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Zhao v. United States of America Dep't of Homeland Security

November 17, 2010


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court is defendant's motion to compel or for an Order of preclusion and its motion to extend the time for defendant to complete its discovery (Docket No. 25). This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C), but without authority to hear and report upon dispositive motions (Docket No. 13, Sept. 11, 2006). Initially, responses to this motion were due by December 19, 2007, and replies by January 3, 2008 (Docket No. 27), but plaintiff did not respond to this motion (see Docket No. 28, Def. Atty. Aff.) and the Court granted the defense motion to compel (Docket No. 29) and amended the Scheduling Order (Docket Nos. 29, 30; cf. Docket No. 24).

Defendant then moved for summary judgment, for preclusion of evidence not produced, or, alternatively, for a further amended Scheduling Order (Docket No. 31). Plaintiff then cross-moved to excuse her default (Docket No. 38), arguing that new counsel, who had assumed the case, was not registered for the Court's Case Management/Electronic Case Filing system and was unaware of defendant's earlier motion to compel (id., Pl. Atty. Aff. ¶¶ 9-14, 21-24; see Docket No. 44, Text Order of Aug. 25, 2010). Chief Judge Skretny granted plaintiff's motion to excuse her default, denied defendant's motion for summary judgment or to preclude as moot, and granted defendant's motion to amend the Scheduling Order, referring the matter back to the undersigned to determine the schedule (id.). A status conference was held on September 22, 2010, before the undersigned to discuss setting the amended schedule and defendant's outstanding discovery issues (Docket No. 49; see also Docket Nos. 45, 46, 47).

Following that status conference, responses to defendant's original motion to compel were now due by October 13, 2010, with any reply due by October 27, 2010, and the matter deemed submitted (without oral argument) on October 27, 2010 (Docket No. 49). The Court stated its intention to enter a further Amended Scheduling Order upon the resolution of this motion to compel (id.).

Now before the Court is defendant's motion to compel (Docket No. 25*fn1 ), plaintiff's responses (Docket No. 50*fn2 ), and defendant's reply (Docket No. 52*fn3 ).


This is a Federal Torts Claims Act action for the alleged assault upon plaintiff, a Chinese national, by employees of the defendant U.S. Department of Homeland Security at a border crossing in this District. Now defendant moves for an Order compelling plaintiff to provide her initial disclosures under Federal Rule of Civil Procedure 26(a)(1), furnish verified and supplemental responses to defense Interrogatories, and furnish supplemental responses to defendant's first Notice to Produce. Alternatively, defendant moves for an Order of preclusion, both in general and specifically against plaintiff offering expert evidence. Defendant also moves for another extension of time to make its expert disclosure and to complete discovery. (Docket No. 25; Docket No. 26, Def. Atty. Aff. ¶ 38.)

Plaintiff responds that she supplied Rule 26(a)(1) disclosure (Docket No. 51, Pl. Atty. Aff. ¶ 4, Exs. A, B), in May 2008 (id. Ex. A) and supplemented it on September 2010 (id. Ex. B). She claims she responded to the Interrogatories and Notice to Produce (id. ¶¶ 5-6, Exs. C-H), taking efforts to obtain supplemental materials from plaintiff in China (id. ¶¶ 7-8, 16, Exs. B, E, H). She contends that she produced all relevant documents in her possession or in her American counsel's possession (id. ¶¶ 9-10), while her counsel attempts to obtain additional financial and employment information for her (id. ¶ 11). As for medical authorizations, plaintiff explained that she was willing to execute authorizations limited to a finite period of time, rather than the broader "end of litigation" period sought by defendant and limited to certain enumerated injuries (id. ¶ 20, Ex. J). Plaintiff submitted HIPAA authorizations for one-year and is willing, if necessary, to submit renewed authorizations beyond that period (id. ¶ 21). Plaintiff disputes whether her proposed authorizations allow defendant access to office notes, billing records; she claims that her authorizations extend to those records (id. ¶ 22, Ex. I). Plaintiff has provided her medical treatment records to defendant (id. ¶ 24).

Defendant contends that, since this Court's January 2008 Order compelling disclosure, plaintiff has provided incomplete responses to defense discovery, supplying "some, but not all, of the information sought in the discovery demands served in May 2007" (Docket No. 52, Def. Atty. Aff. ¶ 5), that plaintiff has resisted for the past three years to provide basic discovery in this case (id. ¶ 3). Defendant claims that plaintiff has not produced computation of past and future medical expenses, which is required initial disclosure under Rule 26(a)(1) (id. ¶ 26). As for the defense Notice to Produce, defendant contends that plaintiff has not produced various items referenced in her supplemental responses, including certain defense statement documents in plaintiff's possession (id. ¶ 6), and she had not furnished certain lien documents that she stated in her initial response she was gathering (id. ¶ 7; see Docket No. 51, Pl. Atty. Aff. Exs. E, F). Defendant also seeks plaintiff's diaries, now arguing that plaintiff's counsel has had three years to discuss the issue of the existence of such documents (Docket No. 52, Def. Atty. Aff. ¶¶ 10, 8-9). Defendant next objects to plaintiff"s limited medical authorizations (id. Ex. C; see Docket No. 51, Pl. Atty. Aff. Ex. I) rather than the authorizations defendant produced that would run for the course of this litigation (Docket No. 52, Def. Atty. Aff. ¶¶ 11-24, Ex. D (proposed authorization)). Defendant objects not only to the temporal limit on plaintiff's authorizations but also to the authorizations' limitations to the areas of her person that were injured (id. ¶¶ 14, 20). Plaintiff also proposes employment authorizations limited in a similar fashion (id. ¶ 25, Ex. E (example of plaintiff's proposed authorizations)), which defendant objects and argues (like the medical authorizations) should be unlimited (id., Ex. F (example of defendant's proposed authorization); see Docket No. 51, Pl. Atty. Aff. Ex. L). As for defense Interrogatories (see Docket No. 52, Def. Atty. Aff. ¶ 27, Ex. B), defendant argues that plaintiff still refuses to answer questions about her medical providers, her health history, or provide a list of her medical and hospital expenses (id. ¶¶ 28-29, 31 (Interrogatories Nos. 13, 14, 16); cf. Docket No. 51, Pl. Atty. Aff. Exs. C, D, E (plaintiff's Answers to Interrogatories and supplements)). Defendant now seeks full disclosure by November 30, 2010 (Docket No. 52, Def. Atty. Aff. at 10-11, Wherefore ¶).


I. Standards

A. Discovery and Motion to Compel

Discovery under the Federal Rules is intended to reveal relevant documents and testimony, but this process is supposed to occur with a minimum of judicial intervention. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure ยง 2288, at 655-65 (Civil 2d ed. 1994). Federal Rule of Civil Procedure 37(a) allows a party to apply to the Court for an order compelling discovery, with that motion including a certification (also required by this Court's Local Civil Rule 37) that the movant in good faith conferred or attempted to confer with the party not making the disclosure to secure that disclosure without court intervention. Fed. R. Civ. P. 37(a)(5)(A). If the motion is granted (or if disclosure is made after the motion is filed), the Court "must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees" with such expenses not ...

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