Plaintiff’s Motion to Compel Second Defendant’s Deposition




– Plaintiff,



Plaintiff David Meggett’s Motion to Compel

Plaintiff, David Meggett by and through his undersigned attorneys, files this motion to compel Defendants Michael Wilson and Bertram Zarins to produce documents and to compel Dr. Michael Wilson to reappear for deposition and answer question he was instructed not to answer by counsel. In support, Plaintiff states as follows:

  1. FACTUAL BACKGROUND Plaintiff has been attempting to take the depositions of the Defendants since the latter part of 2002. After numerous letters, phone calls and emails that went unreturned, see Exhibit 1, Plaintiff unilaterally noted the Defendants depositions on November 6, 2002. See Exhibit 2 and Exhibit 3. These notices included a subpoena duces tecum requesting certain documents. See Attachment A to Exhibit 2 and Exhibit 3. These depositions were noted for December 5, 2002. Three weeks later on November 27, 2002, although the undersigned counsel had never heard from the Defendants’ lawyer, he learned from the counsel for co-defendant New England Patriots (since dismissed) that Defendants’ counsel would be filing a motion for a protective order from these depositions and was seeking a telephonic hearing that day. After a letter from undersigned counsel (see Exhibit 1), the parties agreed to postpone the depositions again until January. These depositions were canceled again by the New England Patriots counsel and were noted again on April 8, 2003, and April 9, 2003. See Exhibit 4 and Exhibit 5. These notices again included a subpoena duces tecum requesting the same documents certain documents. See Attachment A to Exhibit 4 and Exhibit 5. Plaintiff again agreed to postpone the depositions until July 23, 2003, and July 24, 2003.On July 21, 2003, two days before the depositions, undersigned counsel received a telephone call from Defendants’ counsel indicating that Defendants would not be complying with all of the documents sought in the subpoenas. Defendants’ counsel agreed to indicate its position in writing. Later that day, Plaintiff received a letter indicating that Defendants had no intention of complying with Plaintiff’s subpoena. See Exhibit 6. No explanation was given as to why Defendants refused to comply.During Dr. Wilson’s deposition, Defendants’ counsel instructed the Dr. Wilson not to answer numerous questions. Specifically, Dr. Wilson was instructed not to answer:
    1. “General questions with regard to Lisfranc fractures” which is the subject of this lawsuit (Wilson Deposition at pp. 51-52), including questions regarding whether a patient’s treatment options are improved when diagnosed immediately after injury (p. 55 and p. 58) and “the care and treatment someone might give for Lisfranc injuries” (pp. 264-265);
    2. Questions involving an x-ray that was taken before Dr. Wilson saw the Plaintiff (p. 68);
    3. Whether Plaintiff would have been expected to have a better diagnosis if he had presented to Dr. Wilson sooner (pp. 210-212);
    4. Questions about how one of Plaintiff’s experts was viewed in the medical community (pp. 259-260);
    5. Whether he would be reluctant to offer expert testimony against the list of doctors Dr. Wilson named as authorities in the field (p. 262)1; and
    6. Whether there is any reason why a patient should be given a weight bearing x-ray as opposed to a non-weight bearing x-ray (p. 264).
    1. Defense Counsel’s Instructions Not to Answer Were ImproperInstances where a party can instruct a witness not to answer are narrowly circumscribed by Massachusetts law.2 “Counsel for a witness or a party may not instruct a deponent not to answer except where necessary to assert or preserve a privilege or protection against disclosure, to enforce a limitation on evidence directed by the court or stipulated in writing by the parties, or to terminate the deposition and present a motion to the court pursuant to Rules 30(d) or 37(d).” Mass. R. Civ. P. 30(c) (amended 1998).3 Defendants did not and cannot point to any provision under Rule 30(c) that justified counsel’s instruction not to answer. Accordingly, Dr. Wilson should be required to answer questions concerned these topics.
    2. Counsel Is Required to Produce Non-Privileged Documents Not Under a Protective OrderAs set forth above, Plaintiff sought document from the Defendant’s by subpoena prior to the deposition. In fact, Plaintiff knew specifically what documents were sought by Plaintiff back in November 2002. Instead of filing a motion for a protective order for those requests it believe were inappropriate, it simply wrote a letter two days before the deposition refusing explanation to produce the requested documents.4 These documents should be produced and Plaintiff should have the right to question the Defendants about these documents.
  3. CONCLUSIONPlaintiff has a right to receive answers to the question that counsel instructed Dr. Wilson not to answer and to question Dr. Wilson and Dr. Zarins regarding the documents that should have been produced during the deposition. Accordingly, Plaintiff requests an order that: (1) That the Defendants Dr. Zarins and Dr. Wilson must be produced again for deposition, (2) That Defendants pay the costs which will be incurred by Plaintiff, including (a) the fee to the court reporter, (b) the transcript of the deposition, (c) the reasonable travel expenses for Plaintiff’s counsel, and (d) and the attorney’s fees for related to the actual taking of the deposition and travel to and from Boston.

