CHARLES S. MILLER, JR., Magistrate Judge.
Before the court is defendants' Motion to Compel Discovery (Doc. No. 34). For the reasons set forth below, the motion is granted in part and denied in part.
On March 6, 2016, multiple Bismarck Police Department officers were dispatched to an apartment building in Bismarck, North Dakota to investigate reports of an intoxicated man roaming the neighborhood with a shotgun and threatening to kill one of the apartment's residents. Upon arriving, they encountered James Anthony Scott ("Scott"). Scott fled when confronted by law enforcement, leaving his shotgun behind. One of the officers in pursuit—defendant Antonovich—yelled repeated warnings about a gun, although he never saw Scott with a gun as Scott was fleeing. Exactly what Officer Antonovich said and how many times he repeated it are disputed. After one or more of the warnings about a gun, another officer—defendant Burkhartsmeier—fired his rifle at Scott three times. Two rounds struck Scott in the back, mortally wounding him. Scott was unarmed at the time.
On March 31, 2017, plaintiff, Scott's widow, initiated the above action on behalf of herself as well as Scott's estate and his survivors. Plaintiff asserts in the complaint claims for violations of civil rights under the federal and state constitutions and state law claims for wrongful death, negligence, and gross negligence. Presently before the court is a motion to compel brought by all of the named defendants with the exception of defendant Antonovich, who was added as a party defendant subsequent to the filing of the instant motion.
Defendants' Interrogatory Nos. 1, 2, 3, 17, and 18 seek background information with respect to Scott's past residences, employment, education, and lawsuits initiated by or brought against Scott. Plaintiff responded to defendants' interrogatories by providing what information she personally has. This is limited to her first hand knowledge dating back to about 2009 when she first met Scott before she married him in November 2011, and information Scott may have shared with her about his past, e.g., where he was from, the fact he graduated from high school, some of the past places he lived, and who some of his relatives were.
Defendants contend that plaintiff's responses are inadequate, arguing that she, as the personal representative of Scott's estate, is under an obligation to provide full and complete information to the interrogatories, which variously request information dating back fifteen years, twenty years, or for an unlimited amount of time. Plaintiff responds, contending the information she has provided is adequate and any further information would be of little assistance and disproportionate to the needs of the case.
The court has carefully reviewed both plaintiff's interrogatory answers and the deposition testimony she has given. The information defendants seek beyond what has been provided with respect to these interrogatories and during plaintiff's deposition testimony would be of marginal, if any, assistance, particularly given the information defendants already have with respect to Scott. The only exceptions might be past locations where Scott has lived (at least in terms of the city if not the exact address) and his past employment. This information might assist defendants in locating additional medical records.
It appears from the interrogatory answers that plaintiff relied primarily upon her own information in answering, although there is some suggestion she may have queried Scott's elderly stepfather in response to defendants' complaints of inadequacy. There is no suggestion, however, that she made any inquiry of Scott's two adult children.
The court concludes with respect to Interrogatory Nos. 1 and 2 that plaintiff must make a good faith effort to obtain whatever information the two adult children have with respect to Scott's prior residences and past employment dating back fifteen years from the date of Scott's death, but only if damages are going to be requested in this action on behalf of the two adult children or if they are "takers" of any amount that may be recovered by Scott's estate. If neither are the case, then no effort need be made to elicit the information from them, and, if defendants think it is worth the additional costs (which the court doubts), they may depose these individuals to obtain it.
Beyond this, while defendants have the right to discover at least some of the information requested by the interrogatories, there is no right to receive the same information in multiple ways. In exercise of the court's authority under Fed. R. Civ. P. 26(b)(2)&(c)(1) to control the manner and sequence of discovery, including prescribing a discovery method other than what a party may select, the remainder of defendants' motion to compel with respect to Interrogatory Nos. 1, 2, 3, 17, and 18 is denied for the reasons set forth above.
