Opinion
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Renate M. Benham, Princeton, NJ, pro se.
MEMORANDUM OPINION
FACCIOLA, United States Magistrate Judge.
This case was referred to me for discovery. Currently pending and ready for resolution are six motions. Each will be considered in turn.
I. Plaintiff's Motion to Strike Defendant's Defenses for Failure to Provide Discovery, to Compel Defendant's Responsive Answers to Plaintiff's Discovery Demands, and to Extend Plaintiff's Discovery Period, and to Bar Witnesses Not Named in Defendant's 26(a) Discovery and Points and Authorities Thereof [# 43]
In two memorandum opinions, Judge Kennedy has set forth the fundamental facts of this case and the procedural history. See Benham v. Rice, No. 03-CV-1127, 2005 WL 691871 (D.D.C. March 24, 2005); Benham v. Powell, Civ. No. 00-2466 (D.D.C. April 13, 2004). Suffice it to say here that one case, 00-2466, involves plaintiff's being transferred by the State Department, at the risk of losing her job, from Seattle to Washington, D.C. The second, 03-1127, is based on the acts of an Assistant United States Attorney who, while representing the government in 00-2466, faxed a certain document to plaintiff at plaintiff's place of employment.
By this motion, plaintiff seeks to compel the defendant's responses to her discovery requests and to bar them from presenting certain defenses or witnesses. As will now be established, however, plaintiff's discovery requests are nearly all overbroad or otherwise objectionable.
Since plaintiff complains about the defendant's responses to nearly every document request she made and every interrogatory she propounded, I have used the following chart to identify plaintiff's request or interrogatory, the government's objection, my ruling, and the reason for it. Furthermore, as noted at the hearing, it is not the court's function to modify plaintiff's demands so that, as revised, they are reasonable and legitimate.
#Summary of Document Request
Summary of Objection
Court's Ruling
1.
All trial exhibits.
Defendant has not yet decided which exhibits it intendsto use but will disclose them once a decision has beenmade.
Sustained. Under Rule 26(a)(3), defendant must provideplaintiff with certain pretrial disclosures, includinga list of the specific exhibits it intends to use attrial. As I explained at the hearing held onplaintiff's motions, she will certainly be providedwith a copy of the defendant's exhibits, pursuantto this Rule and to Judge Kennedy's pre-trialorder, well in advance of trial. Her demand istherefore premature.
2.
All documents to be used in the defense.
Request is vague and overbroad. Responsive documentsare in the ROIs and in the records from theadministrative proceedings.
Sustained. See Court's Ruling as to # 1.
3.
All documents provided to consultants or experts whowill testify at trial.
Defendant has not employed any experts.
Sustained. Obviously, defendant cannot be compelled toproduce anything it gave to experts if it does notintend to call any experts.
4.
All documents generated by consultants or experts thatwill be used at trial.
Defendant has not employed any consultants or experts.
Sustained. See Court's Ruling as to # 3.
5.
All documents identified in response to plaintiff'sfirst set of interrogatories.
Responsive documents are in the ROIs and in the recordsfrom the administrative proceedings.
Sustained. If, as defendant represents, the documentsit referred to in its response to the first set ofinterrogatories are in these documents, its answer issufficient.
6.
All documents relating to the incidents alleged in thecomplaint.
Relevance. Request is vague, overbroad, and undulyburdensome. Responsive documents are in the ROIs.
Sustained. Again, if, as defendant represents, all thedocuments relating to the incidents alleged in thecomplaint are in the ROIs, defendant has answered therequest. Of course, defendant would be precluded fromrelying on a document that is not in the ROI if it doesnot make it available to the plaintiff forthwith.
7.
From 1/1/87-present, all documents relating tocomplaints made by passport services employees.
Relevance. Request is vague, overbroad, and undulyburdensome. Responsive documents contain informationprotected by the Privacy Act.
