United States District Court, E.D. Tennessee, Winchester Division
SHELBYVILLE HOSPITAL CORPORATION, d/b/a HERITAGE MEDICAL CENTER, Plaintiff,
E. WAYNE MOSLEY, M.D., Defendant.
W. Phillips United States District Judge
matter is before the Court on Plaintiff's Motion to
Compel Defendant to Produce Documents [doc. 197]. For the
reasons herein, the Court will deny the motion.
Court will begin with the more recent events leading to this
case's current procedural posture, rather than
recapitulate its drawn-out history. On the issue of
liability, the Court previously entered summary judgment for
Plaintiff Shelbyville Hospital Corp. (“Shelbyville
Hospital”), finding that Defendant E. Wayne Mosley,
M.D. (“Dr. Mosley”) breached the parties'
recruitment agreement because he failed to engage in the
full-time practice of medicine in Shelbyville, Tennessee.
[Memo. Op., doc. 173, at 1-31]. On the issue of damages, the
Court informed the parties that it intended to hold an
evidentiary hearing. [Id. at 30-31]. Since then,
each of the parties has fully briefed the Court on the issue
of damages, and Dr. Mosley has requested the opportunity
“to put on proof” at the hearing to show that
after the breach he returned to his practice and is therefore
entitled to receive a setoff, or reduction, in the amount of
damages “based upon partial continued
performance.” [Def.'s Resp. to Mot. for Damages,
doc. 180, at 2-3, 7]. The Court has scheduled the hearing for
May 24, 2017. [Order Scheduling Hr'g, doc. 193, at 1].
anticipation of the hearing, Shelbyville Hospital moves to
compel Dr. Mosley, under Federal Rule of Civil Procedure 37,
to produce his tax returns for the years 2013 through 2015
and execute forms that will authorize the Internal Revenue
Service to release them to Shelbyville Hospital's
counsel. [Pl.'s Mot. to Compel at 1]. Shelbyville
Hospital maintains that the tax returns are relevant to the
upcoming hearing because they will permit it to challenge Dr.
Mosley's contention that he returned to his practice
after the breach and is entitled to a setoff. [Id.
at 1-2]. According to Shelbyville Hospital, it claims it
“should have access to the tax returns” because
they will “likely reflect that Mosley was engaged in
activities other than the full-time practice of medicine in
Shelbyville” and allow it “to test the veracity
of Mosley's claim.” [Id. at 7].
Specifically, it believes the tax returns will reveal that
during 2013 he was working for his company Surgical Staffing
Solutions, LLC in Florida, rather than in Shelbyville.
[Id. at 4 & n.2].
Hospital's current request to compel production of Dr.
Mosley's tax returns is a renewal of a request it made
while discovery was ongoing in 2015, when it moved the Court
to order Dr. Mosley to produce his “tax returns for the
tax years 2008 to present.” [Pl.'s First Mot. to
Compel, doc. 80, at 6]. In response to Shelbyville
Hospital's request, the Court compelled Dr. Mosley to
produce his tax returns and to execute forms that would
authorize the Internal Revenue Service to release Surgical
Staffing Solutions' tax returns. [Order No. 1, doc. 91,
at 2; Order No. 2, doc. 104, at 1-2; Order No. 3, doc. 170,
at 1-2]. After the Court awarded summary judgment to
Shelbyville Hospital on the issue of liability, however,
Shelbyville Hospital told the Court it no longer needed the
tax returns: “Plaintiff and Defendant have indicated to
the undersigned that Defendant's 2014 tax returns and the
IRS Form 4506 for Surgical Staffing Solutions, LLC are
relevant only to the liability issues in this case and are
not relevant to the issue of damages.” [Order 4, doc.
177, at 1-2]. As a result, the Court relieved Dr. Mosley
of his obligation to produce his tax returns. [Id.].
For the reasons the Court already mentioned, Shelbyville
Hospital now contends that Dr. Mosley's and Surgical
Staffing Solutions' tax returns are pertinent to damages
after all and that, under Rule 37, Dr. Mosley must produce
them for the upcoming hearing. [Pl.'s Mot. to Compel at
1-2, 7, 8].
The Federal Rules of Civil Procedure
may obtain discovery “regarding any nonprivileged
matter that is relevant to any . . . claim or defense and
proportional to the needs of the case.” Fed.R.Civ.P.
