Opinion
Civil No. 05-71911.
November 1, 2005
OPINION AND ORDER
Defendants Starwood Hotels Resorts Worldwide, Inc. ("Starwood") and Merritt Hospitality ("Merritt") move for a protective order, and Defendant Merritt moves to compel discovery. As set forth below, I GRANT in part and DENY in party Defendants' Joint Motion for Protective Order, and I GRANT Defendant Merritt's Motion to Compel Discovery.
I. DEFENDANTS STARWOOD AND MERRITT'S JOINT MOTION FOR PROTECTIVE ORDER
Defendants have offered evidence that Plaintiff's attorney, Mr. Ivie Shelton, might have witnessed events giving rise to Plaintiff's causes of action for sexual harassment under Michigan's Elliott-Larsen Civil Rights Act and intentional infliction of emotional distress. (Defs.' Mot. at 4-6; citing Pl.'s Dep. at 70-71.) During Plaintiff's deposition, Mr. Shelton instructed Plaintiff not to answer any questions about him. Id. at 5-6; citing Pl.'s Dep. at 68-69. If Plaintiff's deposition continues, I ORDER Mr. Shelton to comport his instructions with Fed.R.Civ.P. 30(d)(1): "A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4)." I ORDER Plaintiff to answer any deposition questions regarding Mr. Shelton, except those questions that may reveal information protected by the attorney-client privilege. Mr. Shelton's Affidavit indicates that his attorney-client relationship with Plaintiff began in November 2004. (Shelton Aff., Oct. 26, 2005.) Any instruction not to answer based on privilege must pertain to communication or events occurring after the relationship's inception.
Defendants request additional time to depose Plaintiff because Mr. Shelton improperly instructed Plaintiff not to answer deposition questions. (Defs.' Mot. at 8-10; citing Pl.'s Dep. at 68-69, 133, 135-36.) Pursuant to Fed.R.Civ.P. 30(d)(2), I GRANT Defendants' request to extend Plaintiff's deposition, and GRANT an additional two hours past the presumptive seven-hour time limit.
Defendants complain that Mr. Shelton tried to circumvent the time requirements of Fed.R.Civ.P. 34 by issuing subpoenas requesting document production within eight days instead of 30 days. Defendants also complain that Mr. Shelton has failed to serve both Defendants with notices of depositions and subpoenas. I ORDER Mr. Shelton to comply with Fed.R.Civ.P. 34 and to serve all parties with any future notices or pleadings.
Defendants allege that Mr. Shelton threatened to contact the media if Defendants failed to submit to Plaintiff's proposed settlement terms. (Defs.' Mot. at 13; citing Ex. 6 (Shelton letter).) Defendants ask me to order Plaintiff and Mr. Shelton not to speak to the media about this lawsuit. I DENY this request because it amounts to a prior restraint of speech, which bears a heavy presumption against constitutional validity. See, e.g., New York Times v. United States, 403 U.S. 713 (1971); Nebraska Press Ass'n v. Stuart, 427 U.S. 529 (1976). In Gentile v. State Bar of Nev., 501 U.S. 1030, 1074 (1991), the Supreme Court held that "the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press. . . ." The Court upheld a standard prohibiting an attorney from making comments to the media that would have "a substantial likelihood of materially prejudicing an adjudicative proceeding." Id. at 1076. In a case pre-datingGentile, the Sixth Circuit asked whether a defendant's public comments would present a "clear and present danger" of prejudice to the trial proceedings. United States v. Ford, 830 F.2d 596, 600-02 (6th Cir. 1987). But see United States v. Brown, 218 F.3d 415, 427 (5th Cir. 2000) (questioning whether the Sixth Circuit's approach survives Gentile). Using either theGentile or Ford standard, Defendants have failed to offer evidence justifying a prior restraint on the speech of participants in this lawsuit. Defendants have not specified what type or degree of harm would allegedly result if Plaintiff or Mr. Shelton were to speak to the press about this case. Absent a showing of material prejudice, Defendants cannot clear the constitutional hurdle barring prior restraints of speech.
Defendants ask for their costs and attorney fees incurred in bringing this motion. I DENY Defendants' request and hold the parties responsible for their own expenses related to this Joint Motion for Protective Order. See Fed.R.Civ.P. 26(c), 37(a)(4)(C).
II. DEFENDANT MERRITT'S MOTION TO COMPEL DISCOVERY
On June 27, 2005, Defendant Merritt served its First Set of Interrogatories and First Request for Production of Documents on Plaintiff. (Def.'s Mot. at 14; citing Ex. 11.) Plaintiff's responses were due August 1, and as of September 6, Plaintiff had failed to respond. (Def.'s Mot. at 14; Reply at 5.) Plaintiff has not shown good cause for failing to comply with Defendant Merritt's discovery requests. Plaintiff's brief does not even address Defendant Merritt's Motion to Compel Discovery. I ORDER Plaintiff to provide complete responses to Defendant Merritt's First Set of Interrogatories and First Request for Production of Documents within ten days of the date of this order. Pursuant to Fed.R.Civ.P. 37(d), I ORDER Plaintiff to pay Defendant Merritt's reasonable costs and attorney fees incurred in bringing this Motion to Compel Discovery.
IT IS SO ORDERED.