Judge Lynne M. Hobbs, Case Number: 20STCV42444, Date: 2024-12-05 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV42444, Date: 2024-12-05 Tentative Ruling

Case Number: 20STCV42444 Hearing Date: December 5, 2024 Dept: 61

GERGIS R. GHOBRIAL, M.D. vs LONG BEACH MEMORIAL MEDICAL CENTER, A CALIFORNIA CORPORATION, et al.

TENTATIVE

Defendants Surgical Affiliates Management Group, Inc. (SAMG), Acute Care Surgery Medical Group, Inc. (ACS), and Wei Loon G. Koh, M.D.’s Motion for Protective Order is GRANTED, in part. Further deposition of Dr. Hight shall consist only of 24 written interrogatories prepared by Plaintiff, subject to the December 12, 2023 ruling regarding the permissible scope of questions for Dr. Hight. No sanctions are awarded.

Defendants to give notice.

DISCUSSION

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. 2025.420, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).)

Defendants Surgical Affiliates Management Group, Inc. (SAMG), Acute Care Surgery Medical Group, Inc. (ACS), and Wei Loon G. Koh, M.D. (Defendants) move for a protective order terminating the further deposition of Rachel Hight and seeking terminating sanctions against Plaintiff Gergis Ghobrial (Plaintiff), or else requiring that any further deposition of Hight be conducted by written interrogatories proposed by Defendants themselves. (Motion at pp. 16–18.)

The basis for the present motion is the order entered against Plaintiff on December 12, 2023 (protective order), in which the court denied his motion to compel Hight’s compliance with a deposition subpoena. The motion was denied on the grounds that Hight’s deposition had not taken place only because Plaintiff had deliberately moved the deposition from a date on which all parties had agreed to a date he knew they were not available. (See 12/12/2023 Ruling.)

In making this ruling, the court granted Defendants’ request, made in opposition, for an order limiting the scope of Hight’s deposition. The court stated as follows:

Plaintiff has also indicated an intent to take Hight’s deposition on a broad subject area, encompassing not merely the employment claims raised in this action, but also the underlying wrongdoing alleged in his workplace complaints, for which he allegedly suffered retaliation. (Opposition Exh. C, August 30 Email.) But the underlying truth or falsity of Plaintiff’s workplace complaints are not at issue in this litigation. They are relevant only to the extent that that [sic] Plaintiff possessed “reasonably based suspicions” of illegal activity (McVeigh v. Recology San Francisco (2013) 213 Cal.App.4th 443, 469), or if knowledge thereof formed part of Defendants’ “retaliatory intent.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 713.) Plaintiff’s claims necessarily relate to employment actions directed to him, not the underlying misconduct directed to patients that he alleged in his workplace complaints.

Defendants have presented a reasonable limit on the scope of the deposition to be taken as to Hight here, commensurate with Plaintiff’s allegations. Plaintiff’s deposition of Hight would be limited to “(1) establishing Hight’s background, job title, and position with Defendants during late 2019 and early 2020, (2) the extent to which Hight was expected to receive and/or handle complaints raised by employees of SAMG, ACS, and/or LBMMC, (3) any policies regarding Hight’s handling of such complaints, (4) Hight’s knowledge of complaints raised by Ghobrial regarding patient care, discrimination towards Ghobrial or others who shared his background, or harassment of Ghobrial, (5) Hight’s handling and/or communication of any such complaints, and (6) Hight’s knowledge of the circumstances surrounding Ghobrial’s termination or separation from Defendants during late 2019 and early 2020.”

(12/12/2023 Ruling.)

Defendants now contend that, during Hight’s deposition, which was taken on August 21, 2024, Plaintiff repeatedly asked questions of Hight that were beyond the scope of the protective order outlined above. (Motion at pp. 9–10.) That deposition lasted from 11:13 a.m. until 2:50 p.m. (Weatherup Decl. Exh. 8.) Defendants argue that Plaintiff inquired into irrelevant areas such as Hight’s positions with employers other than Defendants, her understanding of California regulations governing trauma medical directors, Hight’s authority to include or exclude surgeons from the trauma team, and whether Hight ever worked with Ghobrial on the same surgery. (Motion at pp. 9–10.) A more detailed summary appears in the declaration of Jennifer Weatherup, to which is attached the complete 138-page transcript of the deposition. (Weatherup Decl. ¶¶ 8–13.) 1

