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Doe v. Kaweah Delta Hospital

January 29, 2010

JOHN DOE, PLAINTIFF,
v.
KAWEAH DELTA HOSPITAL, KAWEAH DELTA HEALTH CARE DISTRICT, JULIE ANNE BRESEMAN AND AS A SOCIAL WORKER WITH KAWEAH DELTA AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING MOTION TO COMPEL (Documents 51and 55)

I. Introduction

On December 24, 2009, Defendant, Julie Breseman, filed the instant Motion to Compel seeking to further depose Plaintiff, John Doe ("Plaintiff"). (Doc. 51). On December 31, 2009, Defendant, Kaweah Delta Health Care District, joined in the motion. (Doc. 56). Plaintiff did not file an opposition to the motion.*fn1 A hearing was held before the Honorable Gary S. Austin on January 29, 2010. Carey H. Johnson and Kevin B. Kalajian, personally appeared on behalf of Julie Breseman. Jeffrey S. Nelson personally appeared on behalf of Kaweah Delta Healthcare District. Plaintiff also personally appeared. Upon consideration of the pleadings, Defendants' Motion to Compel is GRANTED.

II. Relevant Background

On January 24, 2008, Plaintiff filed a complaint contending that his privacy rights were violated because his HIV-positive status was allegedly disclosed to his clients by Kaweah Delta Hospital and its employees. The complaint names Kaweah Delta Hospital, Kaweah Delta Health Care District, Julie Breseman, a social worker at the hospital, and Does 1 through 20 as Defendants.

Plaintiff alleges seven causes of action including: (1) a violation of due process pursuant to 42 U.S.C. § 1983; (2) a violation of privacy pursuant to the California Constitution; (3) violations of California Civil Code sections 56.10 and 56.31; (4) common law invasion of privacy/disclosure of private facts; (5) negligence; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress. Plaintiff seeks general; special and punitive damages; attorneys fees; and costs of the suit.

Answers to the complaint were filed on March 28, 2008, on behalf of Julie Breseman and Kaweah Delta Hospital. (Docs. 14 and 15). On May 5, 2009, Mr. Minn Chung, Plaintiff's counsel, filed a motion to withdraw as counsel. (Doc. 35). The motion was heard on shortened time and counsel was permitted to withdraw on May 12, 2009. (Doc. 37). Plaintiff is appearing pro se.

A scheduling conference was held on September 10, 2009. (Docs. 44 and 45). At that time, the Court set the non-expert discovery deadline for January 15, 2010. Non-dispositive motions were to be filed no later than May 7, 2010. Therefore, the Motion to Compel is timely.

III. Defendants' Motion to Compel

Defendants Julie Breseman and Kaweah Delta Health Care District (collectively "Defendants") filed the instant Motion to Compel the deposition of Plaintiff. Plaintiff was deposed on March 6, 2009. At that time, Plaintiff was represented by Mr. Chung. Defendants contend that off the record discussions occurred between counsel wherein all of the parties agreed that Plaintiff's deposition could be terminated early and resumed at a later date due to a scheduling conflict. See, Declaration of Carey H. Johnson, Esq., dated December 24, 2009 at pgs. 2-3 ("Johnson Decl.") (Doc. 53) and Declaration of Jeffrey S. Nelson, Esq., dated December 31, 2009 at pgs. 2-3 ("Nelsen Decl.") (Doc. 56). Defendant Julie Bresemen questioned Plaintiff for approximately one hour and permitted Plaintiff's counsel to question Plaintiff during the deposition which lasted almost five hours. Johnson Decl. at 3. However, at the conclusion of the deposition, Plaintiff's counsel, Mr. Chung, indicated that he never agreed to continue the deposition, and that this would be the only time Plaintiff would be available to be questioned. Johnson Decl. at 2. The deposition concluded. However, attorney Johnson, counsel for Julie Breseman, indicates that he has approximately two hours of questioning left to complete. Johnson Decl. at pg. 3. Jeffrey Nelson, counsel for Kaweah Delta Health Care District, also indicates that he has an additional thirty to forty-five minutes of questioning. Nelsen Decl. at pg. 3.

Attorney Johnson properly noticed another deposition of the Plaintiff for November 20, 2009. Johnson Declaration at pg. 3. On November 18, 2009, Attorney Johnson received a call from the office of Susan Rodriguez, Esq., indicating that Ms. Rodriguez was considering representing Plaintiff and requested that the deposition date be rescheduled. Id. However, Ms. Rodriguez did not make an appearance in this action and the deposition was not rescheduled. Id. Although Plaintiff was given proper notice of the deposition, he did not appear. Id. Attorney Johnson attempted to contact Plaintiff on December 3, 7, and 8, 2009, to reschedule the deposition. Johnson Declaration at pg. 4. Plaintiff left a voicemail for counsel on December 9, 2009, but counsel has not heard from Plaintiff since that time. Defendants request that the Court order that Plaintiff appear for his deposition.

IV. Discussion

A. The Scope of Discovery

Fed.R.Civ.P. 26(b) establishes the scope of discovery and states ...


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