Fiddler's Creek, LLC v. Naples Lending Group LC

Filing 339

ORDER granting in part 294 Plaintiff and Counterclaim Defendants' Motion to Set and Modify Certain Deadlines; denying 297 Defendants' Motion to Compel Depositions of Defendants' Purported Polygraph Experts and of Defendant Carter Regarding his Polygraph Experience. See Order for details. Signed by Magistrate Judge Carol Mirando on 7/29/2016. (ANW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IN RE: FIDDLER’S CREEK, LLC
FIDDLER’S CREEK, LLC,
Plaintiff,
v.

Case No: 2:14-cv-379-FtM-29CM

NAPLES LENDING GROUP LC
and DANIEL CARTER,
Defendants/Third
Party Plaintiff
AUBREY FERRAO, ANTHONY
DINARDO and WILLIAM
REAGAN,
Third Party Defendants.
____________________________________/
ORDER
Before the Court are Plaintiff and Counterclaim Defendants’ Motion to Compel
Depositions of Defendants’ Purported Polygraph Experts and of Defendant Carter
Regarding his Polygraph Experience (“Motion to Compel,” Doc. 297) and Plaintiff and
Counterclaim Defendants’ Motion to Set and Modify Certain Deadlines (“Motion to
Modify Schedule,” Doc. 294). 1 For the reasons set forth below, the Motion to Compel
is denied, and the Motion to Modify Schedule is granted in part.
The Court notes that the Motion to Modify Schedule and Motion to Compel identify
William Reagan, Anthony DiNardo and Aubrey Ferrao as counterclaim defendants. Docs.
294, 297. Reagan, DiNardo and Ferrao, however, are third party defendants. The only
counterclaim Defendant in this action is Fiddler’s Creek, LLC.
1

Plaintiff, Fiddler’s Creek, LLC and Third Party Defendants, William Reagan,
Anthony DiNardo, and Aubrey Ferrao, (collectively, “Movants”) seek to compel the
deposition of Defendants’ polygraph experts, Louis Rovner, Ph.D. and Charles R.
Honts, Ph.D., regarding the polygraph examination conducted of Defendant Carter
in this case.

Doc. 297 at 3.

Movants state that in January 2016 they received

reports from Dr. Rovner, who administered the polygraph examination of Defendant
Carter, and Dr. Honts, who reviewed Dr. Rovner’s work. Id. Movants provided
subpoenas to Defendants’ counsel directed to Dr. Rovner and Dr. Honts requesting
the production of documents. Id. Movants state that in the midst of engaging in
extensive discovery, they sought to narrow the scope of fact and expert discovery by
filing a motion in limine (Doc. 264) to exclude Defendants’ proffered polygraph
evidence. Id. Movants allege that they took the position in the motion in limine
that “it is within the Court’s discretion, based on precedent alone, that the trial of
this civil matter should not be consumed with a days-long contest about the
reliability, validity or meaning of any polygraph evidence.”

Id. (emphasis in

original). Defendants were granted an extension of time to June 27, 2016 to respond
to the motion in limine. 2 Id.; See Doc. 277.

The Court notes that Movants contend that the Court granted Defendants an
extension to prepare and submit expert witness testimony in support of the admissibility of
Defendant Carter’s polygraph. Doc. 297 at 3; see also Doc. 294 at 7. This, however, is a
misstatement of the Court’s Order (Doc. 277). The Court allowed Defendants until June 27,
2016 to respond to Movants’ motion in limine, but specifically declined to address whether
Defendants’ expert should be allowed to offer an opinion with respect to the motion in limine.
Doc. 277 at 4.
2

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With the deadline for Defendants’ response approaching, on June 14, 2016,
Movants state that they requested that Defendants make Dr. Rovner and Dr. Honts
available for deposition. Doc. 297 at 4-5. Because Defendants’ response would not
occur until June 27, 2016, Movants state that they requested dates in the first two
weeks of July, although it would be after the close of discovery on June 30, 2016,
because the parties previously had agreed to conduct another deposition after the
deadline. Id. at 4. Movants assert that on June 17, 2016, Defendants advised that
they opposed conducting the depositions in July, but Defendants would not provide
any availability in June. Id. at 5. When the parties conferred, Movants expressed
to Defendants that they wanted to avoid having to conduct a deposition within 48-72
hours of receiving Defendants’ expert testimony included with Defendants’ response
to Movants’ motion in limine. Id. Movants state that the response to the motion in

limine included a 33-page declaration of Dr. Honts concerning Defendant Carter’s
polygraph that Movants had never seen before.

