2015-00186082-CU-WT

David Johnson vs. Kaiser Foundation Hospitals

Nature of Proceeding: Motion for Protective Order

Filed By: Velez, Mark P.

Plaintiff Vjendra Singh’s (“Plaintiff”) motion for a protective order is DENIED.

Plaintiff moves for a protective order to prevent defendant Kaiser Foundation Hospitals’ (“Defendant”) counsel from taking the deposition of Plaintiff’s withdrawn and non-retained expert witness, Kr. Ku Y. Hwang, M.D. on the grounds the discovery cut-off has passed and Plaintiff has withdrawn Dr. Hwang as a non-retained expert.

Both parties designated Dr. Hwang as a treating non-retained expert in June of 2018. (Simerly Decl., Exhs. B, C.) On June 29, 2018, Defendant noticed Dr. Hwang’s deposition for July 9, 2018, the last date to complete non-expert discovery. (Simerly Decl., Exh. D.) Dr. Hwang’s office then informed Defendant that Dr. Hwang was not available on July 9, but would be available on July 18, 2018. Defendant contends that because both parties named Dr. Hwang as an expert, Defendant agreed to schedule Dr. Hwang’s deposition for July 18, which was after the close of fact-discovery, but before the expert discovery cut-off.

On July 9, 2018, Plaintiff withdrew Dr. Hwang as an expert witness. (Simerly Decl., Exh. E.)

On July 10, 2018, Defendant served its amended notice of deposition of Dr. Hwang, scheduling his deposition for July 18, 2018. (Simerly Decl., Exh. F.) The next day, Plaintiff served an objection to the deposition. (Simerly Decl., Exh. G.)

Plaintiff contends Defendant may not take Dr. Hwang’s deposition because Dr. Hwang

is no longer listed as one of Plaintiff’s expert witnesses and the fact discovery cut-off date has passed. First, the Court would note “it 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. Hwang as one of Plaintiff’s experts precludes Defendant from the deposition that was properly noticed when Dr. Hwang was still listed as an expert. Moreover, defendant also listed Dr. Hwang as a treating non-retained expert. Nothing precludes a party from taking the deposition of one of its own listed experts.

Plaintiff contends CCP § 2034.410(a) only permits the taking of a deposition of the other party’s experts. However, section 2034.410(a) only addresses when a party may depose another party’s disclosed experts (i.e., upon receive of an expert witness list). It does not specifically prohibit a party from taking its own expert’s depositions, nor has Plaintiff presented any other legal authority supporting this contention.

In addition, generally, 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.) Plaintiff has not presented any evidence that it has retained Dr. Hwang as a consultant, which would preclude his deposition.

Defendant contends it should be permitted to depose Dr. Hwang as a fact witness as Plaintiff’s treating physician, and that Defendant should not be punished for its good faith efforts to accommodate Dr. Hwang’s schedule. Defendant further reasons it chose not to depose Dr. Hwang until its motion for summary judgment was decided (on July 3, 2018) and should not be penalized to avoid unnecessary litigation expenses.

Generally, 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. (Cal. Code of Civ. Proc. § 2025.420(b).) A nonexclusive list of enumerated remedies available to a court when a party seeks a protective order include prohibiting the deposition entirely, changing the place, limiting scope of questioning permitted at the deposition, and limiting the form of discovery. (Nativi v. Deutsche Bank Nat’l Trust Co. (2014) 223 Cal.App.4th 261, 316.) The party asserting the privilege has the burden to establish “good cause” for the requested protection, e.g. burden, expense, or intrusiveness clearly outweighs the likelihood the information sought will lead to the discovery of admissible evidence. (Merson Elec. Co. v. Superior Court (Grayson) (1997) 16 Cal.4th 1101, 1110.)

The Court finds Plaintiff has failed has not met his burden to show good cause to prevent the deposition of Dr. Hwang. The deposition was timely noticed, Dr. Hwang is still listed as one of Defendant’s non-retained expert witnesses, and, therefore, Defendant is not precluded from deposing Dr. Hwang.

The Court will not consider Plaintiff’s alternative request to limit the scope of the deposition to inquiries related to Dr. Hwang’s physician-patient relationship, which was raised for the first time on reply.

Defendant’s request for sanctions against Plaintiff is granted in the amount of

$1,456.80 (representing 1.9 hours of attorney time at the rate of $372/hr and 2.5 hours of attorney time at the rate of $300/hr) because the motion was filed without substantial justification. (CCP § 2017.020(b).) Sanctions to be paid no later than September 24, 2018, and, if not paid by that date, Defendant may prepare for the Court’s signature a formal order granting the sanctions, which may then be enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.