Armijo v. Costco Wholesale Warehouse, Inc.
Armijo v. Costco Wholesale Warehouse, Inc.
2021 WL 6425213 (D. Haw. 2021)
November 5, 2021

Trader, Rom A.,  United States Magistrate Judge

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Summary
The Court ordered the Plaintiff to provide the Defendant with a current residential address and telephone number for both his father and wife, a duly executed authorization to release medical records reviewed by and/or produced by Dr. Leonard Cupo concerning his evaluation of Plaintiff's work-related injury, and a list of all of Plaintiff's social media accounts and usernames from 2017 up through the present. The Court warned the Plaintiff that failure to comply with this order may result in sanctions.
JUSTIN WILLIAM ARMIJO, Plaintiff,
v.
COSTCO WHOLESALE WAREHOUSE, INC., ET AL., Defendants
CIV. NO. 19-00484 ACK-RT
United States District Court, D. Hawai‘i
Filed November 05, 2021

Counsel

Justin William Armijo, Kailua-Kona, HI, Pro Se.
Cecily D. M. Kaya, Eileen C. Zorc, Marr Jones & Wang, Honolulu, HI, for Defendant Costco Wholesale Warehouse, Inc.
Trader, Rom A., United States Magistrate Judge

ORDER REGARDING REQUEST FOR EXPEDITED DISCOVERY ASSISTANCE

*1 Plaintiff Justin William Armijo (“Plaintiff”) and Defendant Costco Wholesale Corporation, Inc. (“Defendant”) are before the Court on a request for LR37.1 expedited discovery assistance. On October 29, 2021, the Court ordered simultaneous letter briefing. ECF No. 87. On November 1, 2021, Plaintiff filed his letter brief. ECF No. 88. On November 2, 2021, Defendant filed their letter brief. ECF No. 90. On November 3, 2021, Defendant filed a supplemental brief. ECF No. 91.
 
A. Background
For the sake of brevity, the Court only sets forth those facts relating to the instant discovery dispute. The [Third] Amended Complaint (“TAC”), filed on August 2, 2021, is the operative complaint. ECF No. 72. Plaintiff seeks $350,000,000 in damages. Id. at PageID #: 316.
 
The TAC is disorganized and highly confusing. ECF No. 72. It rambles on for 65-pages yet fails to clearly identify claims. Id. In general, however, Plaintiff appears to allege multiple employment discrimination and negligence claims against Defendant. Id. Without attempting to comprehensively list every possible claim alleged in the TAC, Plaintiff appears to allege claims based upon the following:
1. Title VII race and sex related discrimination, hostile work environment, and retaliation claims;
2. Violation of the Fair Employment and Housing Act;
3. Violation of the Americans with Disability Act;
4. Violation of the California Fair Employment and Housing Act;
5. Violation of the Health Insurance Portability and Accountability Act;
6. Violation of the Family and Medical Leave Act;
7. Violation of the Rehabilitation Act;
8. Violation of the Occupational Safety and Health Administration rules;
9. Breach of contract;
10. Conspiracy;
11. Emotional distress;
12. Gross negligence; and
13. Negligent training and/or supervision of managers.
Id. (citations omitted).
 
On August 16, 2021, Defendant filed its Motion to Dismiss Plaintiff's Third Amended Complaint filed August 2, 2021 (“Motion to Dismiss”). ECF No. 73. A hearing on Defendant's Motion to Dismiss is scheduled for December 2, 2021 before District Judge Alan C. Kay. ECF No. 74.
 
On July 12, 2021, the Court filed the Amended Rule 16 Scheduling Order (“Scheduling Order”). ECF No. 70. The current trial date is April 12, 2022. Id. On September 29, 2021, with the agreement of the parties, the Court extended the dispositive motions deadline from October 14, 2021 to December 2, 2021, which is the same date the Motion to Dismiss is to be heard. ECF No. 79.
 
During the pendency of this case, the Court convened numerous telephone conferences to assist the parties primarily with scheduling and discovery issues. ECF Nos. 22, 32, 36, 43, 58, 69, 76, 78, 79, 85 & 87. On February 26, 2021, Defendant served its first discovery requests on Plaintiff. ECF Nos. 48-50. This included requests for admissions, production of documents, and answers to interrogatories. Id. Soon thereafter, issues arose concerning Plaintiff's failure to timely respond to these discovery requests as well as requests to schedule Plaintiff's deposition. ECF Nos. 58 & 69. Since April 21, 2021, the Court has convened at least seven (7) conferences to address ongoing discovery issues. ECF Nos. 58, 69, 76, 78, 79, 85 & 87.
 
