Wilcox v. La Pensee Condo. Ass'n, Inc.
Wilcox v. La Pensee Condo. Ass'n, Inc.
2022 WL 2948888 (S.D. Fla. 2022)
July 26, 2022
Matthewman, William, United States Magistrate Judge
Summary
The Court granted in part and denied in part the Motion to Compel Production of Psychological and Medical Records and the Motion to Compel Production of Exhibits from Todd Davis' April 26, 2022 Deposition, both of which sought the production of ESI. The Court also noted that the June 30, 2022 discovery cutoff deadline may be extended if necessary, and directed the parties to use electronic means to obtain and provide records.
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
v.
LA PENSEE CONDOMINIUM ASSOCIATION, INC., MARY MCFADDEN, MAC RESIDENTIAL MANAGEMENT SERVICES, LLC, and DAVID WOLFF a/k/a DAVID WOLF, Defendants
Case No. 21-81565-CIV-MIDDLEBROOKS/MATTHEWMAN
United States District Court, S.D. Florida
Entered on FLSD Docket July 26, 2022
Matthewman, William, United States Magistrate Judge
OMNIBUS ORDER ON DISCOVERY-RELATED MOTIONS [DEs 85, 86, 87, 88, 111]
THIS CAUSE is before the Court upon Defendants Mary McFadden and MAC Residential Management Services, LLC's: (1) Renewed Motion to Compel Deposition of Plaintiff David Wilcox, Jr. [DE 85]; (2) Motion to Compel Plaintiff Megan Luchey to Answer Questions at Her Reconvened Deposition [DE 86];[1] (3) Motion to Compel Production of Psychological and Medical Records [DE 87]; and (4) “Motion to Compel Production of Exhibits From Todd Davis’ April 26, 2022 Deposition and Documents Subpoenaed from the Department of Business and Professional Regulation, the Collier County Florida Sheriff's Office, and the Palm Beach County Sheriff's Office” [DE 88].[2] It is also before the Court upon pro se Plaintiff William David Wilcox, Jr.’s Motion to Show Cause for the Cancellation without Notice of Deposition for Key Fact Witness [DE 111]. The Court held a hearing via Zoom video teleconference (VTC) on July 22, 2022. The Court has carefully considered the relevant law, the five motions at issue [DEs 85, 86, 87, 88, 111], the responses and replies thereto [DEs 97, 101, 95, 96, 115 and 105, 108, 103, and 104, respectively],[3] the parties’ argument during the July 22, 2022 Zoom VTC hearing, as well as the entire docket in this case. This written Order follows.
1. Renewed Motion to Compel Deposition of Plaintiff David Wilcox, Jr. [DE 85]
First, Defendants Mary McFadden and MAC Residential Management Services, LLC's (“the MAC Defendants”) Renewed Motion to Compel Deposition of Plaintiff David Wilcox, Jr. [DE 85] is GRANTED. Upon the agreement of the MAC Defendants and pro se Plaintiff David Wilcox, Jr. (“Plaintiff Wilcox”), it is hereby ORDERED that Plaintiff Wilcox shall sit for his videotaped deposition on August 8, 2022, at 9:30 a.m.[4]
At the Court-ordered videotaped deposition, which the parties have advised will be conducted remotely via Zoom, all counsel and pro se Plaintiff Wilcox shall appear and conduct themselves in a professional manner. Should the parties fail to conduct themselves properly or violate any rule, the Court will not hesitate to issue sanctions. Moreover, the deposition shall last no longer than one day. See Fed. R. Civ. P. 30(d)(1) (“Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”). And, as the Court previously stated that “any party may move the court for an extension of the discovery deadline for the limited purpose of conducting Mr. Wilcox's deposition,” DE 66, the Court finds good cause to extend the June 30, 2022 discovery cutoff deadline for the limited purpose of taking Plaintiff Wilcox's deposition.
