Leach v. Ingram ( 2024 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 THEORDORE LEACH, et al., Case No. 2:22-cv-01809-JAD-NJK 9 Plaintiff(s), Order 10 v. [Docket No. 53] 11 DENNETT INGRAM, et al., 12 Defendant(s). 13 Pending before the Court is Defendants’ motion to compel discovery. Docket No. 53. 14 Plaintiffs filed a response in opposition. Docket No. 57. Defendants filed a reply. Docket No. 15 58. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons 16 discussed below, the motion to compel is GRANTED. 17 “The discovery process in theory should be cooperative and largely unsupervised by the 18 district court.” Sali v. Corona Reg’l Med. Ctr., 884 F.3d 1218, 1219 (9th Cir. 2018). When an 19 amicable resolution to a discovery dispute cannot be attained, however, a party seeking discovery 20 may move the Court to issue an order compelling that discovery. Fed. R. Civ. P. 37(a). The party 21 seeking to avoid discovery bears the burden of showing why that discovery should not be 22 permitted. V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 309 (D. Nev. 2019). “It is well established 23 that a failure to object to discovery requests within the time required constitutes a waiver of any 24 objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992). 25 The instant dispute concerns an interrogatory and two requests for production seeking 26 discovery as to Plaintiff James Kerrigan’s mental incapacity. See Docket No. 53 at 16-17. The 27 discovery was served on September 12, 2023, Docket No. 53-2 at ¶ 35; Docket No. 53-4 at 13, so 28 objections were due by October 12, 2023, see Fed. R. Civ. P. 33(b)(2), 34(b)(2)(A). Objections 1 were not served, however, until December 11, 2023. Docket No. 53-2 at ¶ 57. As such, Defendants 2 seek an order striking the untimely objections and compelling the discovery. Docket No. 53 at 22- 3 24. Although Plaintiffs filed a response in opposition to the motion to compel addressing other 4 issues, the opposition brief does not respond in any way to this waiver issue. See Docket No. 57. 5 As such, this argument is deemed unopposed and will be granted on that basis. Stichting 6 Pensioenfonds ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125, 1132 (C.D. Cal. 2011) 7 (collecting cases that “failure to respond in an opposition brief to an argument put forward in an 8 opening brief constitutes waiver or abandonment in regard to the uncontested issue”); see also 9 Local Rule 7-2(d).1 10 Accordingly, Defendants’ motion to compel is GRANTED. Fulsome responses must be 11 provided to Interrogatory No. 14 and Requests for Production Nos. 67 and 69 by March 8, 2024. 12 The discovery will be limited to only the medical records and information pertinent to Plaintiff 13 14 15 16 17 18 19 20 1 Although Plaintiffs’ objections have been waived, the Court would be inclined to grant 21 the motion to compel at any rate. The primary gist of Plaintiffs’ relevance argument is that they dispute Defendants’ legal theory that Plaintiff James Kerrigan’s mental incapacity may render the 22 contract void and, consequently, excuse any breach thereof. See Docket No. 57 at 7-8 (discussing Hernandez v. Banks, 65 A.3d 59 (D.C. 2013)). Plaintiffs do not cite any controlling law 23 foreclosing Defendants’ legal theory, however, and a discovery motion is not a proper vehicle to adjudicate this type of merits-based argument in the guise of a relevance objection. Big City 24 Dynasty v. FP Holdings, L.P., 336 F.R.D. 507, 511-13 (D. Nev. 2020). The Court also notes that the proportionality argument brought on this basis is similarly lacking. See, e.g., Acclaim Lighting, 25 Inc. v. Bruck, 2018 WL 11409432, at *6 (D. Nev. Apr. 6, 2018). The Court is mindful that the records involve personal medical information, but it also notes that there is a stipulated protective 26 order in place to limit dissemination of that information. See Docket No. 19. Moreover and significantly, defense counsel proffered unrebutted representations that Plaintiffs’ earlier counsel 27 agreed during the conferral process to provide this discovery, see, e.g., Docket No. 53 at 3, 24; Docket No. 53-2 at ¶ 39, and the Court routinely holds parties to the agreements reached by their 28 counsel during the conferral process, PlayUp, Inc. v. Mintas, 344 F.R.D. 429, 440 (D. Nev. 2023). James Kerrigan’s mental incapacity, as defense counsel proposed during the conferral process. 2|| See, e.g., Docket No. 58 at 9.” 3 IT IS SO ORDERED. 4 Dated: February 16, 2024 Nancy J. Koppe. 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ? Although initial indications were not so hopeful, see, e.g., Docket No. 50, it appears that counsel may be trending toward the direction of cooperation and reasonableness in conducting discovery, see Docket No. 53 at 16 (noting discovery compromises reached at meet-and-confer ordered by the Court). The Court will defer ruling on the request for an award of expenses at this juncture. Cf Shelbyville Hosp. Corp. v. Mosley, 2015 WL 13172994, at *2 (E.D. Tenn. July 15, 26|| 2015) (“The Court shall defer ruling on Plaintiff's request for attorney’s fees pursuant to Rule 37(a)(S)(A), so that the Court may consider how and whether Defendant complies with this Order”); see also, e.g., Williams v. Swack, 2016 WL 4626575, at *2 (W.D.N.Y. Sept. 6, 2016) (citing Green v. St. Vincent’s Med. Ctr., 252 F.R.D. 125, 130 (D. Conn. 2008)) (courts may defer 7] tuling on a Rule 37(a)(5)(A) request for expenses). To be clear, however, failure to comply with this order may result in the imposition of sanctions. See, e.g., Fed. R. Civ. P. 37(b)(2)(A).