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Pinkney v. Winn-Dixie Stores, Inc.

United States District Court, S.D. Georgia, Brunswick Division

March 6, 2015

LADONNA PINKNEY, Plaintiff,
v.
WINN-DIXIE STORES, INC., Defendant.

ORDER

R. STAN BAKER, Magistrate Judge.

This matter comes before the Court for the resolution of several motions filed by Defendant: a Motion to Compel Medical Records from Non-Party (Doc. 44), a Motion to Compel Witness Statements (Doc. 50), a Motion for Extension of Time to Obtain Additional Records in Response to Subpoenas (Doc. 51), and a Motion for Protective Order as to Subpoenas (Doc. 52). Plaintiff has filed Responses to all but the Motion to Compel Medical Records from Non-Party (Doc. 44). (Docs. 53-55.) For the reasons that follow, Defendant's unopposed Motion to Compel Medical Records from Non-Party (Doc. 44) is GRANTED, such that nonparty Southeast Georgia Physician Associates must produce the subpoenaed documents within ten (10) days of receiving service of this Order. Defendant's Motion to Compel Witness Statements (Doc. 50) is GRANTED IN PART and DENIED IN PART as follows: Plaintiff must produce, within ten (10) days of the date of this Order, a privilege log for the witness statements that Plaintiff has withheld on the basis of privilege or protection, but Plaintiff need not produce those statements themselves and is not prohibited from calling those witnesses at trial. Defendant's Motion for Extension of Time to Obtain Additional Records in Response to Subpoenas (Doc. 51) is GRANTED, and the Scheduling Order in this case is modified, as set forth herein, to extend the period of discovery until April 13, 2015. Finally, Defendant's Motion for Protective Order as to Subpoenas (Doc. 52) is DISMISSED as prematurely filed.

BACKGROUND

Plaintiff filed this slip-and-fall action against Defendant on March 20, 2014. (Doc. 1, Ex. A, p. 4.) Plaintiff alleges that her fall in Defendant's grocery store was caused by a leaking freezer cooler. (Id. at Ex. A, pp. 2-3.) Plaintiff contends that her fall resulted in permanent physical and mental injuries that require substantial medical treatment. (Id. at Ex. A, p. 3.) Based on these allegations, Plaintiff seeks compensation for her injuries as well as her past and future medical expenses, which Plaintiff alleges to have incurred from Southeast Georgia Health System, Southeast Georgia Radiology, Dr. Darrin A. Strickland, Summit Sports Medicine, and Georgia Emergency Associates. (Id. at Ex. A, p. 4.)

Plaintiff served Answers to Interrogatories on April 29, 2014, and Initial Disclosures on June 23, 2014, both of which added the following providers to this list: Southeastern OB/GYN, Brunswick Orthotics & Prosthetics, and Bone & Joint Institute of South Georgia. (Doc. 50, Ex. A, pp. 1, 6; Doc. 54, p. 2.) Plaintiff's Initial Disclosures also informed Defendant that her potential witnesses included "[a]ll current and former employees of Defendant" who were on duty at the store in question on the day of Plaintiff's fall, who had repaired coolers at that store, who had received training on incident reports at that store, or who had reported slipping on water at that store. (Doc. 50, Ex. A, pp. 2-3.) As discovery progressed, Defendant learned from other sources that Southeast Georgia Physician Associates and Key Health also were involved in Plaintiff's medical treatment and expenses, though the parties dispute at what point in the discovery period Defendant obtained this information. (See Doc. 51, p. 2; cf. Doc. 54, p. 3.)

On October 22, 2014, Defendant served a Second Request for Production of Documents asking Plaintiff to produce any witness statements she had obtained from Defendant's current and former employees. (Doc. 50, p. 2, Ex. B.) Plaintiff objected to Defendant's request "to the extent that [it] [sought] documents containing information that constitutes the work product or trial preparation materials of Plaintiff's attorneys or other representatives or reflect the mental impressions... of Plaintiff's attorneys or other representatives." (Id. at Ex. B, p. 2.) Defendant then asked Plaintiff to provide a privilege log for the witness statements withheld (id. at Ex. C, p. 1), which Defendant contends Plaintiff never provided. (Id. at p. 2.)

Defendant also served subpoenas on Plaintiff's medical providers, requesting that they produce all records relating to Plaintiff's medical treatment and bills. (See Doc. 44, p. 2; Doc. 51, p. 2.) On December 29, 2014, Southeast Georgia Health System responded to a subpoena dated December 1, 2014, stating that it could not disclose Plaintiff's medical records to Defendant without a signed authorization from Plaintiff, pursuant to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996) ("HIPAA"). (Doc. 44, Ex. A, pp. 1-3.) Defendant had asked Plaintiff to execute a HIPAA authorization for Southeast Georgia Health System (id. at Ex. B, p. 1), but Defendant maintains that Plaintiff ignored its requests (id. at p. 2). In addition to Southeast Georgia Health System, Defendant contends that it never received any records from Southeastern OB/GYN, Southeast Georgia Physician Associates, and Key Health in response to outstanding subpoenas. (Doc. 51, p. 2.)

