 6. The court ordered that to the extent the kites he seeks are not contained in his medical file . . . and to the extent that they actually exist and are in DOC’s possession, Defendants shall provide the requested documents. Id. Plaintiff 21 22 23 again moves the court to compel production of the kites, however he attaches them to his affidavit stating that “the 11 medical kites Plaintiff is serving on the court are the 11 medical 24 kites the defendant destroyed and that all 11 medical kites are true and correct carbons from a 3- 25 part medical kite form.” Dkt. 54, p. 2. Defendants respond that they do not have the kites in 26 ORDER - 3 1 their possession (except that they have now received them as attachments to Plaintiff’s motion). 2 Dkt. 60, p. 2. 3 4 Plaintiff insists that he needs copies of the originals so that they can be entered into evidence. Dkt. 53, p. 6. Plaintiff states that the kites in his possession are one part of a three part 5 carbon form. Defendants represent to the court that they are not in possession of any originals. 6 7 Thus, Plaintiff’s motion to compel the originals of the kites is DENIED. Moreover, Plaintiff has 8 duplicates of the originals, which are admissible to the same extent as an original unless (1) a 9 genuine issue is raised as to the authenticity of the original or (2) in the circumstances it would 10 be unfair to admit the duplicate in lieu of the original. Fed. R. Evid. 1003.1 11 4. 12 Copy of the Original Primary Encounter Report dated 7/25/08 Plaintiff states that he is entitled to production of a “copy of the original primary 13 encounter report dated 7/25/08 not the altered one provided in discovery.” Dkt. 56, p. 3. 14 15 Defendants argue that after Plaintiff first raised this issue, counsel sent the attorney general 16 investigator to travel to McNeil Island to personally examine Plaintiff’s original medical file to 17 confirm that the original of this encounter report in Plaintiff’s file is the unaltered version, not 18 the altered one that plaintiff claims is somehow the original.2 19 further in his declaration as follows; 20 As soon as I received a copy of the different encounter report record, I sent my investigator to McNeil Island to determine, if he could, what it was and where it came from. It was reported to me that this version was not in his medical file and I verified it was not in the copy of the medical file that I had previously received and the copy of which this office agreed to send to plaintiff. My investigator was unable to determine the source of the version plaintiff provided. My investigator called the telephone number written on plaintiff’s supplied version and learned 21 22 23 24 25 26 Counsel for Defendants states 1 To be admissible, the kites must also be relevant to Plaintiff’s claims in this action. 2 Plaintiff claims to have received the altered document in discovery and cites to his Exhibit F. Defendants assert that the document Plaintiff received in discovery is Attachment D to Plaintiff’s Declaration which has the defendants’ discovery number at the bottom: MED000020. Dkt. 53, p. 39. ORDER - 4 1 2 3 4 5 that it was a scheduling service for Dr. Brewer. I could speculate that someone made a copy of plaintiff’s encounter report to use to contact Dr. Brewer and this copy somehow came into plaintiff’s possession, but I have no evidence to support this speculation. Dkt. 61, p. 2. Based on the representations of Defendants and counsel that Plaintiff has been provided a 6 copy of the unaltered report and that Defendants’ investigator was unable to confirm the source 7 of the “altered” version, the court finds that Plaintiff’s motion to compel an “unaltered” version 8 of the encounter report is DENIED. 9 5. Request for Production Served on December 28, 2009 10 11 On December 9, 2009, counsel for Defendants took a telephonic deposition of Plaintiff. 12 Dkt. 61, p. 2. Following that deposition, the parties participated in a Rule 26(i) conference 13 during which counsel for Defendants indicated to Plaintiff that he had not received Plaintiff’s 14 responses to Defendants’ requests. Id. Plaintiff indicated that he had mailed his responses to 15 counsel’s office. Id. After further search, counsel located the documents sent by plaintiff and 16 counsel’s office informed Plaintiff that the answer had been found. Id. On December 28, 2009, 17 Plaintiff sent a discovery request directed to counsel asking (1) where the missing discovery sent 18 19 by plaintiff was found by counsel, (2) when counsel found the missing discovery, and (3) for a 20 photocopy of the envelope the missing discovery was sent in showing the postmark. Dkt. 56, p. 21 4; Dkt. 60, p. 3; Dkt. 53, Attach H. 22 23 24 Plaintiff’s December 28, 2009 request was sent after the close of discovery. See Dkt. 33 (discovery deadline extended until December 10, 2009) and Dkt. 48 (discovery deadline extended until March 5, 2010 for limited purpose of resolving questions surround the production 25 26 of documents identified in Dkt. 33). In addition, a request seeking where and when counsel found the discovery sent by Plaintiff to defense counsel is not relevant nor likely to lead to the ORDER - 5 1 admissibility of relevant evidence relating to the issues raised in Plaintiff’s complaint. 2 Accordingly, Plaintiff’s motion to compel responses to his request for production sent on 3 December 28, 2009 is DENIED. 4 Based on a review of the parties’ filings in this case, the court finds that Plaintiff’s 5 request for sanctions against Defendants for failure to respond to discovery and for the 6 7 8 destruction of evidence is without merit. The court finds no evidence of bad faith or spoliation of evidence. 9 The court will not entertain further motions raising the same issues resolved herein and 10 will proceed with consideration of Defendants’ motion for summary judgment (Dkt. 44). Any 11 further motions raising the same discovery issues may result in sanctions, including dismissal of 12 this action. 13 Accordingly, it is ORDERED: 14 (1) Plaintiff’s third motion to compel (Dkt. 53) is DENIED. 16 (2) Plaintiff’s motion for sanctions (Dkt. 57) is DENIED. 17 (3) The Clerk of the Court shall send copies of this Order to the Plaintiff and counsel 15 18 19 for Defendants. DATED this 12th day of March, 2010. 20 21 A 22 Karen L. Strombom United States Magistrate Judge 23 24 25 26 ORDER - 6
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