United States District Court, D. Colorado
BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs,
MATEJ POLOMSKY, Defendant.
Michael E. Hegarty, United States Magistrate Judge.
the Court is Dr. Polomsky's Motion for Discovery
Sanctions and to Compel Plaintiffs' Compliance with their
Obligations under the Federal Rules of Civil Procedure
(“Motion”). ECF 203. Defendant seeks sanctions
for Plaintiffs' alleged contumacious behavior concerning
the latter's conduct in discovery in this lawsuit. For
the following reasons, the Motion is granted in part and
denied in part.
recounting all of the alleged misconduct Defendant attributes
to Plaintiffs, I do make the following relevant findings.
First, it is undisputed that Plaintiffs obtained, through
direct communication with the author, a declaration dated
June 27, 2018, signed by Karen McGovern (McGovern Decl.),
Director of Legal Affairs for the Colorado Department of
Regulatory Affairs (DORA). DORA is at the center of the
allegations in this case. Plaintiffs' lawsuit, as
summarized in their First Amended Complaint (FAC), arose
because of “Dr. Polomsky's malicious and
negligent complaint to DORA.” FAC p.2 (emphasis in
original). Dr. Beyer was suspended in some manner by DORA,
which later removed the suspension. Paragraph 52 of the FAC
alleges that DORA “agreed to expunge the suspension
from Dr. Beyer's record. DORA is now in the process of
removing all references to Dr. Beyer's suspension.”
The McGovern Decl. addresses the type of suspension that Dr.
Beyer received and whether, and when, it is part of the
“physician's record” as far as DORA is
concerned. Actions by DORA, and those actions'
implications and effects, are central to this lawsuit. In May
2018, before the McGovern Decl. was even signed, Defendant
issued a formal request for production of documents which
states: “Please produce any and all documents
reflecting communications between you . . . and the Colorado
Medical Board or DORA sent or received between April 10, 2015
and the present.” RFP 22. The McGovern document is
responsive to this request. It was not produced by Plaintiffs
until September 27, 2019. Plaintiffs argue the McGovern Decl.
is of little or no relevance, but that is not their decision
to make. This alone was a violation of Plaintiffs'
discovery obligations and, if timely produced, may have
resulted in other discovery requests by the Defendant, an
opportunity of which he was deprived. Plaintiffs' conduct
is a violation of Fed.R.Civ.P. 26(e), failing to supplement
responses to a request for production. Under Fed.R.Civ.P.
37(c), because I find no substantial justification and that
the failure was not harmless, a sanction is appropriate.
although I disagree with Defendant's lengthy and
exaggerated characterization of the alleged discovery abuses
by Plaintiffs, I was required to hold nine discovery hearings
and rule on numerous discovery motions, most directed at
Plaintiffs by Defendant. While this was due in some part to
Defendant's aggressive discovery efforts (which, in my
experience, is somewhat typical in a lawsuit between medical
professionals), much of it was occasioned by Plaintiffs'
lack of diligence in responding to discovery, especially
document production. The original scheduling order was
entered on April 18, 2017, with a discovery deadline of
January 16, 2018. The formal discovery deadline was changed
several times, with the final deadline being April 15, 2019.
Even after this date I held several lengthy discovery
hearings dealing with lingering problems. Indeed, discovery
is essentially ongoing still, less than four weeks
from the jury trial of this matter. I believe this is the
longest, most contentious discovery period over which I have
ever presided. The primary fault lies with the aforementioned
Plaintiffs' delays in producing responses (including
documents) in discovery. Without detailing the specifics, I
will let the transcripts of the nine discovery hearings, and
the contents of the orders I have issued, speak for
set of circumstances is similar to E.E.O.C. v. Original
Honeybaked Ham Co. of Georgia, Inc.,
11-CV-02560-MSK-MEH, 2013 WL 752912, at *1 (D. Colo. Feb. 27,
2013), in which I found that a litigant had “caused
unnecessary expense and delay in this case. In certain
respects, the [Plaintiff] has been negligent in its discovery
obligations, dilatory in cooperating with defense counsel,
and somewhat cavalier in its responsibility to the United
States District Court.” Id. In that case, I
imposed a sanction under Fed.R.Civ.P. 16(f) as interpreted
and applied by Mulvaney v. Rivair Flying Serv.,
Inc., 744 F.2d 1438 (10th Cir. 1984). I make the same
finding here as to Plaintiffs' conduct during
the appropriate sanction, I will reserve that decision for
the final judgment in this case. During any post-trial motion
practice, Defendant may specify their requested sanction,
supported by affidavit. In any such request, Defendant shall
avoid hyperbole and focus on the Plaintiffs' discovery
conduct (using factually descriptive language) and the
concomitant excess litigation cost.
has established that a sanction against Plaintiffs and/or
their counsel is appropriate here. Therefore, Dr.
Polomsky's Motion for Discovery Sanctions and to Compel
Plaintiffs' Compliance with their Obligations under the
Federal Rules of Civil Procedure, ECF 203, is granted in part
and denied in part as stated herein.
 Defendant also requests the Court to
compel complete discovery responses. I do not have the time
or resources to go back over all of Defendant's discovery
requests to determine whether Plaintiffs' responses
remain deficient. I will state, however, that Plaintiffs'
attorneys are well advised to carefully and circumspectly
study the completeness of their discovery responses (even at
this late date) and obligations, as well as their
clients' cooperation and forthrightness in unearthing and
providing all responsive information and documents, because
my conclusion on the ultimate sanction in this ...