Harrington v. VeriText, LLC

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JONATHAN HARRINGTON, Plaintiff, v. VERITEXT, LLC, Defendant.

No. 24-CV-22787-MOORE/Elfenbein

United States District Court, S.D. Florida

December 10, 2024

ORDER FOLLOWING DISCOVERY HEARING

MARTY FULGUEIRA ELFENBEIN UNITED STATES MAGISTRATE JUDGE

THIS CAUSE is before the Court on three matters: (1) Defendant Veritext, LLC's Amended Notice of Hearing (the “Notice”), in which Defendant alerted the Court that the Parties required the Court's assistance with two discovery disputes, ECF No. [67]; (2) Non-Party Florida Board of Bar Examiners' Expedited Motion for Protective Order (the “Board Motion”), ECF No. [68]; and (3) Non-Party Juan Carlos Arias' Motion for Protective Order (the “Arias Motion”), ECF No. [69].

In the Notice, Defendant asked to be heard “regarding the following discovery issues”:

1. Defendant's Motion to Quash Plaintiff's Notice of Taking Deposition by Written Questions of Non-Party Juan Arias for failure to comply with procedures outlined in Fed.R.Civ.P. 30(c) and 31;

2. Defendant's Motion to Quash or for a Protective Order Preventing the Deposition of Mabel Ruano, including whether any fees connected to the motion should be awarded under Fed.R.Civ.P. 26(c) and 37(a)(5)(A).

See ECF No. [67] at 1. In the Board Motion Non-Party Florida Board of Bar Examiners (the “Board”) “moves for a protective order with respect to Plaintiff's Notice of Taking Depositions of Juan Carlos Arias, Esq. [ECF No. 62] and Mabel Ruano [ECF No. 65] and Plaintiff's First Set of Interrogatories to Defendant Veritext, LLC (“Defendant”) [ECF No 36-2], First Set of Requests for Production from Defendant [ECF No. 36- 3], and First Set of Requests for Admission [ECF No. 36-4].” See ECF No. [68] at 1. In the Arias Motion, Non-Party Juan Carlos Arias moves for a “Protective Order against Plaintiff's Notice of Taking Deposition by Written Questions of Non-Party, Juan Arias, [D.E. 64-2] pending the resolution of” Defendant's objection to that deposition as described in the Notice. See ECF No. [69] at 1.

The Court held a combined hearing on the issues in the Notice the Board Motion, and the Arias Motion on November 6, 2024 (the “Hearing”). See ECF No. [63]; ECF No. [70]; ECF No. [75]. At the Hearing, Defendant made two oral motions: (1) a motion to quash Plaintiff's deposition notice for Arias because the notice failed to comply with Federal Rules of Civil Procedure 30(c) and 31 (the “Arias Oral Motion”), See ECF No. [103]; and (2) a motion to quash Plaintiff's deposition of Ruano or, in the alternative, to issue a protective order preventing that deposition (the “Ruano Oral Motion”), See ECF No. [104].

The Court heard argument on the oral motions and issues, then took both oral motions and all the issues under advisement. The Court also gave the Parties, the Board, and Arias an opportunity to submit supplemental authorities relating to the Board Motion and the Arias Motion and ordered that those supplemental authorities be submitted by November 8, 2024. See ECF No. [75]. Only the Board took the Court up on its offer and submitted a supplemental brief. See ECF No. [79].

Having reviewed the Parties' and Non-Parties' filings, including the Board's supplemental brief, and having considered the Parties' and Non-Parties' arguments, it is ORDERED and ADJUDGED as follows:

I. The Board Motion, ECF No. [68]

In the Board Motion, the Board contends that Plaintiff's discovery and deposition “requests seek information that is confidential under” Rule 1-61 of the Rules of the Supreme Court Relating to Admissions to The Bar (the “Bar Admission Rules”) “and federal common law.” See ECF No. [68] at 3-9. The Board argues that anything Arias (who was Plaintiff's lawyer at the Board Hearing that forms the basis of this lawsuit) and Ruano (who was the court reporter at the Board Hearing) would disclose in response to Plaintiff's discovery requests would be confidential because it would “focus on the content of the hearing transcript, what occurred at the Board hearing and whether the transcript accurately reflects what occurred at the hearing.” See ECF No. [68] at 4-6. The Board also argues that disclosure of that information would be harmful because “the Board's investigative process would be impeded” and there is “the potential for disclosure of information concerning other Bar applicants.” See ECF No. [68] at 67.

