Gonzalez v. U.S. Department of Agriculture

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-20312-BLOOM/Otazo-Reyes

JOEY D. GONZALEZ RAMOS,

Plaintiff,

v.

U.S. DEPARTMENT OF AGRICULTURE,

and UNKNOWN EMPLOYEES OF THE

U.S. DEPARTMENT OF AGRICULTURE AND

THE DEPARTMENT OF JUSTICE,

Defendants.

_________________________________________/

ORDER ON PLAINTIFF’S OBJECTIONS TO MAGISTRATE JUDGE’S ORDER

THIS CAUSE is before the Court upon Plaintiff’s Appeal of Magistrate Judge’s Order,

ECF No. [50] (“Objections”). Defendant did not file a Response. The Court has carefully reviewed

the Magistrate Judge’s Order, ECF No. [49] (“Order”), the Objections, the record in this case, the

applicable law, and is otherwise fully advised. For the reasons that follow, the Objections are

sustained.

I. BACKGROUND

Plaintiff Joey D. Gonzalez Ramos is a former federal employee of the Defendant United

States Department of Agriculture (“USDA”). He filed a Complaint against the USDA, unknown

employees of the USDA, and the United States Department of Justice (“DOJ”). See ECF No. [1],

and thereafter filed the operative Amended Complaint. See ECF No. [13] (“Amended Complaint”),

asserting claims for unlawful dissemination of information protected by the Privacy Act, in

violation of 5 U.S.C. § 552a(b), and those arising under the Freedom of Information Act (“FOIA”).

Plaintiff contends that information from his USDA personnel file was shared with others, in

violation of the Privacy Act of 1974. Specifically, Plaintiff asserts that information from his USDA

personnel file was shared with non-party John Murphy (“Murphy”) by USDA and DOJ lawyers

when Murphy represented ADR Vantage, Inc. in a separate lawsuit brought against it by Plaintiff

in the District of Columbia.

Plaintiff sought to depose non-party Murphy and sent a subpoena to Murphy requesting a

remote deposition. ECF No. [50-5]. Murphy emailed Plaintiff on June 14, 2022, seeking to

reschedule the deposition, clarify whether the instant case was in a discovery posture, request an

attendance fee, obtain any documentation Plaintiff intended to use at a deposition, a written

agreement that the deposition testimony would not be used in related cases both currently on appeal

in the District of Columbia1, and a written agreement that Plaintiff would purchase and provide

Murphy with a copy of the transcript. Id. at 3. After additional emails from Plaintiff to Murphy,

on July 18, 2022, Murphy filed his Motion for a Protective Order, seeking to preclude Plaintiff

from proceeding with Murphy’s deposition (“Motion”). ECF No. [43]. Magistrate Judge Otazo-

Reyes conducted a hearing (“Hearing”) on the Motion on August 4, 2022, ECF No. [46], and

thereafter issued two Orders. The first Order on August 4, 2022 required that Plaintiff serve on

Murphy five written deposition questions. ECF No. [47]. On August 21, 2022, Plaintiff filed

Notice of Filing Murphy’s Responses to Plaintiff’s Interrogatories (“Notice”). ECF No. [48]. In

Plaintiff’s Notice, Plaintiff asserted that the objections and claims of privilege in Murphy’s

responses emphasized the need for Murphy’s deposition. Id. Thereafter, Judge Otazo-Reyes

entered a Supplemental Order (“Supplemental Order”) granting Murphy’s Motion for a Protective

Order. ECF No. [49]. Plaintiff filed this Appeal of Magistrate Judge’s Supplemental Order

(“Objections”). ECF No. [50].

1 Gonzalez Ramos v. ADR Vantage, Inc., No. 18-cv-1690 (APM); Gonzalez Ramos v. ADR Vantage, Inc. et al., No.

21-cv-00592 (APM)

II. LEGAL STANDARD

Pursuant to this District’s Local Magistrate Judge Rules, a district judge may overrule a

magistrate judge’s discovery ruling upon finding that it is “clearly erroneous or contrary to law.”

