Free Response to Motion - District Court of Arizona - Arizona

EXHIBIT F
Case 2:O3—cv—O2300-ROS Document 88-7 Filed O4/13/2006 Page10f3

Y _ `. *4* OFFICE OF REGIONAL COUNSEL — REGION 19
nf DEPARTMENT OF VETERANS AFFAIRS
E .- :·‘i. _. E 650 East Indian School Rd., Bldg. 24
gl Phoenix, Arizona 85012-1839
_ ·'·* I -· Telephone: (602) 212-2091
" 4 i` ‘ Fax: (602) 212-2144
October 12, 2005
Nathan Laufer, M.D.
Heart & Vascular Center of Arizona
1331 North 7th Street, Suite 375
Phoenix, AZ 85006
Re: Rafael Martinez
Dear Dr. Laufer:
I am in receipt of your correspondence dated September 19, 2005 in which you
indicate that Mr. Martinez should not proceed with a deposition as this may be detrimental
to his health. Unfortunately, your letter was not acceptable to plaintiffs counsel. I have
enclosed a copy of his letter dated October 11, 2005. I have researched this issue and the
federal courts require the following information as our office may need to seek a protective
order from the judge to prevent Mr. Martinez from testifying in a deposition:
The party requesting a protective order must make a specific demonstration of facts
in support of the request as opposed to conclusory or speculative statements about the need
for a protective order and the harm which will be suffered without one. Brittain v. Stroh
Brewery C0., 136 F.R.D. 408, 412 (M.D.N.C.1991). See also Guh’ Oil v. Bernard, 452
U.S. 89, 102 n. 16, (1981).
This requirement "furthers the goal that the Court only grant as narrow a protective
order as is necessary under the facts." Brittain, 136 F .R.D. at 412. Federal Rule of Civil
Procedure 26(c) authorizes entry of a protective order upon a party or by the person from
whom discovery is sought when good cause is shown. " ’Good cause' exists, according to
Rule 26(c), when justice requires the protection of ’a party or a person from any
annoyance, embarrassment, oppression, or undue burden or expense.’ " United States v.
Miracle Recreation Equipment Co., 118 F.R.D. 100, 104 (S.D.lowa 1987). The courts
have imposed a balancing test in determining whether good cause has been shown. See
Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir.1985); Dow
Chemical Co. v. Allen, 672 F.2d 1262, 1277-78 (7th Cir.1982).
Protective orders prohibiting depositions are rarely granted. Medlin v. Andrew,
113 F.R.D. 650, 653 (M.D.N.C.1987); Motsinger v. Fhznt, 119 F.R.D. 373, 378
(M.D.N.C.l988) ("Absent a strong showing of good cause and extraordinary
circumstances, a court should not prohibit altogether the taking of a deposition."); Salter v.
Upjohn Co., 593 F .2d 649, 651 (5th Cir.1979) ("lt is very unusual for a court to prohibit
the taking of a deposition altogether and absent extraordinary circumstances, such an order
Case 2:O3—cv—O2300—ROS Document 88-7 Filed O4/13/2006 Page 2 of EXHIBIT F

would likely be in error."); In re McC0rhill Publishing, Inc., 91 B.R. 223, 225
(Bankr.S.D.N.Y.1988) ("A prohibition against the taking of an oral deposition is a very
unusual procedure and a party who seeks a protective order prohibiting such a deposition
bears a heavy burden of demonstrating good cause for such an order."); see also 8 Wright
& Miller, Federal Practice and Procedure § 2037 (1986 Supp.)(In granting a Rule 26(c),
Fed.R.Civ.P., protective order prohibiting a deposition, the Court may not abdicate its
responsibility by unquestionably accepting a doctor's summary opinions.)
The opposing party has a right for itself and on behalf of the Court to examine the
matter in more detail. Sufficient medical information must be presented to the court in
order to determine whether the witness's health and well-being would be injured by the
stress of a deposition and whether or not safeguards are available, including conducting
the deposition in a health care facility where innnediate medical attention would be
available or similar safeguards as to length of the deposition or questions being submitted
in advance.
In other words, as plaintiffs counsel has refused to honor your initial assessments
of Mr. Martinez's medical condition(s) we need a detailed report as to why and how sitting
for a 2 to 4 hour deposition would be injurious to Mr. Martinez's well-being. Additionally,
that even with medical safeguards such as a deposition in a medical facility or submitting
written questions in advance, would not lessen the risk of injury or death with respect to
Mr. Martinez's present medical condition(s).
Finally, whether or not it is reasonably foreseeable that his condition will improve
or stabilize sufficiently to permit a deposition. If this is likely, can you offer a reasonable
opinion as to when this may occur?
As this matter is presently in litigation with a hearing scheduled for this Friday,
regarding all discovery problems, a prompt response would be greatly appreciated.
lf you have any questions, please feel free to contact me.
Sincerely yours, `
GREGORY G. FERRIS
Regional Counsel
BY: DANA C. HECK
Attorney
Cc: Rafael Martinez
AUSA John Mayfield
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