Jack W. NEWSON, Plaintiff, v. OAKTON COMMUNITY COLLEGE, Defendant No. 19 CV 2462 United States District Court, N.D. Illinois, Eastern Division Signed November 05, 2021 Counsel Jack Newson, Hillside, IL, Pro Se. Frank Bennett Garrett, III, Joseph James Perkoski, Kevin Paul Noll, Emily Plomgren Bothfeld, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago, IL, for Defendant. McShain, Heather K., United States Magistrate Judge ORDER *1 Pending are two motions filed by defendant Oakton Community College: (1) a motion for entry of a confidentiality order and a FERPA (Family Educational Rights and Privacy Act) order; and (2) a motion to compel a discovery deposition of plaintiff Jack Newson, to require plaintiff to reimburse the costs defendant incurred in connection with a deposition of plaintiff that occurred on September 9, 2021, and for a one-month extension of the fact discovery deadline. [62, 63]. Plaintiff, who is proceeding pro se, has responded [65], and defendant has replied [66, 67]. For the following reasons, the motion for entry of a confidentiality order and FERPA order [62] is granted and the motion to compel [63] is granted in part and denied in part. A. Confidentiality and FERPA Orders In support of its motion for entry of a confidentiality order and a FERPA order, defendant explains that “documents containing confidential information relating to parties and non-parties,” as well as “confidential student records,” will be sought and disclosed. [62] 1. Defendant sent copies of the draft orders to plaintiff for his review, but plaintiff's only response was that defense counsel needed to “do some modifications to this agreement make sure this agreement does not violate my rights in any shape or form i claim common law jurisdiction[.]” [62-4]. After defendant filed its motion for entry of the proposed orders, the Court gave plaintiff an opportunity to identify his “objections or concerns with the proposed confidentiality and FERPA order[s] drafted by defendant.” [64]. However, plaintiff's submission does not meaningfully respond to the Court's order or provide any grounds to question what are essentially boilerplate orders drafted by defendant. Accordingly, defendant's motion for entry of confidentiality order and FERPA order [62] is granted. B. Plaintiff's Deposition and Related Requests Plaintiff appeared for his deposition, which was to take place remotely by Zoom, on September 9, 2021. [63-1] 2. When the deposition began, plaintiff refused to provide the court reporter with his contact information. [63] 2. Plaintiff then made a series of statements implying that he was recording the deposition himself, possibly via his cell phone. When defense counsel observed plaintiff holding a cell phone near his computer screen, defense counsel told plaintiff that he did not consent to being recorded during the deposition, but plaintiff refused to say whether he was recording the deposition. [Id.]. It is undisputed that plaintiff had not provided notice under Fed. R. Civ. P. 30(b)(3)(B) that he intended to record the deposition himself. Defense counsel ultimately canceled the deposition after about 20 minutes based on plaintiff's ongoing refusal to say whether he was recording the deposition. On September 14, 2021, plaintiff sent an email to defense counsel and the Court discussing what had transpired during his deposition, and this email also contained a link to a recording of the deposition that was available on YouTube. [63-2] 1. The email also contained statements by plaintiff that defense counsel interpreted, not unreasonably, as threatening. [Id.] (plaintiff stating that “u cant stop me from doing the right thing by law or u gone cause yourself to get in legal trouble”); [id.] (“I am going to benefit from your bad decisions all because u decided not to be careful with your words it's on record and dont forget your under oath as a attorney do u realize u violated the law in so many ways”); [id.] (“we can settle this right now for 200k or I will expose your wrong doings to the people of the public so that we can judge your mistakes and use it against u”). *2 First, defendant's motion to compel a discovery deposition of plaintiff is granted. Defendant is entitled to take plaintiff's deposition, and plaintiff's vague, unsubstantiated claims that it is not safe for him to be deposed, and that defense counsel broke the law, see [65] 2, are insufficient to make the “extraordinary” showing that would be necessary to preclude defendant from taking plaintiff's deposition. See Stanek v. St. Charles Cmty. Unit Sch. Dist. 303, No. 13 C 3106, 2020 WL 1304828, at *3 (N.D. Ill. Mar. 19, 2020); Harris v. Clay Cnty., Miss., No. 1:18-cv-167, 2021 WL 