Drink v. Ulrich

Background

The order concerns the deposition of pro se Defendant John Ulrich in two related cases. Earlier orders had postponed the deposition and extended fact discovery because of medical concerns following a concussion Ulrich suffered on March 18, 2021. The court had directed the parties to communicate about scheduling and warned that it would not grant another extension without truly extraordinary circumstances.

The plaintiffs reported that Ulrich and Andrea Campolo did not respond to several scheduling communications before the court’s May 21 deadline. Ulrich then submitted letters and medical documentation from Olga Fishman, M.D., Richard E. Luria, M.D., and Nancy Tricamo, LCSW. He asked for indefinite relief from the requirement to sit for a deposition. The plaintiffs asked the court to order the deposition on a date certain and sought possible sanctions under Rule 37 of the Federal Rules of Civil Procedure if Ulrich failed to appear.

Protective-order request

Although Ulrich did not expressly identify his request as a motion for a protective order under Rule 26(c), the court treated his submissions as such because he was representing himself. The court explained that completely prohibiting an oral deposition is unusual and that the person seeking such relief must show good cause and a clearly defined, specific, and serious injury that would occur without the order. General allegations of harm or conclusory medical opinions are not enough.

The court found that the medical submissions did not meet this demanding standard. Dr. Luria’s letter stated that Ulrich’s memory loss had worsened and that he was cognitively incapable of participating in a deposition, but the court held that memory limitations do not by themselves excuse a witness from appearing. A witness who truly does not remember an answer may say so during the deposition. Ms. Tricamo’s letter described the deposition as challenging and discussed confusion and difficulty recalling past events, but the court found that this did not establish a clearly defined and serious injury. Dr. Fishman’s letter stated that a deposition could worsen headaches and poor neurological functioning, but the court found the explanation insufficiently detailed and did not find an adequate explanation for the change from recommending six weeks of cognitive rest to opposing any future deposition.

Rulings and deposition conditions

The court held that the deposition had to proceed. Ulrich’s application for an indefinite postponement was DENIED, and the plaintiffs’ request that the deposition be scheduled for a date certain was GRANTED. The deposition was ordered for June 8 and 9, 2021, by video. The court DENIED the plaintiffs’ request to hold it at the courthouse.

The court limited the plaintiffs to 12 total hours of questioning over the two days, rather than the 14 hours that could otherwise have been available for depositions in two cases. Ulrich could take frequent and extended breaks after each hour of questioning, testify from his home, and have Campolo in the room if necessary. If Campolo attended, she had to remain visible on the video screen to prevent improper communications.

Warning about possible sanctions

The court warned that failure to participate in the scheduled deposition would result in sanctions under Rule 37. The plaintiffs had proposed severe sanctions, including default judgment or treating the facts in their complaints as established. The court stated that default judgment would be too severe for a potential failure to appear, but indicated that an appropriate possible sanction would be barring Ulrich from offering testimony supporting his defenses later in the litigation and awarding the plaintiffs reasonable costs and expenses. The order did not impose those sanctions at that time.

The parties were directed to report by June 25, 2021, whether discovery issues remained. If Ulrich failed to appear, the plaintiffs were directed to include a formal request for specific sanctions and documentation of their costs and expenses.