Personal Injury Written Discovery Tips

Ever wonder if your written discovery for personal injury matters would withstand a challenge?  Lizarraga v. Buffalo Wild Wings, Inc. discussed many common interrogatories and requests for production.[1]

Timely Responses are Important(ish)

First, the plaintiff’s responses were 11 days late but contained objections.  “Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.”[2]  “Although Rule 34 does not contains an express provision that untimely objections are waived, the court have interpreted the rule regarding waiver consistent with Rule 33.”[3] “[T]he general rule is that the failure to object to Rule 33 and Rule 34 discovery requests results in the waiver of any objection.”

Applied here, the delay was due to an inexperienced paralegal.  “The carelessness or inexperience of counsel, or individuals in counsel’s employ, does not constitute good cause for untimely discovery responses.”  Despite that, the 11 day “delay in providing her initial discovery responses was not substantial and Buffalo Wild Wings was not prejudiced by Lizarraga’s delay.”

I disagree with that aspect of the ruling.  In making a ruling like this, a court should focus on factors that promote the purpose of the rule, not the self-inflicted harm a party may suffer as a result of her own inaction.  By permitting untimely objections to stand, the court only extends the litigation rather than promoting expeditious resolution.

Interrogatory 2:

Identify each person who witnessed or claims to have witnessed the Occurrence and/or who was present or claims to have been present at the scene of the Occurrence before, at the time of, or after the Occurrence and/or who has, or claims to have, any knowledge of any facts relative to the plaintiff’s liability and/or damage claims in this lawsuit.

The plaintiff objected that the interrogatory was vague and overbroad, but was overruled because “it is clear that Interrogatory 2 asks for the names of witnesses who were present when Lizarraga was injured.”  BW3 wanted the plaintiff to provide a supplemental response with the contact information for these witnesses, but the court refused because “Interrogatory 2 only asks for the identity of witnesses….”

Interrogatory 6:

During the ten years immediately prior to the Occurrence, had plaintiff been treated in a hospital, clinic, sanitarium, or other medical or paramedical institution, treated or seen by a physician (including, without limitation, a “family doctor”), dentist, chiropractor, therapist or other medical or paramedical personnel or x-rayed for any reason, including routine or preventive care or received prescriptions? If so, and if plaintiff claims any period of disability, or limitation of plaintiff’s activities, as a result of the Occurrence, state: (a) The name and address of each hospital, physician, technician, pharmacy or clinic; and (b) the reason for such treatment.

An overbroad objection was partially sustained.  “[P]rior treatment to parts of Lizarraga’s body that she claims were injured by Buffalo Wild Wings’ alleged negligence, may be relevant to the issue of injury causation. [But, for instance, her] dental records, are likely irrelevant to any issue in this action.”  The scope of the plaintiff’s response was “limited to her treatment history for the parts of her body which she claims were injured in the incident.”  She was still ordered to provide a supplemental response.  Her original response “provided a list of health care providers who treated her in the last ten years, [but] she failed to indicate when each treatment occurred and why she sought treatment.”  The supplemental response was required to provide “a descriptions of the treatments she received from each provider and the approximate date such treatment occurred.”

Interrogatory 7:

Has plaintiff suffered any personal injury within ten years prior to the Occurrence and/or since the Occurrence? If so, state: (a) how plaintiff was injured; (b) describe in general the injury suffered; and (c) the specific dates of any hospital treatment, medical treatment, or medical examination to such condition identifying the particular hospital or person administering the same.

The plaintiff’s vague and overbroad objections were overruled because “it is clear that Interrogatory 7 asks for information regarding other potential causes for Lizarraga’s claimed injuries.”  She was also ordered to supplement her response because the original response “Lizarraga failed to provide complete information about the circumstances surrounding her 2010 back injury and her subsequent treatment.”

Interrogatory 8:

Has plaintiff filed any lawsuits, or made any claims for personal injuries, in the last ten years and/or does plaintiff anticipate bringing any claims and/or filing any claims for personal injury? If so, state: (a) the court (if any) in which the suit was filed and the person(s)/entity(ies) against whom any suit or claim was made; (b) the year any suit was filed or claim was made; and (c) the title and docket number or other manner of identification of the claim or suit.

The motion to compel was mostly denied.  “Information about Lizarraga’s personal injury claims and lawsuits related to her 2010 back injury is relevant to the issue of injury causation.”  Any that involved other body parts were irrelevant.  This was not a piggyback request because it was a limited interrogatory.

Interrogatory 10:

Identify any illness or medical condition that plaintiff had up to ten (10) years before the Occurrence, and/or after the Occurrence, and state the nature of the illness or medical condition, when it occurred and what treatment plaintiff received.

Vagueness and ambiguity objections were sustained.  “It is unclear what types of ‘illness or medical condition’ would be responsive….”  Information “such as each time Lizarraga was treated for a common cold, is irrelevant, while other responsive information, such as that to be produced in response to Interrogatory 7, is relevant, but responsive information was provided in response to other interrogatories.”

RFP 7:

“All statements, written or otherwise, by any person, which relates to this litigation.”

Plaintiff’s “vagueness and overbreadth objections to RFP 7 are overruled as RFP 7 seeks documents that memorialize witness statements about the incident.”

RFP 12:

All medical or paramedical records in plaintiff’s possession from any medical care providers identified in plaintiff’s answers to the interrogatories served herewith.

An overbroad objection was overruled because of how the court limited the interrogatories.  “Buffalo Wild Wings’ request is not overbroad as it only seeks documents that Lizarraga used to answer the company’s interrogatories.”

RFP 18:

All documents relating to any claims made, application for benefits and/or lawsuits filed by plaintiff as a result of any physical or mental injury, illness or condition including, but not limited to, claims for insurance payment, Social Security benefits, or worker’s compensation benefits. This request pertains to not only claims made or lawsuits filed by plaintiff arising out of the Occurrence, but also pertains to any other claims made or lawsuits filed by plaintiff in the ten (10) years immediately preceding the Occurrence and claims or lawsuit filed after the Occurrence.

An overbroad objection was partially sustained, for the same reasons as various interrogatories.  Plaintiff’s “obligation to respond to RFP 18 is limited to documents related to other claims or lawsuits she made as a result of injuries she sustained to parts of her body that are at issue in this lawsuit.”

[1] No. 2:15-cv-1655, 2016 U.S. Dist. LEXIS 50358 (D. Nev. Apr. 14, 2016).
[2] Rule 33(b)(4).
[3] Lizarrga.