Defendants seek in these discovery requests information and documents about Scott's past treatment by medical care providers, psychologists, psychiatrists, pharmacists, drug and alcohol treatment providers, and marital counselors. For some of the information and documents requested, defendants seek information for Scott's entire life. For others, the time period is more limited. Also, in Request for Production No.1, defendants request that plaintiff sign releases for information from all of the foregoing treatment and service providers so that defendants can obtain the records directly from them.
Defendants contend that plaintiff's responses to these discovery requests are deficient. With respect to the interrogatory answers, defendants state that plaintiff has provided only limited information as to where and from whom Scott obtained medical treatment during his life. With respect to the document requests, defendants contend plaintiff is required to execute the releases but has refused to do so. Further, defendants state that, even for the medical records that plaintiff agreed to provide in lieu of releases, not all have been provided, including none of the alcohol treatment or mental health records.
In response, plaintiff states with respect to the interrogatories that she has provided all the information she has and that the questions seeking information for Scott's entire life are unduly burdensome and unlikely to produce relevant information. As for the medical and other treatment records, plaintiff states she has obtained and produced some of the known records and is in the process of obtaining the remaining known records, including Scott's recent alcohol treatment records. She states she will produce the remaining records when received. Finally, plaintiff refuses to execute the tendered releases for treatment records, claiming there is nothing in the federal discovery rules that requires she must do so.
The court agrees that a number of the interrogatories served upon plaintiff in defendants' First Set of Interrogatories are overbroad and unduly burdensome. For example, of those at issue now, Interrogatory No. 11 asks plaintiff to list the dates of each medical prescription and refill for the ten years preceding Scott's death. Really?
While the court is tempted to simply deny the clearly overbroad requests rather than attempt to edit them, plaintiff shall respond with the information she has and shall also make inquiry of Scott's adult children for any other information that they might possess (if any), but limited as follows:
The court will address first the issue of whether it can compel a party to execute releases for records held by a non-parties (e.g., releases for medical, employment, education, social security, and cell phone records) when a request for execution of releases has been made as part of a request for documents pursuant to Fed. R. Civ. P. 34 and the party refuses to execute the releases. Unfortunately, the courts are seriously divided over this issue.
A number of courts have concluded that Rule 34 does not provide for execution of releases that would enable the requesting party to obtain directly from a non-party documents that are subject to the control of the party to whom the Rule 34 request is made. According to these courts, any authority to compel execution of releases arises only if the records in the possession of the non-party cannot be obtained by other means and then only as a possible sanction.
Other courts, however, have taken the position that requests for execution of releases can be made pursuant to Rule 34 such as would enable the requesting party to obtain directly from non-parties records that are subject to the control of the party to whom the Rule 34 request has been made.
One court required the execution of releases as a matter of expediency in a case where there were some ninety non-party medical providers.
The parties in this case have not cited to any federal court of appeals decision that has squarely decided the issue. The closest case cited by other courts is
Within the Eighth Circuit, a number of the district courts have ordered the execution of releases, albeit with little or no discussion about the court's authority to do so.
Looking to the text of Rule 34, a request for execution of releases for documents held by non-parties can be viewed as being a "request" to the party having control to "produce and permit the requesting parties to inspect" as provided for in subdivision (a)(1). Broadly speaking, a party having control, but not physical possesion, can "produce" and "permit inspection" of the documents by allowing the non-party to produce them. With respect to subdivisions (b)(1)(A)-(B), the request for execution of the proposed releases is the requesting party's specified "manner of inspection" and the requirement that the request "describe with reasonable particularity each item or category" is satisfied with a sufficient description of the documents to be obtained in the proposed releases appended to the Rule 34 request. Further, with the appending of the releases to the Rule 34 request, the responding party has the opportunity under subdivision (b)(2) to object to the scope and terms of the proposed releases in a manner that allows for court review. Finally, there is also the opportunity to object to the use of releases and argue that a different method of production is more appropriate.
