UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christyna Faulkner, Plaintiff
v. Case No. 12-cv-482-SM Opinion No. 2015 DNH 067
Mary Hitchcock Medical Center; Jocelyn D. Chertoff; Anne M. Silas; Peter K. Spiegel; Marc L. Bertrand; and Mary Hitchcock Memorial Hospital, Defendants
O R D E R
Plaintiff, Christyna Faulkner, brings this action against
her former employer and others, advancing claims under the
Americans with Disabilities Act and the Family Medical Leave Act.
She also brings state law claims of wrongful discharge,
intentional infliction of emotional distress, and
defamation/slander. Although she was initially represented by
counsel, plaintiff is now proceeding pro se.
Pending before the court is defendants’ motion to compel
discovery, to which plaintiff objects - at least in part. For
the reasons discussed, that motion is granted in part, and denied
in part. Standard of Review
As the parties seeking to compel discovery, defendants bear
the burden of demonstrating that the materials sought are
relevant, see Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134,
136 (D.N.H. 2005), and that plaintiff’s earlier discovery
responses were either incomplete or evasive, see Vaughn v.
Bernice A. Roy Elem. Sch., No. 05-cv-223-JD, 2007 WL 1792506, *1
(D.N.H. June 19, 2007). See generally Fed. R. Civ. P. 26(b)(1).
To the extent plaintiff asserts that any requested information or
materials are privileged, she bears the burden of establishing
that the privilege is applicable and has not been waived. See
Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 24 (1st Cir. 2011).
Discussion
This case was filed in 2012, and discovery has stalled. In
part, a substantial delay ensued when plaintiff’s counsel
withdrew and plaintiff sought, but was unable to secure,
alternate representation. And, no doubt, plaintiff’s
unfamiliarity with the federal rules governing discovery
(including her obligations under those rules) has contributed to
the ongoing delay.
According to defendants, in December of 2013, they
propounded interrogatories and requests for the production of
2 documents, seeking releases from plaintiff relating to financial
records, medical information, educational program applications,
and her efforts to find subsequent employment. In April,
plaintiff returned her interrogatory responses, but did not
provide any specific responses to defendants’ request for the
production of documents. Among other things, defendants pointed
out that plaintiff had not provided an executed authorization
that would allow them to obtain medical records from Dr. Michael
Sateia, who treated plaintiff at times relevant to this case.
Plaintiff also failed to provide an authorization for records
from the Electronic Residency Application Service (related to her
efforts to secure alternate employment), or an authorization from
one of her listed medical care providers, Dr. Dwaihy.
Before plaintiff’s counsel could address those shortcomings
in plaintiff’s responses, he withdrew from the case. And,
according to defendants, despite their repeated efforts over many
months to coax plaintiff into complying with her ongoing
discovery obligations, they have been unable to secure the
materials they say they need in order to properly defend this
case. In response to defendants’ most recent request that
plaintiff supplement her earlier (incomplete) discovery
responses, plaintiff stated that she had “nothing else to add as
far as my discovery responses” are concerned. E-mail from
3 Plaintiff to defense counsel dated November 13, 2014 (document
no. 48-6). Given that response, defendants felt constrained to
file the pending motion to compel.
Defendants seek to compel plaintiff to produce three
categories of materials and information: (1) signed
authorizations for the production of information from the
Electronic Residency Application Service (“ERAS”), Westchester
Medical Center, Dr. Dwaihy, and Dr. Sateia; (2) full and complete
responses to Interrogatories 2, 6, and 14 through 18; and (3)
complete responses to each of their requests for production.
I. Authorizations and Releases.
Of the four authorizations defendants seek, plaintiff has
now agreed to provide two: one for Dr. Sateia and one for
Westchester Medical Center. As for Dr. Dwaihy, plaintiff says
she has no knowledge of who he is, and says she never received
treatment from him. But, according to defendants, plaintiff’s
medical records from another treating physician identify Dr.
Dwaihy as the “referring physician.” And, in a section
describing the “reason for evaluation,” those records state that
plaintiff had been “referred by Dr. Dwaihy for evaluation and
advice” regarding a medical condition at issue in this case. Out
4 of concern for plaintiff’s privacy, defendants have not submitted
those medical records, but have offered to do so under seal.
On this record, defendants have shown that the medical files
of Dr. Dwaihy are relevant or, at a minimum, likely to lead to
the discovery of relevant information. Accordingly, plaintiff
shall produce the requested authorization for access to her
medical records with Dr. Dwaihy.
Finally, plaintiff asserts that she need not provide an
authorization to obtain her applications to medical residency
programs and related materials from ERAS. Although she does not
assert that those records are privileged, she argues that they
are not relevant because she has not used that system as part of
a job search for several years. On balance, however, defendants
have demonstrated that such information is relevant to this
proceeding. Accordingly, plaintiff shall produce the requested
authorization to obtain her records from ERAS.
