United States District Court, W.D. Oklahoma
CHRISTINA and JEFFREY TERRY, husband and wife, each individually and on behalf of their minor child, G. TERRY, and on behalf of all others similarly situated, Plaintiffs,
HEALTH CARE SERVICE CORPORATION, a mutual legal reserve company, d/b/a BLUE CROSS AND BLUE SHIELD OF OKLAHOMA, Defendant.
MEMORANDUM OPINION AND ORDER
J. CAUTHRON UNITED STATES DISTRICT JUDGE.
the Court are: (1) Defendant's First Motion for
Protective Order (Dkt. No. 39); (2) Defendant's Motion to
Compel (Dkt. No. 50); (3) Defendant's Motion to Stay
Proceedings (Dkt. No. 57); (4) Defendant's Motion to Deem
Admitted Its First Set of Requests for Admission
(“RFAs”) (Dkt. No. 58); (5) Defendant's
Second Motion for Protective Order (Dkt. No. 60); (6)
Plaintiffs' Motion for Leave to File a Supplemental
Response Brief (Dkt. No. 66); (7) Plaintiffs' Application
Under F.R.C.P. 56(d) for Additional Time to Respond to
Defendant's Motion for Summary Judgment (Dkt. No. 73);
and (8) Plaintiffs' Motion to Compel (Dkt. No. 75). All
matters are fully briefed and now at issue.
basic facts of this case have been recalled many times, and
need not be belabored here. In short, on January 15, 2014,
Plaintiffs had to have their newborn child medevacked to the
Children's Hospital at OU Medical Center. (Dkt. No. 1, p.
3.) The bill for this flight was approximately $50, 000, and
Defendant-Plaintiffs' insurance provider-eventually
determined it was only responsible for just under $5, 000 of
this, leaving Plaintiffs responsible for the remaining $45,
000. (Id. at 4-5.) As a result, Plaintiffs believe
Defendant not only breached the insurance contract, but also
engaged in bad faith and fraudulent conduct as well.
the Court's partial denial of Defendant's Motion to
Dismiss, the parties have been engaged in discovery. Up until
now, the parties have conducted discovery only on the merits
of Plaintiffs' individual claims, even though Plaintiffs
assert class allegations against Defendant as well. The Court
has limited discovery to these issues thus far to sort out
whether Plaintiffs may even maintain an individual claim
against Defendant before assessing any class allegations. At
the close of the period reserved for merits discovery,
Defendant simultaneously moved for summary judgment and to
stay discovery in the case during the pendency of summary
judgment. (Dkt. Nos. 56 & 57.) Defendant's stay
request was originally granted, but later lifted by the
Court. (Dkt. Nos. 51 & 69.) Notably, both
parties have discovery motions pending before the Court. Most
significant, however, is Plaintiffs' motion for more time
to conduct additional discovery to respond to Defendant's
summary judgment motion.
Plaintiffs' Motion for Extension of Time (Dkt. No.
contend that they need time to conduct additional discovery
in order to respond to Defendant's summary judgment
motion. In support, they provide a lengthy list of matters
that they purportedly need to further explore before
addressing Defendant's motion. (See Dkt. No. 73,
pp. 8-12.) Moreover, they allege that they have
unsuccessfully attempted to obtain this information from
Defendant. (Id. at 12-14.) Defendant alleges,
however, that Plaintiffs have all they need to respond to its
motion, and that they have not made the requisite showing for
Federal Rule of Civil Procedure 56(d), when a
“nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition [to a motion for summary judgment],
” a district court may, in its discretion, (1) defer
considering a motion for summary judgment or deny it; (2)
allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.
Fed.R.Civ.P. 56(d); see Jensen v. Redevelopment
Agency, 998 F.2d 1550, 1553-54 (10th Cir. 1993).
“The general principle of Rule 56(f) [now 56(d)] is
that summary judgment should be refused where the nonmoving
party has not had the opportunity to discover information
that is essential to [its] opposition.” Price ex
rel. Price v. W. Resources, Inc., 232 F.3d 779, 783
(10th Cir. 2000) (internal quotation marks and citation
dilatory or lacking in merit, ” a party's 56([d])
application “should be liberally treated.”
Jensen, 998 F.2d at 1553-54 (internal quotation
marks and citations omitted).
Court finds that Plaintiffs have adequately shown that they
need discovery on a range of fronts to respond to
Defendant's motion. The Court thus finds that they have
met their burden under Fed.R.Civ.P. 56(d), and that their
motion for an extension should be granted. Plaintiffs will
receive an additional 90 days to conduct discovery pertaining
to Defendant's summary judgment motion.
