BENHAM v. RICE

MEMORANDUM OPINION

FACCIOLA, United States Magistrate Judge.

This case was referred to me for discovery. Currently pending and ready for resolution are six motions. Each will be considered in turn.

I. Plaintiff's Motion to Strike Defendant's Defenses for Failure to Provide Discovery, to Compel Defendant's Responsive Answers to Plaintiff's Discovery Demands, and to Extend Plaintiff's Discovery Period, and to Bar Witnesses Not Named in Defendant's 26(a) Discovery and Points and Authorities Thereof [#43]

In two memorandum opinions, Judge Kennedy has set forth the fundamental facts of this case and the procedural history.See Benham v. Rice, No. 03-CV-1127, 2005 WL 691871 (D.D.C. March 24, 2005); Benham v. Powell, Civ. No. 00-2466 (D.D.C. April 13, 2004). Suffice it to say here that one case, 00-2466, involves plaintiff's being transferred by the State Department, at the risk of losing her job, from Seattle to Washington, D.C. The second, 03-1127, is based on the acts of an Assistant United States Attorney who, while representing the government in 00-2466, faxed a certain document to plaintiff at plaintiff's place of employment.

By this motion, plaintiff seeks to compel the defendant's responses to her discovery requests and to bar them from presenting certain defenses or witnesses. As will now be established, however, plaintiff's discovery requests are nearly all overbroad or otherwise objectionable.

