Bonno et al v. Sanford Clinic North et al

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Case 3:16-cv-00114-TLB-ARS Document 335 Filed 06/12/19 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
THE FAMILIES ADVOCATE, LLC,
an Arizona Limited Liability Corporation,
as Conservator of D.M., a Minor;
and SARINA BONNO and JULIAN MORENO,
Individually PLAINTIFFS
V. CASE NO. 3:16-CV-00114
SANFORD CLINIC NORTH d/b/a
SANFORD CLINIC JAMESTOWN;
SARAH SCHATZ, M.D.; and LUTHERAN
CHARITY ASSOCIATION d/b/a
JAMESTOWN REGIONAL MEDICAL CENTER DEFENDANTS
ORDER

Now before the Court is Plaintiffs’ Motion for Sanctions (Doc. 249), which was the
subject of oral argument during the Court's pretrial hearing on May 30, 2019. The motion
arises out of a long-standing discovery dispute between the parties, which became the
subject of an evidentiary hearing presided over by Magistrate Judge Alice R. Senechal
on April 29, 2019. See Judge Senechal’s Order Addressing Discovery Dispute, Doc. 181.
As the Court explained during the May 30 hearing, Plaintiffs’ request for sanctions is
based on their contention that Defendants did not identify and produce non-privileged
documents and correspondence according to the requirements of the Federal Rules of
Civil Procedure and failed to comply with a Court order issued on January 9, 2019 (Doc.
118), which required the production of privilege logs of communications between defense
counsel and retained experts.

As to Plaintiffs’ first basis for sanctions, their argument that a discovery violation

occurred is based on their interpretation of a version of Rule 26(b) that is no longer in

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 3:16-cv-00114-TLB-ARS Document 335 Filed 06/12/19 Page 2 of 3

force. Plaintiffs believe certain communications between Defendants’ attorneys and their
experts needed to be disclosed at an earlier point in discovery, and Defendants maintain
that these communications were privileged and did not need to be disclosed at all
because they did not fall under the three limited sxcudtions to the privilege in Rule
26(b)(4)(C)(i)-(iii). The Court agrees for the reasons stated from the bench during the
pretrial hearing on May 30.

Moreover, with respect to the medical indexes and summaries that Defendants’
attorneys prepared for their experts—which are at the heart of Plaintiffs’ request for
sanctions—even if the Court assumed that these documents were not privileged, Plaintiffs
have not established that they were prejudiced by any failure to produce the documents
earlier in the litigation. Defendants have provided the Court with multiple excerpts of
defense expert depositions in which the experts all testified that they relied only on the
medical records in the file in forming their opinions, and that they brought those records
with them to their depositions. See Doc. 352-2. Plaintiffs argued in their motion and
during the May 30 hearing that these experts must not have been telling the truth about
relying only on the source documents, as several of them testified incorrectly about D.M.’s
Apgar scores, using scores that appeared in the lawyer-generated medical summaries,
rather than the ones that appeared in the medical records themselves. To that argument,
Defendants have responded that Plaintiffs had the opportunity to question—and did
question—these experts about the Apgar scores, so no prejudice has resulted. See Doc.
325 at11. Again, the Court agrees.

Finally, with respect to Plaintiffs’ argument that sanctions are appropriate due to

Defendants having violated the Court's January 9 order, Magistrate Judge Senechal

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thoroughly considered this issue in an opinion issued shortly after her hearing in April.
The Court endorses Judge Senechal’s reasoning and agrees with her ultimate finding
that Defendants did not violate the January order. See Doc. 181 at 4-5 (“This court's
January 9, 2019 order did not require defendants to produce any additional documents.
Rather, it required they produce privilege logs. Though defendants appear to have
asserted privilege with a very broad sweep, they timely complied with the order to prepare
privilege logs. Accordingly, the failure to obey a Court order is not a valid basis for issuing
sanctions in this case.”).

For all these reasons and for the reasons stated from the bench during the May 30
hearing, IT IS ORDERED that the Motion for Sanctions (Doc. 249) is DENIED.

IT IS SO ORDERED on this [ABaay of June, 2019.

ss
a tnireb STATES DISTRICT JUDGE