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Shikapwashya v. Urban League of Metropolitan St. Louis

United States District Court, E.D. Missouri, Eastern Division

July 25, 2018

HERTA MARTHA SHIKAPWASHYA, Plaintiff,
v.
URBAN LEAGUE OF METROPOLITAN ST. LOUIS, Defendant.

          MEMORANDUM & ORDER

          AUDREY G. FLEI SIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant's motion to amend the Case Management Order (“CMO”) (ECF No. 60) and motion to compel (ECF No. 61). Plaintiff opposes both motions (ECF No. 64).[1] Upon due consideration, the motions will be granted in part and denied in part.

         BACKGROUND

         This is an employment discrimination action filed by Plaintiff, who is proceeding pro se, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.. The parties are operating under a CMO issued by the Court on January 19, 2018. ECF No. 29. Pursuant to that CMO, Defendant sought, and the Court granted, a Rule 35 Mental Examination of Plaintiff, which must be completed August 31, 2018. ECF Nos. 50, 52, 53. Mediation in this case is scheduled for August 9, 2018.

         DISCUSSION

         Motion to Amend CMO

         Defendant now requests an extension of the deadlines by which it must disclose expert witnesses. In support, Defendant states that the current CMO requires Defendant to disclose expert witnesses and provide summaries and reports required by Federal Rule of Civil Procedure 26(a)(2)(B) and (C) no later than July 31, 2018. However, the examination of Plaintiff is set in August 2018 and complies with the provision of the CMO for such an examination. Defendant also states that it intends to use an IT expert, but that Plaintiff has not yet provided her electronic devices to that expert, thus hindering the expert's ability to prepare a report.

         Federal Rule of Civil Procedure 16(b) specifies that a CMO “shall not be modified except upon a showing of good cause and by leave of the district judge.” Thus, a moving party must first make the requisite showing. The primary measure of Rule 16's “good cause” standard is the moving party's diligence in attempting to meet the case management order's requirements. Bradford v. DANA Corp., 249 F.3d 807, 809 (8th Cir. 2001).

         Here, Defendant diligently complied with the CMO with regard to seeking and obtaining a Rule 35 mental examination of Plaintiff. Therefore, the motion to extend expert disclosure deadlines will be granted as to Dr. Elizabeth Pribor, who must complete Plaintiff's examination by August 31, 2018. However, the Court will deny the extension as to the IT expert. Defendant has not brought to the Court's attention any issues with obtaining Plaintiff's cell phone, the reason for requesting the phone, or the reason for the delay in obtaining the phone.

         Motion to Compel

         In its motion to compel, Defendant seeks “both psychiatric and general medical records dating back at least ten (10) years” for use by its medical expert, Dr. Pribor.[2]ECF No. 61 at ¶ 12. Defendant contends that Dr. Pribor is entitled to review those records prior to her examination of Plaintiff because Plaintiff is seeking more than garden variety emotional distress and damages. Further, Defendant maintains that it seeks the records of all providers because while many individuals seek treatment from doctors for physical conditions, those visits also result in treatment for mental health issues. Defendant proposes that the records be released directly to Dr. Pribor to alleviate Plaintiff's concerns regarding privacy. Plaintiff argues in her opposition that the request is overbroad, as she has denied ever being treated for mental issues prior to the termination of her employment with Defendant.

         The Federal Rules of Civil Procedure provide for broad discovery. Under Federal Rule of Civil Procedure 26(b)(1) “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Thus, although the Federal Rules permit broad discovery, the discovery sought must be nonprivileged and relevant.

         Here, the Court agrees that individuals may seek treatment for mental health conditions with their primary care physicians, and such treatment would be reflected in the medical records of those providers. However, seeking the records of all of Plaintiff's health care providers for a period of 10 years is overbroad. Therefore, the Court will grant Defendant's motion to compel in part. Plaintiff will be directed to execute authorizations for records from her primary health care providers, as well as any provider prescribing medication to address mental health issues (such as depression or anxiety). Those authorizations must be limited to a period of five years, or January 1, 2013 through the present.

         Lastly, although the Court has not yet received Defendant's response to Plaintiff's pending motion for protective order that was filed by limited scope counsel, the Court cautions Defendant that it must comply with all discovery requests and timely supplement ...


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