II. Interrogatory Responses.
Next, defendants say that plaintiff’s responses to several
interrogatories are incomplete. Plaintiff, on the other hand,
says she has provided answers that are as complete as her memory
permits. Moreover, she says the answers to all of the questions
5 posed by defendants are contained in her medical records (copies
of which she says she does not have and cannot afford to obtain).
Having compelled plaintiff to produce the requested medical
releases, the court concludes that it is premature to require her
to give more comprehensive responses to the interrogatories
identified by defendants. After defendants have obtained and
reviewed all of plaintiff’s relevant medical records, they may,
at that point, renew their motion to compel to the extent there
remains a good faith basis to do so. Parenthetically, the court
notes that it expects defendants will be able to obtain much, if
not all, of the information they seek when they take plaintiff’s
deposition.
III. Requests For Production.
Finally, defendants complain that plaintiff has only
partially complied with their request for the production of
relevant documents.
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Christyna Faulkner, Plaintiff
v. Case No. 12-cv-482-SM Opinion No. 2015 DNH 067
Mary Hitchcock Medical Center; Jocelyn D. Chertoff; Anne M. Silas; Peter K. Spiegel; Marc L. Bertrand; and Mary Hitchcock Memorial Hospital, Defendants
O R D E R
Plaintiff, Christyna Faulkner, brings this action against
her former employer and others, advancing claims under the
Americans with Disabilities Act and the Family Medical Leave Act.
She also brings state law claims of wrongful discharge,
intentional infliction of emotional distress, and
defamation/slander. Although she was initially represented by
counsel, plaintiff is now proceeding pro se.
Pending before the court is defendants’ motion to compel
discovery, to which plaintiff objects - at least in part. For
the reasons discussed, that motion is granted in part, and denied
in part. Standard of Review
As the parties seeking to compel discovery, defendants bear
the burden of demonstrating that the materials sought are
relevant, see Caouette v. OfficeMax, Inc., 352 F. Supp. 2d 134,
136 (D.N.H. 2005), and that plaintiff’s earlier discovery
responses were either incomplete or evasive, see Vaughn v.
Bernice A. Roy Elem. Sch., No. 05-cv-223-JD, 2007 WL 1792506, *1
(D.N.H. June 19, 2007). See generally Fed. R. Civ. P. 26(b)(1).
To the extent plaintiff asserts that any requested information or
materials are privileged, she bears the burden of establishing
that the privilege is applicable and has not been waived. See
Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 24 (1st Cir. 2011).
Discussion
This case was filed in 2012, and discovery has stalled. In
part, a substantial delay ensued when plaintiff’s counsel
withdrew and plaintiff sought, but was unable to secure,
alternate representation. And, no doubt, plaintiff’s
unfamiliarity with the federal rules governing discovery
(including her obligations under those rules) has contributed to
the ongoing delay.
According to defendants, in December of 2013, they
propounded interrogatories and requests for the production of
2 documents, seeking releases from plaintiff relating to financial
records, medical information, educational program applications,
and her efforts to find subsequent employment. In April,
plaintiff returned her interrogatory responses, but did not
provide any specific responses to defendants’ request for the
production of documents. Among other things, defendants pointed
out that plaintiff had not provided an executed authorization
that would allow them to obtain medical records from Dr. Michael
Sateia, who treated plaintiff at times relevant to this case.
Plaintiff also failed to provide an authorization for records
from the Electronic Residency Application Service (related to her
efforts to secure alternate employment), or an authorization from
one of her listed medical care providers, Dr. Dwaihy.
Before plaintiff’s counsel could address those shortcomings
in plaintiff’s responses, he withdrew from the case. And,
according to defendants, despite their repeated efforts over many
months to coax plaintiff into complying with her ongoing
discovery obligations, they have been unable to secure the
materials they say they need in order to properly defend this
case. In response to defendants’ most recent request that
plaintiff supplement her earlier (incomplete) discovery
responses, plaintiff stated that she had “nothing else to add as
far as my discovery responses” are concerned. E-mail from
3 Plaintiff to defense counsel dated November 13, 2014 (document
no. 48-6). Given that response, defendants felt constrained to
file the pending motion to compel.
Defendants seek to compel plaintiff to produce three
categories of materials and information: (1) signed
authorizations for the production of information from the
Electronic Residency Application Service (“ERAS”), Westchester
Medical Center, Dr. Dwaihy, and Dr. Sateia; (2) full and complete
responses to Interrogatories 2, 6, and 14 through 18; and (3)
complete responses to each of their requests for production.
