Welch et al v. Narconon Fresh Start

MOTION to Compel re: Discovery;

D. Nev.June 3, 2015

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION SCHEPER KIM & HARRIS LLP DAVID C. SCHEPER (Admitted Pro Hac Vice) dscheper@scheperkim.com WILLIAM H. FORMAN (Admitted Pro Hac Vice) wforman@scheperkim.com GREGORY A. ELLIS (Admitted Pro Hac Vice) gellis@scheperkim.com 601 West Fifth Street, 12th Floor Los Angeles, CA 90071-2025 Telephone: (213) 613-4655 Facsimile: (213) 613-4656 S. BRENT VOGEL, ESQ. NV Bar No. 6858 brent.vogel@lewisbrisbois.com ALAYNE M. OPIE, ESQ. NV Bar No. 12623 alayne.opie@lewisbrisbois.com LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Blvd., Suite 600 Las Vegas, Nevada 89118 Telephone: 702-893-3383; Facsimile: 702-893-3789 Attorneys for Defendant Narconon Fresh Start dba Rainbow Canyon Retreat (“Fresh Start”) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA DAVID WELCH, a Texas Citizen; STACY WELCH, a Texas Citizen; and JACK WELCH, a Texas Citizen, Plaintiffs, vs. NARCONON FRESH START d/b/a RAINBOW CANYON RETREAT, a California Corporation; ASSOCIATION FOR BETTER LIVING AND EDUCATION INTERNATIONAL; NARCONON INTERNATIONAL and DOES 1-100, ROE Corporations I-X, inclusive, Defendants. CASE NO. 2:14-cv-00167-JCM-CWH [REDACTED] DEFENDANT NARCONON FRESH START DBA RAINBOW CANYON RETREAT’S MOTION TO COMPEL FURTHER DEPOSITION OF PLAINTIFF JACK WELCH ORAL ARGUMENT REQUESTED Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 1 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to Federal Rules of Civil Procedure 30 and 37, Defendant Narconon Fresh Start (“Fresh Start”) hereby moves the Court for an Order compelling Plaintiff Jack Welch to appear for a second day of deposition. This motion is based on the accompanying Memorandum of Points and Authorities, the Declaration of William H. Forman and the exhibits thereto, and all records that the Court may consider. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Jack Welch (“Welch” or “Jack”) instituted this lawsuit about his drug addiction and then refused to answer entire categories of questions about his drug addiction at his deposition. Specifically, he refused to identify anyone he did drugs with, obstructing Defendant Narconon Fresh Start (“Fresh Start”) from locating witnesses to the amount and extent of Welch’s drug use. Then, the day after his deposition, Welch’s lawyers for the first time produced hundreds of pages of his medical records, that are highly pertinent to the alleged injuries for which Welch seeks damages. These twin abuses have frustrated appropriate discovery, and warrant a second day of Welch’s deposition. Welch’s deposition should be reopened. He should be required to answer all relevant questions concerning his drug use, and Fresh Start should have the opportunity to ask him about the previously-concealed medical records. II. FACTUAL ALLEGATIONS AND DISCOVERY POSTURE A. Factual Allegations In August 2013, Plaintiffs Stacy and David Welch were looking for a drug rehabilitation program in which to enroll their son, Jack. 1 (Docket No. 23, Second 1 At the time, Jack Welch was already enrolled in a different drug treatment program called The Right Step, which has not been named as a party to this action. Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 2 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION Amended Complaint (“SAC”) at ¶ 13.) Soon thereafter, Jack enrolled in Fresh Start’s treatment program. (Id. at ¶ 21.) He left the Fresh Start facility in November 2013, and the Welches jointly filed this action in January 2014. 2 (Id. at ¶¶ 53-54.) Plaintiffs allege, among other things, that Fresh Start did not provide adequate drug treatment. (Id. at ¶¶ 62-63.) They also allege that Fresh Start’s rehabilitation program caused Jack to suffer tremors, and that the aftereffects of the program impaired his social life. (Id. at ¶ 47.) B. Initial Discovery and Depositions The parties exchanged initial Rule 26 disclosures in April 2014. (Declaration of William H. Forman at ¶ 2.) Fresh Start propounded initial discovery requests, including document requests, shortly thereafter. All three Plaintiffs replied to Fresh Start’s initial Interrogatories and Requests for Production of Documents on July 7, 2014. (Id. at ¶ 3.) A series of requests and productions ensued, until Fresh Start deposed Plaintiffs Stacy and David Welch on January 6 and 7, 2015, respectively. (Id. at Ex. B, Stacy Welch Deposition Transcript at 1:19; and Ex. B, David Welch Deposition Transcript at 1:19.) The depositions addressed both their understanding of Fresh Start’s treatment program, and the claims that their son had been injured by the program. (Stacy Welch Tr. at 57:22-58:2; David Welch Tr. at 54:16-55:17.) Because Plaintiffs claim that Fresh Start’s drug treatment program did not work, these depositions necessarily sought information about Jack Welch’s purported relapse in 2014, as well as his drug use before enrolling at Fresh Start’s facility. (Stacy Welch Tr. at 12:2-4; David Welch Tr. at 71:8-9.) Both David and Stacy Welch testified that Jack would be the better person to ask. (Stacy Welch Tr. at 12:5, “I know what [Jack] 2 While Jack Welch has apparently been sober for much of the time since leaving Fresh Start’s facility, he claims to have suffered a relapse at some point in 2014. (Declaration of William H. Forman, Exhibit A, Jack Welch Deposition Transcript at 57:4-6.) Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 3 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION told me he was taking.”; David Welch Tr. at 71:25-76:1, “I don’t know when he . . . began doing that.”) Additionally, because Plaintiffs are seeking damages for physical injury, Fresh Start sought information concerning Jack Welch’s history of medical care. (E.g., Stacy Welch Tr. at 51:14-18.) Plaintiffs did not object to this line of inquiry, answering each question posed. (Id. at 51:23-53:14.) C. Jack Welch Refuses to Answer Deposition Questions Jack Welch’s deposition was held the following week, on February 12, 2015. (Forman Decl. at Ex. A, Jack Welch Deposition Transcript at 1:18.) Welch was asked about his history of drug use and his claimed injuries. However, after consultation with counsel, Jack refused to answer a number of questions designed to discover the extent and nature of his drug problem. (Id. at 32:9-21.) Specifically, Jack refused to answer any questions concerning his use of drugs when they implicated anyone in addition to himself: Q: Mr. Welch, do you know if [your half- or step- siblings] have any history of drug abuse? A: Erin. Q: Okay. And what do you know about Erin’s history of drug abuse? Mr. Ham: Could we take a quick break, Counsel? Mr. Forman: Well, there’s a question -- Mr. Ham: I understand there’s a question pending, but I’m going to let him answer it, so. . . I’m going to instruct him not to answer it. Can we take a break and I may let him answer it after the break. I’d like to talk to Mr. Welch and my cocounsel. (Id.) After returning from a brief recess, Jack’s counsel stated that “[Mr. Welch] is not comfortable talking about anybody else [other than himself].” (Id. at 33:8.) He Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 4 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION further explained: I can understand why, from a constitutional point of view, and so he’s not going to be answering questions about others. I don’t see the relevance as it relates to others either, so I’m not in a position to disagree with Mr. Welch in his decision. We can agree to disagree. We can deal with the magistrate and, you know, come back if you guys want to, but as far as we’re concerned, as we sit here today, he’s happy to tell you all about himself, but he’s not going to talk about his family members and friends and other people. (Id. 33:9-18.) Relying on this reasoning, Jack refused to answer a series of questions 3 relating to his drug use when they included other people. He refused to name potential witnesses with whom he used drugs before enrolling at Fresh Start. (Id. at 66:3-24.) He also refused to identify potential witnesses with whom he used drugs during his supposed 2014 relapse. (Id.) Essentially, Welch has taken the position that Fresh Start must take him at his word on his history of drug use - he will not identify any witnesses to that use. This position is particularly troublesome given Welch’s evasiveness on the subject. 4 3 A complete list of at-issue questions is included in Appendix A hereto. 4 Jack Welch himself was unable to provide any detailed information concerning his ostensible 2014 relapse. (See, e.g., Jack Welch Tr. 57:11-12, Q: “Was [the relapse] in the first half of the year?” A: “I couldn’t give you a specific time range.” and Jack Welch Tr. at 57:24-58:9, Q: “So you don’t know if you relapsed for a week, a month, or six months?” A: “It all seems to run together.” Q: “So sitting here today, you don’t know whether you relapsed in [2014] for a week or six months?” . . . A: “Correct.” Q: “Was there anything that caused you to relapse?” A: “I don’t recall.”) Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 5 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION D. Plaintiffs’ Post-Deposition Production of Pre-Deposition Documents The day after Jack Welch’s stonewalling, Plaintiffs “supplemented” their initial Rule 26 disclosures with dozens of medical records, spanning hundreds of pages. (Forman Decl. at Ex. D, February 13 Supplement at 16-18. 