ONEMATA CORPORATION Plaintiff, v. ASHFAQ RAHMAN and SABIRA AREFIN Defendants. v. WILLIAM SMITH and ENSCICON ACQUISITION II, LLC Third-Party Defendants CASE NO. 20-62002-CIV-DIMITROULEAS/SNOW United States District Court, S.D. Florida Entered on FLSD Docket October 26, 2021 Counsel Jordan Utanski, Attorney at Law, Mavrick Law Firm, Fort Lauderdale, Florida, for Defendant Ashfaq Rahman. Snow, Lurana S., United States Magistrate Judge ORDER ON MOTION TO COMPEL RESPONSES TO DEPOSITION QUESTIONS AND FOR SANCTIONS *1 THIS CAUSE is before the Court on Plaintiff's Motion to Compel Responses to Deposition Questions and For Sanctions (the “Motion”). (ECF No. 133) The Honorable William P. Dimitrouleas referred all pretrial discovery matters to United States Magistrate Judge Lurana S. Snow for appropriate resolution pursuant to 28 U.S.C. § 636. (ECF No. 40) The Motion is now ripe for review. I. BACKGROUND On March 31, 2021, Plaintiff Onemata Corporation (the “Plaintiff”) filed its Second Amended Complaint (ECF No. 73) against Defendants Ashfaq Rahman and Sabira Arefin (the “Defendants”) asserting fraudulent concealment, fraudulent misrepresentation, fraudulent inducement, breach of contract, promissory estoppel, unjust enrichment, and tortious interference with contractual relations. (ECF No. 73 at 5-26) According to the Second Amended Complaint, on December 18, 2019, Enscicon Acquisition entered into a Stock Purchase Agreement with Defendants to acquire all of the common stock of LocalBlox, Inc., which represented approximately 95% of the total ownership of LocalBlox, Inc. (ECF No. 73 at ¶ 7 and 8) On September 30, 2020, Enscicon Acquisition merged into Plaintiff, with all legal rights and interests, including those related to the Stock Purchase Agreement, being transferred to Plaintiff. Id. at ¶ 10. Pursuant to the terms and conditions of the Stock Purchase Agreement, the Defendants made certain representations, warranties, and covenants. Id. at ¶ 12. Plaintiff now contends that many of these representations, warranties, and covenants were false, incomplete, and/or “flagrantly disregarded.” Id. at ¶ 13. Non-party Datastream Group, Inc. (“Datastream”) is alleged to have been involved with Defendant Rahman's misrepresentations to Plaintiff (ECF 140 at 2), although Datastream maintains that it acted only as a broker in the relevant transactions. (ECF 134 at 1) Datastream produced Eric Reinertsen (“Mr. Reinertsen”) as the corporate representative of Datastream to be deposed for the instant case. On September 29, 2021, Plaintiff deposed Mr. Reinertsen. (ECF No. 133 at 1) At the deposition, Plaintiff's counsel asked Mr. Reinertsen if he had ever been convicted of a crime. (ECF No. 133-1 at 2) Mr. Reinertsen originally responded, “I'm not going there,” and when the question was repeated by Plaintiff's counsel, Mr. Reinertsen indicated that he wanted his lawyer to object to the question, answering, “Harry?” Id. At this juncture, Mr. Reinertsen's attorney, Harry Winderman, stated “[i]f it's more than ten years ago, I'm going to object. It's irrelevant, immaterial and it certainly was, and the answer is go take it up with the magistrate.” Id. Plaintiff's counsel then noted, “before I can find out that, I need to know ... whether he was convicted, and I need to know what he was convicted for,” and proceeded to ask Mr. Reinertsen, for a third time, whether he had ever been convicted of a crime. Id. This time, Mr. Winderman expressly responded, “[t]he answer is I'm directing the witness not to answer. Move on.” Id. Plaintiff's counsel continued to ask about Mr. Reinertsen's criminal history despite the instruction not to answer, maintaining that Plaintiff was “certainly entitled to these questions.” Id. *2 In response to these repeated questions, Mr. Winderman warned Plaintiff's counsel, “if you don't stop, we're going to take this up with the magistrate now.” Id. Plaintiff's counsel accepted this invitation and requested that the undersigned be contacted by telephone to resolve the issue. Id. at 2-3. However, when it became evident that Plaintiff's counsel was in fact going to make efforts to contact the undersigned, Mr. Winderman retreated from his previous