S.D. Fla. L. Mag. R. 4(a)(1); see Fed. R. Civ. P. 72(a) (district judge “shall modify or set aside any

portion of the magistrate’s order found to be clearly erroneous or contrary to law”); Wausau

Underwriters Ins. Co. v. Danfoss, LLC, 310 F.R.D. 689, 690 (S.D. Fla. 2015). A finding is clearly

erroneous “‘when although there is evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a mistake has been committed.’” Malvaes

v. Constellation Brands, Inc., No. 14-21302-civ, 2015 WL 3863639, at *1 (S.D. Fla. June 22,

2015) (quoting Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005)).

“‘In the absence of a legal error, a district court may reverse only if there was an ‘abuse of

discretion’ by the magistrate judge.’” Wausau Underwriters Ins. Co., 310 F.R.D. at 690 (quoting

S.E.C. v. Merkin, 283 F.R.D. 699, 700 (S.D. Fla. 2012)).

The “‘clearly erroneous’ review is very different from the de novo review and adoption of

a Report and Recommendation on a dispositive Order, and more closely resembles an appellate

function.” Combs v. Town of Davie, No. 06-60946-CIV-COHN/SNOW, 2007 WL 676102, at *2

(S.D. Fla. Feb. 28, 2007). A magistrate judge is afforded broad discretion as to discovery matters,

and reversal of a magistrate’s discovery-related order is appropriate only where that discretion is

abused. See Ellis v. United States, No. 3:15-cv-1078-J-34JBT, 2016 WL 1658706, at *2 n.3 (M.D.

Fla. Apr. 27, 2016) (citing Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1269

(11th Cir. 2001)) (“[W]e accord district courts broad discretion over the management of pretrial

activities, including discovery and scheduling.”). “The mere fact that a reviewing court might have

decided the issue differently is not sufficient to overturn a decision when there are two permissible

views on the issue.” Pendlebury v. Starbucks Coffee Co., No. 04-80521-CIV, 2007 WL 4592267,

at *1 (S.D. Fla. Dec. 28, 2007); see Batista v. Nissan N. Am., Inc., No. 14-24728-Civ-Scola, 2015

WL 10550409, at *1 (S.D. Fla. Dec. 8, 2015) (“The district court may not undo the magistrate

judge’s determination simply because it is convinced that it would have decided the case

differently” (internal quotations omitted)). “This standard has been described as a very difficult

one to meet.” Manno v. Healthcare Revenue Recovery Grp., LLC, No. 11-61357, 2012 WL

4192987, at *2 (S.D. Fla. 2012) (internal quotations omitted).

“A magistrate judge’s order is contrary to law when it fails to apply or misapplies relevant

statutes, case law, or rules of procedure.” Ellis, 2016 WL 1658706, at *1 (quotations omitted). In

the Eleventh Circuit, “the ‘contrary to law’ standard [is] more deferential than de novo review.”

Id. at *1 n.3 (citing Merritt v. Int’l Bhd. of Boilermakers, 649 F.2d 1013, 1016-17 (5th Cir. 1981)2

(“[A] magistrate[’s nondispositive orders] are reviewable under the ‘clearly erroneous and contrary

to law’ standard; they are not subject to a de novo determination as are a magistrate’s proposed

findings and recommendations.”); see also Scuotto v. Lakeland Tours, LLC, No. 3:13-cv-1393-J-

34JRK, 2015 WL 1418718, at *1 n.4 (M.D. Fla. Mar. 27, 2015). However, “‘application of an

improper legal standard . . . is never within a court’s discretion.’” Dulaney v. Miami-Dade Cnty.,

No. 09-23259-CIV, 2011 WL 382773, at *1 (S.D. Fla. Feb. 2, 2011) (quoting Johnson & Johnson

Vision Care, Inc., v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246 (11th Cir. 2002)). Through this

lens, the Court reviews Plaintiffs’ Objection.

III. DISCUSSION

Plaintiff argues that he should not be prevented from deposing Murphy. In his Objections,

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the court adopted as

binding precedent all decisions of the Fifth Circuit issued prior to October 1, 1981.

Plaintiff contends that Judge Otazo-Reyes (1) improperly precluded Murphy’s deposition; (2)

failed to address Plaintiff’s objections to Murphy’s responses to the written interrogatories; and

(3) improperly relied on attorney client privilege where Murphy asserted the work product

privilege rather than the attorney client privilege and had waived any privilege. Upon review, the

Court finds that Plaintiff made the necessary showing to justify sustaining his Objections to Judge

Otazo-Reyes’s Supplemental Order.