5 ) But Fresh Start had specifically asked for all such medical records in its initial Request for Production of Documents over seven months earlier. The initial Request for Production sought, among other things: • “[a]ny and all documents constituting, relating or referring to the nature, extent, and/or amount of medical expenses or damages allegedly incurred . . . as a result of the incident alleged in your Complaint”; • “[a]ny and all x-rays, CT scans, films, MRIs, myelograms, fluoroscopies, or other medical photographs in your possession, custody and/or control that may be involved in the alleged negligence delineated in your complaint”; • “[a]ny and all correspondence between [Mr. Welch] and any treating, consulting, or practicing physician. This request includes . . . requests for copies of medical records, responses to such requests, prescriptions, letters for appointments, letters for follow-up treatment, letters of referral, letters for consultation, letters for hospitalization, letters of billing, letters of collection, or personal correspondence (Forman Decl. at Ex. E, Response to Request for Production of Documents Nos. 9, 12, 16.) Jack responded to these Requests on July 7, 2014, stating that he would “produce responsive documents.” (Id. at Nos. 9, 12.) Indeed, he explicitly stated 5 Plaintiffs’ counsel noted all amendments and additions to the disclosures by formatting them in bold face text. Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 6 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION that he would “produce medical and billing records for Jack Welch.” (Id. at No. 16.) The late disclosure also identified fifteen medical providers who had treated Jack Welch during the relevant time period: (1) Dr. Sam Lingamfelter, at Clear Lake Family Physicians; (2) Clear Lake Regional Hospital; (3) Dr. Robert N. Earle; (4) The Right Step; (5) Institute for Progressive Medicine, Internal Medicine & Wellness; (6) Dr. Sam Lingamfelter, at Snow Canyon Clinic; (7) North Star Imaging; (8) LabCorp; (9) Meadow Valley Pharmacy; (10) Lincoln County Medical Associates; (11) Gulf Coast MRI & Diagnostic; (12) River Oak Diagnostics; (13) Lakeside MRI & Diagnostic Center; (14) Dominion Diagnostics; and (15) Quest Diagnostics. (February 13 Disclosure Supplement at 3-5.) 6 As with the document production, the identity of each of these providers was responsive to Fresh Start’s earlier discovery requests. In its First Set of Interrogatories, Fresh Start asked Mr. Welch to “[s]tate the name and address of each medical practitioner who examined or treated [him] for any physical, mental, emotional, psychiatric or psychological condition during the five-year period immediately before the date of the incident complained of, and since the incident. . . .” (Forman Decl. at Ex. F, Supplemental Response to Interrogatory No. 8.) Even in his supplemental response, provided more than five months after the request was posed, Mr. Welch simply responded “Plaintiffs produce Jack Welch’s medical bills and records.” (Id.) 6 While Fresh Start had previously obtained information concerning seven of these providers, the remainder were entirely new. Fresh Start had previously obtained information concerning: (3) Dr. Robert N. Earle, (4) The Right Step, (5) Institute for Progressive Medicine, Internal Medicine & Wellness, (6) Dr. Sam Lingamfelter, at Snow Canyon Clinic, (7) North Star Imaging, (9) Meadow Valley Pharmacy, and (10) Lincoln County Medical Associates. In addition, one of the providers, Dr. Sam Lingamfelter, was identified twice by Plaintiffs: first in affiliation with Clear Lake Family Physicians, and second in affiliation with Snow Canyon Clinic. While Fresh Start had previously obtained information identifying Snow Canyon Clinic, it was unaware of Clear Lake Family Physicians before the untimely production. Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 7 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION In total, Plaintiffs’ document dump included 18 separate sets of medical records, 16 sets of billing records, and the results of 2 MRIs, 1 EEG, and 1 CT scan. (February 13 Disclosure at 16-18.) The medical and billing records alone totaled 796 pages, and 441 of those pages-along with both MRIs-came from previously undisclosed medical providers. (Id.) Plaintiffs knew about these medical providers and records long before they were disclosed. Jack Welch was actively visiting several providers throughout 2014. For instance, one of the unrevealed MRIs was taken on January 15, 2014, (Forman Decl. at Ex. G at 1, JWELCH-GULFCOAST-MEDICAL-000001), while Quest Diagnostics provided records from as late as December 4, 2014. (Id. at 4, JWELCH-QUEST-MEDICAL-000005.) Moreover, it appears that Plaintiffs’ counsel was in possession of many of the records up to several months before Jack Welch’s deposition was taken. For instance: 1. Time-and-date information, apparently added by a printer, from Gulf Coast MRI & Diagnostics indicates that its medical and billing records were provided to Plaintiffs on October 14, 2014. (Id. at 1, JWELCH- GULFCOAST-MEDICAL-000001.) 2. The custodian of records affidavit from Lakeside MRI & Diagnostic Center indicates its medical and billing records were provided to Plaintiffs on January 9, 2015. (Id. at 8, JWELCH-LAKESIDE- MEDICAL-000001.) 3. The custodian of records affidavit from Quest Diagnostic indicates that its medical and billing records were provided to Plaintiffs on either January 16 or January 23, 2015. (Id. at 2, JWELCH-QUEST- MEDICAL-000001; Id. at 5, JWELCH-QUEST-BILLING-000001.) 