Cox v. County of San Joaquin

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 TONY COX, No. 2:17-cv-0989-TLN-CKD

12 Plaintiff,

13 v. ORDER

14 COUNTY OF SAN JOAQUIN d/b/a SAN

JOAQUIN GENERAL HOSPITAL, et al.,

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Defendants.

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18 Plaintiff, Tony Cox, and defendant, the County of San Joaquin (“the County”), filed cross-

19 motions on a discovery dispute regarding plaintiff’s desire for further witness designation(s) and

20 deposition(s) under Federal Rule of Civil Procedure, Rule 30(b)(6). (ECF Nos. 71, 72.) The

21 parties appeared for a hearing via videoconference on September 28, 2022. Counsel John R.

22 Parker, Jr., appeared for plaintiff and Stephanie L. Roundy appeared for the County.

23 I. BACKGROUND

24 Among other claims against other defendants, plaintiff Tony Cox alleges San Joaquin

25 General Hospital (“SJGH”) negligently caused or contributed to his severe and permanent

26 paraplegia during his care there on May 2, 2016. (See generally, ECF No. 32, Fourth Amended

27 Complaint.) As set forth in the parties’ amended joint statement on the discovery dispute, plaintiff

28 arrived at SJGH from Folsom State Prison on May 2, 2016, after which SJGH employees

1 transferred him between gurneys, twice. (See ECF No. 74 at 31-32.)1 Plaintiff’s negligence claim

2 against the County is based on these gurney transfers. (See id.)

3 On January 21, 2022, pursuant to Federal Rule of Civil Procedure 30(b)(6), plaintiff

4 served a Notice of Taking Deposition of Defendant County of San Joaquin on County counsel

5 (“deposition notice”). (See ECF No. 74-1, Exhibit 1.)

6 To date, the County has produced three 30(b)(6) designees, Jennifer Willet (“Dr. Willet”),

7 Dara Bonjoc (“Ms. Bonjoc”) and Mary Barnes (“Ms. Barnes”). Plaintiff alleges each deponent

8 was unprepared to testify competently as the County’s representative.

9 On September 9, 2022, plaintiff filed the instant motion to compel. (ECF No. 72.) Plaintiff

10 seeks an order compelling the County to produce a witness or witnesses adequately prepared to

11 testify on topics 9, 10, 11, 12, 13, 14, and 15 of the deposition notice, and to produce documents

12 pursuant to the schedule items in the deposition notice.

13 Also on September 9, 2022, the County moved for a protective order. (ECF No. 71.) The

14 County seeks a protective order precluding plaintiff from taking further depositions on the Rule

15 30(b)(6) deposition notice. The County asserts the witnesses produced were adequately prepared,

16 answered all of plaintiff’s questions, and that plaintiff has failed to identify in meet and confer

17 any questions the witnesses were unable to answer due to inadequate preparation. (ECF No. 74 at

18 44-46.) The County also seeks a protective order due the behavior of plaintiff’s counsel, whom

19 the County describes as having used an aggressive and angry tone, refusing to turn on his video

20 during a Zoom deposition, and focusing on questions needed pertinent to this motion rather than

21 seeking information relevant to plaintiff’s claims.” (Id. at 44-45.)

22 Non-expert discovery is closed, except as to the issues relating to plaintiff’s January 21,

23 2022, deposition notice. (See ECF No. 70 at 2, Stipulation and Order.) Discovery on the matters

24 at issue herein will close on October 13, 2022. (Id.)

25 On September 13, 2022, the court reset the parties’ cross-motions be heard together and

26 ordered them to file an amended joint statement addressing both motions. (ECF No. 73.) See

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1 Citations to page numbers in CM/ECF documents refer to the page number at the top of the

28 document assigned by CM/ECF.

1 Local Rule 251. The parties filed their amended joint statement addressing the discovery dispute

2 on September 21, 2022. (ECF No. 74.)

3 II. LEGAL STANDARDS

4 Under Federal Rule of Civil Procedure 26(b)(1), parties

5 May obtain discovery regarding any nonprivileged matter that is

relevant to any party’s claim or defense and proportional to the needs

6 of the case, considering the importance of the issues at stake in the

action, the amount in controversy, the parties’ relative access to

7 relevant information, the parties’ resources, the importance of the

discovery in resolving the issues, and whether the burden or expense

8 of the proposed discovery outweighs its likely benefit.

