Mir v. Medical Board of California et al

Filing 174

ORDER Denying Plaintiff's Ex Parte 150 Application to Compel Deposition of Joshua Bardin. Signed by Magistrate Judge David H. Bartick on 6/27/16. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEHAN ZEB MIR, M.D.,
Plaintiff,

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12cv2340-GPC (DHB)

ORDER REGARDING
PLAINTIFF’S EX PARTE
APPLICATION TO COMPEL
DEPOSITION OF JOSHUA
BARDIN

v.

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Civil No.

KIMBERLY KIRCHMEYER, et al.,

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Defendants.

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[ECF No. 150]

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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

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Plaintiff initiated this action on September 25, 2012, alleging Defendants wrongfully

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took disciplinary action against Plaintiff’s physician’s and surgeon’s certificate. (ECF No.

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1.) On October 21, 2015, Plaintiff served a deposition subpoena on Dr. Bardin, a third

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party witness.1 (ECF No. 157-2.) The deposition subpoena also included a request to

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produce documents. (Id.)

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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. 1574 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 xrays. (Id.)
Opposing counsel informed Plaintiff that Dr. Bardin did not have to prepare in the

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Plaintiff contends “Dr. Bardin is Defendants’ expert witness. Defendants noticed him as
expert witness at trial under mandatory disclosures under Rule 26.” (ECF No. 150 at 4.)
It appears, however, that Plaintiff is mistaken. According to Defendants, Dr. Bardin is a
former medical expert for the California Medical Board who was retained for purposes of
the underlying disciplinary proceedings. Based on the information before the Court,
there is no indication Defendants have retained or designated Dr. Bardin as an expert for
the purposes of this case. Instead, it appears that Dr. Bardin is a third party percipient
witness. Accordingly, Defendants are not required to produce an expert report from Dr.
Bardin under Rule 26(a)(2).
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manner Plaintiff expected, and repeatedly and in good faith encouraged Plaintiff to

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continue with the deposition. (Id. at 29-50; 59-60.) Counsel attempted to explain to

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Plaintiff how he could use his documents to refresh Dr. Bardin’s recollection. (Id.) Yet,

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Plaintiff stubbornly refused to even try, protesting that it would take too much time. (Id.)

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Instead, Plaintiff unilaterally terminated the deposition. (Id. 60-61.) Plaintiff was advised

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by opposing counsel that Dr. Bardin would not agree to continue the deposition. (Id. at 45-

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46; ECF No. 157-1 at ¶5-6; 157-4 at ¶7-8.)

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On December 19, 2015, Plaintiff sent a letter to defense counsel, demanding that

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counsel provide Dr. Bardin with certain records in order to prepare Dr. Bardin for a further

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deposition. (ECF No. 150 at 101-103.) On December 31, 2015, Plaintiff sent defense

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counsel a disc containing over 1,200 pages of documents and stated he expected Dr. Bardin

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to review the materials. (Id. at 105-106.) On January 14, 2106, Plaintiff sent another letter

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indicating he wished to reschedule Dr. Bardin’s deposition. (Id. at 108.) On March 18,

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2016, Defendants’ counsel sent a letter to Plaintiff stating Defendants’ position was that

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Dr. Bardin’s deposition had been completed. (Id. at 110.) Plaintiff followed up with a

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letter on March 22, 2016, demanding a further deposition of Dr. Bardin. (Id. at 112114.)

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Subsequently, on April 15, 2016, Plaintiff filed the instant ex parte motion

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requesting the Court to compel Dr. Bardin to appear for a further deposition. (ECF No.

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150.)

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II. ANALYSIS

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A.

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Again, Plaintiff has failed to comply with this Court’s procedures for filing

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discovery motions.2 Plaintiff has not complied with Section IV.C. of the undersigned

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Magistrate Judge’s Civil Chambers Rules which requires the filing of a Joint Motion for

Failure to Comply with the Court’s Procedures for Discovery Disputes

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The Court notes that Plaintiff has filed numerous discovery motions in violation of the
Court’s rules. See ECF Nos. 169. 170.
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Determination of Discovery Dispute.3 It also does not appear Plaintiff adequately met and

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conferred with Defendants’ counsel prior to filing the instant motion. See Fed. R. Civ. P.

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37(a); Civ. L.R. 26.1(a). In addition, Plaintiff failed to comply with the Court’s rules

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governing ex parte applications. See Civ. L. R. 83.3(h)(2). Lastly, Plaintiff’s motion is

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untimely. Pursuant to this Court’s Chambers Rules, all discovery motions must be filed

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“within forty-five (45) days of the date upon which the event giving rise to the dispute

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occurred.” Judge Bartick’s Civil Chambers Rules IV(C). For oral discovery, the event

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giving rise to the dispute is the date of the completion of the transcript of the affected

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portion of the deposition.4 Id. Here, the date the transcript of Dr. Bardin’s deposition was

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completed appears to be December 28, 2015. (ECF No. 157-3 at 62.) Therefore, the

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deadline for this discovery motion to be filed was February 11, 2016. Plaintiff’s motion to

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compel was filed approximately two months late, without justification.

