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Adigun v. Express Scripts, Inc.

United States District Court, S.D. Georgia, Brunswick Division

March 10, 2017




         Presently before the Court is Plaintiff's “Motion for Leave of Deposition”, which the Court construes as a Motion for Protective Order from Deposition.[1] (Doc. 39.) Defendant filed a Response. (Doc. 40.) Plaintiff filed a Reply. (Doc. 44.) For the reasons set forth below and for the reasons contained in Defendant's Response to this Motion, the Court DENIES Plaintiff's Motion.


         Plaintiff brought her Complaint pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., (“ADA”). (Doc. 1.) In her Amended Complaint, Plaintiff alleged she suffered a heart attack in August 2014, and Defendant denied her benefits under the Family Medical Leave Act and the company's short-term disability plan until she ultimately was terminated from her employment due to excessive absences. Plaintiff also alleged Defendant would not provide her with a reasonable accommodation for her disability of coronary artery disease. (Doc. 7.) Defendant filed its Answer on November 7, 2016. (Doc. 12.) The parties engaged in a Rule 26 conference, and the Court held a Scheduling Conference on January 12, 2017. (Doc. 30.) The Court issued a Scheduling Order on January 13, 2017, and directed the close of discovery for March 27, 2017. (Doc. 32.) Plaintiff filed her Motion on February 13, 2017. (Doc. 39.)


         In her Motion, Plaintiff requests the Court “have mercy and grant her a leave from deposition[ ]” in connection with a properly-noticed Rule 30 deposition Defendant scheduled for March 23, 2017, in Brunswick, Georgia.[2] (Doc. 39, p. 1.) Plaintiff states she has been medically advised to monitor her heart rate and avoid any form of stress at all costs. Plaintiff asserts she “was badgered to commit perjury and say that she worked for a company that she has no knowledge of; [sic] so that the Defendant could ask the court for a dismissal of this case.” (Id.) Additionally, Plaintiff maintains she “became ill after this ordeal.” (Id.) Further, Plaintiff alleges that taking her deposition would be duplicative or cumulative of the written discovery requests Defendant has served upon her.[3] (Id. at pp. 1-2.)

         Defendant responds that Plaintiff's Motion should be denied in its entirety because Plaintiff failed to confer with Defendant prior to filing her Motion, and she cannot show good cause to excuse her from sitting for her deposition. The Court addresses Defendant's contentions in turn.

         If a party objects to giving a deposition, she may file a protective order under Federal Rule of Civil Procedure 26(c), which 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[.]” Fed.R.Civ.P. 26(c)(1). The moving party “must include a certification that [she] has in good faith conferred or attempted to confer with the other affected part[y] in an effort to resolve the dispute without court action.” Id. “When evaluating whether ‘good cause' exists, ‘a court should 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.'” Fountain v. United States, No. CV 114-127, 2016 WL 4522660, at *2 (S.D. Ga. Aug. 29, 2016) (quoting Baratta v. Homeland Housewares, LLC, 242 F.R.D. 641, 642 (S.D. Fla. 2007), and citing Farnsworth v. Proctor & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985)). “Indeed, [i]t is very unusual for a court to prohibit the taking of a deposition altogether and absent extraordinary circumstances, such an order would likely be in error.” Id. (internal citation omitted) (alteration in original).

         I. Plaintiff's Failure to Confer

         Defendant acknowledges Plaintiff informed counsel she had to meet with her cardiologist by letter dated January 30, 2017. However, Defendant's counsel states he informed Plaintiff that, if she did not respond to his earlier letter regarding the taking of her deposition, he would unilaterally set a date for Plaintiff's deposition. (Doc. 40, p. 4.) Defendant's counsel noticed Plaintiff's deposition on February 7, 2017. (Doc. 40-1.) Plaintiff filed her Motion on February 13, 2017.

         Plaintiff failed to attach any sort of certification that she acted in good faith in attempting to resolve this discovery dispute before bringing the instant Motion. Instead, Plaintiff states in her Reply she gave “notice that she first wanted to confer with her cardiologist[.]” (Doc. 44, p. 2.) This is no way shows Plaintiff's good faith effort in conferring with Defendant's counsel prior to the filing of her Motion. Thus, the Court DENIES Plaintiff's Motion pursuant to Rule 26(c)(1). Kelly v. Old Dominion Freight Line, Inc., 376 F.App'x 909, 914 (11th Cir. 2010) (noting that Rule 26, inter alia, requires parties to confer in good faith before bringing a discovery dispute).

         In addition to failing to comply with the Federal Rules of Civil Procedure, Plaintiff failed to comply with this Court's Local Rule 26.5 and this Court's March 21, 2016, Order, (doc. 4). This Court's Local Rule 26.5 reminds parties “that Fed.R.Civ.P. 26(c) . . . require[s] a party seeking a protective order . . . to certify that a good faith effort has been made to resolve the dispute before coming to court.” Further, the Rule 26 Instruction Order this Court issued in this case set forth the steps parties must undertake before filing “any discovery motions”, including a motion for protective order. (Doc. 4, p. 5) These steps require the parties to “informally resolve all discovery issues and disputes without the necessity of Court intervention[ ]” by first conferring and complying with the Federal Rules of Civil Procedure and the Local Rules and “by undertaking a sincere, good faith effort” to resolve the difference. (Id.) If informal resolution does not work, the parties are to schedule a telephonic conference with the Court in an effort to resolve the dispute before a motion is filed. If the parties still are unable to resolve the dispute, only then will the Court entertain a discovery motion. (Id. at p. 6.) Additionally, the Court forewarned the parties that it would not entertain any discovery motion unless the parties complied with its instructions, including engaging in a “sincere, good faith effort to resolve the dispute”. (Id.)

         The Court notes Plaintiff is proceeding before it as a pro se litigant. Plaintiff's status as a pro se litigant does not excuse her from following the rules of the Court. The Court abides by the long-standing principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys, and therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”). Plaintiff failed to undertake a good faith effort to resolve this dispute, and she also failed to contact the Court to schedule a telephonic conference prior to the filing of her Motion. Thus, Plaintiff has failed to abide by this Court's Local Rules and its Order. For these reasons, the Court DENIES Plaintiff's Motion.

         II. Whether Plaintiff Meets the “Good ...

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