Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Adkins v. TFI Family Services, Inc.

United States District Court, D. Kansas

June 22, 2017

DON ADKINS, ELLEN ADKINS, and DON ADKINS o/b/o T.A., a minor, Plaintiffs,
v.
TFI FAMILY SERVICES, INC., Defendants.

          MEMORANDUM AND ORDER

          GERALD L. RUSHFELT U.S. MAGISTRATE JUDGE.

         Plaintiffs bring this action against TFI Family Services, Inc. and six other Defendants, for various claims arising from an adoption. The case has involved significant discovery issues, and the Court previously appointed a special master to review documents based upon the large volume of discovery.[1] Beginning in February 2017, after communications between counsel about the discovery issues, the parties filed nine discovery motions. They include motions to compel, a motion to strike an expert, motions for protective orders, motions for extensions of time to meet discovery deadlines, and, more recently, a motion for sanctions.[2] These motions involve substantial, complex, and interrelated discovery disputes. With this Memorandum and Order the Court addresses the following: Defendants' Motion to Compel Plaintiffs to Supplement Their Rule 26 Disclosures and Their Answers to Defendants' Request for Production of Documents (ECF 124); Plaintiffs' Motion for Protective Order Pursuant to Fed.R.Civ.P. 26(c) and Motion to Quash or Condition Subpoenas Pursuant to Fed.R.Civ.P. 45(d)(3) (ECF 151); and Movant UHS of Peachford LP d/b/a Peachford Hospital's (“Peachford”) Motion to Quash Subpoena and/or for Protective Order (ECF 201). For the reasons explained in detail below, the Court grants in part and denies in part Plaintiffs' motion for protective order and to quash subpoenas, grants Peachford's motion for protective order and to quash subpoenas, and grants in part and denies in part Defendants' motion to compel.

         I. Procedural Background

         Although the parties dispute part of the procedural history, the Court summarizes below the relevant parts of the record. Plaintiffs served their Rule 26 initial disclosures on February 17, 2015. Relevant to these motions, Plaintiffs made the following disclosures:

• Plaintiffs provided the names of psychiatrists, psychologists, therapists, and social workers who have knowledge of the physical and mental health of the children at issue.
• Plaintiffs stated that employees and agents of the schools attended by the children at issue will have discoverable information, and these persons and entities would be specifically identified during discovery.
• Plaintiffs stated that other witnesses identified during discovery will have information relevant to Plaintiffs' claims and defenses.
• Plaintiffs produced documents, Bates numbered Adkins 1-1372.
• Plaintiffs identified business records obtained with subpoena and/or authorization from the witnesses and entities disclosed in paragraph (i) as having information that Plaintiffs may use to support their claims or defenses.
• Plaintiffs stated that they will supplement the following information that bears on their claims for damages: (a) past medical expenses; (b) future medical expenses;
(c) past lost wages; (d) future lost wages; (e) other past economic damages; and
(f) other future economic damages, including loss of services.[3]

         On June 19, 2015, Defendants served Plaintiffs with Defendants' First Requests for Production of Documents (“Requests”). On July 20, 2015, Plaintiffs filed their responses and objections to Defendants' Requests.[4] The following Requests, and responses and objections thereto, are relevant:

[Request No.] 8: Identify and produce all records of each child of the Plaintiffs from each treating physician, psychiatrist, counselor and therapist for each child of the Plaintiffs for the past 10 years.
OBJECTION: Plaintiffs object to the extent that this request seeks medical records and psychotherapy notes related to physical and/or mental health for people who are not making such claims in this case. Not reasonably calculated to lead to the discovery of admissible evidence. Overbroad temporally.
RESPONSE: Will be supplemented as to children whose physical and/or mental health is put at issue in this case.
[Request No.] 9: Identify and produce all documents related to all expenses paid by Plaintiffs, including medical, prescription, counseling, therapy, etc. which Plaintiffs claim as an element of damages in this case.
RESPONSE: Will be supplemented. Additionally, see such documents produced within Adkins 1 - 1372.
[Request No.] 10: Identify and produce all documents itemizing all damages claimed by Plaintiffs in this matter, including the factual basis for each item of damages claimed.
RESPONSE: Will be supplemented. Additionally, see such documents produced within Adkins 1 - 1372. Will be the subject of expert testimony.
[Request No.] 13: All medical records relating to any of the Plaintiffs' or their children's physical or mental condition for the past 10 years.
OBJECTION: Plaintiffs object to the extent that this request seeks medical records and psychotherapy notes related to physical and/or mental health for people who are not making such claims in this case. Not reasonably calculated to lead to the discovery of admissible evidence. Overbroad temporally.
RESPONSE: Will be supplemented as to children whose physical and/or mental health is put at issue in this case.
[Request No.] 14: All medical bills regarding Plaintiffs or their children from any physician, hospital, psychiatrist, psychologist, nurse, or any other type of health care provider for treatment of the alleged medical conditions set forth in Plaintiffs' Complaint.
OBJECTION: Plaintiffs object to the extent that this request seeks medical records and psychotherapy notes related to physical and/or mental health for people who are not making such claims in this case. Not reasonably calculated to lead to the discovery of admissible evidence. RESPONSE: Will be supplemented as to children whose physical and/or mental health is put at issue in this case.
[Request No.] 15: All photographs or videotapes which show the physical condition of the Plaintiffs or their children about which Plaintiffs complained in their Complaint and/or “day in the life” videotape you plan to use at trial. RESPONSE: Will be supplemented.
[Request No.] 20: All documents identified in Plaintiffs' Complaint, including all documents utilized by Plaintiffs to form the basis of the allegations made in their Complaint.
RESPONSE: See documents previously produced, produced by TFI, and produced by outside providers pursuant to subpoena. Will be supplemented as discovery progresses.[5]

         Defendants contend that Plaintiffs have not supplemented any of their initial disclosures or responses to Defendants' Requests. Plaintiffs maintain they have provided Defendants the identification of “every school, hospital, medical provider, mental health provider, and all others.”[6]

         Between January 13 and February 24, 2017, counsel communicated about these discovery issues. Defendants asked Plaintiffs for (1) additional information to supplement their initial disclosures; (2) medical records for the children whose mental and physical condition was at issue; and (3) information regarding treating physician Nancy Black.[7] On February 10, February 17, and March 2, 2017, Defendants issued subpoenas for documents to various non-party schools and medical and psychotherapy treatment providers.[8] Plaintiffs agreed to supplement their initial disclosures. They further agreed to provide medical and psychotherapy records or facilitate their collection, if Defendants would provide authorizations for their release.[9] On February 24, 2017, counsel for Plaintiffs sent opposing counsel an email which questioned whether Plaintiffs could be required to execute the authorizations for the medical and psychotherapy records at issue.

         Defendants claim they received “pushback from the boys' medical providers due to the absence of authorizations accompanying the subpoenas for records.”[10] Accordingly, Defendants filed the instant motion to compel on February 21, 2017. Plaintiffs responded and filed their motion for protective order on March 14, 2017. Peachford filed its motion to quash subpoena on April 12, 2017. Plaintiffs contend that, as of March 24, “many of the providers have already been responding and producing subpoenaed records.”[11]

         On March 21, 2017, the Court held a status conference and entertained arguments of counsel as to the various discovery motions. Defendants expressed concern that they could not meet their deadline to designate experts without the medical and psychotherapy records and other information relevant to Plaintiffs' damages. Plaintiffs responded that, because the authorizations Defendants submitted did not contain a provision required by Georgia privacy laws to require the records first to be released to Plaintiffs, they could not sign the authorizations. At the status conference the parties agreed to proceed to mediation, Defendants agreed to provide authorizations to include the provisions Plaintiffs requested, and Plaintiffs agreed to execute them. It remains unclear whether this has occurred.

         II. Plaintiffs' Motion for Protective Order and to Quash or Condition Subpoenas

         Plaintiffs move for a protective order against six depositions Defendants have scheduled.. Plaintiffs also move to quash various subpoenas served upon health care providers. Plaintiffs argue that Defendants scheduled the depositions in multiple locations and without regard to scheduling conflicts. They also contend the subpoenas must be quashed or modified, because they seek privileged information.

