Schmelzer v. IHC Health Servs., Inc.
Schmelzer v. IHC Health Servs., Inc.
2022 WL 16646456 (D. Utah 2022)
February 10, 2022
Bennett, Jared C., United States Magistrate Judge
Summary
The court found that Dr. Schmelzer's discovery requests were overbroad and not proportional to the needs of the case, and failed to comply with Rule 34's "reasonable particularity" requirement. The court imposed sanctions for the violation of Fed. R. Civ. P. 26(g) and ordered PCH to submit an affidavit and cost memorandum detailing the reasonable expenses incurred for responding to Dr. Schmelzer's motion to compel. Additionally, Rule 34(b)(2)(C) requires that parties must “describe with reasonable particularity” any ESI sought.
Additional Decisions
Rodney SCHMELZER, an individual, Plaintiff,
v.
IHC HEALTH SERVICES, INC., dba Primary Children's Hospital, Defendant
v.
IHC HEALTH SERVICES, INC., dba Primary Children's Hospital, Defendant
No. 2:19-cv-00965-TS-JCB
United States District Court, D. Utah
Signed February 10, 2022
Counsel
Caitlin E. McKelvie, Bradley M. Strassberg, Stephen T. Hester, Cohne Kinghorn PC, Salt Lake City, UT, for Plaintiff.James T. Burton, Michael A. Eixenberger, Kirton McConkie, Salt Lake City, UT, for Defendant.
Bennett, Jared C., United States Magistrate Judge
ORDER DENYING PLAINTIFF'S SHORT FORM MOTION TO COMPEL DISCOVERY
*1 Before the court is Plaintiff Dr. Rodney Schmelzer's (“Dr. Schmelzer”) motion to compel discovery.[1] Specifically, Dr. Schmelzer seeks an order compelling Defendant IHC Health Services, Inc., dba Primary Children's Hospital (“PCH”) to respond to Dr. Schmelzer's Interrogatory Nos. 17-22 and to provide all documents responsive to Request for Production Nos. 21-26. For the reasons set forth below, Dr. Schmelzer's motion is DENIED.
BACKGROUND
Dr. Schmelzer filed this action asserting that PCH violated the False Claims Act by retaliating against him for engaging in protected activity.[2] Seeking to discover information related to his allegations of disparate treatment, Dr. Schmelzer prepared and served Interrogatory Nos. 17-22 and corresponding Request for Production Nos. 21-26. These discovery requests extend to every member of PCH's medical staff since January 1, 2014 and seek all information that relates to or addresses behavioral concerns; clinical concerns; and Health Insurance Portability and Accountability Act (“HIPAA”) concerns.[3]
For example, with respect to “behavioral concerns,” Interrogatory No. 17 states: “For the period of January 1, 2014 through present, identify each member of PCH's medical staff for whom PCH received any formal or informal complaint, request, suggestion, data, information, or report alleging disruptive behavior or other behavioral concerns.”[4] Interrogatory No. 18 then seeks information identifying any “action taken in response” to all of the identified behavioral concerns:
For each member of PCH's medical staff identified in response to Interrogatory No. 17, identify all actions taken in response to those complaints, requests, suggestions, data, information, or other reports alleging disruptive behavior or other behavioral concerns, including, but not limited to, any investigations, including but not limited to those taken under Article XI of the Bylaws of the Medical Staff of PCH or the Policy on Discipline and Corrective Actions (Including the Fair Hearing Plan), or any other administrative investigation; any formal or informal counseling; and informal or formal corrective actions, including, but not limited to, those taken under Article XI of the Bylaws of the Medical Staff of PCH; and formal or informal administrative actions or the Policy on Discipline and Corrective Actions (Including the Fair Hearing Plan); any actions taken pursuant to Section 11.40 of the Bylaws of the Medical Staff or PCH; any voluntary practice plans; or any other disciplinary action.[5]
Interrogatory No. 19 is phrased similarly but addresses “clinical concerns.” It seeks information relating to complaints, concerns, or allegations regarding “the medical staff member's clinical competence or practice, including but not limited to, preoperative planning, adequacy of communication with medical staff members or patients regarding patient care or treatment, and/or surgical outcomes.”[6] Interrogatory No. 20 then asks PCH to identify “all actions taken in response” to the clinical complaints identified.[7] Regarding HIPAA concerns, Interrogatory No. 21 requests, in pertinent part, information regarding any “formal or informal complaint ... or report alleging inappropriate access to or use of patient records,”[8] and is followed by Interrogatory No. 22, asking PCH to identify “all actions taken in response” to all HIPAA concerns.[9]
*2 PCH objects to Dr. Schmelzer's discovery requests on the grounds that they are, among other things, overbroad and disproportionate to the needs of the case.[10] For the reasons stated below, the court agrees and finds that these discovery requests violated Fed. R. Civ. P. 26(g).
