I. BACKGROUND

In their motion (as amended), Plaintiffs assert that their former accountant and tax professional, Ms. Patricia Sanderson, has refused to appear for an in-person deposition due to the COVID-19 pandemic and her request not to be deposed on her birthday. Doc. No. [91], 3. Plaintiffs state that Ms. Sanderson's in-person deposition is important as the deposition will be document intensive (requiring detailed review and handling of various documents) and will be centered upon the following: (1) the scope and authenticity of various financial documents Ms. Sanderson filed with government agencies, including the IRS, throughout the course of her representation of Plaintiffs; (2) the lack of her preparation of any financial documents, such as a 1099 or K-1, to Jack Parker evidencing his receipt of any personal income from Dingy Dents; (3) electronic correspondence and communications with the Parkers, including their daughter, Jackie Parker; (4) the July 2020 filing Ms. Sanderson prepared at the behest of the Parkers and filed with the Georgia Secretary of State; (5) the Declaration Ms. Sanderson signed under penalty of perjury following the injunction hearing in March 2021; and (6) the July 23, 2020 email Ms. Sanderson received from the Executive Auto email account attaching an electronic copy of the Dingy Dents' allegedly forged Operating Agreement created by Jack Parker. Doc. No. [91], 3. Plaintiffs recognize the safety concerns with the ongoing COVID-19 pandemic, but indicate that these concerns do not outweigh Plaintiffs' right to depose their former accountant. Doc. No. [91-1], 13. Plaintiffs also emphasize the seriousness of the case, as well as the importance, value, and effectiveness of in-person depositions. Id. at 14–15. Plaintiffs thus seek to compel Ms. Sanderson's live deposition testimony to occur after May 2, 2021 (i.e., the expiration of the Court's pandemic emergency order) and consistent with all safety precautions necessary to ensure a safe environment for a live deposition. Id. at 4. Plaintiffs also seek for Ms. Sanderson to produce the documents requested in Exhibit A to the subpoena. Doc. Nos. [89], 4; [89-1], 9; see also Exh. A, Doc. No. [81-1], 4–8.

On April 12, 2021, non-party, Ms. Sanderson, filed a response in opposition to Plaintiffs' motions to compel. Doc. No. [97]. She also contemporaneously filed a Motion for Protective Order pursuant to Federal Rule of Civil Procedure 26(c)(1). Doc. No. [98]. In these filings, Ms. Sanderson states that Plaintiffs' counsel has “knowingly mis[led] this Court by mischaracterizing Ms. Sanderson and her cooperation.” Id. at 3. Ms. Sanderson also expressed a wish for the deposition to be virtual, due to her age (58 years old) and “high risk” category status if she contracts COVID-19. Id. at 5.[2] Ms. Sanderson further stated her reasons for delaying vaccination. Id. at 6. Ms. Sanderson stated that “[t]he cumulus of the foregoing public health information, [her age], the fact that [she] has not been vaccinated, and [Plaintiffs' counsel's] own compromised immune system [discussed by Plaintiffs' counsel in her reply brief at Doc. No. [105]] supports this court issuing a protective order allowing for the deposition of Ms. Sanderson to occur virtually.” Doc. No. [114], 4.

*2 On April 12, 2021, Defendants filed a response in opposition to Plaintiffs' pending motions to compel. Doc. No. [99]. Defendants assert that Ms. Sanderson should not be compelled to appear for an in-person deposition based on her expressed concerns. Id. at 2. They also assert that “Plaintiffs have provided no persuasive reason as to why Ms. Sanderson's deposition cannot be held remotely.” Id. at 6.

On April 26, 2021, Plaintiffs filed a response in opposition to Ms. Sanderson's motion for protective order. Doc. No. [105]. Plaintiffs asserts that the motion for protective order is moot due to the date for the deposition having passed. Id. at 2. Plaintiffs also incorporate their arguments from their motions to compel. Id. Plaintiffs' counsel also set forth a more details about the safety protocols for the deposition. Id. at 4–5. Plaintiffs' Counsel states that she and her paralegal are fully vaccinated; that the court reporter and videographer will be fully vaccinated; that the deposition will occur in a large (heavily ventilated, weekly sanitized via fogging) conference room; masks will be worn at all times; and Plexiglas dividers are available. Id. at 5. Plaintiffs also request attorney's fees for having to respond to the motion for protective order (based on “no legitimate evidence, work schedule and “self-serving alleged ‘concerns’ ” of Ms. Sanderson). Id.

