Morrison v. State of Washington

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 MORRISON, Case No. 3:20-cv-6015-JHC 7 Plaintiff, v. ORDER ON MOTION TO COMPEL 8 DISCOVERY STATE OF WASHINGTON, et al., 9 Defendants. 10

11 This matter comes before the Court on plaintiff’s second motion to compel 12 discovery and request for sanctions. Dkt. 74. United States District Judge John H. Chun 13 referred this discovery motion to the undersigned Magistrate Judge. 28 U.S.C. § 14 636(b)(1)(A), United States District Court for the Western District of Washington MJR 15 1(j), 3, 6, 7, 9(a). The parties have complied with the meet-and-confer requirement of 16 Fed. R. Civ. P. 37(a)(2)(B). For the reasons set forth herein, plaintiff’s motion to compel 17 is denied in part and granted in part. 18 DISCUSSION 19 Pursuant to Fed. R. Civ. P. 37, a party may move for an order compelling a party 20 to appropriately respond to discovery when a party fails to produce documents or permit 21 inspection as required by Rule 34. Fed. R. Civ. P. 37(a)(3)(B)(iv). Rule 34 allows a party 22 to serve on another party a request for production within the scope of Rule 26(b). Fed. 23 R. Civ. P. 34(a). Rule 26(b)(1) states: 24 1 Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter 2 that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the 3 action, the amount in controversy, the parties’ relative access to the relevant information, the parties’ resources, the importance of the 4 discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this 5 scope of discovery need not be admissible in evidence to be discoverable.

6 Under Fed. R. Civ. P. 33, the purpose of interrogatories is to “limit and clarify the 7 issues for the parties in preparation for further trial proceedings.” Soria v. Oxnard Sch. 8 Dist. Bd of Trs., 488 F.2d 579, 587 (9th Cir. 1973). If the responding party objects, any 9 objection must be plain and specific, to allow the court to understand the specific 10 objectionable characteristic being asserted by the responding party. Davis v. Fendler, 11 650 F.2d 1154, 1160 (9th Cir. 1981). 12 According to Fed. R. Civ. P. 34, requests for production, including requests for 13 electronically stored information (ESI) and tangible things, must be responded to either 14 by “stat[ing] that inspection and related activities will be permitted as requested or 15 stat[ing] with specificity the grounds for objecting to the request, including the reasons.” 16 Fed. R. Civ. P. 34(b)(2)(C). If the producing party objects to part of a request, the 17 producing party is required to include in the objection, a statement that specifies which 18 part is being objected to, “and permit inspection of the rest.” Id. 19 A party is only required to produce documents and records within their 20 “possession, custody or control.” United States v. International Union of Petroleum & 21 Industrial Workers, 870 F.2d 1450, 1452 (9th Cir. 1989) (citing Fed. R. Civ. P. 34(a)). 22 The party seeking production of the document bears the burden of proving that the 23 opposing party has possession of the document or evidence requested. Id. Additionally, 24 1 the moving party bears the burden of showing that the discovery responses were 2 incomplete. Daiflon, Inc. v. Allied Chemical Corp., 534 F.2d 221, 227 (10th Cir. 1976). 3 A district court has broad discretion to grant or deny a motion to compel. See 4 Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Under Fed. R. Civ. P. 26(b)(2)(C),

5 the Court is required to limit the frequency or extent of discovery if the discovery 6 requested is “unreasonably cumulative or duplicative, or can be obtained from some 7 other source that is more convenient, less burdensome, or less expensive,” or if the 8 requesting party “has had ample opportunity to obtain the information by discovery in 9 the action,” or if the requesting party is seeking information that is outside of the scope 10 of discovery under Rule 26(b)(1). 11 I. Plaintiff’s Motion to Compel 12 Plaintiff’s motion requests an order compelling defendants Washington State 13 Department of Health (DOH) and Department of Social Health (DSHS) and Services to 14 produce the following:

15 A. From DOH 16 • Request for Production No. 10: Copies of any letters or requests for Protected 17 Health Information regarding the target of any DOH investigation submitted to 18 the target of the investigation’s personal health care providers in 2018. Dkt. 19 74 at 3. 20 • Interrogatory No. 3: Communications between DOH employees and DSHS 21 employees regarding plaintiff since 2018. Id. 22 • Interrogatory No. 5: Communications between DOH employees and 23 Washington State Patrol (WSP) employees regarding plaintiff since 2018. Id.