Sustained. As Judge Kennedy indicated, plaintiff wasemployed by the State Department in 1992 and hertransfer occurred in 1995. Memorandum Opinion at 2. Theactivities of the Assistant United States Attorneyabout which she complains in 03-1127 occurred in 2002.Complaints made about any topic under the sun fiveyears before she began working for the State Departmenthave nothing to do with her case.
8.
From 1/1/90-present, all documents relating toemployment decisions made as to all passport servicesemployees.
Relevance. Request is vague, overbroad, and undulyburdensome. Responsive documents contain informationprotected by the Privacy Act.
Sustained. On its face, this would call for theproduction of every piece of paper in every personnelfile of any passport office in the United Statesinsofar as that piece of paper related to anyemployment decision. This request is patentlyoverbroad.
9.
All documents relating to the employment of all Seattlepassport agency employees, including those documentsrelating to specified employees, from their date ofhire to the present.
Relevance. Request is vague, overbroad, and undulyburdensome. Responsive documents contain informationprotected by the Privacy Act.
Sustained for the same reasons as # 8. Indeed, this oneis broader; it requires all documents relating to everyemployee's employment.
10.
From 1/1/87-present, all documents relating togrievance information about State Department employees,including documents relating to specified employees.
Relevance. Request is vague, overbroad, and undulyburdensome. Responsive documents contain informationprotected by the Privacy Act.
Sustained. Again, the request seeks documents createdbefore plaintiff even went to work at the StateDepartment to the present day (19 years later),irrespective of the nature of the grievance. Therequest is patently overbroad.
11.
From 1/1/87-present, all documents relating to mobilityinformation about all Consular Affairs employees.
Relevance. Request is overbroad and unduly burdensome.Responsive documents contain information protected bythe Privacy Act.
Sustained. Again, the period of time for which thedocuments is sought is 19 years. At the hearing,plaintiff indicated that " mobilityagreements" came into existence in 2000 and thatthe fact that defendants required such agreements (bywhich an employee agreed to move at thegovernment's discretion) was relevant to her casein that it represented a change of policy. Transcriptof hearing of July 10, 2006 at 50-52. But, what littleprobative value that evidence might have is overwhelmedby the burden it would impose on the defendants.
12.
From 1/1/87-to present, all visit, investigation, andreport information relating to specified offices withinthe State Department.
Relevance. Protected by the work-product andattorney-client privileges. Request is overbroad andunduly burdensome.
Sustained. Again, information about visits to andinvestigations of offices within the State Departmentfor 19 years, for whatever reason, has no relevancewhatsoever to this case.
13.
From 1/1/90-present, all files, kept in specifiedlocations, relating to all Passport Agency employees.
Relevance. Request is overbroad and unduly burdensome.Responsive documents contain information protected bythe Privacy Act.
Sustained. The production of all files for employeesfor a 15-year period, irrespective of their content, ispatently overbroad.
14.
From 1/1/87-present, all files for Consular Affairsemployees containing complaints of workplacedissatisfaction, as maintained by specified officeswithin the State Department.
Relevance. Protected by the work-product andattorney-client privileges. Request is overbroad andunduly burdensome. Responsive documents containinformation protected by the Privacy Act.
Sustained. The production of all files in a 19-yearperiod for all complaints of workplace dissatisfaction,irrespective of the nature or cause of thedissatisfaction, is patently overbroad.
15.
From 1/1/92-present, all documents relating toplaintiff's transfer from the Seattle PassportAgency office, as maintained by specified individuals.
Request is overbroad. Relevant documents are in theROIs. Responsive documents contain informationprotected by the Privacy Act.
Sustained. I will hold the government to itsrepresentation that all documents relating to hertransfer are in the ROIs.
16.
From 1/1/90-present, all correspondence betweenspecified managers, supervisors, and employees relatingto plaintiff.
Relevance. Request is vague, overbroad, and undulyburdensome. Relevant documents are in the ROIs.
Sustained. All correspondence, irrespective of subjectmatter, would necessarily require the production ofdocuments that have nothing to do with this case.
