By Brendan Faulkner, Esq. and Mike A. D’Amico, Esq.
How many times have you had to brief a Motion for Protective Order filed by a defendant arguing that the defendant must not be deposed until after the plaintiff? And how many times have you had to wait for the defense disclosure of an expert because the defense claims that an expert cannot be disclosed until all plaintiff’s experts and all fact witnesses have been deposed? And how many times has discovery been substantially delayed and a trial postponed because plaintiff’s counsel or the court has acquiesced in these arguments? Enough. There should be no priority in deposition scheduling absent exceptional circumstances where manifest injustice or substantial prejudice would result; and there should be simultaneous disclosure of expert witnesses with an opportunity for a further simultaneous disclosure of rebuttal experts.
Most often these issues arise in medical malpractice and product liability claims. The argument by the defense is that the plaintiff brought the claim and should be required to submit to deposition and disclose all expert testimony because, in the absence of such revelations by the plaintiff, the defendant does not know the basis of the claims and cannot defend. Although this argument may have some popular appeal(perhaps because in the criminal context a defendant is entitled to be apprised of the charges made against him), it is misguided.
In Connecticut there is no Practice Book rule or appellate authority resolving these issues. As to the priority in deposition scheduling, there is a divide of trial court opinion. Those that opine that the defendant need not submit to a deposition prior to the plaintiff acknowledge that there is no Practice Rule supporting this opinion; but nevertheless reason that the efficient and orderly progression of discovery should allow the defendant to discover the factual basis of plaintiff’s claim. See for example Contillo v. Doherty, 2011 Conn. Super. LEXIS 686 (Conn. Super. Ct. Mar. 17, 2011). Those that rule that a plaintiff who first notices a defendant deposition, often at the time of service of the complaint, is allowed to proceed first, opine that there is no rule of priority and that a properly noticed deposition must proceed absent the granting of a protective order under Practice Book section 13-5. See for example Downs v. Trias, 2008 Conn. Super. LEXIS 1995 (Conn. Super. Ct. Aug. 6, 2008). Since the efficient and orderly progression of discovery is best served when depositions proceed upon proper notice, this then begs the question: if a Motion for Protective Order is requested, should a protective order be granted? The answer should be rarely and only upon a showing of exceptional circumstances. A protective order under Practice Book section 13-5 is intended by its terms to protect a person from “annoyance, embarrassment, oppression, or undue burden or expense” and must be for “good cause”. “Good cause has been defined as a sound basis or legitimate need to take judicial action.” Welch v. Welch, 48Conn. Sup. 19, 20 (2003). A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements. Conn. Podiatric Med. Ass’n v Health Net of Conn., Inc., 2006 Conn. Super. LEXIS 452, *6. Absent a weighty showing, appearing for a properly noticed deposition in a civil proceeding should not be viewed by the judiciary as annoying, embarrassing, oppressing or unduly burdensome. If the order of deposition scheduling alone were to be viewed in this light, the standard for granting a protective order is gutted.
The defendant is provided notice of the allegations made in the complaint. In a medical malpractice claim, the defendant is further notified of the allegations made in the opinion letter which must be attached to the complaint. See C.G.S. 52-190a. A civil proceeding is a search for the truth. The truth seeking function is well-served by allowing depositions to proceed as early as possible before memories fade and evidence is lost or disappears. The facts to which a defendant will testify under oath should not change depending on what the plaintiff or other witnesses say.
