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Besing v. Taylor

United States District Court, S.D. California

December 31, 2014

RAY G. BESING, Plaintiff,
v.
WILLIAM R. TAYLOR, M.D., et al., Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S EX PARTE DISCOVERY MOTION [ECF No. 46]

DAVID H. BARTICK, Magistrate Judge.

On December 1, 2014, Plaintiff Ray G. Besing filed a document entitled "Joint Motion on Discovery Dispute: (1) Motion to Waive Local Rule 7.1(d) and (e); (2) Motion to Compel Defendants' Discovery Responses; (3) Motion For Protective Order; (4) Motion for Sanctions." (ECF No. 46.) The Court previously resolved some of the disputed issues in its December 2, 2014 Order. (ECF No. 48.) Following a December 29, 2014 telephonic Discovery Conference, the Court now issues this Order to resolve the remaining issues raised in Plaintiff's motion. For the reasons set forth herein, Plaintiff's motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff commenced this action on December 24, 2013 when he filed his initial Complaint. (ECF No. 1.) Plaintiff filed a First Amended Complaint ("FAC") on June 23, 2014. (ECF No. 36.) Plaintiff alleges in the FAC that Defendant William R. Taylor, M.D., a neurosurgeon employed by Defendant The Regents of the University of California, negligently performed a lower back surgery on October 2, 2012. ( Id. at ΒΆΒΆ 5-8.)

On or about September 10, 2014, Plaintiff served Defendants with Interrogatories and Requests for Production of Documents. (ECF No. 46 at 15-21.) Defendants served their responses to Plaintiff's Interrogatories on October 1, 2014. (ECF No. 52-2 at 11.) Defendants also contend they served their responses to Plaintiff's Requests for Production of Documents on October 1, 2014 ( id. at 11:26-12:2), although, as discussed below, the record is not clear as to the date of service.

In any event, Plaintiff sent a letter dated October 24, 2014 to defense counsel. (ECF No. 46 at 49-53.) Plaintiff's letter (1) raised numerous issues regarding the adequacy of Defendants' discovery responses, and (2) discussed the scheduling of various depositions. ( Id. ) Defense counsel responded to Plaintiff with a letter dated November 4, 2014. ( Id. at 54-60.)

Plaintiff filed the instant ex parte discovery motion on December 1, 2014. On December 2, 2014, the Court issued an Order (1) denying part of Plaintiff's motion, namely, Plaintiff's request that various depositions scheduled in December 2014 be stayed, and (2) setting a deadline for Defendants to file a response to the remainder of Plaintiff's motion. (ECF No. 48.) Defendants filed their opposition to Plaintiff's motion on December 12, 2014. (ECF No. 52.) The Court held a telephonic Discovery Conference on December 29, 2014.

II. DISCUSSION

A. Deposition Schedule

Plaintiff originally moved for a protective order staying various depositions scheduled in December 2014 and January 2015. (ECF No. 46 at 13:9-13.) The Court denied Plaintiff's motion as to the December 2014 depositions in its December 2, 2014 Order. (ECF No. 48.) In their opposition to Plaintiff's ex parte discovery motion, Defendants proposed an alternative schedule for the expert depositions scheduled to occur in January 2015. (ECF No. 52 at 7:9-15.) Following discussion with Plaintiff and defense counsel during the December 29, 2014 Discovery Conference, the Court finds that Plaintiff's motion for a protective order staying the January 2015 depositions is moot in that the parties have agreed to the following schedule of depositions:

[1] [2]

Accordingly, Plaintiff's motion to stay the January 2015 depositions is DENIED AS MOOT.

The parties have also agreed to a second day of the deposition of Dr. Adam Burdick. Dr. Burdick's initial deposition occurred on December 3, 2014. The second session is tentatively scheduled for January 21, 2015 in San Diego and the parties are agreeable to this date. However, Plaintiff is currently coordinating with Dr. Burdick's attorney to finalize the date. The parties shall meet and confer in good faith if Dr. Burdick is not able to appear for the second session of his deposition on January 21, 2015.

B. Motion to Compel

1. Timeliness

As an initial matter, Defendants argue Plaintiff's motion to compel further responses to Interrogatories and Requests for Production of Documents is untimely. ( See ECF No. 52 at 11:16-12:13.) Section IV of the undersigned's Civil Chambers Rules requires that discovery disputes be brought to the Court's attention by way of a joint statement entitled "Joint Motion for Determination of Discovery Dispute" within 45 days of the date upon which the event giving rise to the dispute occurred. For written discovery, the event giving rise to the discovery dispute is the service of the response, or the time for such service if no response is given.

Here, Defendants served their responses to Plaintiff's Interrogatories on October 1, 2014. (ECF No. 52-2 at 11.) As a result, Plaintiff was required to file the joint discovery motion no later than November 17, 2104. However, without seeking from the Court an extension of this deadline Plaintiff filed his ex parte discovery motion on December 1, 2014. Although Plaintiff's motion to compel further responses to Interrogatories fails to satisfy the time requirement set forth in the Court's Civil Chambers Rules and could be denied on that basis alone, the Court will consider Plaintiff's motion to compel further responses to Interrogatories in the interest of resolving the parties' dispute on the merits.