The three motions at issue have been fully briefed and are now ripe for ruling.

II. LEGAL STANDARD

A. Motion to Compel

If one party does not comply with discovery requests, the opposing party may seek a motion to compel discovery responses. Fed. R. Civ. P. 37(a)(1). The movant must include in its motion a certification that it made a good faith effort to confer with the non-complying party before filing the motion. Id.; LR 37.1(A)(1), NDGa.[3]

“[A] district court is allowed ‘a range of choice’ ” in deciding whether to grant or deny a motion to compel discovery responses. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006). If the Court finds that one or both parties faltered in their discovery obligations, it has discretion, under Rule 37(a), to compel appropriate discovery responses. Fed. R. Civ. P. 37(a)(1); see Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984) (“Case law states that a motion to compel discovery is committed to the discretion of the trial court ....”).

B. Motion for Protective Order

“[A]ny person from whom discovery is sought may move for a protective order in the court where the action is pending. Fed. R. Civ. P. 26(c)(1).[4] “The [C}ourt may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (B) specifying the terms, including time and place ... for the disclosure or discovery [and] prescribing a discovery method other than the one selected by the party seeking discovery.” Fed. R. Civ. P. 26(c)(1)(B), (C). “The burden is on the movant [here, Ms. Sanderson] to show the necessity of the protective order, and the movant must meet this burden with a ‘particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.’ In addition to requiring good cause, the district court must ‘balance the interests of those requesting the order.’ ” Ekokotu v. Fed. Exp. Corp., 408 F. App'x 331, 336 (11th Cir. 2011) (citations omitted); see also Rasmussen v. W. E. Hutton & Co., 68 F.R.D. 231, 233 (N.D. Ga. 1975) (“discretion is involved in determining whether good cause exists ....”).

C. Remote Depositions

*3 The Federal Rules give the Court authority to order that depositions be taken remotely, should circumstances require it. Federal Rule of Civil Procedure 30(b)(4) provides: “The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” “[C]courts enjoy broad discretion to control and to place appropriate limits on discovery, which includes authorizing depositions to be taken by remote means.” Graham v. Ocwen Loan Servicing, LLC, No. 16-80011-CIV, 2016 WL 7443288, at *1 (S.D. Fla. July 1, 2016) (citations omitted).

III. ANALYSIS

During the course of the ongoing COVID-19 pandemic, the Court has dealt with the issue of remote depositions due to health concerns on at least one other occasion. See Williams v. City of Cartersville, No. 4:19-CV-0045-SCJ (N.D. Ga Sept. 3, 2020). In that case, the Court declined to order in-person depositions and the Court sees no reason to deviate from its prior ruling and rationale. As expressed in Williams, the Court's foremost concern is the safety of all involved in this litigation and the Court remains hesitant to require non-vaccinated deponents in the high risk or “at risk” categories to appear in person for a deposition.[5]

The Court has reviewed Plaintiffs' citation of authority in support of their motion, inclusive of the case of Provident Sav. Bank, F.S.B. v. Focus Bank, No. 1:19-CV-151 RLW, 2020 WL 6196132, at *3 (E.D. Mo. Oct. 22, 2020). However, the Focus Bank case is not determinative or binding—and is also distinguishable (as correctly noted by Defendants) on the ground that there was a need to examine the “physical features of the original documents,” as well as “hold, and manipulate” the documents. Id. at *2. In the case sub judice, Plaintiffs only assert the document intensive nature of the anticipated deposition as a basis for an in-person deposition, not tactile necessities, such as in the Focus Bank case.

