Document pmpmbM9gDyVDgKeM99mD78G9d

NIT5D STASS Bl&mXGS COURT EASTSRaE%DSZ9SSH7RSXD09VQIS&IOMISSOURI pitees fJAN 3 0 J99S BZSiLI&K R* SAPPS!* ) Plaintiff* ) ) I VB. ) ) Pm2mV9RS0R1B*2qRf$ct!aToM.s REaSnEaARCH FOUNDATION, )) D efendants* ) - i cese tfo* $i~i938C)(c a s ) MLMJ SMPBftURglg a ^ U S E S B This matter is before the Court on Will inn G&ffey's {"Plaintiff") complaint against Peter Montague and Environmental Research Foundation ("Defendants"} he case is before th undersigned for disposition of all discovery motions (28) one such motion la currently ponding-- the Motion of Non-Party Dan SU Bishop to Quash a Subpoena pursuant to Fed. R. Civ. P, 45(c)(3)(A) (iv). [70]. Rule 45(c) (3) (A).provides that, "[o]n timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it..* (iv) subject a person to undue burdenv" Kuls 45(c)(3)(A)-- and clause (iv) in particular-- was designed to trade Fed.R.civ.P. 26(c), the principal protective order provision applicable in federal discovery. Fed. R. Civ. P. 45 Advisory Committee Notes to 1991 Amendments. Rule 26(c) permits the court to issue protective orders prohibiting depositions upon a showing of "good causs, " which exists when justice requires the protection of a "party or a person from annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c). * The person requesting a protective order or the quashing or a subpoena must make a specific demonstration of facte in support of the request as opposed to conolueory or speculative statements about the harm whioh vill be suffered if the requested deposition is taken, fiss rrideres v. Schlita, 150 153, 153 (s.D.Xa. 1993)* Protective orders prohibiting depositions are rarely granted; however, a deposition Which poses a direct threat to the witness' health and life is an undue burden. 8ae jd,1 in Support of bis 'otion Hr Biehop explains that he la suffering from prostate cancer whiah hae spread widely through his bone marrow. {Motion, 3 2). He Is on weekly chemotherapy, is receiving Pent any1, described as a morphine-like painkiller, and is in a wheelchair after suffering stress fractures of his lower extremities. (Id.) In support of hie motion, Mr. Bishop submits the letter of his treating physician, who writes, in relevant part: [Hr. Bishop) is on a significant amount of morphonoid analgesic specifioally receiving Fentanyl patch subcutaneously on a continuous basis. He supplements this with additional 1 In Frideres. supra, the district court granted a protective order to a non-party witness who suffered from a life-threatening inflammatory bowel disease directly aggravated by stress, it is to be .noted, that the deposition sought was certain to cause the witness stress-- the underlying lawsuit wee brought by the witness' adult sister who was suing other family members for alleged sexual abuse which occurred when the sister was a child. Moreover, the district oourt allowed the deposition of treating physicians and provided in its order that the parties could apply for relief from the protective order after those depositions. In the instant case, Hr. Bishop's doctor writes that, "[Mr. Bishop's) ability to perform adequately in a subpoena deposition is somewhat in question,0 and notes hie concern with the potential stress to Hr. Bishop which might be caused by a deposition. There is no indication, however, that the doctor's concern for Mr. Bishop's ability to perform cannot be accommodated and that the possibility of stress cannot be reduced by the parties' cooperative planning. 2 * analgesic He is on weekly chemotherapy with all of his (sic) attendant side effects* In my judgment, his ability to perform adequately in a subpoena deposition is somewhat in question* In addition, x think it places an undue amount of stress on this patient who is in [anl extreme life threatening situation in regard to treatment for an aggressive widely metastatic malignancy. Mr. Bishop is clearly gravely ill. Xn response, Defendants have indicated their willingness to accommodate Mr. Bishop's medical and health limitations and have requested to speak with his physician in an effort to schedule a deposition in such a manner that would cause Mr* Bishop the least amount of stress: See Osinas v. Vermeer Manuf. Co*, 133 F.R.D. 46, 49 (D.Ks. 1990) (requiring deposition of ill non-party to be taken in such a manner that permitted witness to have short recesses whenever anxiety or frustration affected his ability to respond to counsel's inquiries) Therefore, based upon a review of the record, this Court will deny the motion to quash, but will direct the parties and Mr* Bishop's counsel to agree upon a reasonable and appropriate manner of taking Mr. Bishop's deposition which will accommodate hi medical and health limitations* Further, it 1c to be specifically tfcatin ruling upon this motion, the Court takes no position as to the admissibility at trial of any deposition testimony given by Kr* Bishop. - 3- Accordingly, 17 IS SHABBY ORDERED that Non-Party Dan Biahop'a Motion to Qash Subpoena is ftfSD. [70] united S tates magistrate judge <Dat$adthis ^io day o. January, 1995* 4 JO SEPH V LEfitTZ THOMAS J. P AMTHONY B. UitfjtMU WK EIHR TS * JAM& C.tERl-rt CHRISTOfH En E. MCORAUOH KAYHLEKH M- THOMPSON CHHISTOFHKR P. VER1T* KDWAftu M.ROTH IjKUIVK. l ^ U K K E ! 1<& BHUNING, JC. a t t o s n e t aY VMM OWE CTY CBKITPC suits aooi ST. LOUIS, Mtg&OURl 3101 1914) 29 1-00 00 P A X : 19141 2 3 1 -0 4 0 0 j . i o, uo i i s uh tii nl . 4 AHO MCCNftCD IN HliNOI COMMENTS: