Mir v. Medical Board of California et al

Filing 200

ORDER Regarding 197 Joint Motion for Determination of Discovery Dispute Regarding Deposition of Linda Whitney. Plaintiff's motion to compel a further deposition of Ms. Whitney is DENIED. Signed by Magistrate Judge Louisa S Porter on 10/19/16. (All non-registered users served via U.S. Mail Service)(dlg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

JEHAN ZEB MIR, M.D.,
Plaintiff,

12

KIMBERLY KIRCHMEYER, et al.,

15
Defendants.

16

12cv2340-GPC (DHB)

ORDER REGARDING JOINT
MOTION FOR
DETERMINATION OF
DISCOVERY DISPUTE
REGARDING DEPOSITION OF
LINDA WHITNEY

v.

13
14

Civil No.

17

[ECF No. 197]

18
19
20

On September 16, 2016, the parties filed a Joint Motion for Determination of

21

Discovery Dispute regarding the deposition of Linda Whitney. (ECF No. 197.) For the

22

reasons set forth below, Plaintiff’s motion to compel a further deposition of Ms. Whitney

23

is DENIED.

24

I. BACKGROUND

25

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

26

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

27

1.) On July 18, 2016, Plaintiff deposed Linda Whitney, who served as the Executive

28

Director for the California Medical Board from 2010 until her retirement in 2013. (ECF
1
12cv2340-GPC-DHB

1

No. 197-3 at 4-6.) Ms. Whitney is not a defendant in this case.

2

Towards the end of the deposition, Plaintiff asked Ms. Whitney to review over 700

3

pages of hearing transcripts from the underlying state administrative disciplinary action

4

that took place between October 2004 and May 2005. (ECF No. 197-3 at 14.) He then

5

asked Ms. Whitney to search through the documents and identify where in the transcripts

6

Plaintiff made the statement “the proctor would not allow him to do a femoral popliteal

7

bypass procedure on June 10, 2000.” (Id.) Plaintiff indicated that if Ms. Whitney needed

8

more time to answer, she should take the transcripts home with her and “go through them

9

tooth and nail” after the deposition. (Id. at 16.) However, he acknowledged that the

10

statement did not appear in the transcripts. (Id. (“I can tell you it’s not there, there is

11

nowhere you can find it.”).) Ms. Whitney’s counsel objected to the question and instructed

12

her not to respond. (Id. at 16-17.)

13

Plaintiff now requests the Court compel Ms. Whitney to attend a further deposition

14

to answer his question relating to the transcripts. Defendants argue it would be unduly

15

burdensome, annoying, and harassing to require Ms. Whitney to search for a certain

16

statement in the transcripts that does not exist, just to elicit a response that the statement is

17

absent from the document.

18

II. ANALYSIS

19

Federal Rule of Civil Procedure 30(d)(3) permits a deponent or party to move to

20

terminate or limit a deposition at any time during a deposition on the ground that it is being

21

conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses

22

the deponent or party. Fed. R. Civ. P. 30(d)(3)(A). The Court may order the deposition be

23

terminated or limited in scope and manner as provided in Rule 26(c). Fed. R. Civ. P.

24

30(d)(3)(B). Rule 26(c) provides that the Court may limit discovery to protect a party or

25

person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R.

26

Civ. P. 26(c)(1).

27

During a deposition, a witness may be asked to consult records for the purpose of

28

refreshing the witness’s recollection. However, it is improper to require a witness to
2
12cv2340-GPC-DHB

1

examine records he is not familiar with in order to obtain information upon which he could

2

then answer. Deep South Oil Co. of Texas v. Metropolitan Life Ins. Co., 25 F.R.D. 81

3

(S.D.N.Y. 1959). The Court in Deep South Oil Co. of Texas explained:

4

8

As a general rule, the taking of an oral deposition pursuant to F.R.C.P. Rule
26, should not be converted in effect into an interrogatory procedure (Rule 33)
or an inspection procedure (Rule 34) by the device of asking a witness a series
of questions the answers to which he does not know and then directing him to
prepare or formulate answers by examining books or records, which answers
would then simply amount to a verbalization of what the witness found in the
examined books or records.

9

Deep South Oil Co. of Texas, 25 F.R.D. at 82. See also In re Folding Carton Antitrust

10

Litigation, 83 F.R.D. 132 (N.D. Ill. 1979) (holding deponents were not competent to testify

11

about documents they had never seen before, and questions requiring the deponents to

12

study the unfamiliar documents were improper).

5
6
7

13

Here, Plaintiff did not establish during the deposition that Ms. Whitney had ever

14

seen, had personal knowledge of, or was familiar with the transcripts. (ECF No. 197-3 at

15

23-24.) Therefore, the Court finds it would be improper to require Ms. Whitney to scour

16

the voluminous transcripts in order to formulate a response to Plaintiff’s question. Further,

17

Plaintiff has conceded that the exercise would be futile because the statement he asked Ms.

18

Whitney to locate is not contained within the transcripts. Thus, the Court finds it would be

19

unduly burdensome, annoying, and harassing to require Ms. Whitney to respond to the

20

question. Moreover, Plaintiff has equal access to the information he seeks from Ms.

21

Whitney. Plaintiff has possession of the transcripts, and the documents speak for

22

themselves. Plaintiff does not need to elicit a response from Ms. Whitney to establish the

23

statement is absent from the transcripts.

24

Accordingly, the Court sustains Defendants’ objections to the question posed to Ms.

25

Whitney regarding the transcripts. The Court finds the deposition of Ms. Whitney has been

26

concluded, and declines to order Ms. Whitney to appear for a further deposition, or to

27

further review the transcripts and respond to Plaintiff’s question.

28

///
3
12cv2340-GPC-DHB

1

III. CONCLUSION

2

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

3
4
5
6
7

compel a further deposition of Ms. Whitney is DENIED.
IT IS SO ORDERED.
Dated: October 19, 2016
_________________________
LOUISA S PORTER
United States Magistrate Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
12cv2340-GPC-DHB