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Benson v. Sanford Health

August 14, 2009

MARGARET A. BENSON, M.D., PLAINTIFF,
v.
SANFORD HEALTH, A SOUTH DAKOTA CORPORATION; AND SANFORD MEDICAL CENTER, A SOUTH DAKOTA CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

OPINION AND ORDER RE: SECOND MOTION TO COMPEL (DOC. 36)

Pending is plaintiff's second motion to compel responses to discovery requests (Doc. 36).

A decision on the first motion (Doc. 22) was deferred through an Order dated March 20, 2009, because the parties had not conferred to try to resolve the discovery disputes. The parties were ordered to confer in good faith not later than March 31, 2009, to try to resolve their discovery disputes and were advised in the Order that they may provide a statement to the court not later than April 10, 2009, setting forth the matters upon which they have been unable to agree, together with briefs in support of or in opposition to their respective contentions (Doc. 32).*fn1 A statement setting forth the matters of disagreement was not filed.*fn2 On April 30, 2009, the first motion was denied as moot (Doc. 35).

In the first motion plaintiff complained the defendants' responses were overdue and that the right to raise objections had been waived. In response to the motion to compel Defendants filed their discovery responses, including objections, and suggested their responses rendered the motion to compel moot. This second motion to compel, together with a supporting brief, was filed July 2, 2009 (Docs. 36 & 37). Local Rule 7.2A provides a party must file a responsive brief within 20 days.

Defendants did not file a responsive brief within 20 days. Plaintiff filed a brief on July 28 noting defendants' failure and asserting that defendants have waived any argument and objections to the second motion to compel (Doc. 39). "Plaintiff asks that the Court immediately sign an order granting Plaintiff's motion and set a date certain for Defendants to produce the requested discovery." On July 29, 2009, defendants filed their response to plaintiff's second motion to compel (Doc. 42). They explained that they "believed that their response to Plaintiff's motion was due to be filed on Wednesday, July 29, 2009. If the response is untimely, Defendants respectfully ask the Court's permission to consider this response." Plaintiff's counsel, complaining that the responses are nine months overdue, has described defendants' acts or omissions as: conveniently filed their response the same day; suddenly filed a brief; incredibly; pattern of flagrant disregard of the federal rules; tactically delaying; conveniently left out of defendants' brief; suddenly object; as has been their practice defendants have totally ignored their duty under the federal rules. If these descriptions are well taken, it is a serious matter. If these descriptions are not well taken, it is a serious matter.

FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION

Federal Rule of Criminal Procedure 33(b)(2) and (b)(4).

(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. . . .

(4) Objections. . . . . . Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

DISCUSSION AND RULINGS

The plaintiff's discovery was served on September 3, 2008. Defendants' responses were due October 6, 2008. Plaintiff's counsel extended the due date for 30 days (Doc. 23). Plaintiff's first motion to compel was filed January 7, 2009. On January 29, 2009, defendants served their responses to plaintiff's discovery (Doc. 28, Exs. A & B.)

The defendants' responses to plaintiff's discovery requests were not timely. They were not filed within 30 days after service, but there was an extension of 30 days to respond. The due date was, therefore, 30 days after October 6, 2008. November 6, 2008, became the new due date. The responses and objections were served on January 29, 2009. There has been no order from the court extending the time for responding. Rule 33(b)(4) provides that objections are waived if not timely made, unless the court for good cause excuses the failure. There is nothing in the record to explain the failure to respond by November 6, 2008, other than that defendants needed more time to gather the information. There is an absence of proof of good cause in the record to excuse the failure to timely object. The inescapable conclusion is that under Rule 33(b)(4) defendants have waived the right to object to plaintiff's discovery requests.*fn3

Nonetheless, some of the discovery relates to information about persons who are not parties to this lawsuit. Production of private information about nonparties should not be allowed by the court, e.g. medical and financial information, or identifying social security, bank account, credit card or driver's license numbers, or employment terms, conditions, and actions, not related to this case.

Also, plaintiff has disclosed her agreement to limit certain discovery requests, e.g. to a time ...


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