Adelman et al v. Boy Scouts of America et al

Filing 285

ORDER denying 277 Motion for Protective Order. Signed by Magistrate Judge Jonathan Goodman on 8/17/2011. (eg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-22236-CIV-GOLD/GOODMAN

HOWARD ADELMAN and
JUDITY SCLAWY, as
Co-Personal Representatives of THE
ESTATE OF MICHAEL SCLAWY-ADELMEN,

Plaintiffs,
vs.
BOY SCOUTS OF AMERICA, et al
Defendants.
___________________________________/
ORDER ON DEFENDANT’S MOTION FOR PROTECITVE ORDER
This Cause is before the Court in connection with Defendant South Florida
Council’s Motion for Protective Order (DE 277). For the reasons outlined below, the
motion is denied. However, the corporate representative deposition which Plaintiffs
have noticed for the four issues shall be limited to those four issues. Plaintiffs have
already taken a significant amount of discovery and shall not use another corporate
representative’s deposition as a springboard to take additional discovery not encompassed
by the list of the four issues in the notice.
The Council’s motion contends that it has already produced three corporate
representatives for deposition in this case. After reviewing Plaintiffs’ Response, the
Court concludes that the Council’s representation is incorrect. Actually, Plaintiffs have
only taken the deposition of one corporate representative. The mere fact that Plaintiffs
also took depositions of specifically named fact witnesses and those witnesses happen to

be hold a supervisory or official role with a defendant does not transform those
depositions into corporate representative depositions.
Plaintiffs do not seek to take the deposition of a Council corporate representative
merely to see whether Codefendant Howard Crompton was qualified to wear a patch.
Rather, Plaintiffs wish to take a corporate representative deposition on issues relating to
Crompton’s training, which may or may not be reflected in the issuance of a patch.
To be sure, Plaintiffs have asked questions about Crompton’s training at other
depositions but they are entitled to obtain a corporate representative deposition – which is
binding on the corporate defendant – on the four issues listed in the notice (DE 277-1).
The Court notes that the exhibits attached to Plaintiffs’ Response demonstrate that
Plaintiffs are not simply seeking to harass the Council with a second corporate
representative deposition. To the contrary, Plaintiffs offered to cancel the corporate
representative deposition if the Council timely produced documents concerning
Crompton’s training and whether he took the Leadership Specific Training (DE 283-5).
Because that documentation was not forthcoming, Plaintiffs continued their efforts to
obtain information about Crompton’s training from a Council corporate representative.
Crompton’s training, or the lack of it, is an issue in the case. Plaintiffs are entitled
to obtain discovery about it and are entitled to obtain binding deposition testimony from a
corporate representative.
Nevertheless, the Court understands that Plaintiffs have already obtained both
deposition testimony and interrogatory answers about Crompton’s training and that the
Council believes it is being harassed. Therefore, Plaintiffs may take the corporate
representative deposition but it shall be limited to the four issues listed in the notice (DE

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277-1) and questions logically flowing from answers to questions about those four
specific issues.
The Council, of course, may designate whom it wishes as the corporate
representative. Although it may be unlikely, the Council could conceivably designate
more than one person in response to the notice.
Therefore, the Court denies the Council’s motion for protective order but
Plaintiffs must follow the limits outlined in this Order when taking the corporate
representative’s deposition.

If the Council produces more than one corporate

representative to address the four issues, then the limits imposed on Plaintiffs shall apply
to all depositions taken under the notice.1
DONE AND ORDERED in Chambers, at Miami, Florida, this 17th day of
August, 2011.

Copies furnished to:
Hon. Alan S. Gold
Counsel of Record

Federal Rule of Civil Procedure 26(c)(3)(“Protective Orders”) provides that “Rule
37(a)(5) applies to the award of expenses.” Rule 37(a)(5), in turn, requires the entry of
an expense award in favor of the party who prevailed in connection with a discovery
motion, unless one (or more) of three limited exceptions apply. Given the wide
discretion the court has for this type of issue and the uncertainty inherent in this category
of motion, the Court finds that an expense award should not be entered. See Fed. R. Civ.
P. 37(a)(5)(A)(ii) and (iii).
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