9 Fed. R. Civ. Pro. 26(b)(1). “The party seeking to compel discovery has the burden of establishing

10 that its request satisfies the relevancy requirements of Rule 26(b)(1). Thereafter, the party

11 opposing discovery has the burden of showing the discovery should be prohibited, and the burden

12 of clarifying, explaining or supporting its objections.” Bryant v. Ochoa, 2009 WL 1390794 at *1

13 (S.D. Cal. May 14, 2009) (citations omitted).

14 Under Federal Rule of Civil Procedure 30(b)(6), a partying noticing the deposition of a

15 government entity or other organization “must describe with reasonable particularity the matters

16 for examination.” Fed. R. Civ. P. 30(b)(6). If this burden is met, the entity must then designate

17 one or more persons to testify on its behalf “about information known or reasonably available to

18 the organization.” Fed. R. Civ. P. 30(b)(6). Because Rule 30(b)(6) requires the designated

19 deponent to testify about “information known or reasonably available to the organization,” the

20 entity designating a 30(b)(6) witness “must prepare the designee to the extent matters are

21 reasonably available, whether from documents, past employees, or other sources.” Brazos River

22 Auth. v. GE Ionics, Inc., 469 F.3d 416, 433 (5th Cir. 2006) (citation and internal quotation marks

23 omitted). It falls on the entity to prepare the designee to provide binding answers on its behalf.

24 QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 688 (S.D. Fla. 2012).

25 Rule 37(d) permits courts to order sanctions if a party’s 30(b)(6) designee is not prepared

26 to testify on the noticed topics. Fed. R. Civ. P. 37(d). A 30(b)(6); see Black Horse Lane Assoc.,

27 L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3rd Cir. 2000) (“[P]roducing an unprepared

28 witness is tantamount to a failure to appear that is sanctionable under Rule 37(d)[.]”).

1 III. DISCUSSION

2 A. Meet and confer requirements were met.

3 Plaintiff asserts the County’s motion for a protective order is procedurally deficient and

4 should be denied because “the County failed to meet and confer as required by Fed. R. Civ. P.

5 26(c)(1) and Local Rule 251 before filing its motion for a protective order.” (ECF No. 74 at 6.)

6 The court finds no deficiency in the motion.

7 Federal Rule of Civil Procedure 26(c)(1) provides a “party… from whom discovery is

8 sought may move for a protective order…. The motion must include a certification that the

9 movant has in good faith conferred or attempted to confer with other affected parties in an effort

10 to resolve the dispute without court action.” The Local Rules also require meet and confer efforts,

11 which may take place either prior to the filing of the motion or prior to the hearing on the motion.

12 See Local Rule 215(b).

13 Here, the County’s motion for a protective order includes a declaration by counsel

14 detailing meet and confer efforts undertaken by the parties prior to the filing of the motion for

15 protective order. (ECF No. 71-2.) It is additionally clear from the parties’ amended joint

16 statement that the County continued some meet and confer efforts because a further document

17 production was made on September 19, 2022. (See ECF No. 74 at 55.) Plaintiff does not specify

18 what meet and confer plaintiff believes the County failed to do. To any extent plaintiff may be

19 asserting the County did not inform plaintiff the protective order would be filed, or did not use the

20 technically correct language for a good faith certification, plaintiff neither specifies that is the

21 issue nor demonstrates the motion is procedurally deficient in light of the parties’ ongoing meet

22 and confer regarding this discovery dispute.

23 The court therefore proceeds by examining whether plaintiff described the noticed topics

24 with reasonable particularity, Fed. R. Civ. P. 30(b)(6), whether the County failed to prepare its

25 30(b)(6) designees on those topics, see Brazos River Auth., 469 F.3d at 433, whether plaintiff is

26 entitled to additional document production, and whether the County is entitled to the requested

27 protective order.

28 ////

1 B. Topics 9, 10, 11, 12 and 14 are set forth with reasonable particularity.

2 The deposition notice identified fifteen topics for the County to designate a witness or

3 witnesses to testify (“deposition topics”). Seven deposition topics are at issue in this motion.

4 Topic 9: The details of all care provided to Tony Cox by the County of San Joaquin,

5 including without limitation at San Joaquin General Hospital, on or around May 2, 2016,

6 including without limitation the individuals involved with any gurney transfer of Tony Cox.

