Judge: Mark H. Epstein, Case: 21STCV44916, Date: 2023-02-16 Tentative Ruling

Case Number: 21STCV44916    Hearing Date: February 16, 2023    Dept: R

This is a motion to compel the deposition of defendant Wiesmeier.  In a previous motion, the court granted plaintiffs the right to Wiesmeier’s medical records and kept the door open to a medical examination to determine if he is competent to be deposed.  Wiesmeier’s counsel states that he is being kept at a locked ward facility in Alabama and is not competent to be deposed, suggesting, for example, that he believes he is still giving lectures to students.

The court will not compel a deposition under these circumstances.  There is no point to deposing a person who simply is not competent, and the court will not allow procedural niceties to force a deposition that could be at best a waste of time and at worst harmful.  The court is not finding that Wiesmeier is incompetent; the court is merely noting that there is a question about it and a process to resolve that question.  The right process is to resolve the question of competence and then allow or not allow a deposition depending on that resolution. The court understands that Wiesmeier's counsel did not follow what the Code requires--that is, to seek a protective order supported by admissible evidence of incompetence.  However, the court went through at least some of this in the motion to compel an examination, so the court sees little value in elevating form over substance.

While the court is very well aware of the emotional impact of these cases and the legitimately hard fought nature of them, the parties really should have been able to resolve this without court intervention.

The motion to compel is DENIED WITHOUT PREJUDICE following plaintiffs’ review of the medical records and examination (if need be) of Wiesmeier.