Granted, there is language in Rule 34 that does not fit neatly with the use of releases. For example, subdivision (b)(1)(B) requires the requesting party to specify the time and place of the inspection. Also, there is the language in (b)(2)(B) giving the responding party the opportunity to produce the documents rather than allow inspection. However, reading Rule 34 expansively, these provisions could be viewed as applying only to the most common situation that Rule 34 was intended to address, that being when the documents are in the possession of the party to whom the request is made, and not the less frequent situation where the documents are not in the possession of the party but arguably subject to its control.
In short, an expansive reading of Rule 34 arguably does not foreclose the use of releases as an alternative means of obtaining production of documents that are not in the possesion of the party to whom the request is directed but are under its control—at least when the proposed releases are made a part of the Rule 34 request.
Moving beyond the text of Rule 34, the expediency in many cases of employing signed releases to gather information from non-parties cannot be denied given their widespread use as evidenced by the cases cited above as well as this court's understanding of their frequent use in this District.
While expediency alone cannot be grounds for construing Rule 34 to permit requests for signed releases, it does provide support for an expansive reading of Rule 34 to allow for such use consistent with Fed. R. Civ. P. 1. In relevant part, Rule 1 commands that the federal civil rules are to "be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."
Plaintiff argues that Rule 34 contemplates that the party from whom records are sought has the right to vet its own documents—including those that it controls but are in the hands of a non-party. If the court requires use of releases, plaintiff argues she loses this right, including the ability to withhold from anyone's view documents that are privileged or otherwise highly personal or sensitive and not admissible for any purpose.
Whatever right a party may have to not turnover documents without the opportunity for some court review, it is doubtful that Rule 34 is its source. Moreover, a party to whom a Rule 34 request for releases is directed does have the opportunity to object and request relief from the court. In fact, that is what is happening now. And, in those instances where circumstances broker for using a different method of production, it is well within the court's authority under Fed. R. Civ. P. 26(b)(2),(c)(1),&(d)(3) to order it. For example, the court can order that the party to whom the Rule 34 request for releases is directed be given the opportunity to obtain and produce the documents instead of requiring the releases to be signed.
Upon consideration of the foregoing, plaintiff's objection that the court lacks the authority to compel execution of releases requested pursuant to Rule 34 is overruled. While it is a close question, the undersigned concludes that an expansive reading of Rule 34 allows for (but does mandate) the use of proposed releases as a means of obtaining production of documents if the proposed releases are made a part of the Rule 34 request.
After balancing the interests of the parties, including the fact Scott is deceased (thereby lessening the privacy concerns) and plaintiff's limited knowledge of where Scott has received treatment or been provided other services, the court will require that plaintiff, in her capacity as the personal representative of Scott's estate, execute and provide to defendants releases for Scott's medical, pharmacy, mental health, and alcohol treatment records, but not for any records generated from the marital counseling that both Scott and plaintiff participated in as identified in response to Interrogatory No. 12.
With respect to the marital counseling records, the court will give plaintiff the opportunity to obtain and produce any responsive records in lieu of having to provide signed releases. For any documents that plaintiff withholds or redacts, plaintiff shall (1) submit that material to the court for in camera inspection and (2) file a brief setting forth the grounds for any withheld or redacted information.
The court will not set any particular date limitation on the records to be produced bearing upon Scott's general physical health. The circumstances of the case are likely to limit the production as a practical matter. Further, the burden and cost of securing the records has now been shifted to the defendants. However, for Scott's mental health and alcohol treatment records, the limit shall be seven years prior to Scott's death. And, for the marital counseling records, the limit shall be five year prior to Scott's death.
Defendants shall promptly forward copies of any records obtained pursuant to the releases to the attorneys for plaintiff—in this case free of cost. Further, defendants shall not use the documents as received for any purpose unless they have been first provided to plaintiff at least 48 hours in advance. The court concludes it unfortunately needs to include this additional proviso because of disputes between the parties relating to documents that were secured pursuant to signed releases.
