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Zeng v. Marshall University

United States District Court, S.D. West Virginia, Huntington Division

February 26, 2019

WEI-PING ZENG, Plaintiff,
v.
MARSHALL UNIVERSITY, DR. JEROME A. GILBERT; DR. JOSEPH SHAPIRO; DR. W. ELAINE HARDMAN; DR. DONALD A. PRIMERANO; and DR. RICHARD EGLETON, Defendants.

          MEMORANDUM OPINION and ORDER REGARDING DISCOVERY CONFERENCE

          CHERYL A. EIFERT UNITED STATES MAGISTRATE JUDGE

         On Friday, February 22, 2019, Plaintiff appeared, in person, and Defendants appeared, by counsel, Brian D. Morrison and Eric D. Salyers, for a discovery conference. The following motions were addressed and resolved as set forth below:

         1. Plaintiff's Motion and Modified Motion to Compel Defendants to Produce Documents Requested by Plaintiff under Fed.R.Civ.P. 34. (ECF Nos. 157, 159). Defendants filed a response in opposition to the Motions, and Plaintiff filed a reply memorandum. (ECF No. 180, 184). Plaintiff's motions cover five sets of requests for production of documents served on Defendants between July 31, 2018 and November 16, 2018. Defendants object to the timeliness of Plaintiff's motions as they apply to the first four sets of documents requests, arguing that the motions were not filed within the thirty days required by the Local Rules of this district. Plaintiff contends that the motions are timely, because they were filed within thirty days after Defendants provided supplemental responses to some of the requests in the first four sets. In addition, Plaintiff argues that he should be granted an extension of the thirty-day deadline, because he was working with Defendants to resolve some of the discovery disputes.

         Local Rule of Civil Procedure 37.1(c) is clear that motions to compel not filed within 30 days after the discovery response is due are waived. The deadline may be extended by court order for good cause shown, or by stipulation. In this case, however, the parties did not stipulate to extend the deadline, and Plaintiff did not seek a court order extending it. Plaintiff did not file his first Motion to Compel until January 4, 2019, which was after the thirty days had expired for the first four motions. Therefore, the motions are untimely in those instances. However, Plaintiff is granted fourteen (14) days to submit a list to the Court of the documents most critical to his case, which he feels have been requested, but not produced, and the Court will decide whether good cause exists for their production.

         In regard to Plaintiff's fifth request for production of documents, Plaintiff's Motions to Compel, (ECF Nos. 157, 159) are GRANTED, in part, and DENIED, in part. Defendant Marshall University (“MU”) shall produce to Plaintiff the following documents on or before March 8, 2019:

a. The 2012 step 1 medical license test scores for second year medical students, which formed the basis of the email that notified faculty of the favorable testing results.
b. A listing of the faculty members in MU's Department of Biochemistry and Microbiology during the year of 2015, and if available, a listing of the members' tenure status.
c. The publication list attached to the tenure application of all faculty members in MU's Departments of Biochemistry and Microbiology, Pharmacology, and Anatomy that applied for tenure between the years of 2009 and 2016.
d. As to grant applications prepared by Drs. Koc, Denvir, and Egleton and any related grant award notices, Defendant MU indicated that it had already produced what was available to MU as attachments to tenure applications. Defendant shall supply to Plaintiff any additional applications/awards of the three above-named faculty to the extent they are in the custody or control of MU.
e. The last known contact information of the former dean of MU's Medical School and the former Interim President of MU.

         2. Marshall University's Motion to Quash Subpoena Duces Tecum to Employee Stephen Hensley. (ECF No. 162). Plaintiff filed a response in opposition to the Motion. (ECF No. 176). MU asks the Court to quash a subpoena served on Stephen Hensley, a former employee of MU, who served as the Level I examiner in Plaintiff's grievance proceeding arising from his contract termination. Plaintiff alleges that Mr. Hensley was biased due to his relationship with MU; therefore, Plaintiff was deprived of procedural due process in the grievance proceeding. Plaintiff seeks to have Mr. Hensley produce a conflict of interest statement pertaining to Mr. Hensley and his spouse, and their relatives to the third degree of consanguinity, including their spouses. MU objects on the basis that the subpoena is meant to harass Mr. Hensley, is not timely served, requires the disclosure of privileged information, places an undue burden on him, and does not allow enough time to respond.

         MU's Motion, (ECF No. 162), is GRANTED, in part, and DENIED, in part. Mr. Hensley is not required to provide the information requested in the subpoena duces tecum. However, within fourteen days of the date of this Order, Mr. Hensley, through counsel for MU, shall provide Plaintiff with a conflict statement listing any past or present employment or formal business relationship between Mr. Hensley, his spouse, and/or any of their children and MU, as well as any MU committee or board membership of Mr. Hensley and his immediate family. The years of any such affiliation should be provided. No other information is necessary at this time.

         3. Plaintiff's Motion for Leave to Increase the Number of Depositions. (ECF No. 165). Defendant MU filed a response in opposition to the Motion, (ECF No. 179), and Plaintiff filed a reply memorandum. (ECF No. 183). Plaintiff asks the Court for leave under Fed.R.Civ.P. 30(a)(2)(A)(i) to take 35 discovery depositions and further requests that the Court prohibit the witnesses from demanding prohibitory deposition fees. Plaintiff argues that in order to properly prepare his case, he needs to depose each member of every committee involved in evaluating his tenure application, as well as the associate dean of the medical school, five nonparty witnesses, and other MU employees. Plaintiff contends that, given the large number of committee members, the ten-deposition limit allowed by Rule 30 is simply insufficient for the needs of the case. As to the witness fees, Plaintiff indicates that some of the physician witnesses have demanded as much as $1500 per hour to appear for deposition.

         In response, MU asserts that it has agreed to increase the deposition limit to fifteen, which should be more than adequate for Plaintiff to discover his case. MU adds that Plaintiff has not yet taken a single deposition; therefore, it is premature for him to seek leave for additional depositions. Moreover, he has not demonstrated a need to depose more than fifteen witnesses. Finally, MU argues that the Court should not rule on the issue of witness fees, as the witnesses were not notified of the hearing or given a chance to state their positions. ...


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