The federal rule, FRCP 26(d), establishes no priority in deposition scheduling. The federal court in Keller v. Edwards, 206 F.R.D. 412, 416-417(D. MD 2002), noted the history and purpose of FRCP 26(d) and outlined a number of factors which the court should consider in determining discovery priority in the medical malpractice context:
[T]he answer to the question of whether a medical malpractice defendant should be deposed before the plaintiff and her expert witness, or vice versa, depends on the circumstances of each case. Factors that influence the decision include: (a) the specificity of the allegations of negligence in the pleadings and the plaintiff’s [certification]; (b) the complexity of the claim; (c) the number of defendants sued, and how clearly it may be determined what each allegedly did that was negligent; (d) whether formal or informal discovery already has taken place that informs the defendant of the factual basis for the claims; (e) the presence or absence of articulable prejudice to either the plaintiff or the defendant by delaying the deposition of the defendant until after the plaintiff and her standard of care expert have been deposed; and (f) the plaintiff’s need to obtain sufficient information from the defendant to enable plaintiff’s expert witness to prepare complete Rule 26(a)(2)(B) disclosures. It is the obligation of counsel when filing either a motion to compel the defendant’s deposition, or a motion for a protective order to prevent it, to bring to the court’s attention relevant facts to address these factors.
In Dick v. Atlantic City Medical Center, 414 A.2d 995 (N.J. Super. Ct., Law Div., 1980), the court held that while the New Jersey rule was based on the amended FRCP 26(d), the plaintiff in a medical malpractice case should have priority in deposing the medical defendants because of the defendants’ possession of information otherwise unavailable to the plaintiff in developing its case:
Obviously, reason and logic dictate that in most cases it is helpful to adhere to an orderly progression of events, such as interrogatories followed by depositions. This is not mandated, however, and may be varied as counsel deem advisable.
It is significant that defendant in his brief cites no authority for his position but instead tenders an argument claiming it is ‘patently unfair’ to permit plaintiff to discover what defendant did before plaintiff has revealed his own expert’s position. It is not patently unfair at all. To the contrary, it may well be the only way plaintiff can insure that all the facts come to light. Medical malpractice cases are not noted for the ease in which a case against a doctor or hospital can be developed.
A witness either on deposition or at trial has but one obligation to speak the truth. If the truth here exculpates defendant doctor, all well and good. He will prevail. If the truth turns out to be that he committed malpractice, so be it. The truth is always the truth, and telling the truth never hurt anyone except insofar as he ought to be hurt. The contrary view turns an inquiry into truth and justice into a poker game . . .
The courts should abstain from establishing priority in civil cases and either provide that the party first noticing a deposition is entitled to proceed first; or require that a party claiming priority, despite an earlier noticed deposition by another party, be required to bring forth clear proof that under such factors as in Keller, supra, granting priority is necessary to avoid substantial prejudice or manifest injustice.
Likewise requiring the plaintiff to disclose experts prior to the defendant results in a substantial delay in the discovery process and eventual trial. The Practice Book does not mandate sequential disclosure. Instead this practice has become a matter of custom in many state and federal court scheduling orders. A more efficient approach is to require simultaneous disclosure of experts with the opportunity for each side to simultaneously disclose any rebuttal experts. This approach avoids the lengthy delays attendant with the common defense arguments that defendant’s experts cannot be disclosed until after the plaintiff’s experts and all fact witnesses have been deposed. This approach has been adopted by the state of California, Cal.Civ.Pro.Code section 2034.010, et seq; by the state of Arizona in medical malpractice cases, Ariz.Rule of Civ. Pro. 16(c)(2); and by the state of Illinois in an ongoing pilot project, see Circuit Court of Cook County, Illinois, Law Division, General Administrative Order 11-2(August 25, 2011). This approach also promotes a more honest assessment of the issues without an expert modifying her opinions simply to disagree with an opposing expert. A trial is a search for the truth. It should not be cast as a game, like tennis. The proper role of a defense expert, as any expert, should be an honest assessment of the issues, not to take a position simply because it coincides with a party’s theory or simply to contradict an opposing expert’s theory.
With many in the litigation bar believing that current discovery mechanisms do not work well, that discovery is often abused and that discovery is the primary reason for delay in civil cases reaching trial(see ABA Section of Litigation Member Survey on Civil Practice: Detailed Report (2009), http://www.abanet.org/litigation/survey/docs/report-aba-report.pdf.), new and refreshing approaches to civil discovery are needed. It is time for the civil litigation bar and the judiciary to abandon notions of discovery that are misguided, create delay and impede the search for the truth. We all will be better served.