eDiscovery Assistant

Ireland v. Bend Neurological Assocs., LLC

2017 WL 11571782 (D. Or. 2017)

May 8, 2017

Russo, Jolie A., United States Magistrate Judge

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Summary

The Court granted the defendants' motion for a protective order in part, staying discovery relating to interrogatories and requests for production until the pending Motions to Dismiss have been resolved. However, the Court denied the motion in regards to plaintiff's request for admission. The Court did not address the Electronically Stored Information.

STEPHEN IRELAND, Plaintiff,
v.
BEND NEUROLOGICAL ASSOCIATES LLC, an Oregon limited liability company; BEND MEMORIAL CLINIC, P.C., an Oregon professional corporation; MICHAEL BELL, M.D., P.C., an Oregon professional corporation; MICHAEL BELL M.D., an individual; DAVID T SCHLOESSER M.D., P.C., an Oregon professional corporation; DAVID SCHLOESSER M.D., an individual; LAURA J SCHABEN M.D., P.C., an Oregon professional corporation; LAURA SCHABEN M.D., an individual; FRANCENA ABENDROTH M.D., an individual; CRAIGAN GRIFFIN M.D., an individual; GARY BUCHHOLZ M.D., an individual; and GARY D BUCHHOLZ M.D., P.C., an Oregon professional corporation, Defendants

Case No. 6:16-cv-02054-JR

United States District Court, D. Oregon

Filed May 08, 2017

Russo, Jolie A., United States Magistrate Judge

ORDER

*1 Defendants Bend Memorial Clinic, P.C., Francena Abendroth, and Craigan Griffin (collectively “BMC”) move for a protective order pursuant to Fed. R. Civ. P. 26(c)(1) against pro se plaintiff Stephen Ireland's discovery requests. Defendants Bend Neurological Associates, LLC, Michael Bell, David Schloesser, Laura Schaben, and Gary Buchholz subsequently joined in BMC's motion. For the reasons set forth below, defendants' motion is granted in part and denied in part.

BACKGROUND

On October 26, 2016, plaintiff, a medical doctor, filed a Complaint in this Court asserting claims premised on defendants' alleged conspiracy to force him out of his neurology practice in Bend, Oregon. See generally Compl. (doc. 1). Specifically, plaintiff alleges defendants committed unlawful conspiracy in restraint of trade (in violation of 15 U.S.C. § 1), and tortious interference with contractual and business relationships (in violation of Oregon common law). Id. at ¶¶ 91-120.

On December 27, 2016, the parties filed their Joint Report pursuant to Fed. R. Civ. P. 26(f). In relevant part, the parties agreed to the following: initial disclosures were due January 27, 2017; factual discovery will end June 16, 2017; expert witness disclosures and reports are due July 28, 2017; rebuttal reports will be exchanged by August 17, 2017; expert discovery ends October 30, 2017; and dispositive motions must be filed by November 10, 2017.

As of January 30, 2017, all defendants had moved to dismiss plaintiff's Complaint, such that three Motions to Dismiss are currently pending before this Court. In early February 2017, plaintiff sought discovery from defendants. On March 2, 2017, BMC filed the present motion for protection against certain portions of plaintiff's requests for production, interrogatories, and requests for admissions.[1]

STANDARD OF REVIEW

*2 A court may issue a protective order against discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” upon a showing of good cause. Fed. R. Civ. P. 26(c)(1). The party seeking the protective order must establish “specific prejudice or harm will result if no protective order is granted.” Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210-1211 (9th Cir. 2002) (citations omitted). The court has “broad discretion ... to decide when a protective order is appropriate and what degree of protection is required.” Id. at 1211 (quoting Seattle Times Co. v. Rhinehardt, 467 U.S. 20, 36 (1984)). Generally, a discovery stay “is appropriate if the district court is certain the plaintiff will be unable to make out a viable claim for relief.” Ciuffitelli v. Deloitte & Touche LLP, 2016 WL 6963039, at *4 (D. Or. Nov. 28, 2016) (citing Little v. City of Seattle, 863 F.2d, 681, 685 (9th Cir. 1988); and Wood v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981)).

