Opinion
Civil No. 02-3659 (JEI).
May 27, 2005
ORDER
This matter comes before the Court upon the motion of Charles B. Austermuhl, Esquire, counsel for Defendant, Richard Arriviello, Jr., D.O., and Emergency Physician Services (hereafter "EPS"), seeking a protective order precluding further deposition of nonparty Dr. Nicholas Dalsey. The Court has considered the moving papers and the opposition thereto, and for the reasons set forth below and for good cause shown the Court will deny the motion.
The Court notes counsel's assertion that it represents EPS for purposes of deposition only. The Court further notes that Plaintiffs filed a motion for leave to amend the complaint to add EPS as a named defendant, which request the Court has granted with respect to Plaintiffs' wrongful death claim by Order and Opinion dated May 24, 2005.
The background of this case has been set forth extensively in the Court's Opinion dated November 14, 2003, and the Court will therefore only recount those facts pertinent to the instant dispute. EPS is a corporation that contracts with Underwood Memorial Hospital (hereafter "Underwood"). See Charles B. Austermuhl's Attorney Certification in Support of Motion for Protective Order (hereafter "Austermuhl Cert.") at ¶ 2. EPS asserts that under the contract it provides physicians as independent contractors for staffing of Underwood's emergency department. Id. Plaintiffs' counsel subpoenaed a Rule 30(b)(6) representative of EPS on April 9, 2004. See Defendant Arriviello's Memorandum in Opposition to Plaintiffs' Motion to Compel Discovery Responses dated August 20, 2004, at 1-2. EPS produced Michael Miller as a corporate designee for deposition on June 24, 2004. Austermuhl Cert. at ¶ 4. However, Plaintiffs' counsel terminated the deposition, asserting that Mr. Miller lacked sufficient knowledge to respond to counsel's questions. At a status conference on October 4, 2004, the Court addressed the issues raised by such deposition and the termination thereof. During the conference, counsel for EPS agreed to produce a second corporate designee and counsel for both parties agreed to limit the scope of inquiry at the deposition to four discrete topics: the organization and structure of EPS; the relationship between EPS and Underwood, including the terms of the contract between those two entities; the relationship between EPS and Dr. Arriviello, including the terms of the contract between EPS and Dr. Arriviello; and the procedures EPS must follow to comply with the Consolidated Omnibus Budget Reconciliation Act ("COBRA") and the Emergency Medical Treatment and Active Labor Act ("EMTALA").See Transcript of October 4, 2004 Conference at 85:9-19, 86:3-17.
On December 21, 2004, EPS produced Dr. Nicholas Dalsey for deposition as the EPS corporate designee. Counsel for EPS asserts that Plaintiffs' counsel inquired into areas beyond the scope agreed upon by counsel at the October 4, 2004 conference. See Austermuhl Cert. at ¶ 7. Specifically, Plaintiffs' counsel posed questions regarding the characterization of a specific head injury and whether Underwood's emergency department required diagnostic tests for patients with head injuries caused by being struck with a bottle. See Transcript of Deposition of Nicholas R. Dalsey, D.O., dated December 21, 2004 (hereafter "Dalsey Dep. Transcript") at 62:2-5, 69:22-24, 74:5-9. Counsel for EPS objected to the questions and specifically invited Plaintiffs' counsel to explain how such questions fell within the permissible scope of inquiry. Id. at 62:6-12, 63:20-23, 74:10-24. Plaintiffs' counsel responded that "we're here . . . to talk about emergency medical services provided at Underwood Memorial Hospital on August 13, 2000" and that "COBRA and EMTALA covers emergency medical services" but declined to further elaborate on the relevance of his questions. Id. at 74:5-24; 75:4-10; 76:2-3. In response, counsel for EPS asserted that Plaintiffs' counsel provided no basis that EPS had any obligations under EMTALA or COBRA, that Plaintiffs were trying to elicit expert testimony from the witness, and that the questions were not appropriate given the limited scope of permissible inquiry. Id. at 76:4-18, 77:2-3. Plaintiffs' counsel then sought to terminate the deposition, at which time counsel for EPS invited further questioning on any other issues delineated in the deposition notice. Id. at 77:9-12, 79:4-9. Plaintiffs' counsel refused to continue, stating that he would "reserve the areas that are mentioned in the notice of deposition as well as in the transcript[.]" Id. at 78:18-21. Counsel for EPS now seeks a protective order barring further deposition of an EPS representative, asserting that Plaintiffs have had a full and fair opportunity to depose two corporate designees and Plaintiffs' counsel chose to conclude the depositions despite invitations to continue questioning on uncontested subjects.See Brief in Support of Motion for Protective Order (hereafter "EPS Br.") at 2-3.
