Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.
Filing
334
ORDER denying 286 Plaintiffs' Motion for Leave to Take Continued Deposition of William Ries; granting 293 Defendant Sue Casselberry's Motion for Protective Order; denying 294 Plaintiffs' Motion to Compel Deposition Answers; deny ing 295 Plaintiffs' Motion to Deem Plaintiffs' Requests for Admissions to Defendant Admitted; denying 297 Plaintiffs' Motion to Compel Response to Plaintiffs' Fourth Request for Production; denying 301 Third Party Defendant Bruce D. Berlinger's Motion to Compel Responses to Third Party Defendant's Interrogatories and Second Interrogatories to Defendant Wells Fargo Bank N.A. Signed by Magistrate Judge Carol Mirando on 11/26/2014.(ALB) Modified on 11/26/2014 (ALB).
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, as
beneficiaries to Rosa B. Schweiker
Trust and all of its related trusts, also
known as STACEY BERLINGER
O’CONNOR, BRIAN BRUCE
BERLINGER,
Plaintiffs,
v.
Case No: 2:11-cv-459-FtM-29CM
WELLS FARGO, N.A., AS
SUCCESSOR TO WACHOVIA BANK,
N.A., as Corporate Trustee to the
Rosa B. Schweiker Trust, and all of its
related trusts,
Defendant/Third
Party Plaintiff,
BRUCE D. BERLINGER and
SUE CASSELBERRY,
Third Party
Defendants.
ORDER
This matter is before the Court on various discovery motions pending in the
case.1 On October 31, 2014, the discovery deadline was extended by the Court for
1
The motions include: Plaintiffs’ Motion for Leave to Take Continued Deposition of
William Ries (Doc. 286), to which Wells Fargo has responded (Doc. 324); Third Party
Defendant Sue Casselberry’s (“Casselberry”) Motion for Protective Order (Doc. 293), to which
Plaintiffs responded (Doc. 321); Plaintiffs’ Motion to Compel Deposition Answers (Doc. 294),
to which Casselberry responded (Doc. 322); Plaintiffs’ Motion to Deem Plaintiffs’ Requests
for Admissions to Defendant Admitted (Doc. 295); Plaintiffs’ Motion to Compel Response to
Plaintiffs’ Fourth Request for Production (Doc. 297); and Third Party Defendant Bruce D.
Berlinger’s (“Berlinger”) Motion to Compel Responses to Third Party Defendant’s
two, very limited purposes.
Doc. 281.
Namely, to allow the second telephonic
deposition of fact witness Linda LaVay, and to allow the corporate representative
deposition of Wells Fargo, N.A. (“Wells Fargo”) to take place. Id. at 11. The parties
were cautioned in that Order that no other discovery other than this may take place.
The Court will rule on some of the issues raised,2 but finds that the others
(Docs. 295, 297, 301) are due to be denied as untimely filed after the October 31, 2014
discovery deadline, which had already been extended by the Court for the convenience
of the parties to allow the scheduling of multiple depositions in October. The record
is clear that the parties delayed conducting the majority of discovery in this case until
the eve of the October 31, 2014 discovery deadline, and waited to file discovery
motions until after the deadline although the issues could have been raised earlier.
The case management and scheduling order states that the Court may deny discovery
motions as untimely that are filed after the discovery deadline. Doc. 141 at I.D.
Denial on this basis is warranted because this case has been pending for over three
years,3 and the parties have had ample opportunity to conduct such discovery and
present these issues to the Court prior to this time.
Interrogatories and Second Interrogatories to Defendant Wells Fargo Bank N.A. (Doc. 301).
Plaintiffs’ Motion for Leave to Take Continued Deposition of William Ries (Doc. 286)
was filed on the discovery deadline, and the motions concerning the deposition of Casselberry
(Docs. 293, 294) were filed by counsel as soon as possible after the October 27, 2014 deposition
of Casselberry. Thus, for this reason and because the motions raise the discoverability of
sensitive financial information, the Court will rule on those issues.
2
The Court is mindful that this matter was stayed for a year while the issue of
counsel’s disqualification was resolved. Docs. 72, 88. However, that does not explain the
parties’ delay in filing the discovery motions. The stay was lifted on August 6, 2013 (Doc.
88), after which the parties filed a joint case management report, agreeing to an October 1,
2014 discovery deadline (Doc. 90), which was subsequently extended at the Plaintiffs’ request
to October 31, 2014 (Doc. 212). Thus, the parties have been well aware of the discovery
3
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I.
