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Platcher v. Health Professionals

September 18, 2007

JOHN PLATCHER, AS SPECIAL REPRESENTATIVE OF THE ESTATE OF CHARLES PLATCHER, DECEASED, PLAINTIFF,
v.
HEALTH PROFESSIONALS, LTD., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge

OPINION

Before the Court is Plaintiff's Motion to Compel Defendants Baig and Ahmed to: 1) answer Plaintiff's third set of interrogatories ("Set C");

2) respond to Plaintiff's request to produce documents ("Set C"); and

3) produce the documents requested in Plaintiff's Amended Notice of Deposition to Defendant Baig. (d/e 163).*fn1

The discovery requests seek information about the Defendants' finances and wealth for purposes of the punitive damages sought in Count IV of the Third Amended Complaint. (d/e 57). Count IV in relevant part alleges that:

Faisal Ahmed was assigned to the care and treatment of the decedent. Ahmed was aware that the temperature in the HCU was too cold for human safety, he was aware that the decedent was lying nude on the floor and acted deliberately and recklessly in the care and safety of the decedent. (Third Amended Complaint, d/e 57, p. 10-11, para. 57).

As to Dr. Baig, Count IV alleges: " Mirza S. Baig placed the decedent in a strip cell with no clothes when he knew or should have known that the temperature within the cell was too cold for human safety . . . ." (Third Amended Complaint, d/e 57, p. 12, para. 66).

Federal Rule of Civil Procedure 26(b)(1) provides that the "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . . . ." Relevant information need not be admissible at trial if the discovery appears to be reasonably calculated to lead to the discovery of admissible evidence. The party opposing discovery has the burden of proving that the requested discovery should be disallowed. Etienne v. Wolverine Tube, Inc., 185 F.R.D. 653, 656 (D. Kan. 1999); Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 132 F.R.D. 204, 207 (N.D. Ind. 1990). District courts have broad discretion in matters relating to discovery. See Brown-Bey v. United States, 720 F.2d 467, 470-471 (7th Cir.1983); Eggleston v. Chicago Journeymen Plumbers' Local Union 130, 657 F.2d 890, 902 (7th Cir.1981); see also, Indianapolis Colts v. Mayor and City Council of Baltimore, 775 F.2d 177, 183 (7th Cir.1985) (on review, courts of appeal will reverse a decision of a district court relating to discovery only upon a clear showing of an abuse of discretion).

Set C Interrogatories

Defendants Baig and Ahmed object on the grounds that Plaintiff did not obtain leave of court to serve more than 25 written interrogatories. They assert that they had already answered prior interrogatories which exceeded 25 in number before Plaintiff served the third set. (d/e 163, Ex. 3); Fed. R. Civ. P. 33(a). Plaintiff counters that this objection is untimely and therefore waived.

Plaintiff served the Set C interrogatories on Defendants Baig and Ahmed on June 13, 2007. (d/e 163, Ex. 1). Defendants Baig and Ahmed served their written objection on July 23, 2007, ten days late. (d/e 163, Ex. 1). Defendants, however, contend that Plaintiff cannot complain of the late response because Plaintiff had no authority to serve the third set of interrogatories initially. (d/e 165, pp. 4-5).

The prior interrogatories served by Plaintiff are not in the record, but Plaintiff does not dispute Defendants' assertion that those prior interrogatories already exceeded the 25-question limit. Plaintiff was therefore required by the plain language of Rule 33(a) to seek leave of court to serve Set C, unless Defendants chose to overlook the rule. That other parties in other cases have been willing to answer more than 25 interrogatories without objecting does not bar Defendants from asserting the objection here.*fn2 As to timeliness, the Court believes the Defendants' 10-day delay in serving a written response is excusable under Rule 33(b)(4), given that Plaintiff did not have leave to serve those interrogatories. Accordingly, Plaintiff's motion is denied as to the Set C interrogatories.

Set C Requests to Produce

That does not end the issue, however, because Plaintiff seeks to compel the same information through requests for production of documents. Plaintiff served the Request to Produce-Set C on July 26, 2007. Plaintiff did not file Defendants' written responses with the motion to compel, presumably because Defendants' time for response had not yet passed. It does not appear that the record has since been supplemented with Defendants' formal written response, if in fact there was one. See Local Rule 26.3(C)("Any motion filed under 26(c) or ...


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