Also on December 29, 2014, Plaintiff sent Defendant copies of subpoenas that were directed to Dr. Ralph Morales ("Dr. Morales") and his professional corporation, Southern Orthopaedics & Sports Medicine, P.C. ("Southern Orthopaedics"), whom Defendant retained to perform an independent medical examination of Plaintiff during the discovery period. (Doc. 52, p. 1, Ex. A.) The subpoenas requested certain medical records and were not signed. (Id. at Ex. A.) According to Defendant, the requests were unduly burdensome or outside the scope of discovery. (Id. at p. 5.)

Seeking the Court's resolution of these outstanding discovery matters, Defendant filed the instant Motions before the February 12, 2015 close of discovery. (See Docs. 44, 50-52.) Specifically, Defendant filed a Motion to Compel Medical Records from Non-Party on January 16, 2015, requesting a Court Order that would enable Southeast Georgia Health System to produce Plaintiff's medical records, without an authorization, in compliance with HIPAA. (Doc. 44, p. 3.) Defendant then filed a Motion to Compel Witness Statements, dated February 10, 2015. (Doc. 50, p. 5.) In this Motion, Defendant sought a Court Order requiring Plaintiff to produce the statements obtained from any witness or a privilege log reflecting the same. (Id. at pp. 1, 4.) In the alternative, Defendant sought an Order preventing these witnesses from testifying at trial. (Id. at p. 4.) On February 11, 2015, Defendant filed a Motion for Extension of Time to Obtain Additional Records in Response to Subpoenas, seeking to extend the discovery period in light of its outstanding subpoenas to Southeast Georgia Health System, Southeastern OB/GYN, Southeast Georgia Physician Associates, and Key Health. (Doc. 51, p. 2.) Finally, on February 12, 2015, Defendant filed a Motion for Protective Order as to Subpoenas, in which Defendant asks the Court to quash or modify Plaintiff's subpoenas directed to Dr. Morales and Southern Orthopaedics. (Doc. 52, p. 5.)

The Court will address Defendant's request to extend the discovery period in its Motion for Extension of Time to Obtain Additional Records in Response to Subpoenas (Doc. 51) before considering Defendant's other pending Motions in the order in which they were filed (Docs. 44, 50, 52).

DISCUSSION

I. Defendant's Motion for Extension of Time to Obtain Additional Records in Response to Subpoenas (Doc. 51)

Defendant argues that the Scheduling Order in this case should be modified to allow for an extended discovery period. (Id. at p. 3; see also Doc. 24, p. 1 (showing February 12, 2015, as the close of discovery).) Defendant relies on Federal Rule of Civil Procedure 16(b)(4) for the proposition that a scheduling order may be modified for good cause and with the judge's consent. (Doc. 51, p. 2 (citing Fed.R.Civ.P. 16(b)(4)).) Defendant argues that Plaintiff had a knee arthroscopy on October 7, 2014, which has delayed Defendant's completion of discovery in this case. (Id. at p. 1.) For example, Defendant deposed Plaintiff's arthroscopy surgeon, Dr. Christopher E. Swanson ("Dr. Swanson"), on November 7, 2014, but Dr. Swanson's time constraints were such that the deposition could not be completed until January 15, 2015. (Id. at pp. 1-2.) In addition, Defendant maintains that its discovery efforts revealed additional medical providers not disclosed by Plaintiff and that it did not learn of Key Health's involvement in the payment of Plaintiff's medical bills until January 15, 2015. (Id. at p. 2.) According to Defendant, Key Health, Southeast Georgia Physician Associates, Southeast Georgia Health System, and Southeastern OB/GYN have not provided records in response to Defendant's subpoenas, and additional time is necessary for Defendant to obtain these records and to pursue follow-up discovery. (Id. at pp. 2-3.)

In her Response, Plaintiff urges the Court to deny Defendant's Motion, because Defendant already received two extensions of time to complete discovery and has failed to diligently conduct discovery. (Doc. 54, p. 1.) In support of these contentions, Plaintiff states that Defendant did not schedule an adequate amount of time with Dr. Swanson to complete his deposition on November 7, 2014, and did not promptly make arrangements to do so on a later date. (Id. at pp. 1-2.) Furthermore, according to Plaintiff, Defendant misrepresents that it only recently learned of certain medical providers: Defendant learned of all providers other than Key Health and Southeast Georgia Physician Associates through Plaintiff's Answers to Interrogatories served on April 29, 2014 (id. at p. 2), and Defendant was aware of the existence of Key Health at least as early as December 15, 2014, when Defendant served its Third Request for Production seeking "[a]ny and all contracts, agreements, correspondence or other documentation to or from Key Health" (id. at ...


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