ANALYSIS
Dr. Schmelzer's discovery requests are irreparably overbroad. The Federal Rules of Civil Procedure permit Dr. Schmelzer to obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.”[11] “The 2015 amendments to the Rules were designed to stop counsel from relying on standard, overbroad requests and to also require tailoring based on the particular issues and circumstances in the case.”[12] “Indeed, amended Rule 1 emphasizes that the parties have a responsibility to construe and administer the rules to ensure the just, speedy and inexpensive resolution of every action.”[13] Additionally, Fed. R. Civ. P. 26(g) requires parties to “certify that every discovery request and response is in fact consistent with Rule 26(b)(1), not interposed for any improper purpose, and not unreasonable or unduly burdensome.[14] Both the requesting party and the responding party “are expected to act in accordance with both the letter and intent of the amended Rules.”[15] Applying these principles here, the court finds that Dr. Schmelzer's discovery requests are: (1) overbroad by seeking information far beyond what is relevant to the claims and defenses in this action; and (2) not proportional to the needs of this case. Additionally, the court finds that Dr. Schmelzer's document requests fail to comply with Rule 34's “reasonable particularity” requirement.[16] Finally, the court finds that Dr. Schmelzer's discovery requests fail Rule 26(b) and Rule 34(b)’s requirements to the point that his requests violate Rule 26(g). Consequently, the court imposes sanctions for that violation. Each issue is discussed below.
1. Dr. Schmelzer's Requests are Overbroad because They Seek Information Far Beyond What is Relevant to the Claims and Defenses in this Action
Dr. Schmelzer's discovery requests go far beyond what is relevant to the claims and defenses in this action. To determine whether evidence is relevant for the purpose of discovery, courts must look to the claims and defenses asserted in the pleadings.[17] In this case, Dr. Schmelzer alleges that PCH violated the False Claims Act when it retaliated against him for engaging in protected activity. The parties do not dispute that McDonnell Douglas Corp.[18] provides the relevant legal framework.[19] Under this framework, once the plaintiff has established a prima facie case of retaliation and the defendant has articulated a legitimate, nonretaliatory reason for taking the adverse action, the burden then falls again on the plaintiff to show the “explanation to be pretext for retaliation.”[20] One of the ways a plaintiff can “show pretext on a theory of disparate treatment [is] by providing evidence that he was treated differently from other similarly-situated, nonprotected employees who violated work rules of comparable seriousness.”[21]
*3 To be similarly situated for purposes of establishing pretext, the United States Court of Appeals for the Tenth Circuit has instructed that the individuals being compared must be “similarly situated ... in all relevant respects.”[22] “Similarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline.”[23] In determining whether employees are similarly situated the Tenth Circuit has also instructed courts to “compare the relevant employment circumstances, such as work history and company policies applicable to the plaintiff and the intended comparable employees.”[24] In the context of medicine, courts have noted that physicians have varying responsibilities and perform different procedures.[25] Accordingly, in determining whether physicians are similarly situated, courts have considered a variety of factors including experience, specialized areas of practice, education, and qualifications.[26] The second part of showing pretext based on a theory of disparate treatment, as stated previously, requires a plaintiff to show that similarly situated employees violated work rules of “comparable seriousness.”[27] In order to show that offenses were of comparable seriousness, both the quality and quantity of the offenses must be similar.[28]
In this case, Dr. Schmelzer's discovery requests extend far beyond the information relevant to his sole claim of retaliation. Although the precise language varies between the different document requests, they generally and broadly seek “[a]ll documents, including correspondence of any kind, related to, created, reviewed, or maintained regarding any formal or informal complaints, requests, suggestions, data, information or reports alleging:” (1) “disruptive behavior or other behavioral concerns made against a member of PCH's medical staff,” (2) “concerns regarding [a] medical staff member's clinical competence or practice,” or (3) “inappropriate access to or use of patient records made against a member of PCH's medical staff during the period of January 1, 2014 through present.”[29]