DISCUSSION

BMC seeks a protective order for three reasons. First, BMC asserts a discovery stay is appropriate because “there is no reasonable likelihood ... plaintiff can construct a viable claim from the events alleged in the [C]omplaint.” BMC's Mot. Prot. Order 6-7 (doc. 41). Second, BMC argues the Court should grant protection because plaintiff's discovery requests are “exceedingly broad” and vague. Id. at 3-6. Third, BMC contends plaintiff “repeatedly and specifically requests information protected by attorney-client privilege.” Id. at 3-4.

Conversely, plaintiff argues that his Complaint does, in fact, state plausible claims for relief. Pl.'s Resp. to Mot. Prot. Order 12-14 (doc. 47). Furthermore, plaintiff asserts that, while defendants are “free to object” to particular discovery requests as being overly broad, “any such specific objections do not provide an excuse to refuse to answer all interrogatories and requests.” Id. at 6. Plaintiff also maintains that none of his requests are barred by attorney-client privilege because he only sought discovery concerning communications between defendants and legal counsel for St. Charles Medical Center, and plaintiff “is not aware that St. Charles legal counsel ... ever represented any of the [d]efendants.” Id. at 6-7.

This District recently addressed the various rules for Fed. R. Civ. P. 26(c)(1) protective orders to stay discovery while a motion to dismiss is pending. See generally Ciuffitelli, 2016 WL 6963039. Accordingly, the Court applies those rules in the case at bar to the extent they are relevant.[2]

Here, BMC challenges plaintiff's Complaint on both legal and factual grounds. BMC's Mot. Dismiss 11-12, 15-18 (doc. 31). Although the Court has not fully analyzed BMC's Motion to Dismiss, it appears to be well-taken, at least in part. See Ciuffitelli, 2016 WL 6963039 at *6 (although the court should “compare in the particular case the arguments contained in the dispositive motion to the claims contained in the complaint,” it must nonetheless decline to formally “evaluate within the context of a discovery motion the merits of a potentially dispositive motion”). This fact supports staying discovery, as there is a “reasonable possibility” that the pending Motions to Dismiss, if granted, would affect the content of plaintiff's amended complaint, if any, and subsequent scope of discovery. Id. at *6-7; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007) (“the costs of modern federal antitrust litigation ... counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim”) (citation and internal quotations omitted).

*3 BMC's assertion that plaintiff's interrogatories and requests for production are overly broad is also well-taken. Plaintiff's requests for production encompass hundreds of e-mails and documents, the latter of which “would include all employment agreements in place with all employees at [BMC].” BMC's Mot. Prot. Order 3-6 (doc. 41). Plaintiff similarly requests a summary of “all communications” spanning two years between defendants and numerous other individuals. Id. at 4; see also BMC's Mot. Prot. Order Ex. 1, at 3-4 (doc. 41-1). The amount of information plaintiff seeks, given the timespan and number of parties involved, is costly and disproportionate to the needs of the case at this stage in the proceeding. See Fed. R. Civ. P. 1 (court may delay or limit discovery to promote the “inexpensive determination of every action and proceeding”); see also Fed. R. Civ. P. 26(b)(1) (parties may obtain discovery “proportional to the needs of the case”).

Moreover, BMC is correct that plaintiff is not entitled to information protected by attorney-client privilege. United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996). In eight interrogatories, plaintiff asks for summaries of communications between defendants and the St. Charles Medical Center-Bend's “legal counsel,” as well as communications between defendants and BMC's “legal counsel.” BMC's Mot. Prot. Order Ex. 1, at 4-6 (doc. 41-1). Although plaintiff maintains he was not aware these attorneys ever represented any of the defendants, this is facially untrue, as BMC is a party to this case. To the extent any other defendant has been represented by BMC's or St. Charles Medical Center-Bend's counsel, the attorney-client privilege protects those parties from supplying the requested communications. See Fed. R. Civ. P. 26(b)(1) (parties may only obtain discovery “regarding any nonprivileged matter”).[3]

The Court finds, however, that plaintiff's request for admission is not overly broad.[4] If, as BMC contends, Abendroth and Griffin do not have the information plaintiff seeks, they can simply deny the request for admission. Likewise, defendants can assert privilege to the extent that one actually exists.[5] Regardless, any response from defendants to request for admission 13 would be neither time-consuming nor costly.