7 Topic 10: The County of San Joaquin’s policies and procedures relevant to care provided

8 to Tony Cox by the County of San Joaquin, including without limitation at San Joaquin General

9 Hospital, including policies and procedures regarding transfers, including gurney transfers, for

10 patients with suspected spinal injuries.

11 Topic 11: The County of San Joaquin’s policies and procedures relevant to care provided

12 to Tony Cox by the County of San Joaquin, including without limitation at San Joaquin General

13 Hospital, including without limitation policies and procedures regarding gurney transfers, and,

14 specifically, gurney transfers for patients with suspected spinal injuries.

15 Topic 12: All training required for and/or provided to the individuals at San Joaquin

16 General Hospital who undertook care of Tony Cox regarding gurney transfers, and, specifically,

17 gurney transfers for patients with suspected spinal injuries.

18 Topic 13: All complaints, internal or external, lawsuits, or any other document of an

19 injury claimed to be related to a gurney transfer at San Joaquin General Hospital from 2011 to the

20 present.

21 Topic 14: The names, job titles when attending to Tony Cox, and contact information of

22 all individuals who provided care to Tony Cox at San Joaquin Medical Center, including without

23 limitations, doctors, nurses, orderlies, and any other care providers.

24 Topic 15: The factual basis for each and every affirmative defense pleaded by the County

25 of San Joaquin in its operative Answer in this matter.

26 (ECF No. 74-1 at 9-10.)

27 The County made various objections to the deposition topics. (ECF No. 74-1, Exhibit 3.)

28 Through meet and confer, the parties reached a further understanding as to Topic 9, that

1 plaintiff’s counsel was looking for information about plaintiff’s treatment in the emergency

2 department on May 2, 2016. (ECF No 74 at 44.)

3 The court finds that plaintiff’s topics 9, 10, 11, 12 and 14 meet the requirements of Rule

4 30(b)(6) without a need for further analysis. Topics 13 and 15 are addressed separately below.

5 B. An order compelling witness designation is appropriate for Topic 13.

6 Topic 13 addresses other complaints, lawsuits, and documentations of injuries claimed to

7 be related to gurney transfers at SJGH from 2011 to the present. Plaintiff argues this information

8 is relevant because it goes to the County’s notice as to the possibility of injury in connection with

9 how he was treated at the hospital on that particular day. (ECF No. 74 at 39.)

10 The County argues other claims unrelated to plaintiff are “clearly not relevant and not

11 within the scope of discovery allowed by Federal Rule of Civil Procedure 26(b)(1).” (ECF No. 74

12 at 50.) And further:

13 This category is overbroad and irrelevant and it is quite foreseeable

that plaintiff’s counsel will attempt to push beyond the limits of

14 permissible and reasonable discovery. This category also contains

many items that are protected from discovery. This claim against the

15 County is a state law medical negligence claim and all of the state

laws protecting documents, such as Evidence Code Section 11572

16 apply to this category. Any lawsuits against the County are public

record and equally available to plaintiff.

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18 (Id.) In amended argument, the County reasserts that the request lacks relevancy and adds that

19 plaintiff made no effort to meet and confer to limit the scope of this request (Id.)

20 The County fails to meet its burden of showing the discovery should be prohibited by

21 clarifying, explaining or supporting valid objections. First, the County provides no legal

22 authorities or argument in support of an assertion that other incidents unrelated to plaintiff are

23 outside the scope of discovery. While past negligence or claimed negligence cannot be used to

24 establish negligence in this case, see Fed. R. Evid. 404, this type of information could show the

25 County was aware of specific risks, as relevant to the negligence claim. See generally, e.g.,

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2 Section 1157 of the California Evidence Code is a state-law medical peer review committee

27 privilege, and provides, generally, that proceedings and records of hospital medical staffs

concerned with evaluation and improvement of the quality of care in the hospital shall not be

28 subject to discovery. See Cal. Evid. Code § 1157. (ECF No. 74 at 50.)