Plaintiffs object to EPS's motion on both procedural and substantive grounds. Plaintiffs contend that Dr. Arriviello, as the party filing the present motion, lacks standing to seek a protective order for an EPS representative. See Reply Memorandum of Law in Opposition to Defendant Arriviello's Motion for Protective Order for EPS (hereafter "Pl. Br.") at 1-2. Plaintiffs further argue that the certification of Mr. Austermuhl submitted in support of the motion should be stricken, as another member of Mr. Austermuhl's law firm attended the deposition and therefore Mr. Austermuhl allegedly does not have personal knowledge of the facts contained within his certification. Id. at 3-5. Plaintiffs also assert that the parties' stipulation as to the scope of the deposition "include [sic] but was not restricted to the application of the Emergency Medical Treatment and Active Labor Act and the Omnibus Budget Reconciliation Act, any matter relevant [sic] the EPS provision of emergency care, services, treatment and facilities at Underwood Memorial Hospital Emergency Department including but not limited to its operations, supervision of and consultation with Emergency Department personnel and subcontractors, policies, procedures, rules and practices." Id. at 2. Further, Plaintiffs argue that EPS stipulated to producing both a custodian of records and a corporate designee and that the Court ordered EPS to produce both representatives. Plaintiffs contend that EPS has acted in contravention of the Court's Order as Dr. Dalsey was not a custodian of records. Finally, Plaintiffs argue that under Fed.R.Civ.P. 30(a)(1) they were entitled to inquire about information that is relevant to their claims, including "EPS' contracts, interactions, practices and relationships between its principals, employees, agents, contractors or subcontractors in the provision of emergency services[.]" Id. at 6.
The Court notes that Plaintiffs incorrectly cite the Court's Order of October 6, 2004, as the Court explicitly denied Plaintiffs' motion to compel EPS to produce a custodian of records. See Order dated October 6, 2004 at 1. Further, a review of the transcript of the October 4, 2004 conference nowhere demonstrates that EPS stipulated to producing a custodian of records and, indeed, EPS maintains that it does not have a custodian of records. Transcript at 83:13-21.
In regard to Plaintiffs' procedural objections to the motion, the Court finds such arguments unavailing. The Court notes that the notice of motion, the proposed form of Order, and the proof of mailing all state that counsel has filed the present application for a protective order as counsel for both EPS and Dr. Arriviello. The Court further notes that a third party generally has standing to object to a discovery subpoena directed to that party. See Fed.R.Civ.P. 45(c)(2)(B); see also Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure: Civil 2d § 2459 at 40 (West 1995) ("A motion to quash, or for a protective order, should be made by the person from whom the documents or things are requested. Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action unless the party claims some personal right or privilege with regard to the documents sought."). Accordingly, the Court rejects any argument that EPS lacks standing to file a motion for a protective order. In addition, with regard to Plaintiffs' contention that Mr. Austermuhl's certification should be stricken for lack of personal knowledge of the events described therein, the Court notes that in setting forth the events that transpired at Dr. Dalsey's deposition, counsel recounts what the deposition transcript "shows" and has attached a copy of the relevant portions of the transcript. See Austermuhl Cert. at ¶ 7. Counsel therefore does not assert that he has personal knowledge of the events that occurred at the deposition, and accordingly the Court rejects Plaintiffs' request to strike the certification on this ground.
In addition, by Order and Opinion dated May 24, 2005 the Court has permitted Plaintiffs to file a Fourth Amended Complaint asserting a wrongful death claim against EPS.
