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Kim v. Southwestco Wireless, Inc.

United States District Court, D. Nevada

March 21, 2018

SOO YOUNG KIM, Plaintiff(s),
v.
SOUTHWESTCO WIRELESS, INC., Defendant(s).

          ORDER (DOCKET NO. 32)

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Defendant's motion to compel and for sanctions. Docket No. 32. Plaintiff filed a response in opposition, and Defendant filed a reply. Docket Nos. 33-34. The Court finds the motion properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed below, the motion to compel is GRANTED and the motion for sanctions is GRANTED.

         I. STANDARDS

         “The discovery process in theory should be cooperative and largely unsupervised by the district court.” Sali v. Corona Reg. Med. Ctr., ___F.3d___, 2018 WL 1371564, at *1 (9th Cir. Mar. 19, 2018). When a party fails to provide requested discovery and when meet-and-confer efforts prove unsuccessful, however, the requesting party may move to compel that discovery. Fed.R.Civ.P. 37(a). Broad discretion is vested in the trial court to permit or deny discovery. Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Parties are permitted to seek discovery of any nonprivileged matter that is relevant and proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1). The party seeking to avoid discovery bears the burden of explaining why discovery should be denied. See U.S. E.E.O.C. v. Caesars Entertainment, 237 F.R.D. 428, 432 (D. Nev. 2006); see also Carr v. State Farm Mut. Auto. Ins. Co., 312 F.R.D. 459, 469 (N.D. Tex. 2015) (addressing burdens following 2015 amendments to the discovery rules).

         II. ANALYSIS

         As the parties are familiar with the background of this case, the Court will not recite it herein. The pending motion raises several discovery disputes, which the Court will address in turn below.

         A. Medicare Discovery

         Defendant seeks an order compelling execution of a Medicare release. Docket No. 32 at 9-10.[1]Roughly nine months before the motion to compel was filed, Plaintiff responded to the discovery request for a Medicare release by agreeing to execute one. Docket No. 32-2 at 23 (response signed May 8, 2017, indicating that “Plaintiff is in the process of gathering the requested signed authorization and will provide it once it has been executed”). Nonetheless, Plaintiff now argues that her Medicare information is irrelevant and overly broad. Docket No. 33 at 3. The time for raising such an objection was in responding to the discovery response, but Plaintiff instead agreed to execute the release. Plaintiff has provided no reason for the Court to allow her to change course at this late date. Cf. Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object to discovery requests within the time required constitutes waiver of any objection”).

         Accordingly, this aspect of the motion to compel will be granted. Plaintiff shall provide Defendant with an executed Medicare release within 14 days of the issuance of this order.

         B. Prescription Records

         Defendant next seeks an order for the disclosure of Plaintiff's prescription records. Docket No. 32 at 11-12. Plaintiff does not oppose this request, but asserts that her counsel was never provided with a draft stipulation. Docket No. 33 at 3. That assertion is belied by the record, as a draft stipulation was emailed to Plaintiff's counsel several times. Docket Nos. 34-1, 34-2, 34-3; see also Docket No. 34 at 9. Having provided no legitimate reason to deny this request, this aspect of the motion to compel will be granted.

         IT IS HEREBY ORDERED that, pursuant to NRS 453.164(8)(b), the Prescription Monitoring Program shall release Plaintiff Soo Young Kim's records to defense counsel LEWIS BRISBOIS BISGAARD & SMITH LLP. No further authorization from patient Soo Young Kim is required to release the records.

         C. Records for Subsequent Slip-and-Fall and Subsequent Car Accident

         Defendant next seeks an order compelling records regarding a subsequent alleged slip-and-fall at a Donna Karan store (and lawsuit stemming therefrom) and from a subsequent car accident. Docket No. 32 at 12-13. Plaintiff's response does not address this aspect of the motion to compel, other than asserting that some records related to the alleged incident at Donna Karan were provided concurrently with the ...


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