17.
From 1/1/90-present, all correspondence betweenspecified managers, supervisors, and employees relatingto plaintiff.
Request is overbroad and unduly burdensome. Responsivedocuments contain information protected by the PrivacyAct.
Sustained, for the same reason as # 16.
18.
From 1/1/87-present, all documents relating to thepromotion of all passport office regional directors.
Relevance. Request is overbroad and unduly burdensome.Responsive documents were provided during theadministrative process.
Sustained. Again, a request for documents produced in a19-year period relating to the promotion of everyregional director is patently overbroad. While there isa theoretical possibility that plaintiff might compareherself to a regional director who was treateddifferently, that possibility cannot justify thebreadth of the demand she makes.
19.
From 1/1/87-present, personal and professionalinformation relating to all regional directors.
Request is overbroad and unduly burdensome. Responsivedocuments contain information protected by the PrivacyAct.
Sustained for the same reason as # 18.
20.
From 1/1/87-present, all documents relating to thesupervision of plaintiff.
Request is overbroad and unduly burdensome. Responsivedocuments are in the ROIs.
Sustained in part. The government represents that allresponsive documents are in the Reports ofInvestigation. I will ask it to make sure that thereare no documents " relating to hersupervision" in the period from 1992-1995 that arenot in the ROIs. If there are, plaintiff must be giventhem.
21.
From 1/1/87-present, all documents relating toallegations of plaintiff's incompetence orinsubordination.
Request is overbroad and unduly burdensome. Responsivedocuments were provided during the administrativeprocess.
Sustained in part. Again, I will hold the government toits representation that there are no other documentsrelating to her incompetence or insubordination otherthan the ones given her during the administrativeprocess. If the government finds that there are othersuch documents, it must give them to plaintiff.
22.
From 1/1/90-to present, all correspondence betweenmanagers and non-managers about plaintiff.
Request is overbroad and unduly burdensome.
Sustained. All correspondence would by necessityinclude correspondence that is not relevant to a claimor defense. The request is overbroad.
23.
From 1/1/90-present, all documents supportingdefendant's claim that plaintiff was not retaliatedagainst.
Request is overbroad and unduly burdensome. Responsivedocuments are in the ROIs and records of theadministrative proceedings.
Sustained. Again, I will hold the government to itsrepresentation that there are no other responsivedocuments that are not in the ROIs. If there are, Iexpect the government to give them to plaintiff.
24.
From 1/1/87-present, all documents relating to passportservices employee complaints.
Relevance. Protected by work-product privilege.Overbroad and unduly burdensome. Responsive documentscontain information protected by the Privacy Act.
Sustained. A demand for complaints for a 19-yearperiod, irrespective of the nature of the complaintsand the person against whom the complaint was made, ispatently overbroad.
25.
From 1/1/90-present, all documents relating to visitsfrom the OIG to all passport services offices.
Request is overbroad and unduly burdensome. Relevance.
Sustained. A demand for information about visits by theOffice of Inspector General to passport offices allover the United States, irrespective of the reason forthe visit, is patently overbroad.
26.
State Department disciplinary rules and procedures ineffect from 1/1/92-present.
Overbroad. Information is available at State Departmentwebsite.
Overruled. If the information is available on thewebsite for the period in question, 1992-1995, thegovernment will make a printed version available toplaintiff.
27.
All documents in effect from 1/1/95-1/1/98 relating tothe authority for plaintiff's transfer.
No objection. These will be provided.
n/a.
28.
All documents to and from regional directors relatingto a broad range of specified personnel matters.
Relevance. Request is overbroad and unduly burdensome.
Sustained. A demand for every document pertaining topersonnel matters authored by a regional directoranywhere in the United States is patently overbroad.
29.
From 1/1/90-1/1/00, copies of work products and statusreports provided by plaintiff to specified employees.
Relevance. Request is overbroad and unduly burdensome.
