United States District Court, S.D. New York
January 5, 2015
Qube Films Ltd., et al., Plaintiffs,
Bert Padell, et al., Defendants
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 separately determine whether a protective order is needed to prevent serious harm to Padell that may be caused by the taking of his deposition.
Rule 26(c) grants district courts discretion to grant a protective order " to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, " but the moving party bears the burden of establishing good cause for such a protective order. McDonnell v. First Unum Life Ins. Co., No. 10 CV 08140 (RPP), at *2-4 (S.D.N.Y. Jan. 4, 2012). Moreover, it is well recognized that entirely prohibiting the taking of an oral deposition is very unusual. In re McCorhill Publ'g, Inc., 91 B.R. 223, 225 (Bankr. S.D.N.Y. 1988) (citing 8 Alan A. Right and Arthur R. Miller, Federal Practice and Procedure § 2037 (1986 Supp.)).
Courts in this circuit have noted that, " [f]or purposes of a protective order, 'good cause' is established when a party is able to show that a 'clearly defined, specific and serious injury' will occur in the absence of such an order." McDonnell, at *3 (citing In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006)). Furthermore, " '[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, ' are not sufficient to satisfy the burden." Id. (quoting Cipollone v. Ligget Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). Thus, for example, protective orders are generally not granted where the contentions of a treating physician are conclusory or speculative in nature. See Campos v. Webb Cnty. Tex., 288 F.R.D. 134, 136-37 (S.D. Tex. 2012) (collecting cases). If harm to a witness from a deposition is of potential concern, but does not rise to the level of a clearly defined and serious injury, courts can fashion accommodations to limit the potential harm to the deponent. See, e.g., Schorr v. Briarwood Estates Ltd. P'ship, 178 F.R.D. 488, 492 (N.D. Ohio 1998) (imposing conditions on the witness's deposition, such as taking the deposition at a neutral site, scheduling the deposition for two-hour segments, and requiring the presence of a magistrate judge).
Padell cites Topo v. Dhir, 210 F.R.D. 76 (S.D.N.Y. 2002) to argue that good cause need not be shown with specificity, but that case has little bearing here. In Topo, Magistrate Judge Ellis granted a protective order barring defendants from inquiring about the immigration status of a non-U.S. citizen plaintiff who was suing her former domestic service employer for wage and hour violations. In holding that the plaintiff need not show good cause with specificity, Magistrate Judge Ellis nonetheless noted that " Plaintiffs fears of her immigration status deterring further prosecution of her claims are well-founded." Topo, 210 F.R.D. at 78. In other words, good cause was shown in light of the circumstances of that case and no further showing of harm was required.
Padell's counsel earlier alleged that Padell would suffer harm if he were deposed, and Plaintiffs countered that he had already been deposed without incident in a similar action in Illinois. Therefore, and as noted, at the August 13, 2014 conference, the Court directed Padell's counsel to provide supplementary factual material regarding the harm that Padell suffered from his deposition that was taken earlier this year in the Illinois proceeding and the harm that he would suffer if he were deposed again in this matter. Although Padell's counsel submitted a supplemental report from Dr. Hausknecht dated September 5, 2014 and an additional report from Dr. William Barr dated July 14, 2014, neither report addresses the specific issue that the Court noted was of most relevance to the present motion: the harm that Padell would suffer if he were deposed in this action. Although both reports indicate that Padell suffers from Parkinson's disease and dementia and has experienced cognitive decline associated with those conditions, neither report indicates whether Padell will suffer harm from the taking of his deposition, much less what that harm would be. Based on the Court's specific directive to Padell's counsel to address, with supplementary factual support, the harm Padell would suffer if he were deposed in this matter, the Court concludes that Padell's counsel have failed to satisfy the good cause showing required under Rule 26(c) because they have not pointed to a clearly defined injury that Padell would suffer from the taking of his deposition in this matter. Accord McDonnell, at *3.
In addition, Padell consented to an independent medical examination at the request of Plaintiffs. Dkt. No. 46. That independent medical examination was conducted by Dr. Daniel A. Barone, who prepared a report of his examination dated October 29, 2014. Dr. Barone's report concurs with Dr. Hausknecht's and Dr. Barr's diagnoses of Padell as suffering from Parkinson's disease and dementia. Dr. Barone believes that although Padell is suffering from cognitive decline that would be associated with Parkinson's disease and dementia, his long-term memory is intact. Dr. Barone also concludes that it would be reasonable to assume that if given prompts, such as written records, from the time in question, Padell would be able to remember at least in some detail what transpired. Finally, Dr. Barone states that he did not see the medical basis for a conclusion that sitting through a deposition would cause serious harm to Padell. He bases this finding, in part, on the fact that Padell did not exhibit stress or discomfort during his roughly 75 minute examination of Padell. However, Dr. Barone recommends that Padell be given adequate time for breaks during the deposition, such as every one to two hours.
Finally, Plaintiffs' counsel submitted a video obtained from YouTube that purportedly shows Padell " on his feet for more than eight minutes regaling a crowd with war stories on the occasion of his accepting an award at the Harvard Club" in 2010. Pis.' Supp. Br. at 3. Because the issue before the Court is whether harm may befall Padell from the taking of his deposition based on his current mental state and cognitive ability, the video was not considered in deciding this motion.
The Court denies Padell's motion for a protective order that would protect him from answering any interrogatories and/or requests for admissions and from the taking of his deposition. However, the Court hereby orders certain accommodations to be implemented in the taking of his deposition. First, the deposition shall be segmented to allow for breaks at least every one to two hours. Second, Mr. Weisberg. Padell's guardian ad litem, shall be present during the deposition and shall use his discretion to request additional breaks as needed for Padell. The Court notes that there appears to be no dispute that Padell suffers from certain cognitive decline that may render him unable to recall the answers to questions that may be posed to him at his deposition. To the extent that is the case, Padell may respond, as anyone may do in like circumstances, with an answer to that effect.
In light of the denial of Padell's motion for a protective order, the Court hereby sets the following revised case management plan for this case:
o All fact discovery in this case, with the exception of discovery concerning Padell, should have been completed by September 12, 2014. See 08/13/14 Tr. 42:5-11. Therefore, the parties shall have until February 6, 2015 to complete the remaining fact discovery concerning Padell.
o Because the parties earlier indicated that expert discovery shall be completed at the same time as fact discovery, all expert discovery shall be completed by February 6, 2015. See Dkt. No. 33 ¶ 9.
o All counsel must meet in person for at least one hour to discuss settlement within fourteen (14) days following the close of fact discovery.
o Counsel for the parties shall submit a letter to the Court no later than February 20, 2015 indicating whether the parties would like a referral to a Magistrate Judge for a settlement conference, or referral to the Southern District's Mediation Program, or continued use of a private mediator. See Dkt. No. 42.
o Summary Judgment and Daubert motions are to be filed within 30 days of the close of all discovery.
o Within forty (40) days of the close of all discovery, or, if a dispositive motion has been filed, within fourteen (14) days of a decision on such motion, the parties shall file via ECF a Joint Pretrial Report prepared in accordance with the Court's Individual Practices and Fed.R.Civ.P. 26(a)(3). Any motions in limine shall be filed via ECF at the same time that the Joint Pretrial Report is filed. If this action is to be tried before a jury, proposed voir dire, jury instructions, and a verdict form shall also be filed at the same time as the Joint Pretrial Report.
o The parties shall be ready for trial within two weeks of filing the Joint Pretrial Report.