A review of the entire deposition transcript reveals the following. The deposition began with Defendants entering the protective order into the record to define the scope of Plaintiff’s examination. (Weatherup Decl. Exh. H at pp. 5–6.) Plaintiff began his examination of Hight by inquiring into her present position at UC Davis, changes to her job, and asking her about her responsibilities as a trauma surgeon there. (Weatherup decl. Exh. H at pp. 6–18.) Defendants offered objections based on the scope of the examination, and Hight repeatedly sought clarification of these questions, expressing confusion as to whether the protective order permitted her to testify about her current employment. (Ibid.)

When Plaintiff asked Hight if there was a trauma center at UC Davis, Defendants objected that the repeated questions about UC Davis were outside the scope of the order, threatened that the deposition could be cancelled if the questions continued, and directed Hight not to answer the question. (Weatherup Decl. Exh. H at pp. 17–18.) Plaintiff argued that he was merely asking about Hight’s background and job title, while Defendants responded that the scope of inquiry was the period from 2019 to 2020. (Id. at pp. 18–19.)

This early exchange established the pattern for the rest of the deposition. Plaintiff asked questions, often of dubious relevance to the proceedings, and Defendants’ objections and instructions not to answer were not concise, but often took the form of speaking objections in which they advised Plaintiff on the proper course of the deposition. (Weatherup Decl. Exh. H at pp. 7–8, 11–12, 14–15, 17–18.) Among other questions, they directed Hight not to testify to her responsibilities as a trauma surgeon, to her employment history after working at Long Beach Memorial Medical Center (LBMMC), whether she was a qualified trauma surgeon, whether she supervised residents at UC Davis, and her scheduling authority there. (Weatherup Decl. Exh. H at pp. 20–24, 36, 39, 52–54, 55–59.) And when Plaintiff asked a question, and Defendants did not instruct Hight not to answer, Hight would repeatedly request clarification and reclarification, prompting new rounds of lengthy objection and argument as the questions were asked again. (See Weatherup Decl. Exh. H at pp. 45–48.)

When Plaintiff began to shift his questions to the 2019 time-frame, things did not proceed more smoothly. Plaintiff asked Hight about her contracts with SAMG and ACS, with questions of varying intelligibility. (Weatherup Decl. Exh. H at pp. 69–72.) He asked Hight about her role as the interim trauma medical director at SAMG, about her relationship or knowledge of the prior person in that position, how she was trained, and what California regulations applied to her position. (Weatherup Decl. Exh. H at pp. 71–82.) The last of these Hight was instructed not to answer. (Id. at p. 82, 94–95.)

Hight expressed repeated confusion as to the meaning of a question about whether she had spoken to Defendant Desiree Thomas about her predecessor, and as to the meaning of an employee’s “orientation” in a new position. (Weatherup Decl. Exh. H at pp. 76–79.) There was an extended bout of mutual misunderstanding in which Hight stated that her job at LBMMC was to help “build” or “develop” the trauma program, Plaintiff inquired as to whether that meant the trauma program did not exist at LBMMC before her arrival, and Hight requested clarification as to what he meant. (Weatherup Decl. Exh. H at pp. 81–90.)

On questions related to her job duties at LBMMC, Hight was hesitant to offer answers, and Defendants’ counsel frequently instructed her not to. When Plaintiff asked Hight what the expectations were of her in her position, she stated that she could only respond generally that she was tasked with developing the trauma program, or else stated that there were too many specific things that required her attention to offer a concise explanation. (Weatherup Decl. Exh. H at p. 81, 93.) Hight repeatedly failed to give a direct answer to the question whether she could exclude doctors from the trauma team, until Defendants’ counsel instructed her not to answer. (Id. at pp. 94–96, 99–100, 102–103, 108.) Defendants continued to offer speaking objections, and Plaintiff offered objections in return. (Id. at pp. 98–99, 103–104.)

