United States District Court, S.D. New York
For Qube Films Ltd., Plaintiff: Michael Mark Strage, LEAD ATTORNEY, Law Office of Michel Strage, New York, NY; Homayoon Arfazadeh, Python & Peter, Geneva, SW; Michael Strage, PRO HAC VICE, New York, NY.
For Navid Soofi, Matt Kelley Films, Ltd, Plaintiffs: Michael Strage, PRO HAC VICE, New York, NY.
For Bert Padell, Defendant: Mark Kenneth Anesh, LEAD ATTORNEY, Lewis, Brisbois, Bisgaard & Smith, LLP, New York, NY; Andrew Jay Multer, Bahn, Herzfeld & Multer, LLP, New York, Ny; Anthony Proscia, Lewis Brisbois Bisgaard & Smith LLP (Water St), New York, NY.
MEMORANDUM AND ORDER
ALISON J. NATHAN, United States District Judge.
Before the Court is Defendant Bert Padell's motion for a protective order pursuant to Federal Rule of Civil Procedure 26(c). Because the Court concludes that Padell has failed to establish the good cause showing that is necessary for a protective order to preclude his deposition and written discovery, the motion is DENIED. However, as will be explained in greater detail below, Plaintiffs consent to, and the Court will hereby order, reasonable accommodations in light of Padell's health needs.
Plaintiffs commenced the present cause of action against Defendants Bert Padell, Padell and Company, and T.D. Bank Ltd. on November 25, 2013. Dkt. No. 1. In an Opinion and Order dated August 12, 2014, the Court dismissed the Plaintiffs' claims against Defendant T.D. Bank Ltd. in their entirety. Dkt. No. 40.
In a letter dated July 18, 2014 that was submitted via email to the Court, Padell's counsel requested the following relief: (1) the appointment of a guardian ad litem pursuant to Rule 17 for Padell; (2) a protective order pursuant to Rule 26(c) protecting Padell from answering any interrogatories and/or requests for admissions and from the taking of his deposition; (3) leave pursuant to Rule 5 to file the motions under seal; and (4) a stay pursuant to Local Rule 37.2 of all discovery and proceedings directed toward Padell. The Court permitted Padell's counsel to file the July 18, 2014 letter under seal, set a schedule for the parties to brief (under seal) the issues raised in the letter, and set a conference on the issues raised in the letter for August 13, 2014. Dkt. No. 35. The Court also ordered discovery to continue as scheduled, with the exception of any discovery directed toward Padell, which would be stayed until further order from the Court. Dkt. No. 35.
As part of the requested briefing ahead of the August 13, 2014 conference, Padell's counsel submitted the May 30, 2014 deposition testimony of Padell's treating physician, Dr. Allan Hausknecht, which was taken in a separate proceeding in Illinois that is captioned Air Energy Global, Inc. v. Napoleon Grier, et al., No. 12-CV-875 (DRH) (SCW) (S.D. Ill.). That testimony and associated medical report indicated that Dr. Hausknecht had diagnosed Padell with " Parkinson's dementia complex." Dr. Hausknecht further stated that the defects in Padell's cognitive abilities are magnified and increased in a situation of stress. Plaintiffs countered that the magistrate judge overseeing discovery in that proceeding had denied the same relief Padell's counsel is seeking in this proceeding (albeit without the benefit of Dr. Hausknecht's testimony, which was provided after the requested relief had been denied) and, furthermore, that Padell was deposed in that proceeding without incident.
At the August 13, 2014 conference, Plaintiffs took the position that Padell's request was not genuine, citing the fact that his counsel has been aware of his alleged infirmities since November 2013 and yet requested the present relief on the eve of Padell's deposition. 08/13/14 Tr. 3:11-4:10. Nonetheless, as noted at the conference, Plaintiffs had not come forward with any evidence to counter the testimony of Padell's treating physician, which, as noted above, raised serious concerns regarding the need for the appointment of a guardian ad litem and a protective order for Padell. Therefore, at the August 13, 2014 hearing, the Court indicated that it would appoint a guardian ad litem for Padell to protect his interests in this litigation.
The Court also ordered the parties to provide supplemental briefing to address additional legal and factual issues concerning the entry of a protective order to protect Padell from answering any interrogatories and requests for admissions and from the taking of his deposition. Specifically, the Court ordered Padell's counsel to provide a contemporary report, as opposed to merely the prior deposition testimony of Dr. Hausknecht, that addresses Padell's current conditions and abilities and what impact the prior deposition had on him.
Following a series of joint letters to the Court in which Plaintiffs' counsel confirmed that they did not oppose the appointment of a guardian ad litem, the Court appointed Mr. William I. Weisberg, a certified guardian ad litem with the New York State Office of Court administration, to serve as Padell's guardian ad litem. See Dkt. Nos. 43, 45. Weisberg is now appearing in this matter as an interested party as Padell's guardian ad litem .
As an initial matter, Padell's counsel now concedes that the question of whether a guardian ad litem should be appointed is entirely separate from the question of whether a Court should also enter a protective order to bar the taking of a witness's deposition. Def. Supp. Br. at 1 (citing Deno v. Blackman, No. 10 Civ. 8550 (KBF), (S.D.N.Y. Nov. 30, 2011)). Even though the Court has appointed a guardian ad litem to protect Padell's interests in this litigation in light of the very serious concerns regarding his cognitive abilities, the Court must ...