*2 On October 29, 2021, in response to Defendant's request for expedited discovery assistance under LR37.1, the Court convened a conference to address several disputed discovery matters. ECF No. 87. After resolving some issues, the Court directed the parties to file simultaneous letter briefs concerning the remaining disputed discovery, which includes the following discovery sought by Defendant and objected to by Plaintiff:
1. Addresses for Plaintiff's witnesses, i.e., Plaintiff's spouse[1] and father;[2]
2. Use of Plaintiff's medical records generated by or in connection with and/or considered during an evaluation by Dr. Cupo; and
3. Plaintiff's social media accounts/information from 2017 up through the present relating to statements by Plaintiff concerning his disability claims and his mental/emotional condition.
Id.
 
On November 3, 2021, Defendant filed a supplemental letter brief informing the Court of Defendant's receipt of an authorization for release of medical records form bearing Plaintiff's signature (dated October 18, 2021). ECF No. 91.
 
B. Plaintiff's Letter Brief
Plaintiff timely filed his letter brief on November 1, 2021. ECF No. 88. Plaintiff's letter brief, however, addresses only two of the three disputed discovery items. While he generally objects to discovery of his medical records and social media accounts, his brief is completely silent as to discovery of addresses for his wife and his father. Id.
 
As to Defendant's request for Plaintiff's authorization to obtain medical records reviewed and/or produced by Dr. Leonard Cupo[3], Plaintiff states:
I Justin Armijo am totally opposed to allowing the use of any of Cupo's fraudulent IME's[4] from my Workman Comp case against Costco in my Discrimination, Harassment, Retaliation case (Civil No. 19-00484 ACK-RT Cupos's IME's are insurance company paid statements and are more aptly DME's or Defense Medical Exams because they are unobjectively written. It is impossible for Cupo to write an honest, unbiased impartial IME that is not prejudiced in favor of UNUM / Helmsan insurance company because his BOSS is the insurance company and his lies show they think for him.
Id. at PageID #: 520 (errors in original). Plaintiff further contends:
Dr. Leonard Cupo is a Paid Whore of Hawaii Workman Comp Insurance Co's, like UNUM or Helmsman OR HEMIC. He is a Hired Gun, a Pocket Henchman, an Enforcer. and he is the honest - injured / disabled workers worst nightmare. Since 1992 or for 21 years in Hawaii Cupo as done over 7,000 IME exams for the insurance co's, who have been his owners and puppet masters.
Id. at PageID #: 523 (errors in original). In essence, Plaintiff's sole argument is that Dr. Cupo is biased against him and biased for the Defendant and workers’ compensation insurance interests. Id. at PageID #: 520-525. As a result, Plaintiff argues that Dr. Cupo's medical reports or evaluations concerning Plaintiff's work-related injuries are completely unreliable and therefore, not discoverable. Id. Notably, nowhere in Plaintiff's brief does he mention, comment upon, or refute that he previously signed an authorization to release medical records relating to Dr. Cupo as represented in Defendant's supplemental brief.
 
*3 As to Plaintiff's social media accounts, Plaintiff claims as follows:
It is my clear understanding is that Ms. Zorc wants access to my Instagram, per her statement to the court, in a conference at the end of September because Costco wants to know what my emotional state is and what I have said about Costco on my Instagram even though they ignored all my medical treatment plans and my psychological treatment, and what I was doing with my time during the illegal leave of absence that Costco fraudulently created on me to justify them removing me from everything at Costco including my job.
Id. at PageID #: 525 (errors in original). Plaintiff contends that because of Defendant's actions, there is a “pending Unlawful[ ] Termination Complaint / Case (docket #012545) with the Department of Industrial Relations Wage Standards Division-State of Hawaii.” Id. at PageID #: 526. Plaintiff then argues that “[d]ue to this, I refuse to allow my Instagram to be accessed.” Id.
 
As stated earlier, Plaintiff's letter brief is completely silent as to Defendant's request for the addresses for Plaintiff's wife, Susan Armijo, and father, William Armijo. The Court will not speculate as to why Plaintiff failed to address this nor will it speculate what arguments Plaintiff may have offered.
 
C. Defendants’ Letter Briefs
Defendant timely filed its letter brief on November 2, 2021. ECF No. 90. Thereafter, on November 3, 2021, after receiving an authorization to release medical records form bearing Plaintiff's signature, Defendant filed a supplemental letter brief. ECF No. 91.
 
