ORDER ON (1) DEFENDANT CORRECT CARE SOLUTIONS, LLC'S MOTION TO COMPEL DISCOVERY RESPONSES AND FOR A PROTECTIVE ORDER, AND (2) PLAINTIFFS' MOTION FOR EXTENSION OF NOTING DATE ON CCS DEFENDANTS' MOTION TO COMPEL
ROBERT J. BRYAN, District Judge.
THIS MATTER comes before the Court on Defendant Correct Care Solutions, LLC's Motion to Compel Discovery Responses and For a Protective Order and Plaintiffs' Motion for Extension of Noting Date on CCS Defendants' Motion to Compel. Dkts. 45, 48. The Court has considered the parties' submissions and the remainder of the file herein.
I. Plaintiffs' Motion for Extension of Noting Date on CCS Defendants' Motion to Compel
Plaintiffs seek an extension of the deadline for their Response to the underlying motion, Defendant CCS' Motion to Compel. Plaintiffs filed their request for an extension on June 19, 2017, the deadline for filing of the Response. Dkt. 48. See LCR 7(d). Plaintiffs seek an extension on several grounds, including lead counsel's continuing health conditions, "emergency criminal cases that came up suddenly," and the parties' inability to resolve a discovery issue relating to Defendant CCS' Motion to Compel. Plaintiffs' motion is noted for June 23, 2017, and Plaintiffs filed their Response to the underlying motion on July 3, 2017. Dkt. 57. Plaintiffs request a noting date of July 7, 2017. Dkt. 48 at 2.
Filed on June 28, 2017, Defendant CCS' Response to Plaintiffs' motion objects to an extension because of Plaintiffs counsel's repeated unresponsiveness to discovery requests and because the underlying discovery issues are ready for a decision. Dkt. 51. Defendant CCS also seeks to strike Plaintiffs' Response to the underlying motion as untimely, and in the alternative, to be permitted to file their Reply to the underlying motion. Dkt. 59. The Court, without ruling on Plaintiffs' motion, allowed Defendant CCS to file their Reply. Dkt. 60. See Dkt. 61.
The representation by Plaintiffs that several weeks of health issues prevented Plaintiffs from timely completing their Response is a sufficient basis for a two week extension. The discovery cutoff is not until November 6, 2017, and there has been no showing of prejudice to Defendant CCS. Plaintiffs' motion should be granted. Defendant CCS' Motion to Compel should be re-noted for July 7, 2017. The Court can thus now consider both parties' pleadings, which were timely, given the July 7, 2017, noting date.
The Court is aware that courts have addressed Plaintiffs counsel's compliance with deadlines. See Moba v. Total Transportation Services, Inc., No. 3:13-cv-0318, 2014 WL 3050461 (W.D.Wash. 2014). The showing in this case has not reached that threshold. However, if counsel anticipates ongoing, severe medical issues, see Dkt. 57 at ¶16 ("[my] recovery . . . requires many medications, not over-working, taking frequent breaks"), counsel may be obligated under RPC 1.16(a) to consider alternative arrangements for his clients.
The Court will now turn to the merits of the underlying motion.
II. Defendant CCS' Motion to Compel Discovery Responses and For a Protective Order
A. Discovery responses.
Defendant CCS takes issue with Plaintiffs' delayed responses to the initial request for discovery, but both sides agree that on April 25, 2017, Plaintiffs responded to the request. See Dkt. 58-4. The focus of the Court's analysis, therefore, is on the sufficiency of Plaintiffs' response to each specific discovery request. Plaintiffs' Response to the motion was in generalities and did not directly address each specific discovery request.
Interrogatory No. 2: "Identify any and all persons known to you . . . as having knowledge of the relevant facts . . . including all known contact information for these persons and a brief statement of the information that these persons have or may have . . ."
Answer: "In addition to co-Plaintiff, Defendants and the treating and diagnosing medical providers, all jail and CCS officials, involved corrections officers, policy makers, and nursing and medical staff are the following: Elizabeth Roosma (originally Bentley) [Mr. Roosma's] wife and co-Plaintiff). Leann Rossi . . . Mother to Elizabeth Roosma. Jennifer Wiseman . . . Close family friend. They know of my previous business and success, my restless leg syndrome and my prescribed treatment by medication . . . and my injuries and how they affected me[.]"
