United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
M. Warner Chief Magistrate Judge.
parties in this case have consented to Chief Magistrate Judge
Paul M. Warner conducting all proceedings, including entry of
final judgment, with appeal to the United States Court of
Appeals for the Tenth Circuit. See 28 U.S.C. §
636(c); Fed.R.Civ.P. 73. Before the court are Plaintiff
Rebekah Gatti's (“Gatti”) (1) motion to
compel and (2) motion for protective
order. The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to Civil
Rule 7-1(f) of the Rules of Practice for the United States
District Court for the District of Utah, the court has
concluded that oral argument is not necessary and will decide
the motions on the basis of the written memoranda.
See DUCivR 7-1(f).
initial matter, the court notes that Gatti's motions do
not comply with the short form discovery motion procedure set
forth in Civil Rule 37-1 of the Rules of Practice for the
United States District Court for the District of Utah. That
rule, which governs any discovery disputes arising under
Rules 26-37 and 45 of the Federal Rules of Civil Procedure,
requires a party to file a short form discovery motion to
have a discovery dispute resolved by court order.
See DUCivR 37-1(a)(3). Any such motion may not
exceed 500 words. See id. Gatti's motions far
exceed that word-count limit. Although the court will
consider Gatti's motions in this instance, Gatti is
directed to strictly comply with Civil Rule 37-1 for any
future discovery disputes.
addressing the above-referenced motions, the court sets forth
the following general legal standards governing discovery.
Rule 26(b)(1) provides:
Parties 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, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). “The district court has broad
discretion over the control of discovery, and [the Tenth
Circuit] will not set aside discovery rulings absent an abuse
of that discretion.” Sec. & Exch. Comm'n v.
Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271
(10th Cir. 2010) (quotations and citations omitted).
Gatti's Motion to Compel
motion, Gatti seeks a court order compelling Defendant
Granger Medical Clinic, P.C. (“Granger”) to
produce a witness under Rule 30(b)(6) of the Federal Rules of
Civil Procedure to testify about two disputed topics and
fully respond to two of Gatti's discovery requests.
disputed topics from Gatti's Rule 30(b)(6) deposition
notice are (1) possible or alleged fraudulent activities
committed by Dr. Douglas M. Vogeler (“Dr.
Vogeler”) or anyone acting under his supervision or
control, including but not limited to Whitney Miller and
Tiffany Pitti, as well as any steps taken by Granger to
investigate or remediate these possible or alleged fraudulent
activities; and (2) communications between Dr. Vogeler and
others at Granger regarding possible or alleged fraudulent
activities committed by Dr. Vogeler or anyone acting under
his supervision or control, including but not limited to
Whitney Miller and Tiffany Pitti.
discovery requests at issue are (1) Gatti's interrogatory
no. 11, which asks Granger to identify by date, amount, and
claim number, any reimbursements by Granger to any state or
federal agency relating to any billings from Dr.
Vogeler's practice; and (2) Gatti's request for
production no. 16, which asks Granger to produce all
documents within Granger reflecting any reimbursements made
by Granger to any state or federal agency relating to any
billings from Dr. Vogeler's practice.
opposes Gatti's motion by arguing that Gatti's
requested discovery amounts to an improper fishing expedition
into a potential qui tam claim. Granger also argues that the
discovery Gatti seeks is not relevant to the claims and
defenses in this case. The court agrees with Granger on both
Advisory Committee Notes to the 2000 Amendment to Rule
26(b)(1) provide that the parties and the court should
“focus on the actual claims and defenses involved in
the action” when determining whether certain discovery
is relevant. Fed.R.Civ.P. 26 advisory committee notes, 2000
Amendment, Subdivision (b)(1). Those Advisory Committee Notes
also provide that the court “has the authority to
confine discovery to the claims and defenses asserted in the
pleadings, and signals to the parties that they have no
entitlement to discovery to develop new claims or defenses
that are not already identified in the pleadings.”
Id. Additionally, this court has previously stated
that “[a]lthough the scope of discovery under the
federal rules is broad . . ., parties may not engage in a
‘fishing expedition' in an attempt to obtain
evidence to support their claims or defenses.”
Richards v. Convergys Corp., No. 2:05-CV-00790DAK,
2007 WL 474012, at *2 (D. Utah Feb. 7, 2007) (citing
Munoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1169
(10th Cir. 2000)).
Granger has correctly noted, Gatti's complaint contains
only one cause of action for retaliation under the False
Claims Act. The court agrees with Granger's argument that
the discovery Gatti seeks has no bearing on whether she can
prove the elements of that sole cause of action. The court
also agrees with Granger's argument that Gatti's
requested discovery appears to be an improper attempt to
develop a potential qui ...