The Court also recognizes that there is authority that holds that there is no reason for a party moving for a remote-means deposition to show necessity (only a legitimate reason) and that “the party opposing the telephonic deposition must come forward with a particularized showing as to why a telephonic deposition would prejudice it.” Jahr v. IU Int'l Corp., 109 F.R.D. 429, 432 (M.D. N.C. 1986). To the extent that such is the applicable standard, the Court finds that Ms. Sanderson has shown a legitimate reason for the remote deposition based on her “at risk”/non-vaccinated status (even if subjective as noted by Plaintiffs) and that Plaintiffs have not made a sufficient/particularized showing as to why a telephone deposition will prejudice Plaintiffs. While as correctly noted by Counsel for Ms. Sanderson, remote depositions are sometimes “clunky,”[6] videoconferencing software has become quite advanced, and both the Court and litigants before it have successfully conducted numerous virtual hearings on other matters, including the most recent preliminary injunction hearing which involved credibility determinations and was document intenstive. See also H & T Fair Hills, Ltd. v. All. Pipeline L.P., No. CV 19-1095 (JNE/BRT), 2020 WL 5512517, at *3 (D. Minn. Sept. 14, 2020) (“A ‘document laden’ or ‘document intensive’ deposition is ... ‘not an obstacle to a successful remote videoconference deposition.’ In addition, there are many resources available from vendors and through the legal community to assist counsel in preparing for remote depositions. Thus, Plaintiffs have presented no specific concerns for the participants that cannot be overcome ....”) (citations omitted).

IV. CONCLUSION

*4 In conclusion, Plaintiffs' Motions to Compel In-Person Deposition of Patricia L. Sanderson (Doc. Nos. [89], [91) are DENIED in part and GRANTED in part.[7] More specifically, Plaintiffs' request for an in-person deposition is DENIED. Plaintiffs' request for document production is GRANTED. It is therefore ORDERED that Ms. Sanderson shall appear for a remote deposition and produce the documents set forth in Exhibit A at Doc. No. [81-1], 4–8.[8] Said deposition and production shall occur within THIRTY DAYS of the issuance of this order.

The Non-Party Motion for Protective Order filed by Patricia Sanderson (Doc. No. [98]) is MOOT in part as the subpoena date has now passed and to the extent not moot, GRANTED as to the Rule 30(b)(4) remote deposition request.

Attorney's fees are not awarded as there was some merit to both Plaintiffs' and Ms. Sandersons' positions and the circumstances make an award of expenses unjust.

IT IS SO ORDERED this 18th day of May, 2021.

Since the pending motions involve a non-party, the Court's informal discovery procedures (directed at parties to the litigation) does not apply.

In her affidavit, Ms. Sanderson states that she is in the “at risk” category if she contracts Covid-19. Doc. No. [97-1], ¶ 7.

Here, the Court was unable to locate a certification by Plaintiffs' Counsel, which technically renders Plaintiffs' motions, premature or otherwise subject to denial. See Haynes v. JPMorgan Chase Bank, N.A., 466 F. App'x 763, 765 (11th Cir. 2012) and El-Saba v. Univ. of S. Ala., 738 F. App'x 640, 646 (11th Cir. 2018). However, through Plaintiffs' Counsel's declarations in support of the motions and attached correspondence, there is sufficient evidence in the record of a good faith effort to confer.

“The motion must include 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). The Court is unable to locate a certification by Ms. Sanderson's counsel; however, there is an affidavit of Ms. Sanderson at Doc. No. [97-1] that details her efforts to resolve the dispute for which the Court garners that there were attempts to resolve this dispute without court action. Nevertheless, as the crux of the issue is the remote deposition for which Rule 30(b)(4) governs and is an issue that must be resolved for discovery to be completed, the Court will continue with its consideration of the pending motions.

The Court recognizes that it utilized the General Order regarding Court Operations under the Exigent Circumstances by Covid-19 and Related Coronavirus as a partial basis/citation for its decision in the Williams case and that as correctly noted by Plaintiffs' Counsel, the general order has now expired (as of May 2, 2021)—yet, the COVID-19 pandemic remains ongoing, despite the promising/steadily decreasing daily trends for the number of COVID-19 cases in Georgia, since the vaccine rollout. See https://covid.cdc.gov/covid-data-tracker/#trends dailytrendscas es (last visited May 15, 2021).

See Doc. No. [114], 4. And there are other articulated shortcomings with remote depositions. See Kean v. Bd. of Trustees of the Three Rivers Reg'l Libr. Sys., 321 F.R.D. 448, 453 (S.D. Ga. 2017) (recognizing shortcomings and counter-arguments of remote depositions).

By separate order, the Court has already granted the portion of the motion concerning discovery extension. Doc. No. [113].

The Court recognizes that the Exhibit A/subpoena has expired; however, the Court deems it proper to require the production.