Elsherif v. Mayo Clinic

Background

The court ruled on Mayo Clinic’s motion to compel depositions and motion for a protective order. The order also addressed provisional rulings related to a discovery motion filed by Dr. Elsherif. The court held a telephone hearing on April 24, 2020.

Rulings on Depositions and Exhibits

The court declined to postpone the currently scheduled depositions. It granted Mayo Clinic’s motion to compel depositions and ordered Mayo to provide Lynn Pletta’s contact information to Dr. Elsherif’s counsel so the deposition could be arranged.

Mayo had to provide any electronic copies of stickered deposition exhibits that already existed. It did not have to create electronic copies if those copies did not already exist. If Mayo had a previously undisclosed document in electronic form that had been used as an exhibit but was not stickered, the order required Mayo to produce that electronic document as it existed.

Dr. Elsherif’s counsel agreed to email deposition exhibits to witnesses and Mayo’s counsel before the depositions. Mayo’s counsel agreed not to review the documents beforehand and to instruct its witnesses to do the same. The final order required Dr. Elsherif to email the exhibits and prohibited opposing counsel and the witnesses from reviewing them before the scheduled depositions.

Protective Order and Late Discovery

The court granted Mayo Clinic’s motion for a protective order regarding interrogatories, requests for admission, and document requests that Dr. Elsherif served on April 11, 2020. A protective order can limit or prohibit discovery when there is good cause. The court found the discovery untimely because it needed to be served early enough to be completed by the March 31, 2020 discovery deadline and was therefore late after March 1, 2020.

The court rejected the argument that its March 24, 2020 stay of discovery deadlines made the April 11 discovery timely. It stated that the discovery had already been untimely before the stay and that the stay was intended to allow depositions delayed by the COVID-19 crisis to be arranged remotely, not to authorize additional late-served discovery.

The court also found no good cause to modify the scheduling order. Dr. Elsherif argued that his own deposition revealed new lines of inquiry that justified additional discovery. The court disagreed, reasoning that he had access to the information revealed at his deposition because he was the person who revealed it. The court stated that learning more about an opponent’s strategy did not establish good cause for additional discovery.

Other Direction

The court ordered the parties to meet and confer about Mayo’s attorney-client privilege assertion, focusing on entries involving Ms. Pletta because of her upcoming deposition. The court encouraged the parties to reach agreement before a later telephone hearing concerning Dr. Elsherif’s discovery motions.

Disposition

The order granted Mayo Clinic’s motion to compel depositions and granted Mayo Clinic’s motion for a protective order. Mayo did not have to respond to the discovery served on April 11, 2020. The order separately required Mayo to provide the specified contact information and electronic documents, and required Dr. Elsherif to email the deposition exhibits while preventing advance review by opposing counsel and witnesses.