1 Mcswain v. United States, No. 2:15-cv-01321-GMN-GWF, 2016 WL 4530461, at *6 (D. Nev.

2 Aug. 30, 2016) (“Certainly, prior incidents involving the subject dog and TSA trainer would be

3 relevant to the issue of negligence.”); Phillips v. C.R. Bard, Inc., No. 3:12-CV-00344-RCJ, 2015

4 WL 260873, at *5 (D. Nev. Jan. 21, 2015) (“Failures of any kind causing injury occurring before

5 the incident here are relevant to Defendants’ knowledge of the risk of harm to Plaintiff and thus to

6 whether they exercised due care.”). Second, the County fails to show the topic is inappropriate

7 simply because it involves items claimed to be protected from discovery. “[I]t is simply no

8 answer to a 30(b)(6) deposition notice to claim that relevant documents or investigations are

9 privileged and that therefore no knowledgeable witness can be produced.” Wilson v. Lakner,

10 M.D., 228 F.R.D. 524, 529 (D. Md. 2005); see also, generally A. Farber & Partners, Inc. v.

11 Garber, 234 F.R.D. 186, 192 (C.D. Cal. 2006) (like the attorney-client privilege, a party claiming

12 work product immunity has the burden of proving the applicability of the doctrine). Simply

13 referencing the existence of California Evidence Code § 1157 falls far short of demonstrating that

14 privilege bars the discovery plaintiff seeks. See, e.g., Wilson v. Lakner, M.D., 228 F.R.D. 524,

15 529 (D. Md. 2005) (hospital sued for malpractice could not avoid its discovery obligations by

16 claiming that relevant documents or investigations were subject to either attorney work-product

17 or state-law medical peer review committee privilege; hospital was required to provide

18 knowledgeable fact witness for deposition even if preparation required tracking of same

19 investigative ground that counsel and peer review committee had traversed). Third, the County

20 has not provided a declaration or any other evidence demonstrating that finding this information

21 and preparing a witness accordingly would be unduly burdensome.

22 At the hearing on this matter, County counsel stated the County had refused to designate a

23 witness on this topic without some narrowing of its scope. The undersigned is inclined to grant

24 plaintiff’s motion as to Topic 13 and compel the County to designate a witness on this topic as it

25 was noticed. However, the parties shall meet and confer forthwith on their dispute as to Topic 13

26 and attempt to resolve the dispute. To any extent the County continues to assert in good faith that

27 preparing a witness to testify on the full topic as noticed would be an undue burden, and to any

28 extent that plaintiff does not agree to reduce the scope accordingly, the undersigned will be

1 available for an informal telephonic conference. The parties are directed to the undersigned’s case

2 management procedures for informal telephonic conferences on discovery disputes, available on

3 the court’s website.

4 C. Topic 15 is overbroad and otherwise inappropriate.

5 Plaintiff is not entitled to have a witness designated on Topic 15 regarding the factual

6 basis for each and every affirmative defense pleaded by the County. A recipient of a Rule

7 30(b)(6) request is “not required to have its counsel muster all of its factual proof and prepare a

8 witness to be able to testify on a given defense our counterclaim.” In re Indep. Serv.

9 Organizations Antitrust Litig., 168 F.R.D. 651, 654 (D. Kan. 1996) (internal quotation marks

10 omitted). Such a deposition topic is “overbroad, inefficient, and unreasonable.” Id. This rule holds

11 especially true when the information sought was likely discoverable from other sources. Id.

12 (citing E.E.O.C. v. HBE Corp., 157 F.R.D. 465, 466-67 (E.D. Mo. 1994)).

13 D. Were the 30(b)(6) designees inadequately prepared?

14 1. Topic 9 Regarding Details of Plaintiff’s Care on May 2, 2016

15 As to Topic 9, regarding the details of plaintiff’s care on May 2, 2016, the County

16 produced Dr. Willet to give a physician’s assessment of plaintiff’s care in the emergency

17 department and produced Ms. Bonjoc to give a nursing assessment of plaintiff’s care in the

18 emergency department. (ECF No. 74 at 45.)

19 Plaintiff argues Dr. Willet and Ms. Bonjoc were unprepared in two ways primary ways:

20 (1) the witnesses did not speak to any individuals treating plaintiff,

even though “several knowledgeable witnesses” were identified in

21 the objection to plaintiff’s deposition notice, such as Abdul Alim RN,

Denisha Felton, Veela Lymul, Jerry Metzler, and Bjorn Lobo

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(2) the witnesses did not review complete administrative, medical

23 records, or communications by the County and its staff regarding

Plaintiff’s care.