2. Motion to Compel Plaintiff Megan Luchey to Answer Questions at Her Reconvened Deposition [DE 86]
Next, with respect to Defendants Mary McFadden, MAC Residential Management Services, LLC, La Pensee Condominium Association, Inc., and David Wolff's Motion to Compel Plaintiff Megan Luchey to Answer Questions at Her Reconvened Deposition [DE 86], the Court DENIES IN PART and RESERVES RULING IN PART on the motion. Specifically, because the MAC Defendants and Plaintiff Megan Danielle Luchey (“Plaintiff Luchey”) have since filed a Stipulation of Dismissal with Prejudice [DE 119],[5] and because the MAC Defendants acknowledged during the Zoom VTC hearing that their requested relief is now moot, the Motion to Compel Plaintiff Megan Luchey to Answer Questions at Her Reconvened Deposition [DE 86] is DENIED AS MOOT as to the MAC Defendants.
However, because Defendants La Pensee Condominium Association, Inc. and David Wolff recently filed a Notice of Joinder [DE 117], “adopt[ing], incorporat[ing], and join[ing]” in on this motion, and because Defendant La Pensee Condominium Association, Inc., Defendant David Wolff, and Plaintiff Luchey filed a Stipulation of Intent to Settle Case [DE 118]—and therefore have not yet actually settled the case—the Court RESERVES RULING on the Motion to Compel Plaintiff Megan Luchey to Answer Questions at Her Reconvened Deposition [DE 86] as to those parties. Without deciding the issue at this time, the Court notes that it appears the domestic violence petition questions are relevant to the case at hand, but that the quitclaim deed questions are not. Nonetheless, the Court will allow Defendant La Pensee Condominium Association, Inc., Defendant David Wolff, and Plaintiff Luchey time to finalize their settlement before the Court rules on this matter.
With that being said, it is hereby ORDERED that Defendant La Pensee Condominium Association, Inc., Defendant David Wolff, and Plaintiff Luchey shall file a Joint Notice on or before August 3, 2022, advising the Court as to whether the deposition of Ms. Luchey is still being sought. If so, the Court will further review the Motion to Compel Plaintiff Megan Luchey to Answer Questions at Her Reconvened Deposition [DE 86], enter an appropriate order, and require that any deposition of Ms. Luchey be taken by August 10, 2022.[6] However, if those parties indicate that Ms. Luchey's deposition is no longer being sought, the Court will deny the remaining portion of the motion as moot.
3. Motion to Compel Production of Psychological and Medical Records [DE 87]
Third, the MAC Defendants’ Motion to Compel Production of Psychological and Medical Records [DE 87] is GRANTED IN PART and DENIED IN PART. Specifically, the motion is DENIED AS MOOT to the extent that the motion seeks the psychological and medical records of Plaintiff Luchey, as Plaintiff Luchey has since stipulated to dismissal with prejudice of her claims against the MAC Defendants. [DE 119]. Indeed, during the July 22, 2022 Zoom VTC hearing, counsel for the MAC Defendants agreed that the motion was moot as it pertained to the psychological and medical records of Ms. Luchey.
However, the Motion to Compel Production of Psychological and Medical Records [DE 87] is GRANTED to the extent the MAC Defendants seek the psychological and medical records of pro se Plaintiff Wilcox—assuming, that is, that there remain any claims for emotional or mental distress damages pertaining to Plaintiff Wilcox following the filing of the First Amended Complaint. So long as there are emotional or mental distress damages at issue, Plaintiff Wilcox shall produce documents responsive to Requests #2, #3, and #4 of the MAC Defendants’ Second Request for Production of Documents [DE 87 at 13], on or before August 5, 2022.[7] However, if Plaintiff Wilcox files a written pleading in the interim period—in which he states that he is not seeking any mental or emotional distress damages and is not making any claims for damages related to mental or emotional distress—then Plaintiff Wilcox shall not be required to produce the psychological and medical records at issue.[8] The Court finds good cause to extend the June 30, 2022 discovery cutoff deadline for the limited purpose of producing Plaintiff Wilcox's psychological and medical records, if necessary, as stated above.
4. “Motion to Compel Production of Exhibits from Todd Davis’ April 26, 2022 Deposition and Documents Subpoenaed from the Department of Business and Professional Regulation, the Collier County Florida Sheriff's Office, and the Palm Beach County Sheriff's Office” [DE 88]
Fourth, Defendants Mary McFadden, MAC Residential Management Services, LLC, La Pensee Condominium Association, Inc., and David Wolff's “Motion to Compel Production of Exhibits from Todd Davis’ April 26, 2022 Deposition and Documents Subpoenaed from the Department of Business and Professional Regulation, the Collier County Florida Sheriff's Office, and the Palm Beach County Sheriff's Office” [DE 88] is GRANTED IN PART and DENIED IN PART.
