United States District Court, D. Utah
N. Parrish District Judge
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT UTAH
VALLEY SPECIALTY HOSPITAL'S SHORT FORM DISCOVERY
CECILIA M. ROMERO UNITED STATES DISTRICT COURT JUDGE.
the Court is Defendant Utah Valley Specialty Hospital,
Inc.'s (“Defendant”) Short Form Discovery
Motion re Plaintiffs' Objections to Defendant's
Subpoenas (ECF 50). This motion relates to subpoenas that
Defendant served on several of Plaintiffs' medical
providers (ECF 50, Ex. B). Plaintiffs filed Objections to
Defendant Utah Valley Specialty Hospital, Inc.'s Subpoena
Duces Tecum (ECF 49) and requested that responses to the
subpoenas be sent to Plaintiffs' counsel to review for
privileged health information. Defendant's motion seeks
an order overruling Plaintiffs' objections and directing
that responses to the subpoenas be sent directly to Defendant
(ECF 50 at 2). Plaintiffs did not file a response to
Defendant's motion. Defendant then filed a request to
submit its motion for decision, noting Plaintiffs'
failure to file a timely response to the motion (ECF 53).
Plaintiffs thereafter filed a Response to Defendant Utah
valley Specialty Hospital, Inc.'s Request to Submit its
Short Form Discovery Motion for Decision (ECF 54), and
Defendant filed a response thereto (ECF 55). Having
considered the relevant filings, the Court will decide
Defendant's motion on the basis of the written memoranda.
See DUCivR 7-1(f).
Court agrees with Defendant that Plaintiffs' objections
to Defendant's subpoenas were procedurally improper. The
proper procedure for challenging Defendant's subpoenas
would have been to file a motion to quash or modify the
subpoenas or a motion for a protective order in compliance
with the procedure outlined in DUCivR 37-1 for the resolution
of discovery disputes. See DUCivR 37-1(a)(9)
(“Any motion to quash, motion for a protective order,
or motion to compel a subpoena will follow this
procedure.”). Plaintiffs' objections are styled as
discovery responses rather than as a short form discovery
motion and fail to comply with the requirements set forth in
DUCivR 37-1 in every respect.
Defendant's motion fails to comply with the certification
requirements for short form discovery motions. As noted in
Local Rule 37-1:
The Short Form Discovery Motion must include a certification
that the parties made reasonable efforts to reach agreement
on the disputed matters and recite the date, time, and place
of such consultation and the names of all participating
parties or attorneys.
See DUCivR 37-1(a)(4). “At a minimum, those
efforts include a prompt written communication sent to the
opposing party: (A) identifying the discovery
disclosure/request(s) at issue, the response(s) thereto, and
specifying why those responses/objections are inadequate,
and; (B) requesting to meet and confer, either in person or
by telephone, with alternative dates and times to do
so.” See DUCivR 37-1(a)(1).
Defendant claims that “[t]he parties conferred on
September 20, 2019 to attempt to resolve this matter without
court involvement” (ECF 50 at 3). Although Defendant
provides the date that the parties conferred, Defendant fails
to recite the “time and place of such
consultation” or “the names of all participating
parties or attorneys” as required by DUCivR 37-1(a)(4).
More importantly, Defendant failed to demonstrate that
reasonable efforts were made to reach an agreement on
Plaintiffs' specific objections to Defendant's
subpoenas. Defendant provided no evidence in its motion of
any communications with Plaintiffs specifying why
Plaintiffs' objections to Defendant's subpoenas were
inadequate or procedurally defective.
parties subsequently attached copies of email communications
between the parties as exhibits to their responses to
Defendant's request to submit (ECF 54-1; ECF 55-1). The
exhibits contain only one email communication from Defendant
that predates the filing of its motion, which summarizes a
phone call between the parties regarding various discovery
disputes. The remainder of the exhibits consist of subsequent
email communications between the parties reflecting their
continued attempts to resolve issues specifically relating to
Defendant's subpoenas. The Court is therefore not
persuaded that a single attempt was sufficient in this case
to meet Defendant's obligations under DUCivR 37-1(a) to
make reasonable efforts to reach an agreement with Plaintiffs
before filing a motion with the court. Defendant
claims that Plaintiffs were the first to violate DUCivR
37-1(a) by “filing their objections without first
meeting and conferring with Defendant to attempt to resolve
the issue without Court involvement” (ECF 50 at 2).
While the Court reminds Plaintiffs of their obligation to
meet and confer, Plaintiffs' failure to comply with
DUCivR 37-1(a) does not absolve Defendant of its own
obligation to comply with the requirements of this rule
before filing a short form discovery motion.
the Court admonishes Plaintiffs for failing to file a timely
response to Defendant's motion. “Failure to respond
timely to a motion, other than for summary judgment, may
result in the court's granting the motion without further
notice.” DUCivR 7-1(d). Here, Defendant's motion
was filed on September 24, 2019, and Plaintiffs' response
was due five business days later on October 1, 2019.
See DUCivR 37-1(6) (“The opposing party must
file its response five business days after the filing of the
[Short Form Discovery] Motion, unless otherwise
ordered.”). Plaintiffs have neither filed a timely
response to Defendant's motion nor requested an extension
of time for the filing of a response. Instead, a full month
after Defendant's motion was filed, Plaintiffs filed a
response to Defendant's request to submit arguing that
Defendant's motion is moot given that the medical records
at issue were produced in the interim (ECF 54 at 2). The
Court notes however that the issue remains of whether
Plaintiffs improperly had the responses to the subpoenas
reviewed by them as opposed to being sent directly to
Defendant from the third party medical providers.
Plaintiffs' post ...