Discovery: Compelling Discovery

Monroe v. MACO Workers Comp Trust [08/26/13] 2013 MTWCC 23 A motion to allow additional evidence filed post-trial is essentially a motion to reopen the record.  It will not be granted where Respondent was aware through Petitioner’s discovery responses that Petitioner had other OD claims for asbestos-related disease and Respondent failed to either inquire about the claims with the Employment Relations Division or to respond to Petitioner’s objections with a motion to compel.  A party’s failure to act to gather information does not provide a basis to reopen a case after the close of evidence.
Connors v. U.S. Fidelity & Guarantee [03/31/10] 2010 MTWCC 7 Where the claimant represented that a previous determination of this Court held that the information he seeks is discoverable, the case which the claimant cites actually holds that the information the claimant seeks is not discoverable as it is an overly broad and burdensome request.  Since the insurer, relying on the cited case, provided the information discoverable within the parameters of that case, the claimant’s motion to compel is denied.
Hopkins v. Uninsured Employers' Fund [03/20/09] 2009 MTWCC 13 Where the UEF offers no explanation or argument as to how the alleged uninsured employer’s tax returns from the years preceding the claimant’s injury may be relevant or reasonably calculated to lead to the discovery of admissible evidence, this Court will not guess as to the reasons behind the UEF’s request and will not compel the production of the documents.
Re: John David Miller - The St. Paul Travelers Companies Inc. v. Liberty Northwest Ins. Co. [10/26/07] 2007 MTWCC 44 Where Respondent objected to or provided incomplete responses to Petitioner’s requests for production and interrogatory regarding a complete claims file, including, but not limited to all claims correspondence, claims adjusting notes, and communications with and between Respondent’s medical director, the Court found Respondent’s assertion that the requests were irrelevant and not calculated to lead to the discovery of admissible evidence to be unreasonable and awarded attorney fees and costs.
American Interstate Ins. v. Harold G. Kurth [6/07/04] 2004 MTWCC Where claimant is proceeding pro se, is inarticulate, and is unlikely to comprehend and comply with further discovery orders, where he will be precluded at trial from introducing witness testimony and exhibits he failed to exchange in compliance with the Court's scheduling order, and where he objects to a continuance, the Court sees little potential prejudice to the insurer in denying its motion to compel and proceeding to trial with the proviso that if new information emerges at trial which does potentially prejudice its case, then the trial will be suspended and resumed at a later date after further discovery.
Ganje v. LIberty Mutual Fire Ins. [10/24/02] 2002 MTWCC 52 Where opposing party objects to written discovery, the party propounding the discovery must move to compel discovery. A party cannot sit on his or her hands and then seek to exclude evidence because it was not identified in response to the discovery.
Ganje v. LIberty Mutual Fire Ins. [10/24/02] 2002 MTWCC 52 Court will not exclude evidence on the grounds that the party failed to identify the evidence in answer to written discovery requests where the answering party objected to the discovery and the propounding party failed to move to compel answers to the discovery.
Burnside Lund v. St. Paul [12/06/01] 2001 MTWCC 62 The Court will not order discovery for discovery's sake. Where the claimant has already obtained documents from the employer in another action against the employer, the Court will not order that the documents be produced a second time.
Burnside Lund v. St. Paul [12/06/01] 2001 MTWCC 62 Employer has an obligation to cooperate with an insurer and the insurer cannot slough a discovery request for information and documents of the employer by merely alleging it is not a real party in interest. The insurer must demand the information from the employer and furnish it if possible. If the employer is uncooperative, then it will be joined as a party and the Court's discovery rules enforced directly against it.
Witlock v. Fremont Industrial Indemnity [9/20/01] 2001 MTWCC 54 The Court will not compel discovery with respect to information which has no bearing on the issues of the case, nor will it compel disclosure of information concerning the prospective testimony of witnesses under the control of the party propounding the discovery.
K. Miller v. State Fund [9/20/00] 2000 MTWCC 62 Insurer moved to compel production of documents in control of claimant but not in his possession (medical, disability and other claims records). Claimant provided releases authorizing insurer to obtain some documents, as allowed by ARM 24.5.324(7). Court denied motion where insurer did not demonstrate why those releases were not adequate, but ordered claimant to provide releases for documents not yet provided.
Fisch v. State Fund [9/13/00] 2000 MTWCC 55 Where a party fails to timely object to discovery, its objections shall generally be deemed waived except as to materials that a non-party has a privilege or constitutionally protected interest. Whether the doctrine should be extended to personal privileges of a party, the Court reserves judgment. Further, even though objections are waived, the Court will not compel answers to patently irrelevant, wholly improper, or patently burdensome and onerous discovery. Here, information sought by interrogatories involved rates paid for domiciliary care, raising no issues of privilege or privacy regarding rates paid in institutional setting. Rate information regarding individual claimants receiving domiciliary care did raise privacy interests, requiring redaction of identifiers of particular individuals. Rate information prior to claimant's injury was patently irrelevant and need not be produced.
