Sie sind auf Seite 1von 4

Case 1:07-cv-00026-OWW-TAG Document 221 Filed 09/05/2008 Page 1 of 4

1
2
3
4 UNITED STATES DISTRICT COURT
5 EASTERN DISTRICT OF CALIFORNIA
6
DAVID F. JADWIN. D.O., 1:07-cv-00026-OWW-TAG
7
Plaintiff, ORDER DENYING REQUEST FOR
8 APPOINTMENT OF SPECIAL MASTER
vs.
9 ORDER ON STIPULATIONS
JENNIFER ABRAHAM, etc. et al., REGARDING DEPOSITIONS
10
Defendants.
11
____________________________________/
12
13 On August 21, 2008, Plaintiff filed a letter “request” for protective orders, sanctions, and
14 an order compelling answers to questions posed by Plaintiff’s counsel at two August 19, 2008
15 depositions. (Doc. 202). On August 21, 2008, the Court conducted a conference regarding the
16 disputes. (Docket entry 206). Attorney Eugene Lee appeared telephonically on behalf of Plaintiff.
17 Attorney Mark Wassser appeared telephonically on behalf of Defendants. The parties argued the
18 discovery disputes, agreed to the dates and remaining durations of four reconvened depositions and
19 the dates of PMK1 depositions, and Defendant requested an order appointing a discovery referee to
20 supervise depositions. The Court ruled upon the deposition disputes, accepted the parties’
21 stipulations, construed the request for appointment of a discovery referee as a request for a special
22 master, and took the latter under submission.
23 On August 22, 2008, the Court issued a written ruling regarding the request for protective
24 orders, sanctions, and an order compelling answers to questions posed at the depositions. (Doc.
25 207). The Court also proposed to appoint attorney Kenneth M. Byrum as special master to supervise
26 depositions, and directed the parties to file their responses and to suggest any other candidates for
27
28 1
Person most knowledgeable. Fed.R.Civ.P. 30(b)6).
Case 1:07-cv-00026-OWW-TAG Document 221 Filed 09/05/2008 Page 2 of 4

1 appointment by August 27, 2008. (Id.). On August 27, 2008, Defendants responded that they did not
2 object to the proposed appointment. (Doc. 210). On August 27, 2008, Plaintiff objected to the
3 proposed appointment and suggested two candidates to serve as special master. (Doc. 212).
4 The Court has considered the parties’ responses to the proposed appointment of a special
5 master and makes the following additional orders.
6 1. Request for appointment of a special master
7 Rule 53 of the Federal Rules of Civil Procedure authorizes the appointment of a special
8 master when the parties consent. Fed.R.Civ. P. 53(a)(1)(A). Rule 53 also authorizes the
9 appointment of a special master if warranted by certain conditions to “hold trial proceedings and
10 make or recommend findings of fact on issues to be decided without a jury” and “address pretrial and
11 posttrial matters that cannot be effectively and timely addressed by an available district judge or
12 magistrate judge of the district.” Fed.R.Civ.P. 53 (a)(1)(B), (C). The appointment of a special
13 master is appropriate where the parties require close supervision and when conduct during discovery
14 warrants it. See Good Stewardship Christian Center v. Empire Bank, 341 F. 3d 794, 797-798 (8th
15 Cir. 2003); National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 560-561 (N.D. Cal.
16 1987); Fisher v. Harris, Upham & Co., 61 F.R.D. 447, 449 (S.D.N.Y. 1973).
17 A. Deposition conduct
18 The type of discovery conduct that warrants the appointment of a special master includes
19 conduct that creates an ongoing environment of discourtesy during depositions to the degree that a
20 supervisor is required to directly oversee and rule on objections during depositions in order to assure
21 that the case will proceed in a speedy, efficient, and economic fashion. Moreland v. State Farm
22 Mutual Automobile Insurance Co., 2007 WL 1033453 (D. Colo. April 3, 2007). That is precisely the
23 type of conduct that has occurred in the instant case. Here, discovery disputes interrupted nearly
24 every deposition, and generated numerous telephone, email, and letter requests from counsel
25 requesting judicial intervention during the proceedings. The deposition transcripts provided to the
26 Court to date reflect needless interruptions, vexatious quibbling, improper objections, discourteous
27 statements, inappropriate behavior, and numerous arguments and colloquies between counsel that
28
2
Case 1:07-cv-00026-OWW-TAG Document 221 Filed 09/05/2008 Page 3 of 4

