*1 Before the Court is Defendant's Motion for a Protective Order Preventing the Deposition of Lowe's Chairman, President, and CEO Marvin Ellison (Doc. 48), Plaintiff's Motion to Compel Discovery (Doc. 50), Plaintiff's Motion for Leave to Increase the Limit on Interrogatories and Requests for Production (Doc. 44), Plaintiff's Motion to Allow Subpoena of Cell Phone Records for Brandon Cullison (Doc. 45), Plaintiff's Motion to Extend the Discovery Period (Doc. 51), and Plaintiff's Motion to Supplement Plaintiff's Motion to Extend the Discovery Period (Doc. 56). For the reasons provided below, Defendant's Motion for Protective Order (Doc. 48) is GRANTED, and Plaintiff's Motion to Compel Discovery (Doc. 50), Motion for Leave to Increase the Limit on Interrogatories and Requests for Production (Doc. 44), Motion to Allow Subpoena of Cell Phone Records (Doc. 45), Motion to Extend the Discovery Period (Doc. 51), and Motion to Supplement (Doc. 56) are DENIED.

Plaintiff filed this employment discrimination action against Defendant Lowe's Home Centers, LLC on January 9, 2023. (Doc. 1). On March 16, 2023, the Court entered a Scheduling and Discovery Order with fact discovery set to close on September 12, 2023. (Doc. 17 at 2). On September 16, 2023, the Court extended the discovery period to October 16, 2023. (Doc. 46 at 5). Plaintiff filed the Second Amended Complaint, the operative pleading, on May 1, 2023. (Doc. 22). Therein, Plaintiff asserted claims for race discrimination, harassment, and retaliation under Title VII of the Civil Rights Act and for violations of the Federal Trade Commission Act (FTCA), the Occupational Safety and Health Act (OSHA), the Fair Labor Standards Act (FLSA), and the Georgia Whistleblower Act. (Id. ¶¶ 2–97). On May 15, 2023, Defendant filed its Answer and a Partial Motion to Dismiss Plaintiff's Second Amended Complaint. (Docs. 24, 25). On July 26, 2023, the Court held a hearing. (Doc. 33). During the hearing, the Court granted in part and denied in part Defendant's Patial Motion to Dismiss and dismissed Plaintiff's FTCA, OSHA, and Georgia Whistleblower Act claims. (Id.). Thus, only Plaintiff's FLSA and Title VII claims remain. (Id.).

On September 13, 2023, Plaintiff filed a Motion for Leave to Increase Limit on Interrogatories and Requests for Production (Doc. 44) and a Motion to Allow Subpoena of Cell Phone Records for Brandon Cullison (Doc. 45). Defendant responded to Plaintiff's motions respectively on October 4, 2023 and October 5, 2023. (Docs. 52, 53). Plaintiff replied to Defendant's response to his Motion for Leave to Increase Limit on Interrogatories and Requests for Production on October 5, 2023. (Doc. 54).

Defendant, after receiving permission from the Court pursuant to the Scheduling Order, filed a Motion for a Protective Order Preventing the Deposition of Lowe's Chairman, President, and CEO Marvin Ellison (Doc. 48) on September 27, 2023. Plaintiff responded to the Motion for Protective Order the next day, and Defendant replied on October 11, 2023. (Docs. 49, 55).

*2 On October 2, 2023, Plaintiff filed a Motion to Compel Discovery (Doc. 50) and a Motion for Extension of Time to Complete Discovery (Doc. 51). The next week, on October 13, 2023, Plaintiff also filed a Motion to Supplement Plaintiff's Motion to Extend the Discovery Period (Doc. 56). Defendant responded on October 19, 2023. (Docs. 57, 58). Plaintiff replied to Defendant's response to the Motion to Extend Discovery on October 20, 2023, and to Defendant's response to the Motion to Compel on October 23, 2023. (Doc. 59, 60).