Defendants contend that they also served their responses to Plaintiff's Requests for Production of Documents on October 1, 2014. (ECF No. 52 at 11:26-12:2.) However, Defendants failed to provide a copy of the proof of service of these responses or otherwise establish by admissible evidence the date upon which they served their responses to Plaintiff's Requests for Production of Documents. Accordingly, the Court cannot conclude that Plaintiff's ex parte discovery motion was untimely with respect to Defendants' responses to Plaintiff's Requests for Production of Documents.[3]

2. Interrogatories

Plaintiff originally moved in his ex parte discovery motion for an order compelling Defendants to provide supplemental responses to Interrogatory Nos. 1-12. (ECF No. 46 at 4:27-10:7.) However, during the December 29, 2014 Discovery Conference, Plaintiff agreed that his motion to compel is now moot with respect to Interrogatory Nos. 1-6 in light of subsequent discovery in this case including Defendants' production of their expert witnesses' reports. Thus, the Court addresses the remaining six Interrogatories.

As an initial matter, however, the Court finds that Defendants did not properly object to Plaintiff's Interrogatories on the basis that Plaintiff has exceeded the maximum number of Interrogatories permitted by Federal Rule of Civil Procedure 33. Rule 33 provides that, "unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." FED. R. CIV. P. 33(a)(1). Here, Plaintiff has served two sets of Interrogatories that include a total of 23 numbered Interrogatories. (ECF No. 46 at 17:8-20:11; ECF No. 52 at 13-15.) However, two of Plaintiff's numbered Interrogatories ( i.e., Interrogatory No. 8 of Set One and Interrogatory No. 1 of Set Two) actually contain multiple discreet subparts, thus bringing the total number of Interrogatories, including discrete subparts, to 31, in excess of the 25 permitted under Rule 35. Defendant commenced their response to several of the Interrogatories ( i.e., Nos. 1, 3, 5, 6, 10, and 11) with the phrase "Defendants object to this interrogatory and each non-discreet subpart on the grounds that...." (ECF No. 46 at 24-38.) However, although Defendants used the phrase "discreet subparts" in characterizing these Interrogatories, Defendants did not actually assert an objection to any of the Interrogatories on the basis that they exceeded the presumptive limit of 25. Thus, Defendants waived this objection by failing to clearly articulate the objection.

I. Interrogatory No. 7

Plaintiff's Interrogatory No. 7 states: "Please state every fact concerning any contractual, partnership, corporate or agency relationship between two or more of the defendants themselves, or themselves of their employees and between any defendant and any treating physician or expert witness." ( Id. at 19:9-11.)

Defendants responded to Interrogatory No. 7 as follows:

Defendants object to this interrogatory and each non-discreet subpart on the grounds that it is vague, ambiguous and unintelligible, forcing Defendants to speculate as to the meaning of the interrogatory. Defendants further object to the interrogatory on the grounds that it seeks premature disclosure of expert witnesses, in contravention of the Amended Scheduling Order by the Court as well as the attorney work-product doctrine. The interrogatory is further objected to on the grounds that it is vague, ambiguous and unintelligible, forcing Defendants to speculate as to the [sic] whether the term "treating physicians" refers to UCSD physicians as opposed to physicians outside of the UCSD system who have provided care and treatment to the Plaintiff in New Mexico and Texas. Without waiving said objections, Defendants respond as follows: at all times relevant to Plaintiff's Complaint, the treating physicians at UCSD were employees of The Regents of the University of California. To the best of these responding parties' knowledge, there was no contractual, partnership, corporate or agency relationship between any of these physicians and any of the Plaintiff's out-of-state treating physicians.

( Id. at 34:12-26.)

Contrary to Defendants' position, Interrogatory No. 7 is not "vague, ambiguous and unintelligible" as to the meaning of the term "treating physicians." Indeed, Plaintiff expressly defined the term in his Interrogatories to mean "any physician or physician's assistant employed by the Regents of the University of California, Thornton Hospital or the University of California at San Diego who treated the Plaintiff at any time." ( Id. 46 at 16:18-20.) Thus, Defendants' response regarding the lack of relationship between the treating physicians affiliated with UCSD and Plaintiff's out-of-state physicians is non-responsive. However, Defendants' response is at least partially responsive in that they indicate that the treating physicians at UCSD were employed by the Regents.

Interrogatory No. 7 does not invade the attorney-client privilege or the attorney work product doctrine. Importantly, Plaintiff is not asking Defendants to state the relationship between any treating physician and an expert witness that Defendants intend to call at trial. Such a request would appear to violate the attorney-client privilege because defense counsel may not have decided at the time of their responses which experts to call at trial. Instead, the Interrogatory is not limited to only experts Defendants intend to call at trial, but, as worded, encompasses any experts Defendants may utilize at trial.[4] The identity of these experts was already disclosed in Defendants' expert witness designations ( see ECF No. 52-2 at 17-18) and it is not improper for Plaintiff to inquire whether any of these experts have any relationship with ...


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