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Gonzales v. Physician Health Partners, LLC

United States District Court, D. Colorado

April 26, 2019

TIM GONZALES, Plaintiff,
v.
CORRECTIONAL HEALTH PARTNERS, LLC, a Colorado corporation, JENNIFER A. MIX, D.O., in her individual capacity, and CORRECTIONS CORPORATION OF AMERICA a/k/a CoreCivic, Inc. d/b/a Bent County Corrections Facility, Defendants.

          ORDER

          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on Plaintiff's Motion for Attorneys' Fees and Costs Against Defendant CoreCivic Pursuant to Rule 37(a)(5) [#206][1] (the “Motion”). Defendant CoreCivic filed a Response [#217] in opposition to the Motion [#206], and Plaintiff filed a Reply [#220]. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#206] is GRANTED in part.

         On August 13, 2018, Plaintiff served his First Set of Discovery on CoreCivic. The three requests relevant to the present Motion [#206] were as follows:

Request for Production No. 2: Please produce any documents relating to the PPMU's [i.e., “Private Prison Monitoring Unit”] audits of Defendant CoreCivic's facilities in Colorado, including any and all documents provided to the PPMU for those audits since April 2011.
Request for Production No. 4: Please produce any and all documents relating to the provision of medical care from April 2011 to present in Defendant CoreCivic's facilities.
Request for Production No. 5: Please produce copies of all medical necessity appeals submitted, and the responses received, in all of Defendant CoreCivic's Colorado facilities from April 2011 to present.

         Defendant CoreCivic objected to these requests on the grounds that they were vague, overly broad, overly burdensome, sought irrelevant information which was not proportional to the needs of the case, and were not calculated to lead to the discovery of admissible evidence. Additionally, Defendant CoreCivic also objected to Requests 4 and 5 on the grounds that they sought highly confidential medical and private information about countless inmates.

         Subsequent discussion between the parties to resolve these disagreements failed, and thus, on November 9, 2018, the Court held a discovery hearing. See [#177]. As a result, Defendant CoreCivic was ordered to respond to substantially revised and narrowed versions of Requests 2, 4, and 5. See Id. at 1-2. On November 30, 2018, Defendant CoreCivic produced its Supplemental Response to Plaintiff's Requests for Production. Defendant CoreCivic produced some documents responsive to Request 2. Defendant CoreCivic also produced documents responsive to parts of Request 4, but objected to providing “documents relating to complaints made by patients or others relating to the provision of medical care” on grounds that the request, as modified, was still vague, overly burdensome, sought inadmissible evidence, and sought privileged medical and private information of inmates. Defendant CoreCivic also objected to Request 4 for “documents relating to fines regarding medical services” on grounds of vagueness. In response to Request 5, Defendant CoreCivic continued to object on the same grounds set forth above, but in support submitted the affidavits of two employees with personal knowledge of Defendant CoreCivic's facilities concerning the processes that would be undertaken and the estimated resources to be expended producing the requested documents. These employees estimated it would take Defendant CoreCivic's staff 56-63 hours to produce Step 1 grievances at Bent County Correctional Facility (“BCCF”) and Crowley County Correctional Facility (“CCCF”) (part of Request 4), and up to 60-80 hours to produce the appeals letters (Request 5).

         In the present Motion [#206], Plaintiff seeks an award pursuant to Fed.R.Civ.P. 37(a)(5) for fees and costs expended on these issues for the following period, i.e., between December 3, 2018, and January 23, 2019. See also Reply [#220] at 1. On December 12, 2018, Plaintiff's counsel sent a letter asserting certain deficiencies in the Supplemental Response, although also agreeing that his discovery requests should be further narrowed in several ways. First, Plaintiff revised Requests 4 and 5 to apply just to BCCF and CCCF, not all of Defendant CoreCivic's facilities in Colorado. Second, with respect to the request for “documents relating to complaints” under Request 4(a), Plaintiff's counsel modified the request to seek only Step 1 Grievances at these two facilities from April 2011 to present. Third, Plaintiff clarified that Request 4(c) was intended to mean “documents related to contractual remedies.” However, Defendant CoreCivic asserts that Plaintiff's counsel also sought to expand the scope of Request 2, to require Defendant CoreCivic to produce eight new types of documents which were referenced in the PPMU reports, but not created by PPMU as part of the audit or even by CoreCivic in response to a concern raised in the audit report.

         In a December 21, 2018 letter to Plaintiff's counsel, Defendant CoreCivic's counsel agreed to produce certain documents and reiterated her concern that Plaintiff's continued reformulations of the discovery requests amounted to “trying to recommence the discovery process with all new discovery requests, ” given that the discovery deadline had expired in October 2018. With respect to Request 2, Defendant CoreCivic argued that requiring it to produce any documents referenced in the PPMU audits went beyond the reasonable meaning of “relating to PPMU audits, ” and further demonstrated how the revised request was vague and overly broad. Additionally, Defendant CoreCivic maintained that, even as narrowed, the significant burden of responding to Requests 4 and 5 did not outweigh the likely benefit under F.R.C.P. 26(b)(2)(C)(iii), and that the requests continued to seek privileged confidential information.

         Plaintiff's counsel renewed his same objections to the responses to Requests 2, 4, and 5 in a letter dated December 28, 2018, and subsequently requested a second discovery hearing with the Court, which was held on January 23, 2019. The Court granted Plaintiff's Request 2 “as narrowed” and required Defendant CoreCivic to produce the additional categories of documents referenced in the PPMU audits. The Court also ordered Defendant CoreCivic to produce medical-related Step 1 Grievances at BCCF and CCCF, redacted for privilege, in response to Request 4 and appeals letters in response to Request 5. The Court noted, but did not hold, that the burden of producing these responses might outweigh any benefit. The Court ordered Defendant CoreCivic to tender an invoice regarding the cost to comply with the Order, and provided that Defendant CoreCivic could file a written motion to shift costs to Plaintiff.[2]

         Pursuant to Fed. R. Civ. P 37(a)(1), “a party may move for an order compelling disclosure or discovery.” Pursuant to Fed.R.Civ.P. 37(a)(5)(A), “[i]f the motion is granted . . . the court must, after giving an opportunity to be heard, require the party . . . whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” However, “the court must not order this payment if: . . . (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(a)(5)(A). Defendant CoreCivic does not contest the applicability of the first portion of Fed.R.Civ.P. 37(a)(5) but asserts that the two exceptions listed above apply here. Response [#217] at 7.

         Regarding substantial justification, “[a] party is substantially justified in opposing discovery . . . if there is a genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” DCD Partners, LLC v. Albracht, 17-mc-00007-CMA-KLM, 2018 WL 6061295, at *4 (D. Colo. Nov. 20, 2018) (internal quotation marks omitted). The test is objective, and no showing of bad faith is required. Id.

         The Court has thoroughly reviewed the briefs and the entire audio recording of the January 23, 2019 discovery hearing. With respect to Request 4 and Request 5, the Court cannot find that Defendant CoreCivic's argument was not substantially justified. Although Defendant CoreCivic was ultimately unsuccessful, at minimum it made a colorable argument regarding undue burden, as evidenced by the Court's lengthy discussion with counsel about the issue at the hearing. Accordingly, ...


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