Dr. Schmelzer's broadly worded requests are not tailored to the particular issues and circumstances in this case and are inconsistent with the letter and intent of the 2015 amendments to the Federal Rules of Civil Procedure. First, Dr. Schmelzer makes no attempt to limit the scope of the requested information to physicians who might be somewhat similarly situated. Dr. Schmelzer is a highly trained “craniofacial plastic surgeon,” who specializes in “cleft lip and palate plastic reconstructive surgery on children,”[30] and was a member of the PCH medical staff for approximately eight years.[31] His discovery requests, however, are all encompassing and seek information regarding “all members of PCH's medical staff.” They include all physicians and dentists who currently have privileges at PCH, or who have had privileges at PCH at any time during the past eight years, regardless of their particular practice, specialty, responsibilities at PCH, experience, education, or qualifications. Second, Dr. Schmelzer's requests are overbroad insofar as they make no attempt to limit the requested information to physicians who violated work rules of “comparable seriousness.” Dr. Schmelzer's broadly worded requests seek information for all members of the medical staff for all behavioral, clinical, or HIPAA issues or concerns, despite the frequency, volume, or severity of a staff member's issue(s).
*4 Dr. Schmelzer argues, however, that “all members of PCH's medical staff” are similarly situated because they are “subject to the same decision-making process under the Bylaws and the same decision-making groups provided at the various steps of the bylaws.”[32] The court is not persuaded. First, as PCH points out, to adopt this argument would be akin to finding that every employee in a large corporation is similarly situated because they share the same executive leadership and employee handbook.[33] Such a standard would effectively eliminate any meaning behind a “similarly situated” standard of comparison. Second, in this case, the medical providers at PCH are not necessarily subject to the “same decision-making groups.” Although “absolute congruence” is not necessary, courts generally require some overlap “among decision maker groups for employees to be similarly situated.”[34] This is because “different supervisors may simply discipline employees with differing severity across the board.”[35] Without some overlap among the decision-making group, retaliatory motive cannot be inferred, and a particular group's decision would have no relevancy in terms of tending to show disparate treatment.[36] In this case, although PCH's Bylaws provide for a disciplinary process that is relatively constant or the same, the individuals involved in that process are not.[37]
2. Dr. Schmelzer's Requests are Not Proportional to the Needs of this Case
Even if this court assumes that Dr. Schmelzer's requests were relevant to the claims and defenses in this action, he fails to show that all that he has requested is proportional to the needs of the case. In making a proportionality determination, Rule 26 requires the court to consider, “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.”[38] Applying these factors, the court finds that Dr. Schmelzer's broad requests are not proportional to the needs of this case. In particular, the court finds that the significant burden imposed by Dr. Schmelzer's all-encompassing discovery requests outweighs their likely benefit. In addition to the shortcomings identified above, numerous “medical staff” have had privileges at PCH since 2014 and there is no single centralized database that is used to collect and store the type of peer-review material that Dr. Schmelzer is seeking.[39] Thus, as a practical matter, where Dr. Schmelzer's discovery requests encompass all behavioral, clinical, or HIPAA complaints that relate to any medical staff member since 2014, the time and expense of searching for and reviewing all such materials would be excessive, unduly burdensome, and not proportional to the needs of this case.[40]
3. Dr. Schmelzer's Document Requests Fail Rule 34’s Reasonable Particularity Requirement
Besides failing to comply with Rule 26(b)’s relevance and proportionality requirements, Dr. Schmelzer's document requests also fail to comply with Rule 34’s reasonable particularity requirement. Since the 1970 amendments to Rule 34, parties have been required to draft document requests by describing “with reasonable particularity each item or category of items to be inspected.”[41] This reasonable particularity requirement should cause counsel to think at least twice about issuing a document request for “all documents” that include communications “related to” and “regarding any” of a long series of items. The Tenth Circuit, among many other courts, have put counsel on notice that serving such broad requests fails Rule 34’s “reasonable particularity” requirement.