223225, at *1 (N.D. Miss. Jan. 22, 2021). Within 21 days of the date of this order, plaintiff must appear for his deposition, which may occur either in person or virtually. The Court cautions plaintiff that a failure to cooperate with defendant in scheduling and completing his deposition may lead to the dismissal of this case with prejudice for failure to prosecute. See George v. Amgen, Inc., No. 18 C 6421, 2021 WL 1088303, at *2-3 (N.D. Ill. Mar. 22, 2021) (dismissing case with prejudice for failure to prosecute based in part on plaintiff's failure to attend her own deposition). Furthermore, in light of plaintiff's improper attempt to record the first deposition without providing notice under Rule 30 and without obtaining either defense counsel's or the court reporter's consent, the Court finds good cause to issue a protective order forbidding plaintiff to record his second deposition by any means whatsoever. See Fed. R. Civ. P. 26(c)(1). Although it is unsettled whether the Federal Rules allow parties to personally record deposition testimony, see, e.g., C.G. v. Winsol Tp. Bd. of Educ., Civil No. 13-6278, 2015 WL 3794578, at *3 (D.N.J. June 27, 2015) (surveying cases), plaintiff's obstructionist behavior during the first deposition and his attempt to use a recording of the deposition (posted to YouTube) to harass or threaten defense counsel weigh strongly in favor of granting a protective order to ensure such conduct does not recur. Contrary to plaintiff's arguments, moreover, neither the federal criminal code (specifically, 18 U.S.C. § 2511(2)(d)) nor the First Amendment creates a substantive right to record his deposition. See Caine v. City of Chicago, 11 C 8996, 2012 WL 13059125, at *2 (N.D. Ill. June 28, 2012). The Court also concludes that the protective order will cause little, if any, harm to plaintiff–who may, if he desires, obtain a transcript of the deposition from the court reporter–or the public, given that videotaped depositions are ordinarily not made public during the discovery stage, see Hobley v. Chicago Police Commander Burge, 225 F.R.D. 221, 224-26 (N.D. Ill. 2004), and plaintiff has made no showing that the substance of his deposition “is important to public health and safety,” Paine v. City of Chicago, No. 06 C 3173, 2006 WL 3065515, at *7 (N.D. Ill. Oct. 26, 2006) (identifying this as one factor for court to consider in deciding whether to issue protective order). Second, given the delay caused by plaintiff's obstructionist behavior and defendant's need to complete his deposition, the Court extends the deadline to complete fact discovery to December 10, 2021. Third, the Court concludes that, despite plaintiff's obstructionist behavior at the September 9, 2021 deposition, the circumstances of the case make an award of costs and expenses unjust. Rule 37(a)(5) provides that if a motion to compel “is granted–or if the requested discovery is provided after the motion was filed–the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5). Similarly, Rule 30(d)(2) permits the Court to impose “an appropriate sanction–including the reasonable expenses and attorney's fees incurred by any party–on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2). But a court may not award fees under Rule 37(a)(5) “if the opposing party's nondisclosure, response, or objection was substantially justified” or “other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(ii), (iii). *3 The Court is convinced that plaintiff's conduct at his first deposition was purposeful and meant to frustrate defense counsel's ability to complete the deposition and to impede the progress of the litigation. Nevertheless, the Court is not convinced that plaintiff, who is pro se, understood that such conduct could lead the Court to impose sanctions or other financial penalties against him. For that reason, the Court concludes that an award of costs and fees under Rule 37(a)(5) or Rule 30(d)(2) is not warranted. But plaintiff is now on notice that the conduct he engaged in at the first deposition is sanctionable, and plaintiff's pro se status will not be an excuse should plaintiff engage in similarly obstructive conduct either at his renewed deposition or as the case moves forward. Conclusion Defendant's motion for entry of confidentiality order and FERPA order [62] is granted. Defendant's motion to compel [63] is granted in part and denied in part. Plaintiff must appear for a deposition within 21 days of the date of this order. The deadline to complete fact discovery is extended to December 10, 2021. Defendant's request that plaintiff pay the reasonable costs and expenses that defendant incurred in connection with plaintiff's September 9, 2021 deposition is denied.