Gonzalez v. Veterans Administration et al

Filing 76

ORDER signed by Magistrate Judge Deborah Barnes on 10/2/18 DENYING without prejudice to renewal 71 Motion to Compel and VACATING the 10/5/18 hearing. Discovery shall be completed by 11/2/18 and all pretrial motions, except motions to compel discovery, shall be completed by 12/21/18. The parties shall file a Joint Notice of Trial Readiness not later than 30 days after receiving ruling on the last dispositive motion. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL E. GONZALEZ,

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No. 2:15-cv-1997 MCE DB PS

Plaintiff,

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v.

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ORDER

UNITED STATES OF AMERICA, et al.,

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Defendants.

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Plaintiff, Daniel Gonzalez, is proceeding pro se and in forma pauperis. (ECF No. 6.) This

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matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. §

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636(b)(1). Plaintiff’s amended complaint alleges that medical professionals at the Veterans

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Administration Hospital, “negligently and inadvertently misdiagnosed and delayed” plaintiff’s

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medical treatment causing plaintiff harm. (Am. Compl. (ECF No. 11) at 2.)
On September 7, 2018, defendant filed a motion to compel the deposition of plaintiff’s

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expert witness, Dr. Craig Bash. (ECF No. 71.) The motion is noticed for hearing before the

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undersigned on October 5, 2018.1 On September 21, 2018, plaintiff filed an opposition. (ECF

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Pursuant to Local Rule 230(g), the undersigned finds that defendant’s motion may be decided
without oral argument.
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No. 73.) And on September 28, 2018, the parties filed a purported joint statement.2 (ECF No.

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75.) Plaintiff’s opposition argues that defendant’s motion “is designed to create a prejudice in

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forcing Dr. Bash to testify without the benefit of having the testimony of Dr. Hu, a treating

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orthopedic surgeon, to rely upon.” (ECF No. 73 at 6.)

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However, pursuant to Rule 30 of the Federal Rules of Civil Procedure, subject to certain

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exceptions, “a party may, by oral questions, depose any person . . . without leave of court[.]” Fed.

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R. Civ. P. 30(a)(1). And “‘[a] party may depose any person who has been identified as an expert

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whose opinions may be presented at trial.’” FMC Corp. v. Vendo Co., 196 F.Supp.2d 1023, 1043

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(E.D. Cal. 2002) (quoting Fed. R. Civ. P. 26(b)(4)(A)); see also Bio-Rad Laboratories, Inc. v.

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Pharmacia, Inc., 130 F.R.D. 116, 125 (N.D. Cal. 1990) (“experts who are prospective witnesses

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are normally produced for deposition by the opposing party as a matter of course”).

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Rule 45 of the Federal Rules of Civil Procedure provides that a party may subpoena an

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expert’s attendance at a deposition. The expert may move to quash or modify a subpoena that:

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(i) fails to allow a reasonable time to comply;

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(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);

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(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or

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(iv) subjects a person to undue burden.

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Fed. R. Civ. P. 45(d)(3)(A).
Here, Dr. Bash is plaintiff’s expert witness, defendant may depose Dr. Bash, and Dr. Bash

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has not moved to modify or quash a subpoena. However, defendant noticed Dr. Bash’s

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deposition for October 10, 2018. (ECF No. 75 at 11-15.) Although plaintiff has asserted that Dr.

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Bash will not appear for the October 10, 2018 deposition, the time for the deposition has not yet

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come. Thus, there is nothing for the court to compel.

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It is unclear if plaintiff contributed to the drafting of the joint statement. (ECF No. 75 at 9.)
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Accordingly, defendant shall proceed with attempting to depose Dr. Bash.3 If Dr. Bash

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fails to appear for a deposition, defendant may then bring a motion before the undersigned.

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Plaintiff and Dr. Bash are cautioned that the court “may hold in contempt a person who, having

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been served, fails without adequate excuse to obey the subpoena or an order related to it.” Fed.

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R. Civ. P. 45(g); see also Stone v. City and County of San Francisco, 968 F.2d 850, 856 (9th Cir.

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1992) (“This Circuit’s rule with regard to contempt has long been whether the [contemptors] have

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performed ‘all reasonable steps within their power to insure compliance’ with the court’s

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orders.”).
Finally, the undersigned notes that it is apparent from the parties’ briefing that

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communication and trust between the parties is severely lacking. The undersigned is cognizant of

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the challenges faced by pro se litigants, and by experienced practitioners litigating against pro se

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litigants. And it is understandable that both sides in this action would vigorously advocate their

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respective positions.

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However, each side must treat the other with respect. And informal communication and

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dispute resolution can ease the burden imposed by litigation. Although the parties may disagree

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with each other, they should not be disagreeable to each other.

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CONCLUSION

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Accordingly, upon consideration of the arguments on file, IT IS HEREBY ORDERED
that:
1. Defendant’s September 7, 2018 motion to compel (ECF No. 71) is denied without

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prejudice to renewal;

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2. The October 5, 2018 hearing of defendant’s motion is vacated;

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3. Discovery shall be completed by November 2, 2018;

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4. All pretrial motions, except motions to compel discovery, shall be completed by

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December 21, 2018; and

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Given the impending discovery deadline, the undersigned finds good cause to modify the
schedule in this action to allow sufficient time for defendant to complete Dr. Bash’s deposition.
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5. The parties shall file a Joint Notice of Trial Readiness not later than thirty (30) days

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after receiving ruling on the last dispositive motion.

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Dated: October 2, 2018

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DLB:6
DB/orders/orders.pro se/gonzalez1997.mtc2.ord

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