Overruled. The government will have to provide toplaintiff any document on which it intends to rely toestablish the justification for the actions about whichplaintiff complains.
30.
Documents relating to a " Three Year Plan" ineffect from 1992-1995.
Relevance. Defendant is not aware of such a plan but isstill searching.
Sustained. All documents relating to the "Plan" (whatever it is) are not relevant to a claimor defense.
31.
Documents relating to specified employee policies ineffect from 1/1/92-present.
Request is overbroad. Information is available at StateDepartment website.
Sustained. A demand for documents pertaining toemployee policies, irrespective of the topic, ispatently overbroad.
32.
From 1987-present, statistics relating to passportproduction, staff resources, and work transfers.
Relevance. Request is overbroad and unduly burdensome.
Sustained. A demand for statistics over a 19-yearperiod is patently overbroad.
33.
From 1/1/96-present, all documents relating toplaintiff's request for a compassionate transfer.
Documents relating to plaintiff's transfer havealready been turned over. Defendant will supplement theresponse if needed.
Sustained. Defendant has turned over the relevantdocuments.
34.
From 1/1/96-present, all correspondence from StateDepartment employees who have requested transfers andother specified personnel actions.
Relevance. Request is overbroad and unduly burdensome.Responsive documents contain information protected bythe Privacy Act.
Sustained. A demand for all requests for transfers andother personnel actions over a 19-year period, whenplaintiff complains about a single transfer, ispatently overbroad.
35.
All documents relating to plaintiff's request for acompassionate transfer.
See objections to # 33.
Sustained. See Court's Ruling as to # 33.
36.
All documents relating to plaintiff's complaintthat have not yet been produced.
Request is overbroad, vague and burdensome. Responsivedocuments and in the ROIs.
Sustained. I will hold the government to itsrepresentation that all records relating to thecomplaint are in the ROIs. If there are any others,defendant must give them to plaintiff.
#Summary of Interrogatory
Summary of Objection
Court's Ruling
1(a).
Describe all incidents of discrimination and identifythe individuals who committed them.
Employment-related decisions were made for legitimatenondiscriminatory reasons.
Sustained. It is plaintiff's burden to specify herclaim, not the government's.
1(b).
Identify persons with knowledge of the actions orincidents identified in response to 1(a).
Interrogatory is vague, unduly burdensome, andoverbroad. Employment-related decisions were made forlegitimate nondiscriminatory reasons. All persons withknowledge were named in the ROIs, the records ofadministrative proceedings, and defendant's26(b)(1) disclosure.
Sustained. It appears to me that the government hasanswered the question.
1(c).
Identify documents relating to the actions or incidentsidentified in response to 1(a).
Interrogatory is vague, unduly burdensome, andoverbroad. Employment-related decisions were made forlegitimate nondiscriminatory reasons. All persons withknowledge were named in the ROIs and the records ofadministrative proceedings.
Sustained. Again, I will hold the government to itsrepresentation that all pertinent documents arecontained in the ROIs and oblige it to produce anyothers of which it is aware.
1(d).
State facts relied upon in support of defense thatactions or incidents identified in response to 1(a)were not unlawful.
Interrogatory is vague, unduly burdensome, andoverbroad. Employment-related decisions were made forlegitimate non-discriminatory reasons.
Sustained in part. As I read the government'sresponse, it has answered this interrogatory byindicating why it made the decision it did. In anabundance of caution, I will require it to state thespecific facts upon which it will rely to establish thebases for its legitimate, non-discriminatory reasons.
2.
With regard to plaintiff's complaints ofdiscrimination, identify individuals similarly situatedto plaintiff.
Interrogatory is vague. No other directors weresimilarly situated.
Sustained. Since plaintiff does not indicate a specificcharacteristic, it is impossible to state who issimilarly situated to her.
3.
Indicate whether specified individuals were involved inany litigation and provide detailed information aboutthe lawsuits.
Interrogatory is overbroad and unduly burdensome.Responsive documents contain information protected bythe Privacy Act.
