*1 THIS CAUSE is before the Court on Plaintiff's Motion for Protective Order (ECF No. 135) (the “Motion”) and Defendant Ashfaq Rahman's Motion for Leave to Exceed Deposition Limit (ECF No. 142), which this Court deferred ruling on and considered as Defendant's response in opposition to Plaintiff's Motion (ECF No. 143). The Honorable William P. Dimitrouleas referred all pretrial discovery matters to United States Magistrate Judge Lurana S. Snow for appropriate resolution pursuant to 28 U.S.C. § 636. (ECF No. 40) This matter is now ripe for review.

On March 31, 2021, Plaintiff Onemata Corporation (the “Plaintiff”) filed its Second Amended Complaint (ECF No. 73) against Defendants Ashfaq Rahman and Sabira Arefin (the “Defendants”) asserting fraudulent concealment, fraudulent misrepresentation, fraudulent inducement, breach of contract, promissory estoppel, unjust enrichment, and tortious interference with contractual relations. (ECF No. 73 at 5-26) Plaintiff alleges that on December 18, 2019, Enscicon Acquisition entered into a Stock Purchase Agreement with Defendants to acquire all of the common stock of LocalBlox, Inc., which represented approximately 95% of the total ownership of LocalBlox, Inc. (ECF No. 73 at ¶ 7 and 8) On September 30, 2020, Enscicon Acquisition merged into Plaintiff, with all legal rights and interests, including those related to the Stock Purchase Agreement, being transferred to Plaintiff. Id. at ¶ 10. Pursuant to the terms and conditions of the Stock Purchase Agreement, the Defendants made certain representations, warranties, and covenants. Id. at ¶ 12. Plaintiff now contends that many of these representations, warranties, and covenants were false, incomplete, and/or “flagrantly disregarded.” Id. at ¶ 13.

Non-parties Videal, LLC (“Videal”), Maxim Kerimov (“Kerimov”), Golam Osmani (“Osmani”), and Data-Dynamix, Inc. (“Data-Dynamix”) (together “Non-Parties”) are alleged to have been involved with LocalBlox and to have intimate knowledge of Defendant Rahman's purported misrepresentations to Plaintiff. (ECF No. 142 at 4-5) On October 11, 2021, Defendant Rahman noticed Videal's deposition for November 1, 2021. (ECF No. 142 at 3) That same day, after the parties conferred about Defendants’ proposed additional depositions, Plaintiff filed its Motion for Protective Order seeking to limit notices of depositions it believed were in excess of those allowed by Fed. R. Civ. P. 30(a)(2)(A). (ECF No. 135) In response, Defendant Rahman now requests leave to exceed the ten deposition limit to the extent necessary to depose the Non-Parties remotely via Zoom. (ECF No. 142)

A. General principals governing discovery

According to Rule 26(b)(1) of the Federal Rules of Civil Procedure:

*2 The scope of discovery is broad, parties may generally obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “[T]he Federal Rules ... strongly favor full discovery whenever possible[.]” Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013). The determination of what is relevant for discovery purposes depends on the parties’ claims and defenses. Further, the Rules of Civil Procedure shall be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

B. Protective Order

Fed. R. Civ. P. 26 permits a court, for good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” “While Rule 26(c) articulates a single standard for ruling on a protective order motion, that of ‘good cause,’ the federal courts have superimposed a somewhat more demanding balancing of interests approach to the Rule.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). This requires a court to “balance the non-moving party's interest in obtaining discovery and preparing for trial against the moving party's proffer of harm that would result from the deposition.” Baratta v. Homeland Housewares, LLC, 242 F.R.D. 641, 642 (S.D. Fla. 2007) (citing Farnsworth, 758 F.2d at 1547).

Plaintiff asserts no specific reason indicating how the depositions of the Non-Parties Videal, Kerimov, Osmani, and Data-Dynamix would cause any harm. Plaintiff simply argues that discovery up to this point in the case “has been complicated, complex, extensive and costly.” (ECF 135 at ¶ 9) Such conclusory statements about harm are insufficient for a court to grant a protective order. See Baratta, 242 F.R.D. at 642. Moreover, Plaintiff anchors its argument in the fact that Defendants’ past discovery requests and areas of inquiry have been broad, requiring Plaintiff to spend a “significant” amount of employee resources and time. (ECF No. 135 at ¶ 5-7) The Court notes, however, that Defendants have not come close to reaching the hourly limit for any deposition conducted thus far. This betrays any suggestion that the time spent on depositions has been unduly burdensome on Plaintiff.