Since plaintiff complains about the defendant's responses to nearly every document request she made and every interrogatory she propounded, I have used the following chart to identify plaintiff's request or interrogatory, the government's objection, my ruling, and the reason for it. Futhermore, as noted at the hearing, it is not the court's function to modify plaintiff's demands so that, as revised, they are reasonable and legitimate. # Summary of Document Request Summary of Objection Court's Ruling 1. All trial exhibits. Defendant has not yet Sustained. Under Rule decided which exhibits it 26(a)(3), defendant must intends to use but will provide plaintiff with disclose them once a certain pretrial disclosures, decision has been made. including a list of the specific exhibits it intends to use at trial. As I explained at the hearing held on plaintiff's motions, she will certainly be provided with a copy of the defendant's exhibits, pursuant to this Rule and to Judge Kennedy's pre- trial order, well in advance of trial. Her demand is therefore premature. 2. All documents to be used in Request is vague and Sustained. See Court's the defense. overbroad. Responsive Ruling as to #1. documents are in the ROIs and in the records from the administrative proceedings. 3. All documents provided to Defendant has not Sustained. Obviously, consultants or experts who will employed any experts. defendant cannot be testify at trial. compelled to produce anything it gave to experts if it does not intend to call any experts. 4. All documents generated by Defendant has not Sustained. See Court's consultants or experts that will employed any Ruling as to # 3. be used at trial. consultants or experts. 5. All documents identified in Responsive documents Sustained. If, as defendant response to plaintiff's first set are in the ROIs and in the represents, the documents of interrogatories. records from the it referred to in its response administrative to the first set of proceedings. interrogatories are in these documents, its answer is sufficient. 6. All documents relating to the Relevance. Request is Sustained. Again, if, as incidents alleged in the vague, overbroad, and defendant represents, all complaint. unduly burdensome. the documents relating to Responsive documents the incidents alleged in the are in the ROIs. complaint are in the ROIs, defendant has answered the request. Of course, defendant would be precluded from relying on a document that is not in the ROI if it does not make it available to the plaintiff forthwith. 7. From 1/1/87 — present, all Relevance. Request is Sustained. As Judge documents relating to vague, overbroad, and Kennedy indicated, complaints made by passport unduly burdensome. plaintiff was employed by services employees. Responsive documents the State Department in contain information 1992 and her transfer protected by the Privacy occurred in 1995. Act. Memorandum Opinion at 2. The activities of the Assistant United States Attorney about which she complains in 03-1127 occurred in 2002. Complaints made about any topic under the sun five years before she began working for the State Department have nothing to do with her case. 8. From 1/1/90 — present, all Relevance. Request is Sustained. On its face, this documents relating to vague, overbroad, and would call for the employment decisions made as unduly burdensome. production of every piece to all passport services Responsive documents of paper in every personnel employees. contain information file of any passport office protected by the Privacy in the United States insofar Act. as that piece of paper related to any employment decision. This request is patently overbroad. 9. All documents relating to the Relevance. Request is Sustained for the same employment of all Seattle vague, overbroad, and reasons as #8. Indeed, this passport agency employees, unduly burdensome. one is broader; it requires including those documents Responsive documents all documents relating to relating to specified contain information every employee's employees, from their date of protected by the Privacy employment. hire to the present. Act. 10. From 1/1/87 — present, all Relevance. Request is Sustained. Again, the documents relating to vague, overbroad, and request seeks documents grievance information about unduly burdensome. created before plaintiff State Department employees, Responsive documents even went to work at the including documents relating contain information State Department to the to specified employees. protected by the Privacy present day (19 years Act. later), irrespective of the nature of the grievance. The request is patently overbroad. 11. From 1/1/87 — present, all Relevance. Request is Sustained. Again, the documents relating to mobility overbroad and unduly period of time for which information about all Consular burdensome. Responsive the documents is sought is Affairs employees. documents contain 19 years. At the hearing, information protected by plaintiff indicated that the Privacy Act. "mobility agreements" came into existence in 2000 and that the fact that defendants required such agreements (by which an employee agreed to move at the government's discretion) was relevant to her case in that it represented a change of policy. Transcript of hearing of July 10, 2006 at 50-52. But, what little probative value that evidence might have is overwhelmed by the burden it would impose on the defendants. 12. From 1/1/87 — to present, all Relevance. Protected by Sustained. Again, visit, investigation, and report the work-product and information about visits to information relating to attorney-client privileges. and investigations of specified offices within the Request is overbroad and offices within the State State Department. unduly burdensome. Department for 19 years, for whatever reason, has no relevance whatsoever to this case. 13. From 1/1/90 — present, all files, Relevance. Request is Sustained. The production kept in specified locations, overbroad and unduly of all files for employees relating to all Passport Agency burdensome. Responsive for a 15-year period, employees. documents contain irrespective of their information protected by content, is patently the Privacy Act. overbroad. 14. From 1/1/87 — present, all files Relevance. Protected by Sustained. The production for Consular Affairs the work-product and of all files in a 19-year employees containing attorney-client privileges. period for all complaints of complaints of workplace Request is overbroad and workplace dissatisfaction, dissatisfaction, as maintained unduly burdensome. irrespective of the nature by specified offices within the Responsive documents or cause of the State Department. contain information dissatisfaction, is patently protected by the Privacy overbroad. Act. 15. From 1/1/92 — present, all Request is overbroad. Sustained. I will hold the documents relating to Relevant documents are government to its plaintiff's transfer from the in the ROIs. Responsive representation that all Seattle Passport Agency office, documents contain documents relating to her as maintained by specified information protected by transfer are in the ROIs. individuals. the Privacy Act. 16. From 1/1/90 — present, all Relevance. Request is Sustained. All correspondence between vague, overbroad, and correspondence, specified managers, unduly burdensome. irrespective of subject supervisors, and employees Relevant documents are matter, would necessarily relating to plaintiff. in the ROIs. require the production of documents that have nothing to do with this case. 17. From 1/1/90 — present, all Request is overbroad and Sustained, for the same correspondence between unduly burdensome. reason as #16. specified managers, Responsive documents supervisors, and employees contain information relating to plaintiff. protected by the Privacy Act. 18. From 1/1/87 — present, all Relevance. Request is Sustained. Again, a documents relating to the overbroad and unduly request for documents promotion of all passport burdensome. Responsive produced in a 19-year office regional directors. documents were period relating to the provided during the promotion of every administrative process. regional director is patently overbroad. While there is a theoretical possibility that plaintiff might compare herself to a regional director who was treated differently, that possibility cannot justify the breadth of the demand she makes. 