Sustained. Lawsuits of any kind would includelandlord-tenant, divorces and dog bites. The request ispatently overbroad.
4.
Identify lawsuits filed against specified individualsand provide detailed information about the lawsuits.
Interrogatory is overbroad and unduly burdensome.Responsive documents contain information protected bythe Privacy Act.
Sustained for the same reason as # 3.
5.
Identify whether any documents responsive toplaintiff's first document request have beendestroyed and explain why they were destroyed.
As to requests that defendant has not objected to,defendant will attempt to discern whether responsivedocuments have been destroyed.
Granted, insofar as I expect the government to finishits investigation into whether any documents weredestroyed promptly and report its result to plaintiff.
6.
Identify all witnesses including experts and providesummaries of their expected testimony.
Protected by the work-product privilege. Witnesses werenamed in defendant's 26(a)(1) disclosure.
Sustained. The government will be held to the witnessesit named in its initial disclosure and has representedthat it will not be calling any experts. For theconsequences to the government of not supplementing itsinitial disclosure with new witnesses and documents,see Coles v. Perry, No. 01-CV-732, 2002 WL1263979 (D.D.C. June 7, 2002).
7.
Identify persons with knowledge of facts supportingdefendant's defense.
Individuals were named in the ROIs, the records ofadministrative proceedings, and defendant's26(a)(1) disclosure.
Sustained. The government has answered thisinterrogatory.
8.
Identify documents relating to the complaint andindicate whether and under what circumstances they havebeen destroyed.
Responsive documents were identified in the ROIs andrecords of administrative proceedings.
Sustained because (a) the government appears to me tohave answered this interrogatory and (b) insofar as itdemands documents relating to plaintiff's prolixcompliant, other than those already appearing in theROI and the administrative proceedings, it isoverbroad.
9.
Identify individuals who provided written and oralstatements relating to the complaint and provideinformation about those statements.
Responsive documents were identified in the ROIs andrecords of administrative proceedings.
Sustained because, as I read the government'sanswer, it is stating that the only statements of suchpeople are in the ROIs and records of administrativeproceedings and that is a sufficient answer.
10.
Provide information about each expert witness that willtestify at trial.
Defendant does not, at this point, intend to call anexpert witness.
n/a.
11.
Identify facts that support the defense.
Responsive facts were identified in the ROIs andrecords of administrative proceedings.
Sustained in part, with the understanding that (asindicated above) the government will state specificallywhat facts support its defense that plaintiff'stransfer was for a legitimate business reason.
12.
Provide a description of all allegations ofdiscriminatory behavior made against defendant.
Protected by the work-product privilege. Responsivefacts were identified in the ROIs and records ofadministrative proceedings.
Sustained. The government has no obligation tocharacterize its own behavior as discriminatory.
13.
Explain why Mary Ryan left the State Department.
Relevance. Ryan retired. Responsive informationprotected by the Privacy Act.
Sustained. The government, by indicating that Ryanretired, appears to me to have answered the question.
14.
From 1/1/87-present, for all passport offices, provideinformation about mobility agreements.
Interrogatory is overbroad and unduly burdensome.
Sustained for the reasons stated above in my ruling asto request for production of documents # 11.
15.
From 1/1/87-present, identify all individuals at theGS-14 and GS-15 levels who came or left the Bureau ofConsular Affairs, including those who were transferred.
Interrogatory is overbroad and unduly burdensome.
Sustained. A demand for information about peopleleaving a government office in a 19-year period forwhatever reason is patently overbroad.
16.
From 1/1/90-present, list all employment relatedactions taken with respect to employees of the SeattlePassport Agency and all regional directors.
Interrogatory is overbroad and unduly burdensome.Responsive information protected by the Privacy Act.
Sustained. A demand for information about "employee related actions" for a 15-year periodwhen there is no showing that the information bears inany way on plaintiff's case is patently overbroad.
17.
