The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL RULE 35 EXAMINATION
This matter is before the court on plaintiff Cheryl D. Letcher's complaint against defendants Rapid City Regional Hospital, Inc. ("RCRH"), Bobbi Jean Jarvinen, and Does 1-5, for matters arising out of Ms. Letcher's employment at RCRH. Defendants have filed a motion seeking to compel Ms. Letcher to submit to an independent mental examination ("IME") with an expert of defendant's choosing. [Docket No. 33]. The district court, the Honorable Jeffrey L. Viken, referred defendants' motion to this magistrate judge for resolution.
Plaintiff Cheryl D. Letcher was an employee of Rapid City Regional Hospital ("RCRH") from 1987 until May 9, 2007. She filed a complaint against RCRH, Bobbi Jean Jarvinen, and Does 1-5 on February 2, 2009. Ms. Jarvinen is alleged to have been Ms. Letcher's supervisor and also an employee of RCRH.
In her complaint, Ms. Letcher asserts that she was harassed on the basis of her disability and that defendants failed to make reasonable accommodation of her disability, in violation of the Americans with Disabilities Act, that defendants intentionally inflicted emotional distress on her, and that defendants negligently inflicted emotional distress on her. The condition which Ms. Letcher asserts disables her is a mental condition. Ms. Letcher seeks compensatory, general, special, and punitive damages among other relief. Defendants, inter alia, deny that Ms. Letcher is disabled, deny that defendants knew of any disability, and deny that they caused Ms. Letcher emotional distress.
In connection with the issues presented by the present motion, the following facts are relevant. Defendants' counsel contacted Ms. Letcher's counsel and indicated that defendants wished to conduct an IME pursuant to Fed. R. Civ. P. 35. Defendants offered to bring their expert to Ms. Letcher's location rather than requiring her to travel to the expert's location.
Ms. Letcher's counsel did not object to the IME, but asked that the examination be conducted after 3 p.m.
On January 17, 2010, defendants' counsel told Ms. Letcher's counsel that the examination was expected to last from 9 a.m. to 5 p.m., and, thus, that her request that the examination be scheduled after 3 p.m. could not be accommodated. See Docket 36-4. On January 19, 2010, Ms. Letcher's counsel responded without objection. Id.
On January 25, 2010, defendants proposed either February 25 or 26, 2010, for the examination. See Docket No. 36-5. On February 1, 2010, Ms. Letcher's counsel indicated that she would submit to the exam on February 26. Id.
On February 5, 2010, Ms. Letcher's counsel wrote to defendants that he would not allow Ms. Letcher to submit to the scheduled examination unless defendants supplied the following details: the name of the expert, the expert's curriculum vitae, a detailed description of the scope of the examination including tests to be performed, the duration of each test, the time the examination was to start, and the location of the examination. See Docket No. 36-6.
On February 11, 2010, defendants responded by identifying their expert as Minneapolis, Minnesota, clinical psychologist Dr. Dan Dossa. See Docket No. 36-7. Defendants also supplied Dr. Dossa's CV, provided a time estimate of three to five hours for a diagnostic interview, and three to five hours for two tests, the Minnesota Multiphasic Personality Inventory--II and the Millon Clinical MultiAxial Inventory II. Id. Defendants wrote that the exam would begin at 9 a.m., but that a location for the exam had not yet been secured. Id.
Defendants also offered to split up the exam by allowing Ms. Letcher to do the diagnostic interview with Dr. Dossa on February 26, 2010, and allowing her to take the two tests on a separate day of her choosing as long as the tests were taken in a proctored setting. Id.
On February 18, 2010, Ms. Letcher's counsel wrote to defendants and stated that she agreed to submit to the IME with the following unilateral conditions: (1) Ms. Letcher would not discuss the underlying events, conduct and work environment on which her complaint was based except to describe those things in general terms; (2) Ms. Letcher would not submit to the exam for more than six hours; (3) Ms. Letcher's attorney would be allowed to attend; and (4) Ms. Letcher would be allowed to make an audio recording of the exam. See Docket No. 36-8.*fn1
Defendants did not agree to these conditions and, when the parties could not resolve their differences among themselves, defendants filed the instant motion to compel, seeking this court's order requiring Ms. Letcher to submit to the IME on defendants' terms and also seeking sanctions. Ms. Letcher resists the motion.
A. Meet and Confer Requirement
Ms. Letcher argues that defendants' motion to compel Ms. Letcher's IME with Dr. Dossa should be denied because defendants' counsel failed to attempt to resolve this matter with plaintiff's counsel prior to filing the motion. The court finds this argument to be without merit.
Rule 37(a) of the Federal Rules of Civil Procedure requires before a motion to compel discovery may be filed that the parties confer or attempt to confer in good faith in an attempt to resolve the discovery dispute without court action and that such attempts were unsuccessful. See Fed. R. Civ. P. 37(a). Similarly, local rules of this district require that the parties meet informally, either in person or by telephone, and attempt to resolve their differences before filing a motion to compel discovery. See D.S.D. Civ. LR 37.1.
In support of the instant motion, defendants' counsel filed an affidavit which she signed stating, under oath, that in response to Ms. Letcher's counsel's letter of February 18 imposing unilateral conditions on the IME, both of defendants' counsel contacted Ms. Letcher's counsel in an attempt to resolve the parties' differences regarding the conditions of the IME. See Docket 36. The affidavit recites that those attempts at resolving the issues raised in the present motion were unsuccessful. That is sufficient to satisfy the meet-and-confer requirement.
Ms. Letcher suggests in her brief that defendants should have waited until the IME was underway to see if Ms. Letcher would indeed hew to the conditions she refused to negotiate before filing the instant motion. However, this would require Dr. Dossa to travel to Rapid City, incur travel expenses, and in all probability, incur his expert fee for the entire day, only to gain defendants nothing because the IME would not take place. The court does not interpret either Fed. R. Civ. P. 37 or D.S.D. LR 37.1 to require such drastic steps in order to meet the precondition that the parties attempt to resolve their differences before a discovery motion may be filed. Thus, the court moves on to the merits of defendants' motion.
B. Standard Applicable to Rule 35 Motions Rule 35 of the Federal Rules of Civil Procedure provides in ...