MCKENZIE

v.

UNITED STATES TENNIS ASSOCIATION INCORPORATED

AT TRIAL (Doc. No. 79) FILED: September¹³, 2023

THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part. The present dispute concerns the deposition of Plaintiff’s father, Mark McKenzie (“Mr. McKenzie”) taken on August 24, 2023, during which deposition Plaintiff’s counsel—who also represents Mr. McKenzie—instructed Mr. McKenzie not to answer numerous questions. Doc. No. 79. See also Doc. No. 79-4 (copy of deposition transcript).¹ As set forth in the parties’ briefing, the deposition questions at issue concern four general areas of inquiry, including (1) Plaintiff’s relationships with others (her coach after the incidents in question, Rafael Font de Mora, and her friend, CiCi Bellis), and Mr. McKenzie’s knowledge thereof; (2) Plaintiff’s progress in her tennis career; (3) Mr. McKenzie’s financial situation and the funding of Plaintiff’s tennis career; and (4) Mr. McKenzie’s relationship with Plaintiff’s counsel, such as existence of a fee agreement between them and whether they conversed about the deposition prior to it occurring. Doc. Nos. 79, 84, 86, 89.

Defendants contend that the first three categories constitute stressors pertinent to Plaintiff’s claims for damages, while the last category is relevant to establishing bias. Doc. Nos. 79, 86. Broadly speaking, during the deposition, Mr. McKenzie’s counsel asserted objections to the first three categories of information based on the right to privacy and relevance. See Doc. No. 79-4.2 Counsel objected to the questions regarding

Upon consideration of the motion and response, the Court ordered supplemental briefing from the parties. Doc. No. 85. Upon receipt of same, Doc.

No. 79-4. 3 It appears that counsel has filed the response briefing on behalf of Plaintiff alone. Doc. No. 84. See also Doc. No. 89. There are no responsive filings on the docket filed on behalf of Mr. McKenzie in relation to the deposition, nor has any privilege log been submitted on Mr. McKenzie’s behalf. Nos. 86, 89,4 the matter is ripe for review. And on review, the motion will be granted, for the most part.5 In so ruling, the Court rejects Plaintiff’s contention that Defendants’ motion is untimely because it was filed three weeks after the deposition and because Defendants allegedly delayed in scheduling the deposition. See Doc. No. 84, at 1; Doc. No. 89, at 2–5. The deposition was scheduled within the discovery deadline set forth by the Court and the motion to compel was filed within the time parameters of same. Doc. No. 64, at 1 (setting September 15, 2023 discovery deadline). See also id. at 7 (“[T]he Court routinely denies motions to compel that are filed after the discovery deadline as untimely.” (emphasis added)). Plaintiff cites no authority demonstrating that a contrary ruling is appropriate, and the decisions Plaintiff does cite either stand for the general proposition that good cause is required to extend a deadline, and/or are readily factually distinguishable.

In her supplemental briefing, Plaintiff appears to pivot, and argues that “information on the fee arrangements between a client and an attorney,” as well as the conversation between Mr. McKenzie and Attorney Allard prior to the deposition, are privileged. Doc. No. 89, at 6–7. The Court questions whether Plaintiff may now defend these privilege objections on Mr. McKenzie’s behalf, given that no response to the motion has been filed by Mr. McKenzie or on his behalf nor has a privilege log been submitted on

Mr. McKenzie’s behalf. See Fla. Stat. § 90.502(3) (listing who can claim the privilege). See also Doc. No. 54, at 7–8 (discussing cases regarding lack of standing to assert privilege objections on behalf of a non-party); Kleiman v. Wright, No. 18-

CV-80176, 2020 WL 1849407, at *7 (S.D. Fla. Apr.¹³, 2020) (finding that “under Florida law, Defendant lacked authority to assert the attorney-client privilege on behalf of the third-party entities”). Even assuming she can, however, Plaintiff fails to adequately support the objections. At the deposition, defense counsel did not ask for the contents of any fee arrangement, and likewise did not ask for the contents of any conversation between Mr. McKenzie and Attorney Allard. Instead, defense counsel was inquiring as to the existence of a fee arrangement, and the date and length of conversations Mr. McKenzie had with Mr. Allard prior to the deposition, but not their contents. See