19. From 1/1/87 — present, Request is overbroad and Sustained for the same personal and professional unduly burdensome. reason as # 18. information relating to all Responsive documents regional directors. contain information protected by the Privacy Act. 20. From 1/1/87 — present, all Request is overbroad and Sustained in part. The documents relating to the unduly burdensome. government represents that supervision of plaintiff. Responsive documents all responsive documents are in the ROIs. are in the Reports of Investigation. I will ask it to make sure that there are no documents "relating to her supervision" in the period from 1992-1995 that are not in the ROIs. If there are, plaintiff must be given them. 21. From 1/1/87 — present, all Request is overbroad and Sustained in part. Again, I documents relating to unduly burdensome. will hold the government allegations of plaintiff's Responsive documents to its representation that incompetence or were provided during the there are no other insubordination. administrative process. documents relating to her incompetence or insubordination other than the ones given her during the administrative process. If the government finds that there are other such documents, it must give them to plaintiff. 22. From 1/1/90 — to present, all Request is overbroad and Sustained. All correspondence between unduly burdensome. correspondence would by managers and non-managers necessity include about plaintiff. correspondence that is not relevant to a claim or defense. The request is overbroad. 23. From 1/1/90 — present, all Request is overbroad and Sustained. Again, I will documents supporting unduly burdensome. hold the government to its defendant's claim that plaintiff Responsive documents representation that there was not retaliated against. are in the ROIs and are no other responsive records of the documents that are not in administrative the ROIs. If there are, I proceedings. expect the government to give them to plaintiff. 24. From 1/1/87 — present, all Relevance. Protected by Sustained. A demand for documents relating to passport work-product privilege. complaints for a 19-year services employee complaints. Overbroad and unduly period, irrespective of the burdensome. Responsive nature of the complaints documents contain and the person against information protected by whom the complaint was the Privacy Act. made, is patently overbroad. 25. From 1/1/90 — present, all Request is overbroad and Sustained. A demand for documents relating to visits unduly burdensome. information about visits by from the OIG to all passport Relevance. the Office of Inspector services offices. General to passport offices all over the United States, irrespective of the reason for the visit, is patently overbroad. 26. State Department disciplinary Overbroad. Information Overruled. If the rules and procedures in effect is available at State information is available on from 1/1/92 — present. Department website. the website for the period in question, 1992-1995, the government will make a printed version available to plaintiff. 27. All documents in effect from No objection. These will n/a. 1/1/95-1/1/98 relating to the be provided. authority for plaintiff's transfer. 28. All documents to and from Relevance. Request is Sustained. A demand for regional directors relating to a overbroad and unduly every document pertaining broad range of specified burdensome. to personnel matters personnel matters. authored by a regional director anywhere in the United States is patently overbroad. 29. From 1/1/90-1/1/00, copies of Relevance. Request is Overruled. The work products and status overbroad and unduly government will have to reports provided by plaintiff to burdensome. provide to plaintiff any specified employees. document on which it intends to rely to establish the justification for the actions about which plaintiff complains. 30. Documents relating to a Relevance. Defendant is Sustained. All documents "Three Year Plan" in effect not aware of such a plan relating to the "Plan" from 1992-1995. but is still searching. (whatever it is) are not relevant to a claim or defense. 31. Documents relating to Request is overbroad. Sustained. A demand for specified employee policies in Information is available documents pertaining to effect from 1/1/92 — present. at State Department employee policies, website. irrespective of the topic, is patently overbroad. 32. From 1987 — present, statistics Relevance. Request is Sustained. A demand for relating to passport production, overbroad and unduly statistics over a 19-year staff resources, and work burdensome. period is patently transfers. overbroad. 33. From 1/1/96 — present, all Documents relating to Sustained. Defendant has documents relating to plaintiff's transfer have turned over the relevant plaintiff's request for a already been turned over. documents. compassionate transfer. Defendant will supplement the response if needed. 34. From 1/1/96 — present, all Relevance. Request is Sustained. A demand for correspondence from State overbroad and unduly all requests for transfers Department employees who burdensome. Responsive and other personnel actions have requested transfers and documents contain over a 19-year period, other specified personnel information protected by when plaintiff complains actions. the Privacy Act. about a single transfer, is patently overbroad. 35. All documents relating to See objections to #33. Sustained. See Court's plaintiff's request for a Ruling as to #33. compassionate transfer. 36. All documents relating to Request is overbroad, Sustained. I will hold the plaintiff's complaint that have vague and burdensome. government to its not yet been produced. Responsive documents representation that all and in the ROIs. records relating to the complaint are in the ROIs. If there are any others, defendant must give them to plaintiff. 1(a). Describe all incidents of Employment-related Sustained. It is plaintiff's discrimination and identify decisions were made for burden to specify her the individuals who legitimate non- claim, not the committed them. discriminatory reasons. government's. 1(b). Identify persons with Interrogatory is vague, Sustained. It appears to knowledge of the actions or unduly burdensome, and me that the government incidents identified in overbroad. has answered the question. response to 1(a). Employment-related decisions were made for legitimate non- discriminatory reasons. All persons with knowledge were named in the ROIs, the records of administrative proceedings, and defendant's 26(b)(1) disclosure. 