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1 2 3 4 5 6 DAVID F. JADWIN. D.O., 7 Plaintiff, 8 vs. 9 JENNIFER ABRAHAM, etc. et al., 10 Defendants. 11 ____________________________________/ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 1:07-cv-00026-OWW-TAG ORDER DENYING REQUEST FOR APPOINTMENT OF SPECIAL MASTER ORDER ON STIPULATIONS REGARDING DEPOSITIONS
On August 21, 2008, Plaintiff filed a letter “request” for protective orders, sanctions, and an order compelling answers to questions posed by Plaintiff’s counsel at two August 19, 2008 depositions. (Doc. 202). On August 21, 2008, the Court conducted a conference regarding the disputes. (Docket entry 206). Attorney Eugene Lee appeared telephonically on behalf of Plaintiff. Attorney Mark Wassser appeared telephonically on behalf of Defendants. The parties argued the discovery disputes, agreed to the dates and remaining durations of four reconvened depositions and the dates of PMK1 depositions, and Defendant requested an order appointing a discovery referee to supervise depositions. The Court ruled upon the deposition disputes, accepted the parties’ stipulations, construed the request for appointment of a discovery referee as a request for a special master, and took the latter under submission. On August 22, 2008, the Court issued a written ruling regarding the request for protective orders, sanctions, and an order compelling answers to questions posed at the depositions. (Doc. 207). The Court also proposed to appoint attorney Kenneth M. Byrum as special master to supervise depositions, and directed the parties to file their responses and to suggest any other candidates for
Person most knowledgeable. Fed.R.Civ.P. 30(b)6).
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appointment by August 27, 2008. (Id.). On August 27, 2008, Defendants responded that they did not object to the proposed appointment. (Doc. 210). On August 27, 2008, Plaintiff objected to the proposed appointment and suggested two candidates to serve as special master. (Doc. 212). The Court has considered the parties’ responses to the proposed appointment of a special master and makes the following additional orders. 1. Request for appointment of a special master Rule 53 of the Federal Rules of Civil Procedure authorizes the appointment of a special master when the parties consent. Fed.R.Civ. P. 53(a)(1)(A). Rule 53 also authorizes the appointment of a special master if warranted by certain conditions to “hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury” and “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed.R.Civ.P. 53 (a)(1)(B), (C). The appointment of a special master is appropriate where the parties require close supervision and when conduct during discovery warrants it. See Good Stewardship Christian Center v. Empire Bank, 341 F. 3d 794, 797-798 (8th Cir. 2003); National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 560-561 (N.D. Cal. 1987); Fisher v. Harris, Upham & Co., 61 F.R.D. 447, 449 (S.D.N.Y. 1973). A. Deposition conduct The type of discovery conduct that warrants the appointment of a special master includes conduct that creates an ongoing environment of discourtesy during depositions to the degree that a supervisor is required to directly oversee and rule on objections during depositions in order to assure that the case will proceed in a speedy, efficient, and economic fashion. Moreland v. State Farm Mutual Automobile Insurance Co., 2007 WL 1033453 (D. Colo. April 3, 2007). That is precisely the type of conduct that has occurred in the instant case. Here, discovery disputes interrupted nearly every deposition, and generated numerous telephone, email, and letter requests from counsel requesting judicial intervention during the proceedings. The deposition transcripts provided to the Court to date reflect needless interruptions, vexatious quibbling, improper objections, discourteous statements, inappropriate behavior, and numerous arguments and colloquies between counsel that 2
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have delayed testimony. It is for those reasons that the Court initially deemed the case suitable for the appointment of a special master. B. Status of the case The conduct that warrants the appointment of a special master in this case occurred at the end of the discovery period. The discovery cut-off and non-dispositive motion deadlines have expired. (Docs. 149, 209). The parties stipulated to conduct expert and PMK depositions after the discovery cutoff; those depositions were ordered to be completed by September 5, 2008. (Doc. 198). Seventeen other depositions were ordered to be completed by August 25, 2008. (Doc. 194). On
August 22, 2008, the Court granted Plaintiff’s request to reconvene two of those depositions, i.e., the depositions of Ms. Antoinette Smith and Ms. Barbara Patrick. (Doc. 207). On August 21, 2008, the parties stipulated to reconvene four others2 by August 27, 2008, and agreed that the PMK depositions would commence on August 28, 2008. Unless the depositions of Ms. Smith and Ms. Patrick have been completed since August 21, 2008, it appears that they may be the only depositions left. The Court also notes that two discovery motions were filed on September 2, 2008, including a motion to reconvene an unspecified number of depositions. (Docs. 215, 216). C. Possible expense or delay The Court has considered the possible expense or delay occasioned by the use of a special master. Attorney Byrum charges $300 per hour. (Doc. 207-2). No information has been provided regarding the fees, availability, or qualifications of the other special master candidates. Attorney Byrum is available to serve as special master to supervise depositions and is not disqualified. There is no indication that appointment of a special master to supervise depositions will delay the proceedings, other than the delay inherent in the mechanics of an appointment. D. Benefit of special master at this stage of the case The Court has also considered the benefits of a special master to supervise depositions at this stage of the case. The pending motion to reconvene depositions has not been briefed, heard, or decided, and thus is not a weighty factor in this analysis. Based on the discovery orders to date, and
The depositions of Mr. Peter Bryan, and Drs. Irwin Harris, Maureen Martin, and Royce Johnson.
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the parties’ most recent stipulations, it appears that there may be only two uncompleted depositions. If that is indeed the case, then the benefit of a special master to supervise two depositions is marginal. Moreover, the Court notes that since the request for appointment of a special master was made on August 21, 2008, the informal telephone, email, and letter requests from counsel requesting judicial intervention during depositions have ceased. The Court interprets this development as an indication that the needless interruptions, vexatious quibbling, discourteous statements, inappropriate behavior, and arguments and colloquies between counsel that occurred at prior depositions may also have ceased, or perhaps at least diminished to the point where it does not interfere with the testimony. E. Conclusion and order Based on the foregoing, the Court concludes that a special master is not required at this time. Defendants’ request for appointment of a special master to supervise depositions is denied. The Court may revisit the issue of a special master to supervise depositions after the pending discovery motions have been heard and decided. 2. Stipulations regarding depositions At the August 21, 2008 hearing, the parties stipulated that (1) the deposition of Dr. Royce Johnson would reconvene on August 26, 2008 with a two-hour time limit; (2) the deposition of Dr. Irwin Harris would reconvene on August 27, 2008 with a two-hour time limit; (3) the deposition of Dr. Maureen Martin would reconvene on August 27, 2008 with a two-hour and twenty-two minute time limit; and (4) the deposition of Mr. Peter Bryan would reconvene on August 27, 2008 with a one-hour time limit. Finally, the parties also agreed that PMK depositions would commence on August 28, 2008. The Court accepts the parties’ foregoing stipulations and makes them an order of the Court.
IT IS SO ORDERED. Dated: September 5, 2008 j6eb3d /s/ Theresa A. Goldner UNITED STATES MAGISTRATE JUDGE