By way of background, Defendant provides the following chronology of events:
On February 26, 2021, Costco served written discovery (Interrogatories, Document Requests and Requests for Admissions) on Plaintiff. Plaintiff was granted multiple extensions and reminded by this Court of his obligation to respond. See, e.g., Minutes, filed 4/21/2[1], dkt. no. 58; Minutes, filed 7/9/21, dkt. no. 69. In early August to September 2021, Plaintiff produced some responsive information and records, but failed to produce records/information related to his social media activities, complete witness information, and complete medical records from January 1, 2016 to present date. On September 3, 2021, at the status conference, the parties discussed Plaintiff's failure to produce information related to his tax returns and social media activities. With regard to Plaintiff's social media information, the Court directed the parties to meet and confer to attempt to resolve this issue. See Minutes, filed 9/7/21, dkt. no. 76. On September 7, 2021, Plaintiff e-mailed counsel certain tax records, but did not provide any information regarding his social media activity.
Following the September 29, 2021 status conference, Costco attempted to contact Plaintiff via e-mail, phone, and U.S. Mail on September 29, October 6, 7, 11, 12, 14, 19, 22, 2021 to obtain, or to schedule to meet and confer to discuss Plaintiff's objections to producing, inter alia, witness addresses for service of subpoenas; an executed authorization form for release of medical records from Dr. Leonard Cupo; and information/ records related to his social media activities related to his claims (“Discovery Dispute”). On October 22, 2021, Costco requested letter briefing deadlines due to Plaintiff's failure to respond. The Court set a status conference for October 26, 2021. On October 25, 2021, Plaintiff e-mailed counsel stating he did not believe his further deposition was necessary (but did not respond to our responsive e-mail). Plaintiff then failed to appear at the October 26, 2021 status conference. Ms. Zorc e-mailed Plaintiff that same day to remind him of the October 28 deposition and ongoing Discovery Dispute, and to offer times to meet and confer. On October 27, 2021, Ms. Kaya called Plaintiff at phone numbers ending in -4609 and -8611 and left voice messages requesting a return call to discuss the Discovery Dispute issues and remind him of the October 28 deposition.
*4 On October 28, Plaintiff failed to appear at his deposition, even though the website link and notice had been provided. On October 29, 2021, this Court held a status conference and, inter alia, directed the parties to submit simultaneous letter briefing[.]
ECF No. 90: at PageID #: 527-528 (emphasis in original).
 
With regard to Defendant's request for authorization for medical records, Defendant contends that Plaintiff's “2016 work injury is at the heart of Plaintiff's allegations of disability discrimination.” Id. at PageID #: 530. Defendant contends that Plaintiff has squarely placed his medical condition and history at issue by virtue of his claims and factual allegations set forth in the TAC. Id. Specifically, the TAC alleges that Defendant violated Plaintiff's rights under the Americans with Disabilities Act. ECF No. 72 at PageID #: 320, 337 & 352.
 
Defendant also contends that its document production requests clearly included Dr. Cupo's medical records. ECF No. 90 at PageID #: 530. Specifically, Defendant sought records referring or relating to all of Plaintiff's claims or factual allegations (No.1), Plaintiff's ADA claim (No. 2), any communications with any individual who may be a fact witness in this case (No. 17), and any legal proceedings Plaintiff has ever been involved in, which would include his workers’ compensation claim (No. 23). Id. As such, Defendant contends it is entitled to medical records reviewed or prepared by Dr. Cupo as they are wholly responsive to Defendant's discovery requests. Id.
 
With regard to Plaintiff's social media records, Defendant contends its interrogatory and documents requests have been outstanding for almost nine months. Id. at PageID #: 528. Defendant specifically requested the following:
1. Interrogatory No. 14: Identify each and every social networking website and/or blog-hosting website (including, but not limited to, www.facebook.com, www.twitter.com, www.youtube.com, www.reddit.com, www.instagram.com, www.linkedin.com) on which you maintained a profile from January 2016 to the present, the time period during which you maintained a profile and your username for each website.
2. Document Request No. 29: All Documents reflecting, evidencing, referring or relating to any posting you have made to Facebook, Instagram, Twitter, or any blog, message board, social networking site, or other internet site or web log that in any way concerns or relates to the allegations in the Second Amended Complaint, your employment with Defendant, or the existence of the Subject Lawsuit.
3. Document Request No 30: All Documents reflecting, evidencing, referring or relating to any posting you have made to Facebook, Instagram, Twitter, or any blog, message board, social networking site, or other internet site or web log that in any way concerns or relates to Defendant.
Id. With the filing of the TAC, Defendant clarified that Document Request 29 above applied only to the allegations in the TAC. Id.
 
