Lam v. City of Los Banos

Filing 48

ORDER signed by Magistrate Judge Kendall J. Newman on 5/11/2016 DENYING WITHOUT PREJUDICE the plaintiff's Request to Compel the VA to produce the current and/or former VA medical providers for deposition; ORDERING the plaintiff to promptly compl y with their obligations under the Touhy regulations and further meet and confer with counsel for the VA in an attempt to reach agreement regarding the number of medical providers to be deposed and the scope of such depositions; INFORMING all parties that they may request a further discovery conference with the court if they fail to informally resolve their dispute; DIRECTING the Clerk of Court to serve a copy of this order on attorney for non-party VA, Alyson Berg, via e-mail at: [e-mail]. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAN LAM, et al.,

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No. 2:15-cv-531-MCE-KJN
Plaintiffs,

v.

ORDER

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CITY OF LOS BANOS, et al.,

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Defendants.

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On May 10, 2016, the court conducted an informal telephonic discovery conference in this

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matter. Attorney Melissa Nold appeared on behalf of plaintiffs, attorney Philip Downs appeared

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on behalf of defendants, and attorney Alyson Berg appeared on behalf of non-party Veterans

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Administration (“VA”).

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The conference primarily concerned plaintiffs’ ability to depose several VA medical

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providers pursuant to federal subpoenas issued in accordance with the court’s April 26, 2016

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order. The VA objected to those depositions based on plaintiffs’ failure to comply with the VA’s

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Touhy regulations. See 38 C.F.R. §§ 14.800-14.810. Those regulations require, inter alia, that a

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“request or demand for testimony or production of documents shall set forth in, or be

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accompanied by, an affidavit, or if that is not feasible, in, or accompanied by, a written statement

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by the party seeking the testimony or records or by the party’s attorney, a summary of the nature
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and relevance of the testimony or records sought in the legal proceedings containing sufficient

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information for the responsible VA official to determine whether VA personnel should be

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allowed to testify or records should be produced.” 38 C.F.R. § 14.805. Plaintiffs counter that the

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court has already authorized the depositions by court order and that plaintiffs are therefore not

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required to comply with the Touhy regulations, citing Exxon Shipping Co. v. United States Dep’t

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of Interior, 34 F.3d 774 (9th Cir. 1994).

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In Exxon Shipping, the Ninth Circuit held that the Touhy regulations, promulgated under 5

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U.S.C. § 301, do not authorize federal agencies to refuse to comply with proper discovery

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requests, including federal subpoenas to testify and/or produce records, reasoning that:

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Section 301 does not create an independent privilege to withhold
government information or shield federal employees from valid
subpoenas. Rather, district courts should apply the federal rules of
discovery when deciding on discovery requests made against
government agencies, whether or not the United States is a party to
the underlying action. Under the balancing test authorized by the
rules, courts can ensure that the unique interests of the government
are adequately considered.

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Exxon Shipping, 34 F.3d at 780. Thus, plaintiffs are correct insofar as they contend that the VA

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does not have absolute discretion to prevent VA employees from testifying pursuant to the Touhy

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regulations, and the propriety of taking the depositions is ultimately an issue for the court to

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decide, if the parties are unable to reach an agreement. Nevertheless, the court does not read

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Exxon Shipping to suggest that plaintiffs are entirely excused from following the procedural rules

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outlined in the VA’s Touhy regulations to request the depositions of VA employees. Moreover,

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although the court had previously authorized the issuance of subpoenas for depositions of the VA

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medical providers at issue here, the VA was not represented at those court proceedings, and the

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court has not yet considered the unique interests of the VA with respect to the requested

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depositions.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiffs’ request to compel the VA to produce the current and/or former VA medical

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providers for deposition pursuant to the subpoenas is DENIED WITHOUT

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PREJUDICE.
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2. Plaintiffs shall promptly comply with their obligations under the Touhy regulations

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and further meet and confer with counsel for the VA in an attempt to reach agreement

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regarding the number of medical providers to be deposed and the scope of such

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depositions.

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3. If the parties and the VA are unable to informally resolve their dispute, they may

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request another discovery conference with the court. At any such conference, the

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court will want to review the information plaintiffs submitted to the VA to support

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their request for the depositions, as well as the VA’s reasons for not permitting the

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requested discovery.

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4. The Clerk of Court shall serve a copy of this order on attorney for non-party VA,
Alyson Berg, via e-mail at: [e-mail].
IT IS SO ORDERED.
Dated: May 11, 2016

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