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25 (ECF No. 74 at 43.)

26 Plaintiff argues the witnesses were unprepared because they only had knowledge of

27 plaintiff’s care from the medical chart. The County responds that “the only information known to

28 the County regarding the care and treatment of plaintiff is contained in the medical record.” (ECF

1 No. 74 at 44.) The County represents that both designees “had reviewed and had access to the

2 records from the emergency department.” (Id. at 45.) The County seeks a protective order

3 preventing further deposition testimony on these topics. (Id. at 45-46.)

4 Specific to the gurney transfer(s) at issue, Ms. Bonjoc testified there is no documentation

5 in the medical chart regarding a gurney transfer because this is not something usually documented

6 in the medical chart. (ECF No. 74 at 46.) Both Ms. Bonjoc and Ms. Barnes testified there is no

7 way to determine who performed the gurney transfer when plaintiff was taken for the MRI. (Id.)

8 The County must prepare its designees with information known or reasonably available.

9 Brazos River Auth., 469 F.3d at 433. For example, under Rule 30(b)(6), the responding party

10 “must prepare deponents by having them review prior fact witness deposition testimony as well

11 as documents and deposition exhibits.” Adidas Am., Inc. v. TRB Acquisitions LLC, 324 F.R.D.

12 389, 394-95 (D. Or. 2017).

13 Here, plaintiff identifies no prior deposition testimony or specific documents that Dr.

14 Willet and Ms. Bonjoc failed to review pertaining to plaintiff’s care. Plaintiff also does not

15 identify any specific questions that Dr. Willet and Ms. Bonjoc were demonstrably unprepared to

16 answer about the care provided to plaintiff on May 2, 2016, including relating to any gurney

17 transfers. In addition, plaintiff’s counsel declined the court’s suggestion by made by order issued

18 prior to the amended joint statement (see ECF No. 73 at 2-3) and at the hearing to explain why a

19 further deposition rather than limited additional written discovery requests were needed to obtain

20 more information about the County’s preparation of its designees. Plaintiff simply maintains he is

21 entitled to test whether “the chart is literally all the County knows about the care provided to Mr.

22 Cox” through a further deposition of the County’s designee. (ECF No. 74 at 43.)

23 However, plaintiff fails to explain what other information could potentially be

24 forthcoming from further witness designation and testimony.3 In the court’s view, the crux of

25 plaintiff’s issue at to Topic 9 is not witness preparation, but rather, the depth of the County’s

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3 At the hearing on this matter, plaintiff’s counsel expressed concern about the possibility of

27 surprise witnesses at trial, presumably in the form of some hospital employee not previously

disclosed. The remedy for such a concern lies in the filing of a pretrial motion seeking to exclude

28 such evidence.

1 knowledge. To the extent plaintiff argues the designees were inadequately prepared because they

2 had not spoken to the five individuals identified in the County’s objection to the deposition notice

3 (see ECF No. 74 at 42-43), the court is unable to conclude that these individuals or any other

4 individuals at the hospital had information relevant to the County’s position, other than what is in

5 the emergency chart, such that the County’s designees on this topic were not adequately prepared.

6 Considering all these factors, plaintiff has failed to substantiate a need for the County to

7 redesignate a Rule 30(b)(6) witness to be deposed further on this topic.

8 2. Topics 10, 11, and 12 regarding Training, Policies and Procedures4

9 Topics 10, 11, and 12 involve SJGH’s policies and procedures and training of its

10 employees. Plaintiff argues these topics are relevant to whether the County’s staff met the

11 requisite standard of care. (ECF No. 74 at 39.)

12 As to these topics, the County produced Ms. Barnes, who has been the assistant

13 department manager of the emergency department and a staff nurse for 20 years. (ECF No. 74 at

14 45, 49.) Ms. Barnes testified she had not reviewed any written policies and procedures in advance

15 of the deposition but knew “the general spirit of them” from her 20 years of experience in the

16 emergency department, serving as the educator and/or the manager and having been involved in

17 every aspect of patient care. (Id. at 19.) As to training, Ms. Barnes testified each staff member

18 receives orientation training on how to transfer a patient from one gurney to another; this is “on

19 the job” training for which there is no written documentation. (Id. at 49.)