The Board asks the Court to limit Plaintiff's depositions of Arias and Ruano and Plaintiff's discovery requests to exclude information that is confidential under Bar Admission Rule 1-61. See ECF No. [68] at 10. According to the Board, that confidential information includes: (1) the testimony of Arias and Ruano “relating to what occurred during Plaintiff's hearing before the Board”; (2) “the audio of Plaintiff's hearing before the Board”; and (3) “emails exchanged between the Board and” Defendant “to the extent the emails reference particular applicants or anything that occurred during a hearing before the Board.” See ECF No. [68] at 9. At the Hearing, the Board clarified that the discovery requests over which it seeks a protective order are Interrogatory Number 16, See ECF No. [36-2] at 4, and Requests for Production Numbers 6, 7, and 15, See ECF No. [36-3] at 2-3.

In response to the Board Motion, Plaintiff filed a “motion” partially opposing it (the “Response”). See ECF No. [72]. In the Response, Plaintiff concedes that the Board's “position has merit” but asserts that “the relief it seeks is much too broad.” See ECF No. [72] at 2. Plaintiff argues that documents and audio files in Defendant's possession are not the Board's records, so they cannot be subject to Bar Admission Rule 1-61. See ECF No. [72] at 1-4. He argues that Bar Admission Rule 1-61 cannot apply to bar Arias and Ruano from testifying about their own “thoughts, knowledge, observations,” and “recollections” about what happened at his hearing because that would lead to “absurd results.” See ECF No. [72] at 2. And he argues Bar Admission Rule 1-61 is meant to be a shield, not a sword - that is, to protect applicants from having their private information disclosed, not to be a weapon for the Board. See ECF No. [72] at 3.

At the Court's invitation, the Board filed a Reply addressing whether any court had answered “the question of whether the confidentiality provision in” Bar Admission Rule 1-61 “applied to the types of disclosures that are at issue in the Board's Motion” (the “Board Reply”). See ECF No. [79] at 1. In the Board Reply, the Board notes that it was “unable to locate any decisional authority that addresses whether a court reporter for a Board hearing or an applicant's attorney would be required to maintain the confidentiality of information and documents obtained by virtue of their participation in a Board hearing” but argues that Bar Admission Rule 1-61 “does apply in these circumstances because (1) formal hearings before the Board are confidential; (2) [Bar Admission] Rule 1-61 applies not only to records related to formal hearings but matters discussed at formal hearings; and (3) [Bar Admission] Rule 1-61 applies to information obtained by third parties by virtue of their participation in formal hearings.” See ECF No. [79] at 1-2.

The Board acknowledges that the “general rule governing formal hearings,” Bar Admission Rule 3-23.2, is “silent on the issue of confidentiality” but notes that the rule governing formal hearings for disbarred/resigned applicants, Bar Admission Rule 3-22.7, “explicitly provides” that those hearings are open to the public, which the Board argues supports a conclusion that all other formal hearings are not. See ECF No. [79] at 2-3. The Board also notes it has “been the Board's practice, in fact, to keep an applicant's formal hearing closed to the public and confidential.” See ECF No. [79] at 3. Similarly, the Board argues that the operative word in Bar Admission Rule 1-61 - “information” - encompasses more than just written records because the Bar Admission Rules use both terms and do not use them interchangeably. See ECF No. [79] at 4-5. Finally, the Board argues that third parties who obtain information “they otherwise would not be privy to” by “virtue of their participation” in Board hearings must keep that information confidential because it remains “the Board's work product,” and if they were allowed to disclose it, Bar Admission “Rule 1-61 would be rendered meaningless.” See ECF No. [79] at 5-9.

Bar Admission Rule 1-61 requires that, except as provided by the Bar Admission Rules or otherwise authorized by the Florida Supreme Court, “[a]ll information maintained by the [B]oard in the discharge of the responsibilities delegated to it by the Supreme Court of Florida is confidential.” Fla. Bar Admiss. R. 1-61. As an initial matter, the Court notes that, like the Board, it did not find any case law addressing the question presented here. Still, the Florida Supreme Court has provided some useful foundational principles.

In a 1984 decision, for example, the Court explicitly “decline[d] to adopt the Board's proposal that the record of any applicant who appeals the Board's failure to recommend admission to the Bar be made public.” Fla. Bd. of Bar Exam'rs: Re: Amend. to Rules Relating to Admission to the Bar, Art. III, Sec. 4 (Character & Fitness), 451 So.2d 1384, 1384 (Fla. 1984).

It did so because, as it explained: “Little, if anything would be gained from such a rule, and much could be lost.” Id. Seven years later, the Court interpreted what would become the core language of Bar Admission Rules 1-63.5 and 1-63.6 and held that the language

entitles applicants only to copies of documents previously filed by them or on their behalf with the board with the written consent of the party submitting such documents, and copies of any

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