*5 In Regan-Touhy v. Walgreen Co.,[42] the plaintiff claimed that an employee at the defendant corporation used her position within the company to access the plaintiff's medical records and then provided those records to the plaintiff's ex-husband among others.[43] The plaintiff served document requests upon Walgreens for a copy of the offending employee's entire personnel record, all communications between Walgreen's and the employee, and all documents that mentioned or related in any way to the employee.[44] After Walgreens refused to comply to the extent the plaintiff desired, the plaintiff filed a motion to compel, which the district court denied.[45] The Tenth Circuit affirmed the district court's ruling because the request for “all communications” was neither narrowly tailored nor focused on whether Walgreen's disciplined its employee for disclosing the plaintiff's condition.[46] In reaching this conclusion, the court reasoned:
Under our rules, parties to civil litigation are given broad discovery privileges. But with those privileges come certain modest obligations, one of which is the duty to state discovery requests with “reasonable particularity.” Fed.R.Civ.P. 34(b)(1)(A). All-encompassing demands of this kind take little account of that responsibility. Though what qualifies as “reasonabl[y] particular” surely depends at least in part on the circumstances of each case, a discovery request should be sufficiently definite and limited in scope that it can be said “to apprise a person of ordinary intelligence what documents are required and [to enable] the court ... to ascertain whether the requested documents have been produced.”[47]
Indeed, as Winston Churchill once stated in the House of Commons, “Where there is great power there is great responsibility.” And, where, as here, the Federal Rules of Civil Procedure vest a requesting party with the power to summon vast amounts of information from another party at potentially great expense, those same rules impose the responsibility upon that requesting party to describe the information it seeks with “reasonable particularity.” And “[a]ll-encompassing demands that do not allow a reasonable person to ascertain which documents are required do not meet the particularity standard of Rule 34(b)(1)(A).”[48]
The sheer breadth of the words that Dr. Schmelzer uses in all his document requests fail to meet the “reasonable particularity” standard. Dr. Schmelzer seeks “all documents” that include “correspondence of any kind,” that is “related to” or “regarding any” of a series of listed items. On their face, Dr. Schmelzer's document requests potentially sweep in an astounding amount of paper documents, voice mail messages, texts, and emails that may “relate to” or “regard” his requested topics but have nothing to do with the claims and defenses in this action. The burden created by undisciplined requests such as these is precisely what the “reasonable particularity” requirement was designed to protect against. The breadth of these requests is irreparable, and this court refuses to redefine them. Consequently, the court denies Dr. Schmelzer's motion to compel any response to his document requests at issue for their failure to meet Rule 34’s “reasonable particularity” requirement.
4. Dr. Schmelzer's Discovery Requests Violate Rule 26(g) and Merit Sanctions
Given the foregoing, Dr. Schmelzer's discovery requests violate Rule 26(g). “ ‘Rule 26(g) imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through Rule 37’ ” and “ ‘obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.’ ”[49] By requiring a requesting attorney to sign every discovery request,[50] Rule 26(g) makes the attorney's signature a certification that every discovery request is, among other things, neither “unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”[51] “If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer .... The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.”[52] Thus, where, as here, the court has determined that Dr. Schmelzer's requests are unreasonable, the court “must” impose an appropriate sanction unless Dr. Schmelzer's requests were “substantially justified.”[53]
*6 The above-described problems with Dr. Schmelzer's discovery requests are not substantially justified. Indeed, the cases condemning the use of the omnibus terms and broad categories of information that are rampant in Dr. Schmelzer's discovery requests are legion.[54] But “[d]espite the requirements of [Rule 26(g)] ... the reality appears to be that with respect to certain discovery, principally interrogatories and document production requests, lawyers customarily serve requests that are far broader, more redundant and burdensome than necessary to obtain sufficient facts to enable them to resolve the case through motion, settlement or trial.”[55] The tactic of issuing interrogatories and document requests that unreasonably ask a responding party to identify or produce nearly every document in its system in hopes to later negotiate a more reasonable and narrow set of requests is a waste of time and money between the parties. Additionally, such tactics unnecessarily clog the courts with far too many discovery disputes that never would have been brought—or would be narrower in scope—had the requesting party simply followed Rule 34’s requirement to describe the requested documents with “reasonable particularity” or abided by Rule 26(g)’s certification parameters.