Discussion: Defendant CCS opines that "Plaintiff listed only a couple of family members and a friend (ie. no healthcare providers, jail and CCS officials . . .)." Dkt. 45 at 11. Defendant CCS, which operated the jail facility where the incident occurred, is in a better position to disclose the names of employees who may have had contact with Mr. Roosma. Nonetheless, Plaintiffs' answer to this interrogatory appears incomplete; Mr. Roosma and his counsel should know of some medical providers or jail staffers. Plaintiffs should take a diligent look at this interrogatory. The motion to compel is granted as to this interrogatory. Plaintiffs shall provide a supplemental answer by Monday, July 24, 2017.
Interrogatory No. 5: "List your jobs or occupations, the names and addresses of your employers, and the nature and dates of employment over the past twenty years . . ."
Answer: "Plaintiff objects . . . overbroad and unduly burdensome . . . 2010 or 2011 until 2014—I was self-employed at JD Auto Repair . . . 2006-2014 Plaintiff received SSI for disability."
Discussion: Defendant CCS takes issue with the answer because Plaintiffs listed only four years of employment and did not indicate whether he was unemployed while receiving SSI benefits. Dkt. 45 at 11. The Court agrees. Plaintiffs should provide a detailed, sequential list of Mr. Roosma's employment history for the last twenty years. When unemployed, Plaintiffs should so indicate. The motion to compel is granted as to this interrogatory. Plaintiffs shall provide a supplemental answer by Monday, July 24, 2017.
Interrogatory No. 8: "Set forth with particularity each and every element of damages . . . [caused] by CCS, including special and general damages, if any, setting forth the specific categories of damages, amount of damage for each alleged category, and the analysis used by you to compute the damages."
Answer: "Specials: Medical expenses that will have to be paid back to Medicare/Medicaid in an amount to be determined . . . lost income at $11,000 per month. Generals: immense pain and suffering, humiliation at being unable to work . . . nightmares, loss of sleep, severe strain on marriage, PTSD . . . resulting in daily trauma."
Discussion: According to Defendant CCS, the answer is deficient because it does not provide any description of medical treatment or an amount of money sought to be recovered. Dkt. 45 at 11. Defendant CCS also takes issue with the lack of production. See RFP 3 below. Notwithstanding the fact that an expert for Plaintiffs could change Plaintiffs' answer to this interrogatory, Plaintiffs should provide a more complete answer regarding special damages. Given the degree to which general damages may vary, Plaintiffs need not answer with a number as to general damages. However, at a minimum, Plaintiffs should give Defendant CCS an estimate of total medical expenses and total loss of income to date, and should explain how the $11,000 per month income loss was computed. To that extent, the motion to compel is granted as to this interrogatory. Plaintiffs shall provide a supplemental answer by Monday, July 24, 2017.
2. Requests for Production.
Request for Production No. 1: "Please produce copies of every document pertaining to and/or supporting your claims as set forth in your answer to the preceding interrogatory [about income from sources other than wages or salaries for the last twenty years]."
Plaintiffs' Response: "Plaintiff will produce the Award Letter covering the period of January 2017 to December 2018. Plaintiff will request other Award letters going back in time. Plaintiff has already produced bank statements verifying his income."
Discussion: Defendant CCS opines that Plaintiffs have not sufficiently responded to this RFP because they only provided limited, partial bank statements, and they have not provided other discovery to supplement the initial response. Dkt. 45 at 10. The Court takes Plaintiffs at their word that they have already requested prior "Award letters," which presumably relate to SSI benefits. Plaintiffs, however, have not provided any explanation as to why they have not supplemented their produced discovery to date, so the discovery should be compelled. Plaintiffs should also produce Mr. Roosma's complete bank records for at least the last ten years. (Plaintiffs may, as always, seek relief by a motion for a protective order and/or redact as allowable under the rules.) The motion to compel is granted as to this request for production. Plaintiffs shall produce supplemental discovery by Monday, July 24, 20171.
Request for Production No. 2: "Please produce copies of all Federal Income Tax Returns . . . for the calendar years 2004 up through the present time . . . [and] all supporting documents."
Plaintiffs' Response: "Plaintiff will request tax returns from the IRS. The box of tax filings and supporting documents was lost in the move between Spokane and Lakewood, WA, in 2016."
Discussion: Defendant CCS represents that to date they have not received tax returns. Dkt. 45 at 10. Other than the fact that the tax "box . . . was lost in the move . . . in 2016," it is unclear whether Plaintiffs or their counsel lost said box, and Plaintiffs provide no explanation of why they have not been able to since supplement their initial production with this discovery. Dkt. 58-4 at 7. See Dkt. 57. The Court takes Plaintiffs at their word—that they have requested tax returns from the IRS. To the extent they have not already done so, the motion to compel is granted as to this request for production. Plaintiffs shall produce supplemental discovery by Monday, July 24, 2017.