20 Plaintiff argues Ms. Barnes was unprepared because she “talked to nobody at the Hospital

21 at all and reviewed no documents, including the written policies and procedures[.]” (ECF No. 74

22 at 17.) The County responds that there is no policy specific to gurney transfers. (Id. at 47.) Ms.

23 Barnes testified the County does not have a specific policy pertaining to gurney transfers and that

24 gurney transfers are performed by whatever staff is available. (Id. at 49.) Since gurney transfers

25 are not documented in the chart, the County has no way of determining who performed the

26 gurney transfer when plaintiff was taken for an MRI. (Id.) The County seeks a protective order as

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4 Topics 10 and 11 regarding the County’s policies and procedures are related to document

28 production Schedule Item No. 3, discussed below.

1 to these topics on the ground that there are no written policies relevant to plaintiff’s claims that

2 have not been provided and a qualified and prepared witness was already produced who answered

3 all questions asked. (Id. at 48.)

4 Plaintiff’s portion of the amended joint statement does not respond substantively to the

5 County’s arguments regarding Topics 10, 11 and 12, even though the parties were previously

6 cautioned that “the [initial] Joint Statement lacks meaningful responses to the specific arguments

7 raised by the opposing sides.” (ECF No. 73 at 1-2.) Although Ms. Barnes did not talk to other

8 people at the hospital to prepare and did not review the hospital’s written policies and procedures

9 prior to the deposition, plaintiff fails to show that these alleged omissions rendered her

10 unprepared and unable to answer questions. Plaintiff fails to substantiate a need for the County to

11 redesignate a Rule 30(b)(6) witness for further deposition testimony on Topics 10, 11, or 12.

12 3. Topic 14 Regarding Plaintiff’s Care Providers at SJGH

13 Topic 14 involves “The names, job titles when attending to Tony Cox, and contact

14 information of all individuals who provided care to Tony Cox at San Joaquin Medical Center,

15 including without limitations, doctors, nurses, orderlies, and any other care providers.”

16 The County argues this information has been provided in multiple formats, including the

17 medical chart which has been in plaintiff’s possession since March 2020, and which was provided

18 to plaintiff again on August 30, 2022. (ECF No. 74 at 51.) The County argues plaintiff has made

19 no effort to meet and confer on this category and that there is no reason to require the County to

20 produce a deponent on this category. (Id.)

21 Plaintiff argues, generally, that the County must produce adequately prepared witnesses

22 even though the County contends that the documents state its position. (ECF No. 74 at 40.)

23 Otherwise, plaintiff’s portion of the amended joint statement makes no argument specific to

24 Topic 14 and does not clearly respond to the County’s arguments specific to Topic 14, even

25 though the parties were previously cautioned that “the [initial] Joint Statement lacks meaningful

26 responses to the specific arguments raised by the opposing sides.” (ECF No. 73 at 1-2.)

27 As argued by plaintiff, the simple fact that information can be obtained by other means of

28 discovery does not prohibit a 30(b)(6) deposition. See Murphy v. Kmart Corp., 255 F.R.D. 497,

1 506–07 (D. S.D. 2009) (“Producing documents and responding to written discovery is not a

2 substitute for providing a thoroughly educated Rule 30(b)(6) deponent.”). That said, plaintiff’s

3 deposition notice, just like other discovery requests, is subject to the proportionality principle that

4 underlies all civil discovery. See Fed. R. Civ. P. 26(b)(1). The scope of discovery is not

5 unlimited. A court may limit discovery when “the discovery sought is unreasonably cumulative or

6 duplicative, or can be obtained from some source that is more convenient, less burdensome, or

7 less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i).

8 Plaintiff does not attempt to show that compelling the County to designate a Rule 30(b)(6)

9 witness on Topic 14 at this point would not be cumulative of other discovery already received.

10 Plaintiff also fails to explain what further Rule 30(b)(6) testimony could possibly reveal regarding

11 the identify of plaintiff s care providers at SJGH. For these reasons, the court finds plaintiff has

12 failed to substantiate a need for the County to designate a Rule 30(b)(6) witness to be deposed on

13 Topic 14 because the discovery sought is unreasonably cumulative or duplicative.

14 E. Documents

15 The January 21, 2022 deposition notice included multiple requests for production of

16 documents. Four schedule items remain at issue and are addressed individually below.

