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Scott v. Lackey

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


June 13, 2008

TERESA ANNE SCOTT, PLAINTIFF
v.
PAMELA WELLINGTON LACKEY AND EVAN LESLIE ADAMS, DEFENDANTS

The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is a motion for a protective order (Doc. 306), filed by defendant Evan Leslie Adams ("Adams"). In the motion, Adams seeks protection from certain questions posed by Teresa Scott ("Scott") during the course of his second deposition. For the reasons that follow, the motion for a protective order will be granted in part and denied in part.

On April 3, 2008, the court conducted a telephone conference with the parties to resolve issues that arose during Scott's initial, aborted deposition of Adams. (See Docs. 288, 290.) The issues arose when counsel for Adams directed Adams not to respond to various questions regarding his ability to testify. The court ordered the parties to resume the deposition of Adams (see Doc. 289) and directed Scott "to accept a stipulation on the record . . . that the deponent is ready, willing, and able to testify to [her] questions, that he is competent and not under the influence of any drugs or alcohol that would affect his ability to fully and completely respond to [her] properly formed questions"*fn1 (Doc. 290 at 15-16). The court also advised the parties to "move forward and get to the merits of this case rather than scuffle over these preliminary questions which really do nothing to advance either the prosecution of the claim or the defense of the matter." (Id. at 10.) The parties resumed Adams' deposition on April 24, 2008. The following sixteen questions from the resumed deposition are at issue in the instant motion:

1. Dr. Adams, could you identify yourself for the record by stating your name and address?

2. Dr. Adams, you understand that the oath that you were administered means that you are testifying under the penalty of perjury?

3. Dr. Adams, are you refusing to answer the question of whether or not you understand the oath?

4. Dr. Adams, you understand that your testimony today has the same significance as it would have if you were testifying in court before a judge or a jury?

5. Is your memory working as well today as it usually does?

6. Do you have any questions about what we've covered so far?

7. Have you ever been arrested?

8. Do you plan to -- you claim that the publications about plaintiff are true, the -- the things that Wellington wrote?*fn2

9. Do you intend to testify at trial?

10. Do you know of anyone who has any documents that might be relevant to this lawsuit?

11. Are there any documents that you're aware of that are relevant to this lawsuit?

12. Have you given all of the documents in your possession or control relevant to the lawsuit to your lawyer?

13. Are you aware of anyone that may have some evidence that would be useful to getting to the truth of this lawsuit?

14. Are you aware of anyone that has any information at all concerning this lawsuit?

15. Dr. Adams, did you ever attempt to sit down and document your recollections of the facts that preceded the lawsuit?

16. Did you at any point in the last eight years make an effort to -- your -- your -- any -- any part you had in any of this lawsuit?*fn3

Counsel instructed Adams not to answer these questions*fn4 for various reasons and subsequently filed the instant motion (Doc. 306) for a protective order. The motion has been fully briefed and is ripe for disposition.

Rule 30 of the Federal Rules of Civil Procedure allows the court to "order that the deposition be terminated or [to] limit its scope and manner as provided in Rule 26(c)." FED. R. CIV. P. 30(d)(3)(B). Rule 26 provides that "[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters." Id. 26(c)(1).

With respect to question number 1, defendant objects to providing his address, stating that it is irrelevant and may endanger his privacy. The court agrees and is troubled by Scott's assertion that she has now "decided to conduct some investigation of Adams" because she has "become a defendant of sorts" by Adams asserting truth as a defense to her defamation claims. (Doc. 313 at 6.)*fn5

There are no counter-claims against Scott; therefore, she is not "a defendant of sorts." Scott has not demonstrated a valid need for Adams' address to conduct discovery. Accordingly, the court will grant the motion with respect to question number 1.*fn6

With respect to question numbers 2 through 6, Adams contends that the questions violate the court's directive during the April 3, 2008 telephone conference. For question numbers 4 and 6, the court agrees and will grant the instant motion. The court finds, however, that question numbers 2 and 5 do not violate the April 3, 2008 directive and will therefore order Adams to answer these questions.*fn7

With respect to questions 9 through 15, Adams argues that the work product doctrine under Rule 26(b)(3) of the Federal Rules of Civil Procedure prohibits Adams from answering these questions. Rule 26(b)(3) provides, in pertinent part, that "[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative." FED. R. CIV. P. 26(b)(3). The protection afforded under the work product doctrine "extends to both tangible and intangible work product." In re Cendant Corp. Sec. Litig., 343 F.3d 658, 662 (3d Cir. 2003).

[T]he courts consistently held that the work product concept furnished no shield against discovery, by interrogatories or by deposition, of the facts that the adverse party's lawyer has learned, or the persons from whom he or she had learned such facts, or the existence or nonexistence of documents, even though the documents themselves may not be subject to discovery. 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2023 (2d ed. 2008). The court agrees with Adams that question number 9 involves trial strategy that is protected by the work product doctrine and will therefore grant the motion with respect to this question.*fn8 The answers to the remaining questions, however, do not fall under this doctrine and the court will deny the motion accordingly.*fn9 The court notes that Adams has a duty under Rule 26 to disclose the identity of each individual likely to have discoverable information and information regarding documents and other tangible things that may be used to support claims or defenses, unless the use of the individuals or documents would be for impeachment purposes only, and to supplement any initial disclosures with new information. See FED. R. CIV. P. 26(a)(1), (e). Therefore, the court will require Adams to answer the following questions that cover the information sought by question numbers 10 through 15:

1. Are you aware of any documents relevant to the allegations of the second amended complaint that have not already been disclosed by your counsel?

2. Are you aware of any individuals likely to have relevant information regarding the allegations of the second amended complaint that have not already been disclosed by your counsel?

3. Have you ever documented your recollections of the facts relevant to the allegations of the second amended complaint?

In requiring Adams to answer these questions, the court expresses no opinion on whether any documents identified by Adams must be produced for Scott's inspection. See, e.g., id. 26(b)(3).

The court would be remiss if it did not express its continued frustration over the parties' inability to resolve these matters without court intervention. However, the court notes that the issues raised by the instant motion had a de minimus impact on the overall deposition of Adams and are attributable, in part, to the restrictive nature of a telephone deposition and the choice of words employed by a pro se plaintiff. Therefore, in requiring Adams to answer certain questions, the court will not require another oral deposition of Adams. Instead, the parties shall treat these questions as written interrogatories.

An appropriate order will issue.

ORDER

AND NOW, this 13th day of June, 2008, upon consideration of the motion for a protective order (Doc. 306), filed by defendant Evan Leslie Adams, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that the motion for a protective order (Doc. 306) will be GRANTED in part and DENIED in part as follows:

1. The motion (Doc. 306) is GRANTED with respect to question numbers 1, 4, 6, 7, 9, 16.

2. The motion is DENIED with respect to question numbers 2, 3, 5, 8, 10, 11, 12, 13, 14, and 15.*fn10 Defendant shall provide, on or before June 27, 2008, written responses to the following questions:*fn11

a. Do you understand that the oath that you were administered means that you are testifying under the penalty of perjury?

b. Is your memory working as well today as it usually does?

c. Are you aware of any documents relevant to the allegations of the second amended complaint that have not already been disclosed by your counsel?

d. Are you aware of any individuals likely to have relevant information regarding the allegations of the second amended complaint that have not already been disclosed by your counsel?

e. Have you ever documented your recollections of the facts relevant to the allegations of the second amended complaint?

3. Each party is to bear its own costs for presentation of the instant motion as well as compliance with this order.

CHRISTOPHER C. CONNER United States District Judge


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