United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE
case comes before the Court without a hearing on Defendants,
Kimberly W Crawford and Gilles Pesant's (the
“Homeowners”) Amended Motion for Extension of
Time to Comply with Case Management Deadlines and Motion for
Protective Order Regarding Unilaterally-Scheduled Depositions
Homeowners employed Defendant Stanley Homes, Inc. (the
“Builder”) to develop, design, and build them a
home in Brevard County, Florida (Doc. 32-2, ¶ 10). After
the home was finished, the Homeowners concluded that the
Builder's work was defective such that the home is unfit
for occupancy (Id., ¶¶ 73, 80, 90,
95-137). The Homeowners have brought their claims against the
Builder in a lawsuit pending in the state court
Builder asserts that the Homeowners' claims are covered
under two insurance policies issued by Plaintiff
Mid-Continent Casualty Company (the “Insurer”)
(Doc. 32, ¶ 8). The Insurer denies coverage and is
currently defending the Builder in the state court case under
a full reservation of rights (Id., ¶ 26). The
Insurer filed this action for a declaration that it has no
duty to indemnify the Builder against the Homeowners'
claims (Id. at ¶ 32).
October 2017, the parties filed their Case Management Report
in which they agreed that the Insurer would disclose its
expert reports by May 25, 2018 and the Homeowners and Builder
would disclose their expert reports by June 29, 2018 (Doc. 22
at 2). The Court accepted this proposal and incorporated
these dates into its Case Management and Scheduling Order
(“CMSO”) entered on November 9, 2017 (Doc. 25 at
1). The deadline to complete all discovery is August 31,
2018, and the case is set for trial during the term beginning
March 4, 2019 (Id., at 1-2).
March 26, 2018, the Insurer's lawyer asked the
Homeowners' lawyer for dates in April 2018 to depose the
Homeowners (Doc. 43-1 at 8). The Homeowner's lawyer did
not respond and on April 3, 2018, the Insurer's lawyer
renewed his request for deposition dates. He also stated that
if the Homeowners did not supply dates then he would set the
depositions unilaterally (Id., at 7). On April 3,
the Homeowners replied that they would not be available until
May at the earliest (Id., at 5). On April 9, 2018,
the Insurer's lawyer asked what dates in May the
Homeowners were proposing (Id.). The Court is
unaware of any response to this request.
April 12, 2018, the Insurer's lawyer circulated a list of
witnesses he wanted to depose and said that due to the
rapidly approaching deadlines for expert disclosures, he
needed dates from opposing counsel “as soon as
possible.” (Id., at 4). Four days later the
Homeowners' lawyer said they should wait for the
depositions to be taken in the state court case at which time
the Insurer's attorney could ask his questions
(Id., at 3).
April 18, 2018 the Insurer's lawyer asked the
Homeowners' lawyer to call him (Id.). The
Homeowners' lawyer did not call and on April 20 the
Insurer's lawyer renewed his request for deposition dates
“asap.” (Id. at 2). The Insurer's
lawyer told the Homeowners' lawyer that in the
alternative, the Insurer would set the depositions and the
Homeowners could move for a protective order (Id.).
On April 27, 2018 the Insurer unilaterally set the
Homeowners' depositions for May 9 and two other
depositions for May 11, 2018 (Doc. 42-1 at 23-47).
Homeowners seek a protective order precluding the taking of
these depositions because they were unilaterally set, and
because it would be a waste of resources to take the
depositions here, before they are taken in the state court
case (Doc. 42, ¶¶ 5-8). The Homeowners also seek an
order extending for 120 days, the deadlines for the
parties' to make their expert disclosures (Id.,
¶¶ 9-10). The Insurer opposes the motion (Doc. 43).
Court may issue a protective order to limit or eliminate
discovery to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense”
upon a showing of “good cause” by the movant.
Fed.R.Civ.P. 26(c)(1). The moving party carries the burden of
showing good cause for the entry of a protective order.
In re Deutsche Bank Trust Co., 605 F.3d 1373, 1378
(Fed. Cir. 2010). Good cause requires a specific
demonstration of facts to support the motion; conclusory
statements about need and harm are not sufficient.
Baratta v. Homeland Housewares, LLC, 242 F.R.D. 641,
642 (S.D. Fla. 2007). “The litigant seeking the
protective order must articulate the injury with
specificity.” United States v. Dentsply Int'l,
Inc., 187 F.R.D. 152, 158 (D. Del. 1999) (citations
omitted). “In other words, the party seeking the
protective order must show good cause by demonstrating a
particular need for protection” because “[b]road
allegations of harm, unsubstantiated by specific examples or
articulated reasoning, do not satisfy the Rule 26(c)
test.” Trinos v. Quality Staffing Servs.
Corp., 250 F.R.D. 696, 698 (S.D. Fla. 2008) (citing
Cipollone v. Liggett Group, Inc., 785 F.2d 1108,
1121 (3d Cir. 1986).
a sufficient showing of good cause is made, the burden then
shifts to the non-moving party to show why relief should
still not be granted, either because of undue prejudice or
the importance of the discovery at issue.” New
World Network, Ltd. v. M/V Norwegian Sea, No.
05-22916-CIV-JORDAN/TORRES, 2007 U.S. Dist. LEXIS 25731, at *
3 (S.D. Fla. April 6, 2007).
good cause is the standard under Rule 26(c), courts in the
Eleventh Circuit “have superimposed a somewhat more
demanding balancing of interests approach to the Rule.”
Farnsworth v. Proctor & Gamble Co., 758 F.2d
1545, 1547 (11th Cir. 1985); Cf. Ekokotu v. Fed. Express
Corp., 408 Fed.Appx. 331, 336 (11th Cir. 2011) (citing
McCarthy v. Barnett Bank of Polk Cnty., 876 F.2d 89,
91 (11th Cir. 1989)). This requires the court to balance the
parties' interests when deciding whether the discovery
should be permitted.
party who wants to depose a person by oral questions must
give reasonable written notice to every other party.”
Fed.R.Civ.P. 30(b)(1). The Homeowners argue that the Insurer
violated this rule and the common law when it unilaterally
set the depositions (Doc. 42, ¶ 6). The Homeowners rely
on Karakis v. Foreva Jens Inc., which states:
The Court views with concern the unilateral scheduling of
depositions absent the inability of the parties, after a good
faith effort, to agree on mutually convenient dates. The
unilateral setting of depositions (especially coupled with an
unwillingness by counsel to reschedule the deposition date)
leads to the filing of unnecessary motions, as demonstrated
in this case. Such motions are a ...