Free Motion for Protective Order - District Court of Federal Claims - federal

Case 1:05-cv-00186-FMA

Document 33

Filed 02/12/2007

Page 1 of 4

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
LAVETTA ELK,
Plaintiff,
v.

UNITED STATES,
Defendant.

) ) ) ) ) ) ) ) )
)

Case No. 05-186L Judge Francis Allegra

M.

PLAINTIFF'S MOTION FOR PROTECTIVE ORDER AND MOTION TO COMPEL
Plaintiff, LAVETTA ELK, by and through undersigned counsel, and pursuant to

RCFC

26(a), 37(a) and 37(c), hereby files this Motion for Protective Order and Motion to Compel,
and states as follows:
1.

LAVETTA ELK

was deposed in Rapid City, South Dakota on December 12,

2006 from 9:30 a.m to 2:50 p.m.
2.

UNITED STATES now

seeks to depose the Plaintiff upon oral examination for

a

second time prior to the discovery cut-off date of March 26, 2007, which was extended pursuant

to Court Order dated February 8, 2007.
3.

UNITED STATES

contends that

LAVETTA ELK

should be re-deposed in that

additional records have been obtained from some of LAVETTA ELK'S health care providers
since her last deposition.

4.
forms allowing

Prior to her first deposition,

LAVETTA ELK

voluntarily
records.

executed authorization

UNITED STATES

to obtain copies

of her medical
records

LAVETTA ELK also
The fact that

produced to the

UNITED STATES

all medical

in her possession.

additional records were obtained by

UNITED STATES

subsequent to the deposition of Plaintiff

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Case 1:05-cv-00186-FMA

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CASE NO.: 05-186L
is

of no import. UNITED STATES
that they might subsequently

certainly knew before taking the deposition

of LAVETTA

ELK

obtain some additional medical records regarding LAVETTA
chose to compel

ELK. Nevertheless, UNITED STATES

LAVETTA ELK

to travel over 90

miles to Rapid City, South Dakota on December 12, 2006 for her deposition, knowing that
additional records might be forthcoming.
5.

UNITED STATES' contention that the discovery of additional information
deposition is subject to
a

is the

basis for an additional

slippery slope.

Additional documents and
a

information are constantly being obtained in the course

of discovery. If

party could be re-

deposed every time an additional fact is learned or document is obtained, discovery would never
be completed.
6.

Plaintiff has requested from counsel for UNITED STATES copies of the medical

records, which they now claim warrant an additional deposition of the Plaintiff.

Yet UNITED
their

STATES vehemently refuses to produce to Plaintiffs counsel any medical records now in
possession.
executed

Notably, in the interest of cooperative discovery LAVETTA ELK voluntarily
authorization

forms

allowing

UNITED

STATES

to

obtain

these

records.

Astoundingly,

UNITED STATES

insists that it need not produce the records despite the fact that

the plain language

of RCFC 26 requires that

such records be produced.
is
a

Apparently, in the view

of

counsel for

UNITED STATES, cooperative discovery

one-way street that runs in their

favor.
7.

This is not

a

case in which LAVETTA

ELK withheld

documents from

UNITED

STATES or inhibited their discovery.
that

LAVETTA ELK

should not be penalized due to the fact

UNITED STATES

chose to take her deposition before obtaining some records in response to

HERMAN & MERMELSTEIN,

P.A.
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Case 1:05-cv-00186-FMA

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CASE NO.: 05-186L
the authorizations.
8.

In light of UNITED STATES' refusal to produce the records that it received after
deposition, it is unclear to Plaintiff whether such records are relevant to the

LAVETTA ELK's

case and/or whether the subject

of

such records were addressed in

LAVETTA ELK'S

first

deposition.

UNITED STATES

spent considerable time deposing

LAVETTA ELK

as to her

medical history during her deposition.

See Exhibit "B", Deposition

of Lavetta Elk, pp. 76-93. It

would appear doubtful that any additional questioning on this subject is necessary or warranted.
Rather, it would appear that the purpose and intent ofthe deposition is harassment.
9.
a

Plaintiff respectfully request that this Court Order UNITED STATES to produce
received

copy of all documents

from third parties

as

a

result of

LAVETTA ELK's

Authorizations

to Release Records and/or

UNITED STATES'

Subpoenas Duces Tecum in this

case, which Plaintiff has previously requested.

10.

Plaintiff further request that
re-deposing

a

Protective Order be entered preventing Defendant,
previously appeared for
a

UNITED STATES, from

LAVETTA ELK, who

lengthy

deposition on December 12,2006.
11.

Prior to the filing of this Motion, Plaintiff

s

counsel made

a

good faith effort to

resolve the issues raised herein to no avail.

WHEREFORE, Plaintiff respectfully requests that this Court grant Plaintiff
Protective
Order and

s

Motion for

Motion to Compel in

its entirety, award all relief to which Plaintiff is

entitled pursuant to RCFC 37(c), and all other relief this Court deems just and appropriate.

Dated: February 12,2007
Respectfully
submitted,

HERMAN

&

MERMELSTEIN, P.A.
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Case 1:05-cv-00186-FMA

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CASE NO.: 05-186L

HERMAN & MERMELSTEIN, P.A.
Attorneys for Plaintiff 18205 Biscayne Boulevard, Suite 2218 Miami, Florida 33160 Telephone (305) 931-2200
Facsimile: (305) 931-0877

www.hernlanlaw.com

By:

M. Herman JEFFREY M. HERMAN, ESQ. [email protected]
STUART
S.

sf Jeffrey

MERMELSTEIN, ESQ.

[email protected]

ADAM D. HOROWITZ, ESQ.
[email protected]

CERTIFICATE OF SERVICE
I

HEREBY CERTIFY that

on February 12,2007, I electronically filed the foregoing with
send notification

the Clerk

of Court using the CM/ECF system which will

of

such filing to the

following e-mail addresses:

Kevin Stark Webb, Esq. kevin. [email protected]

Bruce Barry, Esq.
[email protected]

sf Jeffrey

M. Herman

HERMAN & MERMELSTEIN,

P.A.
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