Notably, Defendant Rahman requests depositions of the Non-Parties remotely via Zoom to avoid any unnecessary costs to either side. (ECF No. 142 at 6) Plaintiff concedes that Defendant Rahman only ever sought to depose Videal via Zoom. (ECF No. 135 at ¶ 1) The mode of deposing the Non-Parties is relevant because Videal is based in the Ukraine, Kerimov resides in Russia, Osmani resides in Washington, and Data-Dynamix is based in Colorado. (ECF No. 142 at 2) While deposing individuals or entities outside of a court's jurisdiction undoubtably has the potential to be burdensome, utilizing a remote platform further mitigates any potential harm to Plaintiff in producing the Non-Parties for deposition.

In contrast, the Court finds that Defendant Rahman has a legitimate interest in deposing the Non-Parties. Defendant Rahman states that Videal “helped build LocalBlox's products.” (ECF No. 142 at 5) Videal, therefore, has intimate knowledge of LocalBlox which will be relevant to determining the claims against Defendant Rahman that relate to LocalBlox. Similarly, in its Second Amended Complaint, Plaintiff asserts that Defendant Rahman concealed a settlement agreement with a third-party concerning LocalBlox's use of data from X-Mode Social, Inc. (ECF No. 73 at ¶ 28) Defendant Rahman contends, and Plaintiff does not dispute, that Kerimov is “knowledgeable about the dynamics of LocalBlox's server usage ... and the use of data from X-Mode Social, Inc.” (ECF No. 142 at 5) Accordingly, Kerimov's testimony is relevant to any claims related to X-Mode Social, Inc.

*3 By alleging that Defendants concealed improper pre-closing payments to Osmani, Plaintiff also put Osmani's testimony directly at issue. (ECF No. 73 at ¶¶ 14(c), 46) Finally, Plaintiff alleges that LocalBlox improperly used customer servers for the benefit of others without their customers’ consent. (ECF No. 73 at ¶ 35) As a customer of LocalBlox, Data-Dynamix has firsthand knowledge of LocalBlox's use of its servers and whether such use was permitted. Therefore, the Court finds that the Non-Parties have information that is relevant and proportional to the needs of the instant case.

Balancing Defendant Rahman's interest in discovery against Plaintiff's proffer of harm, the Court finds that the depositions of Videal, Kerimov, Osmani, and Data-Dynamix would not unreasonably annoy, embarrass, oppress, or burden Plaintiff, and accordingly, denies Plaintiff's request for a protective order.

C. Defendant's request for leave to exceed deposition limit

When there is no court order setting a limit on the number of depositions, Fed. R. Civ. P. 30(a)(2)(A) controls, limiting the number of depositions without leave of court to ten. Defendant Rahman argues that the Defendants have collectively only taken six (6) depositions to date. (ECF No. 142 at 3) By contrast Plaintiff argues that Defendants have already completed twelve (12) depositions. Id. In light of this dispute Defendant Rahman seeks leave to exceed the ten depositions limit to the extent necessary to depose the Non-Parties remotely via Zoom. Id. at 2-3.

The Court first notes that a moving party need not necessarily reach the deposition limit prior to a court granting leave to exceed it. See Sec. & Exch. Comm'n v. Zachariah, No. 08-60698-CIV, 2009 WL 10669546, at *2 (S.D. Fla. May 21, 2009). In Zachariah, this Court held that its inherent powers and discretion to regulate discovery under Fed. R. Civ. P. 26, permitted it to grant leave to exceed the ten-deposition limit when the discovery cutoff was fast approaching, “for the sake of efficiency and expeditiousness” even though the ten-deposition limit was not yet reached. Id. In the instant case, the discovery cutoff is currently set for November 15, 2021, which is less than two weeks away. (ECF No. 40) In light of the nearing discovery cutoff date, the Court finds it appropriate to determine the request for leave to exceed the deposition limit on the merits even if Defendant Rahman has not yet exceeded the ten-deposition limit.