warning, stating, “[n]o, let's not take a break, and I'm not agreeing to a break. You're wasting Mr. Reinertsen's time. You preserved your ... position. Move on.” Id. at 3. The deposition, therefore, continued on the record and eventually concluded without Mr. Reinertsen answering the questions about criminal convictions. (ECF No. 133 at 3) On October 1, 2021, Plaintiff filed the Motion, seeking to compel a response to the deposition questions about Mr. Reinertsen's criminal convictions. II. DISCUSSION A. General principals governing discovery According to Rule 26(b)(1) of the Federal Rules of Civil Procedure: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within the scope of discovery need not be admissible in evidence to be discoverable. The scope of discovery is broad, parties may generally obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). “[T]he Federal Rules ... strongly favor full discovery whenever possible[.]” Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013). The determination of what is relevant for discovery purposes depends on the parties’ claims and defenses. Further, the Rules of Civil Procedure shall be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. B. Relevance objections and Rule 30 reasons for not answering deposition questions Generally, an objection to a deposition question “must be noted on the record, but the examination still proceeds” with the deponent answering the objected to question. Fed. R. Civ. P. 30(c)(2). Fed. R. Civ. P. 30 enumerates only three exceptions to this general rule: “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Id. Datastream does not contend that the information sought is privileged nor seek protection on the basis of a limitation ordered by the court, as there is no such existing order. The only remaining Rule 30(d)(3) exception is the last: if the party refusing to answer the deposition question, refused based on “a belief that the question was so far beyond the realm of possible relevance as to be abusive,” that party is required to immediately “move for a protective order under Rule 30(d)(3).” Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 700 (S.D. Fla. 1999); See also Buckley Towers Condo., Inc. v. QBE Ins. Corp., No. 07-22988-CIV, 2008 WL 2645680, at *10 (S.D. Fla. June 26, 2008). Not only did Datastream fail to provide a timely Rule 30(d)(3) motion, but it also made no effort whatsoever to protect the information sought by Plaintiff. Accordingly, none of the Rule 30 exceptions to the general requirement that a deponent answer all objected to questions applies. At the time of Mr. Reinertsen's deposition, Mr. Winderman's only articulated explanation for his instruction not to answer was based on Mr. Reinertsen's criminal history being “irrelevant and immaterial.” (ECF No. 133-1 at 2) However, it is settled law that “it is improper to instruct a witness not to answer a question based on ... relevancy objections.” Quantachrome, 189 F.R.D. at 700. Instead, “if counsel feels that he must make a relevancy objection, the objection should briefly be made on the record, and the deposition should continue with the testimony being taken subject to the objection.” Id. This procedure was not followed, and the undersigned finds that Mr. Winderman's instruction not to answer was improper based on the stated reason at the time of the instruction. C. Resisting discovery on the basis of personal embarrassment *3 In its response, Datastream now argues that the Motion should be denied as moot because Plaintiff's received an off-the-record answer to their questions in order to “avoid personal embarrassment” or injury to Mr. Reinertsen. (ECF No. 134 at 4) However, the undersigned finds that Defendant's counsel “emailing ... [Plaintiff's] counsel regarding his client's criminal history” is not equivalent to sworn testimony from Mr. Reinertsen on the record. (ECF No. 140 at 2) As previously noted, Datastream's proper remedy was to make such objections on the record and then proceed with the deposition. See Quantachrome, 189 F.R.D. at 700. The undersigned therefore finds that Datastream's off-the-record answers to Plaintiff's questions do not moot the instant Motion. It is unclear