Wellin v. Wellin et al

Filing 908

ORDER RULING ON REPORT AND RECOMMENDATION for (939 in 2:13-cv-03595-DCN, 679 in 2:14-cv-04067-DCN, 896 in 2:13-cv-01831-DCN) Report and Recommendation - Special Master. The Special Master's R&R is incorporated into this order. For the reasons articulated by the Special Master, it is therefore ORDERED that the Wellin Children's motion for protective order is GRANTED as to Questions 2, 3,4, and 5 set forth in Exhibit C-1 (Dkt. No. 826-3), GRANTED IN PART as Ques tions 1, 9, and 10 set forth in Exhibit C-1, specifically, Dr. Austin is required to answer these questions to the extent any responsive communications took place prior to her formal retainer as an expert witness; and DENIED as to Questions 6, 7, and 8 set forth in Exhibit C-1. Dr. Austin is directed to answer the questions at issue to the extent any responsive communications took place prior to her formal retainer as an expert witness. Signed by Honorable David C Norton on 6/12/2019. Associated Cases: 2:13-cv-01831-DCN, 2:13-cv-03595-DCN, 2:14-cv-04067-DCN(jbry, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Keith Wellin, individually and as Trustee of the
Keith S. Wellin Florida Revocable Living Trust
u/a/d December 11, 2001,
Plaintiff,
-vsPeter J. Wellin, Cynthia W. Plum, and Marjorie W.
King, individually and as Co-Trustees and
Beneficiaries of the Wellin Family 2009 Irrevocable
Trust u/a/d November 2, 2009, and Friendship
Management, LLC,
Defendants.
___________________________________________
Lester S. Schwartz, as Trust Protector of the
Wellin Family 2009 Irrevocable Trust,
Plaintiff,
-vsPeter J. Wellin, Cynthia W. Plum and Marjorie W.
King, individually and as Co-Trustees and
Beneficiaries of the Wellin Family 2009 Irrevocable
Trust, Friendship Management, LLC, and Cynthia
W. Plum as Manager of Friendship Management,
LLC,
Defendants.
___________________________________________
Peter J. Wellin, Cynthia W. Plum and Marjorie W.
King, as Co-Trustees of the Wellin Family 2009
Irrevocable Trust,
Counterclaim Plaintiffs,
-vsLester S. Schwartz, Esq., as Trust Protector of the
Wellin Family 2009 Irrevocable Trust u/a/d
November 2, 2009, and Keith Wellin, as Grantor of
the Wellin Family 2009 Irrevocable Trust u/a/d

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C/A No. 2:13-cv-1831 DCN

ORDER

C/A No. 2:13-cv-3595 DCN

November 2, 2009,

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Counterclaim Defendants.
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_________________________________________ )
Peter J. Wellin, Cynthia Wellin Plum, and
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Majorie Wellin King, Individually and as
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Co-Trustees and Beneficiaries of the Wellin
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Family 2009 Irrevocable Trust u/a/d
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November 2, 2009,
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Plaintiffs,
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-vs)
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Wendy Wellin, Individually and as Trustee of
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the Keith S. Wellin Florida Revocable Living
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Trust u/a/d December 11, 2001,
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Defendants.
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_________________________________________ )

C/A No. 2:14-cv-4067 DCN

This matter is before the court upon the Special Master’s Report and
Recommendation (“R&R”) (Dkt. No. 896 in 2:13-cv-1831-DCN1) regarding the motion
filed by the Wellin Children for a protective order upholding the objections and
instructions not to answer made by the Wellin Children’s counsel during the deposition
of Dr. Linda Austin.
The court is charged with conducting a de novo review of any portion of the
Special Master’s report to which a specific objection is registered. “In acting on a
master’s order, report, or recommendations, the court must give the parties notice and an
opportunity to be heard; may receive evidence; and may adopt or affirm, modify, wholly
or partly reject or reverse, or resubmit” the R&R to the Special Master with instructions.
Fed. R. Civ. P. 53(f)(1). The 2003 Advisory Committee Notes state that the “requirement

1

Unless otherwise indicated, all references to electronic filing number will be directed to
filings in Case No. 2:13-cv-1831 DCN.

that the court must afford an opportunity to be heard can be satisfied by taking written
submissions when the court acts on the report without taking live testimony.”2
Objections were timely filed on May 9, 2019 by Wendy C.H. Wellin. On May 23, 2019,
the Wellin Children filed their reply to the objections.
The court has conducted a de novo review of the record and concludes that the
Special Master’s R&R accurately summarizes this case and the applicable law.
Accordingly, the Special Master’s R&R is incorporated into this order. For the reasons
articulated by the Special Master, it is therefore ORDERED that the Wellin Children’s
motion for protective order is GRANTED as to Questions 2, 3,4, and 5 set forth in
Exhibit C-1 (Dkt. No. 826-3), GRANTED IN PART as Questions 1, 9, and 10 set forth
in Exhibit C-1, specifically, Dr. Austin is required to answer these questions to the extent
any responsive communications took place prior to her formal retainer as an expert
witness; and DENIED as to Questions 6, 7, and 8 set forth in Exhibit C-1. Dr. Austin is
directed to answer the questions at issue to the extent any responsive communications
took place prior to her formal retainer as an expert witness.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 12, 2019
Charleston, South Carolina

2

While this language is drawn from the Committee Notes to Rule 53(g), in the
2003 version of the Federal Rules of Civil Procedure, Rule 53(g)(1) contained the
substantive language that is now in Rule 53(f)(1).