SCCI, Inc. v. Russell, et al

Filing 34

ORDER granting 25 Motion to Quash; denying 25 Motion for Protective Order; denying 31 Motion to Compel. See Order for details. Signed by Magistrate Judge Philip R. Lammens on 2/17/2021. (SA)

Case 5:20-cv-00348-JSM-PRL Document 34 Filed 02/17/21 Page 1 of 5 PageID 615

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
SCCI, INC., a Delaware Corporation
Plaintiff,
v.

Case No: 5:20-cv-348-Oc-30PRL

KENNY RUSSELL,
Defendant.
ORDER
This matter is before the court on Defendant Kenny Russell’s motion to quash and for
a protective order (Doc. 25) and Plaintiff SCCI, Inc.’s motion to compel (Doc. 31). Neither
party responded to the other’s motions.
As an initial matter, Plaintiff claims its counsel attempted to resolve the issues via
email, and defendant details the emails exchanged by the parties. While the court is well
aware that email is a customary way of communicating, courts have interpreted
“communicate” to mean “to speak to each other in person or by telephone, in a good faith
attempt to resolve disputed issues.” Davis v. Apfel, No. 6:98-CV-651-ORL-22A, 2000 WL
1658575 at n.1 (M.D. Fla. Aug. 14, 2000). This is noted because it seems that better
communication might eliminate the discovery issues in this case.
Defendant’s request to quash the subpoenas issued to his counsel and law firm is due
to be granted. As with other discovery, the scope of depositions is limited to 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). “[D]epositions of attorneys who represent parties in an action
are an invitation to harass the attorney and the party, to cause delay, and to disrupt the case.”

Case 5:20-cv-00348-JSM-PRL Document 34 Filed 02/17/21 Page 2 of 5 PageID 616

Latell v. Santander Bank, No. 2:13-CV-565-FTM-29CM, 2016 WL 7206161, at *3 (M.D. Fla.
Jan. 27, 2016) (quoting LaJoie v. Pavcon, Inc., 1998 WL 526784, at *1 (M.D. Fla. 1998)).
Because Plaintiff seeks the deposition of the defendant’s attorney, Plaintiff has the burden of
showing: “(1) the need for the deposition and that this is the only practical means of getting
the information; (2) the information is relevant and its need outweighs the dangers of deposing
a party's attorney; and (3) the information sought during the deposition will not invade the
attorney-client privilege or the attorney's work product.” Id. (citing West Peninsular Title
Company v. Palm Beach County, 132 F.R.D. 301, 302–03 (S.D. Fla. 1990)). Plaintiff has not
met this burden.
Here, the deposition of the defendant’s attorney would cover the following questions:
1. What factual basis there may be to claim that Mr. Russell is
not in default?
2. What factual basis there may be to assert that Mr. Russell has
not been served properly?
3. What factual basis there may be to assert that the present
action has been filed against the wrong party?
4. What factual basis there may be to assert that Mr. Russell has
retained local counsel?
(Doc. 26-6).
Plaintiff did not respond to Defendant’s motion to quash and for a protective order.
Instead, it filed a motion to compel defendant’s answers to the interrogatories and requests
for production. Because Plaintiff has not provided any reasons why it wants to depose the
attorney representing the defendant, the motion to quash is due to be granted. If Plaintiff
discovers new information as to why the deposition is the only practical means for obtaining
the information it requests and the information is relevant and proportional to the needs of
the case, then it should discuss with the defendant these reasons and attempt to schedule a
deposition again.