whether Datastream's reference to “embarrassment” as a basis for resisting discovery is an attempt at seeking a Rule 26(c) protectiveorder, since Datastream has not explicitly requested such an order. However, even if Datastream had done so, the proffered “embarrassment” basis is insufficient to warrant the imposition of a protective order. As an initial matter, Mr. Winderman simply never cited personal embarrassment as the basis for his instruction not to answer during the deposition. Despite the fact that this argument arguably has been waived, the undersigned will address it on the merits. Fed. R. Civ. P. 26 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.” “While Rule 26(c) articulates a single standard for ruling on a protective order motion, that of ‘good cause,’ the federal courts have superimposed a somewhat more demanding balancing of interests approach to the Rule.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). This requires a court to “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.” Baratta v. Homeland Housewares, LLC, 242 F.R.D. 641, 642 (S.D. Fla. 2007) (citing Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985)). Datastream asserts no specific reason indicating how answering questions related to Mr. Reinertsen's criminal history would cause any harm. Datastream simply argues that the line of questioning would cause “personal embarrassment” or injury. (ECF No. 134 at 4) Such conclusory statements are insufficient for a court to grant a protective order. See Baratta v. Homeland Housewares, LLC, 242 F.R.D. 641, 642 (S.D. Fla. 2007). Plaintiff, by contrast has a legitimate interest in obtaining discovery regarding Mr. Reinertsen's criminal history. Impeachment-related questions are relevant as a substantive matter because these questions can establish the persuasiveness of a witness and that witness's testimony. See Buckley Towers Condo., Inc. v. QBE Ins. Corp., No. 07-22988-CIV, 2008 WL 2645680, at *10 (S.D. Fla. June 26, 2008). Questioning a deponent on past criminal convictions is impeachment-related, and a deponent may be questioned regarding those convictions.[1] See, e.g., Bandsuch v. Werner Enterprises, Inc., No. 2:05-cv-305-FtM-34SPC, 2008 WL 11334547, at *1 (M.D. Fla. Apr. 25, 2008). Balancing Plaintiff's interest in discovery against Datastream's proffer of potential embarrassment, the undersigned finds that Plaintiff's purpose in questioning Mr. Reinertsen about past criminal convictions was not to unreasonably annoy, embarrass, and harass him, and accordingly, finds Datastream's proffer is insufficient to warrant a protective order pursuant to Rule 26(c). Thus, pursuant to this Order, the parties are to select a mutually agreeable date and time, prior to the November 15, 2021 discovery cutoff, to complete the deposition of Mr. Reinertsen. (ECF No. 40) III. CONCLUSION *4 After careful review of the Motion, the Response, and the Reply thereto, the court file, and applicable law, it is hereby ORDERED AND ADJUDGED as follows: (1) Plaintiff's Motion to Compel Responses to Deposition Questions and For Sanctions (ECF No. 133) is GRANTED IN PART and DENIED IN PART. The Motion is granted in regard to Plaintiff's request for responses to deposition questions relating to Mr. Reinertsen's past criminal convictions. Mr. Reinertsen shall answer all non-privileged questions related to any past criminal convictions upon the resumption of his deposition. (2) Pursuant to this Order, the parties are to select a mutually agreeable date and time, prior to the November 15, 2021 discovery cutoff, to complete Mr. Reinertsen's deposition. (3) The Motion is denied in regard to Plaintiff's request for attorneys’ fees and costs incurred in preparing the Motion. DONE AND ORDERED at Fort Lauderdale, Florida, this 26th day of October 2021. Footnotes [1] The Court notes that Fed. R. Evid. 609 limits the use of evidence of a criminal conviction if more than 10 years have passed since the conviction occurred. The Court makes no finding regarding the Rule 609 implications and defers to the District Court to determine whether to permit this evidence as the determination of its admissibility is more appropriately made at trial.