United States of America et al v. Symphony Diagnostic Services, Inc. et al

Filing 85

ORDER: Discovery Dispute Conference was held on June 3, 2013. Signed by Magistrate Judge Mark R. Abel on 6/4/13. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
United States ex rel. Kevin
McDonough,

:
:

Civil Action 2:08-cv-0114

:

Judge Marbley

:

Magistrate Judge Abel

Plaintiff
v.
Symphony Diagnostic Services and
Symphony Diagnostic Services No. 1,
d/b/a Mobilex U.S.A.,

:
:

Defendants
:

Discovery Dispute Conference Order
On June 3, 2013, counsel for the parties participated in a telephone discovery dispute conference with the Magistrate Judge.
The parties have resolved their dispute regarding Plaintiff's Third Set of Requests
for Production of Documents No. 3. They are still discussing Requests for Production Nos.
1 and 2. Mobilex produced data last week that plaintiff’s counsel's IT specialist has just
begun to include in a data base. Once a spreadsheet is generated, plaintiff’s counsel will be
in a position to determine whether it yields the functional equivalent of the information
sought through Requests Nos. 1 and 2.
The discovery dispute conference is RE-SET for Thursday, June 6 at 3:30 p.m.
Counsel will advise me before then if the dispute is resolved. If not, they will provide me
with any additional information relevant to resolution of the dispute by noon on June 6.
Diana Gomez deposition. Ms. Gomez is Mobilex's former comptroller. She now

works for a hospital in Charlottesville. Defendants' counsel have twice facilitated the
scheduling her deposition, but plaintiff’s counsel twice canceled it.
The deposition was first notice for March 2013. It was noticed a second time for
May 14. Plaintiff’s counsel sought some additional documents just a few days before the
deposition and agreed to proceed with the deposition if they were produced. Mobilex
produced the documents, but plaintiff’s counsel canceled the deposition on very short
notice. Ms. Gomez lost 1-2 vacation days as a result.
Plaintiff’s counsel canceled the deposition because they feared the documents did
not provide sufficient information regarding cost center data for Ms. Gomez's deposition
to be completed on May 14. I don't question plaintiff’s counsel's good faith in postponing
the deposition, but improvidently or not they entered an agreement to proceed with it if
the documents were produced. Canceling the deposition eroded the protections Rule 45
accords non-party witnesses. Rule 45(c)(1), Fed. R. Civ. P.
Nonetheless, Ms. Gomez is a witness whose deposition plaintiff is entitled to take,
and as Mobilex's former comptroller she is obliged to provide discovery regarding the
issues in dispute in this lawsuit. It is ORDERED that plaintiff’s counsel consult with
defendants' counsel about a Rule 45 notice of deposition for Ms. Gomez. The deposition
should be scheduled for a date that works best for her. If Ms. Gomez lost a vacation day(s)
as a result of the cancellation of the May 14 deposition, plaintiff must reimburse her for
her loss. Plaintiff’s counsel owes Ms. Gomez an apology for the late cancellation and any

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assistance she may request with explaining the circumstances of the cancellation and
rescheduling of the deposition to her employer.

s/Mark R. Abel
United States Magistrate Judge

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