With respect to the Todd Davis exhibits and the subpoenaed documents from the Department of Business and Professional Regulation (“DBPR”), the motion [DE 88] is GRANTED. Accordingly, either Plaintiff Wilcox or his former counsel, Richard Lubliner, Esq., shall produce the Todd Davis exhibits and DBPR documents to the extent that those files and documents are in Plaintiff Wilcox or Mr. Lubliner's possession, custody, or control. However, because the exhibits and documents may be in the possession, custody, or control of Mr. Lubliner, the Court directs the parties to contact Mr. Lubliner and inform him that the Court has ordered that the seven Todd Davis exhibits and the subpoenaed DBPR documents be produced.[9] The Court further directs the parties to inform Mr. Lubliner that if he voluntarily produces these documents, it will take care of the issue. If, however, Mr. Lubliner will not produce the exhibits and documents (or does not have them), Mr. Lubliner must file a Notice to the Court containing any objections or explanation for not producing them. Should it become necessary, the Court will issue an Order to Show Cause, ordering Mr. Lubliner to produce such exhibits and documents. Additionally, should Mr. Lubliner produce the exhibits and documents to Plaintiff Wilcox, Plaintiff Wilcox shall forthwith produce them to opposing counsel.
As to the subpoenaed Collier County documents, the “Motion to Compel Production of Exhibits from Todd Davis’ April 26, 2022 Deposition and Documents Subpoenaed from the Department of Business and Professional Regulation, the Collier County, Florida Sheriff's Office, and the Palm Beach County Sheriff's Office” [DE 88] is DENIED, based upon Plaintiff Wilcox's representation that he was informed—via email—that no such documents exist. Plaintiff Wilcox shall provide said email to Defendants forthwith. And, lastly, with respect to the subpoenaed Palm Beach County documents, the motion [DE 88] is DENIED AS MOOT, as all parties acknowledge that Plaintiff Wilcox provided such documents.
Because of the uncertainty surrounding production of the Todd Davis exhibits and DBPR documents, as well as the production of the Collier County letter, it is hereby ORDERED that on or before July 29, 2022, the parties shall file a Joint Notice advising the Court as to whether Mr. Lubliner (or Plaintiff Wilcox) has produced the exhibits and documents, and whether Plaintiff Wilcox has produced the Collier County letter. If the parties do not comply, the Court will not hesitate to impose sanctions as may be appropriate.
5. Motion to Show Cause for the Cancellation without Notice of Deposition for Key Fact Witness [DE 111]
Finally, Plaintiff's Motion to Show Cause for the Cancellation without Notice of Deposition for Key Fact Witness [DE 111] is DENIED. In making this ruling, the Court notes that only the MAC Defendants noticed the deposition of Junko Ferrer. Although Plaintiff Wilcox claims that Ferrer is a critical witness, neither Plaintiff Wilcox nor his former counsel noticed the deposition of Ferrer or issued a subpoena to Junko Ferrer. Thus, Plaintiff Wilcox was not entitled his own deposition of Ferrer. See Fed. R. Civ. P. 30(b)(1) (“A party who wants to depose a person by oral questions must give reasonable written notice to every other party.”).
Further, to the extent Plaintiff Wilcox takes issue with not being informed of the cancellation of Ferrer's deposition, the Court finds that the failure to notify Plaintiff Wilcox was inadvertent. But in any event, the deposition of Ferrer was scheduled beyond the Court's June 30, 2022 discovery cutoff deadline. Accordingly, no relief is warranted.
To conclude, the parties are advised that the August 17, 2022 dispositive motion deadline is firm. Nothing in this Order shall be construed as in any way modifying or extending the dispositive motion deadline in this case.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 25th day of July, 2022.
Footnotes
Defendants La Pensee Condominium Association, Inc. and David Wolff filed a Notice of Joinder [DE 117], “adopt[ing], incorporat[ing], and join[ing]” in on this motion.