1(c). Identify documents relating Interrogatory is vague, Sustained. Again, I will to the actions or incidents unduly burdensome, and hold the government to its identified in response to 1(a). overbroad. representation that all Employment-related pertinent documents are decisions were made for contained in the ROIs and legitimate non- oblige it to produce any discriminatory reasons. others of which it is aware. All persons with knowledge were named in the ROIs and the records of administrative proceedings. 1(d). State facts relied upon in Interrogatory is vague, Sustained in part. As I support of defense that unduly burdensome, and read the government's actions or incidents overbroad. response, it has answered identified in response to 1(a) Employment-related this interrogatory by were not unlawful. decisions were made for indicating why it made the legitimate non- decision it did. In an discriminatory reasons. abundance of caution, I will require it to state the specific facts upon which it will rely to establish the bases for its legitimate, non-discriminatory reasons. 2. With regard to plaintiff's Interrogatory is vague. Sustained. Since plaintiff complaints of discrimination, No other directors were does not indicate a specific identify individuals similarly similarly situated. characteristic, it is situated to plaintiff. impossible to state who is similarly situated to her. 3. Indicate whether specified Interrogatory is Sustained. Lawsuits of any individuals were involved in overbroad and unduly kind would include any litigation and provide burdensome. Responsive landlord-tenant, divorces detailed information about documents contain and dog bites. The request the lawsuits. information protected by is patently overbroad. the Privacy Act. 4. Identify lawsuits filed Interrogatory is Sustained for the same against specified individuals overbroad and unduly reason as # 3. and provide detailed burdensome. Responsive information about the documents contain lawsuits. information protected by the Privacy Act. 5. Identify whether any As to requests that Granted, insofar as I expect documents responsive to defendant has not the government to finish its plaintiff's first document objected to, defendant investigation into whether request have been destroyed will attempt to discern any documents were and explain why they were whether responsive destroyed promptly and destroyed. documents have been report its result to plaintiff. destroyed. 6. Identify all witnesses Protected by the work- Sustained. The including experts and product privilege. government will be held to provide summaries of their Witnesses were named in the witnesses it named in expected testimony. defendant's 26(a)(1) its initial disclosure and disclosure. has represented that it will not be calling any experts. For the consequences to the government of not supplementing its initial disclosure with new witnesses and documents, see Coles v. Perry, No. 01- CV-732, 2002 WL 1263979 (D.D.C. June 7, 2002). 7. Identify persons with Individuals were named Sustained. The knowledge of facts in the ROIs, the records government has answered supporting defendant's of administrative this interrogatory. defense. proceedings, and defendant's 26(a)(1) disclosure. 8. Identify documents relating Responsive documents Sustained because (a) the to the complaint and indicate were identified in the government appears to me whether and under what ROIs and records of to have answered this circumstances they have administrative interrogatory and (b) been destroyed. proceedings. insofar as it demands documents relating to plaintiff's prolix compliant, other than those already appearing in the ROI and the administrative proceedings, it is overbroad. 9. Identify individuals who Responsive documents Sustained because, as I provided written and oral were identified in the read the government's statements relating to the ROIs and records of answer, it is stating that the complaint and provide administrative only statements of such information about those proceedings. people are in the ROIs and statements. records of administrative proceedings and that is a sufficient answer. 10. Provide information about Defendant does not, at n/a. each expert witness that will this point, intend to call testify at trial. an expert witness. 11. Identify facts that support the Responsive facts were Sustained in part, with the defense. identified in the ROIs understanding that (as and records of indicated above) the administrative government will state proceedings. specifically what facts support its defense that plaintiff's transfer was for a legitimate business reason. 12. Provide a description of all Protected by the work- Sustained. The allegations of discriminatory product privilege. government has no behavior made against Responsive facts were obligation to characterize defendant. identified in the ROIs its own behavior as and records of discriminatory. administrative proceedings. 13. Explain why Mary Ryan left Relevance. Ryan retired. Sustained. The the State Department. Responsive information government, by indicating protected by the Privacy that Ryan retired, appears Act. to me to have answered the question. 14. From 1/1/87 — present, for all Interrogatory is Sustained for the reasons passport offices, provide overbroad and unduly stated above in my ruling information about mobility burdensome. as to request for production agreements. of documents #11. 15. From 1/1/87 — present, Interrogatory is Sustained. A demand for identify all individuals at the overbroad and unduly information about people GS-14 and GS-15 levels who burdensome. leaving a government came or left the Bureau of office in a 19-year period Consular Affairs, including for whatever reason is those who were transferred. patently overbroad. 16. From 1/1/90 — present, list all Interrogatory is Sustained. A demand for employment related actions overbroad and unduly information about taken with respect to burdensome. Responsive "employee related actions" employees of the Seattle information protected by for a 15-year period when Passport Agency and all the Privacy Act. there is no showing that regional directors. the information bears in any way on plaintiff's case is patently overbroad. 17. From 1/1/92 — present, Responsive information Sustained, with the provide names and other was provided in the ROIs understanding that there information about all parties and records of are no other persons involved in plaintiff's administrative involved in plaintiff's transfer. proceedings. transfer other than those identified in the ROIs and the administrative proceedings. 18. Describe the "position Defendant will provide a I expect the government to upgrade management plan." response shortly. do so promptly. 19. Provide all communications Interrogatory is vague, Sustained. A demand for relating to the complaint. overbroad, and unduly all communications burdensome. Responsive pertaining to plaintiff's information was prolix complaint provided in the ROIs and irrespective of the nature, records of administrative time and purpose of the proceedings. Protected communication is patently by attorney-client and overbroad. work-product privileges.