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It would be well within the Court’s discretion to reject Plaintiff’s motion for these

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reasons. However, in the interest of justice, the Court will address the merits of the parties’

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dispute. As Plaintiff has already been advised (ECF Nos. 169, 170), any future

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discovery motion will not be considered unless the Court’s rules and procedures are

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complied with.

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B.

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Federal Rule of Civil Procedure 45 authorizes a party to subpoena a nonparty witness

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to attend and give testimony at a deposition. Fed. R. Civ. P. 45(c)(1). The “party or

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attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid

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imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P.

Further Deposition of Dr. Bardin

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The Chambers Rules are available at:
https://www.casd.uscourts.gov/Rules/Lists/Rules/Attachments/17/Bartick%20Civil%20C
hambers%20Rules.pdf

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The Court notes that the parties could have called Judge Bartick’s chambers during the
deposition, for a ruling on the dispute. See Judge Bartick’s Civil Chambers Rules IV(B).
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45(d)(1). Rule 45 does not impose any duty on a non-entity witness5 to review documents,

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or otherwise prepare in advance of the deposition.

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Here, the Court finds Dr. Bardin satisfied his obligations under the subpoena by

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appearing for deposition on December 16, 2015, and by bringing the requested documents

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that he had in his possession. Whereas, Plaintiff’s rash, unilateral decision to cancel the

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deposition was not reasonable. When it appeared that the deposition would not proceed as

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efficiently as Plaintiff hoped, Plaintiff became obstinate and flatly refused to even attempt

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to continue the deposition. See e.g. ECF No. 157-3 at 34-35 (“Mr. Taglienti: . . . Show him

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a document and ask him if he remembers -- Dr. Mir: No.”); 35-36 (“Mr. Taglienti: Show

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him a document to refresh his memory. Dr. Mir: No.”); 37 (“Mr. Taglienti: You have to

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ask a question. Dr. Mir: And I’m not going to go with the deposition if he doesn’t

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remember the facts.”); 47 (“Mr. Taglienti: You said you were prepared to give him an x-

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ray. Show him an x-ray -- Dr. Mir: No. Mr. Taglienti: -- and ask him questions about an

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x-ray. . . . Dr. Mir: No. No. It is not the compete testimony.”); 55 (“Dr. Taglienti: Give me

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a question. One question. Dr. Mir: No, I’m not going to go --.”); 56 (“Dr. Mir: I have a

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lot of questions. And I’m going to waste time here -- Mr. Taglienti: You’re not wasting

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time. I’ll give you more time. Dr. Mir: No. No. No. Mr. Taglienti: Give me a question.

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Dr. Mir. No.”).

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The Court appreciates Plaintiff’s concern that it would have taken additional time

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for Dr. Bardin to review documents to refresh his recollection. Nevertheless, Plaintiff

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could have proceeded. Plaintiff had the medical records, x-rays and other documents he

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felt Dr. Bardin should have been familiar with, available at the deposition. Also, Plaintiff

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When an entity, such as a corporation, partnership, etc. is subpoenaed to testify, the
entity has a duty to designate one or more individuals to testify on its behalf, and has a
duty to ‘educate’ or prepare the witnesses to testify as to the matters identified in the
subpoena. Fed.R.Civ.P. 30(b)(6); Bowoto v. ChevronTexaco Corp., 2006 WL 294799, *1
(N.D. Cal. Feb. 7, 2009). Rule 30(b)(6) is inapplicable here, because Dr. Bardin was
deposed in his individual capacity.
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could have sought leave for additional time to complete the deposition if it had become

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necessary. Rule 30(d)(1). Plaintiff’s refusal to try and elicit further responses from Dr.

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Bardin based on mere speculation that he would run out of time, was not appropriate.

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Moreover, Plaintiff’s dissatisfaction with Dr. Bardin’s responses that he did not remember

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some events that had occurred over 10 years ago, was not justification for Plaintiff to

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abruptly cancel the deposition. The Court cannot find that Plaintiff’s actions constituted

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“reasonable steps to avoid imposing undue burden or expense on a person subject to the

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subpoena”. Fed. R. Civ. P. 45 (d)(1). Therefore, the Court declines to order Dr. Bardin to

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appear for a further deposition.

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IV. CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motion to

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compel a further deposition of Dr. Bardin is DENIED.
IT IS SO ORDERED.
DATED: June 27, 2016

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_________________________
DAVID H. BARTICK
United States Magistrate Judge

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12cv2340-GPC-DHB