4. The custodian of records affidavit from Clear Lake Family Physicians indicates that its medical and billing records were provided to Plaintiffs’ attorney on January 21, 2015. (Id. at 6, JWELCH- Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 8 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION CLEARLAKE-MEDICAL-000002.) 5. The custodian of records affidavit from Dr. M. Christina Ivan, who has still not been formally disclosed, indicates that her medical and billing records were provided to Plaintiffs on January 29, 2015. (Id. at 12, JWELCH-IVAN-MEDICAL-000009.) 6. The custodian of records affidavit from LabCorp indicates that its medical and billing records were provided to Plaintiffs’ attorney on February 3, 2015. (Id. at 9, 11, JWELCH-LABCORP-MEDICAL- 000001, 000003.) 7. An invoice from the Clear Lake Regional Medical Center to Plaintiffs’ attorney indicates that its medical and billing records were provided no later than February 6, 2015. (Id. at 14, JWELCH-CLREGIONAL- MEDICAL-000001). 8. Time-and-date transmittal information, apparently added by a fax machine, from the Dominion Diagnostics records indicates that its medical and billing records were provided to Plaintiffs’ attorney on February 10, 2015, at 11:36 AM. (Id. at 13, JWELCH-DOMINION- MEDICAL-000001.) Among other things, these new records include an MRI taken less than two months after Jack Welch left Fresh Start’s program. This MRI reveals no injuries. (Id. at 1, JWELCH-GULFCOAST-MEDICAL-000001.) The new records also reveal that Jack Welch suffered neck spasms in February 2011, several years before he enrolled in Fresh Start’s treatment program. (Id. at 7, JWELCH-CLEARLAKE-MEDICAL- 000079.) Because none of these documents were provided until after all Plaintiffs had been deposed, Fresh Start was unable to question any Plaintiffs about their contents, or what they might mean for Plaintiffs’ physical injury claims. E. Compliance with Notification Requirements Fresh Start’s attorneys have met and conferred with Jack Welch’s lawyers Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 9 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION multiple times since his deposition. On April 27, 2015, Artemus W. Ham and Ryan Hamilton were sent a letter explaining Fresh Start’s need for a second day of deposition. (Forman Decl. at Ex H.) Mr. Ham spoke with William Forman, Fresh Start’s attorney, about the possibility that Jack might appear for a reopened deposition. (Id. at ¶ 8.) And on May 4, 2015, Mr. Ham ruled out that same possibility. (Id. at Ex. I.) III. ARGUMENT A. Legal Standard In the absence of a stipulation, a party must obtain leave from the court to reopen a deposition. Fed. R. Civ. P. 30(a)(2)(A) (ii). “A party seeking discovery may move for an order compelling an answer” if “a deponent fails to answer a question asked under Rule 30 or 31.” Fed. R. Civ. P. 37(a)(3)(B)(i). Likewise, the late production of documents after deposition may “entitle[]” a party, “if it wishes, to reopen [that] deposition.” JS Products, Inc. v. Kabo Tool Co., No. 2:11-CV- 01856-RCJ, 2014 WL 2919184, at *4 (D. Nev. June 26, 2014). Whether to reopen a deposition lies within the court’s discretion. Couch v. Wan, 2012 WL 4433470, at *3 (E.D.Cal. Sept.24, 2012) (citing Dixon v. Certainteed Corp., 164 F.R.D. 685, 690 (D.Kan.1996)). “The Committee Notes to the 2000 Amendments to Rule 30 explain that the party seeking a court order to extend the examination, or otherwise alter the limitations, is expected to show good cause to justify such an order.” Syncora Guarantee Inc. v. EMC Mortgage Corp., No. MC 13-80037 SI, 2013 WL 1208936, at *1 (N.D. Cal. Mar. 25, 2013) (internal quotations omitted). B. There Is Good Cause to Reopen Jack Welch’s Deposition 1. Jack Welch Improperly Refused to Answer Questions During His Deposition Plaintiff Jack Welch improperly refused to answer a number of questions during his deposition. The Court should therefore order the deposition reopened and Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 10 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION compel him to answer those questions. See Brincko v. Rio Properties, Inc., 278 F.R.D. 576, 581 (D. Nev. 2011) (“Rule 37(a)(3)(C) permits a party asking questions for which answers are not provided during a deposition to . . . complete the deposition . . . before moving for an order compelling disclosure.”) The Federal Rules are specific as to when counsel may instruct a deponent not to answer a question. Rule 30 provides, in pertinent part: “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Fed. R. Civ. P. 30(c)(2); see Brincko v. Rio Properties, Inc., 278 F.R.D. 576, 580-81 (D. Nev. 2011) (“Counsel may instruct a witness not to answer a deposition question only under three circumstances: (1) ‘when necessary to preserve a privilege;’ (2) ‘to enforce a limitation on evidence directed by the court;’ or (3) to protect a witness