Moreover, the Court further rejects Plaintiffs' argument that the protective order motion was untimely under the Court's January 31, 2005 Scheduling Order. The motion was filed on February 4, 2005, as required by the Court's Scheduling Order. According to the proof of mailing, service was effected by the New Jersey Lawyer's Service. See Docket Entry 127; see also Scheduling Order dated January 31, 2005 at ¶ 6. Plaintiffs advised the Court by letter dated February 11, 2005 that Plaintiffs did not receive the moving papers until February 8, 2005 and requested permission to file their response on February 16, 2005 as opposed to the February 11, 2005 date in the Court's Order. The Court will accept both pleadings.
The Federal Rules of Civil Procedure provide the Court with broad authority to prevent discovery or to restrict its scope.See generally Fed.R.Civ.P. 26. As an initial matter, parties may only obtain discovery regarding matters that are "relevant to the claim or defense of any party" and are "not privileged." Fed.R.Civ.P. 26(b)(1). The Court may also permit "for good cause" discovery of matters that are "relevant to the subject matter involved in the action." Id. "The party seeking discovery has the burden of showing that the information sought is relevant to the subject matter of the action and may lead to admissible evidence." Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J. 2000) (citing Nestle Foods Corp. v. Aetna Cas. and Sur. Co., 135 F.R.D. 101, 105 (D.N.J. 1990)). In addition, Rule 26(c) provides the Court with authority to enter a protective order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]" Fed.R.Civ.P. 26(c). Upon a showing of "good cause" by the moving party, the Court may enter a protective order that "the discovery not be had," that "certain matters not be inquired into, or that the scope of the disclosure or discovery be limited to certain matters[.]" Fed.R.Civ.P. 26(c)(1) and (c)(4). The party seeking a protective order bears the burden of demonstrating "a particular need for protection. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Cippolone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986), cert. denied, 484 U.S. 976 (1987). Alternatively, pursuant to Fed.R.Civ.P. 26(b)(2), the Court may limit the extent of use of any discovery method if it determines that "the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought." Fed.R.Civ.P. 26(b)(2)(ii).
EPS seeks a protective order in the present case precluding further deposition of an EPS representative, asserting that Plaintiffs' counsel "clearly went beyond the parameters agreed to at the October conference" and refused to "pursue questioning in areas not in dispute." EPS Br. at 3. While generally under Fed.R.Civ.P. 26(b)(1) the scope of discovery is broadly construed at the discovery phase, the parties in this matter agreed on the record to limit the scope of the deposition of a second EPS corporate designee. See Transcript of October 4, 2004 Conference at 85:9-19, 86:3-17. During the second deposition of an EPS representative, Plaintiffs' counsel asked a series of questions in connection with the policies and procedures EPS and/or Underwood had in effect on August 13, 2000, and these questions were answered by the witness. See, e.g., Dalsey Dep. Transcript at 26:14-27:3; 28:16-21. Plaintiffs' counsel also asked a question regarding how Dr. Dalsey would characterize an injury from being hit in the head with a bottle. Id. at 62:2-12. Counsel for EPS objected this question, stating that it exceeded the agreed-upon scope of the deposition and also called for expert testimony. Id. at 67:1-14. The parties sought the Court's guidance to resolve the dispute at that time, but the Court could not be contacted and thus the parties attempted to continue the deposition on uncontested issues. Counsel then asked Dr. Dalsey questions about whether EPS and/or Underwood had policies and procedures specifically with regard to individuals presenting themselves with injuries from having been hit in the head with a bottle. See, e.g., Dalsey Dep. Transcript at 68:22-69:2; 69:22-70:1-3; 71:8-13. Dr. Dalsey answered each of these questions. Counsel then asked Dr. Dalsey what diagnostic tests were required in the emergency department on August 13, 2000 for patients who presented themselves with such head injuries, and counsel for EPS instructed Dr. Dalsey not to answer the question. See id. at 74:5-11. Counsel for EPS stated that the question was not appropriate because it was an "expert witness question." Id. at 76:14-18. Plaintiffs' counsel then terminated the deposition. Id. at 77:9-12. Having reviewed the deposition transcript, the Court finds that the question is unclear. To the extent that the question sought the opinion of Dr. Dalsey without regard to EPS's policy or procedures, it is beyond the scope agreed to by counsel at the October 4, 2004 conference. However, to the extent Plaintiffs' counsel sought to determine whether EPS had in place on the date Ernest Davis was treated a particular policy and/or procedure with regard to diagnostic tests for head injuries, the Court finds that such question falls within the confines of the agreed-upon scope of the deposition.
