UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

§
DEAN KEVIN LURIE, M.D., §
Plaintiff, §
§
v. § Civ. Action No. 06-1386 (RCL)
§
MID-ATLANTIC PERMANENTE §
MEDICAL GROUP, P.C. d/b/a § v
KAISER PERMANENTE, et al., § F l L E D
Defendants. § SEP 3 0 2009
§ tNANcYM/avenwnin»ncton,cuzm<
u.s. msta\ct count
MEMORANDUM OPINION

Before this Court is the plaintiff s motion to compel. On consideration of
the motion, the opposition, and the reply thereto, as well as the entire record in this
case, the motion to compel is granted in part and denied in part for the reasons set
forth below. Additionally, as a consequence of this decision, both the motions for
summary judgment are dismissed without prejudice to refile as stipulated in the
separate order that accompanies this memorandum opinion.

I. Introduction
Plaintiff, Dean Kevin Lurie, is a doctor who for some seventeen years was

employed by Mid-Atlantic Permanente Medical Group (MAPMG) and its
predecessor, here in Washington, D.C. and its Maryland suburbs. In October
2005, Dr. Lurie was fired from his position, for, as his employer alleges, falsifying
time records. Dr. Lurie, however, believed his dismissal was based on age

discrimination, and accordingly he submitted his claims to the Equal Employment

Oppoi'tunity Commission in late February 2006. By May 26, 2006, the findings of
the EEOC as well as notice of suit rights had been sent to both Dr. Lurie and the
attorneys for MAPMG. Dr. Lurie filed suit on August 4, 2006, alleging claims
under the Age Discrimination in Employment Act, ERISA, and state common law.
II. Motion to Compel

While the plaintiffs discovery requests are not a model of draftsmanship,
Dr. Lurie still raises several issues about document production that are critical to
resolve before dispositive motions can be properly addressed. Although not
properly identified by the plaintiffs’ motion to compel, as required by Local Rule
26.2(d), it seems that both parties agree that what is disputed is defendants’
compliance with the plaintiffs request for production # 30. Accordingly, the
Court limits its consideration to request for production # 30. Any other relief
sought by the motion to compel shall not be granted by this Court as the plaintiff
has failed to properly notify MAPMG so that it may respond and present the issue
to this Court for its consideration.

Request for production # 30 sought eleven different categories of written
policies and procedures of the defendant. In their response and objections, the
defendant identified certain policies it thought were responsive to the request and
lodged several objections as well. The defendant’s objections, as set forth in their
opposition to the motion to compel will be considered, and then the Court

addresses general and specific problems with MAPMG’S production. First

though, the Court addresses MAPMG’s argument that the motion to compel is
untimely.

Although MAPMG contends that Lurie’s motion to compel is untimely, it
cites no authority for its position that a motion to compel filed outside the
discovery period is untimely per se. Indeed, to the contrary, courts routinely
consider motions related to discovery, even though they are filed outside the
discovery period, especially where the time of filing of such a motion is
attributable, as it is here, to the parties’ attempted settlement of the discovery
dispute. See, e.g., McFaa’a’en v. Ballara', Spahr, Ana’rews, & Ingersoll, LLP, 243
F.R.D. l, ll (D.D.C. 2007) (noting that the federal rules contain no provision
regarding the time of filing for a motion to compel and suggesting that a per se
rule would create perverse incentives in discovery). As the Court considers the
time of filing attributable to the parties’ failure to settle the discovery dispute
within the discovery period, and thus timely, it will consider the motion to compel.

At the outset, the Court notes that a trial court is afforded substantial
discretion in handling discovery matters. Food Lz`on Inc. v. Uniled Fooa’ and
Comrnercz`al Workers In’tl Um`on, 103 F.3d 1007, 1012 (D.C. Cir. 1997) (citing
Brune v. IRS, 861 F.3d 1284, 1288 (D.C. Cir. 1988)). MAPMG also contends that
the policies Lurie seeks are not relevant to the issues to Lurie’s claims or defenses.
Opposz`tz'on at 3. Lurie, however, states that he needs the operative policies and
procedures in order to defend against MAPMG’s motion for summary judgment

on his wrongful discharge claim. MAPMG contests this assertion because it

believes that no Maryland or District of Columbia case has ever "premised a

39

wrongful discharge claim on an employer’s violation of its own policies. Opp’n
at 4. While one could certainly characterize such claims as claims for breach of
contract, and perhaps this should be the proper course, Lurie has cited two cases
(one from Maryland and one from the District) that strongly suggest that a
wrongful discharge claim can be based on an employer’s violation of its own
policies, even though it still would require a contractual obligation on the part of
the employer. Duncan v. Chz`ldren’s Nat’l Med. Ctr., 702 A.2d 207, 213 (D.C.
1997); Haselrig v. Publl`c Storage, Inc., 585 A.Zd 294 (Md. App. l99l). MAPMG
has not pointed to any other cases that affirmatively disclaim the viability of such
a theory. Additionally, the Court notes that relevance, as defined in Rule 26, is
broadly construed. As such the Court can neither say that such policies, as were
operative at the time of Lurie’s termination, would not be relevant to Lurie’s
defense or would preclude his making a claim in tort rather than contract nor that
they are not relevant as contemplated by Rule 26. See Pederson v. Preston, 250
F.R.D. 61, 64 (D.D.C. 2008) (Lamberth, C.J.). lt may be that the operative
policies completely preclude Lurie’s claims, as even the policies that predate his
termination by many years, as well as those after the fact, contain broad
disclaimers regarding the creation of contractual liability. But then again, they
may not.

For example, the plaintiff has attached a sampling of the defendant’s

production, and one of the iterations of the defendant’s "Progressive Discipline

a .»».~.»»,t~,.t....¢.»¢......».»>~.*...»..~t.\ .»...,....,., ..t..,.. . . ..

Policy" states on its first page that it was issued in July 2005, but on the remaining
three pages lists the date of the policy as July 2007. See MG0l642~MG0l645.
This certainly invites some confusion as to whether the operative policy at the
time of Lurie’s termination was indeed produced. And while that policy does
contain a disclaimer of contractual liability, if it was not in fact the operative
policy, the Court cannot decide whether or not Lurie’s claims can proceed. If the
operative policies are no longer in existence, the defendant shall notify the Court
in writing with an explanation as to why the operative policy and procedure has
not been preserved.

Finally, the Court turns to one specific issue. In request for production #
30(A) the plaintiff sought the defendant’s policies regarding the completion of
time records, to which the defendant answered that "there are no policies
specifically pertaining to how a physician is to fill out a time sheet." While there
may be no such policy that exists specifically for physicians, to the extent a policy
about filling out time sheets exists for employees generally, it shall be produced in
the form that was operative at the time of the defendant’s termination. If
physicians are exempted from such a policy, should it exist, any documentation
supporting the exemption shall be produced as well.

"l`o the extent that the defendant identified other policies and procedures
responsive to the plaintiffs request for production # 30, or identified policies it

said it would produce in response, if those policies have not been produced in the

form that was operative at the time of the plaintiffs terinination, they too shall be
produced.

Furthermore, as the purpose of granting this motion to compel is to allow
the Lurie to adequately raise a defense to MAPMG’S motion for summary
judgment, and this order might have some affect on Lurie’s motion for summary
judgment as well, all pending dispositive motions shall be dismissed without
prejudice to refile once compliance with this Court’s order has been met as
directed in the accompanying order.

A separate order shall issue this date.

September@, 2009
ga c. faa/ml

RoY%E C. LRMBERTH
Chief Judge
United States District Court

