Adelman et al v. Boy Scouts of America et al

Filing 286

ORDER granting in part and denying in part 269 Motion for Protective Order. Signed by Magistrate Judge Jonathan Goodman on 8/18/2011. (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 DEFENDANTS’ MOTION FOR PROTECTIVE ORDER
This Cause is before the Court in connection with Defendants’ Motion for
Protective Order As to Carter Conrad, Jr. (DE# 269). The Court has reviewed the
motion, the response (DE# 271), the reply (DE# 276) and the pertinent portions of the
reocrd. The motion is granted in part and denied in part.
The motion concerns Carter Conrad, Jr., a court-appointed telephone data expert
authorized by the Court to inspect the cellular telephones of decedent, Michael SlawyAdelman, and Defendant Howard Crompton. The Court ordered Conrad to inspect the
phones, retrieve data for May 8 and 9, 2009 and produce a report identifying all data for
those two days found on the telephones (DE# 118).
Although Mr. Conrad has expertise about cellular telephones and methods to
inspect those phones and to retrieve data, he is not an “expert witness” as that term is
typically used in federal court litigation. In other words, he is not in the case to provide
his opinion about relevant issues. Instead, his role was strictly factual, based on specific

tasks he was directed to perform. Mr. Conrad already performed those tasks and already
provided the reports required by the Court’s Order.
During the Plaintiffs’ cross-examination of Mr. Conrad at a deposition noticed by
Defendants, Plaintiffs’ counsel asked Mr. Conrad questions about his opinion on why
data reflecting certain telephone calls were not found on Defendant Crompton’s cellular
telephone. In other words, Mr. Conrad was asked to speculate about a potential opinion - a task beyond the duties outlined in the Court Order.
In addition, Plaintiffs’ counsel also asked Mr. Conrad about whether data existed
for May 7, 2009. Plaintiffs asked these questions because Mr. Conrad speculated that the
telephone may have overwritten data for calls on May 9, 2009 but noted that this
potential overwriting theory would not be viable if data for May 7, 2009 was on the
telephone. Plaintiffs did not ask Mr. Conrad to divulge any information about the May 7,
2009 telephone calls (assuming they were on the phone). Instead, he asked only if any
calls existed for May 7, 2009.
This last line of questioning, however, related to the prior subject of why certain
phone calls for May 9, 2009 were not present on Defendant Crompton’s cellular phone
when Mr. Conrad inspected it. As noted above, this issue is beyond the scope of Mr.
Conrad’s responsibility in the case.
Defendants Crompton and Schmidt objected to this line of questioning and,
instead of merely instructing Mr. Conrad to not answer those questions but permitting
him to answer other deposition questions, terminated the deposition in order to file the
motion for protective order.

2

Defendants contend that Plaintiffs were out of bounds with their deposition
questions and that they needed to terminate the deposition in order to enforce the
limitation on the scope of Mr. Conrad’s involvement in this case.
Plaintiffs, on the other hand, say that the questions are permissible because they
did not focus on the content or substance of the data relating to the calls. They also argue
that Defendants themselves asked Mr. Conrad opinion-type questions in their multi-hour
deposition which preceded Plaintiffs’ comparatively limited cross-examination. And
they say that Defendants over-reacted by terminating the entire deposition, rather than
providing specific instructions to Mr. Conrad to not answer questions on a question-byquestion basis. Plaintiffs note that their counsel and defense counsel are based in Miami
and that the deposition was in West Palm Beach – a four-hour round-trip which Plaintiffs
say their counsel will need to make again in order to resume the deposition.
Consequently, Plaintiffs want Defendants to pay for all additional costs associated with a
resumed deposition in West Palm Beach.
Because Defendants did not retain Mr. Conrad as their own witness, because Mr.
Conrad is not their client, and because defense counsel do not represent Mr. Conrad,
Plaintiffs have not explained how Defendants could have properly given the “do-notanswer-the-question” instruction to an independent witness.
Based on this procedural background and the issues framed above, the Court
grants in part Defendants’ motion for protective order. Mr. Conrad’s involvement in
this case is limited and questions about his speculative opinions or about phone calls
other than those made on May 8 and 9, 2009 are beyond the scope of relevant discovery.

3

Therefore, the questions at issue were objectionable and Defendants’ had a good faith
basis to object.
Plaintiffs have not proffered a list or summary of additional questions which they
wish to ask Mr. Conrad. Nevertheless, the Court understands that they do, in fact, have
additional questions which they were foreclosed from pursuing because Defendants
terminated the deposition. The Court will therefore permit the deposition to resume.
Defendants’ counsel did not have the ability to instruct Mr. Conrad, a non-client,
not to answer questions. Instead, they had only two alternatives: terminate the deposition
and seek a protective order (which they did) or seek to contact the Undersigned for a
ruling during the deposition. Because the dispute arose after 7:00 p.m., the parties
apparently assumed that the Undersigned would not be available in chambers and
Defendants did not pursue this alternative.
The Court appreciates the fact that it will be inconvenient for counsel to travel to
West Palm Beach to continue the deposition. Plaintiffs may resume the deposition by
telephone, continue it in person in West Palm Beach or persuade Mr. Conrad to complete
the deposition in Miami.1

1

The Court is not suggesting that Mr. Conrad should bear the inconvenience of
traveling to Miami without receiving additional compensation for his travel time and
other expenses.

4

Finally, Plaintiffs’ request that Defendants pay for the additional costs associated
with the deposition when it resumes is denied.2
DONE AND ORDERED in Chambers, at Miami, Florida, this 18th day of
August, 2011.

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

2

Federal Rules of Civil Procedure 26(c) and 37(a)(5) require the entry of an
expense award in favor of the party who filed a motion for protective order which gets
granted, unless one (or more) of three limited exceptions apply. Given that Defendants
themselves asked Mr. Conrad opinion-type questions and given that Plaintiffs’ counsel
expressly cautioned Mr. Conrad to not discuss the substance of the data about the calls
and sought only yes or no answers about the existence of calls, 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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