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Lund v. St. Paul Fire & Marine Insurance Company12/6/2001
cause the medical provider fails to cooperate. The records sought should be subpoened.
Discovery: Interrogatories. The Workers' Compensation Court will not order a party to answer a contention interrogatory which asks for mental impressions of opposing counsel or which are so broad that they call for opposing counsel to lay out every item of evidence which might support the party's contention. If the Rules of Civil Procedure contemplate such interrogatory, this Court refuses to adopt such rule and is not required to do so. Such interrogatories lead to delay and mischief and are inappropriate in light of the expedited nature of Workers' Compensation Court proceedings.
Before the Court are cross-motions to compel discovery, a request for a protective order, and a request for attorney fees. Counsel have filed five-eighths inch of documents, consisting of briefs, affidavits, counter-affidavits, correspondence, and the discovery documents. The paperwork amounts to 117 pages, which counsel expects the Court to sort through. It is a sorry mess.
The petition in this matter seeks permanent partial disability benefits and additional medical benefits. The petitioner is Kathy A. Burnside Lund (claimant). She was injured on September 1, 1998, while working for The Industrial Company (Industrial) at the Stillwater Mine in Nye, Montana. At the time of her injury, Industrial was insured by St. Paul Fire & Marine Insurance Company (St. Paul). St. Paul concedes claimant suffered an industrial injury and notes that it has paid medical benefits to her. (Response 6 and Uncontested Fact 1.)
From the nature and ferocity of the discovery dispute, one would think this is a million dollar personal injury case and that the parties are gearing up for a protracted battle which may last for years. Lacking is the sort of cooperation and collegiality I have come to expect from counsel practicing before the Workers' Compensation Court.
Claimant fired the first shot on November 8, 2001, with a motion to compel discovery. (Petitioner's Motion to Compel Discovery; Brief in Support.) She asserted that St. Paul's responses to her interrogatories and requests for production were inadequate and sought a Court order compelling further discovery, specifically:
(1) production of documents and information from the employer (Industrial);
(2) production of documents from St. Paul's claims file that St. Paul had declined to furnish her on the grounds they are attorney-client privileged or attorney work product;
(1) a further, more complete answer to her interrogatory regarding St. Paul's contention, and;
(2) verification of St. Paul's responses to discovery.
St. Paul fired its own salvo on November 19, 2001, with a motion to compel production of medical records. The motion noted that claimant had initially objected to production of some preinjury medical records but had later agreed to produce them, however, she had not done so at the time of the motion.
The matter became even more heated when, in response to St. Paul's motion, claimant asserted that the motion was unjustified. (Brief in Opposition to the Respondent's Motion to Compel at 2.) She requested monetary sanctions against St. Paul. (Id. ) St. Paul on its part sought a protective order from certain discovery. (Respondent's Response to Petitioner's Motion to Compel Discovery and Respondent's Motion for Protective Order.)
I. Claimant's Motion to Compel
A. Waiver Argument
In her initial motion the claimant argues that St. Paul waived all objections to her interrogatories and requests for product
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