II. Plaintiff's Motion to Stay Deposition and Points and Authorities Thereof [#47]

By this motion, plaintiff seeks to stay her deposition, pending resolution of Plaintiff's Motion to Strike Defendant's Defenses for Failure to Provide Discovery, to Compel Defendant's Responsive Answers to Plaintiff's Discovery Demands, and to Extend Plaintiff's Discovery Period, and to Bar Witnesses Not Named in Defendant's 26(a) Discovery and Points and Authorities Thereof [#43]. I have now resolved that motion and this motion will therefore be denied as moot. I have ordered some minor supplementation of the government's answers. I expect the government to provide that supplementation as soon as it can. As soon as it does, the government may take plaintiff's deposition.

III. Defendants' Memorandum of Points and Authorities in Support of Motion for Independent Medical Examination and to Compel Production of Healthcare Records ("Defs. IME Mot.") [#53]

In this motion, defendant first moves to compel plaintiff to submit to an independent medical examination ("IME"), arguing that under Rule 35 of the Federal Rules of Civil Procedure, plaintiff has placed her mental condition in controversy and that there exists good cause for such an examination. Defs. IME Mot. at 3. Defendant also moves to compel the production of certain healthcare records.

In opposing defendant's motion for an independent medical examination and in seeking a protective order, plaintiff argues that her claim of emotional distress is insufficient to compel an independent medical examination or the production of plaintiff's medical records. Plaintiff's Opposition to Motion for Independent Medical Examination and Plaintiff's Motion for a Protective Order ("Plains. IME Opp.") at 1. Plaintiff argues that the information is privileged and irrelevant and that she has not placed her medical condition at issue. Id. at 2. According to plaintiff, she is only making "garden variety" claims of emotional pain, suffering, inconvenience and mental anguish. Id. at 4. Plaintiff further indicates that to the extent she previously made claims of alleged physical and emotional harm, she is now withdrawing them. Id.

I recently described at length a movant's burden when seeking an IME under Rule 35(a):

When moving for an IME under Rule 35(a), the movant must establish that the "mental or physical condition . . . is in controversy" and that there is "good cause" for the motion to be granted and the party to be submitted for an IME. Fed.R.Civ.P. 35(a). "A plaintiff in a negligence action who asserts a mental or physical injury places that mental or physical injury clearly in controversy and provides the defendant with good cause for an examination to determine the existence and extent of such asserted injury." Schlagenhauf v. Holder, 379 U.S. 104, 119, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964) (citation omitted). In some situations, the pleadings alone may place the condition in controversy. Id.