from an examination ‘being conducted in bad faith or in such a manner as unreasonably may annoy, embarrass, or oppress the deponent or party.’”) (quoting Fed. R. Civ. P. 30(c)(2) & (d)(3)(A)). “Simply put, there are very few circumstances in which an instruction not to answer a deposition question is appropriate.” Brincko, 278 F.R.D. at 581. None of those circumstances is present in this case. 7 Jack Welch was asked questions about other individuals’ drug use for two reasons. First, those other individuals might be witnesses to-and therefore might be able to corroborate-Jack Welch’s supposed 2014 relapse. Accordingly, Defense counsel asked questions such as the following: 7 Likely aware of these limitations, Plaintiffs’ counsel was very careful in how he attempted to justify Jack’s refusal to answer questions: initially, he stated that he instructed Jack not to answer (Jack Welch Tr. 32:18-19), but then he backtracked and merely noted that he was “not in a position to disagree” with Jack’s refusal to answer. (Id. 33:12-13.) To the extent counsel’s comments are construed as an instruction not to answer, the instruction was clearly improper. And regardless of how counsel’s comments are construed, there was no legal basis for Jack’s refusal to answer the questions. Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 11 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION • “2014, who did you use drugs with?” • “2014, who did you drink with?” and • “Is there anybody who can give me some insight as to how much you used any of the drugs we’ve just been talking about?” (Jack Welch Tr. at 61:12, 14 and 137:1-3.) Second, those individuals might be witnesses to Jack Welch’s drug use prior to his enrollment in Fresh Start’s treatment program. As such, they would be able to provide information concerning Jack Welch’s history of drug use. But Jack refused to answer the questions. (Id. at 61:13, 15 and 137:4.) Plaintiffs’ counsel, Artemus W. Ham, offered two justifications for Jack’s refusal to answer these questions. First, he believed that, “from a constitutional point of view,” any “questions about others” were objectionable. (Id. at 33:8-13.) He later clarified that this objection was “based on the discussion” he had with his client “about the Fifth Amendment.” (Id. at 130:9-11.) But Jack Welch did not invoke the Fifth Amendment on his own behalf, as he testified at length about his own illegal drug use. (E.g., id. at 57:2-10.) And Jack Welch “has no standing to assert the . . . Fifth Amendment rights of others.” United States v. Ward, 989 F.2d 1015, 1020 (9th Cir. 1992); see also Muscolino v. Landrum, 310 F. App’x 676, 678 (5th Cir. 2009) (“the Fifth Amendment’s protection against self incrimination [sic] is purely personal and may not be asserted on behalf of a third party.”). 8 Accordingly, any Fifth Amendment objection should be dismissed out of hand. Second, Mr. Ham said that he did not “see the relevance as it relates to others either.” (Id. at 33:11-12.) But “relevance” is a broad concept under the Federal Rules. Pursuant to Rule 26, a party is entitled to any discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense,” including any 8 Moreover, there is a protective order in this case that would prevent the disclosure outside the context of this litigation of any illegal activity, thus addressing Jack’s purported concern about the activities of others. Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 12 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION discovery that “appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). “The Federal Rules of Civil Procedure creates a ‘broad right of discovery’ because ‘wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth.’” Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9th Cir.1995) (quoting Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir.1993)); see also Hernandez v. Best Buy Co., 2014 WL 5454505, at *3 (S.D. Cal. Oct. 27, 2014) (“It is well established that ‘the identity of witnesses having knowledge of relevant facts is discoverable information.’”) (quoting American Floral Services v. Florists’ Transworld Delivery Association, 107 F.R.D. 258, 260 (D.C.Ill.1985)). As Defense counsel suggested during Jack’s deposition, the occurrence and extent of any relapse in 2014 implicates the effectiveness of Fresh Start’s drug rehabilitation program. (Jack Welch Tr. at 61:16-17) (“Do you think any of these people could tell us how long you relapsed for?”) Since Plaintiffs have alleged damages based on the ineffectiveness of Fresh Start’s program, this is a critical area of inquiry. The identity of witnesses who can discuss Jack Welch’s 2014 relapse is, therefore, relevant. Similarly, information pertaining to Jack Welch’s drug use before (and after) his interaction with Fresh Start could explain any injuries he may currently be suffering that he blames on Fresh Start. These injuries purportedly include memory loss, depression, cognitive deficits, and tremors. (Forman Decl. at