United States District Court, D. New Hampshire
A. DICLERICO, JR. UNITED STATES DISTRICT JUDGE.
Rutledge brings claims against her former employer, Elliot
Health System and Elliot Hospital, for age discrimination and
wrongful termination. The defendants move to compel Rutledge
to provide more complete answers to certain interrogatories
and to execute authorizations to allow them to obtain her
medical and psychotherapy records. In response, Rutledge
objects to producing her psychotherapy and authorizations for
those records, and in her "Reply Memorandum, "
filed separately, objects to providing more complete answers.
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 . . . ."
Fed.R.Civ.P. 26(b)(1). When disputes arise, a party may move
to compel discovery, after first attempting in good faith to
resolve the problem without court action. Fed.R.Civ.P. 37(a).
Initially, the party moving to compel bears the burden of
showing that the discovery it seeks is relevant.
Koninklij ke Philips N.V. v. Wangs Alliance Corp.,
2018 WL 283893, at *1 (D. Mass. Jan. 2, 2018) (citing
Continental Western Ins. Co. v. Opechee Constr.
Corp., 2016 WL 1642626, at *1 (D.N.H. Apr. 25, 2016)).
If that burden is met, "the objecting party bears the
burden of showing that a discovery request is improper."
Continental Western, 2016 WL 1642626, at *1.
Interrogatory Concerning Allegations That Others Were
Forced Out Because of Age or Salary
their motion, the defendants sought a more complete answer to
the following interrogatory propounded on June 1, 2017:
5. Please state in detail and with particularity all facts on
which you base your allegations as set forth in Paragraph 6
of your Complaint that you witnessed a pattern of Defendant
allegedly "forcing out or terminating many of the most
senior nurses whose salary and benefit packages were at or
near the highest levels of salary and benefits available at
the hospital, and they were routinely replaced, if at all, by
younger nurses, " identifying as set forth in the
Instructions and Definitions section above all evidence
(documentary or testimonial) that supports your claims.
responded that "[t]here were many instances in which
senior nurses were treated badly or unfairly, and where
preference was given to the younger nurses." Rutledge
then listed seven instances that she believed supported her
claim. The defendants represent that Rutledge responded to
supplemental interrogatories on December 5, 2017, which
included additional information pertaining to Interrogatory
defendants contend that Rutledge's answers to
Interrogatory 5 are insufficient because she "failed to
provide the date(s) the incidents occurred, the source(s) of
the information set forth in each example, whether she
observed the event, heard about the event from another
employee and/or received documents regarding the event, and
did not identify the basis for her conclusions that the
discipline was imposed by the Elliot for the reasons stated
in her response." Rutledge did not respond in her
objection to that part of the motion to compel.
defendants pointed out in their proposed reply (attached to
their motion for leave to file a reply) that Rutledge had
failed to respond to the motion to compel a more complete
answer to Interrogatory 5. Rutledge then filed a "Reply
Memorandum" in which she explained her lack of
additional information in her responses to Interrogatory 5.
Rutledge's "Reply Memorandum" might be
construed as an anticipatory request to file a surreply,
see Local Rule 7.1(e)(3). In essence, Rutledge
represents that she has provided all the information she
knows about the incidents that she listed to support her
claim in paragraph 6 of her complaint.
court cannot compel a party to provide information that does
not exist. See Moulton v. Bane, 2015 WL 12990224, at
*2 (D.N.H. Nov. 10, 2015). Because Rutledge represents that
she does not have the information that the defendants seek,
however, she will not be allowed to use or present such
information in support of her claims. Rutledge is limited to the
answers she has provided, which may or may not constitute
competent evidence for purposes of summary judgment and
Discovery of Psychotherapy Records
defendants move to compel Rutledge to provide signed
authorizations for them to obtain her psychotherapy records,
which were requested in two interrogatories propounded on
June 1, 2017. In her supplementary response to the
interrogatories, Rutledge asserted that her psychotherapy
records were not subject to discovery, based on Desclos
v. S. N.H. Med. Ctr., 153 N.H. 607, 613 (2006). The
defendants contend that Rutledge has waived the privilege for
her psychotherapy records by making a claim for emotional
distress and that under Desclos she is required to
produce the records.
responses to the motion to compel, Rutledge clarified her
claims for emotional distress. She explains that she does not
claim that her termination caused her to have colon cancer
but instead claims that her suffering due to losing her job
was made worse because she had colon cancer. She also asserts
that a jury can assess the ...