Documents obtained pursuant to the releases that address Scott's mental health or alcohol treatment shall not be disclosed by counsel for either party to any other person; that is, the documents shall be for "attorney's eyes only." The same shall be true for any marital counseling documents that plaintiff produces or the court orders be produced after an in camera inspection. An exception is that counsel for each party can designate one staff person who can have access for administrative handling but subject to the same requirements of non-disclosure imposed on counsel. All other documents obtained pursuant to the releases shall be treated as "confidential" pursuant to the court's protective order at Doc. No. 22. And, if any of the foregoing documents ("attorney's eyes only" or "confidential") need to be used or filed in connection with any motion or proceeding before this court, the parties shall file the documents under seal.
Finally, while it appears that proposed releases were appended to defendants' Rule 34 requests, they were not made a part of the record here. If plaintiff has objections to the terms of the releases other than what the court has ruled on, plaintiff shall immediately request a conference with the court so that a ruling can be made but only after plaintiff has first made a good faith effort to resolve any differences with the defendants.
Defendants' Requests for Production 3, 4, 5, and 6 seek signed releases of records for: claims by Scott for worker's compensation (No. 3) and disability insurance (No. 4); claims by both Scott and plaintiff for Social Security benefits and Social Security Disability (No. 5); and Social Security earnings statements for both Scott and plaintiff (No. 6).
The court overrules plaintiff's objection that the court lacks the authority to compel execution of releases for the reasons already articulated. With respect to Scott, the court requires that plaintiff, in her capacity as personal representative of Scott's estate, execute signed releases for the above record as they pertain to him subject to the same caveat of the court not having seen the proposed releases and that plaintiff may have additional objections to the terms of the releases.
With respect to the plaintiff, she has already executed a release for her Social Security survivor benefits according to her brief. As for plaintiff's Social Security earnings statement or any claim for disability on her part, the court denies the request for releases for these records. Defendants have failed to demonstrate how any of that information is either relevant to this action or realistically might lead to relevant information beyond what defendants are already entitled to obtain.
Request for Production No. 32 requests copies of all documents generated as a result of plaintiff having seen any counselor, psychologist, therapist, or mental health professional within five years preceding Scott's death and at anytime since. Defendants' brief claims that it also requested that plaintiff sign releases for these records as part of their request for production of documents, but the only requests referenced in the briefing on the current motion are Request No. 1, which relates only to Scott, and Request No. 32, which is not a request for signed releases. But, even if a request for signed releases was properly made, the court would not order signed releases with respect to these highly personal and confidential records.
Putting aside the manner of production, plaintiff objects to having to provide any of the records on the grounds that they are irrelevant because she will not be seeking damages for emotional loss greater than what would be suffered by another other person in her circumstances having suffered the loss of a spouse. She contends this renders the requested documents irrelevant and not subject to production for this reason, citing this court's decision in
Auer, however, was a different case. In that case, the plaintiff stated she was restricting her claim for non-economic loss suffered as a result of an alleged wrongful discharge from employment to the hurt feelings, humiliation, anger, and embarrassment that would be suffered by any person that was similarly involuntarily terminated. The court held in
As this court noted in
In addition, this case is also different from
In short, the court for now overrules plaintiff's blanket objection that none of the information that is the subject of Request No. 32 need be produced based on
Interrogatory No. 9 number reads as follows:
Plaintiff objects to this interrogatory: (1) as being overbroad and unduly burdensome in that it could be interpreted as requiring disclosure of virtually all impeachment material and it being difficult to know in advance of the highly dynamic situation at trial when and how certain information might be used; (2) unfairly calling for the disclosure of counsel's trial strategies and work product; (3) requiring recitation of a large volume of information already in the hands of defendants; and (4) being premature, in any event, until discovery is completed or near completion.
The court agrees that the interrogatory as drafted is overbroad, burdensome, and, at least in part, inappropriately requires disclosure of attorney work product. Although, perhaps, not what defendants intended, the interrogatory as written could be construed as requiring plaintiffs to identify and provide the substance of any "statements" regarding the "cause" or "circumstances of the subject incident"—even those set forth in the City's own official reports of the shooting.
