#CaseoftheWeek Episode 53: Timing of Discovery Requests

We continue Season 2 of #CaseoftheWeek with an analysis of the Strong v. Honeywell, Int’l decision from September 27, 2021. Kelly Twigger discusses how the timing of discovery requests greatly impacts a party’s ability to get them in a case involving medical records.

Good morning, and welcome to our #CaseoftheWeek for January 18, 2022. This is our third edition of #CaseoftheWeek for the new year. Thank you so much for joining us. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and principal at ESI Attorneys, and I’m so happy to be here with you today. We’ve picked out a great decision to discuss today and some practical implications that will help with one of our regular tenets, which is plan early in the case.

For those of you who have been with us before, you know that we do our #CaseoftheWeek each week through our partnership with ACEDS. Each week, we try to choose a recent decision in eDiscovery that highlights key issues for litigators and those involved in the eDiscovery process and talk about the practical implications of that decision for you, your practice, and for your clients.

Today’s decision, as I mentioned, is a really interesting one on the timing of getting medical records and a potential protective order and it really does reinforce that initial tenet about planning early and getting started early and thinking about what you need from a discovery perspective.

You can find a link to our 2020 case law report, which we did in cooperation with Doug Austin of eDiscovery Today. We’re currently working on our report for 2021, and that will be out in early February.

This week’s decision comes to us from a case titled Strong vs. Honeywell International. It is from the Eastern District of Washington, and this is the decision from September 27th, 2021, from Judge Rosanna Peterson, who is the United States District Judge in the Eastern District of Washington. Our database contains five total decisions from Judge Peterson, ranging on discovery topics all over the map.

All right, so let’s talk about the facts of this case. Essentially, we’re before the Court on a motion for a protective order and also to exclude testimony of essentially, the plaintiff’s father. This is an asbestos case that was brought by the plaintiff’s wife after he died of mesothelioma. The case alleges that his mesothelioma was caused by exposure to asbestos containing automotive friction products, including Bendix brand brakes, which were manufactured by Honeywell. During discovery in September 2019, and again, this case was brought after the plaintiff had already died, so the plaintiff could not testify. In September of 2019, the plaintiff’s father, Terry Strong, sat for a perpetuation deposition in the event that he was unable to testify at trial. Three weeks prior to the deposition, Terry Strong had been diagnosed with early onset vascular dementia, and so the deposition was taken with the express intent of preserving his testimony for trial.

During his deposition, Mr. Strong described his dementia as affecting his short-term memory, and he also admitted that he might lose his train of thought when answering questions, but he stated that his long-term memory was perfect. During the deposition, he also testified that he performed numerous Bendix Brake replacements, both in his son’s presence and later with his son’s assistance, and he provided detailed testimony about his process for performing brake replacements and other types of car repairs. He confirmed during the deposition that he did use Bendix Brand brakes for these different jobs on a consistent basis. (I dare you to try and say Bendix brand brakes five times fast)

Now, not even a year later, in May of 2020, Terry Strong died. Discovery in the case closed on April 30th, 2021; almost a year after Mr. Strong’s death and a year and a half after he gave this deposition in September 2019. The defendant essentially claimed that it first learned of Mr. Strong’s death in August of 2021, which would be several months after the close of discovery, prompting the defendant to then request Mr. Strong’s official death certificate and medical records relating to his dementia pursuant to Federal Rules of Procedure 26.

The plaintiff had some discussions with defense counsel about the medical records, told defense counsel that she did not have possession of Mr. Strong’s medical records, and following the meet and confer, plaintiff moved for a protective order regarding Mr. Strong’s medical records.

The defendant in return moved to exclude Mr. Strong’s product identification testimony, where he identified Bendix brand brakes as a product that he had used and done many repairs on and argued that his dementia made him an incompetent witness. The defendant also requested a preliminary competency hearing for the now deceased Mr. Strong.

