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Ginter v. BNSF Railway Co.

United States District Court, Ninth Circuit

January 24, 2014

HARRY THOMAS GINTER, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant.

ORDER ON DISCOVERY MOTIONS

RICARDO S. MARTINEZ, District Judge.

I. INTRODUCTION

This matter comes before the Court on Plaintiff's Motion for Extension of Time to Complete Discovery (Dkt. # 22), Defendant BNSF Railway Company's ("BNSF") Motion to Compel Plaintiff to Sign HIPAA Compliant Release (Dkt. # 24), and its related Motion for Entry of an Order Directing Harborview Medical Center to Comply with Subpoena (Dkt. # 28), and a stipulated Motion to Allow Discovery Depositions after Discovery Deadlines (Dkt. # 38).

II. DISCUSSION

A. Plaintiff's Motion for Extension of Time

Plaintiff seeks an extension of the discovery deadlines in this case. On November 13, 2013, the Court considered BNSF's prior motion to continue the trial date and determined that Plaintiff's general dilatory behavior in complying with discovery requests did not necessarily prejudice BNSF's ability to prepare for the May 5, 2014 trial date. See Dkt. # 19. The Court requested that the parties file a stipulated motion to extend the discovery deadlines. Id. BNSF then filed a "Memorandum" in response in which it stated that it would not agree to extend discovery deadlines absent a continuance of the trial date because "such an extension would serve only to reward plaintiff's dilatory tactics and failure to abide by the scheduling order." Dkt. # 21, p. 2. BNSF also renews its request to continue the trial until November 10, 2014.

Plaintiff filed the instant motion to extend the discovery deadlines, arguing that BNSF has misrepresented the nature of his behavior throughout discovery. Plaintiff seeks to extend the discovery cut-off deadline from January 6, 2014 to February 10, 2014, and to extend the deadline for disclosing rebuttal experts from December 6, 2013 to January 10, 2014.

"A [scheduling order] may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). The Court agrees with both BNSF and Plaintiff that good cause exists to modify the scheduling order. Further, the Court agrees with BNSF that it is has shown good cause to continue the trial date to November 10, 2014. BNSF's primary argument for seeking to continue the trial date relates to a dispute over whether Plaintiff's psychiatric treatment history is relevant and discoverable. That issue is the subject of BNSF's motion to compel Plaintiff to sign a HIPAA compliant release for his medical records. As discussed below, the Court finds that based on Plaintiff's claims for emotional harm, Plaintiff has waived his right to assert privilege protection over his medical records. Because BNSF still has not had an opportunity to review Plaintiff's medical records to prepare its defense, a continuance of the trial date and related deadlines is warranted. In addition, as the discovery deadline will be moved in accordance with the new trial date, the parties' stipulated motion to extend the time for taking discovery depositions (Dkt. # 38) is now moot, and is stricken. The Court will enter a new scheduling order within seven (7) days of this Order.

B. BNSF's Motions to Compel

1. Background

Plaintiff filed the Complaint against BNSF on February 8, 2013, alleging claims for personal injuries sustained while working as a BNSF employee. Dkt. # 1, ¶ 5.1. On May 20, 2013, BNSF sent Plaintiff a stipulation for obtaining medical records from nine health care providers. See Dkt. # 29, Bryan Decl. ¶ 2, Ex. A. On June 24, 2013, Plaintiff returned the medical records stipulation to BNSF. See id., Bryan Decl. ¶ 3, Ex. B. BNSF contends that Plaintiff unilaterally changed the stipulation by limiting medical records to exclude, among other things, records relating to HIV/AIDS, STDs, drug and/or alcohol abuse, mental illness, or psychiatric treatment. See id.

BNSF objected to the alteration of the stipulated release. It states that "medical providers often balk at a release that requires them to cull the records to exclude medical records of a particular type, as it subjects them to liability for failure to properly do so." See id., Bryan Decl. ¶ 4. BNSF asked Plaintiff to provide an unaltered stipulated release by July 8, 2013. See id. BNSF also offered to enter into a protective order with respect to any confidential information. See id. Plaintiff refused to comply, but assured BNSF that Plaintiff was not making claims related to HIV/AIDS, STDs, drug and/or alcohol abuse, mental illness or psychiatric treatment. See id., Bryan Decl. ¶ 5.

BNSF served its discovery requests on Plaintiff on July 2, 2013. See id., Bryan Decl. ¶ 9, Ex. F. Plaintiff responded to BNSF's discovery requests on September 30, 2013. See id., Bryan Decl. ¶ 10, Ex. G. In response to Interrogatory No. 8, "Describe with specificity and detail each and every injury claimed in this lawsuit, whether physical, mental or psychological, and state the manner and circumstances by which each such injury occurred, " Plaintiff responded:

Plaintiff's pain and limitations on his abilities and activities cause him to experience mental and psychological stress, ...

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