# Asberry v. School Board of Pasco County, Florida

> District Court, M.D. Florida · January 13, 2020

URL: https://www.frixlaw.com/law-library/cases/10104347

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 13, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

XANTHE ASBERRY,

Plaintiff,
v. Case No. 8:18-cv-2222-T-35SPF
SCHOOL BOARD OF PASCO COUNTY,
FLORIDA,

Defendant.
/
ORDER
This cause comes before the Court upon Defendant’s Opposed Motion to Compel
Plaintiff’s Discovery Responses (Doc. 26). Plaintiff filed a Response in opposition (Doc. 27).
Plaintiff sues Defendant for race discrimination and retaliation, among other claims,
and is seeking non-economic damages for “pain and suffering, mental anguish, etc.” as a
result of Defendant’s actions (Doc. 19; Doc. 26-1). Defendant seeks to compel the discovery
requested in its Requests for Production Nos. 8 and 221 and Interrogatory No. 9, specifically
Plaintiff’s medical history and records. Plaintiff argues that because she only seeks “garden
variety” emotional distress damages, she has not put her mental condition in controversy,
and, as such, Defendant is not entitled to this discovery. For the reasons stated below,
Defendant’s motion is denied.
Typically, a defendant must show good cause and establish that the plaintiff has put his
or her mental condition “in controversy” in order to obtain a plaintiff’s mental health records.

1 RFP 22 seeks Plaintiff’s fee agreement with counsel. In her response, Plaintiff withdrew her
objection to this RFP and agreed to produce her fee agreement with counsel (Doc. 27 at 3-4).
As such, the Court will not address RFP 22.
Thomas v. Seminole Elec. Coop. Inc., No. 8:16-cv-3404-T-35JSS, 2017 WL 2447722, at *4 (M.D.
Fla. June 6, 2017). Several district courts have held that a plaintiff does not put his or her
mental condition “in controversy” by seeking “garden variety” emotional distress damages.
Id. In order for a plaintiff to put his or her mental condition in controversy, courts have held

that, in addition to seeking emotional distress damages, a plaintiff must also: (1) bring a claim
for intentional or negligent infliction of emotional distress; (2) allege a specific mental or
psychiatric injury or disorder; (3) claim unusually severe emotional distress; (4) offer expert
testimony in support of an emotional distress claim; or (5) concede that his or her mental
condition is in controversy. See id.; see also Laboy v. Emeritus Corp., No. 5:13-cv-582-Oc-
22PRL, 2014 WL 1293440, at *1 (M.D. Fla. Mar. 28, 2014); Chase v. Nova Se. Univ., Inc., No.
11-61290-CIV, 2012 WL 1936082, at *3-4 (S.D. Fla. May 29, 2012); Ortiz-Carballo v.
Ellspermann, No. 5:08-cv-165-Oc-10GRJ, 2009 WL 961131, at *2 (M.D. Fla. Apr. 7, 2009).
Plaintiff has taken none of these enumerated actions. As such, Plaintiff has not put her mental

condition at issue, and Defendant is not entitled to Plaintiff’s medical records.
Moreover, Defendant’s argument that Plaintiff waived objections by not timely
responding to the discovery requests2 is unpersuasive under these circumstances. Although a
plaintiff might waive potential objections by failing to timely respond to discovery requests,
the court may still deny a motion to compel when the discovery request exceeds the bounds
of fair discovery. Lane v. Guaranty Bank, No. 6:13-cv-258-Orl-36TBS, 2013 WL 4028185, at
*2 (M.D. Fla. Aug. 7, 2013) (citing Siddiq v. Saudi Arabian Airlines Corp., No. 6:11-cv-69-Orl-
19GJK, 2011 WL 6936485, at *3 (M.D. Fla. Dec. 7, 2011)). Because Defendant has failed to

2 Plaintiff asserts that she inadvertently missed the original discovery deadline but provided
the discovery responses and objections in good faith as soon as possible after the oversight
came to Plaintiff’s counsel’s attention (Doc. 27 at 4).
make a good cause showing of entitlement to Plaintiff's medical records, the Court finds that
the RFP and interrogatory at issue exceed the bounds of fair discovery for purposes of
determining Plaintiff's waiver of objections.
Accordingly, it is hereby ORDERED:
Defendant’s Opposed Motion to Compel Plaintiff's Discovery Responses (Doc. 26) is
DENIED.
ORDERED in Tampa, Florida, January 13, 2020.

Ere
SEAN P. FLYNN
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104347. Public record. Not legal advice.