United States District Court, E.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO COMPEL AND FOR SANCTIONS (ECF NO.
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
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.
MOTION FOR SANCTIONS
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.
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.
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. (ECF No. 111, p.
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.
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.)
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.)
SUBSEQUENT PROCEDURAL BACKGROUND
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.
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.)
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. ...