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Osborne v. Billings Clinic

United States District Court, District of Montana, Billings Division

March 26, 2015

DALE OSBORNE, as Personal Representative of the Estate of Sarah Osborne, Plaintiff,
v.
BILLINGS CLINIC, and UNITED STATES OF AMERICA, Defendants. BILLINGS CLINIC, Cross-Claimant,
v.
UNITED STATES OF AMERICA, Cross-Defendant.

OPINION AND ORDER

SUSAN P. WATTERS, United States District Judge

Before this Court is Plaintiff Dale Osborne's second motion to compel discovery. (Doc. 46) He requests that the Court compel Billings Clinic's responses to a number of discovery requests, issue sanctions, and award attorneys' fees and costs. Osborne's motion is granted in part and denied in part for the reasons set forth below.

I. Discussion

Because the same arguments crop up with respect to Osborne's second and third discovery requests, this Court will address the issues, as opposed to the specific requests, in order.

A. Privilege Log

Osborne argues that Billings Clinic asserted "privilege in its responses to his Requests for Production Nos. 51, and 63-67, but failed to provide a privilege log." (Doc. 47 at 5). Billings Clinic argues that it did not assert privilege in response to any of Osborne's requests. (Doc. 47 at 6-7). The Court reviewed Billings Clinic's responses to Plaintiffs second and third discovery requests. Billings Clinic did not assert any privilege objections. Osborne's motion to compel on this issue is denied.

B. Requests seeking "policies, procedures and ... other guidance ... for the period January 1, 2010 to present."

In Requests for Production Nos. 51, 64-67, Osborne seeks production of "policies, procedures, training materials or other guidance" regarding various medical topics from January 1, 2010 to the present. (Doc. 47-1 at 5; 47-2 at 9-13).

In its responses, Billings Clinic asserted the requests were overbroad and vague, sought irrelevant information, and objected to producing documentation, including its policies, without a stipulated protective order. (Id.)

1. Protective Order

On June 19, 2014, Billings Clinic sought, and the state court granted, a protective order with respect to its policies. Despite removal to federal court, that order remains in effect. (Doc. 78); 28 U.S.C. § 1450. Billings Clinic must produce its policies, and the parties must proceed, in compliance with that order.

2. Other responsive documentation

Irrespective of Billings Clinic's policies, Osborne argues that Billings Clinic refuses to produce other documents responsive to these specific discovery requests. (Doc. 47 at 14-15; Doc. 59 at 9). As a practical matter, Billings Clime's discovery responses state otherwise. To each request seeking "policies, procedures and other guidance, " Billings Clinic responded, "[P]ursuant to a Stipulated Protective Order or a Court issued Protective Order, Billings Clinic will produce responsive documents relevant to July, 2012, the time period at issue only ...." (Doc. 47-1 at 5; 47-2 at 9-13). In other words, Billings Clinic's response stated that it will produce responsive documents (not just policies) once a protective order is in place.

3. Objection regarding the discoverable time frame

Of course, the Court notes that Billings Clinic limited its promised production of responsive documents to July, 2012, because documents outside that time frame were not reasonably calculated to lead to the discovery of admissible evidence. (Id.) Osborne argues this objection is "not a legal objection." (Doc. 59 at 12). The Court disagrees.

Billings Clinic's objection arises from Federal Rule of Civil Procedure 26(b)(1) which provides that "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense [and that need not] be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence." (Emphasis added). See also Advisory Committee Note to the 2000 Amendment to Rule 26(b)(1) (stating that the Rule was amended "to clarify that information must be relevant to be discoverable, even though inadmissible, and that discovery of such material is permitted if reasonably calculated to lead to the discovery of admissible evidence.")

Because Osborne's case is predicated on his ability to prove that Billings Clinic and/or RiverStone doctors breached the standard of care in July, 2012, policies and procedures from 2010, 2011, any month other than July in 2012, 2013, 2014, or 2015, have no relevance to the subject matter in this action. No one has argued otherwise. Billings Clinic's objection to ...


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