Plaintiffs’ Motion for Leave to Take Continued Deposition of William
Ries (Doc. 286)
On October 23, 2014, Plaintiffs deposed Defendant Wells Fargo’s expert
William Ries, in Pittsburgh, Pennsylvania. Plaintiffs’ counsel chose to terminate the
deposition early, claiming that the deposition was being impeded, delayed and
frustrated by counsel for Wells Fargo and Casselberry by improper speaking
objections.
Wells Fargo responds, with citations to the record in this case, to
demonstrate that Plaintiffs’ counsel has engaged in the same speaking objections in
other depositions. Plaintiffs now “seek the Court’s guidance on deposition behavior”
and ask the Court for leave to continue the deposition of Mr. Ries. Doc. 286 at ¶ 11.
Objections at the deposition must comply with Federal Rule 30, which states:
An objection at the time of the examination—whether to evidence, to a
party's conduct, to the officer’s qualifications, to the manner of taking
the deposition, or to any other aspect of the deposition—must be noted
on the record, but the examination still proceeds; the testimony is taken
subject to any objection. An objection must be stated concisely in a
nonargumentative and nonsuggestive manner. A person may instruct
a deponent not to answer only when necessary to preserve a privilege,
to enforce a limitation ordered by the court, or to present a motion under
Rule 30(d)(3).
Fed. R. Civ. P. 30(c)(2). The Court has reviewed the deposition transcript of Mr. Ries
(Doc. 286-1) and finds that opposing counsel did not impede, frustrate or delay the
fair examination of Mr. Ries.
Counsel made their objections on the record, and
although some were speaking objections, it did not rise to such a level that Plaintiffs’
counsel could not continue with the deposition. Opposing counsel did not instruct
deadline in this case for over a year and should have proceeded accordingly.
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the witness not to answer. Thus, the motion for a continued deposition of Mr. Ries
is denied. Plaintiffs had an opportunity to depose Mr. Ries, and discovery has only
been extended for two limited purposes.
II.
Casselberry Deposition Motions (Docs. 293, 294)
In this case, in their Second Amended Complaint, plaintiffs Stacey Sue
Berlinger, Brian Bruce Berlinger, and Heather Anne Berlinger, beneficiaries to the
Rosa B. Schweiker Trust and all of its related trusts, allege that Wells Fargo,
corporate co-trustee of the trusts, wrongfully distributed trust funds to the mother,
Casselberry, as a result of her 2007 divorce settlement with Berlinger. Doc. 93.
Wells Fargo asserted a third-party claim against Casselberry for unjust enrichment,
alleging that if it is liable to Plaintiffs, Casselberry would be liable to Wells Fargo for
the amount of alimony payments she has received from Bruce Berlinger. Doc. 60.
Casselberry then asserted a counterclaim against Plaintiffs and Wells Fargo for
breach of contracts entered into by Plaintiffs and Wells Fargo wherein Plaintiffs had
a contractual duty not to frustrate the provisions of the Marital Settlement
Agreement. Doc. 253. Casselberry was deposed on October 27, 2014.
At the deposition, Plaintiffs’ counsel asked Casselberry, “What do you have
presently by way of assets?” Doc. 293-1 at 61. Casselberry was instructed by her
counsel not to answer the question on relevancy grounds. Id. at 63. Thereafter,
Casselberry moved for a protective order (Doc. 293) to protect her from having to
answer the question, arguing that requiring her to answer the question and divulge
her financial situation to her ex-husband and children would cause her
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embarrassment and undue burden.
Moreover, Casselberry argues that the
information is irrelevant to her counterclaim for breach of contract.
Plaintiffs
respond that they are entitled to the information, and move to compel (Doc. 294),
because in the event Wells Fargo’s claim for unjust enrichment against Casselberry
is successful, Plaintiffs are only liable on the breach of contract claim for any amount
Casselberry is able to pay Wells Fargo under the unjust enrichment claim. Plaintiffs
claim this information is required to know what their potential damages are if
Casselberry’s breach of contract claim is successful.
Rule 26 of the Federal Rules of Civil Procedure 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.”)).
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Under Florida law, a party’s personal financial information is entitled to
heightened protection in litigation proceedings.
[P]ersonal finances are among those private matters kept secret by most
people. Woodward v. Berkery, 714 So.2d 1027, 1035 (Fla. 4th DCA
1998) (citing Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544
(Fla. 1985)). The right of privacy set forth in article 1, section 23, of the
Florida Constitution undoubtedly expresses a policy that compelled
disclosure through discovery be limited to that which is necessary for a
court to determine contested issues. Id. at 1036. It follows that the
disclosure of personal financial information may cause irreparable harm
to a person forced to disclose it, in a case in which the information is not
relevant. Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002).
