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Smith v. Yeager

United States District Court, District of Columbia

September 15, 2017

BARBARA SMITH and CLARENCE GASBY, Plaintiffs,
v.
MARTIN J.A. YEAGER, et al., Defendants.

          MEMORANDUM OPINION

          REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Plaintiffs' Motion for Protective Order (“Pls.' Mot.”), which requests that the Court issue a protective order prohibiting the deposition of Barbara Smith, one of the plaintiffs in this case. Pls.' Mot. at 1. Upon careful consideration of the parties' submissions, [1] the Court concludes for the reasons set forth below that it must deny the plaintiffs' motion.

         I. BACKGROUND

         Much of the factual background of this case has been previously set forth by the Court. See Smith v. Yeager, et al., 234 F.Supp.3d 50, 53-55 (D.D.C. 2017) (Walton, J.). As noted in the Court's prior memorandum opinion, the underlying allegations are predicated on “a legal malpractice claim regarding the defendants' representation of the plaintiffs ‘in a landlord-tenant matter . . . in the Superior Court of the District of Columbia.'” Id. at 53. And, in that memorandum opinion, the Court denied the defendants' motion to transfer this case to the Eastern District of Virginia. See id. at 60. Thereafter, the parties began discovery, see Order (Mar. 3, 2017), ECF No. 19, and now the parties dispute whether deposing Smith is appropriate, see generally Pls.' Mot.; Defs.' Opp'n.

         Pertinent to the Court's resolution of the pending motion are the following circumstances surrounding the parties' discovery dispute. “Smith has been diagnosed with Alzheimer's disease, ” and her “unfortunate condition is publicly known.” Pls.' Mot. at 1 (noting the book Smith published regarding her experiences confronting Alzheimer's disease). Having learned of Smith's diagnosis, the defendants' counsel first requested Smith's medical records. See Defs.' Opp'n at 1-2 (arguing that if Smith was not “competent at the time the suit was filed . . . then the suit was clearly filed in violation of [Federal] Rule [of Civil Procedure] 17 . . . and her claims should be dismissed”). Plaintiffs' counsel “advised the defense that he will not be calling . . . Smith as a witness at the trial of this matter given her medical condition.” Pls.' Mot. at 2. Defense counsel then requested to depose Smith, see Defs.' Opp'n at 2; however, because counsel for the plaintiffs “insisted that . . . Smith is not competent to sit for a deposition, ” defense counsel “agreed to forego the deposition of . . . Smith if [the p]laintiffs would simply stipulate that [Smith] is not competent to sit for it, ” id. After further “discussion[s] between the parties regarding . . . Smith's ability to sit for a deposition and provide relevant, responsive information” were unfruitful, Pls.' Mot. at 2, the defendants provided the plaintiffs with a notice of deposition, see id., Exhibit (“Ex.”) B (Notice of Deposition dated June 12, 2017). The parties engaged in further discussions regarding this issue and were unable to come to an agreement. See id. at 3 (“[The d]efendants have . . . refused to withdraw . . . Smith's deposition notice and have instead required that [the p]laintiffs stipulate that . . . Smith is ‘incompetent.' Again, though, [the d]efendants have made it known to [the p]laintiffs that, should . . . Smith agree to not appear at trial (and therefore not be seen by the jury), [the d]efendants will agree to withdraw their request to depose . . . Smith (without a stipulation of incompetence).”).

         “In light of the [d]efendants' refusal to withdraw the deposition notice . . ., the [p]laintiffs . . . retained counsel in New York State to assist with the appointment of a guardian for purposes of this litigation only.” Id. Nonetheless, “[g]iven the pending guardianship process and . . . Smith's medical condition, [the p]laintiffs now seek [a p]rotective [o]rder” to prevent the defendants from deposing Smith. Id.

         II. ANALYSIS

         The plaintiffs argue that Smith “is not capable of meaningfully participating in the requested deposition, nor will said deposition provide the [d]efendants with any meaningful discovery related to the claims or defenses of this lawsuit” due to Smith's medical condition and diagnosis of Alzheimer's disease. Pls.' Mot. at 5 (emphasis in original). Thus, the “[p]laintiffs request that the [d]efendants be precluded from deposing . . . Smith until after the conclusion of the guardianship process and only if a guardian is not appointed. If a guardian is appointed, then [the p]laintiffs request that the deposition not be had all.” Id. Alternatively, if the Court concludes that a protective order is not warranted, the plaintiffs request that the Court “order that [Mr.] Gasby, ” Smith's husband and the other plaintiff in this case, “be allowed to appear on [Smith's] behalf.” Id. at 7. In response, the defendants contend that the plaintiffs have not satisfied their heavy burden of demonstrating good cause to warrant the issuance of a protective order, see Defs.' Opp'n at 3, and that Smith would provide relevant testimony to their defense of contributory negligence, which outweighs the plaintiffs' assertion of harm Smith would suffer if deposed, see id. at 4 (“At issue is the [p]laintiffs' contributory negligence in numerous incidents which involve things . . . Smith did or did not do, things she received and did not keep, over the [twenty] years prior to the time she was sued by Union Station's landlord.”). The Court will address the parties' arguments in turn.

         A. The Plaintiffs' Showing of Good Cause

         In relevant part, Federal Rule of Civil Procedure 26 provides that a “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, ” upon a motion from “[a] party or any person from whom discovery is sought . . . [coupled with] a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.” Fed.R.Civ.P. 26(c)(1). “Although the Rule contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule.” Peskoff v. Faber, 230 F.R.D. 25, 27 (D.D.C. 2005) (quoting Tavoulareas v. Wash. Post, 111 F.R.D. 653, 661 (D.D.C. 1986)).