17 1. Schedule Item No. 1

18 Schedule Item No. 1: The ORIGINAL RECORDS of any writings regarding Tony Cox,

19 including, but not limited to, medical and psychosocial records or chart notes, lab tests, x-rays,

20 reports, correspondence, office records, office charts, billing and accounting records, consultation

21 records, contracts, written admission agreements, and all other manner of DOCUMENTS (for

22 purposes of this PMQ notice and the request for documents sought herein, the term

23 “DOCUMENTS” shall mean any writing or tangible thing from which data or information can be

24 obtained or translated [if necessary, through detection devices into usable form]) pertaining to

25 Tony Cox.

26 Plaintiff argues the County’s boilerplate objections to plaintiff’s schedule items were

27 insufficient. (ECF No. 74 at 53.) The County responds that plaintiff was provided a copy of

28 plaintiff’s entire medical chart from SJGH in March 2020 and the same medical chart was

1 provided again in August 2022. (Id. at 54.)

2 Plaintiff does not indicate there are any specific documents the County has not produced

3 in response to Schedule Item No. 1 or otherwise make any attempt to explain why plaintiff

4 believes there are additional documents. An implied argument that the County may possibly be

5 withholding additional documents fails to demonstrate the kind of substantive deficiency

6 necessary for the court to compel further search or production. Plaintiff’s mere suspicion that

7 additional documents exist is insufficient to compel further search or production. See Lugo v.

8 Fisher, No. 1:19-cv-0039-NONE-SAB, 2020 WL 2770074, at *2 (E.D. Cal. May 28, 2020) (in

9 the absence of legal or fact-based substantive deficiencies, a party is required to accept responses

10 that are facially legally sufficient).

11 2. Schedule Item No. 3 (also described as Schedule Item No. 4)5

12 Schedule Item No. 3: All policy and procedure manuals in effect at YOUR FACILITY

13 during the residency of Tony Cox.

14 Plaintiff states the County has continually asserted there are no responsive documents to

15 this Schedule item, yet Ms. Barnes confirmed at her deposition that SJGH has written policies and

16 procedures. (ECF N. 74 at 53.)

17 The County argues that requiring production of every policy and procedure within the

18 hospital is unreasonable and overly burdensome. (ECF No. 74 at 54.) The County represents that

19 through meet and confer, it was clarified that plaintiff sought policies related to gurney transfers

20 through this request, and two witnesses have testified that the hospital does not have a written

21 policy pertaining to gurney transfers. (Id. at 54-55.) One policy entitled “spinal assessment and

22 treatment” was located and provided to plaintiff. (Id. at 44.)

23 Plaintiff fails to respond to the County’s representation about the parties’ meet and confer

24 regarding the scope of policies sought, even though both parties were previously warned that the

25 initial briefing filed “lack[ed] meaningful responses to the specific arguments raised by the

26 opposing sides.” (ECF No. 73 at 2.) Plaintiff makes no argument in support of requiring the

27

5 Plaintiff identifies the schedule item seeking policy and procedure manuals as Schedule Item

28 No. 4, but it is Schedule Item No. 3 in the deposition notice. (See ECF No. 74-1 at 13.)

1 County to produce all policy and procedure manuals. Plaintiff fails to demonstrate that further

2 production should be compelled as to this schedule item.

3 The court will separately address a trauma policy mentioned by plaintiff’s counsel at the

4 hearing on this matter. Plaintiff’s counsel identified a trauma policy as one of the policies the

5 County has not produced. County counsel responded with the County’s view that a trauma policy

6 was not produced because, in the County’s view, the hospital’s trauma policies do not have

7 relevance to gurney transfers. Nowhere in plaintiff’s argument of the amended joint statement did

8 plaintiff clearly raise the issue of a trauma policy not having been produced.6 A party’s insistence

9 that relevant documents have not been produced, without specific, factual argument in support

10 thereof, does not assist the court to discern whether any relief is warranted. Moreover, the

11 undersigned is inclined to believe that adequate meet and confer efforts regarding trauma policies,

12 specifically, would have resulted in their production. Nevertheless, the court will order the

13 County to produce copies of all trauma policies referenced by Ms. Barnes in her deposition.

14 3. Schedule Item Nos. 6 & 9 (also described as Schedule Item Nos. 7 & 10)7

15 Schedule Item No. 6: All DOCUMENTS of any kind, regardless of title, that identify,

16 memorialize or in any way relate to the hours worked by YOUR employees during any and all

17 dates of Tony Cox’s stay at YOUR FACILITY.