That’s where we come to in terms of the Court’s analysis. What does the Court have to say? Well, the Court looks first at the motion for a protective order under Rule 26(c)(1), and this is a good opportunity for us to really understand what that standard is because we’ve seen a number of protective orders that have been denied over the course of 2021 in case law for failure to really meet the standards under Rule 26.

Rule 26 allows that the Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. A motion for a protective order must include a certification “that the movement has in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without court action.” That’s our meet and confer requirement.

The Court also notes that the protective order may forbid the disclosure or discovery or forbid inquiry into certain matters, among other things, and the Court has broad discretion to control discovery.

The last thing that the Court notes in this section is, “if the party seeking discovery has had ample opportunity to obtain the information by discovery in the action.” the Court must limit the extent of the discovery otherwise allowed. That is a direct quote from Federal Rules Civil Procedure 26(b)(2)(c)(2).

Now, the plaintiff’s arguments on the motion for protective order are that one, the defendant did not meet and confer as required by Rule 26. The plaintiff argues that there was an email exchange, but that there was a very abbreviated conversation in which the parties never really addressed the medical records issue. The defendant, of course, argued that they were covered in that meet and confer session, and ultimately, the Court found that whatever conversation the two parties had met the meet and confer requirement. That’s your number one sort of issue here is, are you meeting the meet and confer requirement of Rule 26 before you’re bringing a motion for a protective order?

The second thing the plaintiff argued was that the defendant’s request for Mr. Strong’s medical records and official death certificate is irrelevant, and in this case, and that regardless, the records are not within the plaintiff’s possession. The plaintiff also notes that the defendant has not moved to reopen discovery and that Honeywell’s request for documents is not timely. Honeywell is a defendant here.

Honeywell argued that, in fact, Mr. Strong admitted during his deposition that his dementia “affected his memory” and “caused him to lose his train of thought in the middle of a sentence.” Those are direct quotes from Mr. Strong’s testimony in his deposition.

The defendant argued that these concessions are directly relevant to his competency as a witness. The defendant also argued that the plaintiff should possess the record sought based on a statement at Terry Strong’s deposition that the plaintiff’s Council also represented Terry Strong. Now, that seems like a pretty thin argument to me. Just because you represent someone doesn’t mean you would necessarily have his medical records unless there was a need to have those.

The Court found that the plaintiff argued pretty compellingly that the discovery sought is both irrelevant and untimely at this stage of the litigation. The Court notes that at his deposition, Mr. Strong described his recent dementia diagnosis as impacting his short-term memory and in reviewing the record, Mr. Strong recounted memories from decades prior, including his experience performing numerous brake repairs. The Court found that the defendant made no showing that the medical records documenting any progression of his dementia prior to his death would undermine the accuracy of his deposition testimony, which he gave just three weeks after his initial diagnosis. The Court also found that the defendant did not offer a persuasive explanation for why its recent discovery of Terry Strong’s death supports an additional discovery when he disclosed his diagnosis at the deposition. Basically, the Court said the defendant had noticed of his dementia diagnosis more than a year before discovery closed in this case, but the defendant did not request Mr. Strong’s medical records at any time before discovery closed.

The Court then found that the defendant failed to support its claim that the defendant actually controls or possesses the documents sought, and this is where we address the custody or control issue. Custody or control is defined as the legal right to obtain documents upon demand and the Court also notes that custody or control must be firmly placed in reality and cannot merely be theoretical. Really, what we have here in this particular situation is the defendant waited till after discovery was closed, found out that Mr. Strong died, decided that they could make a challenge to preclude his testimony at trial because really, that’s what ties the defendant to this particular case, right? There’s nobody else who can testify that Bendix brand brakes were used by the plaintiff before he died of mesothelioma. That’s really what ties the defendant to this case. This is kind of a last-ditch effort of, okay, Mr. Strong has died, let’s see if we can get his testimony excluded. And the Court says no.

