United States District Court, D. Connecticut
SARAH A. L. MERRIAM, UNITED STATES MAGISTRATE JUDGE.
many months of wrangling, numerous conferences with the
Court, and dozens of depositions, discovery in this matter is
closed. There remain, however, two disputes before the Court,
both of which are the subject of a Motion for Protective
Order filed by defendant United States of America (the
“USA”). See Doc. #123. Plaintiff Mark Michaud
(“plaintiff”) has filed a response, and the USA
has filed a reply. See Docs. ##127, 131.
seeks an order protecting it from responding to two discovery
requests served by plaintiff in the waning days of discovery.
The Court will address each in turn. First, the USA seeks
protection from responding to two interrogatories and a
request for production designed to obtain copies of any
surveillance of plaintiff conducted by the USA from February
18, 2014, to the present. See Doc. #123-1. The USA argues
that the requests, which were served on September 25, 2017,
only four days before the close of discovery on September 29,
2017, were served “belatedly” and at “the
absolute last minute[, ]” “giving the United
States less than a week to respond to them[.]” Doc.
#123 at 1, 5. The USA goes so far as to accuse plaintiff of
“attempting to abuse the discovery process, annoy or
harass the United States.” Id. at 5.
Court begins by stating for the record that it does not find
that plaintiff is engaging in abuse of the discovery process.
response to the USA's motion, plaintiff has informed the
Court that a request for production was previously served on
the USA, in February 2016, requesting “discoverable
surveillance material” including “recordings by
film, photograph, video tape, audio tape” or other
means “of any party concerning this lawsuit or its
subject matter[.]” Doc. #127. Plaintiff asserts that
the USA objected to this request on various grounds,
including that the request was “premature and subject
to further discovery.” Id. The Court is
surprised that the USA did not bring this prior request to
the Court's attention in its motion, given that the
USA's motion is premised almost entirely on the theory
that the September 25, 2017, requests relating to
surveillance were served too late to require any response.
response to the Motion for Protective Order, plaintiff argues
that even if the new requests are belated, the USA should at
the very least be required to respond to the 2016 requests
under its duty of continuing disclosure. See Fed.R.Civ.P.
26(e)(1) (“A party who has made a disclosure under Rule
26(a) -- or who has responded to an interrogatory, request
for production, or request for admission -- must supplement
or correct its disclosure or response … in a timely
manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect[.]”).
Plaintiff further argues that he served these requests only
after the depositions of both plaintiff and his wife had been
completed, in accordance with Second Circuit case law on this
issue. See Doc. 127 at 2-3.
well established that Rule 26 takes an expansive view of
discovery. “The party resisting discovery bears the
burden of showing why discovery should be denied.”
Cole v. Towers Perrin Forster & Crosby, 256
F.R.D. 79, 80 (D. Conn. 2009). “The court may, for good
cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense, including ... forbidding the disclosure or
discovery[.]” Fed.R.Civ.P. 26(c)(1)(A). But
“[w]here the discovery is relevant, the burden is upon
the party seeking non-disclosure or a protective order to
show good cause.” Dove v. Atl. Capital Corp.,
963 F.2d 15, 19 (2d Cir. 1992).
the only basis for the USA's assertion that the discovery
sought would cause “annoyance, embarrassment,
oppression, or undue burden” is that the USA
“would like to devote it[s] resources to either
attempting to settle this case, move for summary judgment
and/or prepare for trial.” Doc. #123 at 6. This is not
a sufficient basis to resist the discovery sought. Nor is the
delay in serving these requests a sufficient reason to bar
the discovery under these circumstances. See Solman v.
Corl, No. 3:15CV01610(JCH), 2016 WL 6433829, at *3 (D.