Doc. No. 79-4, at 9–10, 15–17. Plaintiff fails to demonstrate in her response that the attorney-client privilege would apply to answers to these questions. See Doc. No. 89, at 5–7.9 See also Thompson v. Cincinnati Ins. Co., No. 3:10CV318/RS/EMT, 2010

WL 4667100, at *3 (N.D. Fla. Nov.⁹, 2010) (“The attorney-client privilege protects the confidentiality of communications within the attorney-client relationship, not

10675487, at *3 (M.D. Fla. Aug. 3, 2009) (overruling attorney-client privilege objection where the proponent failed to carry burden of demonstrating that the privilege applied, noting that “the identity of a client or a receipt of fees from a client are not normally covered by the attorney-client privilege.”). So, Defendants’ motion in this regard is well taken. Plaintiff’s Relationships During the deposition, defense counsel asked Mr. McKenzie about Plaintiff’s relationships with Rafael Font de Mora and CiCi Bellis. Specifically, as it relates to Mr. Font de Mora,¹⁰ defense counsel inquired about, among other things: (1)

Regarding CiCi Bellis, 11 defense counsel asked Mr. McKenzie about a message between Plaintiff and Mr. McKenzie, in which Mr. McKenzie asked Plaintiff about a New York Times article and whether Plaintiff was concerned about a picture of Ms. Bellis appearing in the article. Id. at 87–90. Attorney Allard objected to these questions on relevancy and privacy grounds, and instructed Mr. McKenzie not to answer. Id. Defendants contend that these areas of inquiry are relevant to Plaintiff’s damages, as stressors in Plaintiff’s life. Doc. No. 79, at 2; Doc. No. 86, at 9–10. In response, Plaintiff first argues that Defendants “fail to cite a single question related

292; Doc. No. 86-3. 11 Ms. Bellis was disclosed as an individual likely to have discoverable information on Plaintiff’s initial disclosures, and was the first person Plaintiff told about the sexual assault alleged in this case. Doc. No. 84-1, at 7. to Mora that went unanswered,” and that the relationship with Ms. Bellis was “fully explored.” Doc. No. 84, at 2. These assertions are again readily belied by the deposition transcript. See Doc. No. 79-4, at 74–75, 78–82, 87–89.12 Then, Plaintiff argues that allowing re-deposition of Mr. McKenzie regarding Mr. Font de Mora would be cumulative given the content of Plaintiff’s deposition. Doc. No. 89, at 10–11. Plaintiff also argues that the deposition transcript demonstrates that Mr. McKenzie lacks personal knowledge of the relationship between Plaintiff and Ms.

Bellis, and any attempt to re-depose Mr. McKenzie on this issue is simply a means to harass. Id. at 11–12. Plaintiff, to the extent that she may so defend it, fails to support any “privacy” objection to these areas of inquiry – and appears to have abandoned this objection in her supplemental briefing. Doc. Nos. 84, 89. See also Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 694 (S.D. Fla. 2011) (finding that a party lacks standing to object to discovery based on the privacy rights of non-parties); Alterra Healthcare Corp. v. Est. of Shelley, 827 So. 2d 936, 941-43 (Fla. 2002) (finding party lacked standing to assert right to privacy objection on behalf of third parties). And to the extent that Attorney Allard raised a relevancy objection with an instruction not to answer, this

however, if counsel feels compelled to make a relevancy objection, he may do so, but the deposition should continue with the testimony being taken subject to the objection. Thus, during the deposition, Defendant’s counsel could have made a relevancy objection and then instructed the deponent to proceed with his testimony.” (quotation marks and citation omitted)); State Farm Fire & Cas. Co. v. Silver Star Health & Rehab, Inc., No. 6:10-cv-1103-Orl-31GJK, 2011 WL 13298682, at *3 (M.D. Fla. Oct. 5, 2011) (“Generally, it is improper for a party to instruct a witness not to answer based purely on a relevance objection.”). Moreover, Plaintiff’s conclusory arguments that the purpose of Defendants’ motion and deposition of Mr. McKenzie is to “harass and annoy” Plaintiff are unavailing, absent some additional argument and record support for these broad statements. Cf. Silver Star Health & Reahb, Inc., 2011 WL 13298682, at *3 (conclusory statements will not support request for a protective order after instructing witness not to answer questions at deposition). See also Mays v. Ostafin, No. 15 C 1439, 2023

