UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Christyna Faulkner, Plaintiff

v. Case No. 12-cv-482-SM Opinion No.

Mary Hitchcock Medical Center; Jocelyn D. Chertoff; Anne M. Silas; Peter K. Spiegel; Marc L. Bertrand; and Mary Hitchcock Memorial Hospital, Defendants

O R D E R

Plaintiff, Christyna Faulkner, brings this action against

her former employer and others, advancing claims under the

Americans with Disabilities Act and the Family Medical Leave Act.

She also brings state law claims of wrongful discharge,

intentional infliction of emotional distress, and

defamation/slander. Although she was initially represented by

counsel, plaintiff is now proceeding pro se.

Pending before the court is defendants’ motion to compel

discovery, to which plaintiff objects - at least in part. For

the reasons discussed, that motion is granted in part, and denied

in part. Standard of Review

As the parties seeking to compel discovery, defendants bear

the burden of demonstrating that the materials sought are

relevant, see Caouette v. OfficeMax, Inc.,

(D.N.H. 2005), and that plaintiff’s earlier discovery

responses were either incomplete or evasive, see Vaughn v.

Bernice A. Roy Elem. Sch., No. 05-cv-223-JD,

, *1

(D.N.H. June 19, 2007). See generally Fed. R. Civ. P. 26(b)(1).

To the extent plaintiff asserts that any requested information or

materials are privileged, she bears the burden of establishing

that the privilege is applicable and has not been waived. See

Lluberes v. Uncommon Prods., LLC,

(1st Cir. 2011).

Discussion

This case was filed in 2012, and discovery has stalled. In

part, a substantial delay ensued when plaintiff’s counsel

withdrew and plaintiff sought, but was unable to secure,

alternate representation. And, no doubt, plaintiff’s

unfamiliarity with the federal rules governing discovery

(including her obligations under those rules) has contributed to

the ongoing delay.

According to defendants, in December of 2013, they

propounded interrogatories and requests for the production of

2 documents, seeking releases from plaintiff relating to financial

records, medical information, educational program applications,

and her efforts to find subsequent employment. In April,

plaintiff returned her interrogatory responses, but did not

provide any specific responses to defendants’ request for the

production of documents. Among other things, defendants pointed

out that plaintiff had not provided an executed authorization

that would allow them to obtain medical records from Dr. Michael

Sateia, who treated plaintiff at times relevant to this case.

Plaintiff also failed to provide an authorization for records

from the Electronic Residency Application Service (related to her

efforts to secure alternate employment), or an authorization from

one of her listed medical care providers, Dr. Dwaihy.

Before plaintiff’s counsel could address those shortcomings

in plaintiff’s responses, he withdrew from the case. And,

according to defendants, despite their repeated efforts over many

months to coax plaintiff into complying with her ongoing

discovery obligations, they have been unable to secure the

materials they say they need in order to properly defend this

case. In response to defendants’ most recent request that

plaintiff supplement her earlier (incomplete) discovery

responses, plaintiff stated that she had “nothing else to add as

far as my discovery responses” are concerned. E-mail from

3 Plaintiff to defense counsel dated November 13, 2014 (document

no. 48-6). Given that response, defendants felt constrained to

file the pending motion to compel.

Discussion

Defendants seek to compel plaintiff to produce three

categories of materials and information: (1) signed

authorizations for the production of information from the

Electronic Residency Application Service (“ERAS”), Westchester

Medical Center, Dr. Dwaihy, and Dr. Sateia; (2) full and complete

responses to Interrogatories 2, 6, and 14 through 18; and (3)

complete responses to each of their requests for production.

I. Authorizations and Releases.

Of the four authorizations defendants seek, plaintiff has

now agreed to provide two: one for Dr. Sateia and one for

Westchester Medical Center. As for Dr. Dwaihy, plaintiff says

she has no knowledge of who he is, and says she never received

treatment from him. But, according to defendants, plaintiff’s

medical records from another treating physician identify Dr.

Dwaihy as the “referring physician.” And, in a section

describing the “reason for evaluation,” those records state that

plaintiff had been “referred by Dr. Dwaihy for evaluation and

advice” regarding a medical condition at issue in this case. Out

4 of concern for plaintiff’s privacy, defendants have not submitted

those medical records, but have offered to do so under seal.