To argue that a requesting party must ask for the universe to obtain a mere nugget of discovery from its recalcitrant opposition is simply wrong. To the extent such an argument had any legitimacy in the past, such legitimacy died on December 1, 2015, with the amendments to Rule 34.[56] “The 2015 amendments to the Rules were designed to stop counsel from relying on standard, overbroad requests and to also require tailoring on the particular issues and circumstances in the case.”[57] As to document requests, for example, this tailoring is now required because the 2015 amendments to Rule 34 preclude responding parties from hiding behind the smoke and mirrors of making numerous boilerplate objections and then producing documents “subject to” myriad objections, which used to leave the requesting party confused about whether additional documents were available.[58] Now, if a responding party objects to a document request, Rule 34 requires the objector to state which documents were withheld because of the objection.[59] Thus, the requesting party and the court have the information they need to determine whether all the responsive documents were produced and, if not, why not. Given these changes to Rule 34, the tactic of requesting the universe does not increase the likelihood of receiving a useful response. Instead, asking for the universe all but guarantees that no response will be forthcoming because such requests are likely to draw objections that a court will sustain. And where, as here, fact discovery has long ended, the sustaining of those objections means that the materials that could have been obtained had the requests been reasonable are now out of reach.
*7 Because Dr. Schmelzer's discovery requests were not substantially justified, Rule 26(g) requires this court to “impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.”[60] Here, the court imposes expenses, including attorney fees, upon the attorney of record (which includes his/her law firm) who signed these overbroad discovery requests. The expenses and attorney's fees are limited to the preparation and filing of ECF No. 89. To properly determine the amount of reasonable expenses and attorney fees that PCH shall receive, PCH shall, within fourteen days of the date of this Memorandum Decision and Order, submit to Dr. Schmelzer's counsel an affidavit and cost memorandum detailing the reasonable expenses, including attorney fees, it incurred for responding to Dr. Schmelzer's short form motion to compel. The parties shall have fourteen days thereafter to attempt to stipulate to the amount of the award. If the parties can stipulate to the amount, Dr. Schmelzer's counsel or his/her law firm shall pay the stipulated amount to PCH within fourteen days of the stipulation. If the parties are unable to stipulate to the amount, PCH shall promptly file its affidavit and cost memorandum with the court. Dr. Schmelzer will have seven days thereafter to file any response. Upon receipt of any such submissions, the court will determine the amount of the award of reasonable expenses.
ORDER
As detailed above, IT IS HEREBY ORDERED:
1. Dr. Schmelzer's short-form discovery motion to compel[61] is DENIED.
2. PCH is awarded reasonable expenses and attorney fees incurred in filing its written response to Dr. Schmelzer's short-form motion to compel.
IT IS SO ORDERED.
Footnotes
ECF No. 83 (SEALED) at 1. Although the court cites to a sealed brief in this order, none of the citations reveal any information that would be protected by the court's sealing rules.
ECF No. 2 at 1.
ECF No. 83-5 (SEALED) (Exhibit E, Defendant's Responses to Plaintiff's Second Set of Discovery Requests).
PCH also objects to the discovery requests on the basis that they seek “protected peer review materials regarding unrelated members of PCH's medical staff,” and if answered, “would have a chilling effect on the free and candid discussions necessary for effective peer review and also force PCH to unnecessarily violate its contractual obligations to the members of its medical staff.” ECF No. 83-5 (SEALED) at 3. PCH also asserts that the discovery requests seek information protected by the attorney-client privilege, the work-product doctrine, or a contractual privilege. Id. at 4.
Fed. R. Civ. P. 26(b)(1).
Michael Kors, L.L.C. v. Su Yan Ye, No. 1:18-cv-2684, 2019 WL 1517552, at *3 (S.D.N.Y. Apr. 8, 2019).
Id. at *2 (citing Fed. R. Civ. P. 1; Fed. R. Civ. P. 1 advisory committee's note to 2015 amendment).