18 Schedule Item No. 9: All DOCUMENTS showing the hours worked by all employees at

19 YOUR FACILITY during any and all dates of Tony Cox’s stay. (ECF No. 74 at 8.)

20 The County’s initial response was that it conducted a reasonable search, and no responsive

21 documents were found. (Id. at 8.)

22 ////

23

24 6 The only mention of a trauma policy the court finds in the amended joint statement is within a

four-page reproduction of the deposition testimony of Ms. Barnes. (See ECF No. 74 at 21.) This

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did not adequately inform the court that plaintiff was taking a position that the trauma policy was

a relevant policy that should have been produced.

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27 7 Various portions of the amended joint statement identify these schedule items as No. 7 and No.

10, but they are Schedule Item No. 6 and Schedule Item No. 9 in the deposition notice. (See ECF

28 No. 74-1 at 13.)

1 As to Schedule Items No. 6 and No. 9, plaintiff argues the County’s boilerplate objections

2 are insufficient. (ECF No. 74 at 53.) The County responds that it conducted a search, and on

3 September 7, 2022, produced a work schedule for Dr. Willet for hours worked on May 2, 2016.

4 (Id. at 55.) The County further represents that in continuing efforts to meet and confer, it searched

5 off site storage and found and produced staff schedules for the emergency department on May 2,

6 2016, consisting of three pages with the names of the employees who were scheduled to work.

7 (Id.) The County produced these additional documents on September 19, 2022. (Id.)

8 Plaintiff’s portion of the amended joint statement again does not address the County’s

9 arguments and does not indicate there are any additional documents plaintiff believes the County

10 has not produced in response to Schedule Item No. 6 and No. 9. Under these circumstances,

11 plaintiff fails to demonstrate that further production should be compelled as to these schedule

12 items.

13 F. Protective Order

14 To the extent the County requests a protective order based on its representation of the

15 behavior of plaintiff’s counsel at the prior depositions, the motion is denied. For the reasons set

16 forth above, the County’s motion for a protective order will be granted in part and denied in part.

17 G. Request for Sanctions

18 Pursuant to Federal Rule of Civil Procedure 37(a)(5), when the court grants a motion to

19 compel, it must require the party whose conduct necessitated the motion to pay the moving

20 party’s reasonable expenses incurred in making the motion, unless, as pertinent here, the

21 opposing party’s nondisclosure, response, or objection was substantially justified or other

22 circumstances make an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(ii), (iii). Here, the

23 court grants only a small part of plaintiff’s motion and declines to award expenses related to the

24 motion at this time because almost all of the issues raised by plaintiff were subject to legitimate

25 dispute. If, however, the County fails to comply with the court’s order compelling further meet

26 and confer and further document production, then plaintiff is not precluded from seeking

27 sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2).

28 ////

1 | IV. ORDER

2 In accordance with the above, IT IS HEREBY ORDERED that:

3 1. Plaintiffs motion to compel (ECF No. 72) is GRANTED in part and DENIED in part,

4 | as follows:

5 a. GRANTED as to Topic 13 of the January 21, 2022 Rule 30(b)(6) deposition

6 notice, in that the parties shall meet and confer forthwith on their dispute as to Topic 13

7 and attempt to resolve the dispute; to any extent the County continues to assert in good

8 faith that preparing a witness to testify on the full topic as noticed would be an undue

9 burden, and to the extent that plaintiff does not agree to reduce the scope, the undersigned

10 will be available for an informal telephonic conference.

11 b. GRANTED as to the Schedule Item No. 3 in that the County shall produce

12 copies of all trauma policies referenced by Ms. Barnes during her deposition within 7 days

13 of the date of this order.

14 c. DENIED in all other respects.

15 2. The County of San Joaquin’s motion for a protective order (ECF No. 71) is

16 | GRANTED in part except as set forth above regarding Topic 13 and Schedule Item No. 3.

17 3. Plaintiff's request for attorney fees and costs related to the preparation and filing of the

18 || motion to compel is DENIED.

19 | Dated: September 29, 2022 / □□□ / 4 ly a

20 CAROLYNK. DELANEY

21 UNITED STATES MAGISTRATE JUDGE

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23 || 8.Cox17cev0989.30b6

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