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Pannell v. Scruggs

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

December 6, 2019

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

          ORDER

          W. Carleton Metcalf United States Magistrate Judge.

         This matter is before the Court on Plaintiffs' Response to the Court's Order Granting Defendants' Second Motion to Compel (“Response”) (Doc. 44).

         I. Background

         By Order entered on November 8, 2019, the Court granted Defendants' Second Motion to Compel (Doc. 43).

         Plaintiffs were given leave to file a response to that Order so that they could provide any additional information they deemed relevant as to why Defendants should not receive an award of expenses.

         II. Expenses

         Rule 37 of the Federal Rules of Civil Procedure reads in part as follows:

If the motion is granted--or if the disclosure or requested discovery is provided after the motion was filed--the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.
Fed. R. Civ. P. 37(a)(5)(A).

         In their Response, Plaintiffs argue that their “nondisclosures, responses, and objections were substantially justified, because there was a genuine dispute as to the proper resolution of a discovery dispute that was reasonably based in law and fact … . Specifically, the parties had a dispute as to whether Plaintiffs' medical records are within Plaintiffs ‘possession, custody, or control' for purposes of F.R.C.P. 34.” (Doc 44) at 3.

         Plaintiffs also argue that, though the Court ultimately found the records at issue were in Plaintiffs' possession, custody, or control, “Plaintiffs' contention was nonetheless a responsible difference of opinion based in law and facts” and that they “were advocating for a perceived procedural uncertainty based on Fourth Circuit case law relating to whether an authorization for release of protected health information is sufficiently responsive to a Rule 34 request for production.” Id. at 3 - 4.

         Further, Plaintiffs say they have “engaged in multiple, good faith discussions with opposing counsel regarding open discovery matters and to facilitate discovery supplementation, provided or offered to provide HIPAA medical authorizations, and did not object to any third party subpoenas for medical records from Defendants.” Id. at 5. To demonstrate, Plaintiffs attach to their Response Exhibits A - P, which consist of communications ...


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