Case Name: Amelia Gomez et al. vs. Hee Duk Kang et al.

Case No.: 1-15-CV-285407

Line 3: Motion for Protective Order to Prohibit Deposition of Hee Duk Kang, filed by Defendants

Line 4: Motion to Compel Deposition of Hee Duk Kang, filed by Plaintiffs

Plaintiffs seek to take the deposition of Defendant Hee Duk Kang (“Kang”). Defendants seek a protective order precluding Kang’s deposition based on his medical condition.

In late June of 2016, counsel for Plaintiffs notified counsel for Defendants that they wanted to take Kang’s deposition. On July 8, 2016, counsel for Defendants responded: “Unfortunately, at this time, we are unable to produce him for deposition. As noted in the enclosed letter from Mr. Kang’s doctor, he is currently having issues related to his memory and speech rendering him unable to testify at this time.” The attached letter, dated May 23, 2016 from Stanford Health Care Doctors Rebecca Miller-Kuhlman and Joanna Dearlove, states:

Mr. Kang . . . is a patient under our care at Stanford Neurology Clinic. He is currently undergoing an evaluation for deficits in his memory and speech and as such is in no condition to deliver a deposition of any kind of testimony in a court proceeding. It is unclear at this point whether the deficits are reversible.

On July 15, 2015, counsel for Plaintiffs wrote back, asking when Kang’s evaluation for memory and speech deficits would be complete. Counsel for Defendants responded by email that Kang “is still under evaluation and it is unknown when it will be completed, if at all.”

On July 29, 2016, Plaintiffs noticed Kang’s deposition for August 31, 2016. On August 23, 2016, defense counsel wrote to counsel for Plaintiffs, objecting to the deposition notice and advising that Kang “will not be produced for deposition.” The letter further provided that Kang “is suffering from deficits relating to his memory and speech. Clearly, this would interfere with his ability to provide competent testimony.” Kang did not appear for deposition on August 31. Thereafter counsel for Plaintiffs and Defendants made further efforts to meet and confer regarding their dispute. On September 13, 2013, defense counsel sent Plaintiffs’ counsel an updated letter from Dr. Miller-Kuhlman regarding Kang’s medical condition:

Mr. Hee Kang is under my care in the Stanford Neurology Department. With the permission of Mr. Kang and his family, I am writing to inform you that Mr. Kang is unable to participate in a deposition at this time. Mr. Kang is suffering from a neurologic condition the symptoms of which include global aphasia which causes him to have extremely limited ability to speak and express his thoughts and interferes with his ability to understand spoken language and to process information. As his condition has not improved in the months following initial presentation in March of 2016, we do not at this time foresee a point in the near future at which this will change.

On September 20, 2016, Defendants filed their Motion for a Protective Order seeking to prohibit the deposition of Kang. On that same day, Plaintiffs filed their Motion to Compel Kang’s deposition. Plaintiffs seek monetary sanctions for Defendants’ failure to produce Kang for his deposition.

Discussion

Code of Civil Procedure section 2025.420(b) provides that 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.” Defendants argue that deposing Kang would place an undue burden on him due to his medical condition. They further assert that the probative value of Kang’s deposition testimony would be minimal due to his neurological deficits. Plaintiffs are skeptical about Kang’s assertions related to his health, arguing that “he, his wife, children, and employee have testified that Defendant is able bodied, able to communicate and remember things effectively, as well as engage in leisure and business activities.”

The Court finds good cause to issue a protective order prohibiting the oral deposition of Kang, based on the most recent statement of Kang’s medical condition by his doctors, that Kang “is suffering from a neurologic condition the symptoms of which include global aphasia which causes him to have extremely limited ability to speak and express his thoughts and interferes with his ability to understand spoken language and to process information.” Defendants’ Motion for a Protective Order is therefore GRANTED. Accordingly, Plaintiffs’ Motion to Compel the Deposition of Defendant Hee Duk Kang is DENIED. Plaintiff’s request for monetary sanctions is also DENIED. The Court finds that any imposition of monetary sanctions in this matter would be unjust, given the parties’ efforts to informally resolve the dispute and the need for a decision from the Court when those efforts failed. The Court notes that per Defendants’ counsel’s September 13, 2016 letter to Plaintiffs’ counsel, Kang “will continue to seek treatment and undergo tests in the coming months and will have a further evaluation in December.” If Kang’s neurological condition changes, Plaintiffs may seek to modify or terminate the protective order, after appropriate efforts to meet and confer.