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Cobb v. Vicksburg Health Care, LLC

United States District Court, S.D. Mississippi, Northern Division

December 20, 2018

ANDREA COBB AND SCOTT COBB, INDIVIDUALLY, AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF GEORGIA CATE COBB, DECEASED PLAINTIFFS
v.
VICKSBURG HEALTH CARE, LLC DBA RIVER REGION MEDICAL CENTER; DBA RIVER REGION HEALTH SYSTEMS; DBA MERIT HEALTH RIVER REGION; DBA MERIT HEALTH SYSTEMS; AND ODALIS E. SIJIN, M.D. DEFENDANTS

          ORDER

          F. KEITH BALL, UNITED STATES MAGISTRATE JUDGE.

         This cause is before the Court on Plaintiffs' Amended Motion to Compel the Deposition of Defendant Odalis Sijin [85] and Plaintiffs' Motion for Additional Time for the Deposition of Defendant Odalis Sijin [86].

         Plaintiffs, Andrea and Scott Cobb, filed this medical malpractice case relating to their daughter's death, which occurred shortly after birth on December 25, 2015. They named the hospital where she was born and the delivering obstetrician, Odalis Sijin, M.D., as defendants.

         On June 26, 2018, Plaintiffs noticed Dr. Sijin's deposition to take place at a law office in Jackson, Mississippi, beginning at 9:00 a.m. on August 6, 2018. [65]. Plaintiffs' counsel, Rick Davis, arrived at the deposition site approximately thirty minutes before it was scheduled to begin. Shortly thereafter, defense counsel, Gene Parker, informed him that due to Dr. Sijin's flight departure time that day, she must leave the deposition at 4:00 p.m.[1] Parker took the position that Davis had seven hours, from 9:00 a.m. until 4:00 p.m., to take Dr. Sijin's deposition.

         The deposition began at 8:57 a.m. [85-4] at 7. At 4:00 p.m., Parker instructed Dr. Sijin not to answer any more questions, and, over Davis's objection, the deposition ended. Id. at 277-80.

         Plaintiffs contend that Parker prevented them from deposing Dr. Sijin for the seven hours afforded under Rule 30(d)(1) of the Federal Rules of Civil Procedure. They request that the Court compel Dr. Sijin to provide a full seven-hour deposition, excluding breaks, and award sanctions. Defendants respond that Davis was inefficient in his questioning of Dr. Sijin and that the time spent in a phone call with the magistrate judge and for a lunch and bathroom breaks should be deducted from the seven hours permitted by the rule.

         Rule 30(d) states:

(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours. The court must allow additional time consistent with Rule 26(b)(1) and (2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
(2) Sanction. The court may impose an appropriate sanction-including the reasonable expenses and attorney's fees incurred by any party--on a person who impedes, delays, or frustrates the fair examination of the deponent.

         The Advisory Committee Notes to Rule 30 state that Rule 30(d)(1) “imposes a presumptive durational limitation of one day of seven hours for any deposition. . . . This limitation contemplates that there will be reasonable breaks during the day for lunch and other reasons, and that the only time to be counted is the time occupied by the actual deposition.”

         Rule 30 and the Advisory Committee Notes directly contradict Defendants' position. The Rule grants a presumptive limit of seven hours to depose a witness, and the Advisory Committee Notes make clear that “reasonable breaks” for “lunch and other reasons” are not to be deducted from the seven hours allowed.

         It is undisputed that a total of sixty-eight minutes of interruptions occurred during the deposition. As stated by Defendants, “A total of 68 minutes of the deposition was occupied with matters other than Mr. Davis'[s] questioning of the witness at his sole choice! This consisted of 11 minutes of bathroom breaks, 32 minutes for lunch and 25 minutes for calling Judge Ball.”[2] [90] at 5. The Court finds that all of these constituted “reasonable breaks” and should not be deducted from the presumptive seven hours afforded Plaintiffs under Rule 30(d)(1) to depose Dr. Sijin.

         Although Defendants contend that “inefficient questioning” is the real reason that Plaintiffs' counsel was unable to finish the deposition in five hours and fifty-two minutes, this argument misses the point. Rule 30(d)(1) permits Plaintiffs seven hours to depose Dr. Sijin, even if Plaintiffs' counsel failed to use the seven hours in the most efficient manner. See Martinez v. Texas Workforce Comm'n-Civil Rights Div., No. A-11-CA-837 LY, 2013 WL 6243882, at *1 (W.D. Tex. Dec. 3, 2013).[3]

         The Court finds that Dr. Sijin's flight departure time impeded Plaintiffs' examination of her. Due to the flight departure time, Plaintiffs were not permitted to depose Dr. Sijin for seven hours, as allowed by Rule 30(d)(1). Accordingly, Plaintiffs' request in motion [85] to ...


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