On this record, defendants have shown that the medical files

of Dr. Dwaihy are relevant or, at a minimum, likely to lead to

the discovery of relevant information. Accordingly, plaintiff

shall produce the requested authorization for access to her

medical records with Dr. Dwaihy.

Finally, plaintiff asserts that she need not provide an

authorization to obtain her applications to medical residency

programs and related materials from ERAS. Although she does not

assert that those records are privileged, she argues that they

are not relevant because she has not used that system as part of

a job search for several years. On balance, however, defendants

have demonstrated that such information is relevant to this

proceeding. Accordingly, plaintiff shall produce the requested

authorization to obtain her records from ERAS.

II. Interrogatory Responses.

Next, defendants say that plaintiff’s responses to several

interrogatories are incomplete. Plaintiff, on the other hand,

says she has provided answers that are as complete as her memory

permits. Moreover, she says the answers to all of the questions

5 posed by defendants are contained in her medical records (copies

of which she says she does not have and cannot afford to obtain).

Having compelled plaintiff to produce the requested medical

releases, the court concludes that it is premature to require her

to give more comprehensive responses to the interrogatories

identified by defendants. After defendants have obtained and

reviewed all of plaintiff’s relevant medical records, they may,

at that point, renew their motion to compel to the extent there

remains a good faith basis to do so. Parenthetically, the court

notes that it expects defendants will be able to obtain much, if

not all, of the information they seek when they take plaintiff’s

deposition.

III. Requests For Production.

Finally, defendants complain that plaintiff has only

partially complied with their request for the production of

relevant documents.

That partial production included incomplete e-mail chains, and e-mails that refer to attachments that are not included in the production. It omitted e-mail and materials that the Plaintiff produced during the course of an EEOC investigation. It does not include communications with other residents. It was completely devoid of any residency application materials. The Plaintiff maintains a website or blog, involving communications with people about her case, but she has not provided any of those materials.

6 Defendants’ Memorandum (document no. 48) at 5. In response,

plaintiff says, “This is not my intention. I have a huge file to

go through. I am doing my best to do so. I was under the

impression that the Defendants have some of the information they

are requesting again.” Plaintiff’s Response (document no. 52).

at 4. She also says she believes she previously provided some

materials (e.g., e-mail attachments) to her former counsel. She

has not asserted that any of the requested documents are

privileged.

To be sure, some of the information defendants seek will be

contained in the soon-to-be acquired medical records. There are,

however, many documents to which defendants do not have access

(such as e-mails plaintiff sent to herself as reminders, diaries,

calendars entries, witness statements, and letters of inquiry

and/or applications to other medical residency programs).

Plainly, those documents are relevant and plaintiff must produce

them. That plaintiff “believes” she may have already produced

some of those materials to her former counsel, is not

particularly helpful. To the extent she no longer possesses such

documents, she may (and probably should) contact her former

counsel, seeking the return of those materials, so copies may be

provided to defendants.

7 While the task of responding to defendants’ discovery

requests may seem daunting, and although the “file” she maintains

on this case may be substantial, plaintiff has had ample

opportunity to review defendants’ requests and gather responsive

materials. It is time for her to produce those requested

documents.

Conclusions

For the foregoing reasons, as well as those set forth in

defendants’ memoranda, defendants’ motion to compel (document no.

48) is granted in part and denied (without prejudice) in part.

Accordingly:

1. On or before April 10, 2015, plaintiff shall provide written medical releases/authorizations for Dr. Sateia, Westchester Medical Center, Dr. Joseph Dwaihy, and the Electronic Residency Application Service (ERAS); and

2. On or before April 30, 2015, plaintiff shall provide responses to defendants’ Requests for Production.

To the extent defendants move to compel plaintiff to provide more

complete answers to certain identified interrogatories (nos. 2,

6, and 14 through 18), their motion is denied, without prejudice

to refiling once defendants have obtained and reviewed the

requested medical records.

8 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 27, 2015

cc: Christyna Faulkner, pro se Christopher J. Pyles, Esq. Edward M. Kaplan, Esq.

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