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ORDER 

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

JENNIFER N. FORSHEY, D.M.D., M.D.,

Plaintiff,

v.

SOUND ORAL & MAXILLOFACIAL

SURGERY, P.S., a Washington corporation;

ROBERT TODD ERICKSON, DDS, and

ANNE ERICKSON, and their marital

community; and INTERMOUNTAIN

EMPLOYMENT SOLUTIONS, INC., a Utah

corporation d.b.a. ASCEND HR

SOLUTIONS,

Defendants.

CASE NO. C06-5335RJB

ORDER DENYING WITHOUT

PREJUDICE DEFENDANTS

SOUND ORAL &

MAXILLOFACIAL SURGERY,

P.S., ROBERT TODD

ERICKSON, DDS, AND ANNE

ERICKSON’S MOTION TO

COMPEL PRODUCTION FROM

NONPARTY

This matter comes before the Court on Defendants Sound Oral & Maxillofacial Surgery,

P.S., Robert Todd Erickson, DDS, and Anne Erickson’s Motion to Compel Production From

Nonparty (Dkt. 34-1). The Court has considered the pleadings filed in support of and in

opposition to the motion and the file herein.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Jennifer N. Forshey is an oral surgeon who was hired by Sound Oral &

Maxillofacial Surgery (“Sound Oral”) in March of 2004. Dkt. 35 at 2. Defendant Robert Todd

Erickson, co-owner of Sound Oral, was Dr. Forshey’s direct supervisor. Dkt. 1 at 4. Dr.

Forshey’s employment with Sound Oral was terminated on August 19, 2004. Dkt. 1 at 2. The

complaint alleges that the termination stemmed from Dr. Forshey’s opposition to Dr. Erickson

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ORDER 

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permitting Michael Serrianne to administer anesthetics when he was in fact not licensed to do so.

Id. at 5. Dr. Forshey alleges that her termination constitutes wrongful discharge in violation of

public policy and breach of employment contract. Id. at 7. 

On September 5, 2006, the defendants served Dr. Steven D. Sudbrink, who is not a party

to this case, with a subpoena duces tecum seeking employment records concerning Dr. Forshey.

Dkt. 35, Exh. G at 7. Dr. Forshey worked for Dr. Sudbrink after being terminated from Sound

Oral. See Dkt. 35-4. Counsel for Dr. Sudbrink objected on the grounds that the subpoena sought

privileged information and would cause undue burden or expense. Dkt. 35, Exh. H at 11. The

defendants sought, via facsimile, an authorization from the plaintiff allowing the discovery. Dkt.

35, Exh. I at 14. The plaintiff maintained that the discovery was not relevant and invited the

defendants to explain the relevance of the documents. Exh. J at 23. 

The defendants now move for an order compelling production. Dkt. 34-1. The plaintiff

opposes the motion on the grounds that it seeks evidence that it inadmissible under Federal Rules

of Evidence 404 and 608 and that the request is overly broad. Dkt. 38. It does not appear that Dr.

Sudbrink has been served with the motion.

II. DISCUSSION

Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain discovery regarding

any matter, not privileged, that is relevant to the claim or defense of any party.” Fed. R. Civ. P. 26

(b)(1). Subpoenas are governed by Federal Rule 45:

(1) Every subpoena shall . . .

(C) command each person to whom it is directed to attend and give testimony or

to produce and permit inspection and copying of designated books, documents or

tangible things in the possession, custody or control of that person, or to permit

inspection of premises, at a time and place therein specified; . . . .

Fed. R. Civ. Pro. 45(a). If the person served with the subpoena objects to the production of

materials sought in the subpoena, the party seeking discovery may move to compel production.

[A] person commanded to produce and permit inspection and copying may . . . serve upon

the party or attorney designated in the subpoena written objection to inspection or copying

of any or all of the designated materials or of the premises. If objection is made, the party

serving the subpoena shall not be entitled to inspect and copy the materials or inspect the

premises except pursuant to an order of the court by which the subpoena was issued. If

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ORDER 

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objection has been made, the party serving the subpoena may, upon notice to the person

commanded to produce, move at any time for an order to compel the production. Such an

order to compel production shall protect any person who is not a party or an officer of a

party from significant expense resulting from the inspection and copying commanded.

Fed. R. Civ. Pro. 45(c)(2)(B). Before moving to compel, parties should make a good faith effort

to confer and resolve the dispute themselves. See Local Rule CR 37 (a)(2). Local Rule CR 37

defines a good faith effort to confer as “a face-to-face meeting or a telephonic conference.” Local

Rule CR 37(a)(2)(A). Here, it appears that there has been no attempt to confer as defined by

Local Rule CR 37. Moreover, Dr. Sudbrink has not been afforded an opportunity to respond to

the motion as he has not been served. The Court should therefore deny the motion without

prejudice, allowing the parties to revisit the matter after having conferred.

III. ORDER

Therefore, it is hereby

ORDERED that Defendants Sound Oral & Maxillofacial Surgery, P.S., Robert Todd

Erickson, DDS, and Anne Erickson’s Motion to Compel Production From Nonparty (Dkt. 34-1)

is DENIED WITHOUT PREJUDICE.

The Clerk of the Court is instructed to send uncertified copies of this Order to all counsel

of record and to any party appearing pro se at said party’s last known address.

DATED this 13th day of October, 2006.

ARobert J Bryan

United States District Judge

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