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Mir v. Kirchmeyer

United States District Court, S.D. California

June 27, 2016

JEHAN ZEB MIR, M.D., Plaintiff,
KIMBERLY KIRCHMEYER, et al., Defendants.


          DAVID H. BARTICK, United States Magistrate Judge

         On April 15, 2016, Plaintiff Jehan Zeb Mir, M.D. (“Plaintiff”) filed an ex parte motion requesting the Court compel the deposition of third party Joshua Bardin, M.D. (“Dr. Bardin”). (ECF No. 150.) Dr. Bardin filed an opposition to Plaintiff’s ex parte motion on May 5, 2016. (ECF No. 157.) For the reasons set forth below, Plaintiff’s motion is DENIED.

         I. BACKGROUND

         Plaintiff initiated this action on September 25, 2012, alleging Defendants wrongfully took disciplinary action against Plaintiff’s physician’s and surgeon’s certificate. (ECF No. 1.) On October 21, 2015, Plaintiff served a deposition subpoena on Dr. Bardin, a third party witness.[1] (ECF No. 157-2.) The deposition subpoena also included a request to produce documents. (Id.)

         Prior to the deposition, Dr. Bardin’s counsel invited Plaintiff to provide him with any documents Plaintiff wanted Dr. Bardin to review before the deposition. (ECF No. 157-4 at 3, ¶ 4.) Plaintiff did not provide counsel with any documents. (Id.)

         On December 16, 2015, Dr. Bardin appeared for his deposition. In response to the document requests, Dr. Bardin produced his curriculum vitae, board certification, and license. (ECF No. 157-3 at 4-5.) Dr. Bardin indicated he did not have any of the other documents Plaintiff sought. (Id. at 5-6.) Dr. Bardin also stated that he had not reviewed any documents before the deposition. (Id. at 15.)

         Plaintiff began examining Dr. Bardin and successfully elicited testimony about his training and employment, his expert opinion from 2002, and the bases for his conclusions. (ECF No. 157-3 at 6-27.) However, shortly into the deposition, Plaintiff became frustrated because Dr. Bardin could not recall certain events and answered some questions by stating “I don’t remember.” (Id. at 24-26.) Therefore, Plaintiff assumed Dr. Bardin would be unable to answer any of Plaintiff’s remaining questions. (Id. at 28-29.) Plaintiff stated the deposition had to be continued because Dr. Bardin was not prepared since he hadn’t reviewed his testimony from the underlying proceedings, or the medical records and x-rays. (Id.)

         Opposing counsel informed Plaintiff that Dr. Bardin did not have to prepare in the manner Plaintiff expected, and repeatedly and in good faith encouraged Plaintiff to continue with the deposition. (Id. at 29-50; 59-60.) Counsel attempted to explain to Plaintiff how he could use his documents to refresh Dr. Bardin’s recollection. (Id.) Yet, Plaintiff stubbornly refused to even try, protesting that it would take too much time. (Id.) Instead, Plaintiff unilaterally terminated the deposition. (Id. 60-61.) Plaintiff was advised by opposing counsel that Dr. Bardin would not agree to continue the deposition. (Id. at 45-46; ECF No. 157-1 at ¶5-6; 157-4 at ¶7-8.)

         On December 19, 2015, Plaintiff sent a letter to defense counsel, demanding that counsel provide Dr. Bardin with certain records in order to prepare Dr. Bardin for a further deposition. (ECF No. 150 at 101-103.) On December 31, 2015, Plaintiff sent defense counsel a disc containing over 1, 200 pages of documents and stated he expected Dr. Bardin to review the materials. (Id. at 105-106.) On January 14, 2106, Plaintiff sent another letter indicating he wished to reschedule Dr. Bardin’s deposition. (Id. at 108.) On March 18, 2016, Defendants’ counsel sent a letter to Plaintiff stating Defendants’ position was that Dr. Bardin’s deposition had been completed. (Id. at 110.) Plaintiff followed up with a letter on March 22, 2016, demanding a further deposition of Dr. Bardin. (Id. at 112114.)

         Subsequently, on April 15, 2016, Plaintiff filed the instant ex parte motion requesting the Court to compel Dr. Bardin to appear for a further deposition. (ECF No. 150.)

         II. ANALYSIS

         A. Failure to Comply with the Court’s Procedures for Discovery Disputes

         Again, Plaintiff has failed to comply with this Court’s procedures for filing discovery motions.[2] Plaintiff has not complied with Section IV.C. of the undersigned Magistrate Judge’s Civil Chambers Rules which requires the filing of a Joint Motion for Determination of Discovery Dispute.[3] It also does not appear Plaintiff adequately met and conferred with Defendants’ counsel prior to filing the instant motion. See Fed. R. Civ. P. 37(a); Civ. L.R. 26.1(a). In addition, Plaintiff failed to comply with the Court’s rules governing ex parte applications. See Civ. L. R. 83.3(h)(2). Lastly, Plaintiff’s motion is untimely. Pursuant to this Court’s Chambers Rules, all discovery motions must be filed “within forty-five (45) days of the date upon which the event giving rise to the dispute occurred.” Judge Bartick’s Civil Chambers Rules IV(C). For oral discovery, the event giving rise to the dispute is the date of the completion of the transcript of the affected portion of the deposition.[4] Id. Here, the date the transcript of Dr. Bardin’s deposition was completed appears to be December 28, 2015. (ECF No. 157-3 at 62.) Therefore, the deadline for this discovery motion to be filed was February 11, 2016. Plaintiff’s motion to compel was filed approximately two months late, without justification.

         It would be well within the Court’s discretion to reject Plaintiff’s motion for these reasons. However, in the interest of justice, the Court will address the merits of the parties’ dispute. As Plaintiff has already been advised (ECF Nos. 169, 170), any future discovery motion will ...

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