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Pannell v. Scruggs

United States District Court, W.D. North Carolina, Asheville Division

November 7, 2019

NIKESIA SHAREY PANNELL and CHOYA HASSIBA JOHNSON, Plaintiffs,
v.
MATTHEW TAYLOR SCRUGGS, SOUTHERN CONCRETE SPECIALISTS, INC., and JEFFREY MICHAEL GOWDER, Defendants.

          ORDER

          W. CARLETON METCALF UNITED STATES MAGISTRATE JUDGE

         This 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 23, 2019.

         I. Background

         This 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 (Doc. 1).

         II. Motion to Show Cause (Doc. 25)

         Defendants' 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Subpoena Recipients and counsel for Defendants advised, and the record reflects, that the Motion to Show Cause has been withdrawn.

         III. Second Motion to Compel (Doc. 26)

         Records 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.

         On March 12, 2019, Defendants filed a Motion to Compel (Doc. 21), which was denied without prejudice (Doc. 22).

         On August 9, 2019, Defendants filed their Second Motion to Compel. Plaintiffs responded and Defendants replied (Docs. 27, 28).

         The 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.

         Plaintiffs 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.

         A. Possession, Custody, or Control

         Rule 34 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 ...


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