1This instruction came because the question was hypothetical. When Plaintiff’s counsel asked “if I can solve those problems, would you let him answer the question if I give him…” he was cutoff by defense counsel who again instructed the witness not to answer. See pp. 262-263.

2Massachusetts is not alone in this position. See, e.g., Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993) (“Counsel shall not direct or request that a witness not answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by the court.”); First Tennessee Bank v. Federal Deposit Insurance Corp., 108 F.R.D. 640 (E.D. Tenn. 1985) (“It is well-settled that counsel should never instruct a witness not to answer a question during a deposition unless the question seeks privileged information or unless counsel wishes to adjourn the deposition for the purpose of seeking a protective order from what he or she believes is annoying, embarrassing, oppressive or bad faith conduct by adverse counsel.”); International Union of Elec. v. Westinghouse Elec. Corp., 91 F.R.D. 277, 279-80 (D.D.C. 1981) (finding that except in rare circumstances where it can be shown that some serious harm would result from answering a deposition question, an objection must be made, and an answer given); Coates v. Johnson & Johnson, 85 F.R.D. 731, 733 (N.D. Ill. 1980) (“Despite plaintiff’s protestations to the contrary, the general rule in this district is that, absent a claim of privilege, it is improper for counsel at a deposition to instruct a client not to answer. If counsel objects to a question, he should state his objection for the record and then allow the question to be answered subject to his objection.”); Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518 (E.D. Tenn. 1977) (noting that it is “wholly improper” for an attorney to direct a deponent not to answer a question, and that the proper action is to object to the question, and let the objection be stated for the record); Preyer v. United States Lines, Inc., 64 F.R.D. 430 (E.D. Pa. 1973) (finding that except when privileged information would be disclosed, an attorney may not instruct a deponent not to answer a deposition question, and that the answer should be taken, subject to the objection); Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y. 1965) (An attorney has no right to impose silence or instruct a deposition witness not to answer a question. It is the province of the court, not counsel, to rule on objections to questions); Drew v. International Brotherhood of Sulphite & Paper Mill Workers, 37 F.R.D. 446, 449 (D.D.C. 1965) (“Finally, the Court would observe that in most cases, including this one, the better practice is for attorneys to note their objections [to deposition questions], but permit their clients to answer questions–leaving resolution of the objection to pre-trial or trial. This approach conserves the parties or witnesses’ time and money, as well as judicial resources, and expedites the trial of the lawsuit.”). See generally 8A Charles A. Wright, et al., Federal Practice and Procedure § 2113 (1994).

3This Rule was read into the record by Plaintiff’s counsel. See Wilson Deposition p. 107-108.

4This burden of this failure to produce is exacerbated by the fact that Defendant Wilson has yet to respond to a request for production of documents that was filed on February 8, 2003.

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