Haas v. State Fund [9/1/00] 2000 MTWCC 54 Where claimant argued ongoing relationship with insurer was detrimental to him and warranted lump sum of domiciliary care benefits, the only relevance of evidence of investigation into him involved the effect of the investigation upon him, including what he knew or perceived and how he reacted. Court thus granted protective order, and denied motion to compel, relating to details of investigation contained in investigator's file where such details involved attorney work product and attorney/client communications.
Taves v. AIU Ins. Co. [11/30/99] 1999 MTWCC 76 Where insurance counsel moved to compel claimant to appear at a resumed deposition, WCC considered the fact that said counsel had rejected the suggestion of claimant's counsel to contact the WCC during deposition for resolution of the dispute, rather than to terminate the deposition. The deposition was not ordered resumed where the questions giving rise to the dispute were not reasonably calculated to lead to admissible evidence and insurance counsel unilaterally chose to terminate the deposition rather than seek an immediate ruling.
Taves v. AIU Ins. Co. [11/30/99] 1999 MTWCC 76 Where doctor's file subject to motion to compel was produced at deposition, objection to production moot, though Court did order file sealed and available only to parties, their representatives, and a reviewing Court.
Killion v. State Fund [5/13/98] 1998 MTWCC 40 Motion to compel denied where interrogatories are largely duplicative of earlier interrogatories which respondent answered, or plainly go beyond information relevant to claimant's constitutional challenge to provision that death benefits payable to a widow cease upon remarriage.
Wall v. National Union Fire Ins. Co. [11/4/97] 1997 WCC No. 9701-7682 Where an attorney agrees to a deposition or other discovery, the Court will hold the attorney to the agreement.
Baugus v. State Fund [4/23/97] 1997 MTWCC 21 Where a district court ruling makes a WCC proceeding essentially an extension of a criminal case charging petitioner with felony theft of workers' compensation benefits, and financial records seized pursuant to an overbroad search warrant have been suppressed in district court, the WCC need not decide whether Montana law permits illegally seized evidence to be admitted in a civil case. The evidence must be suppressed in this proceeding as in the parent proceeding in district court.
Estate of James Jacques v. Borden, Inc. [4/22/97] 1997 MTWCC 20 Respondent's motion to compel production of medical records of claimant's twin sister, to support an argument claimant suffered from a hereditary, rather than work-related, mental condition, is denied. A party can only be compelled to produce those documents and items which are in his/her possession or under his/her control. That limitation is basic and elementary and needs no citation. A party's medical records are within his or her control. The medical records of third parties are not.
Sears v. Travelers Ins. [1/13/97] 1997 MTWCC 2 Where more than 20 days have elapsed since service of respondent's interrogatories, and petition has made no request for an extension of time in which to answer, the WCC orders that answers be provided.
Blancher v. Liberty Mutual [12/24/96] 1996 MTWCC 74 Insurer's motion to compel independent psychiatric examination is granted over claimant's objection based on opinions of her treating physicians that such evaluation is not necessary and could be harmful to claimant. The insurer produced counter-opinions indicating the need for further evaluation. A well-known and respected psychiatrist opined that further evaluation is warranted and outlined a non-demanding examination schedule in a neutral environment. An orthopedic surgeon opined that claimant's industrial injury was a muscle strain which has completely healed, suggesting her continued complaints may be due to psychological factors unrelated to the injury.
Tuma v. Connecticut Indemnity Co. [10/16/96] 1996 MTWCC 66 The fact that medical records are not presently in a claimant's possession does not relieve him of the obligation to obtain the records or provide a release that will enable the insurer to obtain the records.
Tuma v. Connecticut Indemnity Co. [10/16/96] 1996 MTWCC 66 Claimant ordered to produce medical records related to treatment for alcoholism and/or drug addiction where he claimed the records were privileged, but did not argue they were not possibly relevant to litigation of his claim. Although section 53-24-206, MCA, relates to confidentiality of such records, "[a] claimant for Workers' Compensation benefits waives any privilege of confidentiality in health care information which is relevant to the subject matter involved in his claim." Bowen v. Super Value Stores, 229 Mont. 84, 94, 745 P.2d 330, 337 (1987).
Stone v. State Fund [8/1/96] 1996 MTWCC 57 Insurer moved to vacate trial and compel deposition of pro se claimant who told insurer, "I, will give no deposition, under oath, or otherwise." ARM 24.5.326 allows sanctions for failure to make discover. Motion to vacate trial date and compel discovery is granted. Claimant is cautioned that failure to submit to deposition may result in dismissal of petition with prejudice.
Field v. National Union Fire Insurance Company [03/24/95] 1995 MTWCC 23 Following filing of respondent’s motion to compel production of certain medical records, claimant represented that the records would be obtained and reviewed and, if the parties cannot reach agreement to terms of production, in camera review by the Court would be requested. Under these circumstances, the Court defers ruling on the motion to compel as ruling may not be necessary.