From 1/1/92-present, provide names and otherinformation about all parties involved inplaintiff's transfer.
Responsive information was provided in the ROIs andrecords of administrative proceedings.
Sustained, with the understanding that there are noother persons involved in plaintiff's transferother than those identified in the ROIs and theadministrative proceedings.
18.
Describe the " position upgrade managementplan."
Defendant will provide a response shortly.
I expect the government to do so promptly.
II. Plaintiff's Motion to Stay Deposition and Points and Authorities Thereof [# 47]
19.
Provide all communications relating to the complaint.
Interrogatory is vague, overbroad, and undulyburdensome. Responsive information was provided in theROIs and records of administrative proceedings.Protected by attorney-client and work-productprivileges.
Sustained. A demand for all communications pertainingto plaintiff's prolix complaint irrespective of thenature, time and purpose of the communication ispatently overbroad.
By this motion, plaintiff seeks to stay her deposition, pending resolution of Plaintiff's Motion to Strike Defendant's Defenses for Failure to Provide Discovery, to Compel Defendant's Responsive Answers to Plaintiff's Discovery Demands, and to Extend Plaintiff's Discovery Period, and to Bar Witnesses Not Named in Defendant's 26(a) Discovery and Points and Authorities Thereof [# 43]. I have now resolved that motion and this motion will therefore be denied as moot. I have ordered some minor supplementation of the government's answers. I expect the government to provide that supplementation as soon as it can. As soon as it does, the government may take plaintiff's deposition.
III. Defendants' Memorandum of Points and Authorities in Support of Motion for Independent Medical Examination and to Compel Production of Healthcare Records (" Defs. IME Mot." ) [# 53]
In this motion, defendant first moves to compel plaintiff to submit to an independent medical examination (" IME" ), arguing that under Rule 35 of the Federal Rules of Civil Procedure, plaintiff has placed her mental condition in controversy and that there exists good cause for such an examination. Defs. IME Mot. at 3. Defendant also moves to compel the production of certain healthcare records.
In opposing defendant's motion for an independent medical examination and in seeking a protective order, plaintiff argues that her claim of emotional distress is insufficient to compel an independent medical examination or the production of plaintiff's medical records. Plaintiff's Opposition to Motion for Independent Medical Examination and Plaintiff's Motion for a Protective Order (" Plains. IME Opp." ) at 1. Plaintiff argues that the information is privileged and irrelevant and that she has not placed her medical condition at issue. Id. at 2. According to plaintiff, she is only making " garden variety" claims of emotional pain, suffering, inconvenience and mental anguish. Id. at 4. Plaintiff further indicates that to the extent she previously made claims of alleged physical and emotional harm, she is now withdrawing them. Id. I recently described at length a movant's burden when seeking an IME under Rule 35(a):
When moving for an IME under Rule 35(a), the movant must establish that the " mental or physical condition ... is in controversy" and that there is " good cause" for the motion to be granted and the party to be submitted for an IME. Fed.R.Civ.P. 35(a). " A plaintiff in a negligence action who asserts a mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury." Schlagenhauf v. Holder, 379 U.S. 104, 119, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (citation omitted). In some situations, the pleadings alone may place the condition in controversy. Id.
The standard for " good cause" is not as clear because " what may be good cause for one type of examination may not be so for another." Id. The movant's ability to obtain the desired information by means other than an IME is also relevant to the " good cause" analysis. Id. When the submission of a party to an IME is contested, granting the order to submit to the examination is not a matter of right but is left to the sound discretion of the trial court. Smith v. Koplan, 215 F.R.D. 11, 12 (D.D.C.2003) (citations omitted).
In addition to the " in controversy" and " good cause" requirements, Rule 35(a) demands that the movant " specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." Fed.R.Civ.P. 35(a).
Doe v. District of Columbia, 229 F.R.D. 24, 26 (D.D.C.2005).