24 1 B. From DSHS 2 • Interrogatory No. 1: Identity of any employee of Western State Hospital 3 (WSH) that has reported any arrest to WSH Administration since 2011. Id. 4 • Interrogatory No. 9: Whether any patient care duties ordinarily performed

5 by plaintiff were assigned to any other employee or contractor from August 6 2018 to the present. Id. at 4. 7 • Interrogatory No. 12: Identity of the physician whom DSHS, Secretary 8 Cheryl Strange believed was stating there were problems at Western 9 State Hospital. Id. 10 • Interrogatory No. 15: Reasons and/or policies that required plaintiff to be 11 removed from his duties while he was investigated for failing to report his 12 arrest, and identifying the person who made the decision to restrict 13 plaintiff’s duties. Id. 14 • Interrogatory No. 16: Reasons and/or policies that required plaintiff to be

15 removed from his duties during the investigation of plaintiff for not 16 adhering to COVID protocols. Id. 17 Plaintiff also seeks responses to his requests for production and interrogatories 18 served on the individually named defendants, David Hold, Katherine Raymer, and 19 Daniel Ruiz Paredes. Id. 20 With respect to DOH’s response Interrogatory No. 5 and DSHS’s response to 21 Interrogatory No. 1, defendants have stated in their previous discovery responses that 22 they do not possess any responsive documents or information. Dkt. 76 at 3. Defendants 23 are only required to produce records within their “possession, custody or control,” and it

24 1 is plaintiff’s burden to prove defendants have possession of the information requested. 2 United States v. International Union of Petroleum & Industrial Workers, 870 F.2d 1450, 3 1452 (9th Cir. 1989) (citing Fed. R. Civ. P. 34(a)). 4 Plaintiff has not met this burden here. Plaintiff does not identify any basis for a

5 belief that any responsive, non-privileged, documents are being withheld. Thus, 6 plaintiff’s motion to compel with respect to DOH’s response to Interrogatory No. 5 and 7 DSHS’s response Interrogatory No. 1 is DENIED. 8 In response to plaintiff’s RFP No. 10 requesting that DOH produce copies of 9 letters or requests for Protected Health Information regarding the target of any DOH 10 investigation submitted to the target of the investigation’s personal health providers, 11 defendants argue that this request is unduly burdensome. Dkt. 76 at 3. DOH estimates 12 that it would take up to 480 hours to review between 1,800-2,000 cases from 2018 to 13 respond to plaintiff’s RFP. Id. Such review would cost the agency approximately 14 $15,300 to $17,500 to respond. However, it seems probable that DOH can rely on a

15 computer-generated review process to alleviate some of the burden. The amount of 16 time apparently required to review the cases is, in and of itself, not a sufficient reason to 17 deny plaintiff’s motion to compel. 18 Defendants also contend this request is not relevant to any of plaintiff’s causes of 19 action against DOH specifically. Id. The claims against DOH, i.e., Washington’s Criminal 20 Records Act and civil conspiracy, do not require plaintiff to show that DOH had a 21 “pattern and practice” of violating the rights of DOH investigatory targets. While 22 defendants are correct in stating that plaintiff are not required to show a “pattern and 23 practice” for those specific claims, plaintiff has demonstrated that the information

24 1 requested could be admissible for another purpose, such as proving intent or 2 knowledge. See generally, Fed.R.Evid. 404(b); see also, Woody v. Stapp, 146 Wn.App. 3 16, 22 (Wash. Ct. App. 2008) (To establish a claim for civil conspiracy, a plaintiff must 4 show (1) two or more people combined to accomplish an unlawful purpose, or combined

5 to accomplish a lawful purpose by unlawful means; and (2) ... an agreement to 6 accomplish the conspiracy.); see also RCW 10.9710 (Washington’s Criminal Records 7 Act). Because plaintiff has described ways in which the requested information pertains 8 to a matter relevant to a claim or defense, and Rule 26(b)(1) states a party is not 9 required to establish the information is admissible evidence, plaintiff’s motion to compel 10 a supplemental response to RFP No. 10 is GRANTED. 11 With respect to plaintiff’s Interrogatory 9 to DSHS, thus far, DSHS has provided 12 plaintiff with the names and email addresses of employees who covered for plaintiff 13 while he was placed on alternate assignments. See Dkt. 76 at 6. DSHS did not provide 14 home addresses for such employees, however. Plaintiff generally states in his motion

