United States District Court, D. Utah, Central Division
J. Shelby District Judge.
MEMORANDUM DECISION AND ORDER
M. WARNER United States Magistrate Judge.
Judge Robert J. Shelby referred this matter to Magistrate
Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(A). Before the court is Officer Timothy Stumm,
Officer Kevin Stayner, and Salt Lake City Corporation's
(collectively “Defendants”) Rule 37 Short Form
Discovery Motion wherein they seek to preclude Plaintiff Don
Emery from introducing evidence of “any medical
condition” during the liability phase of
trial. In response, Emery concedes his delay in
complying with this court's previous order compelling his
medical records, but argues instead for a different
remedy-deadline extension. Having reviewed the parties'
briefs, the court grants in part and denies in part
Defendants' Rule 37 Short Form Discovery Motion and
provides the alternative remedy sought in Defendants'
court's April 5, 2017 Order, it granted Defendants'
motion to compel because Emery had “put his physical
condition at the time of the traffic stop at
issue.” The court required Emery to provide
Defendants “any information relating to the medical
conditions he claims to have been suffering during the
traffic stop.” It stated that failure to disclose
“relevant medical evidence” would result in that
evidence's preclusion at trial. To allow Defendants time to
utilize the discovery responses, subpoena the proper medical
professionals, and find an expert witness, it extended
Defendants' counter expert deadline to May 8,
sent multiple emails to Emery's counsel to procure the
requested discovery and notarized HIPAA
release. On April 5, the same day that the court
issued its discovery order, Samantha Slark, Defendants'
counsel, emailed David Pace, Emery's counsel, asking for
the requested information by April 7. She emailed
him once more less than two hours later.There, she
mentioned a phone call that had allegedly just occurred
wherein Emery's counsel agreed to “attempt to
meet” with Emery and serve the requested responses
“by Friday April 14.” In that email, Slark also
mentioned that Pace had “graciously agreed to provide
any extension” to the May 8, 2017 deadline that
Defendants felt was necessary and asked to set an appropriate
extension date after she had received the requested responses
and had more information.
all necessary documents were drafted by April 14, the date
passed and Pace never delivered anything to
Slark. On April 18, Pace said that he had
everything prepared, but was “waiting for [Emery] to
sign before a notary, ” which apparently he could not
do because he had been “bedridden” for several
days. Slark responded that Pace should send
the responses even without the notarized
April 27, Defendants had still not received the discovery or
HIPAA release form and filed the instant motion seeking to
preclude Emery from “utilizing evidence of any medical
condition to establish liability.” On May 4,
three business days before Defendants needed to disclose a
counter expert, Emery filed his response. He asked that
this court not preclude his medical evidence, but rather
extend the expert disclosure deadline to afford Defendants
more time. On that same day, Defendants finally
received Emery's responses and the notarized HIPAA
agreement. In their reply, Defendants once more
asked the court to preclude the medical evidence, but
alternatively requested an extension of time to July 8, 2017,
to produce their expert disclosures.
party fails to “obey a . . . pretrial order, ”
this court “may issue any just orders.”
Fed.R.Civ.P. 16(f); see also Fed. R. Civ. P.
37(b)(2)(A). While the rules specify a list of potential
remedies for failure to follow a discovery order, that list
is non-exhaustive. Fed.R.Civ.P. 37(b)(2)(A) (noting that of
the possible sanctions a court can levy on a party for
failure to comply with a discovery order, it “may
include” any of a short specifically enumerated list).
court recognizes that Defendants received the requested
disclosures and the signed and notarized HIPAA release three
business days prior to the May 8, 2017 deadline for expert
disclosures. While the court did not set a date certain for
the discovery to be produced or the HIPAA waiver to be
signed, expecting Defendants to be able to meet the deadline
three business days after receiving the discovery is not
practical. Defendants likely would need substantially more
than three business days to subpoena the proper parties,
process the received medical information, and designate an
expert. These time constraints made it extremely unlikely-if
not impossible-that Defendants would be able to comply with
Emery concedes. He acknowledges that it would be
“virtually impossible for Defendants to comply”
with this court's April 5 Order and argues that it would
be “appropriate for the court to extend Defendants'
expert disclosure deadline.” As a basis for the delay,
Pace asserts that he was unable to find a mobile notary to
travel to Emery's home before May 1, 2017.
Defendants had subpoenaed the medical providers on the very
day they received the HIPAA release, those providers may have
objected to the subpoena. Emery's flood-or-famine
approach to providing information slowed Defendants'
ability to move forward. Since all the necessary documents
were allegedly completed by April 14, 2017, the court sees no
reason why it took until May 4, 2017-three days after the
requisite signature was finally acquired-to serve Defendants
with the discovery requests and the notarized HIPAA release.
determining which sanction is appropriate for failing to
comply with an order, ...