The Court also goes further into defining custody or control and even assuming that plaintiffs’ counsel represented Terry Strong during his deposition approximately two years ago, the Court found that that did not demonstrate that Council has legal access to the medical records of a former client who has since died. As such, the Court found good cause to issue the protective order.

The Court next looked at whether Terry Strong’s testimony should be excluded. And while this is not really an eDiscovery issue, it’s really pertinent to this whole notion of plan, plan, plan. Think about what you need to do to exclude testimony here. It really brings to light the fact that defendant knew as of the deposition in September of 2019 that Mr. Strong’s testimony tied Bendix brand brakes to the plaintiff and to work that he had done and as a potential cause for his mesothelioma. What’s really pertinent here is that the Court kind of looks at this from two angles, right? They look at it from a protective order perspective, but they also look at it as to whether Mr. Strong’s testimony should be excluded.

The defendant really argued that Mr. Strong admitted that his dementia affected his memory, making it difficult to understand and answer questions in the moment, and that as a result, he was not a competent witness and testimony about purchasing and working on Bendix brand brakes should be excluded.

The Court really looks at the facts and says, hey, look, based on the case law you’ve given us, Terry Strong was diagnosed with dementia just three weeks before being deposed. His concession that his dementia affected his short-term memory does not suggest that he was incapable of recalling past memories, including his family relationships and his work and his residential history.

On cross examination, according to the Court, the defendant’s counsel asked Terry Strong if he had any limitations on his long-term memory, and he stated that he did not. The Court found that the fact that Terry Strong was diagnosed with dementia shortly before being deposed is insufficient to warrant the exclusion of his testimony and under Washington law, Terry Strong is presumed to be a competent witness. In reviewing the deposition testimony, the Court couldn’t find anything that suggested that there was any notion of incompetence that could lead to a hearing, and as such, the Court denied the competency hearing. What we’ve left with here is a protective order precluding defendant from getting Terry Strong medical records and the denial of its request for a competency hearing. One does wonder how you would conduct a competency hearing a witness who has already died, but I think that was really a last-ditch effort by the defendant here.

What are our takeaways? Well, we talk about it all the time. Timing is really critical in discovery and in this particular instance, as I mentioned earlier, knowing that Terry Strong had dementia following the deposition in September of 2019, they could have made a motion for the medical records well in advance of the close of discovery and inquired or asked plaintiffs’ counsel to advise them of Mr. Strong’s death if and when it happened, but they didn’t appear to do either one, according to the facts of this case. Of course, there’s always things that happen outside of case that are not included in the decision. No judgments, just knowing what we know based on the decision here.

The case determined issue of whether or not the plaintiff, Matthew, used Bendix brand brakes was really key here because without the father’s testimony, there’s no way to tie the company’s brakes to the plaintiff’s mesothelioma. Now, there may be other facts in this case, again, that are not included in this decision that would weigh on that, but that’s the gravity of what we’re talking about here. The defendant is essentially trying to exclude the testimony that provides a cause and effect for the plaintiff’s mesothelioma.

Now, from the plaintiff’s perspective, in this particular case, it needs to be very proactive in seeking a protective order and forcing the other side to show why the records were required. We forget a lot about custody or control, but it is really a key concept in discovery and one that you need to be thinking about in the forefront of your mind as you’re planning. When you’re planning, think about who has custody or control of what you want or need for the case and remember, as we’ve discussed on multiple occasions on #CaseoftheWeek, that third party discovery always takes longer and is going to be difficult to obtain.

There really was no chance here for the defendant to go and get that third party discovery because discovery had already closed, and the only hope was really to argue that the plaintiff’s Council should have custody or control of that information so that it could be provided. Basically, the Court found that the defendant’s arguments were without any kind of merit in terms of this case.

All right, that’s our #CaseoftheWeek for this week. Thanks so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.

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Thanks so much. Stay safe and healthy out there. Have a great week.

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