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Herzig v. Arkansas Foundation For Medical Care, Inc.

United States District Court, W.D. Arkansas, Fort Smith Division

December 12, 2018

BRIAN HERZIG and NEAL MARTIN PLAINTIFFS
v.
ARKANSAS FOUNDATION FOR MEDICAL CARE, INC. DEFENDANT

          ORDER

          HON. MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Defendant, Arkansas Foundation for Medical Care, Inc. (“AFMC”), has filed a Motion to Compel Discovery, and supporting brief, on November 20, 2018. (ECF Nos. 14, 15). Pursuant to 28 U.S.C. § 636(b)(1)(A), the motion was referred to the undersigned on November 21, 2018 for disposition. (ECF No. 16). Plaintiffs, Brian Herzig (“Herzig”) and Neal Martin (“Martin”), filed their Response to Defendant's Motion to Compel Discovery, and supporting brief, on December 6, 2018. (ECF Nos. 20, 21). A hearing was held on the motion on December 11, 2018.

         AFMC's Motion to Compel Discovery (ECF No. 14) seeks an Order compelling Herzig and Martin to: (a) supplement their responses to AFMC's Requests for production of Documents with appropriate labels; (b) produce documents responsive to Requests for Production Nos. 16, 17 and 20; (c) make their mobile phones available for limited copying and inspection; (d) supplement their responses to Interrogatory Nos. 9, 12 and 19; and, (e) pay AFMC's reasonable costs and attorney's fees incurred in connection with the motion to compel. The Motion to Compel Discovery is GRANTED IN PART and DENIED IN PART as set forth below.

         (a) Appropriate Labeling of Documents

         AFMC argues that while Plaintiffs have provided approximately 680 pages of documents in response to AFMC's Requests for Production of Documents, the Plaintiffs have not designated, or labeled, the documents in any way to correspond to any particular category or request for production. (ECF No. 14, p. 6). Rule 34(b)(2)(E)(i), Fed. R. Civ. P., provides in mandatory terms that “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” (Emphasis added.). Plaintiffs responded by stating that AFMC has asked them to produce “essentially every document in their possession relating to this lawsuit, or AFMC, ” and in many instances documents were needlessly demanded in multiple Requests, which the Plaintiffs fully complied with. (ECF No. 21, p. 2). Plaintiffs contend that “the nature of the documents produced clearly indicate and identify which requests to which they are responsive, ” and that “with a modicum of effort the Defendant would quickly link the seventy documents to the defendant's particular request which as noted above were redundant.” (Id., pp. 1, 3).

         Pursuant to an agreement reached by the parties shortly before the hearing, the Plaintiffs agreed to supplement their responses to specifically designate or label 71 documents previously provided to correspond to the particular request(s) for production of documents the documents are responsive to. The parties were unable to agree on what to do regarding the printed screen shots of text messages provided by Martin. Plaintiffs argued at the hearing that the text message screen shots provided by Martin are responsive to AFMC's Request for Production of Documents Nos. 24 and 37, both of which specifically ask for, among other things, text messages. (ECF No. 14-1, pp. 41, 45). Plaintiffs' counsel candidly admitted at hearing that if the Defendant could identify which requests the documents relate to “with a modicum of effort, ” so too could the Plaintiffs easily identify which requests the documents relate to.

         The Motion to Compel Discovery (ECF No. 14) is GRANTED regarding AFMC's request that Plaintiffs supplement their responses to AFMC's Requests for Production of Documents with appropriate labels. Plaintiffs shall supplement their responses to AFMC's Requests for Production of Documents to designate or label all documents they have provided to correspond to the specific request(s) for production they are responsive to. The Court further notes that although the documents provided by Plaintiffs have been Bates Stamped, some of the Bates Stamp numbering uses a font so small as to be practically illegible; and, to the extent possible, Plaintiffs shall use a Bates Stamp font that is clearly legible.