Rappaport v. Mercantile Bank, 17 So.3d 902, 906 (Fla. 2d DCA 2009) (quotes
omitted); see also Diaz-Verson v. Walbridge Aldinger Co., 54 So.3d 1007, 1009 (Fla.
2d DCA 2010) (noting that the disclosure of personal financial information may cause
irreparable harm when a person is compelled to disclose it and the information is not
relevant to the proceedings at issue). “A party’s finances, if relevant to the disputed
issues of the underlying action, are not excepted from discovery under this rule of
relevancy, and courts will compel production of personal financial documents and
information if shown to be relevant by the requesting party.” Friedman v. Heart
Institute of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla. 2003).
The Court finds that disclosure of Casselberry’s personal financial information
at this point in the litigation is improper.
Personal financial information might
arguably be relevant sometime later in the proceedings, post judgment.
Indeed,
Plaintiffs could only be potentially liable to Casselberry if Plaintiffs obtained a
judgment against Wells Fargo and Wells Fargo in turn obtained a judgment in its
favor against Casselberry on its unjust enrichment third-party claim, and in turn
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Casselberry obtained a judgment in her favor on her breach of contract counterclaim.
Casselberry’s ability to pay at this moment is not relevant to Plaintiffs’ damages and
the Court will not order disclosure of such sensitive information at this point. Thus,
as Plaintiffs have not established the relevance of Casselberry’s personal financial
information, Casselberry will be granted protection from disclosing such information.
As the Court has noted, such information might be obtainable in aid of execution of a
judgment.
III.
Untimely Discovery Motions
With regard to Plaintiffs’ Motion to Deem Plaintiffs’ Request for Admissions to
Defendant Admitted (Doc. 295), filed on November 5, 2014; and Plaintiffs’ Motion to
Compel Response to Plaintiffs’ Fourth Request for Production (Doc. 297), filed on
November 11, 2014, Plaintiffs state that they served Wells Fargo with requests for
admission, containing two requests, and the requests for production on September
25, 2014, making Wells Fargo’s responses due by October 27, 2014. There is no
explanation as to why the requests could not have been propounded on Wells Fargo
at an earlier point in the litigation.4 Therefore, they are denied as untimely.
With regard to Third-Party Defendant Bruce D. Berlinger’s Motion to Compel
Responses to Third Party Defendant’s Interrogatories and Second Interrogatories to
Defendant Wells Fargo Bank N.A. (Doc. 301), filed on November 7, 2014, Berlinger
states that he served Wells Fargo with his first interrogatories on September 18, 2014
Indeed, Wells Fargo informed Plaintiffs that a response to the request for admission
was not required because testimony and documents in the case had already been provided
regarding the issues requested. Doc. 295 at ¶ 5.
4
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(Doc. 301-1), and his second interrogatories on October 3, 2014 (Doc. 301-2), making
Wells Fargo’s responses due by October 21, 2014 and November 6, 2014, respectively.
Again, there is no explanation as to why Berlinger is serving interrogatories for the
first time one month prior to a discovery deadline in this case that has been ongoing
for some time. Therefore, it is denied as untimely. As previously noted, discovery
in this case has been extended for two very limited purposes. The Court will not
allow any further discovery than those previously identified.
ACCORDINGLY, it is hereby
ORDERED:
1.
Plaintiffs’ Motion for Leave to Take Continued Deposition of William
Ries (Doc. 286) is DENIED.
2.
Defendant Sue Casselberry’s Motion for Protective Order (Doc. 293) is
GRANTED.
3.
Plaintiffs’ Motion to Compel Deposition Answers (Doc. 294) is DENIED.
4.
Plaintiffs’ Motion to Deem Plaintiffs’ Requests for Admissions to
Defendant Admitted (Doc. 295) is DENIED as untimely.
5.
Plaintiffs’ Motion to Compel Response to Plaintiffs’ Fourth Request for
Production (Doc. 297) is DENIED as untimely.
6.
Third Party Defendant Bruce D. Berlinger’s Motion to Compel
Responses to Third Party Defendant’s Interrogatories and Second Interrogatories to
Defendant Wells Fargo Bank N.A. (Doc. 301) is DENIED as untimely.
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DONE and ORDERED in Fort Myers, Florida on this 26th day of November, 2014.
Copies:
Counsel of record
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