Defendants La Pensee Condominium Association, Inc. and David Wolff also filed a Notice of Joinder [DE 116], “adopt[ing], incorporat[ing], and join[ing]” in on this motion.
Plaintiff Luchey's Response to Defendant's Motion to Compel Plaintiff Megan Luchey to Answer Questions at Her Reconvened Deposition [DE 101] was unsigned. Thus, the Response was re-filed at DE 109. Further, no reply was allowed to Plaintiff Wilcox's Motion to Show Cause for the Cancellation without Notice of Deposition for Key Fact Witness [DE 111] due to the motion being filed two days before the July 22, 2022 Zoom VTC hearing.
Plaintiff Wilcox does not object to attending the August 8, 2022 deposition. However, he objects to the deposition being videotaped. To the extent Plaintiff Wilcox objects to the deposition being videotaped, Rule 30(b)(3)(A) of the Federal Rules of Civil Procedure is clear that “[u]nless the court orders otherwise, [deposition] testimony may be recorded by audio, audiovisual, or stenographic mean.” Fed. R. Civ. P. 30(b)(3)(A). Thus, the Court finds that Plaintiff Wilcox has no valid basis to object to the deposition being videotaped.
To the extent Plaintiff's “Opposition to Motions / Docket Entries 116, 117, 118, 119” (“Opposition”) [DE 127] relates to the five discovery-related motions ruled upon in this Order, the Court has reviewed and considered Plaintiff's Opposition [DE 127] and finds it without merit. Further, as stated in the Court's July 22, 2022 Paperless Order:
PAPERLESS ORDER: This matter is before the Court pursuant to: (1) Kenneth C. Terrell, Esq.’s “Motion for Leave to Appear on Behalf of Pro Se Plaintiff, Megan Luchey on a Limited Basis” (“Motion”) [DE 121]; and (2) the Court's July 21, 2022 Paperless Order to Show Cause [DE 113], in which the Court directed Mr. Terrell to show cause as to why his limited appearance in this case should not be stricken. In light of Mr. Terrell's representations in the Motion, it is hereby ORDERED that the Paperless Order to Show Cause [DE 113] is DISCHARGED. Further, in light of the fact that Plaintiff Luchey's claims have been settled against certain Defendants, and in light of the representations that her claims against the remaining Defendants will also be resolved very soon, it is hereby ORDERED that Mr. Terrell's Motion [DE 121] is GRANTED IN PART and DENIED IN PART. Mr. Terrell's Motion is GRANTED to the extent that he seeks to appear on behalf of Plaintiff Megan Luchey on the limited basis of effecting and finalizing a settlement of all of Plaintiff Luchey's claims with all Defendants. To this end, Mr. Terrell shall be allowed to appear as counsel for Ms. Luchey on a limited basis in this case until August 12, 2022 while he handles settlement matters and resolves Ms. Luchey's case. However, Mr. Terrell's Motion is DENIED to the extent that he seeks to appear as counsel beyond that date. Should Mr. Terrell seek to stay on the case beyond that date, he must file the appropriate motion.
[DE 122].
As Ms. Luchey's reconvened deposition would be beyond the Court's June 30, 2022 discovery cutoff deadline, if necessary, the Court would find good cause to extend the deadline for this limited purpose.
As agreed during the July 22, 2022 Zoom VTC hearing, among these psychological and medical records, Plaintiff Wilcox shall personally obtain his treatment records from his therapist (described by the MAC Defendants as his couples’ counselor), and shall personally provide them to the MAC Defendants. Along with said treatment records, Plaintiff Wilcox shall produce a letter from his therapist (or couples’ counselor) to the effect of “Dear Mr. Wilcox, enclosed is a copy of your and Ms. Luchey's entire file, comprising ___ pages.”
To the extent Plaintiffs improperly request “the Court to compel Counsel to provide all information to Plaintiffs regarding their stolen identities” within their Response [DE 95], and take issue with counsel's conduct in including Plaintiffs’ social security numbers on a HIPAA release form via a Hightail link, the Court finds no basis for Plaintiffs’ request.
During the Zoom VTC hearing, the Court directed the parties to reach out to Mr. Lubliner the very same day, if possible.