In response to Interrogatory No. 14, Plaintiff denied he had ever been on Facebook, YouTube, Linked-In or Twitter and he “envoke[d his] civil right to privacy!!” Id at PageID #: 529. (errors in original). As to Document Request 29, Plaintiff responded, “No such documents or social media exists.” Id. at PageID #: 528. As to Document Request No. 30, Plaintiff similarly responded, “No such documents of social media exists.” Id. (errors in original).
 
*5 Defendant contends the TAC alleges Plaintiff “suffered physically and psychologically,” had sustained “emotional pain, mental anguish, psychological pain, and suffering that went to the point of breaking up Plaintiff's marriage[,]” was “[s]eriously [i]njured” and “[s]eriously [d]isabled,” felt “humiliated” and “embarrassed as an employee,” had knee and hamstring injuries which have been “exacerbated by [Defendant's] failing to honor Plaintiffs [sic] work restrictions” and had “developed a complex regional pain syndrome which requires continual medical treatment and intervention[.]” ECF No. 72 at PageID #: 327, 355, 357, 359 & 369-370; ECF No. 90 at PageID #: 529-530. Defendant contends that Plaintiff's social media activity is relevant to these claims and discoverable. ECF No. 90 at PageID#: 530.
 
As for the addresses for Plaintiff's father, Bill Armijo, and Plaintiff's wife, Susan Armijo, Defendant contends such information is clearly discoverable as both individuals are likely witnesses in this case as Plaintiff has put his physical, mental and emotional wellbeing, and marriage at issue. Id. Plaintiff has refused to provide anything other than a P.O. Box for both individuals. Id. at PageID # 530-531. Defendant contends that both are likely to have information and records related to Plaintiff's income and business. Id. at PageID #: 531. Plaintiff and his father are reportedly business partners, for which Plaintiff's wife is the registered agent for service of process. Id.
 
Defendant contends that a physical address for both individuals is needed for service of process. Id. Pursuant to Fed. R. Civ. P. 26(a)(1)(A)(i), Defendant contends that Plaintiff is required to provide not only addresses, but telephone numbers for possible witnesses. Id. Defendant specifically seeks the telephone number for Plaintiff's wife. Id. Finally, Defendant contends that Plaintiff's refusal to previously provide this information is sanctionable. Id.
 
D. Discussion
Rule 26(b)(1) of the Federal Rules of Civil Procedure (“FRCP”) was amended on December 1, 2015. The amended rule defines the scope of permissible discovery as follows:
Parties may obtain discovery regarding any nonprivileged matter 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 action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden and expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1).
 
Thus, to be discoverable, information must first be “relevant to any party's claim or defense ...” Id. A matter is relevant if it “reasonably could lead to other matter that could bear on, any issue that may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted). District courts have broad discretion to determine relevancy for the purpose of granting or denying discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted).
 
The December 1, 2015 amendment to FRCP 26 also added proportionality as a prerequisite for obtaining discovery. That is, relevancy alone is insufficient to obtain discovery. When addressing proportionality, the Court considers “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
 
The Advisory Committee's Notes explain that “[r]estoring the proportionality calculation to Rule 26(b)(1) ... does not place on the party seeking discovery the burden of addressing all proportionality considerations. Nor is the change intended to permit the opposing party to refuse discovery simply by making a boilerplate objection that it is not proportional.” Fed. R. Civ. P. 26 advisory committee's notes to 2015 amendments. Rather, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Id. “[B]oth parties share the responsibility of explaining their positions regarding the proportionality factors.” Lopez v. United States, Case No. 15-CV-180-JAH (WVG), 2017 WL 1062581, at *5 (S.D. Cal. Mar. 21, 2017). Ultimately, “[t]he court's responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.” Fed. R. Civ. P. 26 advisory committee's notes to 2015 amendments.
 
*6 A party responding to a request for production of documents must “state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). “Where the responding party provides a boilerplate or generalized objection, the ‘objections are inadequate and tantamount to not making any objection at all.’ ” Herrera v. AllianceOne Receivable Mgmt., Inc., Civil No. 14-CV-1844-BTM (WVG), 2016 WL 1182751, at *3 (S.D. Cal. Mar. 28, 2016) (quoting Walker v. Lakewood Condo. Owners Ass'ns, 186 F.R.D. 584, 587 (C.D. Cal. 1999)).
 
