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Gregory Steshenko v. Thomas Mckay

April 25, 2012


The opinion of the court was delivered by: Paul S. Grewal United States Magistrate Judge

United States District Court For the Northern District of California

ORDER RE DISCOVERY MOTIONS (Re: Docket Nos. 170, 171, 180, 181, 182, 183, 192)

Plaintiff Gregory Steshenko ("Steshenko") proceeding pro se has filed six motions*fn1 and Defendants Kristine Scopazzi, Berthalupe Carillo, Sally Newell and Watsonville Community 20 Hospital (collectively "Watsonville Hospital Defendants") have filed one.*fn2 The parties, including 21 Defendants Cabrillo Community College District, Thomas McKay, Dorothy Nunn and Anne 22 Lucero ("College Defendants"), oppose each other's respective motions. On April 3, 2011, the 23 parties appeared for hearing. Having reviewed the papers and considered the arguments of the 24 parties, 25 IT IS HEREBY ORDERED that Steshenko's motion for protective order is DENIED.

appointed by the Federal Pro Bono Project to represent Steshenko, was relieved of his appointment 3 in light of an "inference that counsel did not represent [Steshenko's] interests with as much care as 4 might have been appropriate, and certainly not as vigorously as [Steshenko] would have preferred.*fn3

Steshenko, it was not able to do so and Steshenko again represents himself pro se. 7

Steshenko is indigent. On October 25, 2011, James Dal Bon ("Dal Bon"), counsel

Despite efforts by the Federal Pro Bono Project to identify substitute counsel to represent 6

Based on the significant financial resources that are available to both the College

Defendants and the Watsonville Hospital Defendants but not to Steshenko, Steshenko argues that 9 the court should re-balance resources among the parties so that he is not substantially prejudiced. 10

He suggests the following remedies: (1) any oral depositions should occur only after all responsive documents have been produced; (2) Steshenko should be permitted to apply for funds usually allotted to attorneys in the Federal Pro Bono Project so that he may conduct discovery; (3) the 13 court should appoint a discovery referee, with costs to be borne by defendants, to establish a 14 deposition schedule fair to all parties; and (4) alternatively, the court should limit discovery 15 conducted by Defendants to those same discovery methods available to Steshenko. 16

The College Defendants oppose Steshenko's motion in its entirety. They contend that Steshenko has cited to no authority whatsoever, and there is none, to justify his positions. As an 18 initial matter, the College Defendants note that they have responded to both sets of Steshenko's 19 document requests and that "all non-privileged, non-confidential and responsive documents have 20 been produced." The College Defendants also note that together with the Watsonville Hospital 21

Defendants, they sought to depose Steshenko as far back as September 16, 2011. Due to scheduling 22 conflicts on both sides, however, Steshenko's deposition never occurred. The College Defendants 23 dispute that any of their discovery efforts should be predicated on Steshenko's ability to take his 24 own discovery. The College Defendants note that Steshenko is not obliged to conduct oral 25 depositions and that there are other discovery tools available to Steshenko, his financial means 26 notwithstanding, that allow him to meaningfully participate in the discovery process. The College 27

Defendants object to the appointment of a discovery referee because they have complied with their discovery obligations and they should not have to bear the costs associated with such an 2 appointment. 3

The Watsonville Hospital Defendants too, oppose Steshenko's motion but only in part.

First, under Fed. R. Civ. P. 26(c), they argue that Steshenko has not shown good cause to justify 5 the relief he seeks. They next point out that Fed. R. Civ. P. 30 permits them to depose any party 6 and that limiting their discovery options to only the ones available to Steshenko is unwarranted. 7

The Watsonville Hospital Defendants also note that absent express authorization from Congress, 8 public funds are not available for Steshenko to conduct discovery. The Watsonville Hospital 9

Defendants agree, however, to the appointment of a special master but only if the cost is borne 10 equally among the parties.

The court finds that Steshenko has not shown good cause for the court to grant the kind of

protective order he seeks. He has shown neither embarrassment, oppression, undue burden nor 13 expense. Judge Seeborg lifted the previously-imposed stay and has directed that the parties now 14 proceed with discovery.*fn4 Shackling the defendants, so to speak, so that the parties may proceed on 15 equal footing is not appropriate. 16

Steshenko's deposition is GRANTED and their motion for sanctions is DENIED. 18

IT IS FURTHER ORDERED that the Watsonville Hospital Defendants' motion to compel

The Watsonville Hospital Defendants first noticed Steshenko's deposition on October 25,

2010. On December 16, 2010, the undersigned ordered that the Watsonville Hospital Defendants 20 notice Steshenko's deposition by videotape for a location in Santa Cruz County.*fn5 As noted above, 21 however, based on the revocation of Dal Bon's appointment, a court-imposed stay in the case, and 22 various scheduling conflicts that arose by the parties' counsel, Steshenko's deposition never 23 occurred. Whoever bears the majority of the blame for this, in light of Judge Seeborg's order lifting 24

the stay and providing a case management schedule, it is appropriate for Steshenko's deposition to 2 proceed. No later than May 7, 2012, Steshenko shall appear ...

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