McKenzie v. United States Tennis Association Incorporated

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

KYLIE MCKENZIE,

Plaintiff,

v. Case No: 6:22-cv-615-PGB-LHP

UNITED STATES TENNIS

ASSOCIATION INCORPORATED

and USTA PLAYER DEVELOPMENT

INCORPORATED,

Defendants

ORDER

This cause came on for consideration without oral argument on the following

motion filed herein:

MOTION: MOTION TO COMPEL MARK MCKENZIE’S

DEPOSITION OR TO EXCLUDE HIS TESTIMONY

AT TRIAL (Doc. No. 79)

FILED: September 13, 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

1 It does not appear that a subpoena issued for Mr. McKenzie’s deposition, as

counsel for Plaintiff agreed to accept service and produce Mr. McKenzie for deposition

before the discovery period expired. Doc. No. 84-1, at 17.

2 Defendants have filed two copies of the deposition transcript, see also Doc. No. 86-

1, but the Court cites to the copy of the transcript attached to the initial motion, see Doc.

the attorney-client relationship between Mr. McKenzie and counsel as privileged.

See id.

By the above-styled motion, Defendants ask the Court to compel Mr.

McKenzie to sit for another deposition to answer these questions, and to overrule

his objections to same. Doc. No. 79. Alternatively, Defendants seek to exclude

Mr. McKenzie’s testimony at trial. Id.

In response, Plaintiff3 contends that Defendants’ motion is untimely because

it was filed three weeks after Mr. McKenzie’s deposition and at the close of

discovery, the topics at issue were “sufficiently explored” during the deposition;

“[a]ll questions were answered” regarding Plaintiff’s tennis career, questions

related to finances invade Mr. McKenzie’s privacy; “[a]ll questions related to this

case were answered” regarding the attorney-client relationship at issue in this case;

and the sole purpose of the request to re-depose Mr. McKenzie is to harass Plaintiff.

Doc. No. 84.

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.

4 The Court struck Plaintiff’s initial supplemental briefing for failure to comply with

the Order requiring supplemental briefing. See Doc. Nos. 87–88. The Court notes that

this was not the first time a filing by Plaintiff was stricken for failure to comply with a

Court Order. See Doc. Nos. 82–83. Counsel for Plaintiff is cautioned that future filings

that fail to comply with Court Orders may be stricken without leave to refile.

5 Given that, as discussed herein, the Court will allow a second deposition of Mr.

McKenzie, Defendants’ alternative request to exclude Mr. McKenzie’s testimony at trial

will be denied.

See Doc. Nos. 84, 89.6 The Court will address each of the deposition objections at

issue in turn.7

Attorney-Client Relationship

During the deposition, defense counsel asked Mr. McKenzie whether he had

a fee agreement with Plaintiff’s counsel (Attorney Robert Allard), and the date of

same, specifying that counsel was not asking for the contents of the agreement.

Doc. No. 79-4, at 9–10.8 Attorney Allard objected based on the attorney-client

privilege and instructed Mr. McKenzie not to answer. Id. Defense counsel also

asked Mr. McKenzie if he spoke to Attorney Allard prior to the deposition, and for

the date and length of the conversation, clarifying that defense counsel was not

6 For example, Plaintiff cites to Yergey v. Brinker Florida, Inc., No. 6:20-cv-917-Orl-

37LRH, 2021 WL 3729254, at *5 (M.D. Fla. Jan. 28, 2021), however in Yergey, the defendant

sought to extend the discovery deadline to take an additional number of depositions,

whereas in this case, Defendants actually conducted Mr. McKenzie’s deposition prior to

the close of discovery, and merely seek to complete the questioning that was prevented by

Plaintiff’s counsel. And in Inman v. Richman Property Services, Inc., No. 3:13-cv-941-J-

32MCR, 2014 WL 4639131, at *3 (M.D. Fla. Sept. 16, 2014), the plaintiff did not even file her

motion to compel until one month after the close of discovery.

7 To the extent that Defendants argue that Plaintiff has waived her challenges to the

deposition questions by failing to file a motion for protective order, the Court declines to

consider the argument because Defendants did not raise the issue in their initial motion.

See Doc. No. 79. See also Doc. No. 85 (ordering supplemental briefing “limited to the issues

raised in the Motion and Response; issues not previously raised will not be considered.”).

8 Citations to the deposition transcripts submitted by the parties refer to the internal

pagination provided on the transcripts.

asking for the contents of said conversation. Id. at 15–17. Attorney Allard again

objected based on privilege and instructed Mr. McKenzie not to answer. Id.

In her initial briefing, Plaintiff argues that “[t]he only attorney-client

questions that Mr. McKenzie did not answer were questions related to his attorney

relationships in other matters. All questions related to this case were answered.”

Doc. No. 84, at 3 (emphasis in original). This representation is clearly inaccurate

based on a review of the deposition transcript. See Doc. No. 79-4, at 9–10, 15–17.

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

9 The cases cited by Plaintiff are not on point, and do not address whether the

existence of a fee agreement or the fact that a conversation between counsel and client

occurred are privileged. Tumelaire v. Naples Estates Homeowners Ass’n, Inc., 137 So. 3d 596

(Fla. 2d Dist. Ct. App. 2014) concerned the contents of a fee arrangement and billing records.