I. Defendant's Motion for a Protective Order Preventing the Deposition of Lowe's Chairman, President, and CEO Marvin Ellison

Defendant seeks a protective order to prevent Plaintiff from deposing Marvin Ellison, Lowe's Chairman, President, and Chief Executive Officer. (Doc. 48-1 at 1). Defendant argues that the proposed deponent is precluded from deposition under the apex doctrine, as he is a “high level executive” and lacks any first-hand knowledge of the case. (Id. at 4, 6–7). In response, Plaintiff responds that he believes that Ellison may have been personally involved in his termination and, even if he was not, his policy decisions directly impacted the decision to terminate him. (Doc. 49 ¶¶ 13, 18–19, 28; Doc. 48-1 at 1–2).

The Federal Rules of Civil Procedure provide that a party “may obtain discovery regarding any nonprivileged 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). Discovery, however, may be limited. Rule 26(c) permits a party to move the court for a protective order to limit discovery. For good cause, the court may “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). “The burden is on the movant 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.’ ” Ekokotu v. Fed. Express Corp., 408 F. App'x 331, 336 (11th Cir. 2011) (quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)).

Under the apex doctrine, “a court may bar a deposition of a high level executive who lacks unique or personal knowledge related to the case.” In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., No. 4:08-MD-2004 (CDL), 2009 WL 4730321, at *1 (M.D. Ga. Dec. 1, 2009) (citing Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 126 (D. Md. 2009) and Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)). “Courts generally restrict parties from deposing high-ranking officials ... because executives are particularly vulnerable to numerous, repetitive, harassing, and abusive depositions by virtue of their position.” Watts v. Parr, No. 1:18-CV-079, 2019 WL 13175550, at *2 (M.D. Ga. Oct. 24, 2019) (quoting Hickey v. N. Broward Hosp. Dist., No. 14-CV-60542, 2014 WL 7495780, at *2 (S.D. Fla. Dec. 17, 2014)); see generally Brown v. Branch Banking & Tr. Co., No. 13-81192-CIV, 2014 WL 235455, at *2 (S.D. Fla. Jan. 22, 2014) (collecting cases). Thus, “absent extraordinary circumstances[,]” courts will not permit the deposition of a high-ranking corporate or government official. Buckler v. Israel, No. 13-62074-CIV, 2014 WL 7777678, at *1 (S.D. Fla. Nov. 13, 2014) (citation omitted).

For the apex doctrine to apply, the Court must first determine whether the “official is sufficiently high ranking to merit protection from giving a deposition[.]” Id. (citation omitted); see also Maronda Homes, Inc. of Fla. v. Progressive Express Ins. Co., 6:14-CV-1287-Orl-31TBS, 2015 WL 1565299, at *3 (M.D. Fla. Apr. 8, 2015) (granting motion to compel deposition of controller and vice president because Defendant had not shown that deponent was “sufficiently senior in the company to be considered an apex witness”). Next, the party seeking the deposition must demonstrate that the official has “ ‘unique or superior knowledge of discoverable information’ that cannot be obtained by other means.” In re Mentor Corp., 2009 WL 4730321, at *1 (quoting Chick-Fil-A, Inc. v. CFT Dev., LLC, No. 5:07-CV-501-Oc-10GRJ, 2009 WL 928226 (M.D. Fla. Apr. 3, 2009)); see also Cuyler v. Kroger Co., 2014 WL 12547267, at *6 (N.D. Ga. Oct. 3, 2014), R. & R. adopted, 2015 WL 12621041 (N.D. Ga. Jan. 8, 2015); Hickey, 2014 WL 7495780, at *2. Defendant asserts, and Plaintiff does not dispute, that Ellison, as President, Chairman, and CEO of Lowe's, is sufficiently high ranking to trigger the apex doctrine. (Doc. 48-1 at 6; Doc. 49 ¶ 17). Thus, the question is whether Ellison has unique or superior knowledge of discoverable information that cannot be obtained by other means.

