Page v. Arkansas State University System et al

Filing 40

ORDER denying 37 Motion to Quash. Mr. Page is ordered to submit a deposition outside the discovery deadline. The parties shall have 45 days after Mr. Page's deposition to file dispositive motions. Signed by Judge Kristine G. Baker on 12/4/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
BRUCE PAGE
v.

PLAINTIFF
Case No. 3:13-cv-00077-KGB

ARKANSAS STATE UNIVERSITY;
RANDY MARTIN, individually and
in his official capacity, and LORI WINN,
individually and in her official capacity

DEFENDANTS
ORDER

Before the Court is plaintiff Bruce Page’s renewed motion to quash (Dkt. No. 37), to
which defendants now have filed a response (Dkt. No. 39). In his amended complaint, Mr. Page
alleges that defendants Arkansas State University, Randy Martin, and Lori Winn discriminated
and retaliated against him on the basis of his disability in violation of federal and state laws,
including the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Arkansas Civil
Rights Act, Ark. Code Ann. § 16-123-101 et seq., and Section 504 of the Rehabilitation Act of
1973, 29 U.S.C. § 794, and willfully violated the Family and Medical Leave Act, 29 U.S.C. §
2601 et seq. Defendants deny the allegations.
In regard to his motion to quash, Mr. Page states that he “was in the hospital, and his
health is poor” and that his “endurance and thinking ability are impaired such that he does not
feel he can give credible testimony due to possibilities he will misunderstand questions,
misspeak, be unable to remember, or remember incorrectly” (Dkt. No. 37). As medical evidence
in support of his motion, Mr. Page attached a letter from Dr. James M. Robinette (Dkt. No. 371). Dr. Robinette states:
Mr. Page is under my care for multiple medical problems, including: Insulin
dependent diabetes uncontrolled, Spinal stenosis, Intractable pain, Hypertensive

cardiovascular disease, Neuropathy, Acute and Chronic Pancreatitis, and
Hyperlipidemia. He is also subject to hypoglycemia which makes him confused.
Mr. Page is required to take multiple mind-altering medications due to the above
problems.
I feel the pain medication and hypoglycemia may affect is [sic] cognitive ability.
It might be in his best interest to do a written deposition.
(Id.)
Under Federal Rule of Civil Procedure 26(c), a movant for a protective order must show
“good cause” for it to be issued, which contemplates “a particular and specific demonstration of
fact, as distinguished from stereotyped and conclusory statements.” Gen. Dynamics Corp. v.
Selb Mfg. Co., 481 F.3d 1204, 1212 (8th Cir. 1973) (citation omitted). Though protective orders
prohibiting depositions are rarely granted, see Salters v. Upjohn Co., 593 F.2d 649, 651 (5th Cir.
1979) (“It is very unusual for a court to prohibit the taking of a deposition altogether and absent
extraordinary circumstances, such an order would likely be in error.”), a court has discretion to
quash a discovery request due to a witness’s failing health, “particularly where the information is
believed to be obtainable from another source,” Richardson v. Sugg, 220 F.R.D. 343, 346 (E.D.
Ark. 2004) (citing Ahrens v. Ford Motor Co., 340 F.3d 1142, 1147 (10th Cir. 2003)).
In this case, Mr. Page requests that this Court quash the notice of his deposition and
suggests that his deposition proceed on written questions. “Written questions are rarely an
adequate substitute for oral depositions both because it is difficult to pose follow-up questions
and because the involvement of counsel in the drafting process prevents the spontaneity of direct
interrogation.

Accordingly, depositions upon written questions are disfavored.”

Zito v.

Leasecomm Corp., 233 F.R.D. 395, 397 (S.D.N.Y. 2006).
The Court determines that Mr. Page has not shown good cause for a protective order
prohibiting his oral deposition. Although Dr. Robinette speculates that Mr. Page’s medical
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condition “may affect is [sic] cognitive ability” and that it “might be in his best interest to do a
written deposition” (Dkt. No. 37-1 (emphasis added)), this is inconsistent with Mr. Page’s past
representations, past actions, and medical history, see Richardson, 220 F.R.D. at 346 (denying
protective order where evidence, including a doctor’s note, purporting to show witness was
physically unable to attend scheduled deposition inconsistent with the witness traveling to and
attending Razorback basketball games). Mr. Page previously represented that he could proceed
with the deposition from September 22, 2014, to October 3, 2014, and possibly October 17,
2014. In fact, a deposition was scheduled for October 3, 2014, but cancelled because Mr. Page
had failed to respond to defendants’ written discovery requests, not due to his medical condition.
Mr. Page eventually responded to defendants’ written discovery requests. Mr. Page does not
explain these seemingly inconsistent positions. He points to no intervening medical event that
now makes him unable to attend a deposition, and Dr. Robinette does not explain why Mr. Page
can remember and think clearly enough to participate in written discovery and a written
deposition but not an oral deposition.
Moreover, if despite failing to show good cause Mr. Page does lack the cognitive ability
to give credible testimony or meaningfully participate at an oral deposition, it appears to the
Court that he likewise would be unable to give credible testimony or meaningfully participate at
any hearing or trial in this matter. Neither Mr. Page nor Dr. Robinette gives a time frame for
when Mr. Page may be able to attend an oral deposition or when his cognitive abilities might be
restored, and there is no indication that the information that Mr. Page would provide is
obtainable from another source. This is especially so given the types of claims he advances here
and the relief he seeks from defendants.

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Mr. Page’s motion to quash, extend the discovery deadline, set a new trial date, and issue
a new scheduling order is denied. Mr. Page is ordered to submit to a deposition outside the
discovery deadline. The parties shall have 45 days after Mr. Page’s deposition to file dispositive
motions.
SO ORDERED this 4th day of December, 2014.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE 

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