Free Response to Motion - District Court of Arizona - Arizona

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Russell A. Kolsrud, #004578 Brad M. Thies, #021354 N ORLING, K OLSRUD, S IFFERMAN & D AVIS, P.L.C. 16427 N. Scottsdale Road, Suite 210 Scottsdale, Arizona 85254 (480) 505-0015 Attorneys for Defendant ValueOptions, Inc. IN THE UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 SHANNON MICHAEL CLARK, 9 Plaintiff, 10 v. 11 VALUEOPTIONS, INC., 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 By: 27 28 /s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc. Page 1 of 4 Defendant ValueOptions, Inc. ("ValueOptions"), through its counsel hereby files its response to plaintiff's motion requesting order to supplement defendant's responses to request for production of documents. Specifically, plaintiff's improperly-titled motion fails to demonstrate the requirements of Rule 37(a) ­ that plaintiff has conferred in good faith with ValueOptions in regard to discovery disputes prior to filing a motion with the court. Additionally, plaintiff's motion goes beyond the discovery boundaries set by this court in its August 17, 2004 minute entry (DKT. #46). Finally, plaintiff's request seeks confidential and irrelevant materials not subject to discovery. This motion is supported by the pleadings on file and the following memorandum of points and authorities. RESPECTFULLY SUBMITTED this 19 th day of September, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C. VALUEOPTIONS' RESPONSE TO PLAINTIFF'S MOTION REQUESTING ORDER TO SUPPLEMENT DEFENDANT'S RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS Case No. CIV 03-1344-PHX-EHC (MS)

Case 2:03-cv-01344-EHC-HCE

Document 145

Filed 09/19/2005

1 MEMORANDUM OF POINTS AND AUTHORITIES 2 Plaintiff's motion alleges that ValueOptions' response to request for production No. 3 2, asking for "all documents regarding complaints, grievances, appeals or legal actions of 4 similar allegations as plaintiff alleged in the past five years", was insufficient. Despite 5 plaintiff's assertions, the responses provided by ValueOptions more than adequately 6 responded to plaintiff's request for production. 7 Rule 37 is plaintiff's lone recourse for an alleged failure of ValueOptions to comply 8 with discovery. Fed.R.Civ.P., 37(a)(2). Specifically, the rule requires that a motion include 9 a certification that the movant has, in good faith, conferred or attempted to confer with the 10 person or party failing to make the discovery in an effort to secure the information or 11 material without court action. Plaintiff's failure to offer evidence that he has made a good 12 faith attempt to confer with counsel for ValueOptions to resolve this discovery dispute 13 justifies denial of plaintiff's mistitled motion. 14 Second, this court already determined in its minute entry dated August 17, 2004 that 15 defense counsel make an inquiry of ValueOptions as to whether summaries of documents 16 relating to similar allegations exist, and if so, that they be disclosed. ValueOptions did 17 disclose the summaries existing from the date of plaintiff's original request for production 18 19 compliance with the court's minute entry which only required production of available 20 summaries. This court did not require ValueOptions to undertake such burdensome steps 21 and refused to require that ValueOptions do so based on the undue burden imposed on 22 ValueOptions to complete such a request. 23 24 25 26 27 28 As was evidenced by ValueOptions in its supplemental response to first request for production of documents attached as Exhibit "A" to plaintiff's motion, creating a report for the time period prior to January 2, 2003 would require no less than 200 man hours of research through documents stored in an off-site facility. 2 Case 2:03-cv-01344-EHC-HCE Document 145 Filed 09/19/2005 Page 2 of 4
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of documents that were not unduly burdensome.1 ValueOptions' response is in complete

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After complying with the court's order to provide plaintiff with a summary of SMI eligibility appeals that are "readily available to ValueOptions through its computer system", ValueOptions provided further information to plaintiff in a letter dated November 19, 2004. This summarized and provided copies of documents on each case against ValueOptions for Maricopa County Superior Court and the United States District Court. See November 19, 2004 letter, attached hereto as Exhibit "1". Further, ValueOptions granted plaintiff's request for the provision of summaries for additional grievances from a time period of August through September of 2002. Defendant's second supplemental response to first request for production of documents, attached hereto as Exhibit "2". Despite ValueOptions' compliance with this court's minute entry of August 17, 2004 ­ and its efforts to reasonably provide additional relevant information ­ plaintiff once again attempts to circumvent the ruling of this court and waste judicial resources to obtain this burdensome and irrelevant discovery. Plaintiff's overly broad request for production of documents also seeks to invade ValueOptions' duty of confidentiality to its other consumers under Federal and State statutes.2 Additionally, subsequent actions of ValueOptions, alleged to be unconstitutional, are not relevant to a deliberate indifference claim relating to August 2002. Miller v. Calhoun County, 408 F.3d 803, 815 (6 th Cir. 2005). Although plaintiff's motion is unclear, to the extent it requests provision of information on alleged subsequent unconstitutional actions, it seeks information irrelevant to the current matter. CONCLUSION Plaintiff failed to comply with the Rule 37. ValueOptions complied with this Court's Minute Entry dated August 17, 2004 in providing the appropriate information to plaintiff. The additional information requested by plaintiff is confidential under State and Federal law or is irrelevant. Plaintiff is simply not entitled to production of the requested
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The applicable State and Federal confidentiality statutes are fully discussed in ValueOptions' response and opposition to plaintiff's motion to reopen discovery. [DKT. #137] 3 Case 2:03-cv-01344-EHC-HCE Document 145 Filed 09/19/2005 Page 3 of 4

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documents for failure to follow the applicable Rules of Civil Procedure and the lack of any right of production of such documents. ValueOptions requests this court deny plaintiff's motion. RESPECTFULLY SUBMITTED this 19 th day of September, 2005. NORLING, KOLSRUD, SIFFERMAN & DAVIS, P.L.C.

By: 8 9 10 11 12 13 14 15 16 /s/ Brad M. Thies 17 18 19 20 21 22 23 24 25 26 27 28 4 Case 2:03-cv-01344-EHC-HCE Document 145 Original electronically filed with the Clerk of the Court this 19 th day of September, 2005 with a copy mailed to: Shannon M. Clark #113372 ASPC-Tucson-Santa Rita P.O. Box 24406 Tucson, Arizona 85734-4406 Plaintiff pro per

/s/ Brad M. Thies Russell A. Kolsrud Brad M. Thies Attorneys for Defendant ValueOptions, Inc.

Filed 09/19/2005

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