26(b)(1). In this vein, Rule 37(a) enables a party to move to
compel discovery of relevant information. Fed.R.Civ.P. 37(a).
Although the term “relevant” information is broad
for purposes of discovery, Harris v. Bornhorst, 513
F.3d 503, 525 (6th Cir. 2008), discovery has “ultimate
and necessary boundaries, ” Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 351 (1978) (quotation
omitted), and “[t]he proponent of a motion to compel
discovery bears the initial burden of proving that the
information sought is relevant, ” Gruenbaum v.
Werner Enters., Inc., 270 F.R.D. 298, 302 (S.D. Ohio
2010) (quotation omitted).
Rule 37(a) permits a party to move to compel discovery, it
applies “during the discovery process.”
Cunningham v. Hamilton Cty., 527 U.S. 198, 208
(1999) (emphasis added) (footnote omitted); see Snook v.
Lorey, No. 07-14270, 2009 WL 1406639, at *1 (E.D. Mich.
May 19, 2009) (acknowledging that Rule 37 governs motions to
compel production and sanction uncooperative behavior
“in discovery”). The discovery deadline in this
case-and more specifically, the deadline for filing motions
to compel-expired a long time ago, [Order Amending Scheduling
Order, doc. 126, at 1-2], and the Court therefore must treat
Shelbyville Hospital's Motion to Compel under Rule 37 as
a request to reopen discovery, see FedEx Corp. v. United
States, No. 08-2423 Ma/P, 2011 WL 2023297, at *3 (W.D.
Tenn. Mar. 28, 2011) (stating that “because fact
discovery closed, ” the defendant's motion dealing
with a discovery-related dispute “is actually a motion
to reopen discovery”); Ellis v. City of N.Y.,
243 F.R.D. 109, 111 (S.D.N.Y. 2007) (viewing a party's
motion to compel, which arose after the conclusion of
discovery, as a motion to permit “additional discovery
at this late stage in the case”).
district court has “substantial discretion over
pretrial matters such as the conduct of discovery.”
In re Wilkinson, 137 F.3d 911, 916 (6th Cir. 1998)
(Jones, J., dissenting (citing Chem. & Indus. Corp.
v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962))); see
Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th
Cir. 1999) (recognizing that discovery- related matters
“are in the sound discretion of the district
court” and that “[w]e should not interfere with a
district court's discretionary rulings concerning . . .
timeliness of discovery unless we are convinced that the
trial court's ruling resulted in substantial unfair
prejudice to the complaining litigant” (citation
omitted)). Along these lines, a district court “may
properly deny a motion to compel discovery where the motion
to compel was filed after the close of discovery.”
Willis v. New World Van Lines, Inc., 123 F.Supp.2d
380, 401 (E.D. Mich. 2000) (citing Ginett v. Fed. Express
Corp., No. 97-5481, 1998 WL 777998, at *5 (6th Cir. Oct.
21, 1998)). At least a few district courts in this circuit,
however, have relied on a five-factor analysis to determine
the propriety of reopening discovery after receiving an
untimely motion to compel, bringing clarity to a district
court's discretion in this context. These factors
include: (1) whether the movant has shown good cause for
reopening discovery, (2) whether the need for additional
discovery is due to the movant's neglect, (3) the
specificity of the discovery request, (4) the relevance of
the discovery, and (5) whether the party opposing the
reopening of discovery will suffer prejudice. See FedEx
Corp., 2011 WL 2023297 at *3; Victory Lane Quick Oil
Change, Inc. v. Hoss, No. 07-14463, 2009 WL 777860, at
*1 (E.D. Mich. Mar. 20, 2009); U.S. Diamond & Gold v.