*3 Plaintiff first asserts, without support, that the decision to terminate him “was made at the corporate level” and that “Ellison may be personally aware of the situation in his Americus store” in part because of the “correspondence [Plaintiff] sent directly to him outlining [his] grievances.” (Doc. 49 ¶¶ 18–19; Doc. 49-1 at 2) (emphasis added). Defendant submitted a declaration from Jeffrey Todd, the Area Human Resources Business Partner for Plaintiff's district when the decision to terminate him was made. (Doc. 48-3 ¶ 2). In that declaration, Todd explains that he alone consulted Plaintiff's store manager regarding the decision to terminate Plaintiff and affirms that Ellison “was not involved in [his] discussion with [the store manager] or in any aspect of [Defendant's] decision to terminate Mr. Lewis' employment.” (Id. ¶¶ 3–4). Beyond speculation and conclusory assertions, Plaintiff has failed to demonstrate that Ellison has firsthand knowledge of the circumstances surrounding his termination. Plaintiff then argues that Ellison's “statements and policies, as the CEO, set the tone and environment in his stores” and that, as a result, Plaintiff was “ultimately wrongfully terminated in retaliation for speaking out about this issue and others.” (Doc. 49 ¶ 28; see also id. ¶ 13). Again, beyond Plaintiff's speculation and conclusory allegations, there is nothing in the record indicating that Ellison “has any unique knowledge about the [subject policies] ... or that this information could not be obtained by other, less burdensome means.” Watts, 2019 WL 13175550, at *3. For example, Plaintiff could request documentation regarding Defendant's policies or depose lower-level managers to get the same information. Plaintiff has not deposed any witness in this case who has direct, firsthand knowledge of the circumstances surrounding Plaintiff's termination or who has indicated that company policies played any role in his termination. (Doc. 55 at 7). Thus, Plaintiff has failed to show that Ellison has “any unique, non-repetitive firsthand knowledge about the matters at issue in [this] case[,]” and is barred from deposing Ellison under the apex doctrine. Watts, 2019 WL 13175550, at *3 (quoting Sun Cap. Partners, Inc. v Twin City Fire Ins. Co., 310 F.R.D. 523, 527 (S.D. Fla. 2015)).

Defendant has met its burden of showing the necessity of the protective order. Specifically, Defendant, through the Todd declaration, has demonstrated that Ellison was not “personally aware” of or involved in Plaintiff's termination at its Americus, Georgia location. (See Doc. 48-3 ¶¶ 3–4). Furthermore, Defendant has established that Ellison is a high-level executive who is entitled to protection under the apex doctrine. (Doc. 48-1 at 6). Defendant's Motion for Protective order is, therefore, GRANTED.

II. Plaintiff's Motion for Leave to Increase the Limit on Interrogatories and Requests for Production

Pursuant to the Federal Rules of Civil Procedure and the Local Rules of the Middle District of Georgia, unless a party receives written permission from the Court, “interrogatories may not exceed twenty-five (25) to each party” and “requests for production ... may not exceed ten (10) requests to each party.” MD. Ga. L.R. 33.1, 34; see Fed. R. Civ. P. 33(a), 34. Additional interrogatories may be allowed “to the extent consistent with Rule 26(b)(1) and (2)[,]” and, similarly, requests for production must be “within the scope of Rule 26(b).” Fed. R. Civ. P. 33(a)(1), 34(a). In his Motion for Leave to Increase Limit on Interrogatories and Requests for Production, Plaintiff argues that he should be allowed additional interrogatories and requests for production beyond the limits imposed by these rules because of “[t]he complexity and severity of the alleged misconduct” in his case and because “the current limit on discovery restricts the [P]laintiff's ability to collect all necessary and relevant facts related” to his case. (Doc. 44 at 2). In its response, Defendant argues that the Court should deny this Motion because alleging that a case is “complex” is insufficient to justify Plaintiff's requests and because Plaintiff fails to make a “particularized showing of the need for additional discovery.” (Doc. 52 at 4–6).