The standard for "good cause" is not as clear because "what may be good cause for one type of examination may not be so for another." Id. The movant's ability to obtain the desired information by means other than an IME is also relevant to the "good cause" analysis. Id. When the submission of a party to an IME is contested, granting the order to submit to the examination is not a matter of right but is left to the sound discretion of the trial court. Smith v. Koplan, 215 F.R.D. 11, 12 (D.D.C. 2003) (citations omitted).

In addition to the "in controversy" and "good cause" requirements, Rule 35(a) demands that the movant "specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made." Fed.R.Civ.P. 35(a).

Doe v. District of Columbia, 229 F.R.D. 24, 26 (D.D.C 2005).

In Smith v. Koplan, I held unequivocally that "an employee who seeks compensatory damages for emotional pain suffered as a result of employer's action has placed the existence and extent of their alleged mental injury in controversy, giving the employer good cause to seek examination." Id. at 13 (citingShepherd v. Am. Broadcasting Co., Inc., 151 F.R.D. 194, 212-13 (D.D.C. 1993) and Gattegno v. Pricewaterhousecoopers, LLP, 204 F.R.D. 228 (D.Conn. 2001)). While I am aware that my views are in the minority, for the following reasons I adhere to them nonetheless.

See Fox v. The Gates Corp., 179 F.R.D. 303, 307 (D. Col. 1998) ("The majority of courts, however, will not require a plaintiff to submit to a medical examination unless, in addition to a claim for emotional distress damages, one or more of the following factors is present: (1) plaintiff has asserted a specific cause of action for intentional or negligent infliction of emotional distress; (2) plaintiff has alleged a specific mental or psychiatric injury or disorder; (3) plaintiff has claimed unusually severe emotional distress; (4) plaintiff has offered expert testimony in support of her claim for emotional distress damages; and (5) plaintiff concedes that her mental condition is `in controversy' within the meaning of Fed.R.Civ.P. 35(a).") (citations omitted); Turner v. Imperial Stores, 161 F.R.D. 89, 97 (S.D. Cal. 1995) ("This court concludes that `emotional distress' is not synonymous with the term `mental injury' as used by the Supreme Court in Schlagenhauf v. Holder for purposes of ordering a mental examination of a party under Rule 35(a), and specifically disagrees with those few cases holding that a claim for damages for emotional distress, without more, is sufficient to put mental condition `in controversy' within the meaning of the Rule. If this were the law, then mental examinations could be ordered whenever a plaintiff claimed emotional distress or mental anguish. Rule 35(a) was not meant to be applied in so broad a fashion.").

To divide claims, as plaintiff would have me do, between those that only allege "garden variety" emotional distress and those that allege a specific or severe form of emotional distress is no more than a game of semantics and has nothing whatsoever to do with defendant's obligation to show good cause for the ordering of an IME. In other words, no matter what changes plaintiff makes to the wording of her two complaints, the underlying truth remains: plaintiff seeks compensatory damages for the emotional pain she claims to have suffered as a result of defendant's actions. Without the information obtained through a court-ordered IME, defendant would have no means to rebut plaintiff's claims. I cannot fairly deprive defendant of the opportunity to examine plaintiff's claims of emotional distress from a scientific vantage point. In other words, defendant has the right to challenge plaintiff's claim that she was harmed and that defendant was the source of that harm. To preclude defendant from being able to mount its defense in this manner would be to allow plaintiff to unilaterally determine which evidence will and which evidence will not be admissible. The defendant is no more bound by plaintiff's articulation of the issues in this case at it would be in any other case.

Having so concluded, I therefore continue to follow the line of reasoning articulated by those cases that recognize defendants' need to utilize the data obtained from an IME in their defense of claims for compensatory damages for emotional distress. See Jansen v. Packaging Corp. of America, 158 F.R.D. 409, 410 (N.D. Ill. 1994) ("There is no question that by advancing such intangible harms as a component of her damages claim Jansen has not only placed her mental condition `in controversy' but has confirmed the existence of `good cause' for [defendant's] motion . . .") (citation omitted); Smedley v. Capps, Staples, Ward, Hastings and Dodson, 820 F. Supp. 1227, 1232 (N.D. Cal. 1993) (holding that plaintiff's intent to present evidence of "normal" emotional distress warrants the ordering of an IME so that defendants can refute such evidence); Zabkowicz v. West Bend Co., 585 F. Supp. 635 (E.D. Wisc. 1984) ("Because the plaintiffs allege emotional distress, an examination by a nominee of the defendants is appropriate.").