Julius Klein Diamonds, LLC, No. C-3-06-371, 2008 WL
2977891, at *11 (S.D. Ohio July 29, 2008); see also
Morgan v. Gandalf, Ltd., 165 F.App'x 425, 431-32
(6th Cir. 2006). The party moving to reopen discovery has the
burden of justifying it. W. Am. Ins. Co. v. Potts,
No. 89-6091, 1990 WL 104034, at *2 (6th Cir. July 25, 1990).
initial matter, Shelbyville Hospital does not identify its
motion for what it is-a motion to reopen discovery-failing
not only to cite the appropriate legal standard but also to
conduct an analysis under it. Although its discovery request
is not unspecific, it provides no legal basis for obtaining
Dr. Mosley's tax returns at this late stage other than
that they are “relevant, ” presumably as Federal
Rule of Civil Procedure 26(b)(1) defines the term. [Pl.'s
Mot. to Compel at 2, 4, 8]. The Court cannot overlook the
fact, however, that Shelbyville Hospital previously requested
and obtained Orders in which the Court required Dr. Mosley to
produce these tax returns, only then to instruct the Court to
relieve him from these Orders after it entered summary
judgment. Although Shelbyville Hospital now claims that it
was “Dr. Mosley [who] took the position that the
information was no longer relevant” and “[t]he
Magistrate Judge therefore ordered that Mosley did not have
to produce the information, ” this account is not the
whole story. [Id. at 1]. The Court, in relieving Dr.
Mosley of his legal obligation to produce his tax returns,
actually did so because both “counsel for
Plaintiff and Defendant have indicated to the
undersigned” that the information is “relevant
only to the liability issues in this case” and
“not relevant to the issue of damages.”
[Order 4 at 1-2 (emphasis added)].
Court can only conclude that Shelbyville Hospital, in
forgoing its right to the tax returns, neglected to see the
relevance they might have to damages-an oversight that the
Court finds difficult to excuse now because, at the time, it
had already informed the parties that damages remained an
issue and would be the topic of a future hearing. Before that
point, Dr. Mosley had also pleaded that he was
“entitled to a setoff for his continued practice in
Shelbyville.” [Pl.'s Countercl., doc. 22, ¶
36]. Shelbyville Hospital therefore had sufficient reasons to
know of the tax returns' potential relevance to damages,
and it had ample opportunity to develop them in
discovery-even to the extent that it succeeded in compelling
their production. Because Shelbyville Hospital neglected to
pursue the tax returns further, the Court is unable to
conclude that good cause exists to reopen discovery now.
See, e.g., Ginett, 1998 WL 777998 at *5
(affirming the district court's denial of a motion to
compel that arose after the discovery deadline because the
plaintiff knew of the information at issue and its potential
relevance during discovery); Yrityspankki Skop Oyj v.
Delta Funding Corp., No. 98Civ.7888(BSJ)(MHD), 1999 WL
1018048, at *4 (S.D.N.Y. Nov. 9, 1999) (declining to reopen
discovery because the defendant had reason to know that the
information at issue was relevant during discovery and should
have developed the information at that time); see Lore v.
City of Syracuse, 232 F.R.D. 155, 159 (N.D.N.Y 2005)
(“Discovery should not be extended when a party had an
ample opportunity to pursue the evidence during
discovery.” (citations omitted)); see also
Valente v. Univ. of Dayton, No. 3:08-cv-225, 2009 WL
4255503, at *1 (S.D. Ohio Nov. 19, 2009) (“[A]n
‘ample opportunity' to conduct discovery . . . [is]
not a new opportunity do so after the discovery period . . .
addition, Shelbyville Hospital-after informing the Court and
Dr. Mosley that the tax returns are not relevant to the issue
of damages and petitioning the Court, on that basis, to
relieve Dr. Mosley of his obligation to produce them-cannot
now renege on its previous position without causing prejudice
to Dr. Mosley. See FedEx Corp., 2011 WL 2023297 at
*3 (stating that “[r]eopening discovery, particularly
after the parties stipulated that discovery had been
completed, would be prejudicial and unfair to [the opposing
party]”). Even if the Court were to overlook the
prejudice inherent in this situation and review Shelbyville
Hospital's request based solely on the contention that
Dr. Mosley's tax returns are now relevant after all, the
Court would still not be convinced that it should reopen
discovery. Again, although the term “relevant”
information is far-reaching for purposes of discovery,
Harris, 513 F.3d at 525, discovery nevertheless has
“ultimate and necessary boundaries, ”
Oppenheimer Fund, 437 U.S. at 351 (quotation
omitted), and “[t]he proponent of a motion to compel
discovery bears the initial burden of proving that the
information sought is relevant, ” Gruenbaum,
270 F.R.D. at 302 (quotation ...