Finally, staying discovery at this stage will in no way prejudice plaintiff. The discovery deadline is months away and may be extended pursuant to a motion by either party. Granting defendants the requested protection does not excuse them from responding to plaintiff's requests (to the extent they are not overly broad or otherwise privileged) if and when a viable Complaint is before the Court. See Mujica v. AirScan Inc., 771 F.3d 580, 593 (9th Cir. 2014) (“plaintiffs must satisfy the pleading requirements of Rule 8 before the discovery stage, not after it”) (emphasis in original).

*4 In sum, BMC established good cause for the Court to enter an order staying discovery relating to interrogatories and requests for production until the pending Motions to Dismiss have been resolved. If dismissal as a matter of law is not warranted, plaintiff will be afforded an opportunity to amend his Complaint and, by extension, his interrogatories and requests for production to narrow their scope and exclude privileged communications.

CONCLUSION

BMC's Motion for Protective Order (doc. 41) is GRANTED as to plaintiff's interrogatories and requests for production, and DENIED in all other respects. In addition, BMC's request for oral argument is denied as unnecessary.

DATED this 8th day of May 2017.

Footnotes

[1]

Defendants specifically object to plaintiff's interrogatories (i.e., interrogatories 2, 5, 6, 7, 8, 9, 10, 11, and 12) to the extent they seek: “all communications between you and any [BMC,] St. Charles Medical Center-Bend or St. Charles Health System administrator, executive, employee, agent, or legal counsel concerning, or in any way relating to, the Plaintiff ... from January 1, 2012 to the present”; “all communications between you and [defendants or any BMC,] St. Charles Medical Center-Bend or St. Charles Health System administrator, executive, employee, agent, or legal counsel concerning, or in any way relating to, Dr. Buchholz's withdrawal from Neurology of Bend [or] engagement with [BMC]”; and “all communications from January 1, 2012 to the present, between you and any [BMC,] St. Charles Medical Center-Bend or St. Charles Health System administrator, employee, agent, or legal counsel concerning, or in any way relating to, the St. Charles Medical Center-Bend emergency room and hospital call schedule from July 1, 2013.” BMC's Mot. Prot. Order Ex. 1, at 3-5 (doc. 41-1). Defendants also object to plaintiff's requests for production (i.e., requests 3, 4, and 9) pertaining to “[annual tax returns and] [m]onthly profit and loss statements from January 1, 2009 to the present for [all defendants]”; and “[a]ll operating or employment agreements, from January 1, 2009 to the present, to which any [d]efendant is, or has been, a party.” Id. at Ex. 2, at 7 (doc 41-2). Finally, defendants object to plaintiff's request for admission (i.e., request 13) seeking confirmation or denial concerning whether “hospitals are required to report disciplinary action leading to the loss or restriction of Medical Staff privileges to the National Practitioner Data Bank.” BMC's Mot. Prot. Order 6 (doc. 41).

[2]

Because seeking to stay discovery in light of a “potentially dispositive” motion is “not typical,” neither the Federal Rules of Civil Procedure nor the Ninth Circuit have articulated a controlling standard for Fed. R. Civ. P. 26 protective orders in this context. Ciuffitelli, 2016 WL 6963039 at *4 (collecting cases).

[3]

Plaintiff also broadly maintains that defendants failed to provide him with copies or descriptions of materials required by Fed. R. Civ. P. 26(a)(1)(A)(ii) as part of their initial disclosures. Pl.'s Resp. to Mot. Prot. Order 3 (doc. 47). Plaintiff, however, failed to furnish the Court with any detailed information regarding the information allegedly omitted. If plaintiff wishes to dispute defendants' alleged failure to provide initial disclosures, he must submit a separate motion as required by Local Rule 7-1.

[4]

Unlike with the interrogatories and requests for products, defendants devote only one short paragraph to plaintiff's requests for admission and do not append a copy thereof to their motion. Thus, as discussed herein, the only specific admission identified by BMC pertains to request 13. In other words, defendants failed to provide good cause to stay discovery generally in relation to plaintiff's requests for admission.

[5]

Because plaintiff is not seeking the underlying data itself, but instead a general admission or denial regarding whether hospitals report disciplinary action to the National Practitioner Data Bank, it is difficult to see how this request implicates privileged information. See BMC's Mot. Prot. Order 6 (doc. 41) (arguing that “[f]iling an NPDB ‘report’ is ... subject to various statutory privileges, including ORS 41.675,” which renders certain data provided to peer review bodies inadmissible).