15 that he cannot serve non-parties with subpoenas without an address. In this case, the 16 employees mentioned work for DSHS, and plaintiff does not have home addresses for 17 these nonparties. The Court directs counsel and clients for DSHS to cooperate in this 18 discovery process by providing information on how DSHS will allow for service of 19 subpoenas on their employees. 20 DSHS further did not disclose the payroll for such employees. While 21 the salary information of nonparties may not constitute privileged information per se, it is 22 information that should be afforded protection to the extent possible. On the other hand, 23 such information may be relevant to the issue of damages, and plaintiff may require this

24 1 information as part of his case. The parties should therefore cooperate with one another 2 to facilitate exchange of this information in a manner that would provide relevant 3 information to plaintiff while protecting the privacy of nonparties. 4 DSHS should also cooperate in providing information on which doctors were

5 employees versus contractors. Thus, plaintiff’s motion to compel a supplemental 6 response to Interrogatory 9 is GRANTED. 7 In response to plaintiff Interrogatory No. 12 to DSHS requesting information on 8 former Secretary of State, Cheryl Strange’s beliefs, defendants state that Ms. Strange is 9 no longer Secretary of DSHS and is now the Secretary of Department of Corrections. 10 Dkt. 76 at 6. If plaintiff seeks specific information from Ms. Strange, he should follow the 11 discovery rules to take her deposition pursuant to Federal Rule of Civil Procedure 30. If 12 counsel for defendants is already in the process of scheduling this deposition, counsel 13 for plaintiff should coordinate. Thus, plaintiff’s motion to compel DSHS’s supplemental 14 response to Interrogatory No. 12 is DENIED.

15 With respect to plaintiff’s Interrogatory No. 3 to DOH (Dkt. 74 at 3) and 16 Interrogatories Nos. 15 and 16 to DSHS (Id.), defendants state they have responded in 17 full and provided documents in line with Federal Rule of Civil Procedure 33, which 18 provides that an answer to an interrogatory may be answered by specifying records. 19 Dkt. 76 at 4, 7. The records must be specified “in sufficient detail to permit the 20 interrogating party to locate and identify, as readily as the party served, the records from 21 which the answer may be obtained.” Fed. R. Civ. P. 33(c). 22 In response to each of these interrogatories, defendants indicated the location 23 within their production where plaintiff would be able to find the information requested.

24 1 Plaintiff, in his motion, states that defendants did not identify the person who ordered 2 plaintiff’s removal from his position; yet plaintiff did not request this information in his 3 interrogatory. 4 Nonetheless, defendants identified David Holt as the individual who assigned

5 plaintiff to home assignment during the investigation. Id. at 7. Defendants identified the 6 records for plaintiff with sufficient specificity. Thus, plaintiff’s motion to compel 7 supplemental responses with respect to DOH’s Interrogatory No. 3 and DSHS’s 8 Interrogatory Nos.15 and 16 is DENIED. 9 Finally, plaintiff seeks to compel discovery responses from the individual 10 defendants who have not responded to plaintiff’s supplemental requests because they 11 have a pending summary judgment motion based on qualified immunity. Dkts. 39, 43. 12 On November 17, 2022, the Honorable Judge Chun denied defendants’ motion for 13 summary judgment without prejudice to refiling after the close of discovery. Dkt. 107. 14 Defendants were informed that they could move for summary judgment again once

15 plaintiff has had reasonable opportunity to complete discovery and depose witnesses. 16 Id. at 4. 17 Therefore, plaintiff’s motion to compel discovery responses from the individual 18 defendants is GRANTED. As stated in the order denying defendants’ summary 19 judgment motion, the parties should notify the Court if they will need a modification to 20 the case schedule to accommodate additional discovery. Id. 21 CONCLUSION 22 For the foregoing reasons, plaintiff’s second motion to compel (Dkt. 74) is denied 23 in part and granted in part. Plaintiff’s motion to compel supplemental responses from

24 1 DOH is DENIED as to Interrogatory Nos. 4 and 5 and GRANTED as to Request for 2 Production No. 10. Plaintiff’s motion to compel supplemental responses from DSHS is 3 DENIED as to Interrogatory Nos. 1, 12, 15 and 16, and GRANTED as to Interrogatory 4 No. 9. Finally, plaintiff’s motion discovery responses from the individual defendants is

5 GRANTED in light of Judge Chun’s denial of the defendants’ motion for summary 6 judgment without prejudice. 7 8 9 Dated this 22nd day of November, 2022. 10 11 12 A

Theresa L. Fricke 13 United States Magistrate Judge

14 15 16 17 18 19 20 21 22 23 24