Opinion
CASE NO. 21-81565-CV-MIDDLEBROOKS/Matthewman
2022-05-17
William David WILCOX, Jr. a/k/a David Wilcox and Megan Danielle Luchey, Plaintiffs, v. LA PENSEE CONDOMINIUM ASSOCIATION, INC., Mary McFadden, Mac Residential Management Services, LLC, and David Wolff a/k/a David Wolf, Defendants.
Richard S. Lubliner, Lubliner Law PLLC, West Palm Beach, FL, for Plaintiffs. Andrew James Marchese, Marshall Dennehey Warner Coleman Goggin, Fort Lauderdale, FL, for Defendants La Pensee Condominium Association, Inc., David Wolff. +++++ David Ben Israel, Eric Jon Israel, Israel, Israel & Associates, P.A., Davie, FL, for Defendant Mary McFadden. Andrew Kemp-Gerstel, Liebler Gonzalez & Portuondo PA, Miami, FL, David Ben Israel, Eric Jon Israel, Israel, Israel & Associates, P.A., Davie, FL, Michael Darren Starks, Greenberg Traurig, P.A., Orlando, FL, for Defendant MAC Residential Management Services, LLC
Richard S. Lubliner, Lubliner Law PLLC, West Palm Beach, FL, for Plaintiffs.
Andrew James Marchese, Marshall Dennehey Warner Coleman Goggin, Fort Lauderdale, FL, for Defendants La Pensee Condominium Association, Inc., David Wolff. +++++ David Ben Israel, Eric Jon Israel, Israel, Israel & Associates, P.A., Davie, FL, for Defendant Mary McFadden.
Andrew Kemp-Gerstel, Liebler Gonzalez & Portuondo PA, Miami, FL, David Ben Israel, Eric Jon Israel, Israel, Israel & Associates, P.A., Davie, FL, Michael Darren Starks, Greenberg Traurig, P.A., Orlando, FL, for Defendant MAC Residential Management Services, LLC
ORDER ON MOTION FOR PROTECTIVE ORDER
Donald M. Middlebrooks, United States District Judge
THIS CAUSE comes before the Court upon Defendant La Pensee Condominium Association ("the Association") and Non-Party JoAnn Nesta Burnett, Esq.’s ("Ms. Burnett") (collectively, "Movants") Motion for Protective Order as to the Deposition of Trial Counsel and for Sanctions ("Motion"), filed April 20, 2022. (DE 39). The Motion is fully briefed. (DE 47; DE 57). For the reasons set forth below, the Motion is granted in part.
I. BACKGROUND
This action revolves around a housing dispute. Plaintiffs, tenants of the Association, initiated this action on September 3, 2021 alleging violations of the Fair Housing Act and the Florida corollary statute, and intentional infliction of emotional distress. (DE 1). Plaintiffs allege that Defendants discriminated against Ms. Luchey as an African American and fabricated rule violations by Plaintiffs, including violations related to Mr. Wilcox's service animal dog, Zeus. (Id. ¶¶ 20, 57, 61–65). The Parties are also involved a related case in state court, initiated by the Association against Plaintiffs in July 2021. (DE 39 ¶ 4). In that action, the Association sued Mr. Wilcox, Ms. Luchey, and another defendant, La Pensee 303, LLC, seeking to have Mr. Wilcox and Ms. Luchey removed from the unit based on the expiration of the lease term and Mr. Wilcox's alleged conduct. (Id. ). It is the Association's position that the lease expired, although there appear to be questions surrounding a missing page of the lease and lack of clarity as to the lease term. (DE 39 ¶¶ 8–12).
Ms. Burnett is described in the Complaint as counsel for the Association. (DE 1 ¶ 84). In that capacity, Plaintiffs allege that after issues arose with the Defendants, Ms. Burnett requested information relating to the service animal approval and communicated with Plaintiffs regarding the lease agreement. (Id. ¶¶ 84, 90, 93). Movants explain that Ms. Burnett also serves as trial counsel for the Association in the ongoing state court action. (DE 39 ¶ 5).
Plaintiffs served a Subpoena Duces Tecum for Ms. Burnett's deposition. The information sought from Burnett can be divided into three at times overlapping categories: (1) information about the lease agreement, (2) information about Mr. Wilcox's request for an accommodation for a service animal and (3) information about the pleadings filed by the Association in the state court action. (DE 57-1). Movants argue that Ms. Burnett lacks first-hand knowledge of the facts alleged in the Complaint and received all of her information from the Association's Board of Directors and its agents, and any information possessed by Ms. Burnett is protected by the attorney client privilege and/or attorney work product doctrine. (DE 39 ¶¶ 17–20).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 26(c) provides that "[t]he court may, for good cause, issue an order to protect a party or person from annoyance embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). The Party moving for a protective order bears the burden of demonstrating its necessity. Ekokotu v. Fed. Express Corp. , 408 F. App'x 331, 336 (11th Cir. 2011) (citing United States v. Garrett , 571 F.2d 1323, 1326 n.3 (5th Cir. 1978) ). Additionally, the court must "balance the interests of those requesting the [protective] order." McCarthy v. Barnett Bank of Polk County. , 876 F.2d 89, 91 (11th Cir. 1989).
III. DISCUSSION
The key question is the propriety of deposing Ms. Burnett, the Association's in-house counsel and trial counsel on the related pending state court action. Movants rely on the Eighth Circuit's decision in Shelton v. American Motors Corp . an often-cited case on depositions of opposing counsel. See 805 F.2d 1323 (8th Cir. 1986). The Eighth Circuit held that opposing counsel may not be deposed unless the party seeking to take the deposition shows: (1) there are no other means to obtain the information other than by deposing opposing counsel, (2) the information is relevant and nonprivileged and (3) the information is crucial to Plaintiffs’ preparation of their case. Id. at 1327. The Parties debate the applicability of Shelton , which the Eleventh Circuit has not directly addressed. But the framework is ultimately not dispositive, because under both Shelton and the general Rule 26(c) standard, a protective order is warranted.
