The opinion of the court was delivered by: William B. Mitchell Carter United States Magistrate Judge
The plaintiff's motion to compel defendant William L. Wilson to respond to interrogatories and requests to produce documents (Doc. No. 79) is before the undersigned Magistrate Judge and ripe for a decision. Plaintiff's motion also asks for sanctions and attorney's fees. The defendants' motion for a protective order in regard to the plaintiff's written discovery requests propounded to William L. Wilson is also pending (Doc. No. 87). For the reasons stated herein, it is ORDERED the plaintiff's motion to compel is DENIED and the defendants' motion for a protective order is GRANTED.
This action arises from a Purchase and Sale Agreement entered into by the parties on October 4, 2005 in which the defendants were to sell certain Burger King restaurants located in the North Georgia area to the plaintiff. Plaintiff alleges that the defendants have wrongfully refused to complete the sale of the restaurants to the plaintiff thereby breaching the contract. Plaintiff seeks specific performance on the contract as well as damages.
Prior to the plaintiff's filing its motion to compel, the defendants filed on July 18, 2006 a Motion for a Protective Order. Plaintiff had noticed Mr. Wilson to take his deposition, and the defendants sought a protective order prohibiting the deposition (Doc. 27). On the same date, defendants filed a motion for a protective order concerning the plaintiff's notice to take the depositions of S&B Wilson, Inc. and Sally B. Wilson (Doc. 26). The basis for the defendants' motion for a protective order as to Mr. Wilson's deposition was two-fold. First, defendants argued that Mr. Wilson is not competent to testify due to dementia, and, second, he suffers from labile hypertension and is in such poor health that requiring him to undergo a deposition would subject him to serious and even life threatening illness. In support of their motion, defendants submitted the declaration of Dr. Roger D. Owens (Doc. 28-6) who stated:
Mr. Wilson suffers from labile hypertension, which means that when he is put under stress, even mild or moderate in nature, he is subject to dangerous spikes in blood pressure which could cause a stroke or have other serious health consequences. Further, Mr. Wilson also suffers from dementia which directly affects his memory and causes frequent forgetfulness. Due to Mr. Wilson's overall health condition, I feel that if Mr. Wilson is subjected to even mildly stressful involvement in the litigation referenced above, it could prove detrimental to his health. I am confident that if he is subjected to the extremely stressful experience of a deposition, his health will be endangered. For these reasons, I urge the Court to exempt Mr. Wilson from any depositions or any other stressful activity in connection with these legal proceedings. (Owens' declaration at ¶¶ 2-4).
Plaintiff countered that because Mr. Wilson executed the purchase and sale agreement at issue in this case at the time that he was President of S&B Wilson, Inc., his deposition is important to their case. (Plaintiff's Response to Defendants' Motions for Protective Orders, Doc. 42). Plaintiff then offered to take Mr. Wilson's deposition in his home, in two-hour segments, and with a nurse or physician on site. Id. at 6. A hearing was held on the motions for protective orders before the undersigned Magistrate Judge on August 11, 2006, in which counsel for the parties were present. During that hearing, the defendants agreed to withdraw their motion for a protective order as to Mrs. Wilson and S&B Wilson, Inc. The parties agreed that the plaintiff would depose S&B Wilson, Inc. and Mrs. Wilson, and the plaintiff would then determine whether it was still necessary to depose Mr. Wilson, and an order was entered to this effect. See Doc. 55.
After plaintiff deposed Mrs. Wilson and Bobby Ray Cross, an employee of S & B Wilson, plaintiff notified the defendants on or about September 26, 2006 that it still wanted to depose Mr. Wilson. Defendants then renewed their motion for a protective order as to Mr. Wilson. Counsel for the parties discussed the renewed motion for a protective order in a hearing held before me in this case on Friday, October 13, 2006. I advised the parties that absent an agreement between them concerning Mr. Wilson, I would need to conduct a hearing to receive evidence as to Mr. Wilson's mental and physical condition before I could rule on the defendants' motion for a protective order. However, it was my understanding, apparently mistaken, that the parties ultimately agreed that if Mr. Wilson would not testify at trial for any reason whatsoever, including rebuttal purposes, the plaintiff would agree not to depose him, and I entered an order to that effect on November 3, 2006. Thereafter, on November 17, 2006, plaintiff objected to this order under Fed. R. Civ. P. 72(a) on the ground that such an agreement had not been made and there was insufficient evidence presented to support the defendants' position that Mr. Wilson should not be deposed due to his physical and mental condition. Upon review, the District Court on December 12, 2006, ordered that "Magistrate Judge Carter reconsider his Order of November 3, 2006, as such order lacks a sufficient evidentiary basis." (Doc. 86).
On November 3, 2006, the plaintiff filed a motion to extend the deadline to provide expert reports (Doc. 74). On November 21, 2006, I held a hearing with counsel for the parties to discuss the plaintiff's motion to extend the expert deadline. During the course of the hearing, it came to light that the plaintiff had served interrogatories and requests to produce on Mr. Wilson which were outstanding. Defendants' counsel stated Mr. Wilson was unable because of his mental and physical condition to respond to the discovery requests. On December 1, 2006, plaintiff filed a motion to compel Mr. Wilson to respond to the interrogatories and production requests. (Doc. 79). In response to the plaintiff's motion to compel, the defendants filed "Defendants' Response to Plaintiff's Motion to Compel and, Alternatively, Motion for Protective Order." (Doc. 87). On January 12, 2007, the undersigned held a hearing on the plaintiff's motion to compel. At this time, the defendants' motion for a protective order as to Mr. Wilson's deposition was still outstanding as the motion had been referred back to me by the District Court for further consideration. I decided that an evidentiary hearing was necessary before ruling on the plaintiff's motion to compel or on the defendants' motions for a protective order since there was no agreement that Mr. Wilson was too ill, physically and/or mentally, to be deposed or respond personally to written discovery requests.
On February 15, 2007, the undersigned Magistrate Judge held a hearing for the purpose of receiving evidence on the issue of whether the defendants' motions for a protective order regarding defendant William L. Wilson and the plaintiff's motion to compel responses to discovery from Mr. Wilson should be granted. The recent deposition of Mr. Wilson's treating physician, Dr. Roger Owens, was an important piece of evidence introduced at the hearing. Following conclusion of the day's evidence on February 15, 2007, the undersigned agreed to leave the hearing open in order to give the plaintiff sufficient time to have its own medical expert review Dr. Owens' deposition and Mr. Wilson's medical records. Further, if the plaintiff so desired, the undersigned would then allow the plaintiff to call its own medical expert at a continuance of the evidentiary hearing on the defendants' motions for a protective order and the plaintiff's motion to compel. Plaintiff has declined to present its own medical expert and, by e-mail on July 17, 2007, the plaintiff notified the Court that it was withdrawing its objection to the undersigned's November 3, 2006 order granting a protective order prohibiting the plaintiff from deposing Mr. Wilson. Thus, the November 3, 2006 order ...