1 have delayed testimony. It is for those reasons that the Court initially deemed the case suitable for
2 the appointment of a special master.
3 B. Status of the case
4 The conduct that warrants the appointment of a special master in this case occurred at the
5 end of the discovery period. The discovery cut-off and non-dispositive motion deadlines have
6 expired. (Docs. 149, 209). The parties stipulated to conduct expert and PMK depositions after the
7 discovery cutoff; those depositions were ordered to be completed by September 5, 2008. (Doc. 198).
8 Seventeen other depositions were ordered to be completed by August 25, 2008. (Doc. 194). On
9 August 22, 2008, the Court granted Plaintiff’s request to reconvene two of those depositions, i.e., the
10 depositions of Ms. Antoinette Smith and Ms. Barbara Patrick. (Doc. 207). On August 21, 2008, the
11 parties stipulated to reconvene four others2 by August 27, 2008, and agreed that the PMK depositions
12 would commence on August 28, 2008. Unless the depositions of Ms. Smith and Ms. Patrick have
13 been completed since August 21, 2008, it appears that they may be the only depositions left. The
14 Court also notes that two discovery motions were filed on September 2, 2008, including a motion to
15 reconvene an unspecified number of depositions. (Docs. 215, 216).
16 C. Possible expense or delay
17 The Court has considered the possible expense or delay occasioned by the use of a special
18 master. Attorney Byrum charges $300 per hour. (Doc. 207-2). No information has been provided
19 regarding the fees, availability, or qualifications of the other special master candidates. Attorney
20 Byrum is available to serve as special master to supervise depositions and is not disqualified. There
21 is no indication that appointment of a special master to supervise depositions will delay the
22 proceedings, other than the delay inherent in the mechanics of an appointment.
23 D. Benefit of special master at this stage of the case
24 The Court has also considered the benefits of a special master to supervise depositions at
25 this stage of the case. The pending motion to reconvene depositions has not been briefed, heard, or
26 decided, and thus is not a weighty factor in this analysis. Based on the discovery orders to date, and
27
2
The depositions of Mr. Peter Bryan, and Drs. Irwin Harris, Maureen Martin, and Royce Johnson.
28
3
Case 1:07-cv-00026-OWW-TAG Document 221 Filed 09/05/2008 Page 4 of 4

1 the parties’ most recent stipulations, it appears that there may be only two uncompleted depositions.
2 If that is indeed the case, then the benefit of a special master to supervise two depositions is
3 marginal. Moreover, the Court notes that since the request for appointment of a special master was
4 made on August 21, 2008, the informal telephone, email, and letter requests from counsel requesting
5 judicial intervention during depositions have ceased. The Court interprets this development as an
6 indication that the needless interruptions, vexatious quibbling, discourteous statements, inappropriate
7 behavior, and arguments and colloquies between counsel that occurred at prior depositions may also
8 have ceased, or perhaps at least diminished to the point where it does not interfere with the
9 testimony.
10 E. Conclusion and order
11 Based on the foregoing, the Court concludes that a special master is not required at this
12 time. Defendants’ request for appointment of a special master to supervise depositions is denied.
13 The Court may revisit the issue of a special master to supervise depositions after the pending
14 discovery motions have been heard and decided.
15 2. Stipulations regarding depositions
16 At the August 21, 2008 hearing, the parties stipulated that (1) the deposition of Dr. Royce
17 Johnson would reconvene on August 26, 2008 with a two-hour time limit; (2) the deposition of
18 Dr. Irwin Harris would reconvene on August 27, 2008 with a two-hour time limit; (3) the deposition
19 of Dr. Maureen Martin would reconvene on August 27, 2008 with a two-hour and twenty-two minute
20 time limit; and (4) the deposition of Mr. Peter Bryan would reconvene on August 27, 2008 with a
21 one-hour time limit. Finally, the parties also agreed that PMK depositions would commence on
22 August 28, 2008.
23 The Court accepts the parties’ foregoing stipulations and makes them an order of the Court.
24
25 IT IS SO ORDERED.
26 Dated: September 5, 2008 /s/ Theresa A. Goldner
j6eb3d UNITED STATES MAGISTRATE JUDGE
27
28
4