WL 4744949, at *2 (N.D. Ill. July 25, 2023) (rejecting conclusory arguments under Federal Rule of Civil Procedure 30(d)(3)(A)). So too are Plaintiff’s suggestions that Mr. McKenzie lacks personal knowledge, as most of the questions posed at the deposition relate to messages crafted by Mr. McKenzie himself. See Doc. No. 79-4, at 74–75, 78–82, 87–89. Finally, Attorney Allard did not raise an objection at the deposition that the information sought from Mr. McKenzie was cumulative, nor does Plaintiff adequately demonstrate here that instructing Mr. McKenzie not to answer questions at the deposition due to the allegedly cumulative nature of the information was appropriate. See Doc. Nos. 84, 89. Accordingly, Defendants’ motion in as it relates to the “relationships” areas of inquiry is well taken. Progress in Tennis Career During the deposition, the following exchange took place:

Q. There is MM 24, which is a text, has Kylie at the top and there’s some blue there, it says: Looks like you’re hitting really good right now. Do you see that?

MR. ALLARD: Objection; privacy. You need not answer that question.

MR. SHAUGHNESSY: Goes to damages, counsel.

MR. ALLARD: What goes to damages?

MR. SHAUGHNESSY: Whether she’s p[l]aying good tennis or not.

MR. ALLARD: We are not claiming that this has impacted her tennis career. We are claiming non-economic damages, sir. We are not claiming this has affected her tennis career. MR. SHAUGHNESSY: So you’re not going to offer any testimony at trial, you can stipulate right now, you’re not going to offer any testimony at trial that this somehow impacted her ability to succeed as a tennis player? Because if you don’t give me that stipulation, sir, I am going to go into these questions, and we will go to the magistrate judge on this issue.

MR. ALLARD: You don’t have to raise your voice with me, sir, please. I heard you ask it the first time, and my silence means I’m thinking about it. Okay? But I want to confer with my client before I do that, as a responsible person would. You’re asking me to make stipulation on the fly. I can’t do that.

MR. SHAUGHNESSY: I was responding to your objection and saying it has nothing to do with the case. If that’s the case, I can limit my questions, but if it’s not the case, I’m allow to go into this. So if you want to talk to your client, I’m absolutely fine with that.

MR. ALLARD: Okay. Why don’t you set those questions aside and give me a chance to talk to Kylie, in the spirit of moving on.

MR. SHAUGHNESSY: Let’s take a break now, because I’d like to get into there. Oh, you want to talk to Kylie too? You can talk to her. We’ll take a break right now, and you can talk to her. MR. ALLARD: So you want a stipulation from me that part of our damage claim for non-economic damages would not include a claim that her tennis career was negatively impacted. Is that what you’re asking me?

MR. SHAUGHNESSY: That’s correct.

MR. ALLARD: Okay. Let’s go off the record and take a quick break. . . . .

MR. ALLARD: Counsel, I am not prepared to stipulate to anything at this time for a variety of reasons. I don’t see how the stipulation would serve to curtail any questions you have anyway. So we are going to keep proceeding as we are. And I’m going to, again, urge you to get to some relevant questions before we decide to file a motion for protective order and abort the deposition. Thank you. Doc. No. 79-4, at 83–86. Defendants argue that without the requested stipulation, Plaintiff’s progress in her tennis career is relevant to her claim for damages. Doc. No. 79, at 3; Doc. 86, at 10–11. See also Doc. No. 34 ¶ 50 (claiming “loss of earnings” and “loss of ability to earn money” as damages). In response, Plaintiff contends that “[a]ll questions were answered” on this topic, Doc. No. 84, at 2; Doc. No. 89, at 12, an assertion yet again belied by the deposition transcript. See Doc. No. 79-4, at 83–86. Given that Plaintiff fails to support the privacy objection raised at the deposition to the line of questioning regarding Mr. McKenzie’s comment that Plaintiff was “hitting really good right now,” Doc. No. 84, 89, Defendants’ motion in this regard is also well taken. See generally Jackson v. Geometrica, Inc., No. 3:04-