In Smith v. Koplan, I held unequivocally that " an employee who seeks compensatory damages for emotional pain suffered as a result of employer's action has placed the existence and extent of their alleged mental injury in controversy, giving the employer good cause to seek examination." Id. at 13 (citing Shepherd v. Am. Broadcasting Co., Inc., 151 F.R.D. 194, 212-13 (D.D.C.1993) and Gattegno v. Pricewaterhousecoopers, LLP, 204 F.R.D. 228 (D.Conn.2001)). While I am aware that my views are in the minority, for the following reasons I adhere to them nonetheless.
See Fox v. The Gates Corp., 179 F.R.D. 303, 307 (D.Col.1998) (" The majority of courts, however, will not require a plaintiff to submit to a medical examination unless, in addition to a claim for emotional distress damages, one or more of the following factors is present: (1) plaintiff has asserted a specific cause of action for intentional or negligent infliction of emotional distress; (2) plaintiff has alleged a specific mental or psychiatric injury or disorder; (3) plaintiff has claimed unusually severe emotional distress; (4) plaintiff has offered expert testimony in support of her claim for emotional distress damages; and (5) plaintiff concedes that her mental condition is ‘ in controversy’ within the meaning of Fed.R.Civ.P. 35(a)." ) (citations omitted); Turner v. Imperial Stores, 161 F.R.D. 89, 97 (S.D.Cal.1995) ( " This court concludes that ‘ emotional distress' is not synonymous with the term ‘ mental injury’ as used by the Supreme Court in Schlagenhauf v. Holder for purposes of ordering a mental examination of a party under Rule 35(a), and specifically disagrees with those few cases holding that a claim for damages for emotional distress, without more, is sufficient to put mental condition ‘ in controversy’ within the meaning of the Rule. If this were the law, then mental examinations could be ordered whenever a plaintiff claimed emotional distress or mental anguish. Rule 35(a) was not meant to be applied in so broad a fashion." ).
To divide claims, as plaintiff would have me do, between those that only allege " garden variety" emotional distress and those that allege a specific or severe form of emotional distress is no more than a game of semantics and has nothing whatsoever to do with defendant's obligation to show good cause for the ordering of an IME. In other words, no matter what changes plaintiff makes to the wording of her two complaints, the underlying truth remains: plaintiff seeks compensatory damages for the emotional pain she claims to have suffered as a result of defendant's actions. Without the information obtained through a court-ordered IME, defendant would have no means to rebut plaintiff's claims. I cannot fairly deprive defendant of the opportunity to examine plaintiff's claims of emotional distress from a scientific vantage point. In other words, defendant has the right to challenge plaintiff's claim that she was harmed and that defendant was the source of that harm. To preclude defendant from being able to mount its defense in this manner would be to allow plaintiff to unilaterally determine which evidence will and which evidence will not be admissible. The defendant is no more bound by plaintiff's articulation of the issues in this case at it would be in any other case.
Having so concluded, I therefore continue to follow the line of reasoning articulated by those cases that recognize defendants' need to utilize the data obtained from an IME in their defense of claims for compensatory damages for emotional distress. See Jansen v. Packaging Corp. of America, 158 F.R.D. 409, 410 (N.D.Ill.1994) (" There is no question that by advancing such intangible harms as a component of her damages claim Jansen has not only placed her mental condition ‘ in controversy’ but has confirmed the existence of ‘ good cause’ for [defendant's] motion ..." ) (citation omitted); Smedley v. Capps, Staples, Ward, Hastings and Dodson, 820 F.Supp. 1227, 1232 (N.D.Cal.1993) (holding that plaintiff's intent to present evidence of " normal" emotional distress warrants the ordering of an IME so that defendants can refute such evidence); Zabkowicz v. West Bend Co., 585 F.Supp. 635 (E.D.Wis.1984) (" Because the plaintiffs allege emotional distress, an examination by a nominee of the defendants is appropriate." ).