Id. (concluding that “Defendant clearly did not comply with its discovery obligations under Rules 1, 26, and 34 when propounding the requests”).
Fed. R. Civ. P. 34(b)(1)(A).
See Kennington v. Lew, No. 1:10-cv-184, 2014 WL 657455, at *2 (D. Utah Feb. 20, 2014) (providing that discovery is limited by relevance and proportionality and must be tied to the pleadings); see also Smith v. Café Asia, 256 F.R.D. 247, 251 (D.D.C. 2009) (“Relevance is determined by looking at the elements of plaintiff's claims to see if the information would tend to support or detract from any of those elements.”).
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
ECF No. 83 (SEALED) at 4; ECF No. 89 at 2-3.
Gatti v. Granger Med. Clinic, P.C., 529 F. Supp. 3d 1242, 1252 (D. Utah 2021).
Kendrick v. Penske Transp. Servs. Inc., 220 F.3d 1220, 1232 (10th Cir. 2000).
McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006).
Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997).
See, e.g., Bastidas v. Good Samaritan Hosp., LP, 774 F. App'x 361, 363-64 (9th Cir. 2019) (finding that plaintiff failed to show he was similarly situated to other physicians because he had “not shown that all doctors had similar jobs, given the different types of surgeries involved (heart and gastric cancer)”).
See, e.g., Bernales v. Cty. of Cook, 37 F. App'x 792, 797 (7th Cir. 2002).
Kendrick, 220 F.3d at 1232.
Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1121 (10th Cir. 2007).
ECF No. 83-5 (SEALED) at 3-6 & 20-23.
ECF No. 2, ¶ 13.
ECF No. 83 (SEALED) at 5.
ECF No. 89 at 5-6.
Smothers v. Solvay Chemicals, Inc., 740 F.3d 530, 541 (10th Cir. 2014) (providing that there is “no clear rule as to how much overlap is needed among decision maker groups for employees to be similarly situated,” but finding that five of six decision makers was a sufficient overlap).
Piercy v. Maketa, 480 F.3d 1192, 1202 (10th Cir. 2007).
Macon v. United Parcel Serv., Inc., 743 F.3d 708, 715 (10th Cir. 2014).
ECF No. 91 (SEALED) at 7.
Fed. R. Civ. P. 26(b)(1).
ECF No. 89 at 16.
See, e.g., Finneman v. Delta Airlines, Inc., 2:19-cv-327, 2021 WL 2905628, at *2 (D. Utah Mar. 11, 2021) (“Because Plaintiff has not offered any additional reasons as to why information about employees who are not similarly situated to Plaintiff is proportional or relevant in proving or disproving her claims, Plaintiff's motion to compel responses to interrogatory requests in Nos. 3 and 9, as written, are denied.”)
Fed. R. Civ. P. 34(b)(1)(A). The “reasonable particularity” requirement was actually introduced into the Federal Rules of Civil Procedure in the 1946 Advisory Committee Notes’ citation to two United States Supreme Court cases that created the “reasonable particularity” standard for document requests: Consolidated Rendering Co. v. Vermont, 207 U.S. 541, 554 (1908) and Brown v. United States, 276 U.S. 134, 143 (1928) (rejecting challenge to subpoena because it specified “with reasonable particularity the subjects to which the documents called for relate” and the time period at issue).
526 F.3d 641 (10th Cir. 2008).
In re Milo's Kitchen Dog Treats Consol. Cases, 307 F.R.D. 177, 179 (W.D. Pa. 2015), supplemented, No. CIV.A. 12-1011, 2015 WL 2341220 (W.D. Pa. May 14, 2015).
High Point SARL v. Sprint Nextel Corp., No. 09-cv-2269, 2011 WL 4036424, at *11 (D. Kan. Sept. 12, 2011) (quoting Fed. R. Civ. P. 26(g) advisory committee's note (1983 amendments)).
Fed. R. Civ. P. 26(g)(1).
Fed. R. Civ. P. 26(g)(1)(B)(iii).
Fed. R. Civ. P. 26(g)(3) (emphasis added).