-2-

Case 5:20-cv-00348-JSM-PRL Document 34 Filed 02/17/21 Page 3 of 5 PageID 617

The court is reluctant to grant the request for a protective order at this time. Under
Federal Rule of Civil Procedure 26(c)(1), a party can obtain, upon a showing of “good cause,”
a protective order “to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.” A protective order should be entered “only when the movant
makes a particularized showing of ‘good cause’ and specific demonstration of fact by affidavit
or testimony of a witness with personal knowledge, of the specific harm that would result
from disclosure or loss of confidentiality; generalities, conclusory statements and unsupported
contentions do not suffice.” E.E.O.C. v. v. DiMare Ruskin, Inc., No. 2:11-cv-158, 2012 WL
12067868, at *3 (M.D. Fla. Feb. 15, 2012). Because Defendant has not shown the requisite
good cause to warrant a protective order, the request for one is denied.
Plaintiff’s motion to compel is simply a reiteration of Rule 37 of the Federal Rules of
Civil Procedure. The court is well aware of these rules. In a motion to compel, the moving
party “bears the initial burden of proving that the information sought is relevant.” Douglas v.
Kohl’s Dep’t Stores, Inc., No. 6:15-cv-1185, 2016 WL 1637277, at *2 (M.D. Fla. Apr. 25, 2016)
(quoting Moore v. Lender Processing Servs. Inc., No. 3:12-cv-205, 2013 WL 2447948, at *2 (M.D.
Fla. June 5, 2013)). Relevancy is based on the “tendency to make a fact more or less probable
than it would be without the evidence, and the fact is of consequence in determining the
action.” Garcia v. Padilla, No. 2:15-cv-735, 2016 WL 881143, at *2 (M.D. Fla. March 8, 2016)
(quoting Fed. R. Evid. 401). Proportionality requires counsel and the Court to consider
whether relevant information is discoverable in view of the needs of the case. In making this
determination, the Court is guided by the non-exclusive list of factors in Rule 26(b)(1). Graham
& Co., LLC v. Liberty Mut. Fire Ins. Co., No. 2:14-cv-2148, 2016 WL 1319697, at *3 (N.D. Ala.
April 5, 2016). “Any application of the proportionality factors must start with the actual

-3-

Case 5:20-cv-00348-JSM-PRL Document 34 Filed 02/17/21 Page 4 of 5 PageID 618

claims and defenses in the case, and a consideration of how and to what degree the requested
discovery bears on those claims and defenses.” Id. (quoting Witt v. GC Servs. Ltd. P’ship, 307
F.R.D. 554, 569 (D. Colo. 2014)).
In order to frame the discovery on this issue, it is essential to determine what the
purpose of the discovery is. As the commentary to Rule 26 explains: “A party claiming that a
request is important to resolve the issues should be able to explain the ways in which the
underlying information bears on the issues as that party understands them.” Fed. R. Civ. P.
26. Then, of course, it is the “Court’s responsibility, using all the information provided by the
parties, . . . to consider these and all the other factors in reaching a case-specific determination
of the appropriate scope of discovery.” Id.
Plaintiff has not explained why any of the discovery it seeks is relevant or proportional
to the issues in this case. Therefore, Plaintiff’s motion is denied. Nonetheless, the parties are
encouraged to continue to participate in discovery in a civil manner. Plaintiff can seek relevant
and proportional information from the defendant, and the defendant should respond to the
requests either with the information requested or with objections.
Moreover, the parties are reminded that “[d]iscovery in this district should be practiced
with a spirit of cooperation and civility. The district’s attorneys and the court are justifiably
proud of the courteous practice that is traditional in the Middle District.” Middle District
Discovery (2015) at 3. Cooperation, courtesy, civility—these ideals should be strived for by
all parties, even the parties here, on both an individual and a collective basis. Being
cooperative, courteous, and civil doesn’t mean that parties can’t be adversarial, or attorneys
anything less than zealous advocates.

-4-

Case 5:20-cv-00348-JSM-PRL Document 34 Filed 02/17/21 Page 5 of 5 PageID 619

Generally, as the comments to the 2015 Amendment acknowledge, “discovery will be
effectively managed by the parties.” Id. As the comments also acknowledge, however, “there
will be important occasions for judicial management, both when the parties are legitimately
unable to resolve important differences and when the parties fall short of effective, cooperative
management on their own.” Id. Considering that both parties failed to respond to the motions
filed by opposing counsel, it appears as though the parties are filing motions on issues they
could have effectively resolved without judicial assistance.
Accordingly, Defendant’s request to quash the subpoenas (Doc. 25) is granted,
Defendant’s request for a protective order (Doc. 25) is denied, and Plaintiff’s motion to
compel (Doc. 31) is denied.1 If the parties have any other issues regarding discovery, counsel
are encouraged to confer either in person or via telephone in an attempt to resolve them.
DONE and ORDERED in Ocala, Florida on February 17, 2021.

Copies furnished to:
Counsel of Record
Unrepresented Parties

1

The court sees no basis to award fees at this time.
-5-