United States District Court, W.D. North Carolina, Asheville Division
CARLETON METCALF UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion for
Order to Show Cause for Failure to Respond to Subpoena Duces
Tecum (“Motion to Show Cause”) (Doc. 25) and
Defendants' Second Motion to Compel (Doc. 26). The
undersigned conducted a hearing on the motions on September
litigation involves a multi-vehicle accident that occurred on
July 3, 2018 during which a tractor-trailer truck that was
owned by Defendant Gowder and operated by Defendant Scruggs,
who was working for Defendant Southern Concrete Specialties,
Inc., struck Plaintiffs' vehicle. See Complaint
Motion to Show Cause (Doc. 25)
Motion to Show Cause involved subpoenas that Defendants
served on various of Plaintiffs' medical providers
(“Subpoena Recipients”). No one appeared at the
hearing on behalf of the Subpoena Recipients and counsel for
Defendants advised, and the record reflects, that the Motion
to Show Cause has been withdrawn.
Second Motion to Compel (Doc. 26)
from Plaintiffs' healthcare providers are also the focus
of Defendants' Second Motion to Compel. On October 16,
2018, Defendants served written discovery requests seeking,
among other things, information regarding medical treatment
Plaintiffs received both prior to and in connection with the
accident. In the ensuing months, Plaintiffs responded to
Defendants' requests and supplemented their responses
numerous times, though Defendants continued to assert that
Plaintiffs had not produced all of the requested materials.
March 12, 2019, Defendants filed a Motion to Compel (Doc.
21), which was denied without prejudice (Doc. 22).
August 9, 2019, Defendants filed their Second Motion to
Compel. Plaintiffs responded and Defendants replied (Docs.
following requests are at issue: Interrogatory 28
(information on Plaintiffs' medical history before the
accident) and Document Requests 2 (medicals from the
accident), 3 (prior medicals), 8 (medical bills), and 11
(pharmacy records). According to Defendants, specifically
missing are diagnostic films for both Plaintiffs, medical
records for Plaintiff Johnson prior to the accident, and
medical records for Plaintiff Pannell prior to the accident
(other than one record from June 2018). (Doc. 26) at 3.
concede that the outstanding information is relevant and
discoverable. Defendants acknowledge that they do not have
any basis for challenging Plaintiffs' representation that
Plaintiffs have produced all of the medical information they
have obtained from their medical providers. Rather, the crux
of the dispute is over which side is responsible for
obtaining the additional records that Defendants seek and the
proper method for doing so.
Possession, Custody, or Control
of the Federal Rules of Civil Procedure authorizes a party to
“serve on any other party a request within the scope of
Rule 26(b) . . . to produce and permit the requesting party
or its representative to inspect, copy, test, or
sample” certain items that are “in the responding
party's possession, custody, or control.”
Fed.R.Civ.P. 34(a)(1). The opening question, then, is whether