The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
In accordance with the accompanying Memorandum Opinion, it is, hereby,
ORDERED that the Motion for Sanctions under Fed.R.Civ.P.
37(e) of Defendant The Center for Correctional Health and Policy
Studies [#59] is DENIED.
SO ORDERED. MEMORANDUM OPINION
This is a suit by a former prisoner at the D.C. Jail who
complains (inter alia) that the Jail's delay in treating two of
his teeth, numbers 3 and 19, was unjustifiable. The present
discovery dispute deals with tooth number 19.
Plaintiff asked Dr. Alan Berne, a dentist, to review the
medical records pertaining to his treatment and Dr. Berne has
produced a report, which he supplemented, expressing the opinion
that the delay in dental treatment plaintiff received for tooth
number 19 was inconsistent with the community standard of care
for the treatment of the dental conditions about which plaintiff
complained. Report of Dr. Alan Berne, Exhibit 4, to Motion for
Sanctions under Fed.R.Civ.P. 37(e) of Defendant The Center for
Correctional Health and Policy Studies (hearafter "Sanctions Motion").
On December 11, 2003, plaintiff served interrogatories and a
request to produce documents. Interrogatory Number 11 demanded the identities of all
those who had provided plaintiff with health care "during the
past ten (10) up to the present day." Sanctions Motion, Exhibit 1
at 6. Request to produce Number 9 demanded copies of "all medical
records for all doctors, dentists . . . for any medical treatment
you underwent in the ten (10) years preceding the incident which
is the subject of this lawsuit to the present." Id. at 20.
On March 25, 2004, plaintiff objected to the over breadth of
interrogatory, but indicated that he would "produce documents
regarding the injuries alleged in the complaint that identify the
health care providers from whom he has received treatment that is
potentially relevant to the issues in the case." Id. at 11. As
to the request to produce documents, plaintiff's counsel stated
that plaintiff would produce "all medical records in his
possession . . . that relate to the injuires or conditions
alleged in the complaint." Id. at 20.*fn1
On March 6, 2004, plaintiff visited Dr. Berne's office, had his
teeth cleaned, and was examined by Dr. Berne. This visit
generated a record. Id., Exhibit 6. In the section of the
record entitled "Patient Medical-Dental History," plaintiff wrote
that "[tooth] #19 [was] very sensitive." Id. In addition, in
response to a written question asking whether any part of his
mouth was "sore to pressures or irritants (cold, sweets, etc.),"
plaintiff wrote "#19." Id.
On March 10, 2004, Dr. Berne completed the expert report to
which I referred earlier and noted that among the "Materials and
Facts Considered" were "x-rays and an evaluation of Mr.
Caldwell's teeth from May 6, 2004." Dr. Berne did not
specifically indicate that those x-rays were taken during
plaintiff's visit to him on May 6, 2004 and did not otherwise
specifically mention that visit.
On March 17, 2005, defendant's counsel took Dr. Berne's
deposition and received from plaintiff's counsel the record
generated during plaintiff's March 6, 2004 visit. Defendant's
counsel then complained in a letter to plaintiff's counsel that
he had been "sandbagged" by not getting the records of
plaintiff's March 6, 2004 visit to Dr. Berne March 6, 2004 until
the deposition. Id. Exhibit 10. According to defendant's
counsel, because Dr. Berne was a "treating health care provider,"
the record of the visit should have been produced much earlier in
response to his demand for the records of all persons who had
treated plaintiff in the past ten years up to the present.
This complaint has now become the motion pending before me. In
the motion, defendant's counsel accuses opposing counsel of
intentionally withholding the record of the March 6, 2004 visit
when he should have produced the record in March of 2004, in
supplementation of plaintiff's response to the interrogatories
and request to produce ...