Counsel for EPS asserts that permitting another deposition of an EPS corporate designee is "oppressive" and "unduly burdensome." Id. Counsel, however, fails to demonstrate with sufficient specificity a basis for these concerns. The Court notes that "[i]t is rare for a court to issue a protective order that completely precludes a deposition." In re Tutu Water Wells Contamination CERCLA Litigation, 189 F.R.D. 153, 155 (D.V.I. 1999); see also Charles Alan Wright, Arthur R. Miller, Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 2037 at 494 (West 1994) ("It is even more difficult to show grounds for ordering that discovery not be had when it is a deposition that is sought, and most requests of this kind are denied."). Here, counsel for Dr. Arriviello and EPS cites no authority to support a finding of good cause entirely precluding the further deposition of an EPS corporate designee and has thus failed to meet his burden of demonstrating that a protective order is warranted. Consequently, the motion for a protective order is denied.
In so holding, the Court notes that under Fed.R.Civ.P. 26(b)(2), the Court may limit the extent of use of discovery methods where the party seeking discovery has had ample opportunity to obtain the information. See Fed.R.Civ.P. 26(b)(2)(ii). In this case, at the October 4, 2004 conference, the Court instructed the parties that they should contact the Court during the deposition for clarification of any issues that arise. See Transcript at 86:18-19. The deposition transcript reflects that the parties attempted to contact the Court when a dispute arose as to the scope of Plaintiffs' counsel's questioning. See Dalsey Dep. Transcript at 66. The Court also notes that Plaintiffs' counsel had the opportunity but declined to inquire into other areas specified in the deposition notice that were not objected to by counsel for EPS. As the transcript reflects, Plaintiffs' counsel terminated the deposition despite counsel for EPS's invitation to continue with regard to the remaining, undisputed issues noticed for the deposition. Dalsey Dep. Transcript at 78:24-79:1-9. Accordingly, the Court finds that Plaintiffs had ample opportunity to obtain information on the other issues but declined to seek such information. Cf. Alexander v. F.B.I., 186 F.R.D. 113, 121 (D.D.C. 1998) (finding that plaintiffs did not have ample opportunity to obtain information sought because deponent was instructed not to answer; thus, plaintiffs were permitted to re-depose witness on limited issues that plaintiffs were unable to explore in first deposition); Riff v. Clawges, Civ. A. No. 94-2782, 1994 WL 592738, at *3 (E.D. Pa. 1994) (permitting redeposition of witness but specifically limiting inquiry into documents obtained as a result of the Court's Order of even date, refusing to permit questions on areas covered by earlier deposition). Consequently, pursuant to Fed.R.Civ.P. 26(b)(2), the Court will permit Plaintiffs to re-depose Dr. Dalsey but only as follows: the deposition shall not exceed two hours and shall occur on or before June 13, 2005 subject to the same limitations agreed to by the parties at the conference on October 4, 2004. As previously stipulated by the parties, Plaintiffs' counsel may inquire only into the organization and structure of EPS, the relationship between EPS and Underwood Memorial Hospital, including the terms of the contract between those two entities, the relationship between EPS and Dr. Arrivello, including the terms of the contract between the doctor and EPS, and what, if anything, EPS does or is required to do to comply with EMTALA and COBRA.
CONSEQUENTLY,
IT IS on this 27th day of May, 2005,
ORDERED that the motion for a protective order shall be, and hereby is, DENIED ; and it is further
ORDERED that Plaintiffs shall be entitled to re-depose Dr. Dalsey for two (2) hours on a date and time convenient to Dr. Dalsey not later than June 13, 2005; and it is further
ORDERED that Plaintiffs shall limit the questions asked at the deposition to those subjects agreed to by the parties at the conference on October 4, 2004, and Plaintiffs shall not be permitted to ask any questions previously asked at the earlier deposition.