The Court agrees that the plain assertion that a case is complex “is insufficient to entitle Plaintiff to exceed the discovery already provided for in the Federal Rules.” Daniels v. Experian Info. Sols., Inc., No. CV 109-017, 2010 WL 1009901, at *1 (S.D. Ga. Mar. 18, 2010) (citing Bituminuous Fire & Marine Ins. Corp. v. Dawson Land Dev. Co., No. 3:02-CV-793-J-21TEM, 2003 WL 22012201, at *1 (M.D. Fla. Feb. 13, 2003) (“An assertion that a case is ‘complex’ is insufficient to justify deviation from the presumptive number of depositions.”)). Even accepting that the complexity of a Plaintiff's case could justify additional discovery, Plaintiff's case is not complex. This is a single plaintiff, single defendant employment dispute. (See Amended Complaint). At the hearing held on July 26, 2023, the Court granted Defendant's Partial Motion to Dismiss as to Plaintiff's claims under the FTCA, OSHA, and the Georgia Whistle Blower Act. (Doc. 33). Only Plaintiff's claims under the Fair Labor Standards Act and Title VII for race discrimination, harassment, and retaliation remain. (Id.). Discovery should be limited in scope to these claims, and the number of interrogatories and requests for production allowed by the Federal and Local Rules should easily suffice to allow Plaintiff to prosecute his case effectively. Accordingly, Plaintiff's Motion is DENIED.

III. Plaintiff's Motion to Compel Discovery

*4 Plaintiff seeks to compel Ellison's deposition, the production of documents, and responses to specific interrogatories. (Doc. 50 at 1). With regard to discovery related to the proposed Ellison deposition, Plaintiff asks this Court to “compel the Defendant ... to comply with the discovery requests by providing the essential documentation and information pertinent to this case and facilitate the deposition process involving their CEO, Mr. Marvin Ellison.” (Id.). Defendant argues in its response that Plaintiff does not present any new information showing that Ellison has unique or personal knowledge of the facts of this case as required under the apex doctrine for this Court to compel his deposition. (Doc. 57 at 16). Plaintiff argues in his reply that he can only verify that Ellison has no personal knowledge of the facts in this case by deposing him and that his deposition “may reveal ingrained corporate practices or behavior patterns that crucially relate to the case.” (Doc. 60 at 8). As discussed above, the apex doctrine bars Plaintiff's proposed deposition of Ellison. Accordingly, Plaintiff's Motion to Compel Discovery, to the extent that it seeks discovery related to the proposed deposition of Ellison, is without merit.

Plaintiff also seeks to compel the documents requested in his First and Second “Continuation of Plaintiff's First Request for Production of Documents to Defendant Lowes Home Centers, LLC” (Docs. 50-2, 50-4). Defendant argues in its response that Plaintiff's requests for production exceed the limit imposed by the Local Rules and that Plaintiff's assertions that the case is complex do “not justify compelling the discovery at issue.” (Doc. 57 at 7–9). In his reply, Plaintiff argues that “the extensive issues in the allegations against” Defendant and the substantial “evidence required to support [his] claims justif[y] a larger discovery request volume.” (Doc. 60 at 4–5). Local Rule 34 provides that absent written permission from the Court, Requests for Production “may not exceed ten (10) requests to each party.” M.D. Ga. L.R. 34, see also Cotton v. G.S. Dev., No. 1:05-CV-116 (WLS), 2006 WL 8445882, at *3 (M.D. Ga. Sept. 19, 2006) (“The Court notes, however, that it will not entertain a motion to compel production of all seventeen (17) requests, as that number exceeds the ten (10) requests permitted each party under the Local Rules of this Court. M.D. Ga. L.R. 34.”). Plaintiff's First Continuation begins with Request 8, which has 11 subparts. (Doc. 50-2 at 2–3). Requests 9 and 10 of this request also have multiple subparts. (Id. at 3–6). Plaintiff's requests beyond Request 8.1, 8.2, and 8.3 exceed the number of requests for production allowed without prior permission of the Court. (Id. at 2–6). Defendant, after setting forth and preserving its objections to the requests, responded to Requests 8.1 through 8.3 stating, “[a]s to subparts 1 through 3, Defendant responds that, to the extent the purported “meeting” or “altercation” occurred prior to Plaintiff's separation from Lowe's in April 2022, Lowe's no longer has access to any video of these purported incidents (assuming it was recorded in the first place).” (Doc. 50-6 at 4–5). As discussed above, the Court has not granted leave for Plaintiff to issue more than ten requests for production. Accordingly, as Defendant has responded to requests 8.1 through 8.3 and as the additional document requests exceed the number of requests allowed by the Federal and Local Rules, the Court declines to order the production of the requested documents.