Id. Thus, Movants request the

deposition of Dr. Honts and Dr. Rovner now that the full extent of Dr. Honts’ opinion
testimony has been disclosed. Id.
Movants state that they will be greatly prejudiced if they are unable to depose
Dr. Honts and Dr. Rovner now that the full extent of Defendants’ opinion testimony
concerning the polygraph has been disclosed. Doc. 297 at 5. Movants also assert
that there is no dispute that the requested discovery is relevant and proportional to
the issue in this case.

Id. at 2. Accordingly, Movants request that the Court

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compel the depositions of Dr. Honts and Dr. Rovner to take place within fourteen
days of this Order. Id. at 6.
Movants also request to continue the deposition of Defendant Carter
concerning his experience with polygraphs.

Doc. 297 at 2.

Movants state that

Defendant Carter failed to provide any information that would make it possible to
identify or obtain evidence concerning his experience with polygraphs. Id. at 1-2.
Movants assert that Defendant Carter revealed that he has additional information
but he has refused to provide it. Id.
With respect to the expert depositions, Defendants respond that Movants
waited at least five months after Dr. Honts and Dr. Rovner were disclosed, and then
failed to set the depositions.

Doc. 307 at 1.

Defendants contend that because

Movants failed to ever notice the depositions, Rule 37, Federal Rules of Civil
Procedure, provides no authority for the Court to grant their Motion to Compel. Id.
Defendants argue that Movants chose not to notice, subpoena, or formally attempt to
set these depositions before the discovery period ended although they had the time to
do so. Id. at 2. Defendants also state that despite two extensions of the discovery
deadline, Movants never set the depositions of Dr. Honts and Dr. Rovner and now
claim that the recent declaration filed by Dr. Honts is new expert testimony. Id.
Defendants assert that Dr. Honts’ declaration merely expounds upon the Daubert
section of his report and his and the science’s background, but the vast majority of
the substantive citations contained in the declaration also are contained in the report
and/or materials produced on February 26, 2016 by Dr. Honts in response to the

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subpoena. Id. at 2-4. Defendants allege that Defendant Carter advised Plaintiff on
August 15, 2015 that he intended to submit himself to polygraph and requested that
Plaintiff stipulate to its admissibility. Id. at 3. Defendants assert that Movants
raised the issue of reliability then. Id. Defendant Carter then sat for the polygraph
examination on October 19, 2016 administered by Dr. Rovner and independently
reviewed by Dr. Honts. Id. Defendants then provided Dr. Honts’ report on January
15, 2016. Id. at 4. Since receipt of the report, Movants failed to notice, subpoena or
otherwise set the depositions they now seek. Id.
Defendants also state that the request for continuation of Defendant Carter’s
deposition also should be denied. Doc. 307 at 1. Defendants contend that Movants
already have elicited thirty-eight pages of deposition transcript from him regarding
his polygraph experience in this case and one taken in the 1990s, to which Defendant
Carter stated that he has no additional recollection of the details or has retained any
documents. Id. at 2-3. Defendants stated that Defendant Carter was questioned at
length and testified that he did not think any documents were retained from the
1990s polygraph. Id. at 13. Accordingly, Defendants argue that the motion to compel
must be denied because
(1) Rule 37 provides no authority for this Court to compel an unnoticed
deposition; (2) the Honts Declaration contains no new expert testimony
and only elaborates on the Daubert section of the Honts Report; (3)
Movants chose not to seek depositions regarding polygraph reliability
before discovery ended; and (4) Movants have already deposed Mr.
Carter at length on this topic, and Mr. Carter has no more documents or
recollection related thereto.

Id. at 4.

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“Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.”
Fed. R. Civ. P. 26(b)(1).

Relevance, for purposes of discovery, does not hinge on

admissibility at trial and is construed broadly to include any matter that reasonably
could lead to the discovery of admissible evidence.

Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351 (1978). With respect to depositions, Rule 37, Federal
Rules of Civil Procedure, provides that a party may seek to compel a discovery
response from a deponent who fails to answer a question when asked under Rule 30
or 31 or when a corporation or entity fails to make a designation under Rule 30 or 31.
Fed. R. Civ. P. 37(a)(3)(B). Rule 37 also provides for sanctions if “a party or party’s
officer, director, or managing agent—or a person designated under Rule 30(b)(6) or
31(a)(4)—fails, after being served with proper notice, to appear for that person’s
deposition.” Fed. R. Civ. P. 37(d).
Rule 30, Federal Rules of Civil Procedure requires that a party who wants to
depose a person provide notice to every other party stating the time and place of the
deposition and, if known, the deponent’s name and address. Fed. R. Civ. P. 30(b).
Informal notices or communications between counsel are insufficient to comply with
the requirements of the federal rules. See Firestone v. Hawker Beechcraft