cv-640-J-20HTS, 2006 WL 213860, at *1 (M.D. Fla. Jan. 27, 2006) (objections not addressed in response to a motion to compel are deemed abandoned); Bercini v. City of Orlando, No. 6:15-cv-1921-Orl-41TBS, 2016 WL 11448993, at *2 (M.D. Fla. Sept. 28, 2016) (same).

Finances Finally, at the deposition, defense counsel asked Mr. McKenzie several questions related to his finances, such as whether he has filed for bankruptcy,

whether he has been involved in prior lawsuits, and whether any tax liens have been filed against him. Doc. No. 79-4, at 19–20. Defense counsel also asked about the funding of Plaintiff’s tennis career. Id. at 106–07. Attorney Allard objected to these questions, citing “right to privacy” and “relevance” and instructing Mr. McKenzie not to answer the questions. Id. at 19–20, 106–07. Defendants claim that this information is relevant to Plaintiff’s stressors and damages, and that Plaintiff placed her finances and her family’s finances at issue in this case. Doc. No. 79, at 3; Doc. No. 86, at 8. See also Doc. No. 34 ¶ 25 (stating that

Coach Aranda engaged in personal conversations with Plaintiff to get her to open up and he knew that Plaintiff’s “parents struggled financially”); Doc. No. 86-2, at 79 (Plaintiff’s deposition testimony addressing financial difficulties, testifying that

“[t]ennis is an expensive sport, and it’s -- it was hard on [her] parents.”). In response, Plaintiff maintains that the questions related to Mr. McKenzie’s finances invade his right to privacy, and thus Defendant must demonstrate relevance to ask deposition questions regarding same. Doc. No. 84, at 3-4; Doc. No. 89, at 9.

Again, the Court questions whether Plaintiff may defend Mr. McKenzie’s objections in this regard. See Adelman, 276 F.R.D. at 694 (S.D. Fla. 2011); Est. of Shelley, 827 So. 2d at 943. And an instruction not to answer a deposition question based on relevancy alone is improper. See Larweth, 2019 WL 11866498, at *13; Silver Star Health & Rehab, Inc., 2011 WL 13298682, at *3. Assuming the issue is properly before the Court, however, Plaintiff has not demonstrated that the “right to privacy” objection was properly asserted to questions regarding public filings, such as bankruptcies, lawsuits, or tax liens. Again, Plaintiff cites no case law on point. Doc. No. 84, at 3; Doc. No. 89, at 8–9.13

See generally Bd. of Cty. Comm’rs of Palm Beach Cty. v. D.B., 784 So. 2d 585, 591 (Fla. 4th Dist. Ct. App. 2001) (“There is no right to privacy in public records in which there is no legitimate expectation of privacy from governmental intrusion.”). See also Greisdorf v. Governor, State of Fla., No. 6:15-cv-775-Orl-28KRS, 2015 WL 9243894, at *3 (M.D. Fla. Nov.¹⁰, 2015), report and recommendation adopted, 2015 WL 9255337 (M.D. Fla. Dec. 17, 2015) (“[T]here is . . . no constitutional right to privacy in information that is readily available to the public, including . . . judicial proceedings.” (quoting Larsen v. Johnston, 327 F. App’x 53, 55 (10th Cir. 2009))).

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LESLIE AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties

McKenzie’s deposition should be at Plaintiff's cost. Doc. No. 79, at 1. However, neither side further addresses this request in their respective supplemental briefing, see Doc. Nos. 86, 89, and upon consideration, the Court does not find such a sanction warranted at this time.