United States District Court, D. New Hampshire
STEVEN J. McAULIFFE, District Judge.
Plaintiff, Christyna Faulkner, brings this action against her former employer and others, advancing claims under the Americans with Disabilities Act and the Family Medical Leave Act. She also brings state law claims of wrongful discharge, intentional infliction of emotional distress, and defamation/slander. Although she was initially represented by counsel, plaintiff is now proceeding pro se.
Pending before the court is defendants' motion to compel discovery, to which plaintiff objects - at least in part. For the reasons discussed, that motion is granted in part, and denied in part.
Standard of Review
As the parties seeking to compel discovery, defendants bear the burden of demonstrating that the materials sought are relevant, see Caouette v. OfficeMax, Inc., 352 F.Supp.2d 134, 136 (D.N.H. 2005), and that plaintiff's earlier discovery responses were either incomplete or evasive, see Vaughn v. Bernice A. Roy Elem. Sch., No. 05-cv-223-JD, 2007 WL 1792506, *1 (D.N.H. June 19, 2007). See generally Fed.R.Civ.P. 26(b)(1). To the extent plaintiff asserts that any requested information or materials are privileged, she bears the burden of establishing that the privilege is applicable and has not been waived. See Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 24 (1st Cir. 2011).
This case was filed in 2012, and discovery has stalled. In part, a substantial delay ensued when plaintiff's counsel withdrew and plaintiff sought, but was unable to secure, alternate representation. And, no doubt, plaintiff's unfamiliarity with the federal rules governing discovery (including her obligations under those rules) has contributed to the ongoing delay.
According to defendants, in December of 2013, they propounded interrogatories and requests for the production of documents, seeking releases from plaintiff relating to financial records, medical information, educational program applications, and her efforts to find subsequent employment. In April, plaintiff returned her interrogatory responses, but did not provide any specific responses to defendants' request for the production of documents. Among other things, defendants pointed out that plaintiff had not provided an executed authorization that would allow them to obtain medical records from Dr. Michael Sateia, who treated plaintiff at times relevant to this case. Plaintiff also failed to provide an authorization for records from the Electronic Residency Application Service (related to her efforts to secure alternate employment), or an authorization from one of her listed medical care providers, Dr. Dwaihy.
Before plaintiff's counsel could address those shortcomings in plaintiff's responses, he withdrew from the case. And, according to defendants, despite their repeated efforts over many months to coax plaintiff into complying with her ongoing discovery obligations, they have been unable to secure the materials they say they need in order to properly defend this case. In response to defendants' most recent request that plaintiff supplement her earlier (incomplete) discovery responses, plaintiff stated that she had "nothing else to add as far as my discovery responses" are concerned. E-mail from Plaintiff to defense counsel dated November 13, 2014 (document no. 48-6). Given that response, defendants felt constrained to file the pending motion to compel.
Defendants seek to compel plaintiff to produce three categories of materials and information: (1) signed authorizations for the production of information from the Electronic Residency Application Service ("ERAS"), Westchester Medical Center, Dr. Dwaihy, and Dr. Sateia; (2) full and complete responses to Interrogatories 2, 6, and 14 through 18; and (3) complete responses to each of their requests for production.
I. Authorizations and Releases.
Of the four authorizations defendants seek, plaintiff has now agreed to provide two: one for Dr. Sateia and one for Westchester Medical Center. As for Dr. Dwaihy, plaintiff says she has no knowledge of who he is, and says she never received treatment from him. But, according to defendants, plaintiff's medical records from another treating physician identify Dr. Dwaihy as the "referring physician." And, in a section describing the "reason for evaluation, " those records state that plaintiff had been "referred by Dr. Dwaihy for evaluation and advice" regarding a medical condition at issue in this case. Out of concern for plaintiff's privacy, defendants have not submitted those medical records, but have offered to do so under seal.
On this record, defendants have shown that the medical files of Dr. Dwaihy are relevant or, at a minimum, likely to lead to the discovery of relevant information. Accordingly, plaintiff shall produce the requested ...