United States District Court, D. Kansas
KATRINA A. WILLIAMS, Plaintiff,
v.
UNITED HEALTH GROUP, Defendant.
ORDER
James
P. O'Hara, U.S. Magistrate Judge.
Plaintiff
has filed a motion for leave to file a motion to compel (ECF
No. 104) related to defendant's discovery responses,
served on January 24, 2019. Because the deadlines in this
case are currently stayed by the court's February 26,
2019 order (ECF No. 87), the motion is denied without
prejudice. Plaintiff may refile a similar motion upon lifting
of the stay, though the court notes that she has not shown
excusable neglect and must comply with the local rules for
filing a motion out of time.
Background
Plaintiff
filed this employment discrimination case, alleging that
defendant created a hostile work environment through sexually
harassing comments and discriminatory behavior based on her
race, gender, color, and religion.[1] Plaintiff previously filed a
motion for continuance, followed by a motion for
clarification of the scheduling order, attributing her
present inability to litigate this case to her recovery from
a car accident.[2] She has represented to the court that she
is “not able to sustain the mental efforts long enough
to produce the requirements of this case” while she
recovers.[3] The court granted plaintiff's motion
to continue the deadlines in this case, vacated the
scheduling order, and stayed discovery on February 26,
2019.[4] The order states that “[w]ithout
limiting the parties' ability to conduct highly targeted
discovery provided they both agree, all discovery is stayed
until further notice of the court.”[5]
Plaintiff
now moves for leave to file a motion to compel related to
defendant's discovery responses. Plaintiff served
interrogatories on November 30, 2018.[6] Defendant served its answers
on January 24, 2019, [7] after the court granted an extension to
respond.[8]Under D. Kan. R. 37.1(b), plaintiff's
deadline for filing a motion to compel discovery was February
25, 2019.[9] Yet plaintiff did not file any motion
related to the discovery responses until May 1, 2019, over
nine weeks later.[10]
Discovery
is Stayed
The
court denies plaintiff's motion at this time because all
discovery is stayed. Whether to stay or otherwise limit
discovery is within the sound discretion of the
court.[11]The court has “the broad discretion
to control and place appropriate limits on discovery, ”
including the discretion to completely stay discovery until
some future event occurs.[12]Here, the court's order
stays all discovery until further notice of the
court.[13] While the order does allow for
“highly targeted discovery” during this time, it
requires that both parties agree to the
discovery.[14] That is not the case here. Plaintiff
served the discovery, defendant responded, and the deadline
for filing a motion to compel passed before the stay was
entered. The motion plaintiff seeks to file is a discovery
motion of the type contemplated by the stay. For this reason,
plaintiff's motion is denied.
Excusable
Neglect
Although
the court denies the motion at this time, if and when the
discovery stay is lifted, the parties will have the
opportunity to seek additional discovery. For that reason,
the court takes this opportunity to address separate
deficiencies in plaintiff's motion. Notwithstanding the
stay, plaintiff has not shown she is entitled to leave to
file a motion to compel out of time. Plaintiff acknowledges
that the deadline for filing a motion to compel has passed
and that she is filing out of time.[15] Extensions of time will
not be granted out of time, “except upon a showing of
excusable neglect, ” not, as plaintiff argues, upon a
showing of good cause.[16] Courts consider four factors to
determine excusable neglect: (1) reason for the delay,
including whether it was within the reasonable control of the
movant; (2) whether the movant acted in good faith; (3)
danger of prejudice to the nonmoving party; and (4) length of
the delay and its potential impact on judicial
proceedings.”[17] That should be the standard that
plaintiff addresses in any future motions for extensions
filed out of time.
To
date, plaintiff has not demonstrated compliance with the
local rules regarding motions to compel. She has not
addressed the scope of the requested motion to compel. As
defendants note, it is still unclear “exactly what
information [plaintiff] seeks to compel or which discovery
responses she may believe are
inadequate.”[18] Plaintiff argues only that her request
“is not a novelty in nature of request nor is it
unreasonable or burdensome, ” and that it is a
“request for production from
defendants.”[19] Further, D. Kan. R. 37.2 requires the
moving party to confer or make a reasonable effort to confer
in good faith with opposing counsel concerning the matter in
dispute before filing the motion. Specifically, the party
must certify its attempts and “describe with
particularity the steps taken by all attorneys to resolve the
issues in dispute.”[20] It appears that plaintiff has
not yet conferred with defendant about the information she
seeks, which is required before filing any motion to compel.
The
court recognizes that plaintiff has experienced an injury
related to her car accident, but her explanation that she
“just was not yet healed enough to communicate [her]
request efficiently until now”[21] is insufficient. Although
the court has made allowances for plaintiff, [22] including
staying discovery based on plaintiff's medical condition
and ongoing treatment, [23] she must comply with the federal and
local rules just as any litigant must.[24]
Pursuant
to ECF No. 87, the parties are required to confer and jointly
file a status report by June 3, 2019, outlining their
respective proposals for completing discovery and other
pretrial preparations. At that time, plaintiff is instructed
to provide a reasonably detailed explanation of her current
medical condition and whether it still prevents her from
commencing discovery.[25] The court will address the stay at
that time. In the event the court lifts the stay, if
plaintiff still intends to file a motion to compel, she must
raise the issue with defendant to confer in good faith. If
that is unsuccessful, plaintiff may file a renewed motion for
leave to file a motion to compel, certifying her attempts to
confer in good faith, after the stay is lifted and discovery
is commenced.
Production
of Personal Health Information (PHI)
Separately,
defendant notes in its response that it is unclear whether
plaintiff has fully complied with the court's April 2,
2019 order directing plaintiff to provide all copies,
including paper copies, of any documents containing PHI and
file an affidavit certifying her compliance.[26] The docket
reflects that plaintiff filed an affidavit on April 18, 2019,
representing that she had returned all relevant documents by
mail.[27] Defendant acknowledges that plaintiff
sent a UPS package to defendant, but represents that the
package contained only two pages of paper and that ...