Finally, Plaintiff seeks to compel responses to “Interrogatories directed to Brandon Cullison on September 1, 2023.” (Doc. 50 at 1). Defendant argues in its response that Plaintiff's interrogatory requests directed to Cullison, who is not a party to this case, are improper because Rule 33 does not allow interrogatories to be sent to non-parties. (Doc. 57 at 11–12). As Defendant explains in its response, Mr. Cullison is not a party to this matter. (See Docket). Rule 33, which sets for the rules related to interrogatories, is titled “Interrogatories to Parties,” and there is no counterpart for non-parties. Fed. R. Civ. P. 33. Furthermore, the Rule clearly states that “a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts.” Fed. R. Civ. P. 33(a)(1) (emphasis added). As Cullison is not a party to the action, the motion to compel responses to interrogatories directed to him is without merit under Rule 33.

*5 Plaintiff states in his reply that his requests should be allowed under Federal Rule of Civil Procedure 45, the rule that sets out the procedure for subpoenas. (Doc. 60 at 5–6). Plaintiff, however, has not followed any of the procedures under Rule 45 to issue a subpoena to Cullison. Fed. R. Civ. P. 45(a)(1)–(4). Accordingly, the Motion to Compel is DENIED.

IV. Plaintiff's Motion to Allow Subpoena of Cell Phone Records of Brandon Cullison

Plaintiff requests in his Motion that this Court issue a subpoena to AT&T requiring it to produce all of Lowe's employee Brandon Cullison's text messages from July 2020 to present that are relevant to this case. (Doc. 45 at 3–4). Plaintiff initially requested that Defendant produce text messages between himself and Cullison from Cullison's phone. (Id. at 4–7). Defendant produced “a single screenshot of several text exchanges” to Plaintiff. (Id. at 2, 8). Plaintiff believes that because the screenshot does not “include any phone numbers and only displayed [his] name, Jim Lewis, and an unidentified sender/recipient” it “raises concerns about the adequacy of [Defense Counsel's] preservation efforts[.]” (Id. at 2). Plaintiff argues that these concerns justify the subpoena. (Id.). Defendant argues that Plaintiff's request that the Court issue a subpoena for Cullison's text messages for the past three years goes beyond the scope of discovery allowed under Federal Rule of Civil Procedure 26. (Doc. 53 at 6–8).

Pursuant to Rule 45 of the Federal Rules of Civil Procedure, “[a] pro se plaintiff may be entitled to the issuance of a subpoena commanding the production of documents from non-parties upon Court approval.” Dunn v. Freland, No. 3:22-CV-78 (TES) (CHW), 2023 WL 6379592, at *1 (M.D. Ga. Sept. 29, 2023) (quoting Wright v. Young, No. 4:10-CV-474-SPM-GRJ, 2012 WL 3024431, at *1 (N.D. Fla. July 24, 2012)). Such a request “should be granted only if [it] is within the proper scope of discovery and ‘the documents sought are not equally available from [the defendant] through a request for the production of documents.” Id. (second alteration in original) (quoting Wright, 2012 WL 3024431, at *1).

