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Frazier v. United States

United States District Court, N.D. Indiana, Fort Wayne Division

October 23, 2019

UNITED STATES OF AMERICA, Department of Veterans Affairs, Defendant.



         Before the Court is Defendant's Motion for a Protective Order (ECF 16) and an accompanying memorandum in support thereof (ECF 17) filed on August 15, 2019. Specifically, Defendant seeks an order from this Court precluding Plaintiff from taking a proposed deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) on the grounds that the deposition would (1) exceed the limitations to discovery agreed to by the parties, and (2) would be excessively burdensome and irrelevant. (ECF 17). Plaintiff filed a response contending that the requested deposition is within the agreed bounds of discovery, would be relevant to resolving anticipated dispositive motions, and, in any event, is not unduly burdensome. (ECF 19). On September 3, 2019, Defendant filed its reply. (ECF 20). As such, the issue is fully briefed, and ripe for a ruling.

         For the following reasons, the Court agrees with Plaintiff that the proposed 30(b)(6) deposition is within the scope of discovery, relevant, and not unduly burdensome. Accordingly, Defendant's motion for a protective order (ECF 16) is DENIED.

         A. Background

         On January 17, 2019, Plaintiff filed the present case against the United States, alleging that Dr. Bradley R. Hammersley, a podiatrist formerly employed by the Veterans Administration Northern Indiana Health Care System, committed medical malpractice against him. Because the Veterans Administration of Northern Indiana Healthcare System is a part of the Department of Veterans Affairs (VA), Plaintiff is seeking to hold Defendant vicariously liable for Dr. Hammersley's alleged medical malpractice under the Federal Torts Claims Act (FTCA). (ECF 1). Plaintiff's suit is one of many similar actions alleging medical malpractice by Dr. Hammersley currently pending before the Court.[1]

         The parties met pursuant to Federal Rule of Civil Procedure 26(f), and filed a Report of Parties Planning Meeting, which included a proposed discovery plan. (ECF 10). Because the issue of when Plaintiff's malpractice claim accrued may preclude recovery due to the FTCA's two-year statute of limitations, the parties agreed to limit discovery to the “statute of limitations issue first.” (ECF 10 at 3) (emphasis in original). The plan also notes, though, that Plaintiff sought to at some point conduct discovery as to whether Defendant engaged in “fraudulent concealment, ” which could trigger equitable tolling of the statute of limitations. (ECF 10 at 3-4). The Court subsequently adopted the discovery schedule set out under the plan during the parties' Rule 16 preliminary pretrial conference. (ECF 15). According to the parties' discovery plan, they anticipate filing dispositive motions on the statute of limitations issue once the depositions of Plaintiff and Dr. Hammersley regarding the statute of limitations issue has been completed. (ECF 10 at 4). All other discovery on the merits of Plaintiff's claim is postponed until after the discovery on the statute of limitations issue is complete. (Id.).

         On June 12, 2019, Plaintiff forwarded a proposed Rule 30(b)(6) Notice of Deposition for the United States Department of Veteran Affairs requesting Defendant appoint a representative to be prepared to testify about and produce documents regarding thirty-nine topics concerning Dr. Hammersley's employment with and termination from the VA. Broadly, Plaintiff is seeking through the deposition: (1) Dr. Hammersley's VA employment history; (2) the identity of individuals involved in Dr. Hammersley's management, supervision, employment, and termination; (3) the identity of individuals who may have reviewed or raised concerns regarding Dr. Hammersley's work as a podiatrist; (4) the dates that such concerns or suspicions were brought to Dr. Holly Becker and the dates that Dr. Becker was assigned to, and actually began to, review the care provided by Dr. Hammersley; (5) the dates regarding any review of Dr. Hammersley's work and the identity of any person who performed such review; (6) the date of Dr. Hammersley's termination; (7) the identity of any individual who was interviewed or who sent or received documents concerning Dr. Hammersley as part of an internal or external investigation; (8) any hierarchical or disciplinary information concerning the hospitals where Dr. Hammersley worked; and (9) any and all documentation or communication concerning the same. (ECF 17-1).

         Defendant argues, in part, that these topics are not relevant to the issue of when Plaintiff's injury accrued for the purposes of the statute of limitations, and therefore should not be subject to discovery. (ECF 17 at 2). Specifically, Defendant argues that the agreement to limit the discovery to the statute of limitations was meant to limit discovery first to the accrual date of Plaintiff's claim and only subsequently to issues relating to equitable tolling. (ECF 17). Therefore, any discovery as to equitable tolling of the statute of limitations should not be addressed until discovery regarding the accrual date is complete. (ECF 17 at 2). Plaintiff in turn argues that the “statute of limitations” issue necessarily includes the equitable tolling issue, and that precluding discovery on the equitable tolling issue would only delay the case and the filing of any dispositive motions. (ECF 19 at 4).

         Defendant also argues, in the alternative, that even if the topics identified in the proposed notice are within the agreed scope of discovery, the request is overly burdensome. In support of its position, Defendant notes that it has begun compiling emails and documents and has found over 4.4 million responsive documents to Plaintiff's request.[2] (ECF 17 at 8-9). At the very least, Defendant suggests that the same information can be gained through less labor-intensive forms of discovery, such as requests for production or interrogatories. (ECF 17 at 7-8). Plaintiff in response notes that Defendant has not specifically stated what would be burdensome about producing the material it has already begun to compile, and that any other type of discovery would necessarily require Defendants to compile and review the same material. (ECF 19 at 10).

         Finally, Defendant also argues that the information sought by Plaintiff is disproportionate to his needs and is not even relevant to the equitable tolling issue. (ECF 20 at 4-5). Regarding the relevancy of the requested material to the fraudulent concealment argument, Defendant contends that only information regarding “affirmative efforts by the VA directed toward plaintiff which might have persuaded plaintiff not to timely pursue an ‘accrued claim'” would be relevant. (Id. at 5).

         B. Applicable Law

         In general, “magistrate and district courts enjoy extremely broad discretion in controlling discovery.” Jones v. City of Elkhart, 737 F.3d 1107, 1115 (7th Cir. 2013). Similarly, “Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Ball Corp. v. Air Tech of Michigan, Inc., 329 F.R.D.

         599 (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)). Pursuant to Federal Rule of Civil Procedure 26(c)(1), “[t]he court may, for good cause issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .” This includes limiting the method and manner in which discovery is to be sought. See Olivieri v. Rodriguez, 122 F.3d 406, 409 (7th Cir. 1997) (finding that a district judge ordering a party to first use interrogatories before deposing the Chicago Public Schools superintendent was not an abuse of discretion). The party seeking the protective order bears the burden of showing good cause exists for the order. Johnson v. Jung, 242 F.R.D. 481, 483 (N.D. Ill. May 10, 2007). “Conclusory statements of hardship are not sufficient to carry this burden.” Id. (citations omitted). “To establish good cause under Rule 26(c), the courts have generally required specific examples of articulated reasoning, as opposed to stereotyped and conclusory statements.” Andrew Corp. v. Rossi, 180 F.R.D. 338, 341 (N.D. Ill. 1998) (internal citations and quotation marks omitted).

         Additionally, while a pretrial scheduling order under Federal Rule of Civil Procedure Rule 16 “should not be changed lightly[, ] . . . total inflexibility is undesirable. Fed.R.Civ.P. 16(e) advisory committee's note to 1983 amendment (citation omitted). “By not imposing any limitation on the ability to modify a pretrial order, the rule reflects the reality that in any ...

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