CAROL MIRANDO, Magistrate Judge.
This matter is before the Court on various discovery motions pending in the case that relate to certain depositions, as well as a request by Plaintiffs to extend the discovery deadline by 120 days. Discovery in this case closes on October, 31, 2014 (Doc. 212), and the case is currently set for trial during the March 2, 2015 trial term. Doc. 141. Upon review of the motions and responses,
On October 7, 2014, the Court granted Plaintiffs leave to take a second deposition of out-of-state fact witness LaVay, the trust advisor formerly with Wells Fargo who administered the trusts at issue in this case.
The parties have been unable to reach an agreement as to whether the deposition will be held in-person or telephonically. Plaintiffs desire that it be held in person in Pennsylvania, where LaVay resides. LaVay has moved for a protective order pursuant to Federal Rule 26 because of undue burden, requesting, in part, that the Court require the deposition to take place telephonically and be limited to two hours. LaVay also requests that she be provided with copies of the four documents prior to her deposition.
Rule 26 provides that before a protective order may issue, the movant must show good cause why justice requires an order to protect a party or person from "annoyance, embarrassment, oppression, or undue burden or expense." See Fed. R. Civ. P. 26(c). To establish good cause, the moving party must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." U & I Corp. v. Adv. Med. Design, Inc., 251 F.R.D. 667, 673 (M.D. Fla. 2008) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)). Conclusory predictions of "annoyance" and "embarrassment" cannot justify a protective order. See Dang v. Eslinger, 2014 WL 3611324, at *3 (M.D. Fla. July 22, 2014) (citing Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001) ("[T]he movant must articulate specific facts to support its request and cannot rely on speculative or conclusory statements."); Bucher v. Richardson Hospital Auth., 160 F.R.D. 88, 92 (N.D. Tex. 1994) ("Conclusory assertions of injury are insufficient.")).
Although Plaintiffs argue that they are entitled to conduct the deposition in person, Federal Rule 26 authorizes the Court to prescribe a different method of discovery other than the one selected by the party seeking the discovery, which could encompass a plaintiff's deposition being taken in a different location, or by alternative means, if justice so requires. See Fed. R. Civ. P. 26(c)(2)(C); Trinos v. Quality Staffing Svcs. Corp., 250 F.R.D. 696 (S.D. Fla. 2008). "Rule 26(c) gives the district court discretionary power to fashion a protective order. The decision does not depend upon a legal privilege." Farnsworth v. Procter & Gamble, Co., 758 F.2d 1545, 1548 (11th Cir. 1985).
LaVay, although a former employee of Defendant, is not a party to this action. The Court finds that LaVay has shown good cause for the deposition to take place telephonically. The acrimony between counsel for the parties and the witness has reached such a level that the Court finds it best that the deposition proceed telephonically. The Court notes that it already significantly limited the second deposition of LaVay in its October 7, 2014 Order (Doc. 241) to questions regarding one topic and four documents. Thus, it should not be particularly difficult to examine the witness over the telephone. The Court still finds that the deposition should take no more than half a day, which the Court will now define as 9:00 a.m.— 12:00 p.m. This should be more than enough time to question LaVay on this narrow topic.
LaVay's deposition may be set for a date prior to the discovery deadline
LaVay also requests that any reference to her be removed from the CM/ECF docket because Plaintiffs' counsel has impugned her reputation in their filings. For example, LaVay informs the Court that Plaintiffs identify LaVay's home address in one of its filings. Doc. 192 at ¶ 16. The Court agrees that there is no reason for Plaintiffs to include LaVay's home address in any court filings. Thus, the Court will direct the Clerk to place Doc. 192 under seal. If there are any other references to LaVay's home address in the docket, LaVay's attorney is directed to inform the Court and those filings will be placed under seal.
Finally, LaVay requests that she be awarded her reasonable attorneys' fees and expenses incurred in this action to date pursuant to Federal Rules 30 and 37. The Court finds that sanctions are not warranted at this time but informs the parties that it will be inclined impose sanctions against either party "who impedes, delays, or frustrates the fair examination of the deponent" of any future depositions pursuant to Federal Rule 30(d)(2).
