*1 The Court DENIES Plaintiff's motions for a hearing, (doc. nos. 116, 117), GRANTS Defendants'[1] motions for protective orders, (doc. nos. 105, 107), GRANTS the motions to stay discovery pending resolution of the motions to dismiss the amended complaint, (doc. nos. 108, 110), and DENIES the motion to stay discovery pending resolution of Defendant Christopher Branch's motion for summary judgment, (doc. no. 112).

I. MOTIONS FOR PROTECTIVE ORDER

This civil action arises out of a workplace complaint in April 2017 by Eliud Montoya-Arcos alleging a payroll-skimming scheme by Pablo Rangel, Mr. Montoya's supervisor at Defendant Wolf Tree, Inc. (“Wolf Tree”), that exploited undocumented immigrant workers. In 2022, Mr. Rangel was convicted in this Court of crimes related to the scheme, as well as the murder of Mr. Montoya. On November 9, 2017, Mr. Montoya's surviving spouse brought suit in the State Court of Chatham County, Georgia, asserting claims arising out of the scheme and murder. Montoya v. The Davey Tree Expert Company et al., Civ. Act. No. STCV1701873 (St. Ct. Chatham Cnty.). This state companion case is not yet set for trial. The case sub judice involves the same allegations and defendants but was filed by the Estate Administrator.

In her role as in-house counsel for Defendant The Davey Tree Expert Company (“Davey Tree”) and Wolf Tree, Defendant Marjorie Conner began investigating the allegations against Mr. Rangel on April 24, 2017, and she left Davey Tree in November of that year. (See doc. no. 105, Ex. A (“Special Master Report”), pp. 8-9.)[2] In the companion state case, Mr. Montoya's surviving spouse sought information related to Ms. Conner's investigation, and the ensuing discovery dispute led to issuance of a Report and Recommendation by a Special Master and an Order by the State Court adopting the Report and Recommendation in its entirety. The State Court held documents, communications, and information concerning Ms. Conner's investigation are protected under the attorney-client and work product privileges codified in O.C.G.A. §§ 24-5-501 and 9-11-26(b)(3). (Id. at 12-13.)

The State Court rejected Ms. Conner's request to invoke the self-defense privilege exception under Georgia Rule of Professional Conduct 1.6(b)(1) because this exception is “available only when necessary to establish a defense,” and there is no necessity since Davey Tree indemnified Ms. Conner. (Id. at 16-17.) Ms. Conner's only potential risk is reputational, which the State Court found alone is insufficient to overcome privilege. (Id. at 17.) “Without being at a real risk of an adverse outcome at trial, Ms. Conner's self-defense justification for breaching her clients' privileges and protections dissolves.” (Id. at 16.)

*2 In the case sub judice, Ms. Conner no longer seeks to invoke the self-defense exception. Instead, she joins the remaining Defendants' request for entry of a protective order enforcing the State Court Order, thereby “prohibiting Plaintiff and his counsel from examining any witness in depositions—or otherwise eliciting any documents, communications, or other information in discovery—concerning the confidential work product of the Companies' counsel and her privileged investigation of Eliud Montoya's internal HR complaint.” (Doc. no. 107, p. 13.)

Plaintiff opposes the request, pointing out the application of federal common law to decide privilege issues here, while Georgia law decides privilege issues in the State Court. (Doc. no. 116.) Plaintiff does not address, however, whether application of federal common law dictates a different result. (See generally id. at 2-3; doc. no. 117, pp. 1-5.) This omission is particularly glaring in light of Defendants' correct statement that “Georgia law provides substantially the same work product protection as federal law.” (Doc. no. 134, pp. 6-7 (citing Cobb Elec. Membership Corp. v. Zurich Am. Ins. Co., No. 1:09-CV-0675-CAP-WEJ, 2010 WL 11500063, at *3 n.4 (N.D. Ga. Mar. 29, 2010))). Certainly, the federal common law attorney-client privilege is generally broad enough to protect the investigation, though it “is riddled with many exceptions.” United States v. Almeida, 341 F.3d 1318, 1324 (11th Cir. 2003); see also Upjohn Co. v. United States, 449 U.S. 383 (1981); In re Kellogg Brown & Root, Inc., 756 F.3d 754, 756 (D.D.C. 2014) (“[T]he attorney-client privilege protects confidential employee communications made during a business's internal investigation led by company lawyers.” (citing Upjohn, 449 U.S. 383)).

The Eleventh Circuit has noted that “evidence subject to a protective order of a court, a confidentiality agreement, or otherwise legally protected may not be used in litigation that the order or agreement does not authorize.” Glock v. Glock, Inc., 797 F.3d 1002, 1007 n.6 (11th Cir. 2015). This statement alone arguably dictates an outcome here enforcing the State Court Order. A more detailed analysis performed by many district courts nationally and within the Eleventh Circuit leads to the same outcome.

Although “there is ‘no definitive test to apply ... in the Eleventh Circuit,’ ” Santiago v. Honeywell Int'l, Inc., No. 16-CIV-25359, 2017 WL 3610599, at *2 (S.D. Fla. Apr. 6, 2017), “[m]any courts have followed the reasoning in Tucker, where Judge Grimm identified four rules of reason to determine whether the modification of an earlier protective order is justified,” id. at *3; see Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 499 (D. Md. 2000). In Tucker, the court considered whether to compel production of documents protected by a Texas state court's confidentiality order in a case that had since settled, grappling with the question of “what weight, if any, should this court give to the order issued by the Texas state court.” Tucker, 191 F.R.D. at 499. Judge Grimm considered (1) the nature of the protective order; (2) identity of the party subject to the discovery request; (3) whether the related case was still pending, and if not, the burden and expense of filing a new action to modify the original order; and (4) whether it was possible to fashion terms in its own order to further protections ordered by the state court. Id. at 499-501. Applying these factors, the Tucker court issued a protective order consistent with the Texas state court order. Application of these factors here weighs decisively in favor of enforcing the State Court Order.

*3 First, in stark contrast to the consent protective order at issue in Tucker, the State Court Order here was heavily litigated. (See Special Master Report, pp. 1-11.) As the Tucker court noted, “an action directed by the court after a full consideration of the merits of a fully briefed dispute” is entitled to greater deference and comity than “an agreement by counsel approved, almost as a ministerial act.” Tucker, 191 F.R.D. at 501.

Second, the defendants here are identical to those in State Court, and the plaintiffs are the surviving spouse in one and the estate administrator in the other. Allowing discovery of information deemed privileged by the State Court would “undermine the authority” of the State Court and “contravene[ ] [the] purpose” of its Order, particularly since the same attorneys represent the plaintiffs in both cases and the state case is still pending. Flavorland Indus., Inc. v. United States, 591 F.2d 524, 525 (9th Cir. 1979),

Third, because the companion state case is still pending, it would be easy to seek modification of the State Court Order, particularly since the same legal counsel represent the plaintiffs in both cases. Cf. LeBlanc v. Broyhill, 123 F.R.D. 527, 530-31 (W.D.N.C. 1988) (modifying state court protective order where Plaintiff demonstrated exceptional circumstances by attempting to intervene in state court action to seek modification but was unable to be heard).

The last Tucker factor is irrelevant here because there is no need for this Court to consider adding terms to further the protections originally ordered by the State Court. Id. Instead, it is appropriate to enforce the plain language of the State Court holding that the investigatory information at issue is protected. See Donovan, 221 F.R.D. 587 (applying Tucker factors and quashing subpoena where compliance would violate state court protective order); Maale v. Caicos Beach Club Charter, Ltd., No. 08-80131, 2010 WL 11519360, at *6 (S.D. Fla. Jan. 5, 2010) (“This court will enforce the existing [state court] protective order and will not incorporate its terms into a new protective order from this Court.”).

For these reasons, the Court will enforce the State Court Order.

Importantly, however, there are many reasons why a particular communication or document may fall outside the scope of the attorney-client and work product privileges and is fair game for discovery without violating the State Court Order. The parties shall confer in good faith and request a discovery conference prior to filing any further motions with the Court related to this issue. For these reasons, the Court GRANTS Defendants' motions for protective orders. (Doc. nos. 105, 107.)

II. MOTIONS TO STAY

The “[C]ourt has broad inherent power to stay discovery until preliminary issues can be settled which may be dispositive of some important aspect of the case.” Feldman v. Flood, 176 F.R.D. 651, 652 (M.D. Fla. 1997). Before deciding to stay discovery, the Court should:

*4 Id. (internal citation and quotation omitted).

Following removal of this case from the State Court of Chatham County, Georgia, (doc. no. 1), Plaintiff amended his complaint, (doc. no. 123). The amended complaint contains twenty-two counts, keeping the same counts as the original complaint but adding claims for intentional infliction of emotional distress. (Doc. no. 123; see also doc. no. 1-2.) The motions to dismiss the amended complaint primarily concern the RICO claims contained in Counts One to Three, which provide federal jurisdiction over this removed case. Ms. Conner only moves to dismiss the RICO claims. (See doc. no. 141.) Davey Tree and Wolf Tree move to dismiss the non-RICO claims only for lack of subject matter jurisdiction should the RICO counts be dismissed. (See doc. no. 102, p. 24; doc. no. 144, pp. 24-25.) Defendant Oscar Cruz moves to dismiss all counts on substantive grounds. (See doc. no. 151, pp. 22-24.) Mr. Branch alone filed a motion for summary judgment, requesting dismissal of all non-RICO claims. (Doc. no. 111.)

Based on a preliminary peek at the motions to dismiss, the Court finds an immediate and clear possibility of a ruling “which may be dispositive of some important aspect of the case,” and proceeding with discovery while the motions to dismiss are pending could waste significant time, money, and judicial resources. Indeed, dismissal of the RICO claims would drastically affect the scope of discovery regardless of where the case is litigated. Remand to State Court would likely result in consolidation with the companion case and little, if any, additional discovery prior to trial.

In an earlier teleconference, the Court indicated some interest in allowing written discovery to proceed while staying depositions. (See doc. no. 114.) After carefully considering the briefs, as well as the expansive scope of discovery Plaintiff intends to seek if the RICO claims survive the dismissal effort, the wiser course is to stay all discovery. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (“Facial challenges to the legal sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a claim for relief, should, however, be resolved before discovery begins.” (footnote omitted)); see also Moore v. Potter, 141 F. App'x 803, 807-08 (11th Cir. 2005) (per curiam) (“[D]elaying a ruling on the motion to dismiss ‘encourages abusive discovery and, if the court ultimately dismisses the claim, imposes unnecessary costs .... [A]ny legally unsupported claim that would unduly enlarge the scope of discovery should be eliminated before the discovery stage, if possible.’ ”). For these reasons, the Court GRANTS the motions to stay discovery pending resolution of the motions to dismiss the amended complaint. (Doc. nos. 108, 110.)

If a ruling on the motions to dismiss precedes a ruling on the summary judgment motion, the Court will not extend the stay during the additional time the summary judgment motion pends. The Court thus DENIES Defendant Branch's motion. (Doc. no. 112.)

*5 Should any portion of the case remain after resolution of the motions to dismiss, the parties shall confer and submit a joint status report, with proposed case deadlines, within seven days of the presiding District Judge's ruling. In the event the presiding District Judge, in his ruling on the pending motions to dismiss, provides further instructions to the parties that justifies continuation of the stay, the parties shall inform the undersigned to that effect in a status report to be filed within seven days of the presiding District Judge's ruling.

SO ORDERED this 25th day of October, 2023, at Augusta, Georgia.