IV. Plaintiff's Motion to Compel Production of Privilege Logs and to Compel Production of Documents for In Camera Inspection and Points and Authorities Thereof [#57]

Plaintiff, whether pro se or not, should be more careful in the representations she makes to the court. She stated that the government claims a privilege for "almost every one of its responses to Plaintiff's requests for discovery." Plaintiff's Motion to Compel Production of Privilege Logs and to Compel Production of Documents for In Camera Inspection and Points and Authorities Thereof at 2. In fact, the government claimed the work-product and attorney-client privileges in response to Request for Production of Documents 12, 14, and 24. In any event, I have sustained the government's objections to these two requests and the motion will therefore be denied as moot.

V. Plaintiff's Opposition to Motion for Independent Medical Examination and Plaintiff's Motion for a Protective Order [#60]

For the reasons stated in subsection III, this motion, seeking a protective order against the independent medical examination I am permitting, will be denied.

VI. Plaintiff's Motion to Amend Claims Relating to Physical and Emotional Harm [#61]

This motion will be granted with the understanding that, if granted, it will not be permitted to revive any claim that Judge Kennedy has dismissed.

VII. Defendant's Motion to Strike, Or, In the Alternative, Reply in Support of Motion for An Independent Medical Examination [#64]

This motion, claiming that plaintiff's opposition to the government's motion to compel plaintiff's independent medical examination was filed late, will be denied as moot since I have resolved that motion in the government's favor.

VIII. Defendant's Motion for Protective Order [#73]

This motion will be denied without prejudice because it is unclear at this point whether the defendant, in complying with the order I am now issuing, will have to produce any additional documents subject to the Privacy Act.

IX. Plaintiff's Motion for Sanctions and Reply to: Defendant's Response to Order to Submit Document for In-Camera Inspection and Defendant's Motion for a Protective Order [#75]

This motion, premised on the defendant's not producing privileged documents for my evaluation, will be denied. As the defendant correctly points out, it was appropriate for the defendant to await my ruling on its objection and plaintiff's motion to compel before complying with my order because, until I ruled, it was impossible for the defendant to know what documents, if any, it had to produce and which, if any, were privileged. There is therefore nothing in the government's behavior in this case that warrants any sanctions whatsoever. This motion will be denied.

CONCLUSION

An Order accompanies this Memorandum Opinion.

ORDER

In accordance with the accompanying Memorandum Opinion, the following is, hereby, ORDERED:

1. Plaintiff's Motion to Strike Defendant's Defenses for Failure to Provide Discovery, to Compel Defendant's Responsive Answers to Plaintiff's Discovery Demands, and to Extend Plaintiff's Discovery Period, and to Bar Witnesses Not Named in Defendant's 26(a) Discovery and Points and Authorities Thereof [#43] is GRANTED in part and DENIED in part.

2. Plaintiff's Motion to Stay Deposition and Points and Authorities Thereof [#47] is DENIED as moot.

3. Defendants' Memorandum of Points and Authorities in Support of Motion for Independent Medical Examination and to Compel Production of Healthcare Records [#53] is GRANTED.

4. Plaintiff's Motion to Compel Production of Privilege Logs and to Compel Production of Documents for In Camera Inspection and Points and Authorities Thereof [#57] is DENIED as moot.

5. Plaintiff's Opposition to Motion for Independent Medical Examination and Plaintiff's Motion for a Protective Order [#60] is DENIED.

6. Plaintiff's Motion to Amend Claims Relating to Physical and Emotional Harm [#61] is GRANTED nunc pro tunc.

7. Defendant's Motion to Strike, Or, In the Alternative, Reply in Support of Motion for An Independent Medical Examination [#64] is DENIED as moot.

8. Defendant's Motion for Protective Order [#73] is DENIED without prejudice.

9. Plaintiff's Motion for Sanctions and Reply to: Defendant's Response to Order to Submit Document for In-Camera Inspection and Defendant's Motion for a Protective Order [#75] is DENIED.

SO ORDERED.