International Service Company, No. 10-1404-JWL, 2012 WL 359877, at *3 (D. Kan.
Feb. 2, 2012) (finding that emails between counsel expressing a desire to take a
deposition did not constitute notice under Fed. R. Civ. P. 30(b)(1)); James v. Wash

Depot Holdings, Inc., 240 F.R.D. 693, 695 (S.D. Fla. 2006) (finding that the court could

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not compel the production of documents that were requested by a letter to opposing
counsel rather than pursuant to the Federal Rules of Civil Procedure). “‘The Federal
Rules of Civil Procedure provide the necessary boundaries and requirements for
formal discovery. Parties must comply with such requirements in order to resort to
the provisions of Fed. R. Civ. P. 37, governing motions to compel. . . . To treat
correspondence between counsel as formal requests for production under Rule 34
would create confusion and chaos. . . .’” Firestone, 2012 WL 359877 at *3 (quoting

Sithon Maritime Co. v. Mansion, No. Civ. A. 96-2262-EEO, 1998 WL 182785, at *2
(D. Kan. Apr. 10, 1998)).
While there is no explicit requirement in the rules that a notice of deposition
be served prior to a party seeking to compel a deposition, some courts have required
that the movant serve a notice that meets Rule 30(b) prior to filing the motion to
compel, and other courts have denied the motions to compel as premature. Firestone
2012 WL 359877 at *3 (citing Pegoraro v. Marrero, No. 10 Civ. 00051, 2011 WL
5223652, at *4 (S.D.N.Y. Nov. 2, 2011); Nuskey v. Lambright, 251 F.R.D. 3, 12 (D.D.C.
2008)).

Another court in this district also found a motion to compel deposition

premature when the deposition had not been noticed as of the date of filing the
motion. Wolk v. Seminole Cnty, No. 6:05-cv-1722-Orl-18KRS, 2007 WL 328685, at *1
n.1 (M.D. Fla. Jan. 31, 2007). In Wolk, the court allowed the plaintiff leave to file a
motion to reopen discovery for the limited purpose of taking this deposition. Id.; see

also James, 240 F.R.D. at 695 (stating that rather than filing a motion to compel
documents that had not formally been requested, the proper procedure would have

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been to request to reopen discovery to formally request the documents pursuant to
the federal rules).
First, the Court will address Movants’ request for the continuation of the
deposition of Defendant Carter.

After reviewing the portion of the transcript

Movants attached to the Motion to Compel, the Court finds that no further
questioning is necessary on this issue. Defendant Carter testified that he did not
remember the examiner or location of the 1990s polygraph, other than that it was
somewhere in Florida. Doc. 297-2 at 5. He also testified that he did not think he
kept any of the documents from the 1990s polygraph. Id. at 6. He also confirmed
that the 1990s polygraph was the only other time he sat for a polygraph examination.

Id. at 7.
Without more information as to what Movants are seeking with respect to
Defendant Carter’s previous polygraph experience, the Court will deny their motion
to compel a continuation of the deposition. Movants had their opportunity, and did
in fact question Defendant Carter on this issue.
Regarding Movants’ request for the depositions of the polygraph experts, the
Court finds the cases discussed above to be persuasive.

Although counsel for

Movants made informal requests for deposition dates (Doc. 297 at 4-5), there is no
evidence that a formal notice of deposition was filed prior to the discovery cutoff.
Accordingly, the Court denies the Motion to Compel with respect to Dr. Honts and
Dr. Rovner, as it is premature.

Movants, however, filed the Motion to Modify

Schedule on June 29, 2016, prior to the June 30, 2016 discovery deadline, requesting

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that the Court extend the discovery deadline to allow them to take the depositions of
Dr. Honts and Dr. Rovner. Doc. 294. Movants raise many of the same arguments
in the Motion to Modify Schedule as they raised in the Motion to Compel as to why
they need additional time to conduct these depositions.
In their response to the Motion to Modify Schedule, Defendants also assert
many of the same objections to the requested extension as were asserted in response
to the Motion to Compel. See Doc. 305. Namely, Defendants oppose the timing in
which the depositions were requested and state that Movants had months to notice
these experts for depositions because their reports were provided on January 15,
2016. Doc. 305 at 4. Defendants contend that Movants deliberately chose not to
pursue discovery regarding the polygraph evidence when they had ample opportunity
to do so, and they cannot now try to remedy this strategic mistake.