Request for Production No. 3: "Please produce copies of every document pertaining to and/or supporting your claims as set forth in your answer to the preceding interrogatory [about the damages you seek, including special and general damages, the amount of damage, and the analysis used to compute damages]."
Plaintiffs' Response: [Blank]
Discussion: Defendant CCS opines that Plaintiffs left this RFP blank and have not supplemented their response with employment records, paychecks, or other similar documents. Dkt. 45 at 10. Plaintiffs provide no explanation for the delay in producing this discovery. The motion to compel is granted as to this request for production. Plaintiffs shall produce responsive discovery, including discovery relating to include medical expenses and wages, see ROG 8 above, by Monday, July 24, 2017.
Request for Production No. 5: "Please produce copies of each document supporting any claim by you for out of pocket expenses or medical expenses allegedly paid as a result of your claims in this lawsuit."
Plaintiffs' Response: "Plaintiff did not have to pay out of pocket for his medical. However, Medicare/Medicaid paid and will have a lien in an amount to be determined during the course of this litigation."
Discussion: According to Defendant CCS, Plaintiffs have not produced any discovery responsive to this RFP. Dkt. 45 at 10. To the extent that medical bills are under Plaintiffs' control, the motion to compel is granted as to this request for production. Plaintiffs shall produce supplemental discovery by Monday, July 24, 2017.
Request for Production No. 10: "Please produce copies of every document pertaining to and/or supporting your claims as set forth in your answer to the preceding interrogatory [ROG 20, about the substantial number of allegations and investigations around the country against Defendant CCS]."
Plaintiffs' Response: "Plaintiff objects to this RFP as unduly burdensome and involving documents that are far more readily accessible to Defendants than to Plaintiffs . . . Plaintiffs will gather all available documents as they are available over time."
Discussion: Defendant CCS opines that Plaintiff has not yet produced promised discovery documenting the SSI disability between 2006-2014. Dkt. 45 at 10, 11. However, RFP No. 10 does not relate to SSI benefits. See Dkt. 58-4 at 23. Based on the format of Defendant CCS' discovery request, it appears that Defendant CCS may have neglected to request for production documents relating to ROG 19, which pertains to SSI benefits but has no corresponding request for production. See id. at 17, 18. The motion to compel is denied as to this request for production.
B. Protective order.
Defendant CCS' proposed protective order "protects as confidential certain categories of information regarding such things as personal identifiers, medical, and financial information of nonparty employee files . . . company policies and procedures . . . and company software used by Defendants." Dkt. 45 at 12. Construed generously, the proposed protective order appears to be an attempt to preemptively solve discovery issues for both parties. Viewed more narrowly, the proposed protective order would protect Defendant CCS from producing certain types of discovery. However, there is no showing that Defendant CCS needs relief from a specific discovery request, so ordering said protection is not warranted. The motion for a protective order is denied without prejudice.
C. Attorneys Fees.
Because the Court has compelled some discovery, awarding attorneys fees would be permitted under the rules, but they are not warranted at this time. Plaintiff has made some efforts to provide discovery, and given Plaintiff counsel's health concerns, awarding fees would not serve the ends of justice. Should counsel fail to make diligent efforts in the future, the Court may reconsider the issue. The request for attorneys fees is denied.
Although the exchange of discovery is a dynamic process that includes attorneys' ongoing duty to supplement discovery, Plaintiffs' initial discovery efforts were meager. Not producing discovery because counsel could not agree to the terms of a protective order detracted from counsel's general discovery obligations. Although it is, perhaps, unfortunate that the parties did not agree on terms of a protective order, agreeing on such terms is not the only way to conduct discovery. Where a legitimate discovery request has been made, counsel should timely respond with diligent, complete responses, but may, where appropriate, seek court intervention by a protective order or order to seal.
Granting relief by protective order without considering the merits of an underlying discovery request is premature.
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THEREFORE, Defendant Correct Care Solutions, LLC's Motion to Compel Discovery Responses and For a Protective Order (Dkt. 45) is GRANTED IN PART and DENIED IN PART consistent with this Order.
Plaintiffs' Motion for Extension of Noting Date on CCS Defendants' Motion to Compel (Dkt. 48) is GRANTED. The Court has considered Plaintiffs' Response. Dkt. 57.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.