Conn. Oct. 31, 2016) (denying a protective order for lack of
good cause where discovery requests were served at the end of
discovery). Here, the requests were served just thirteen days
after the deposition of plaintiff's wife.
passing, the USA states that “surveillance activity, if
it did exist, would not be discoverable unless it was slated
to be used at trial.” Doc. #123 at 5. However, the USA
cannot indefinitely delay or avoid production simply because
it has not yet “asserted that it has plans to use any
surveillance material, to the extent it exist[s], at
trial.” Doc. #131 at 2. The USA cites three cases in
support of this claim, none of which is persuasive here. In
Marchello v. Chase Manhattan Auto Fin. Corp., the
court denied a motion to compel production of surveillance
materials, at that time, on the grounds of work product
privilege -- which, significantly, is not asserted by the USA
here. The court indicated, however, that the materials would
be provided to the plaintiff in advance of trial. See
Marchello v. Chase Manhattan Auto Fin. Corp., 219
F.R.D. 217, 220 (D. Conn. 2004). The Court sees no need for
delay of disclosure in this matter, as the USA has already
had the opportunity to depose plaintiff and other affected
persons. Donovan v. AXA Equitable Life Ins. Co.,
also cited by the USA, supports disclosure of surveillance
materials if they are to be used at trial. See Donovan v.
AXA Equitable Life Ins. Co., 252 F.R.D. 82, 82 (D. Mass.
2008). And the court in Weinhold v. Witte Heavy Lift,
Inc. based its denial of a motion to compel the
production of surveillance materials on the work product
doctrine, which, as noted, the USA does not assert
here. See Weinhold v. Witte Heavy Lift,
Inc., 90CV2096(PKL), 1994 WL 132392, at *3 (S.D.N.Y.
Apr. 11, 1994).
the USA must respond to plaintiff's September discovery
requests regarding surveillance if it intends to preserve the
right to use any surveillance materials at trial. Disclosure
of the materials is appropriate because it “will not
only allow plaintiff to review the materials for authenticity
and otherwise prepare effectively for trial, but it may also
encourage settlement of the suit, a legitimate function of
pre-trial discovery.” Daniels v. Natl R.R.
Passenger Corp., 110 F.R.D. 160, 161 (S.D.N.Y. 1986)
(requiring defendant to produce all surveillance materials in
its possession, not just those it intended to introduce at
trial, after it had been afforded the opportunity to depose
plaintiff and any other affected persons).
Court turns next to the USA's request for an order
protecting it from responding to plaintiff's requests for
admission regarding the authenticity of medical records.
These requests were propounded on September 28, 2017, just
one day before the close of discovery. See Doc. #123 at 2.
While plaintiff makes an appealing argument for the
efficiency of requiring these admissions, he offers no
explanation for the delay in serving these requests (in
contrast to the delay in serving the surveillance requests
until after the deposition of plaintiff's wife). The USA
has argued that the records are voluminous, and that
reviewing them would be burdensome. See Doc. #123 at 6, Doc.
#131 at 2-3.
for admissions may properly be used “to establish the
genuineness of certain documents which [parties] contend
prove their claims[.]” Caparelli v. Proceeds of
Freight, 390 F.Supp. 1351, 1355 (S.D.N.Y. 1974). Indeed,
Rule 36 expressly states that a request for admission may be
used to determine “the genuineness of any described
documents.” Fed.R.Civ.P. 36(a)(1)(B). However, here,
plaintiff delayed until one day before the close of discovery
before serving the requests for admissions. The records
plaintiff seeks to authenticate are plaintiff's own
medical records, which may be introduced at trial by
stipulation, by a certification, or through the treating
provider, without these admissions. Thus, plaintiff will not
be unduly prejudiced by being denied the admissions he seeks.
determining whether a discovery request is burdensome the
court must weigh the burden to the producing party against
the need of the party seeking the information.”
Cook v. United States, 109 F.R.D. 81, 85 (E.D.N.Y.
1985). Here, the burden to the USA of reviewing the medical
records outweighs the need of plaintiff to receive the
responses, as the medical records may be introduced at trial
without these admissions. Accordingly, the protective order
is granted as to the Requests for Admission.
reasons set forth above, the Court GRANTS, in part,
and DENIES, in part, the USA's Motion for
Protective Order. The motion is DENIED as to
the surveillance discovery requests. The USA shall respond to
the September discovery requests propounded by plaintiff
regarding surveillance on or before October 23,
2017, either by providing responses to the requests,
or by providing a certification that it will not use any
surveillance responsive to the requests at trial, in any way,
in its case in chief or in rebuttal. The motion is