         (b) Requests for Production Nos. 16, 17 and 20

         Arguing that Plaintiffs' responses are incomplete, AFMC seeks an Order compelling the Plaintiffs to provide supplemental responses to Requests for Production Nos. 16, 17 and 20. (ECF No. 14, p. 6). Plaintiffs contend they have provided all documents related to Request for Production No. 16; provided information concerning employers for whom they worked prior to AFMC; provided information regarding the employers they contacted to seek employment after their respective discharges from AFMC; and, that requesting a signed release for employment records is beyond the scope of Rule 34, Fed.R.Civ.P. (ECF No. 21, pp. 4-6). Regarding Requests for Production Nos. 17 and 20, Plaintiff argue they have provided all W-2 and 1099 forms indicating fully their source of income during the relevant period; that their income tax returns and financial account information contains highly personal information; and, that the requests are not calculated to obtain information concerning any income that would mitigate damages. (Id., p. 6).

         Request for Production No. 16

         AFMC's Request for Production No. 16 requests all documents relating to the Plaintiffs' efforts to seek employment from April 4, 2017 through the present, and AFMC requests that the Plaintiffs sign an Employment Records Authorization. (ECF No. 14-1, pp. 7-8. 38). In response, both Plaintiffs stated “I will produce in a manner mutually agreed documents responsive to this request within my possession.” (Id.). Neither Plaintiff made any objection to AFMC's Request for Production No. 16.

         This Court has previously held that such a release meets the low threshold of relevance by being reasonably calculated to lead to the discovery of information relevant to the issue of mitigation and the computation of damages, as well as also possibly going to the issue of credibility of a witness. See E.E.O.C. v. Randall Ford, Inc., 298 F.R.D. 573, 574-75 (W.D. Ark. April 23, 2014). In E.E.O.C. v. Randall Ford, Inc., the Court concluded that it did not have authority, pursuant to Rule 34, Fed. R. Civ. P., to compel a party to execute a release of employment records, stating “[t]he appropriate procedure to compel a non-party to produce documents is to serve them a subpoena as set forth in Rule 45 of the Federal Rules of Civil Procedure.” Id. at 575. The E.E.O.C., however, had objected to the request for a release of employment records, but here the Plaintiffs have not made any objection. Plaintiffs have, therefore, waived their right to object by not making any timely objection to AFMC's Request for Production No. 16. Fed.R.Civ.P. 34(b)(2)(A); Cornerstone Wrecker Sales, Inc. v. Bower Services, Inc., 2010 WL 3862546, * 2 (E.D. Ark. Sept. 27, 2014), citing Enron Corp. Savings Plan v. Hewitt Associates, L.L.C., 258 F.R.D. 149, 156 (S.D. Texas 2009) (collecting cases on waiver).

         The Court is cognizant of conflicting opinions regarding the authority to compel a party to execute releases for records held by non-parties. A good discussion of the issue is presented in the recent decision of Scott v. City of Bismarck, 2018 WL 4440661 (D. N.D. September 17, 2018). There, the Court found “an expansive reading of Rule 34 arguably does not foreclose the use of releases as an alternative means of obtaining production of documents that are not in the possession of the party to whom the request is directed but are under its control - at lease when the proposed releases are made a part of the Rule 34 request.” Id. at * 5. The Court also held “the expediency in many cases of employing signed releases to gather information from non-parties cannot be denied ..., ” and “[w]hile expediency alone cannot be grounds for construing Rule 34 to permit requests for signed releases, it does provide support for an expansive reading of Rule 34 to allow for such use consistent with Fed.R.Civ.P. 1.” Id. at * 6. In the instant case, expediency also weighs in favor of permitting use of the requested releases for employment records as the discovery deadline is little more than one month away on January 15, 2019, and some of the non-parties from whom records are to be sought are located out of state.

         The Motion to Compel Discovery (ECF No. 14) is GRANTED regarding AFMC's Request for Production No. 16. Plaintiffs shall provide to AFMC all documents in their possession that are responsive to Request for Production No. 16, and Plaintiffs shall also execute and deliver to defense counsel the requested Employment Records Authorizations. AFMC is limited to seeking employment records dating from five years before each Plaintiff began employment with AFMC to the present. AFMC shall promptly provide Plaintiffs with copies of all records obtained by use of the Employment Records Authorizations. The records obtained by use of the Employment Records Authorizations shall be subject to a Protective Order which will be entered by the Court separately.

         Request for ...


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