Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

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 for a deposition at a location in Santa 3

$2,361.80 is denied. 5

6 privileged information is DENIED. 7

Bon. Steshenko therefore moves to compel the source of the information that caused them to make 10 the discovery request in the first place.

The Watsonville Hospital Defendants respond that they did not propound discovery based

on any attorney-client privileged information that may have been received from Dal Bon. Because 13 of the frivolous nature of the motion, the Watsonville Hospital Defendants seek $680 in sanctions. 14

15 frivolous. In light of the breakdown in the attorney-client relationship between Dal Bon and 16

Steshenko, however, and giving Steshenko the benefit of the doubt that the motion was not brought 17 in bad faith, the court will refrain from imposing sanctions.*fn6

20 reiterates his suspicions that Dal Bon may have improperly disclosed privileged information to the 21 defendants causing them to propound certain discovery. 22

23 on privileged information received from Dal Bon. They instead contend that the discovery was 24 served as part of their routine discovery requests related to his wage loss claims. 25

Cruz County. The Watsonville Hospital Defendants' motion for sanctions in the amount of 4

IT IS FURTHER ORDERED that Steshenko's motion to compel disclosure of sources of Steshenko contends that certain discovery propounded by the Watsonville Hospital

Defendants suggests that they obtained attorney-client privileged information about him from Dal 9

The court agrees with the Watsonville Hospital Defendants. This motion borders on the

IT IS FURTHER ORDERED that Steshenko's motion to suppress evidence is DENIED.

Steshenko moves to suppress evidence obtained by improper means. Steshenko again

The Watsonville Hospital Defendants again dispute that their discovery was served based

The court agrees with the Watsonville Hospital Defendants. As noted by Judge Seeborg,

Steshenko's suspicions that Dal Bon may have conspired with the defendants to undermine his 27

positions in this litigation are not supported by the record.*fn7 The court further notes that any motion 2 for preclusive sanctions should have been made to the presiding judge.

IT IS FURTHER ORDERED that Steshenko's motion to take judicial notice is DENIED.

Steshenko moves for judicial notice of certain facts related the economy in the United

States, in California, and in Santa Cruz County from 2007 to 2011. He does not indicate why, or 6 for what purpose, he seeks to have the court take judicial notice of these facts in a stand-alone 7 motion. 8

9 are undisputed and that the kinds of facts that Steshenko seeks the court to take judicial notice are 10 better suited for testimony by expert witnesses. Citing to Fed. R. Evid. 201, they note that the kind

of facts that may be judicially noticed are those facts that are not subject to reasonable dispute.

The court agrees with the Watsonville Hospital Defendants. To the extent that the statistics

13 reflecting general economic trends from 2007 to 2011 cited by Steshenko may be disputed, they are 14 not appropriate for judicial notice under Fed. R. Evid. 201. 15

16 produce documents is GRANTED but only IN-PART. 17

18 requests. He contends that the College Defendants have improperly invoked attorney-client 19 privilege to shield otherwise relevant documents from production. Based on their improper 20 withholding of relevant documents, Steshenko also seeks $1,000 in sanctions. 21

22 privileged responsive documents along with a privilege log. They note that some documents were 23 withheld on the grounds of privilege, privacy, or the Health Insurance Portability and 24

Accountability Act of 1996 ("HIPAA"). Some documents were destroyed in the regular course of 25 business and some of the requests that Steshenko served were unduly burdensome and overbroad. 26

They also point out that Steshenko advised them that they had until March 2, 2012 to respond to 27 his meet and confer letter but he nevertheless filed this motion on February 27, 2012. 28

The Watsonville Hospital Defendants contend that Steshenko has not shown that these facts

IT IS FURTHER ORDERED that Steshenko's motion to compel the College Defendants to Steshenko moves to compel the production of documents responsive to his document

The College Defendants respond that they have produced all non-confidential, non-

2 requests, Steshenko served approximately 65 requests. For set one, it appears that the College 3

21, 23, 24, 25, 26, 27, 34, 42, 44, 45, 47, 51a-f*fn8 and from set two, it appears that the College 5 defendants have fully responded to document request nos. 1 through 15. 6

In large part, the court agrees with the College Defendants. In two sets of document

Defendants have fully responded to document request nos. 2, 3, 4, 5, 9, 12, 13, 15, 17, 18, 19, 20, 4

With respect to document request nos. 1, 6, 7, 8, 10, 11, 14, 35, 36, and 37 (set one), the

College Defendants object to the requests on the grounds that other student records and other 8 student complaints are private, privileged or confidential and cannot be produced without a court 9 order. Having reviewed these requests, the court is persuaded that the College Defendants should 10 further respond to document request nos. 1 (except for other student records), 8 (with names and other identifying information redacted), 13, and 14. The College Defendants also should respond to

document request no. 46. They provided no response to justify withholding documents responsive 13 to this category of documents. 14

Steshenko has not established to the court's satisfaction that all of the document requests in this 17 category are relevant. He does not explain what the government claim is, what the state legal action 18 is and how related documents are relevant. Documents produced by Cabrillo College employees in 19 connection with this action, however, should be produced (except to the extent they qualify for the 20 attorney-client privilege or protections of the work-product doctrine). 21

As for document request no. 48 (set one), Steshenko seeks documents produced in, or in

22 connection, with closed sessions of the Cabrillo Community College District Governing Board that 23 relate to his claims. The College Defendants assert privilege based on Government Code Sections 24

6254, 54957.2 and 54963 as well as the attorney-client privilege and work product doctrine. 25 26 27

As for document request no. 38 (set one), Steshenko seeks documents produced by Cabrillo

College employees in connection with his government claim, the state legal action and this action. 16

At the hearing, the College Defendants conceded that any applicable privilege is not an absolute 2 one but a qualified one. They do not, however, specify what the applicable privilege might be.*fn9

Rather than analyze how the government codes they cite apply to the governing board of a 4 community college, the College Defendants only state that documents were prepared for the 5 college district's closed session governing board meetings. In the absence of any further 6 explanation or justification, their objections on that basis are overruled. The College Defendants 7 also have not explained, let alone established, that the attorney-client privilege or work product 8 doctrine applies. Any objections on those bases also are overruled. 9

10 on the grounds that the requests set forth an incorrect "factual predicate" and are not relevant.

The College Defendants also objected to document request nos. 16, 39, 40, and 41 (set one)

Having reviewed the requests, the court finds that Steshenko has not established that these

document requests are relevant. 13

14 documents as specified above. Steshenko's motion for sanctions is denied. 15

16 the court is GRANTED. 17

18 extent the parties previously met and conferred on the issues in dispute, the motions may be simply 19 re-noticed for hearing. On the other hand, if other motions were filed without any meet and confer, 20 the parties are obligated to meet and confer before re-noticing their motions for hearing. 21 22 23 24

No later than May 4, 2012, the College Defendants shall supplement their production of

IT IS FURTHER ORDERED that Steshenko's motion for a more definite statement from

After the stay was lifted, the parties were directed to re-notice any pending motions. To the

Thomas v. Matthew Cate, 715 F.Supp. 2d 1012, 1019, 2010 WL 671254 at *2 (E.D. Cal. Feb. 19, 2010) ("'The primary rationale for the intra-governmental opinion privilege is that effective and 27 efficient governmental decisionmaking requires a free flow of ideas among government officials and that inhibitions will result if officials know that their communications may be revealed to 28 outsiders.'"). They do not, however, endeavor whatsoever to address any of the applicable factors attendant to either of the privileges. See id. 7


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.