         The moving party “bears the burden of making the showing of good cause contemplated by the rule, ” and therefore, “must make a specific demonstration of facts in support of the request as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one.” Alexander v. FBI, 186 F.R.D. 71, 75 (D.D.C. 1998). Additionally, “district courts assessing the existence of good cause must exercise their discretion in light of the relevant facts and circumstances of a particular case, ” Peskoff, 230 F.R.D. at 28 (quoting Tavoulareas, 111 F.R.D. at 658), and must “weigh[] the movant's proffer of harm against the adversary's ‘significant interest' in preparing for trial, ” Doe v. District of Columbia, 230 F.R.D. 47, 50 (D.D.C. 2005) (quoting Jennings v. Family Mgmt., 201 F.R.D. 272, 275 (D.D.C. 2001)). And, “in the case of a protective order related to deposition testimony, courts regard the complete prohibition of a deposition as an ‘extraordinary measure[ ] which should be resorted to only in rare occasions.'” Jennings, 201 F.R.D. at 275 (quoting Alexander, 186 F.R.D. at 75). Even so, “good cause exists under Rule 26(c) when justice requires the protection of a party or a person from any annoyance, embarrassment, oppression, or undue burden or expense.” Alexander, 186 F.R.D. at 75.

         Here, the plaintiffs have failed to establish good cause or to make a showing of extraordinary circumstances sufficient to justify a court order prohibiting totally the taking of Smith's deposition. See Jennings, 201 F.R.D. at 275. In seeking a protective order, the plaintiffs have not offered any “evidence of specific harm that will result to [Smith] if she is made to testify.” Id. (denying a motion for a protective order to preclude the deposition of a plaintiff suffering from dementia because the report by her psychologist submitted in support of her motion was too speculative and conclusory in nature). Rather, the plaintiffs largely rely on Smith's medical condition being “well documented to the public through numerous national news agencies . . . [and her] book detailing [her] struggles.”[2] Pls.' Mot. at 4. And, although counsel for the plaintiffs acknowledges that he “is obviously not a medical professional, he has concluded that . . . Smith is likely not physically capable of sitting for the duration of a deposition, comprehending questions posed by [the d]efendants, or formulating legitimate responses thereto.” Id. at 5. However, these non-medical conclusory statements without more, e.g., medical, psychological, or psychiatric evidence, do not meet the plaintiffs' heavy burden of demonstrating good cause sufficient to satisfy Rule 26(c) by a showing of specific facts indicating the potential harm Smith would endure without the entry of a protective order. See Tolbert-Smith v. Bodman, 253 F.R.D. 2, 4-5 (D.D.C. 2008) (entering a protective order to preclude the plaintiff's supervisors from attending the plaintiff's deposition in light of a declaration by the plaintiff's psychiatrist specifically explaining how going forward with the deposition with the supervisors present would lead to “severe depressive stress possibly resulting in suicide”).

         Furthermore, the plaintiffs' conclusory representation of the harm Smith would suffer if deposed does not outweigh the defendants' “‘significant interest' in preparing for trial.” Doe, 230 F.R.D. at 50 (quoting Jennings, 201 F.R.D. at 275). As the Court previously mentioned, the defendants contend that at trial they will seek to present an affirmative defense of contributory negligence, among other defenses. See Defs.' Opp'n at 4. And, according to the defendants, Smith likely “possesses discoverable evidence that would demonstrate that she and her husband were personally liable to the landlord for the unpaid rent for various additional reasons, having nothing to do with whether [LaFemme Noire] was properly incorporated.” Id. at 4 (contending that such discoverable information would assist in developing their contributory negligence defense). The plaintiffs did not respond to this assertion by the defendants in their reply in support of their motion to compel, see generally Pls.' Reply, and therefore, the Court will treat the defendants' contention as conceded by the plaintiffs, see, e.g., Hopkins v. Women's Div., Gen. Bd. of Glob. Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) (Walton, J.) (“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.”), aff'd, 98 F. App'x 8 (D.C. Cir. 2004). In any event, the Court agrees with the defendants that Smith, as the President and stockholder of the restaurant, may have relevant information essential to their defense or defenses. See Defs.' Opp'n at 5 (noting that Gasby's, Smith's husband, admission that he is unaware of what documents or information Smith received). And the “[d]efendants must be given an opportunity to test [Smith's] asserted lack of memory, and to develop, if possible, the facts and circumstances surrounding” Smith's involvement in the establishment of the restaurant and in the underlying landlord-tenant matter. Jennings, 201 F.R.D. at 276.

         Despite these convincing reasons for the need to depose Smith, the plaintiffs argue that the “Court should be guided by the holding of Hometown Folks, LLC v. S & B Wilson, Inc., No. 1:06-cv-81, 2007 WL 2227817, at *1, 3 (E.D. Tenn. July 31, 2007).” Pls.' Mot. at 5; see also Id. at 6 (asserting that “[t]he same good cause that justifies the entry of a protective order [in Hometown Folks] also justifies the entry of a protective order for [this case]”). In Hometown Folks, the plaintiff moved to compel one of the defendants, an eighty-three-year-old man who suffered from dementia and labile hypertension, to respond to written interrogatories and to produce documents regarding an alleged breach of contract concerning an agreement for the sale of certain Burger King restaurants to the plaintiff. See 2007 WL 2227817, at *3. In response to the motion to compel, the defendants moved for a protective order precluding the mentally ill defendant from having to respond to the plaintiff's written discovery requests. Id. at *6. “[C]onsidering as a whole all the evidence presented, ” the Hometown Folks court concluded that “requiring the [defendant] to answer the interrogatories propounded to him by the plaintiff would be a fruitless exercise.” Id. at *8. This was the court's conclusion because the court reasoned that the defendant's “memory [was] completely unreliable and he [was] incapable of responding competently to the ...


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