*1 Before the Court is Defendant's Motion for Sanctions, filed on June 5, 2021 (Doc. 62). Plaintiff filed a resistance. (Doc. 65.) Defendant filed a reply. (Doc. 66.) I held a hearing on August 5, 2021.

The nature of the case has been repeated many times in prior orders. Defendant now seeks sanctions against Plaintiff pursuant to Federal Rule of Civil Procedure 37. Defendant's instant motion comes on for review following the Court's previous order granting Defendant's Motion to Amend Answer. (Doc. 69 at 1.)

Defendant's Motion for Sanctions arises out of a discovery dispute involving Plaintiff's medical records. Defendant argues that Plaintiff failed to comply with the Court's order compelling discovery, even after the Court extended the discovery deadline, because Plaintiff did not provide Defendant all of her medical records from January 2010 to present. Defendant requested that Plaintiff provide Defendant with waivers so Defendant might obtain Plaintiff's medical records, thereby absolving Plaintiff of the discovery burden. Plaintiff refused to provide Defendant such waivers. Defendant asserts that, after a number of requests for Plaintiff to produce her medical records, Plaintiff still has failed to produce all of her medical records. Plaintiff responded and argues that she requested records from Plaintiff's healthcare providers “in September 2020 and then followed up with formal written requests as well as by phone and in writing to ensure that they produced all Plaintiff's records.” (Doc. 65 at 3.) Plaintiff further stated that she “even requested medical records from the providers who never treated or examined Plaintiff ....” (Id.) Defendant replied and avers that deposition testimony shows that Plaintiff has still failed to provide Defendant with every medical record in her history since January 2010. (Doc. 66 at 2.) For Plaintiff's alleged failure to comply with the Court's order compelling discovery, Defendant filed the instant motion.

Specifically, Defendant seeks two sanctions against Plaintiff under Federal Rule of Civil Procedure 37(b): (1) that the Court enter an order precluding Plaintiff from seeking emotional distress damages, and (2) that the Court award Defendant attorneys' fees and other reasonable expenses that Defendant incurred as a result of Plaintiff's alleged failure to comply. Plaintiff resists the motion and argues that she did not willfully violate the Court's orders, that sanctions are inappropriate because Defendant was not prejudiced, and that Defendant failed to comply with Local Rule 7(k) to meet and confer before filing its Motion for Sanctions. (Doc. 65 at 7-12.)

A. Whether Plaintiff's Prayer for Emotional Distress Damages May be Precluded

Defendant first seeks a court order under Federal Rule of Civil Procedure 37(b)(2)(A) precluding Plaintiff from collecting emotional distress damages in this case because Plaintiff failed to comply with the Court's discovery order.

Federal Rule of Civil Procedure 37(b)(2)(A) allows the court to sanction a party for its failure to obey a court discovery order where the action is pending. The sanctions may include:

Fed. R. Civ. P. 37(b)(2)(A)(i)-(vii). The Court may also resolve the motion for sanctions by re-opening discovery and allowing the parties additional time to take depositions and produce records “for the limited purpose of examining a witness on documents belatedly produced after the conclusion of that witness's deposition ....” Krueger v. Ameriprise Fin., Inc., No. CIV. 11-2781 SRN/JSM, 2014 WL 8108458, at *8 (D. Minn. July 7, 2014) (collecting cases).

As the Eighth Circuit stated, “[t]he opportunity to be heard is a litigant's most precious right and should sparingly be denied.” Chrysler Corp. v. Carey, 186 F.3d 1016, 1020 (8th Cir.1999) (citing Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir.1977)). Even so, sanctions resulting in dismissal under Rule 37 are appropriate where three factors are present: “(1) an order compelling discovery, (2) a willful violation of the order, and (3) prejudice.” Comstock v. UPS Ground Freight, Inc., 775 F.3d 990, 992 (8th Cir. 2014) (quoting Bergstrom v. Frascone, 744 F.3d 571, 576 (8th Cir. 2014)) (internal citation omitted). “[I]n this circuit, before dismissing a case under Rule 37(b)(2) the court must investigate whether a sanction less extreme than dismissal would suffice, unless the party's failure was deliberate or in bad faith.” Bergstrom, 744 F.3d at 576 (quoting Avionic Co. v. Gen. Dynamics Corp., 957 F.2d 555, 558 (8th Cir. 1992)). See also Denton v. Mr. Swiss of Mo., Inc., 564 F.2d 236, 240 (8th Cir. 1977) (“When a party's willfulness or bad faith is involved in failure to make discovery, the sanction of dismissal is proper.”); St. Paul Reinsurance Co. v. Com. Fin. Corp., 198 F.R.D. 508, 515 (N.D. Iowa 2000) (“[P]arties [have] an affirmative duty to conduct pretrial discovery in a responsible manner.”); Avionic Co., 957 F.2d at 559 (“In the context of Rule 37(b)(2) motions ‘prejudice’ exists if the failure to make discovery impairs the opponent's ability to determine the factual merits of the party's claim.”).

As I stated at the August 5, 2021 hearing, I do not believe sanctions are appropriate in this case. Plaintiff initially elected to obtain her own medical records, rather than provide waivers to Defendant. The record establishes that Plaintiff made reasonable efforts to obtain medical records from providers but could have been hampered by the pandemic. Perhaps Defendant would have been more dogged in pursuit of the records, but there is also some indication that some records Defendant seeks might not exist.

*3 Rather than award sanctions, I will require Plaintiff to provide waivers that will allow Defendant to make its own efforts to corral any stray records. I will also reopen discovery for the limited purpose as discussed below.

B. Whether Defendant Ought to be Awarded Attorneys' Fees and Other Reasonable Expenses

The Eighth Circuit succinctly stated the circumstances under which an award of attorneys' fees would be appropriate following a motion for sanctions under Federal Rule of Civil Procedure 37(b).

Comiskey v. JFTJ Corp., 989 F.2d 1007, 1011-12 (8th Cir. 1993).

Here, there is no basis to award attorneys' fees.

C. Re-opening discovery.

I conclude it is necessary to re-open discovery for the limited purpose of obtaining Plaintiff's additional medical records, if any, and conducting discovery related to those records. I directed the parties to meet and confer regarding the necessary remaining discovery and they submitted a status report. (Doc. 73.) I adopt their proposed scope of further discovery and set the following deadlines:

All other deadlines remain unchanged. The parties need to comply with this revised deadline and should consider the trial date to be firm. No future extensions of time will be granted unless there is a showing of exceptional circumstances.

Defendant's Motion for Sanctions (Doc. 62) is DENIED. The discovery deadlines are modified as set forth above.

IT IS SO ORDERED this 13th day of August, 2021.