I. Authorizations and Releases.
Of the four authorizations defendants seek, plaintiff has
now agreed to provide two: one for Dr. Sateia and one for
Westchester Medical Center. As for Dr. Dwaihy, plaintiff says
she has no knowledge of who he is, and says she never received
treatment from him. But, according to defendants, plaintiff’s
medical records from another treating physician identify Dr.
Dwaihy as the “referring physician.” And, in a section
describing the “reason for evaluation,” those records state that
plaintiff had been “referred by Dr. Dwaihy for evaluation and
advice” regarding a medical condition at issue in this case. Out
4 of concern for plaintiff’s privacy, defendants have not submitted
those medical records, but have offered to do so under seal.
On this record, defendants have shown that the medical files
of Dr. Dwaihy are relevant or, at a minimum, likely to lead to
the discovery of relevant information. Accordingly, plaintiff
shall produce the requested authorization for access to her
medical records with Dr. Dwaihy.
Finally, plaintiff asserts that she need not provide an
authorization to obtain her applications to medical residency
programs and related materials from ERAS. Although she does not
assert that those records are privileged, she argues that they
are not relevant because she has not used that system as part of
a job search for several years. On balance, however, defendants
have demonstrated that such information is relevant to this
proceeding. Accordingly, plaintiff shall produce the requested
authorization to obtain her records from ERAS.
II. Interrogatory Responses.
Next, defendants say that plaintiff’s responses to several
interrogatories are incomplete. Plaintiff, on the other hand,
says she has provided answers that are as complete as her memory
permits. Moreover, she says the answers to all of the questions
5 posed by defendants are contained in her medical records (copies
of which she says she does not have and cannot afford to obtain).
Having compelled plaintiff to produce the requested medical
releases, the court concludes that it is premature to require her
to give more comprehensive responses to the interrogatories
identified by defendants. After defendants have obtained and
reviewed all of plaintiff’s relevant medical records, they may,
at that point, renew their motion to compel to the extent there
remains a good faith basis to do so. Parenthetically, the court
notes that it expects defendants will be able to obtain much, if
not all, of the information they seek when they take plaintiff’s
deposition.
III. Requests For Production.
Finally, defendants complain that plaintiff has only
partially complied with their request for the production of
relevant documents.
That partial production included incomplete e-mail chains, and e-mails that refer to attachments that are not included in the production. It omitted e-mail and materials that the Plaintiff produced during the course of an EEOC investigation. It does not include communications with other residents. It was completely devoid of any residency application materials. The Plaintiff maintains a website or blog, involving communications with people about her case, but she has not provided any of those materials.
6 Defendants’ Memorandum (document no. 48) at 5. In response,
plaintiff says, “This is not my intention. I have a huge file to
go through. I am doing my best to do so. I was under the
impression that the Defendants have some of the information they
are requesting again.” Plaintiff’s Response (document no. 52).
at 4. She also says she believes she previously provided some
materials (e.g., e-mail attachments) to her former counsel. She
has not asserted that any of the requested documents are
privileged.
To be sure, some of the information defendants seek will be
contained in the soon-to-be acquired medical records. There are,
however, many documents to which defendants do not have access
(such as e-mails plaintiff sent to herself as reminders, diaries,
calendars entries, witness statements, and letters of inquiry
and/or applications to other medical residency programs).
Plainly, those documents are relevant and plaintiff must produce
them. That plaintiff “believes” she may have already produced
some of those materials to her former counsel, is not
particularly helpful. To the extent she no longer possesses such
documents, she may (and probably should) contact her former
counsel, seeking the return of those materials, so copies may be
provided to defendants.
7 While the task of responding to defendants’ discovery
requests may seem daunting, and although the “file” she maintains
on this case may be substantial, plaintiff has had ample
opportunity to review defendants’ requests and gather responsive
materials. It is time for her to produce those requested
documents.
Conclusions
For the foregoing reasons, as well as those set forth in
defendants’ memoranda, defendants’ motion to compel (document no.
48) is granted in part and denied (without prejudice) in part.
Accordingly:
1. On or before April 10, 2015, plaintiff shall provide written medical releases/authorizations for Dr. Sateia, Westchester Medical Center, Dr. Joseph Dwaihy, and the Electronic Residency Application Service (ERAS); and
2. On or before April 30, 2015, plaintiff shall provide responses to defendants’ Requests for Production.
To the extent defendants move to compel plaintiff to provide more
complete answers to certain identified interrogatories (nos. 2,
6, and 14 through 18), their motion is denied, without prejudice
to refiling once defendants have obtained and reviewed the
requested medical records.
8 SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
March 27, 2015
cc: Christyna Faulkner, pro se Christopher J. Pyles, Esq. Edward M. Kaplan, Esq.