When Plaintiff asked Hight whether she was tasked in her position with receiving complaints from surgeons, she repeatedly sought clarification as to who she was supposed to receive complaints from, before offering non-responses such as, “Anybody is at any time allowed to complain to any position,” and “Can you clarify if you’re asking if people were allowed to talk to me?” (Id. at pp. 108–111.) Defendants' counsel offered objections, one suggesting that Plaintiff specify that the complaints be only from surgeons in the Acute Care Surgery Group, while another offered a speaking objection that Plaintiff had not limited the scope of surgeons’ complaints to those working for Defendants. (Id. at p. 110.) Plaintiff then attempted to clarify his question with a non-clarifying hypothetical, which earned more long-winded objections. (Id. at pp. 112–118.)

Plaintiff asked who would fill Hight’s role as interim medical director if she was unavailable, to which Hight responded by asking what Plaintiff meant by “available,” and Defendants’ counsel responded by threatening to cut the deposition short. (Weatherup Decl. Exh. H at pp. 122–123.) One of Defendants’ attorneys objected that availability was relative because “everyone needs to sleep.” (Id. at pp. 124–125.)

At long last Plaintiff approached the subject of Hight’s knowledge of him and his work, which she answered by acknowledging they had worked together. (Weatherup Decl. Exh. H at p. 126–127.) Defendants’ counsel instructed her not to answer whether she had ever worked on the same surgery as Plaintiff. (Id. at p. 132.) When Plaintiff asked whether Hight had admitting privileges while at LBMMC, she was instructed not to answer, and Defendants’ counsel warned that one more question beyond the protective order would see the deposition suspended. (Id. at p. 133.) The last question before the deposition was suspended was, “When you started at [LBMMC] . . . did you understand that there was a schedule for the proctor to be on call?” (Id. at p. 134.) Hight was instructed not to answer. (Id. at p. 135.)

The deposition record is mixed. On one hand, Defendants are correct that Plaintiffs’ questions suggest, as is frequently the case in his discovery, far greater interest in vindicating the correctness of his underlying workplace complaints than the actual claims of retaliation and wrongful termination that are the subject of this action. Even arguing for the relevance of his deposition questions in opposition, Plaintiff’s arguments are confined to those questions related to Hight’s position and authority at LBMMC, her duty to handle complaints, and her relationship with Plaintiff. (Opposition at pp. 7–8.) He does not attempt to justify the myriad questions he directed to Hight’s roles at UC Davis and other locations, which took up the first half of the deposition. (See Weatherup Decl. Exh. H at pp. 1–68.)

Yet Defendants’ conduct did not expedite the deposition. Armed with this court’s protective order from its December 12, 2023 ruling, Defendants’ counsel did not merely embrace a conservative interpretation of its scope, but an aggressive interpretation of their ability to enforce it by unilateral instructions not to answer. Generally, it is improper to instruct a deponent not to answer a question except on grounds of privilege or privacy. (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1014.)2 And this court’s protective order contains no provision expressly granting such authority to Defendants. But they wielded such instructions against questions both irrelevant (such as the identity of Hight’s supervisor at UC Davis) and arguably within the scope of the protective order, such as whether High possessed full privileges in her position with Defendants.

Nor did Defendants’ counsel deliver these instructions succinctly. Most such objections were delivered in the form of long-winded speaking objections that consumed as much time as the testimony they were designed to prevent. Defendants’ characterization of some of these objections as “suggestions” for how to reframe the questions is unconvincing, as Plaintiff made clear early in the deposition that he was not amenable to questions proposed for him by opposing counsel.

Defendants used the protective order with such force that it was effectively incorporated into the witness’ testimony, operating not merely as a restraint upon what Plaintiff was able to ask, but what Hight was willing to say. The transcript reveals a pattern, commencing early in the deposition, in which Plaintiff asks a question and Hight repeatedly responds with requests for clarification or rephrasing of the question, solely as a means of prompting Defendants’ attorneys to object based on its being outside the scope of the protective order, potentially absolving her of the need to answer. The following exchange is typical:

Q: And what’s your job responsibilities as – I believe you are acute care surgery and trauma surgeon?

MS. WEATHERUP: Assumes facts not in evidence. Lacks foundation. Calls for speculation. You know, outside of the scope of the protective order. Relevance.

Q: Go ahead and answer.

A: Can you clarify the question?