Similarly, a party responding to a request for answers to interrogatories “must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). Failure to respond in a timely manner may constitute a waiver of all objections. See V5 Techs. v. Switch, Ltd., 334 F.R.D. 297, 305 (D. Nev. 2019); Lawman v. City of San Francisco, 159 Supp. 3d 1130, 1140-41 (N.D. Cal. 2016).
 
Parties are obligated to provide and entitled to receive, not only the addresses, but telephone numbers for each possible witness. “[A] party must, without awaiting a discovery request, provide to the other parties ... the name and, if known, the address and telephone number of each individual likely to have discoverable information[.]” Fed. R. Civ. P. 26(a)(1)(A)(i).
 
Here, it is clear that Defendant propounded the underlying discovery requests nearly nine months ago. ECF No. 90 at PageID #: 528. It is also clear that Plaintiff has failed to timely comply with his discovery obligations, necessitating numerous meet-and-conferrals with defense counsel, as well as numerous Court conferences to address ongoing discovery disputes. ECF Nos. 58, 69, 76, 78, 79, 85 and 87. While Plaintiff has every right to lodge proper objections to discovery requests with which he takes issue, absent an agreement between the parties or a ruling by the Court, he simply cannot refuse to respond.
 
Plaintiff brought the instant lawsuit, alleging numerous claims upon which he seeks damages of $350,000,000. ECF No. 72 at PageID #: 316. He claims he suffered work-related injuries and was discriminated against by Defendant. Id. Without question, Plaintiff has put his medical, physical, emotional, and mental condition at issue in this case. As such, his medical records, social media accounts and contact information for his wife and father are clearly discoverable.
 
That he thinks he may stonewall Defendant's legitimate discovery requests because he believes Dr. Cupo is biased or that his social media accounts are not relevant is completely unavailing. Further, his baseless refusal to provide the address and telephone numbers for both his father and wife is also untenable.
 
Based upon the letter briefs, the Court agrees with the arguments and authorities relied upon by Defendant. The Court finds each of the disputed discovery requests to be well within the scope of permissible discovery. Each seeks information that is relevant to the claims and defenses attending this litigation. After carefully considering the various factors under Fed. R. Civ. P. 26(b)(1), the Court further finds that Defendant's requests are proportional to the needs of the case.
 
*7 The Court cautions Plaintiff that he is required to provide truthful responses in discovery. The fact that that Plaintiff initially denied having any social media accounts and later expressly acknowledged having an Instagram account is unacceptable. ECF No. 90 at PageID #: 528-529; ECF No. 88 at PageID #: 525. This Court will not tolerate a cavalier attitude toward making less than truthful representations to the parties or the Court.
 
E. Conclusion
Based upon the record before the Court, Plaintiff's objections to the disputed discovery are OVERRULED. Defendant's request for an order compelling discovery from Plaintiff is GRANTED. Defendant's request for award of reasonable attorney's fees and costs associated with this discovery dispute is DENIED.
 
Plaintiff shall provide Defendant with the following by no later than 12:00 p.m. on November 9, 2021:
1. A current residential address for both William Armijo (father) and Susan Armijo (wife).
2. A current telephone number for Susan Armijo (wife).
3. A duly executed authorization to release medical records reviewed by and/or produced by Dr. Leonard Cupo concerning his evaluation of Plaintiff's work-related injury unless Defendant is already in receipt of same.
4. A list of all of Plaintiff's social media accounts and usernames from 2017 up through the present. Without any limitation, this explicitly includes Plaintiff's Instagram account.
 
Failure to comply with this order may result in imposition of sanctions authorized by law, to include but not limited to, the exclusion of evidence, dismissal of claims, dismissal of the case, adverse jury instructions, award of Defendant's reasonable attorney's fees and costs caused by the failure to comply and holding Plaintiff in contempt of court.
 
Upon filing of this Order, the Court will transmit a copy to Plaintiff by both U.S. Mail and to the following email addresses intricateties@yahoo.com, konadays@yahoo.com, and justinA808@yahoo.com.
 
IT IS SO ORDERED.

Footnotes
Susan Armijo is Plaintiff's wife. EFC No. 90 at PageID #: 530-531.
William Armijo is Plaintiff's father. Id.
Dr. Leonard Cupo is the medical professional who reportedly examined Plaintiff in connection with Plaintiff's workers’ compensation case concerning the injury described in the instant case. ECF No. 90 at PageID #: 527 & 530; ECF No. 88 at PageID #: 520-525.
“IME” is an abbreviation for “Independent Medical Examination.”