Siff v. Audiology Distribution, LLC ( 2020 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 19-CV-61606-SINGHAL/VALLE ROBIN SIFF, Plaintiff, v. AUDIOLOGY DISTRIBUTION, LLC, a foreign limited liability Company d/b/a HearUSA, Defendant. _____________________________________ OMNIBUS ORDER ON DISCOVERY MOTIONS THIS CAUSE is before the Court upon: (i) Defendant’s Motion to Compel [Non-Party] Deponent Audiology Associates of South Florida to Respond to Deposition Questions Regarding Plaintiff’s Compensation (ECF No. 163); (ii) Plaintiff’s Expedited Motion to Reconsider Magistrate Judge’s July 17, 2020 Order and related relief (ECF No. 168); and (iii) Defendant’s Motion to Compel Compliance with Court Order (ECF No. 170) (collectively, the “Motions”). Having reviewed the Motions, the respective responses and related filings (ECF Nos. 169, 173, and 174), and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED as follows: (i) Defendant’s Motion to Compel [Non-Party] Deponent Audiology Associates of South Florida (“Deponent”) to Respond to Deposition Questions Regarding Plaintiff’s Compensation (ECF No. 163) is GRANTED IN PART. Deponent did not respond to the Motion, but has demonstrated a willingness to provide Defendant with more detailed information regarding Plaintiff’s commission structure. See ECF No. (174 at 2 n.1). Thus, although the Court finds that a continued deposition of Plaintiff’s non-party current employer would be unduly burdensome to the Deponent, Defendant is nonetheless entitled to obtain relevant information regarding Plaintiff’s current commission structure. Accordingly, within 7 business days from the date of this Order, Defendant may serve Deponent with five (5) written deposition questions pursuant to Federal Rule of Civil Procedure 31 limited to inquiry regarding Plaintiff’s commission structure. Further, any cross or redirect question from Plaintiff or Defendant under Rule 31(a)(5) must be served within 2 business days of the corresponding question. Deponent must respond to all written questions within 14 business days of being served with Defendant’s Notice of Written Deposition Questions. Moreover, since the discovery deadline has expired, and with the goal of promoting an expeditious resolution through a less burdensome/costly procedure, the undersigned will exercise its discretion pursuant to Rule 26(b)(2)(C)(i) to modify the usual Rule 31 procedure to allow the Deponent to provide written answers (instead of requiring oral answers sworn to before a duly authorized deposition officer, pursuant to Rule 28(a)) to the deposition questions and provide any documents sought by the questions. See, e.g., Ruiz v. Wing, No. 15-22618-CIV, 2017 WL 11496937, at *1 (S.D. Fla. Feb. 21, 2017) (noting that, in the interest of justice, the court can modify the Rule 31 procedure requiring a deposition officer). This procedure satisfies the oath requirement for the deposition answers because the witness must verify his or her written responses (in the same way as answers to written interrogatories are verified). Consequently, appointment of a deposition officer authorized to administer oaths will not be required. See Fed. R. Civ. P. 31(a)(3); Ruiz, 2017 WL 11496937, at *1; (ii) Plaintiff’s Expedited Motion to Reconsider Magistrate Judge’s July 17, 2020 Order and related relief (ECF No. 168) is GRANTED IN PART. Although Plaintiff’s Notice of Intent to File Appeal (ECF No. 165) did not stay compliance with the Court’s July 17, 2020 Order (ECF No. 159), in the interest of judicial economy, the undersigned’s Order of July 17, 2020 (ECF No. 159) is STAYED until the District Judge’s ruling on Plaintiff's appeal of the same; and (ii) Defendant’s Motion to Compel Compliance with Court Order and for Sanctions (ECF No. 170) is DENIED WITHOUT PREJUDICE. Defendant may refile its request for sanctions within 10 business days after the District Judge’s ruling on Plaintiff's appeal of the July 17, 2020 Order (ECF No. 159). Upon refiling, Defendant must include a summary of its attorney’ fees and costs incurred in noticing Plaintiff's deposition for June 24, 2020. DONE AND ORDERED in Chambers at Fort Lauderdale, Florida on July 29, 2020. ALICIA O. VALLE UNITED STATES MAGISTRATE JUDGE cc: U.S. District Judge Raag Singhal All Counsel of Record