A court's decision whether to grant a request for leave to exceed the ten-deposition limit is governed by the principles set out in Fed. R. Civ. P. 26(b)(2). Schiller Am., Inc. v. Welch Allyn, Inc., No. 06-21439-CIV, 2007 WL 2702247, at *1 (S.D. Fla. Sept. 14, 2007). Specifically, Fed. R. Civ. P. 26(b)(2)(C) states as follows:

Accordingly, a party seeking leave to exceed the deposition limit in a case must justify the necessity of each deposition previously taken without leave of court. See Barrow v. Greenville Indep. School Dist., 202 F.R.D. 480, 482 (N.D. Tex. 2001). Moreover, the moving party must make a particularized showing why extra depositions are necessary. Id.; Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., 187 F.R.D. 578, 586 (D. Minn. 1999). As previously noted, Defendant Rahman has established that the Non-Parties have information that is relevant and proportional to the needs of the instant case that outweighs any potential harm to Plaintiff. Additionally, the Non-Parties cannot be compelled to testify at trial because the witnesses do not reside or regularly conduct business within 100 miles of the Southern District of Florida. (ECF No. 142 at 2) Thus, the Court finds that Defendant Rahman made a particularized showing that the depositions of the four Non-Parties are necessary.

*4 Nonetheless, each of Defendant Rahman's previous depositions also must be justified and necessary to warrant leave to exceed the ten-deposition limit. The parties agree that Defendant Rahman has already deposed Plaintiff, Enscicon II, William Smith, Crystal Anzulewicz, Brad Brown, and Craig Smith. The Plaintiff, as the successor-in-interest to LocalBlox, is fundamentally related to every allegation in the instant case and was necessary to depose. Enscicon II was the only promisor of the promissory notes issued to Defendants in exchange for their equity in LocalBlox. (ECF No. 142 at 6) Therefore, Enscicon II was also a necessary party to depose since it had unique information concerning the terms of the contract that is involved in the current dispute. William Smith was the primary negotiator for Plaintiff in the LocalBlox acquisition and allegedly executed personal guarantees related to this action. Id. Smith's individual testimony was necessary both because he is privy to information related to the LocalBlox acquisition at issue and because of his alleged personal guarantees.

Likewise, Crystal Anzulewicz is Plaintiff's chief financial officer. Id. In that role, she reviewed LocalBlox's financials that precipitated this lawsuit. The deposition of Anzulewicz was, therefore, necessary to determine whether LocalBlox's finances were in compliance with the settlement agreement and the appropriateness of any potential damages. Brad Brown is Plaintiff's chief technology officer. Id. Brown's testimony was necessary to the technical aspects of the instant case, including data issues and server usage compliance. Finally, Craig Smith is a former employee of Plaintiff and LocalBlox with firsthand knowledge of LocalBlox's relationship with its customer TrueInfluence, Inc. Id. Craig Smith's testimony was necessary since Plaintiff put the LocalBlox and TrueInfluence, Inc. relationship directly at issue.

In light of the necessity of both Defendant Rahman's previously conducted depositions and the proposed additional depositions, the Court finds that the Non-Parties’ depositions are relevant and proportional to the needs of the instant case. Accordingly, the Court grants Defendant Rahman's request for leave to exceed the ten-deposition limit to the extent necessary to depose the Non-Parties remotely via Zoom. Pursuant to this Order, the parties are to select a mutually agreeable date and time, prior to the November 15, 2021 discovery cutoff, to conduct the Zoom depositions of Videal, Kerimov, Osmani, and Data-Dynamix.

In light of the Court's willingness to grant leave to exceed the deposition limit, the Court finds no need to consider Defendant Rahman's argument that he has currently only conducted six depositions. Regardless of how Defendant Rahman's previous depositions are counted, the Court finds that the Zoom depositions of Videal, Kerimov, Osmani, and Data-Dynamix may be conducted.

After careful review of the Motion, the Response, and the Reply thereto, the court file, and applicable law, it is hereby

ORDERED AND ADJUDGED as follows:

DONE AND ORDERED at Fort Lauderdale, Florida, this 5th day of November 2021.