Further, even apart from that, there could be substantial uncertainty with respect to what might be considered a declaration against interest in any particular situation. What about a statement made by one of the officers at the scene of the shooting that is already contained in the official police reports that may suggest he or she did or failed to do something for which there is an argument that it amounted to a violation of department procedures or good practice? Is the statement by that officer one that is against his or her interest since it could potentially result in discipline? Does plaintiff have to parse through all of the investigation material generated by defendants, decide whether any statements might theoretically qualify as a statement against interest, and then regurgitate that back to defendants? What if plaintiff intends to use a particular statement that arguably might be a declaration against interest for purposes of impeachment only?
On the other hand, the purpose for discovery is to eliminate unfair surprise. And, for example, if plaintiff was to claim at trial that defendant Burkhartsmeier admitted to her in a private conversation he should not have shot Scott, it seems this is the sort of thing that ought to be discoverable.
Under Fed. R Civ. P. 26(a)(1)(A)(i) both parties are obligated to provide without any demand being made:
In terms of this particular case, keeping in mind Fed. R Civ. P. 26(a)(1)(A)(i)'s requirements and without deciding what might be an appropriate interrogatory in other cases if phrased differently, plaintiff shall provide a supplemental answer that is limited to any statement that plaintiff or her attorneys have knowledge of that is (1) made by a named defendant and (2) rises to the level of being an admission (and not just evidence) of fault or liability. In case of defendant City of Bismarck, this would include a statement by a person that plaintiff contends amounts to an admission of fault or liability on the part of the City because of that person's position or authority. If plaintiff is not aware of any such statements as the court as redefined what must be answered, plaintiff can respond stating she has no information with respect to any such admission as of the current time, keeping in mind her obligation to timely supplement the answer should the situation change.
Interrogatory No. 14 requires that plaintiff state all past illicit drug use by Scott including what drugs he has used, the quantities, and the time frames. Plaintiff objects to the interrogatory on the grounds of lack of relevancy, overbreadth (no limitation as to time), and lack of knowledge to be able to provide fully responsive information. Plaintiff cites to this court's decision in
In ruling on a motion in limine in
That being said, plaintiff's personal knowledge with respect to the matters covered by Interrogatory 14 was explored thoroughly in her deposition. Hence, the court will not require in this particular instance a supplementation of her answer with respect to her own knowledge. However, plaintiff shall make an inquiry of Scott's two adult children if evidence as to their loss is going to be presented at trial or if they are takers in Scott's estate. For any illicit drug use by Scott that they have observed or are otherwise familiar with, information as to the type of drug, the approximate time frames of use (if known), and the relative frequency (if known), should be provided in a supplemental answer to Interrogatory No. 14 but limited to ten years preceding his death.
Document Request No. 23 requires production of documents of any accusations, charges, or convictions for any misdemeanor or felony offenses. Plaintiff shall produce responsive documents if she or Scott's Estate are in possession of any. To the extent this request can be construed as attempting to impose an affirmative obligation to seek out such material in the hands of the others (which some of the wording of the Request No. 23 appears to suggest, i.e., "[b]e sure the documents provided include the following information . . . .), the request is denied.
Document Request No. 29 seeks the same information as requested by Interrogatory No. 14 but contained in documents. Plaintiff shall provide responsive documents in her or the Estate's possession, if there are any, but is under no obligation to seek out that information from others.
Defendants' motion to compel discovery is
Given the foregoing disposition of defendants' motion to compel, the court will not award fees or costs to either party.
(Doc. No. 38). A different method of production may be appropriate in cases where there appear to be a serious question with respect to privilege, there are legitimate privacy concerns, or the information is otherwise particularly sensitive (e.g., involving trade or commercial secrets) and a confidentiality order is deemed insufficient to address the concerns.