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Joe-Cruz v. United States

United States District Court, D. New Mexico

July 12, 2017

LAURA JEAN JOE-CRUZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER GRANTING MOTION TO TAKE RULE 30(B)(6) DEPOSITION

          William P. Lynch United States Magistrate Judge.

         Plaintiff Laura Joe-Cruz filed a motion to take a Rule 30(b)(6) deposition outside the discovery deadline. (Doc. 73.) Because discovery closed on July 3, 2017, I expedited briefing. (Doc. 74.) Having reviewed the response (Doc. 77) and the reply (Doc. 78), I grant the motion to take a Rule 30(b)(6) deposition, as limited and explained herein.

         The problem arose on June 22, 2017, after Joe-Cruz deposed a supervising physician, Dr. Kileen, who no longer works for the United States. (See Doc. 73.) According to Joe-Cruz, Dr. Kileen no longer had access to requested documentation “regarding the supervision and oversight of Donita Sue Demontiney, PA-C with respect to the care provided to Plaintiff.” (Id. at 2.) Joe-Cruz claims that had she known Dr. Kileen no longer worked for the United States and would not have access to the requested documentation, she would have made alternative discovery requests or timely scheduled a Rule 30(b)(6) deposition.

         Joe-Cruz now seeks “the 30(b)(6) deposition of the appropriate person who can testify to”

1. All protocols or policies in place in January 2014 regarding the supervisory obligations of a physician with respect to physician's assistants in the employ of ACL and all other Indian Health Services facilities.
2. All documents outlining the Quality Assurance Requirements for review of medical services provided by the Physician Assistant pursuant to 16.10.15.12(B) NMAC 2015 and § 61-6-10 NMSA 1978.
3. All documents, regulations, policies and procedures outlining the responsibility as a supervising physician pursuant to 16.10.15.12(A)(2) NMAC 2015.
4. Any and all medical records where you reviewed and/or signed with respect to Donita Sue Demontiney, PA-C's treatment of Laura Jean Joe-Cruz from December 2013 through December 2014.

         (Doc. 73 Ex. 1 at 1.)

         The United States argues that the information Joe-Cruz now seeks is not relevant to any claims that are or could be before the Court; that Joe-Cruz has failed to exhaust her administrative remedies with respect to a negligent hiring, credentialing, or supervision claim; and that any such claim, if it had been exhausted, would be barred by the discretionary function doctrine.

         Joe-Cruz essentially seeks to modify the scheduling order to be able to take one deposition outside the discovery period. Pursuant to Federal Rule of Civil Procedure 16(b)(4), a scheduling order “may be modified only for good cause and with the judge's consent.” The Tenth Circuit has identified several factors for courts to consider when deciding whether to reopen discovery, including:

1) whether trial is imminent, 2) whether the request is opposed, 3) whether the non-moving party would be prejudiced, 4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, 5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and 6) the likelihood that the discovery will lead to relevant evidence.

SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990) (quoting Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987)).

         As to the first factor, trial is slated to begin on October 23, 2017. (Doc. 32.) There is no concrete rule used to determine whether trial is “imminent.” In this case, I note that there are two motions pending for resolution by the trial judge (Docs. 52 and 79), and it does not appear that either side has submitted a proposed pretrial order. Given that trial is three and a half months away, I find that trial is not “imminent” and this factor weighs in favor of a limited reopening of discovery. However, the request to reopen discovery is opposed by the United States. While this would normally counsel against reopening discovery, the United ...


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