Q: I asked you if your current title includes acute care and trauma surgery at UC Davis.

MS. WEATHERUP: Vague. Overbroad. Calls for speculation.

THE WITNESS: Can you clarify the question?

Q: I can read it for you again.

. . .

[The question is read.]

MR. MINO: Objection. Vague and ambiguous. Incomprehensible.

MS. WEATHERUP: Join.

Q: Go ahead and answer.

A: Can you rephrase the question?

Q: Dr. Hight, in your current position at UC Davis, do you function as a trauma surgeon taking calls as a trauma surgeon?

MS. WEATHERUP: Vague. Overbroad. Irrelevant. Calls for speculation. Incomprehensible.

MR. MINO: Join.

Q: Go ahead and answer.

A: I still don’t understand the question as pertains to the scope I’m supposed to answer.

(Weatherup Decl. Exh. H at pp. 10–11.) At times the prompting was explicit. Hight at another point, in response to a question about her authority to exclude surgeons from the trauma team, prompted Defendants’ counsel to object to a question, after objections had already been made, stating, “I’d actually like to hear what the counsel says because I am confused at what you’re asking.” (Id. at pp. 98–99.) Toward the end of the deposition, the witness even declined to answer a question (about whether she had other jobs while she worked for Defendants) without waiting for an instruction from counsel: “I’m going to decline to answer just based on – I just don’t understand why this is relevant.” (Id. at p. 120.) Hight’s reluctance to answer, and Defendants’ willingness to object, evidently grew even as Plaintiff approached nearer to the core subjects of the protective order, refusing to give direct answers as to her duty to respond to surgeon complaints.

The record thus reveals plenty of blame to go around. There is the court’s order of December 12, 2023, ambiguous as to its scope and how it can be enforced. There is Plaintiff, asking questions only dubiously related to the present action and subject in many instances to exclusion by the protective order. There are Defendants, whose approach to the deposition was both overly aggressive and needlessly discursive. And there was the witness, who evidently took the conduct of Defendants’ counsel as an invitation to evasiveness.

The question now is what to do based on this record. Defendants seek a termination of the deposition and dismissal of Plaintiff’s case, a drastic measure. (Motion at pp. 15–18.) Alternatively, they seek monetary sanctions and an order directing that Hight’s deposition take place via 24 written interrogatories which Defendants have already specially prepared. (Motion at p. 16; Weatherup Decl. Exh. K.) Plaintiff meanwhile seeks monetary sanctions against Defendants, and the continuation of Hight’s deposition, with Defendants prohibited from making speaking objections or instructing the witness not to answer, except to prevent disclosure of privileged information. (Opposition at p. 2.) But the court has no reason to believe that a return to deposition would inure to the greater benefit of these proceedings. To order the deposition resumed without change or clarification to the protective order already in force would simply recreate the mess now before the court. And to order the deposition resumed with greater restrictions placed upon one party would only invite further misconduct from the other, all while depriving UC Davis of Dr. Hight’s services for duration of the examination.

It is Defendants’ proposal for written interrogatories that comes closest to a workable solution. The statute governing protective orders for depositions specifically provides as a remedy an order “[t]hat the method of discovery be interrogatories to a party instead of an oral deposition.” (Code Civ. Proc. § 2025.420, subd. (b)(7).) The above record provides ample good cause to support such a measure. While Defendant’s proposal to use only those interrogatories that they have drafted is an overreach, it is proper for the deposition of Hight to continue through 24 written interrogatories prepared by Plaintiff, subject to the limits of the December 12, 2023 protective order already in force.

The motion for a protective order is therefore GRANTED in part. Further deposition of Dr. Hight shall consist only of 24 written interrogatories prepared by Plaintiff, subject to the December 12, 2023 protective order. No sanctions are awarded.

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1 Plaintiff’s argument that Defendant failed to meet and confer before bringing the motion is belied by both the deposition transcript and the emails subsequently exchanged between the parties. (Opposition at pp. 8–9; Weatherup Decl. Exh. E.)

2 Defendants note, however, that the Federal Rules of Civil Procedure permit instructing a deponent not to answer “to enforce a limitation ordered by the court.” (FRCP Rule 30, subd. (c)(2).)