Id. at 5-6.

Defendants also contend that Dr. Honts’ declaration filed on June 27, 2016 in
response to the motion in limine was not new opinion testimony, and Movants’
argument that they should be allowed to depose Dr. Honts because they now have
the “full extent” of Dr. Honts’ testimony is unavailing. Docs. 305 at 8; 307 at 9.
Defendants state there is no “new” expert testimony, and Dr. Honts simply
“expounded upon” or “elaborated” on his credentials and the scientific reliability of
polygraphs. Doc. 305 at 8. Defendants also contend that the “vast majority” of the
substantive citations contained in the declaration are contained in the report
provided on January 15, 2016. Doc. 307 at 2.

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On June 8, 2016, the Court allowed Defendants an extension of time to respond
to the motion in limine. Doc. 277. Defendants chose to add the declaration of Dr.
Honts as an exhibit to their response. Doc. 289. While Defendants argue that there
is no new testimony, Defendants do not state that all of the substantive citations
previously were provided. See Doc. 307 at 2. Defendants simply contend that the
“vast majority” of the substantive citations were provided. See id. Defendants also
contend that Dr. Honts “expounded upon” his credentials and the scientific reliability
of polygraphs.

Id.

Thus, it appears that it was not until June 27, 2016 that

Movants received the full opinion testimony of Dr. Honts.
Defendants to not appear to contest that Movants are entitled to the
depositions of Dr. Honts and Dr. Rovner. They also do not appear to contest the
relevancy or proportionality of the discovery. Defendants state that their position
has been consistent on this matter, and that “requests to schedule experts that had
been known for five months would not be agreed to after the discovery cutoff.” Doc.
307 at 12. To the extent Defendants object to the deposition of Dr. Honts and Dr.
Rovner, their objection is overruled.
Because the goal of the discovery rules is to “‘make trial less of a game of blind
man’s bluff and more of a fair contest with the basic issues and facts disclosed to the
fullest practicable extent,’” the Court finds good cause to reopen discovery for the
limited purpose of allowing Movants to properly seek the depositions of Dr. Rovner
and Dr. Honts.

Rozier v. Ford Motor Co., 573 F.2d 1332, 1346 (5th Cir. 1978)

(quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 683 (1958)).

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The parties shall have up to and including September 2, 2016 to complete
expert depositions related to the polygraph evidence, including any polygraph experts
identified by Movants and any rebuttal polygraph experts.

Additionally, to the

extent the parties have not provided rebuttal experts related to polygraph evidence,
the parties shall have up to and including August 15, 2016 to do so. The Court also
finds good cause to extend the deadline for the parties to file Daubert motions with
respect to the polygraph evidence.

The parties shall have up to and including

September 16, 2016 to file any Daubert motions related to the polygraph evidence.
Because the Court is extending the deadline for Daubert motions, the Court also finds
it necessary to extend the remaining deadlines in the Amended Case Management
and Scheduling Order (Doc. 271). Accordingly, the remaining pre-trial deadlines
and the trial term will be extended by sixty days.
ACCORDINGLY, it is hereby
ORDERED:
1.

Plaintiff and Counterclaim Defendants’ Motion to Compel Depositions

of Defendants’ Purported Polygraph Experts and of Defendant Carter Regarding his
Polygraph Experience (Doc. 297) is DENIED.
2.

Plaintiff and Counterclaim Defendants’ Motion to Set and Modify

Certain Deadlines (Doc. 294) is GRANTED in part. 3

The remaining issues in Plaintiff and Counterclaim Defendants’ Motion to Set and
Modify Certain Deadlines have either been resolved by the parties or addressed by the Court
in prior Orders. See Docs. 303, 304, 309.
3

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3.

The parties shall have up to and including August 15, 2016 to disclose

any rebuttal experts related to polygraph evidence.
4.

The parties shall have up to and including September 2, 2016 to

complete the depositions of the polygraph experts in this case.
5.

The deadline to file Daubert motions with respect to polygraphs is

extended to September 16, 2016.
6.

All remaining deadlines set forth in the Amended Case Management

and Scheduling Order (Doc. 271) will be extended by sixty (60) days.
7.

All other directives set forth in the Case Management and Scheduling

Order (Doc. 98) remain unchanged.
8.

The Clerk is directed to issue an Amended Case Management and

Scheduling Order.
DONE and ORDERED in Fort Myers, Florida on this 29th day of July, 2016.

Copies:
Counsel of record

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