The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:21-CV-00676-FDW-SCR
POPPI KUSH SWINDELL, )
)
Plaintiff, )
)
v. ) ORDER
)
CHARLOTTE MECKLENBURG BOARD )
OF EDUCATION, )
)
Defendant. )
)
THIS MATTER is before the Court on Defendant’s Motion to Compel Production of
Documents, (Doc. No. 78). This matter has been fully briefed, (Doc. Nos. 87, 88), and is ripe for
ruling. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART
Defendant’s Motion to compel production of documents concerning Plaintiff’s sources of income
and DEFERS ruling on Defendant’s Motion to compel production of medical documents over
which Plaintiff claims psychotherapist-patient privilege. The Court will rule on the balance of
Defendant’s Motion after conducting in camera review of the purportedly privileged documents.
Defendant moves to compel production of “all documents related to Plaintiff’s disability
benefits, including application materials” under Federal Rule of Civil Procedure 37. (Doc. No. 78.)
This includes: (1) all documents concerning Plaintiff’s income from any disability or other
government benefit from the start of Plaintiff’s employment with Defendant in 2009 through the
present, and (2) certain medical documents submitted in support of Plaintiff’s long-term disability
application. Plaintiff asserts the medical documents Defendant seeks are protected by the
psychotherapist-patient privilege. (Doc. No. 87.) Further, he argues Defendant’s request for
documents related to his income is irrelevant and disproportionate to the needs of the case.
Rule 37 governs motions to compel discovery. Fed. R. Civ. P. 37(a). It does not expressly
limit motions to compel to the discovery period or provide any other time limitation. However, it
is this Court’s responsibility to impose a discovery cut-off under Federal Rule of Civil Procedure
16(b), and it did so. The discovery period expired on November 29, 2023. (Doc. No. 30.) And
courts have discretion to determine whether a motion to compel was filed within a “reasonable
time.” See Lane v. Lucent Techs., Inc., No. 1:04-cv-00789, 2007 WL 2079879, at *3 (M.D.N.C.
July 13, 2007) (citing Gault v. Nabisco Biscuit Co., 184 F.R.D. 620 (D. Nev. 1999)). When “the
moving party has unduly delayed, the court may conclude that the motion is untimely.” Id.
“Generally, a party must file a motion to compel before the close of discovery in order for the
motion to be deemed timely.” Id.; See also 8B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2285 (3d ed. 1998).
Here, Defendant filed its motion to compel well after the close of discovery, and after the
Court disposed of the parties’ motions for summary judgment. Defendant presents no compelling
reason for delay in moving to compel production of documents relating to Plaintiff’s income from
disability or other government-funded benefits. Based on Defendant’s own summary judgment
briefing, it was aware before the close of discovery that Plaintiff was receiving short-term
disability benefits through the State of North Carolina. (See Doc. No. 49-3, pp. 9–10.) To the extent
Defendant asserts Plaintiff failed to comply with his discovery obligations, Rule 37 provides other
remedies for such non-compliance. Fed. R. Civ. P. 37(c). But it does not excuse Defendant’s own
undue delay in filing its Motion. The Court DENIES Defendant’s Motion as to documents relating
to Plaintiff’s sources of income other than his recent award of long-term disability benefits.
With respect to Plaintiff’s long-term disability benefits, the Court understands from the
record that Plaintiff’s application for long-term disability was only recently approved. (See Doc.
Nos. 78, 78-4, 87.) Consistent with Plaintiff’s obligation to supplement his discovery responses,
the Court GRANTS Defendant’s Motion and ORDERS Plaintiff to produce documents relating to
payment of long-term disability benefits from the State of North Carolina for which he was
approved on July 17, 2024.
Defendant contends it was delayed in requesting the medical records supporting Plaintiff’s
long-term disability application because counsel was unaware Plaintiff submitted those records
until his long-term disability application was granted in July 2024. Then, Defendant was delayed
in filing the Motion to Compel while counsel endeavored to comply with Rule 37’s conferral
requirement and allowed Plaintiff, who is pro se, a reasonable time to research the question of
privilege.1 For these reasons, the record supports that Defendant’s Motion was not unduly delayed.
There remains Plaintiff’s assertion of psychotherapist-patient privilege over the medical
records. The Court concludes it cannot dispose of this objection on the papers. The Court ORDERS
Plaintiff to bring with him to the pretrial conference two (2) copies of each document responsive
to Defendant’s request for production of documents submitted in support of his long-term
disability application over which he asserts psychotherapist-patient privilege. The Court will
conduct in camera review of the documents and determine whether the privilege applies.
IT IS THEREFORE ORDERED that Plaintiff must produce to Defendant copies of all
documents related to payment of long-term disability benefits from the State of North Carolina he
was awarded on July 17, 2024.
1 The Court notes the Local Rules in this District refer discovery motions to the United States Magistrate Judge
assigned to this case. Magistrate Judge Susan Rodriguez’s Standing Order states: “Before filing a motion to compel
or any other motion related to a discovery dispute, the parties are required to schedule and submit to an informal
conference with the Court. . . . A motion to compel or any other motion may only be filed, if needed, after the informal
conference.” Due to the proximity in time to trial, the Court removed the referral of Defendant’s Motion, but notes it
does not appear Defendant complied with the Magistrate Judge’s Standing Order before filing the Motion.
IT IS FURTHER ORDERED that Plaintiff must bring two (2) copies of each document
over which he asserts psychotherapist-patient privilege to the pretrial conference, which will take
place immediately after docket call at 9:00 a.m. on September 9, 2024.
IT IS FURTHER ORDERED that the Clerk of Court is respectfully directed to SEAL
pages 8 and 9 of Plaintiff's Response in Opposition, (Doc. No. 87), to Defendant’s Motion to
Compel because these pages contain confidential settlement negotiations.
IT IS SO ORDERED.
Signed: September 3, 2024
Frank D. Whitney ¢
United States District Judge □□□