Kanellakopoulos v. Unimerica Life Insurance Company

Filing 50

ORDER by Magistrate Judge Howard R. Lloyd re 49 Discovery Dispute Joint Report No. 1. (hrllc2, COURT STAFF) (Filed on 4/12/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 12 IOANNIS KANELLAKOPOULOS, Plaintiff, 13 ORDER RE DISCOVERY DISPUTE JOINT REPORT NO. 1 v. 14 15 Case No.5:15-cv-04674-BLF (HRL) UNIMERICA LIFE INSURANCE COMPANY, 16 Re: Dkt. No. 49 Defendant. 17 In this case, plaintiff sues defendant for alleged wrongful denial of disability benefits. The 18 19 present discovery dispute is over the depositions of two of plaintiff’s treating medical 20 professionals: Dr. Howard Fenn (“Fenn”) and Nurse Practitioner Heidi Clark (“Clark”). Plaintiff’s counsel e-mailed defense counsel that she was preparing deposition subpoenas 21 22 for these two and sought input on dates for his availability. She had already contacted attorneys 23 for the prospective deponents about their availability. Defense counsel did not respond to the e- 24 mail. 25 26 One week later plaintiff’s counsel reached defense counsel by telephone, once again asked about his availability for the two depositions, and was told he would get back to her. 27 Shortly thereafter, the two lawyers spoke again by telephone about scheduling other 28 depositions, and, according the plaintiff’s counsel, defense counsel again begged off discussing his 1 2 3 4 availability for the depositions of Fenn and Clark. Days later, having never responded to plaintiff’s counsel’s entreaties, defense counsel caused deposition subpoenas to be served on Fenn and Clark. Plaintiff’s counsel took exception to what defense counsel had done. Defense counsel, 5 apparently without apology and with no pretense of misunderstanding the intentions of plaintiff’s 6 counsel, said---since he had been first to notice the depositions---he would be the first to question 7 the two deponents. 8 Plaintiff’s counsel, by contacting defense counsel about dates for her depositions of the 9 two medical professionals, had been acting with civility and professional courtesy, a text-book example of compliance with the Court’s Guidelines for Professional Conduct (“Guidelines”). By 11 United States District Court Northern District of California 10 ignoring her efforts and knowingly and intentionally engaging in a sharp practice in order to 12 secure what he perceived to be the advantage of being first to question important witnesses is a 13 text-book example of the kind of conduct that the Guidelines aim to discourage. Even though 14 defense counsel is “technically” correct that Civil L. R. 30-1 does not require counsel to confer 15 about dates for depositions of non-parties before a subpoena issues, the court cannot countenance 16 defense counsel’s conduct and finds that his unprofessionalism trumps the customary prerogative 17 that the first one to notice the deposition would be the first to question the witness. That is, Civil 18 L.R. 30-1 does not absolve his conduct. Accordingly, plaintiff’s counsel shall go first in 19 questioning deponents Fenn and Clark. 20 SO ORDERED. 21 Dated: April 12, 2017 22 23 HOWARD R. LLOYD United States Magistrate Judge 24 25 26 27 28 2 1 5:15-cv-04674-BLF Notice has been electronically mailed to: 2 Daniel Keenan Ryan dryan@hinshawlaw.com, amedina@hinshawlaw.com 3 Joseph Andrew Creitz joe@creitzserebin.com, joseph.creitz@gmail.com, lisa@creitzserebin.com 4 5 6 Lisa Sharon Serebin lisa@creitzserebin.com Peter John Felsenfeld pfelsenfeld@mail.hinshawlaw.com, lkiel@mail.hinshawlaw.com, smclean@mail.hinshawlaw.com 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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