First analyzing the Shelton factors, Ms. Burnett's role as trial counsel in the related state court action poses privilege and work product concerns. Plaintiffs are straightforward about the fact that they seek to depose Ms. Burnett regarding her role as counsel in the ongoing state court action. (See DE 47 at 7–8). Many of the document requests seek communications between Burnett and her client regarding the state court action and documents that may reveal Ms. Burnett's mental processes and litigation strategies. (DE 57-1, e.g., Request Nos. 13–16); see Shelton , 805 F.2d at 1328–29 (finding that requiring a lawyer involved in ongoing litigation to answer questions about the existence of documents or selection and compilation of documents relating that litigation would reveal work product). Plaintiffs contend that because Ms. Burnett does not represent the Association in this action, there is nothing improper about deposing Ms. Burnett in this action about the ongoing related state action or common factual issues. This argument misses the mark.
The two cases originate from the same basic factual events—the Association filed suit in state court seeking to remove Plaintiffs from the unit based on the alleged expiration of the lease term and Wilcox's alleged inappropriate conduct. Plaintiffs filed suit in federal court against the Association alleging fair housing violations based upon many of the same events. It is generally improper to depose trial counsel about ongoing litigation, regardless of whether the ongoing claims are being litigated in two separate forums. And given the overlaps between the two actions, the Association's defense in the federal action is likely to mirror its affirmative case in the state court action.
Furthermore, there is no apparent need to depose Ms. Burnett. Plaintiffs have not identified any non-privileged information Ms. Burnett has that others do not. Plaintiffs seek documents relating to the Association's issuance of the lease and relating to the service animal request. In the Complaint, Ms. Burnett was not alleged to be involved in those underlying decisions. The only allegations in the Complaint pertaining to Ms. Burnett involve her communications with Plaintiff after those events on behalf of the Association, in her capacity as the Association's lawyer. (DE 1 ¶¶ 84, 90, 93). Other Association-related individuals who were allegedly involved in those decisions would have the information that was secondarily provided to Ms. Burnett, for example the Board Members or the property manager.
Plaintiffs cite a string of cases for the proposition that a letter from an Association's lawyer can form the basis for an FHA violation. (DE 47 at 8). But it does not follow, as Plaintiffs purport, that the a lawyer who relays information in a letter on behalf of client-defendant is a "fact" witness to the underlying events described in that letter. (See id. at 9).
And to the extent that Plaintiffs contend that Ms. Burnett's filing of the state court action is a factual matter at issue in this action (see id. at 6), Ms. Burnett's deposition on that basis is not warranted. The cases on which Plaintiffs rely all involved situations where (1) the prior litigation or proceeding had terminated and (2) counsel, who represented the party in the prior terminated action and the present pending action, had some non-privileged information that was relevant to the present case and not available from other sources. See, e.g. , Pamida, Inc. v. E.S. Originals, Inc. , 281 F.3d 726, 730–31 (8th Cir. 2002) (allowing the deposition of a lawyer representing the plaintiff in an ongoing indemnity action, who had represented the plaintiff in a prior terminated patent lawsuit, regarding non-privileged facts from the patent action that were relevant to indemnity lawsuit about which others would lack knowledge, such as the reasonableness of the fees incurred in the patent action). The fact that the prior case had concluded was essential to the holding in Pamida , which Plaintiffs fail to acknowledge. In such a situation, the concerns animating Shelton , i.e., the abusive discovery practice of "deposing opposing counsel in a pending case which could potentially lead to the discovery of the attorney's litigation strategy," are not present. See id. (quoting Shelton , 805 F.2d at 1329 ). Here, those concerns are indeed present.
The result is the same if analyzed through the standard framework of Rule 26(c). Movants have met their burden of demonstrating that Ms. Burnett's deposition would be burdensome and oppressive in that it would unnecessarily risk exposing their litigation strategy in the state court action, which relates to and overlaps with the federal action. When balancing the requisite interests, Movants interests outweigh those of Plaintiffs, given that any non-privileged information Plaintiffs seek from Ms. Burnett seems to be available from other sources, including the Defendants themselves. See Salter v. Upjohn Co. , 593 F.2d 649, 651 (5th Cir. 1979) (affirming a district court's issuance of a protective order to "postpone or prevent the necessity" of deposing a corporate president who lacked first-hand knowledge of the pertinent events and was extremely busy, when the plaintiff could depose employees that the corporation indicated had more knowledge which may obviate the need to depose the president); see also Nguyen v. Excel Corp. , 197 F.3d 200, 209 (5th Cir. 1999) (finding no abuse of discretion in permitting the deposition of defense counsel when only defense counsel and the corporate executives had certain information, and the plaintiff first sought to obtain the information from the executives who provided insufficient responses). A protective order barring Ms. Burnett's deposition is therefore warranted under Rule 26(c).
Finally, Movants and Plaintiffs seek sanctions against one another for "serving a frivolous subpoena and requiring the Association and Burnett to respond" (DE 39 at 8), and for filing a "frivolous" motion for protective order (DE 47 at 11), respectively. I do not view sanctions against any party as appropriate in these circumstances, and those requests are denied.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that:
(1) The Motion for Protective Order (DE 39) is GRANTED IN PART .
(2) A Protective Order is hereby ENTERED barring the deposition of JoAnn Nesta Burnett, Esq.
(3) All requests for sanctions are DENIED .