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Noble v. Wells Fargo Bank, N.A.

United States District Court, E.D. California

July 20, 2017

BROOKE NOBLE, Plaintiff,
v.
WELLS FARGO BANK, N.A., et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL AND FOR SANCTIONS (ECF NO. 123)

         I. BACKGROUND

         This case is proceeding on Plaintiff's wrongful death, negligent infliction of emotional distress and intentional infliction of emotional distress claims against Wells Fargo. Plaintiff's allegations stem from the manner that Wells Fargo evicted Plaintiff's mother, Marsha Kilgore, who was on oxygen and died shortly after the eviction due to respiratory failure.

         On January 30, 2017, Wells Fargo moved for an order: 1) to compel Plaintiff's production of medical records; 2) for an order to show cause concerning non-party Dr. Latif Ziyar's failure to comply with Wells Fargo's Subpoena; and 3) for sanctions against Plaintiff's counsel Lenore Albert. (ECF No. 123.) Because Wells Fargo received the requested medical records, that portion of the motion is moot. As to the remainder, the Court now denies the motion for sanctions against Plaintiff's counsel and grants the motion as to Dr. Ziyar.

         II. MOTION FOR SANCTIONS

         Wells Fargo has moved for sanctions against 1) Plaintiff's counsel and 2) third-party Dr. Latif Ziyar for their failure to produce Plaintiff's mental health records prior to her deposition. (ECF No. 123, p. 2 ¶ 4.) Wells Fargo first requested the mental health records from Plaintiff on November 4, 2016. (ECF No. 123-1, p. 1 ¶ 2.) In response to the Rule 34 request for production, Plaintiff produced a 1-page "Appointment Report" listing dates of five visits to Latif Ziyar, M.D., starting July 23, 2016. (Ibid.)

         On January 6, 2017, Wells Fargo issued a subpoena for production of records to Dr. Latif Ziyar pursuant to Federal Rule of Civil Procedure 45. (ECF No. 123-2, pp. 2-7.) On January 9, counsel for Wells Fargo received an invoice from Dr. Ziyar for $100 for "Labor for printing and faxing Electronic Medical Record." (Id. at 9.) Wells Fargo thereafter contacted Dr. Ziyar's office on two occasions to explain that Wells Fargo is not obligated to pay labor costs for subpoena compliance. (ECF No. 123-1, p. 2 ¶ 5.) Dr. Ziyar's office responded, in both instances, that it would not comply until compensation was given. (Ibid.)

         Wells Fargo moved to compel production of records, and the Court held a hearing on the motion to compel on January 12, 2017. (ECF No. 110.) The court granted the motion, ordering Plaintiff to produce her mental health records.[1] (ECF No. 111, p. 3.)

         On January 19, 2017, counsel for Wells Fargo sent a check to Dr. Ziyar for $100, along with a letter explaining that while he was not entitled to the fee, it had decided to pay the fee in an effort to avoid the time and expense of a motion, and because Plaintiff's February 1 deposition was rapidly approaching. (ECF No. 123-1, p. 2 ¶ 7.) The next day, Dr. Ziyar's office informed Wells Fargo that it would not release the mental health records because Plaintiff had not given her consent to release the records. (Id. ¶ 8.)

         Wells Fargo thereafter made requests to Plaintiff's counsel to obtain the required consent. (Id. at 3 ¶¶ 9-12.) Wells Fargo claims that Plaintiff and Dr. Ziyar ignored the requests. (Ibid.) Having still not received the medical records a day before Plaintiff's scheduled deposition on February 1, 2017, Wells Fargo filed the instant motion to compel production of Plaintiff's mental health records and for sanctions against Plaintiff's counsel and Dr. Ziyar for their failure to timely produce the records. (ECF No. 123.) Dr. Ziyar received notice of the filing of the motion. (Id. at 2.)

         After filing to motion to compel on January 31, 2017, Wells Fargo received Plaintiff's mental health records, including Plaintiff's release signed that day. (ECF No. 126, p. 2.) While acknowledging that the motion to compel portion was moot as a result of receiving the records, Wells Fargo wishes to pursue sanctions for Plaintiff's counsel and Dr. Ziyar's non-compliance. (Ibid.)

         III. SUBSEQUENT PROCEDURAL BACKGROUND

         The court held a status conference on February 27, 2017 and heard oral argument regarding Defendant's motion for sanctions (ECF No. 137.) During that conference, the court took Defendant's motion for sanctions under advisement and allowed Plaintiff to file supplemental briefing. (ECF No. 138.)

         Plaintiff filed a supplemental response on March 2, 2017, attaching records of communications with opposing counsel to support her assertion that she attempted to timely facilitate production of the medical records. (ECF No. 139.)

         On March 28, 2017, the Court issued an order directing Dr. Ziyar to show cause by April 14, 2017, why sanctions should not issue his failure to obey the subpoena. (ECF No. 150.) The order to show cause was re-issued on May 3, 2017 after proof of service was not returned due to clerical error. ...


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