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Court Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: eDiscovery Case Law

In Al-Ameri et. al. v. Johns Hopkins Hospital, No. GLR-15-1163 (D.Md. May 26, 2016), Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Case Background

In this medical malpractice case, the defendant served the plaintiffs with its discovery requests in July 2015.  Although the plaintiffs responded to the defendant’s interrogatories and document requests in October 2015, the defendant contended that the response was insufficient, with all of the disputed discovery requests seek documents that are located in the United Arab Emirates (UAE).

The plaintiffs did not challenge the relevance of the supplemental discovery sought, the defendant’s entitlement to the discovery sought, or that the plaintiffs’ heretofore-provided documents were not sufficiently responsive to the defendant’s requests. Instead, the plaintiffs indicated that they had made good faith efforts to obtain the requested documents from relevant entities in the UAE, but to no avail so far.  The plaintiffs even provided the defendant with authorizations to independently obtain the medical records from the UAE facilities, with plaintiffs’ counsel maintaining that it had “made numerous efforts” to produce itemized lien information from both the UAE hospitals and the UAE embassy.  Nonetheless, after conferring with plaintiffs’ counsel to address the purported deficiencies in the production, the defendant filed an instant motion to compel production.

Judge’s Ruling

Regarding the motion, Judge Gallagher stated:

“The so-called ‘discovery dispute’ regarding these document requests, then, is not really a dispute at all. Plaintiffs concede that they must produce the existing requested documents, but the fact remains that, for over a year, they have tried, and failed, to do so. Thus, as discussed during the status conference call, there is no reason to grant Defendant’s motion as to Requests Nos. 4, 5, 20, and 21, since doing so would be futile. Plaintiffs are not engaging in gamesmanship or withholding information. They acknowledge that the documents are crucial to the case, but are presently unable to obtain them. Compelling these documents would not suddenly change Plaintiffs’ situation or make the documents producible.”  As a result, Judge Gallagher denied the defendant’s motion because compelling the discovery would be futile.

So, what do you think?  Was the court correct to deny the motion?  Please share any comments you might have or if you’d like to know more about a particular topic.

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