Defendant's Motion to Stay Proceedings (Dkt. No.
Court will now revisit Defendant's request to stay merits
discovery pending the resolution of its summary judgment
courts retain the “discretion to issue a stay pending
the outcome of a dispositive motion.” CEP
Mid-Continent, LLC v. Turkey Creek, LLC, No.
09-CV-350-CVE-FHM, 2010 WL 455128, at 1 (N.D. Okla. Feb. 2,
2010); see also Coastal States Gas Corp. v. Dep't of
Energy, 84 F.R.D. 278, 282 (D. Del. 1979) (“It is
within the sound discretion of the Court to postpone
discovery of issues relating to the merits of a case pending
resolution of potentially dispositive motions.”).
Court finds that a stay of discovery is inappropriate here.
Notably, there are a number of discovery motions pending
before the Court. These have been initiated by both parties,
and should be resolved. Moreover, the Court finds that merits
discovery needs to take place-even if not directly relevant
to Defendant's pending summary judgment motion. In line
with the Court's finding above, however, Defendant may
move for a stay at the close of the 90-day window.
Nevertheless, the Court will permit discovery regarding the
merits of Plaintiffs' claims to move forward during this
Defendant's First Motion for Protective Order (Dkt. No.
alleges that the items listed in Plaintiffs' subpoena are
beyond the scope of permissible discovery (by seeking class
discovery) and not relevant. Plaintiffs, however, maintain
that these items are relevant-particularly to their bad faith
generally use a broad definition of relevance when
determining whether discovery is permissible, because
discovery “is designed to help define and clarify the
issues.” Gomez v. Martin Marietta Corp., 50
F.3d 1511, 1519 (10th Cir. 1995) (internal quotation marks
and citation omitted). Yet Rule 26 does not authorize
unlimited discovery. See Murphy v. Deloitte & Touche
Grp. Ins. Plan, 619 F.3d 1151, 1163 (10th Cir. 2010).
Moreover, the mere fact that a plaintiff offers a
“‘broad theory of the case'” does not
automatically justify equally broad discovery, “unless
the discovery is relevant to the plaintiff's actual
claims or defenses.” In re Cooper Tire & Rubber
Co., 568 F.3d 1180, 1193 (10th Cir. 2009). In other
words, discovery requests must generally be proportionate to
the needs of the case. See Fed.R.Civ.P. 26(b)(1).
Additionally, district courts retain the discretion to place
limits on discovery beyond the federal rules. Id.
(“[u]nless otherwise limited by court order, the scope
of discovery is as follows: . . .”).
Court finds that most of the subpoena is relevant and does
not target class discovery-it seeks discovery pertaining to
Plaintiffs' bad faith claim. (See Dkt. No. 36,
p. 8.) The exception to this finding is item (3) in the
subpoena, seeking the production of “[a]ny
correspondence sent by RMH to BCBSOK on behalf of a BCBSOK
insured concerning an appeal, including but not limited to
emails, documents, letters.” (Id.) The Court
finds that only this item is beyond the limited scope of
discovery permitted at this time. Accordingly,
Defendant's First Motion for Protective Order should be
granted in part and denied in part.
Defendant's Second Motion for Protective Order (Dkt. No.
objects to Plaintiffs' Notice to Take Deposition (Dkt.
No. 53) as inconsistent with their prior agreements.
Defendant further urges the Court to defer this matter until
the conclusion of the summary judgment motion. Plaintiffs
maintain, however, that Defendant misrepresents their
agreement and has not presented good cause for a protective
order. Indeed, “[i]t is the party seeking the
protective order who has the burden to show good cause for a
protective order.” Velasquez v. Frontier Med.
Inc., 229 F.R.D. 197, 200 (D.N.M. 2005).
Court finds that Defendant has failed to present good cause
for a protective order. At most, the correspondence between
the parties shows that there was likely some miscommunication
and a failure to agree regarding what topics were appropriate
for Defendant's corporate representative testimony
(see Dkt. Nos. 76-2 & 60-1), but this is
improper grounds to shield Defendant from producing a
corporate representative at all. If Defendant takes issue
with any particular deposition topics, it should lodge those
objections specifically. Moreover, in light of the
Court's denial of Defendant's stay request, there is
no need to defer this matter during the pendency of
Defendant's summary judgment motion. Accordingly, the
Court finds that Defendant's Second Motion for Protective
Order should be denied.
Motion to Deem Admitted Its First Set of RFAs (Dkt. No.
addressing the merits of this motion, the Court notes that
Plaintiffs have moved for leave to submit their sur-reply to
the Court. (Dkt. No. 66.) The Court finds that
Plaintiffs' motion should be ...