Hussein Muhsin et al. v. Richard Weaver, M.D. (2010)

MEMORANDUM OF DECISION RE MOTION FOR A PROTECTIVE ORDER (# 164)

On June 21, 2001, the defendant, Dr. Richard Weaver, sought a protective order from the court to prevent the plaintiff from noticing a video-taped trial deposition for Mildred Shatrousky on the same date that the defendant's discovery deposition is scheduled.   It claims that he would be prejudiced by this procedure in several ways.   First the defendant would not have the benefit of the discovery deposition to prepare for the trial deposition.   Further if the discovery deposition identified additional sources of information that would facilitate cross examination, there would be insufficient time to develop that information.   On oral argument on this motion, the defendant indicated that it did not object to the video taping of any of the depositions, but rather the consecutive scheduling of the depositions.

The deponent is a registered nurse who is a certified life care planner, and who has prepared a report on the condition of the plaintiff, but who has not yet been disclosed as an expert in this case.   This case has not yet been scheduled for trial.

The plaintiff opposes this motion for a protective order asserting that there is no distinction in the Practice book sections relating to a “discovery deposition” as opposed to a “trial deposition.”   The plaintiff has indicated his intent to use the videotaped discovery deposition in lieu of the deponent's live testimony at trial.   He asserts that it would be more economical to only take the deposition one time.   It should be noted however, the defendant has noticed, at its expense, the deposition of Ms. Shatrousky.   Other than the expense of the plaintiff's attorney time the plaintiff is not incurring any expense.   If the plaintiff wishes to videotape the deposition at their expense, this is an expense they are electing to assume.

The court requested post-trial briefs on any authority as to the distinction between a trial deposition and the discovery deposition.

There is a substantial difference with a discovery deposition taken of an individual who has or will be offered as an expert in a trial and the videotaping of a deposition to be used at trial in lieu of live testimony.   Discovery depositions are per force an essential discovery tool to flesh out an expert's testimony and reasoning.   It allows the party noticing the deposition to inquire in an open ended matter and to identify areas that may be fertile for cross examination at trial.   Most trial counsel still adhere to the maxim of “(D)o not ask a question on cross examination if you do not already know the answer to that question.”   Without the benefit of a discovery deposition the defendants could not adhere to that maxim.   The court is not persuaded by the arguments put forward by the plaintiff on these points.   Absent extenuating circumstances such as the ill-health of the deponent or the like, and absent a current trial date, there is no need in the court's opinion for these two noticed depositions to be completed on the same date.

The defendant's motion for a protective order is granted as follows:

1. The plaintiff may video tape the deposition noticed by the defendant with regard to Mildred Shatrousky.

2. The plaintiff may not schedule a deposition to be used in lieu of Shatrousky's trial testimony until two weeks after the delivery of the deposition transcript and a signed errata sheet to the defendant.

3. The court leaves to the trial court the issue of what use, if any, it will allow the plaintiff to make of this deposition.

The Court

Cosgrove, J.

Cosgrove, Emmet L., J.