While noting what Rule 26(g) requires, the court also notes what Rule 26(g) does not require: an “opportunity to be heard” prior to imposing sanctions. Unlike Rule 37(a)(5), Rule 26(g) does not contain the requirement that a court provide “an opportunity to be heard” prior to imposing sanctions. This omission is significant to the court because “it is generally presumed that Congress acts intentionally and purposely when it includes particular language in one section of a statute but omits it in another.” Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338 (1994) (internal quotation marks omitted). The court relies on these statutory construction standards when interpreting the Federal Rules of Civil Procedure. Hillis v. Heineman, 626 F.3d 1014, 1017-18 (9th Cir. 2010) (“This same principle of statutory construction applies to interpreting the Federal Rules of Civil Procedure.”). If the drafters of Rule 26(g) intended to give a potentially sanctioned party an opportunity to be heard, they would have said so like they did in Rule 37(a)(5). Because Rule 26(g) is bereft of such a requirement, the court will not impose it here.
Here are just a few: Regan-Touhy, 526 F.3d at 649-50 (discussed above); In re Milo's Kitchen Dog Treats Consol. Cases, 307 F.R.D. at 179 (“All-encompassing demands that do not allow a reasonable person to ascertain which documents are required do not meet the particularity standard of Rule 34(b)(1)(A).”); Effyis, Inc. v. Kelly, No. 18-13391, 2020 WL 4915559, at *1-2 (E.D. Mich. Aug. 21, 2020) (affirming sanctions for Rule 26(g) violation for document requests that were broad enough to seek “everything under the sky”); Bottoms v. Liberty Life Assur. Co., No. 11-cv-1606, 2011 WL 6181423, at *5-6 (D. Colo. Dec. 13, 2011) (finding that party violated Rule 26(g) where interrogatories and document requests sought that defendant “identify and describe each and every document that explains Liberty Life's procedure for choosing medical and other experts to participate in reviewing claims;” and for the “complete personnel files” for each person “who was in any way involved in the handling, processing or denial of Plaintiff's claim for benefits”); Leisure Hosp., Inc. v. Hunt Props., Inc., No. 09-cv-272, 2010 WL 3522444, at *3 (N.D. Okla. Sept. 8, 2010) (“Such ‘omnibus’ phrases as ‘relating to,’ ‘referring to,’ or ‘concerning’ have been held objectionable unless whatever follows that phrase is clearly and narrowly defined.”); Moses v. Halstead, 236 F.R.D. 667, 672 (D. Kan. 2006) (finding that interrogatory or document request is overbroad if it (1) uses an omnibus term such as “relating to” or “concerning,” and (2) applies to a general category or broad range of information); Harry A. v. Duncan, 223 F.R.D. 536, 540 (D. Mont. 2004) (finding overly broad document requests seeking “any and all” documents related to “your education,” “pertaining to your current employment,” “sports or events in which you or any member of your family participated at any time from 1999-2003”); Aikens v. Deluxe Fin. Servs., Inc., 217 F.R.D. 533, 538 & n.23 (D. Kan.2003) (finding as overbroad requests using “the omnibus term ‘relating to’ or ‘regarding’ with respect to a general category or group of documents”); Mackey v. IBP, Inc., 167 F.R.D. 186, 197-98 (D. Kan. 1996) (stating that omnibus phrases “often require the answering party to engage in mental gymnastics to determine what information may or may not be remotely responsive”).
Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D.Md. 2008).
The court seriously questions whether this discovery approach was ever legitimate because all of the cases the court cites in footnote 54 delineating when a discovery request is overbroad actually precede the 2015 amendments to Rules 26, 33, and 34. But even if all of the pre-2015 cases were unable to convince a person that the “ask-for-the-universe” approach to discovery was at least “mostly dead,” there can be no doubt after the 2015 amendments that this approach is “all dead.” See The Princess Bride (Act III Communications 1987) (explaining through the character named “Miracle Max” the difference between “mostly dead” and “all dead”).
Michael Kors, LLC v. Su Yan Ye, No. 2:18-cv-2684, 2019 WL 1517552, at *3 (S.D.N.Y. April 8, 2019).
Fed. R. Civ. P. 34 advisory committee note to 2015 amendments.
Fed. R. Civ. P. 34(b)(2)(C).
Fed. R. Civ. P. 26(g)(3).
ECF No. 83 (SEALED).