Johnson v. Breg, Inc.

Filing 43

ORDER granting 36 Motion to Compel. Signed by US Magistrate Judge James E. Gates on 12/13/2011. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
4:11-CV-10-D
TESHIA DENISE JOHNSON,
Plaintiff,
v.
BREG, INC.,
Defendant.

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ORDER

This case comes before the court on the motion (D.E. 36) of defendant, Breg, Inc., to reopen
the deposition of Alison G. Vredenburgh, Ph.D., an expert identified by plaintiff Teshia Denise
Johnson, and to compel her to answer questions she refused to answer at her deposition on 5 October
2011 concerning the identity of her medical device manufacture clientele, the medical devices on
which she has consulted as to design aspects, and the designs she has recommended for each of these
medical devices. Plaintiff, Teshia Denise Johnson, filed no response to the motion.
Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense . . . . For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to
lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). The rules of discovery, including Rule 26, are to be given broad and liberal
construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. of Governors, No. 2:98CV-62-BO, 2000 WL 33672978, at *4 (E.D.N.C. 27 Sep. 2000).
While Rule 26 does not define what is deemed relevant for purposes of the rule, relevance
has been “‘broadly construed to encompass any possibility that the information sought may be
relevant to the claim or defense of any party.’” Equal Employment Opportunity Comm’n v. Sheffield

Fin. LLC, No. 1:06CV889, 2007 WL 1726560, at *3 (M.D.N.C. 13 June 2007) (quoting Merrill v.
Waffle House, Inc., 227 F.R.D. 467, 473 (N.D. Tex. 2005)). The district court has broad discretion
in determining relevance for discovery purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482,
489 (4th Cir. 1992).
The court finds that the information sought by defendant is relevant. It relates to Dr.
Vredenburgh’s qualifications as an expert and her potential bias. See, e.g., Chambers v. Nationwide
Mut. Ins. Co., Civ. Act. No. 5:00CV204, 2002 WL 34364960, at *1 (N.D. W. Va. 14 Mar. 2002)
(holding that discovery from experts includes impeachment material); U.S. Surgical Corp. v. Orris,
Inc., 983 F. Supp. 963, 969 (D. Kan. 1997) (upholding magistrate judge’s order compelling
consultant to answer deposition questions regarding her consulting experience on the grounds that
they were relevant to her qualifications where, as here, the consultant relied on such experience as
a basis for her expertise). While the information sought may be confidential, it is not privileged.
Fed. Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979) (recognizing the absence of any
absolute privilege for trade secrets or similar confidential information); U.S. Surgical Co., 983 F.
supp. at 969 (“[T]here is no recognized consultant-client privilege.”). Thus, Dr. Vredenburgh has
no right to refuse to answer the questions at issue under Fed. R. Civ. P. 30(c)(2), which allows a
deponent to refuse to answer questions to preserve a privilege. Moreover, the court has entered a
consent protective order, with modifications, whose provisions can be invoked as appropriate with
respect to the deposition testimony defendant seeks. (See Agreed Protective Order (D.E. 34), e.g.,
¶ 6(b) (providing for designation of deposition testimony as confidential)).
IT IS THEREFORE ORDERED as follows:
1.

Defendant’s motion (D.E. 36) is ALLOWED.
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Defendant.

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This case comes before the court on the issue ofappointment ofcounsel for Christopher York
Makepeace ("defendant"). Defendant has submitted a Financial Affidavit for purposes of such

2.

The deposition of Dr. Vredenburgh shall be reopened for the sole purpose of

appointment (CJA Form 23). Defendant has failed to complete the "Obligations and Debts" section

examination of her regarding the identity of her medical device manufacture clientele, the medical
of the form and has failed to enter the date on which he executed the form. Without a complete

devices on which she has consulted as to design aspects, and the designs she has recommended for
application, the court is not able to determine whether defendant is entitled to appointment of

each of these medical devices.
counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of

3.

The reopened deposition shall be held no later than 26 January 2012, which is one

such appointment after the filing of a new Financial Affidavit which contains the missing

week after the current date for the parties’ mediation, and the discovery period, which ended on 4
information.

November 2011 (see Sched. Order (D.E. 20) 1 ¶ 2), shall be reopened solely for that purpose.
This order shall be filed under seal.

SO ORDERED, this the 13th day of December 2011.
SO ORDERED, this 23rd day of May 2011.

_________________________
James E. Gates
United States Magistrate Judge

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