Corry v. Meggs, 498 So. 2d 508, 511 (Fla. 1st Dist. Ct. App. 1986) addressed whether the

identity of a client and the payment of a fee by a third-party fall within the privilege, which

holding the court limited to the specific facts of that case. Corey also recognized that the

“general rule” is “that the identity of a client and the payment of attorney fees are merely

underlying facts of an attorney-client relationship, not confidential communications

contemplated as privileged under the common law or the Code.” Id. HCA Health Servs.

of Florida, Inc. v. Hillman, 870 So. 2d 104 (Fla. 2d Dist. Ct. App. 2003) concerned privileged

information contained within billing records, which is not at issue here. Notably, Hillman

was disapproved of in Paton v. GEICO General Insurance Co., 190 So. 3d 1047 (Fla. 2016).

the external trappings of the relationship, such as facts relating to the creation or

existence of the attorney-client relationship. . . . Accordingly, the dates, times, and

places of a client’s meetings with his or her attorney are not protected.” (citations

omitted)); Anderson Columbia v. Brown, 902 So. 2d 838, 841–42 (Fla. 1st Dist. Ct. App.

2005) (“The hours expended and rate charged by defense counsel is not information

protected by either the attorney-client or work product privilege.”). Cf. Am. Honda

Motor Co. v. Motorcycle Info. Network, Inc., No. 5:04-cv-12-Oc-10GRJ, 2009 WL

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)

10 According to the record, after the incidents giving rise to the present case,

Plaintiff began training with a new coach, Mr. Font de Mora. To pay for his services,

Plaintiff contractually agreed to give Mr. Font de Mora proceeds from any judgment or

settlement in this case. Mr. Font de Mora became “too involved,” and thereafter the

contract with Mr. Font de Mora was declared void. Doc. No. 86-2, at 35, 40, 133–34, 290,

emails from Mr. Font de Mora; (2) communications between Mr. McKenzie and Mr.

Font de Mora that Mr. McKenzie produced; (3) whether Mr. McKenzie had “a good

relationship” with Mr. Font de Mora throughout 2021; (4) Attorney Allard severing

the relationship between Plaintiff and Mr. Font de Mora in 2022; and (5) Plaintiff’s

termination of her agreement with Mr. Font de Mora. Doc. No. 79-4 at 74–75, 78–

82. Attorney Allard objected to these questions on relevancy and privacy grounds,

and instructed Mr. McKenzie not to answer. Id.

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

12 Counsel for Plaintiff is reminded of their duty of candor and obligations under

Fed. R. Civ. P. 11.

was improper. Fed. R. Civ. P. 30(c)(2). See Larweth v. Magellan Health, Inc., No.

6:18-cv-823-Orl-41DCI, 2019 WL 11866498, at *13 (M.D. Fla. July 16, 2019) (“It is

arguable whether objections on relevancy should be made during depositions;

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))).

13 The only case Plaintiff cites is NetJets Aviation, Inc. v. Peter Sleiman Development

Group, LLC, No. 3:10-cv-00483-J-32JBT, 2011 WL 768066 (M.D. Fla. Feb. 28, 2011), which

concerned a “broad subpoena directed to a non-party . . . to produce all documents relating

to various bank accounts, mortgages, and/or loan agreements relating [the individual

defendant] since January 1, 2004, all communications between her and [the non-party], and

all notes, memoranda, reports, summaries, forms, applications, and worksheets relating to

[the individual defendant].” The court said that to the extent that these broad swaths of

information have any “marginal relevancy,” the relevancy was outweighed by the private

nature of the financial records. Id. at *1–2. Here, in contrast, defense counsel was asking

about three discrete categories of financial records that would generally be part of the

public domain.

Accordingly, Defendants’ motion in this regard is also well taken.

Conclusion

For the reasons discussed herein, the Motion to Compel Mark McKenzie’s

Deposition or to Exclude His Testimony at Trial (Doc. No. 79) is GRANTED in part

and DENIED in part. It is ORDERED that Defendants will be permitted to re-

depose Mr. McKenzie within thirty (30) days of this Order. The deposition shall

not exceed four (4) hours in length, and shall be limited to the topics addressed in

this Order.14 The motion (Doc. No. 79) is otherwise DENIED. On or before

October 11, 2023, the parties shall meet and confer regarding the date of the

deposition. On or before that date, Defendants shall file a notice with the Court

setting forth the date, time, and location of the deposition. If the parties are unable

to reach an agreement by that date, Defendants shall file a notice stating same, and

the Court will set the deposition on its own accord. In accordance with

Defendants’ representations, see Doc. No. 86, at 14–15, the continuation deposition

testimony of Mr. McKenzie may not be used by either party in summary judgment

filings, including any reply brief.15

14 The deposition transcript reflects that Mr. McKenzie’s deposition commenced at

9:33 a.m. and concluded at 12:26 p.m., not to include breaks. Doc. No. 79-4. Thus, the

Court will limit the second deposition to four (4) hours. See Doc. No. 64, at 4 (limiting

depositions to seven (7) hours pursuant to Federal Rule of Civil Procedure 30(d)(2)).

15 Defendants mention in their initial motion that the continuation of Mr.

DONE and ORDERED in Orlando, Florida on October 4, 2023.

| ay □□□□□

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.

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