2015-00184103-CU-PA

Joseph Newton vs. Comcast Corporation

Nature of Proceeding: Motion for Protective Order

Filed By: Sigel, Jason J.

Plaintiff’s Motion for Protective Order preventing defendant from deposing Dr. Leonard Wong is denied.

This case arises out of an automobile accident. Plaintiff contends that discovery is closed and that defendant is precluded from deposing plaintiff’s treating healthcare provider, who plaintiff has withdrawn as an expert, after the regular discovery cut-off date. Dr. Wong was identified by plaintiff in the expert exchange as one of the health care providers who provided treatment for the injuries caused by the accident. At the time the motion was filed, the trial date was February 26, 2018. The trial date is now April 23, 2018.

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. CCP 2025.420(b)

CCP 2024.030 provides that “Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to a witness identified under Chapter

18…on or before the 15th day, and to have motions concerning that discovery to be heard on or before the 10th day, before the date initially set for the trial of the action. The discovery cut-off for non expert discovery is 30 days before the initial trial date. CCP 2024.020

Plaintiff disclosed Dr. Wong as an expert on January 16, 2018. Defendant noticed the expert deposition for February 9, 2018, which was the last date to set an expert deposition under the expert discovery cut-off date. After meeting and conferring about expert deposition dates, defendant re-noticed Dr. Wong’s deposition for February 16, 2018. On February 15, plaintiff’s counsel informed defendant’s counsel that Plaintiff was withdrawing Dr. Wong as an expert.

Plaintiff contends that since Dr. Wong was withdrawn as an expert, the regular discovery cut-off must be applied to render his prior noticed deposition date untimely. Plaintiff has provided no authority stating that the discovery cut-off date retroactively changes back to the “non-expert discovery cut-off date” once an expert is withdrawn.

Plaintiff presents no evidence that Dr. Wong has now been retained in the capacity of a consultant, which would preclude his deposition. Plaintiff contends that allowing defendant to take Dr. Wong’s deposition one week before trial will result in unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. However, now that the trial date is April 23, plaintiff will not be unnecessarily burdened by attending Dr. Wong’s deposition if defendant chooses to proceed with it.

Defendant contends that Dr. Wong’s deposition was noticed at a time when he was still designated as an expert. Defendant also states that the parties agreed that the depositions of the treating physicians could be taken after the expert discovery cut-off up until the date of trial. In any event, the fact that plaintiff later decided to withdraw Dr. Wong as an expert does not suddenly convert the discovery cut-off to January 26, 2018, which would make the February 9 noticed date untimely under CCP 2024.020. “[I]t is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.” People v. Chong (1999) 76 Cal.App.4th 232, 243. It is gamesmanship to suggest that the late withdrawal of Dr. Wong as an expert precludes defendant from the deposition that was properly noticed when Wong was still noticed as an expert.

Generally speaking, the issue of whether a party may depose a withdrawn expert is based on the issue as to whether the attorney-work product privilege has been waived. If it has, the deposition may proceed. If it has not, the deposition may not proceed or may not proceed as to those issues still covered by the privilege. A party who fails to retain a withdrawn testifying expert as a consultant relinquishes any right to limit the other side’s access to him. Opposing counsel is free to communicate with him, depose him, or designate him as an expert against the side for which he was originally retained.(Kennedy v. Superior Court (1998) 64 Cal.App.4th 674, 679.) County of Los Angeles v Superior Court (1990) 222 Cal.App.3d 647, 657-658, relied on by plaintiff, is distinguishable because in that case the expert was retained as a consultant after he was withdrawn as an expert.

Plaintiff has not met his burden to show good cause to prevent the deposition of Dr. Wong. The deposition was timely noticed and therefore defendant is not precluded from deposing Dr. Wong. Plaintiff’s trial preparation will not be prejudiced by this deposition.

Defendant’s Request for Sanctions is granted in the amount of $500 because the motion was filed without substantial justification.