United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM & ORDER
G. FLEI SIG UNITED STATES DISTRICT JUDGE.
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). Upon due consideration, the motions will
be granted in part and denied in part.
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.
to Amend CMO
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.
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.
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, Defendant seeks “both psychiatric and
general medical records dating back at least ten (10)
years” for use by its medical expert, Dr.
Pribor.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.
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.
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
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 ...