Plaintiff's request is not within the proper scope of discovery. Fed. R. Civ. P. 26(b). “[D]iscovery is not meant to be a fishing expedition, and [Cullison] has a personal interest in the privacy of h[is] cell phone records.” See C.H. v. Sch. Bd., No. 3:18-cv-2128-MCR-HTC, 2020 WL 6572430, at *3 (N.D. Fla. Nov. 4, 2020). Plaintiff seeks records for a period of over three years. (Doc. 45 at 3). He limits the subject matter of his request to “communications that directly pertain to the allegations against [Defendant.]” (Id.). Even with this limitation, his request that AT&T find and produce the relevant phone records spanning such long time period is overbroad and unduly burdensome, especially given that his employment with Defendant ended in April of 2022. (Amended Complaint ¶ 4). Furthermore, Plaintiff has yet to depose Cullison, which would be a proper means under the Federal Rules for him to investigate whether there are any other relevant missing text messages. (Doc. 53 at 5–6, 8). Finally, to the extent that Plaintiff asked Defendant's Counsel to produce text conversations between Plaintiff and Cullison, Plaintiff has not explained why he cannot work with his own cell phone provider to recover the text messages that allegedly were lost when his phone “crashed.” (Doc. 45 at 6–7). Thus, Plaintiff has not provided this Court with any reason why Plaintiff cannot acquire the relevant discovery through proper discovery channels. Plaintiff's Motion for a Subpoena is, therefore, DENIED.

V. Plaintiff's Motion to Extend the Discovery Period and Motion to Supplement Plaintiff's Motion to Extend the Discovery Period

*6 Finally, Plaintiff asks this Court to extend the discovery period by two weeks. (Docs. 51, 56). Plaintiff argues that he needs the extension to conduct Ellison's deposition and to allow time for a recently discovered witness's recovery from illness. (Doc. 51 at 1–2). Defendant argues that Plaintiff has not established good cause for a discovery extension because he has not shown that “the schedule could not be met despite [Plaintiff's] diligence.” (Doc. 58 at 5 (quoting Ashmore v. Sec'y, Dep't of Transp., 503 F. App'x 683, 685 (11th Cir. 2013); see id. at 7–9). First, he failed to depose key witnesses within the discovery period though he “kn[ew] of these witnesses at the outset of this case[.]” (Id. at 8–10). He cancelled the depositions scheduled for October 5, 2023, and would not reschedule them before “obtaining responses to objectionable discovery requests that violate the procedural rules[.]” (Id. at 7). Defendant also accuses Plaintiff of engaging in abusive discovery practices by “serving excessive and untimely discovery requests in violation of procedural rules[.]” (Id. at 11). In his reply, Plaintiff asserts that he is making great efforts to obtain the essential information to prosecute his case and that his “conduct demonstrates extensive diligence in an attempt to navigate a complex legal environment without the guidance of a professional attorney.” (Doc. 59 at 2; see also id. at 5). He explains that he cancelled the October depositions “in good faith” because he “believed it necessary to obtain complete documentation pertaining to [his] discovery requests” to “ensure a more comprehensive examination of [his] claims.” (Id. at 5–6). Furthermore, in reply to Defendant's claim that he has engaged in abusive discovery tactics, Plaintiff asserts that “all documents requested were with the motive of seeking truth and gaining insights into the actions of Defendant.” (Id. at 2; see also id. at 6).

This Court has already extended the discovery period, and Plaintiff has not provided compelling reasons for an additional extension. (Doc. 46). Furthermore, the Court granted Defendant's Motion for Protective Order, which prevents Plaintiff from deposing Ellison. Thus, he will not require additional time for that deposition. Second, Plaintiff has not explained what information, relevant to Plaintiff's case, the newly discovered witness will provide and why the discovery period should be extended so that the witness can participate. This Court is cognizant of the fact that Plaintiff is proceeding without counsel, but, even as a pro se litigant, he is still “subject to the relevant law and rules of court, including the Federal Rules of Civil Procedure.” Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Plaintiff has had more than enough time to acquire the information relevant to prosecute his case. Accordingly, Plaintiff's Motion to Extend the Discovery Period and Motion to Supplement are DENIED.

For the reasons provided below, Defendant's Motion for Protective Order (Doc. 48) is GRANTED. Accordingly, the deposition of Marvin Ellison will not be permitted. Plaintiff's Motion to Compel Discovery (Doc. 50), Motion for Leave to Increase Limit of Interrogatories and Requests for Production (Doc. 44), Motion to Allow Subpoena of Cell Phone Records (Doc. 45), Motion to Extend the Discovery Period (Doc. 51), and Motion to Supplement Plaintiff's Motion to Extend the Discovery Period (Doc. 56) are DENIED.

SO ORDERED, this 24th day of October, 2023.