IV. Plaintiff's Motion to Compel Production of Privilege Logs and to Compel Production of Documents for In Camera Inspection and Points and Authorities Thereof [# 57]
Plaintiff, whether pro se or not, should be more careful in the representations she makes to the court. She stated that the government claims a privilege for " almost every one of its responses to Plaintiff's requests for discovery." Plaintiff's Motion to Compel Production of Privilege Logs and to Compel Production of Documents for In Camera Inspection and Points and Authorities Thereof at 2. In fact, the government claimed the work-product and attorney-client privileges in response to Request for Production of Documents 12, 14, and 24. In any event, I have sustained the government's objections to these two requests and the motion will therefore be denied as moot.
V. Plaintiff's Opposition to Motion for Independent Medical Examination and Plaintiff's Motion for a Protective Order [# 60]
For the reasons stated in subsection III, this motion, seeking a protective order against the independent medical examination I am permitting, will be denied.
VI. Plaintiff's Motion to Amend Claims Relating to Physical and Emotional Harm [# 61]
This motion will be granted with the understanding that, if granted, it will not be permitted to revive any claim that Judge Kennedy has dismissed.
VII. Defendant's Motion to Strike, Or, In the Alternative, Reply in Support of Motion for An Independent Medical Examination [# 64]
This motion, claiming that plaintiff's opposition to the government's motion to compel plaintiff's independent medical examination was filed late, will be denied as moot since I have resolved that motion in the government's favor.
VIII. Defendant's Motion for Protective Order [# 73]
This motion will be denied without prejudice because it is unclear at this point whether the defendant, in complying with the order I am now issuing, will have to produce any additional documents subject to the Privacy Act.
IX. Plaintiff's Motion for Sanctions and Reply to: Defendant's Response to Order to Submit Document for In-Camera Inspection and Defendant's Motion for a Protective Order [# 75]
This motion, premised on the defendant's not producing privileged documents for my evaluation, will be denied. As the defendant correctly points out, it was appropriate for the defendant to await my ruling on its objection and plaintiff's motion to compel before complying with my order because, until I ruled, it was impossible for the defendant to know what documents, if any, it had to produce and which, if any, were privileged. There is therefore nothing in the government's behavior in this case that warrants any sanctions whatsoever. This motion will be denied.
CONCLUSION
An Order accompanies this Memorandum Opinion.
ORDER
In accordance with the accompanying Memorandum Opinion, the following is, hereby, ORDERED:
1. Plaintiff's Motion to Strike Defendant's Defenses for Failure to Provide Discovery, to Compel Defendant's Responsive Answers to Plaintiff's Discovery Demands, and to Extend Plaintiff's Discovery Period, and to Bar Witnesses Not Named in Defendant's 26(a) Discovery and Points and Authorities Thereof [# 43] is GRANTED in part and DENIED in part.
2. Plaintiff's Motion to Stay Deposition and Points and Authorities Thereof [# 47] is DENIED as moot.
3. Defendants' Memorandum of Points and Authorities in Support of Motion for Independent Medical Examination and to Compel Production of Healthcare Records [# 53] is GRANTED.
4. Plaintiff's Motion to Compel Production of Privilege Logs and to Compel Production of Documents for In Camera Inspection and Points and Authorities Thereof [# 57] is DENIED as moot.
5. Plaintiff's Opposition to Motion for Independent Medical Examination and Plaintiff's Motion for a Protective Order [# 60] is DENIED.
6. Plaintiff's Motion to Amend Claims Relating to Physical and Emotional Harm [# 61] is GRANTED nunc pro tunc.
7. Defendant's Motion to Strike, Or, In the Alternative, Reply in Support of Motion for An Independent Medical Examination [# 64] is DENIED as moot.
8. Defendant's Motion for Protective Order [# 73] is DENIED without prejudice.
9. Plaintiff's Motion for Sanctions and Reply to: Defendant's Response to Order to Submit Document for In-Camera Inspection and Defendant's Motion for a Protective Order [# 75] is DENIED.
SO ORDERED.