         Before addressing its merits, the Court notes the argument that Plaintiffs' motion for protective order is procedurally defective for failure to certify that the parties have conferred or attempted to confer with Defendants, as required by Fed.R.Civ.P. 26©(1). Plaintiffs provide the following certification in their motion for protective order:

On March 10, 2017, Plaintiffs sent Defendants a letter attempting to confer on the flurry of activity by Defendants and advising Defendants that the foregoing Motion for Protective Order would be filed to stay the depositions.
On March 13, 2017, Defendants sent Plaintiffs a letter notifying them that several health care providers had produced documents in conjunction with the subpoenas. Specifically, Georgia Behavioral Health, Pilgrim's Rest Baptist Association, Maxa Internal Medicine, Gwinnett Pediatrics and White Wilson Medical Center.[12]

         Pursuant to Fed.R.Civ.P. 26(c)(1), a motion for protective order “must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.” Additionally, D. Kan. Rule 37.2 provides the following:

The court will not entertain any motion to resolve a discovery dispute pursuant to Fed.R.Civ.P. 26 through 37, or a motion to quash or modify a subpoena pursuant to Fed.R.Civ.P. 45(c), unless the attorney for the moving party has conferred or has made reasonable effort to confer with opposing counsel concerning the matter in dispute prior to the filing of the motion. Every certification required by Fed.R.Civ.P. 26(c) and 37 and this rule related to the efforts of the parties to resolve discovery or disclosure disputes must describe with particularity the steps taken by all attorneys to resolve the issues in dispute.
A “reasonable effort to confer” means more than mailing or faxing a letter to the opposing party. It requires that the parties in good faith converse, confer, compare views, consult, and deliberate, or in good faith attempt to do so.[13]

         The Court agrees with Defendants that the certification of Plaintiffs is sparse. It simply mentions a letter they sent to Defendants about the depositions and the intent to file a responsive motion for protective order. Considering the totality of the circumstances, the Court is satisfied that the parties have sufficiently conferred about the issues raised in Plaintiffs' motion for protective order. Indeed, the Court has summarized above the extensive communications of the parties, concerning the interrelated discovery disputes at issue.[14] Although Plaintiffs' certification refers only to a letter Plaintiffs sent to Defendants three days before filing their motion for protective order, it is clear the parties were communicating extensively before this time about the scheduling of depositions and the scope of subpoenas to treatment providers.[15] The Court finds that Plaintiffs have adequately satisfied Fed.R.Civ.P. 26(c)(1) and D. Kan. Rule 37.2. It proceeds, therefore, to consider the merits of the motion.

         A. Depositions.

         Plaintiffs argue that Defendants scheduled the six depositions at issue at inconvenient times and places. Plaintiffs move for a protective to require Defendants to re-schedule the depositions at mutually convenient dates, times, and locations. Defendants respond that they attempted to communicate with Plaintiffs several times about the scheduling of depositions, but Plaintiffs did not respond. Defendants also note that Plaintiffs did not initially object to the depositions as scheduled.

         The Court finds good cause to grant Plaintiffs' motion for protective order as it relates to the six depositions at issue. Defendants noticed these depositions in quick succession to allow them to meet their expert deadline. As Plaintiffs argue, the proposed schedule would place a significant burden on them, because of the variations in time, date, and location. The Court has granted Defendants' motion to amend the scheduling order.[16] And, in so doing, it has extended the deadline for Defendants to disclose their experts. The parties should be able to schedule the proposed depositions with convenience for all parties. Accordingly, the Court grants Plaintiffs' motion for protective order as it relates to the scheduling of depositions. The parties are ordered to confer and attempt to schedule the proposed depositions at mutually convenient dates, times, and locations.

         B. Subpoenas

         Plaintiffs also move to quash the subpoenas Defendants served on various schools and medical and psychotherapy treatment providers. Fed.R.Civ.P. 45(d)(3)(A) sets forth the grounds upon which the Court must quash a subpoena. It provides, in pertinent part, that a court “shall quash or modify [a] subpoena if it . . . requires disclosure of privileged or other protected matter and no exception or waiver applies.”[17] “The party moving to quash a subpoena has the burden to demonstrate good cause and the privilege to be protected.”[18]

         The subpoenas at issue seek the medical, mental health, and educational records of Plaintiffs' children. Many of the entities served with subpoenas are either educational institutions or providers of psychotherapy or medical treatment in Georgia, but others are located in Florida.[19] Plaintiffs contend that the subpoenas seek information that is subject to the psychotherapist-patient privilege under Georgia law.[ ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.