Waiving Discovery Problems

February 28, 2017 § Leave a comment

It happens from time to time, especially in cases that seem to have dragged around for ‘way too long, that the parties appear on the trial date assigned and one attorney launches into a tale of woe about how the other side never answered their interrogatories and requests for production, and now we need a continuance to get those answers or records, or whatever. My solution is below, but what in the world is one supposed to do when confronted by such a woeful situation?

That was the question before the chancellor In Bruenderman v. Bruenderman, a COA case decided January 10, 2017.

In that case, Anna Bruenderman was awarded custody of the parties’ minor child. Ty Bruenderman appealed, arguing that, if only he had been able to get Anna’s medical records into evidence, he would have prevailed, and it was error for the trial judge not to have ordered their production.

The COA affirmed. Judge Greenlee wrote for the court:

¶14. Ty asserts he should have been granted access to Anna’s psychiatric records because they are not privileged under Mississippi Rule of Evidence 503.

¶15. Rule 503 states that there is a privilege between patient and psychotherapist; however, Rule 503(d)(4) states that the privilege does not apply to communications—including records—regarding a party’s physical, mental, or emotional health or drug or alcohol condition when relevant to child custody, visitation, adoption, or termination of parental rights. The comments to the rule state that some factors the court should consider when evaluating such evidence under Rule 503 include whether: (1) the treatment was recent enough to be relevant; (2) substantive independent evidence of serious impairment exists; (3) sufficient evidence is unavailable elsewhere; (4) court-ordered evaluations are an inadequate substitute; and (5) given the severity of the alleged disorder, communications made in the course of treatment are likely to be relevant. M.R.E. 503 cmt.

¶16. Here, Ty subpoenaed Anna’s psychiatrist for a deposition one week prior to trial and did not request a continuance to allow him time to attempt to obtain those records. Though the chancery court ruled that Ty could pursue Anna’s records, he did not, nor did Ty ever move to compel the production of those records. It is well established that the burden is on the movant to request a continuance to pursue discovery matters, and failure to do so constitutes waiver. Ford Motor Co. v. Tennin, 960 So. 2d 379, 394-95 (¶54) (Miss. 2007); see also generally URCCC 4.04; M.R.C.P. 37.

[Note: the reference to URCCC is to the circuit and county court rules. The applicable Uniform Chancery Court Rule (UCCR) is 1.10]

¶17. The chancellor noted that there was no testimony of any major mental or physical problems of either party nor any evidence showing that discovery of any of Anna’s psychiatric records would be relevant to the chancery court’s custody analysis. The chancellor found that, based on what was before him, Anna’s counseling had more to do with the divorce than any underlying issue affecting her ability to properly care for her and Ty’s child. Thus, we find this issue is without merit.

So, the deal is that, yes, you can obtain the records under MRE 503, but unless someone voluntarily hands them to you, which is rare in this HIPAA era, you will have to bring the matter before the judge and show: the records’ recency and relevance; that there is substantive independent evidence of the condition; unavailability of this evidence through another source; court-ordered evaluations will not do the job; and communications between doctor and patient are likely to be relevant in the circumstances. AND you must do all that timely, or you have waived your right to complain about it.

In other words, as with all things discovery, you must timely file to compel, and timely follow up if necessary, or you will have waived the issue.

There are seldom last-minute motions to continue for discovery problems in my court because you can not get a date for trial on the merits unless and until you certify in blood that all discovery issues have been resolved, all discovery is completed, and the matter is ready for trial (Okay, I’m exaggerating about the blood part, but not by much).

The chancellor mus be fair, but that means fair to both sides. When you show up unprepared to try your case, expecting that the judge will congenially grant your request for a continuance, you are taking a big chance. If the motion is even in the slightest unfair to the other side, you will be overruled and told to tee it up.

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