Ex. F, Supplemental Response to Interrogatory No. 7.) Many drugs have a long list of side effects, including each and every “injury” that Welch now claims was a result of attending Fresh Start’s drug rehabilitation facility. The quantity and identity of illegal drugs that Jack used over the years is therefore a proper area of inquiry. At the least, it might reasonably “lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). In fact, Jack himself implicitly admitted that this area of inquiry was relevant by describing the extent and nature of his drug use at deposition. (Jack Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 13 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION Welch Tr. at 59:9-61:7.) Fresh Start only wishes to know the identity of witnesses who might be able to attest to Jack Welch’s drug abuse. 2. Plaintiffs’ Delayed Document Production Also Requires Reopening of the Deposition Additionally, Plaintiffs sandbagged Fresh Start by disclosing hundreds of pages of medical records the day after Jack Welch’s deposition. These documents include significant new information concerning Plaintiffs’ claims. For instance, Jack Welch claims to suffer from tremors caused by Fresh Start’s treatment program. But the new records, from newly disclosed medical providers, include an MRI taken less than two months after Jack left Fresh Start’s program. This MRI reveals no injuries. (Forman Decl. at Ex. G at 1, JWELCH-GULFCOAST- MEDICAL-000001.) Likewise, the medical records reveal that Jack Welch suffered neck spasms in February 2011, several years before he enrolled in Fresh Start’s treatment program, and before Jack now alleges he first developed tremors. (Id. at 7, JWELCH-CLEARLAKE-MEDICAL-000079.) Most distressingly, many of these documents were evidently obtained weeks or months before Welch’s deposition. In other words, Plaintiffs had the documents, but concealed them until after Fresh Start would no longer be able to ask questions about them. Numerous courts, throughout both this District and Circuit, have found that tardy disclosures may provide grounds for reopening a deposition. As Judge Jones found in 2011, when recently produced documents “should have been disclosed . . . prior to . . . deposition so that [defendant’s] counsel could have examined [the deponent] about them,” the defendant was “entitled, if it wishe[d], to reopen [that] deposition.” JS Products, Inc. v. Kabo Tool Co., No. 2:11-CV-01856-RCJ, 2014 WL 2919184, at *4 (D. Nev. June 26, 2014). Reopening a deposition is an especially appropriate remedy where, as here, the adverse party had sufficient time to disclose its documents in advance of the deposition. Syncora Guarantee Inc. v. Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 14 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION EMC Mortgage Corp., No. MC 13-80037 SI, 2013 WL 1208936, at *2 (N.D. Cal. Mar. 25, 2013) (finding good cause to reopen a deposition where the plaintiff “did not choose to depose [the witness] relatively early in discovery”) (emphasis added). Jack Welch’s deposition occurred almost seven months after initial disclosures were exchanged. He had had more than enough time to identify his medical providers and produce his medical records. His counsel had the documents at issue up to several months before they were produced. “[T]he fact of the matter” is that Fresh Start “did not have the opportunity to question” Jack Welch about the February 13, 2015, disclosures “solely due to [Plaintiffs’] failure to produce them.” All Star Seed v. Nationwide Agribusiness Ins. Co., No. 12CV146-L BLM, 2013 WL 1882260, at *7 (S.D. Cal. May 3, 2013). Since many of the medical providers who provided these new documents had not previously been disclosed, the additional disclosures “could not have [been] obtained from another source . . . provid[ing] the requisite good need for re-deposing the witness[].” Id. 3. Conclusion Fresh Start’s request is simple. Plaintiff Jack Welch’s deposition should be reopened. Welch should be required to answer all questions concerning his drug use, and Fresh Start should have the opportunity to ask him about his medical records. There is good cause to allow questioning as to both areas. Plaintiff improperly refused to answer questions regarding the first issue, and dodged questioning on the second issue by the simple expedient of withholding necessary information until after the deposition had concluded. Since any additional deposition would be limited to these two topics, preventing unnecessary duplication of effort, good cause for reopening the deposition exists. See Syncora Guarantee Inc. v. EMC Mortgage Corp., 2013 WL 1208936, *2-3 (N.D.Cal. March 25, 2013) (finding good cause to reopen the deposition of the witness where Plaintiff could not have asked about documents that had not been produced at the time of the Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 15 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION deposition, Plaintiff did