United States District Court, S.D. California
ORDER REGARDING PLAINTIFF’S EX PARTE
APPLICATION TO COMPEL DEPOSITION OF JOSHUA BARDIN [ECF No.
150]
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 ...