Plaintiffs move to expand the scope of LaVay's second deposition and take a second deposition of fact witnesses Craven and Destafney. Docs. 243, 244, 245. As grounds, Plaintiffs state that Defendant's Answer to Plaintiffs' Second Amended Complaint (Doc. 240), filed on October 3, 2014, pleads 46 affirmative defenses for the first time. Plaintiffs wish to question LaVay, Craven and Destafney regarding their knowledge of the affirmative defenses. Plaintiffs assert that October 3, 2014 was the first time they were aware of the 46 affirmative defenses. Wells Fargo responds that this is not the first time it has pled the affirmative defenses, as 38 of the affirmative defenses were included in its original answer filed in this case on September 9, 2011.
When a party seeks leave to re-examine a deponent, the court's decision whether to grant such leave is governed by Federal Rule 26(b)(2), which provides, in pertinent part,
Fed. R. Civ. P. 26(b)(2).
Although Plaintiffs argue that they are entitled to discover facts relating to Defendant's affirmative defenses, the Court finds that Plaintiffs have already had ample opportunity to do so in this case by the discovery deadline and failed to do so. See Fed. R. Civ. P. 26(b)(2)(ii). Plaintiffs were free to question any witness regarding their knowledge of the 38 affirmative defenses that they have been aware of since September 2011. And it appears that Plaintiffs were otherwise aware of the "new" affirmative defenses when Defendant provided Plaintiffs with its expert report on May 2, 2014, prior to the fact witnesses' depositions. It is incorrect for Plaintiffs to state in their motion that they were previously unaware of all 46 affirmative defenses, and they do not otherwise point the Court to any specific defensive theory that is completely new to them. Thus, the request to expand the scope of LaVay's second deposition and take a second deposition of Craven and Destafney are denied.
Wells Fargo moves for a protective order pursuant to Federal Rule 26(c) to preclude Plaintiffs from proceeding with the deposition of Wells Fargo's corporate representative because Plaintiffs unilaterally noticed the deposition on October 14, 2014 to take place on October 30, 2014 in Naples, Florida.
The Court, mindful of Local Rule 3.04(b) and the LeBlanc factors, finds that the balance of those considerations favor conducting the deposition in this District. Counsel for all parties are located in Florida. Thus, Wells Fargo's motion for protective order is denied. All documents that Plaintiffs' counsel intends to use at the deposition shall be provided to opposing counsel at least seven days in advance of the deposition.
Plaintiffs moves to extend the discovery deadline in this case by 120 days. Doc. 255. As grounds, Plaintiffs state that they wish to conduct discovery to test the sufficiency of the 46 affirmative defenses and test the sufficiency of Third-Party Defendant Roberta Sue Casselberry's ("Casselberry") counterclaim, filed on October 9, 2014 (Doc. 253).
Finally, a review of the Case Management and Scheduling Order shows that the mediation deadline was October 15, 2014. Doc. 141. The Scheduling Order states that mediation was to occur with mediator Tara Dane, 1110 Fifth Avenue South, Naples, FL, 34102. Id. Pursuant to Local Rule 9.06(a), within seven days following the conclusion of the mediation conference, the mediator shall file a mediation report indicating whether the parties settled. No mediator report has been filed to date, and the parties have not requested an extension of the mediation deadline. Thus, the parties are directed to inform the Court as to the status of the court-ordered mediation.
ACCORDINGLY, it is hereby
1. Plaintiffs' Amended and Updated Second Motion for Extension of Time Pursuant to Rule 6(b) of the Federal Rules of Civil Procedure with Updated Good Faith Conference Clarification (Doc. 255) is
3. Plaintiffs' Motion for Leave to Expand Scope of Second Deposition of Linda LaVay (Doc. 243), Plaintiffs' Motions for Leave to Take Second Deposition of Thomas Craven (Doc. 244) and Bernard Destafney (Doc. 245) are
4. Linda LaVay's Amended Motion Seeking Protective Order under Federal Rule 26(c) Preventing Further/Continuing Deposition of Non-Litigant Fact Witness (Doc. 279) is
5. The Clerk is directed to place Doc. 192 under seal, as it contains personal identifiers.
6. Wells Fargo Bank, N.A.'s Motion for Protective Order (Doc. 263) is
7. Plaintiffs' Motion to Extend Time for Compliance with Court Order dated October 7, 2014 (Doc. 273) is
8. On or before
Fed. R. Civ. P. 30(c)(2). If any issues arise during the deposition, the parties may contact chambers.