not choose to depose the witness relatively early in the discovery process, and the additional deposition would be limited to discussing only the new documents and not about the initial deposition). C. Request for Sanctions Plaintiffs should also be required to pay reasonable costs and attorney’s fees incurred both in (1) preparing this motion and (2) reopening and conducting Jack Welch’s deposition. At the outset, costs and attorney’s fees associated with filing a motion to compel may be awarded under Rule 37(a)(5), which requires a party whose conduct necessitated the motion to pay the movant’s reasonable expenses in making the motion, including attorney’s fees, unless: “(1) the motion was filed without a good faith effort to resolve the dispute without court action; (2) the party’s objection was substantially justified; or (3) other circumstances make an award of expenses unjust.” Brincko, 278 F.R.D. at 585 (citing Fed. R. Civ. P. 37(a)(5)). As described above, Fresh Start has made a good faith effort to resolve the dispute without seeking court intervention, asking Plaintiffs to stipulate to a reopened deposition. Mr. Ham’s “constitutionality” and “relevancy” objections were entirely without merit. And Plaintiffs have offered no explanation for their withholding and late production of relevant documents. The court may also order “that the cost [of a reopened deposition] be borne by the party whose counsel’s conduct necessitated retaking the deposition.” Brincko v. Rio Properties, Inc., 278 F.R.D. 576, 581 (D. Nev. 2011) (citing O’Brien v. Amtrak, 163 F.R.D. 232 236 (E.D.Pa.1995). Again, as described above, reopening the deposition is necessary solely because of Plaintiffs’ dilatory tactics and improper refusal to answer relevant questions. Accordingly, Fresh Start asks that it be awarded costs and fees associated with further deposition preparation. IV. CONCLUSION Fresh Start regrets having to raise this issue with the Court. Unfortunately, Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 16 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION Plaintiffs’ refusal to see reason has compelled this course of action. Fresh Start respectfully asks that Jack Welch’s deposition be reopened, and that Plaintiffs be required to bear the costs and fees associated with both this motion and the reopened deposition. Dated: June 3, 2015 SCHEPER KIM & HARRIS LLP By: /s/ William H. Forman David C. Scheper, CA Bar 120174 William H. Forman, CA Bar 150477 Greg A. Ellis, CA Bar 204478 601 W. Fifth Street, 12 th Floor Los Angeles, CA 90071 S. Brent Vogel, NV Bar No. 6858 Alayne M. Opie, NV Bar No. 12623 LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Blvd., Suite 600 Las Vegas, Nevada 89118 Attorneys for Fresh Start Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 17 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION Appendix A: Jack Welch’s Unanswered Deposition Questions Q: Mr. Welch, what do you know about Erin’s history of drug abuse? (Jack Welch Tr. at 33:23-24) A: I’m not going to release any information about family or friends. (Id. 34:12-14.) Q: Have you ever done drugs with Erin? (Id. 35:4.) A: I’m not going to answer. (Id. 35:7.) Q: And did you ever do drugs with Erin the time she lived in the house with you? (Id. 35:9-10.) A: I’m not going to answer. (Id. 35:12.) Q: And who did you deal marijuana to? (Id. 52:21.) A: A variety of people. (Id. 52:22) Q: Tell me their names, to the best of your recollection. (Id. 52:23-24.) A: I’m not going to answer that. (Id. 53:2.) Q: And tell me the names of the persons you dealt ecstasy to. (Id. 53:4-5.) A: I’m not going to answer that. (Id. 53:7.) Q: Who supplied you with the marijuana that you dealt? (Id. 53:9-10.) A: I’m not going to answer that. (Id. 53:12.) Q: Do you know the name of the person who supplied you with the marijuana? (Id. 53:14-15.) A: I’m not going to answer that. (Id. 53:16.) Q: Do you know the names of the person that you dealt marijuana to? (Id. 53:21- 22.) A: I’m not going to answer that. (Id. 53:24.) Q: So you bought your marijuana from Michael in 2014. Who did you buy your -- Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 18 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION your meth from? (Id. 58:22-23.) A: I’m not going to answer that. (Id. 58:24.) Q: What about the Molly, who did you buy your Molly from? (Id. 59:19-20.) A: I’m not going to answer that. (Id. 59:22.) Q: Who bought your liquor for you? (Id. 61:8.) A: I’m not going to answer that. (Id. 61:10.) Q: 2014, who did you use drugs with? (Id. 61:12.) A: I’m not going to answer that. (Id. 61:13.) Q: 2014, who did you drink with? (Id. 61:14.) A: I’m not going to answer that. (Id. 61:15.) Q: Did you ever do drugs with Jordan? (Id. 61:22.) A: I’m not going to answer that. (Id. 61:23.) Q: [Referring to an exhibit] . . . it says, “12 years old, in the back of stepbrother’s friend’s car. The friend had the weed. They all got really high.” . . . Do you know a stepbrother being referred to as Jordan? (Id. 63:5-10.) A: I’m not going to answer that. (Id. 63:13.) Q: So sitting her in a deposition, you’re not going to tell me whether you did marijuana with your stepbrother, Jordan, when you were 12 years old? (Id. 64:8- 10.) A: Correct. (Id. 64:11.) Q: . . . have you ever done drugs with Casey? (Id. 65:19-20.) A: I’m not going to answer that. (Id. 65:22.) Q: Have you ever done drugs with McHale Bond? (Id. 66:3.) Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 19 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION A: I’m not going to answer that. (Id. 66:4.) Q: Have you ever bought or sold drugs from McHale Bond? (Id. 66:5-6.) A: I’m not going to answer that. (Id. 66:7.) Q: Who is Liz Mellen? (Id. 66:8.) A: An old friend. (Id. 66:9.) Q: Did you ever do drugs with Liz? (Id. 66:12.) A: I’m not going to answer that. (Id. 66:13.) Q: What about Alina or Alana Rodriguez? (Id. 66:14.) A: Old girlfriend. (Id. 66:15.) Q: Did you ever do drugs with her? (Id. 66:16.) A: Not going to answer that. (Id. 66:17.) Q: What about Chelsey Lance? (Id. 66:18.)) A: Old girlfriend. (Id. 66:19.) Q: Did you ever do drugs with her? (Id. 66:20.) A: Not going to answer that. (Id. 66:21.) Q: Alina, Chelsey, and Liz, did you ever buy drugs from them or sell drugs to them? (Id. 66:22-23.) A: I’m not going to answer that. (Id. 66:24.) Q: Did Liz see you during your relapse of 2014? (Id. 67:5-6.) A: Yes. (Id. 67:7.) Q: And you’re not going to tell me if you did drugs with Liz during your relapse of 2014, correct? (Id. 67:10-11.) A: Correct. (Id. 67:12.) Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 20 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION Q: Did you ever tell Baleigh that you were using meth? (Id. 68:5-6.) A: Not going to answer that. (Id. 68:9.) Q: . . . who did you sell your Adderall to? (Id. 81:20.) A: I’m not going to answer that. (Id. 81:22.) Q: Is it fair to say that when you weren’t in school during high school, you spent most of your time hanging out with friends? (Id. 91:6-8.) A: Correct. (Id. 91:9.) Q: Okay. And -- but you’re not going to tell me the names of any of those friends? (Id. 91:10-11 A: Correct. (Id. 91:12.) Q: Who were you with when you were arrested? (Id. 94:22.) A: I’m not going to answer that. (Id. 94:23.) Q: . . . who did you get [the PCP-laced cigarette] from? (Id. 129:25.) A: I’m not going to answer that. (Id. 130:2.) Q: Why not? (Id. 130:4.) A: The advice of counsel. (Id. 130:6.) Mr. Forman: Okay. A Art, to be clear, is that an instruction not to answer? (Id. 130:7-8.) Mr. Ham: No. It’s our discussion going back to the beginning of the deposition based on the discussion I’ve had with my client about the Fifth Amendment. (Id. 130:9-11.) Q: Is there anybody who could give me some insight as to how much you used -- Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 21 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION how often you used LSD? (Id. 136:23-24.) A: I’m not going to answer that. (Id. 136:25.) Q: Is there anybody who can give me some insight as to how much you used any of the drugs we’ve just been talking about? (Id. 137:1-3.) A: I’m not going to answer that. (Id. 137:4.) Q: And why is that? (Id. 137:5.) A: Advice of counsel. (Id. 137:7.) Q: . . . how did you take heroin? (Id. 150:20.) A: Shot it. (Id. 150:21.) Q: And did you shoot it with anybody? (Id. 150:22.) A: I’m not going to answer that. (Id. 150:23.) Mr. Ham: That was a yes or no question. (Id. 150:24.) The Witness: Oh. Yes. (Id. 150:25.) Q: Yes, you did. And you’re not going to tell me who you shot it with? (Id. 151:2- 3.) A: Correct. (Id. 151:4.) Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 22 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 DEFENDANT FRESH START’S MOTION TO COMPEL DEPOSITION CERTIFICATE OF SERVICE Pursuant to FRCP 5(b), I certify that I am an employee of SCHEPER KIM & HARRIS LLP and that on this 3 rd day of June, 2015, I did cause a true copy of the foregoing CERTIFICATE OF INTERESTED PARTIES to be served via the CM/ECF electronic system to all parties on the service list. Ryan A. Hamilton HAMILTON LAW 5125 S. Durango Dr., Ste. C Las Vegas, NV 89113 Telephone: (702) 818-1818 Facsimile: (702) 974-1139 Email. ryan@hamiltonlawlasvegas.com Bob Baker BAKER, KEENER & NAHRA, LLP Nevada Bar 49255 633 West 5 th Street, Suite 5500 Los Angeles, CA 90071 Telephone: (213)241-0900 Email: rbaker@bknlawyers.com Robert C. McBride CARROLL, KELLY, TROTTER, FRANZEN, McKENNA & PEABODY Nevada Bar 007082 701 N. Green Valley Parkway, Suite 200 Henderson, Nevada 89074 Telephone: (702) 792-5855 Facsimile: (702) 796-5855 Email: rcmcbride@cktfmlaw.com S. Brent Vogel Alayne M. Opie LEWIS BRISBOIS BISGAARD & SMITH LLP Nevada Bar No. 6858 Nevada Bar No. 12623 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 Telephone: (702)893-3383 Facsimile: (702)893-3789 Emai:brent.vogel@lewisbrisbois.com By: /s/Melissa Vasquez An Employee of SCHEPER KIM & HARRIS LLP Case 2:14-cv-00167-JCM-CWH Document 87 Filed 06/03/15 Page 23 of 23