A. Preclusion of Deposition

Plaintiff objects to the Supplemental Order, arguing that the deposition of Murphy is

necessary and proper since Murphy is not the attorney for either party in this litigation, the

information sought is non-privileged and relevant, and there is no other means of obtaining the

information. The Hearing addressed Murphy’s request for a protective order and Plaintiff’s

arguments about the necessity of the deposition. Murphy testified that Judge Mehta, United States

District Judge for the District of Columbia, ruled on a similar discovery dispute in which Plaintiff

sought to depose Murphy in a case3 Plaintiff filed against a defendant whom Murphy represented.

ECF No. [61] at 7:24-8:5. In that ruling, Judge Mehta precluded Plaintiff from any discovery

regarding the conversation between Murphy and the employees at the Department of Justice. Id.

at 8:5-7, see also ECF No. [43-1] at 35. In her determination, Judge Otazo-Reyes noted that res

judicata and collateral estoppel did not apply even though Plaintiff now seeks to depose Murphy

about the same conversation because, in the case before Judge Mehta, Murphy was counsel to a

party and here, he is a third party. ECF No. [61] at 16:2-8.

Plaintiff argues that since Murphy is not litigation counsel, the considerations weighing

against attorney depositions are mitigated. See ECF No. [50] at 6 (citing Gamache v. Hogue, No.

3 That case is now pending in the District of Columbia on Plaintiff’s appeal of summary judgment against him.

1:19-CV-21 (LAG), 2022 WL 989483, at *3 (M.D. Ga. Mar. 30, 2022)). Plaintiff then asserts that

even if the Court chose to apply the most rigorous standard for deposing a party’s attorney, the

deposition still should not be precluded. Id. at 7. The Court agrees.

The Eleventh Circuit has upheld a district court’s decision to allow plaintiffs to depose the

defendants’ attorneys only by written questions where the court was convinced that depositions

“in the absence of firm control by the court, will almost certainly be attended by continuing

disputes and may require that they be supervised by a judicial officer.” Cox v. Adm'r U.S. Steel &

Carnegie, 17 F.3d 1386, 1423 (11th Cir. 1994), opinion modified on reh'g, 30 F.3d 1347 (11th Cir.

1994). This case is distinguishable from Cox because there the Plaintiff sought to depose the

defendants’ attorneys and here Plaintiff seeks to depose a third party, Murphy. The Court also

notes that Murphy has not asserted the attorney client privilege whereas in Cox, the Court found

that plaintiffs were attempting “to breach the defendants’ attorney-client privilege.” Id.

Furthermore, the Court determines, for reasons explained below, that the deposition questions

Murphy responded to in accordance with Judge Otazo-Reyes’s order were not sufficient for the

needs of this case.4

The Eleventh Circuit in Cox did not articulate a test for taking the deposition of attorneys

and Plaintiff points out that the Eleventh Circuit has not articulated a standard, nor adopted either

the Shelton test or the Second Circuit’s flexible approach to determine whether a protective order

is appropriate where a party seeks to depose an attorney. ECF No. [50] at 5 (citing Shelton v. Am.

Motors Corp., 805 F.2d 1323 (8th Cir. 1986)5). Several cases from the Southern District of Florida

4 The Court notes that in accordance with Cox, Judge Otazo-Reyes properly exercised her discretion to determine if

another viable means existed to obtain the relevant information. See Cox,17 F.3d at 1423.

5 The standard set forth in Shelton requires the party moving for the deposition to show that “(1) no other means exist

to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged;

and (3) the information is crucial to the preparation of the case.” Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327

(8th Cir. 1986) (internal citations omitted). The Court notes that even applying the rigorous Shelton test Plaintiff has

met his burden of demonstrating the necessity of Murphy’s deposition.

have set forth the standard that where a party seeks to depose an opposing party’s counsel, “[t]he

party seeking the deposition must show the propriety and need for the deposition by demonstrating

that the deposition is the only practical means of obtaining the information and that other methods

of discovery, such as written interrogatories, cannot be employed.” Klayman v. Freedom's Watch,

Inc., No. 07-22433-CIV, 2007 WL 4414803, at *4 (S.D. Fla. Dec. 14, 2007); see also Sun Capital

Partners, Inc. v. Twin City Fire Ins. Co., 310 F.R.D. 523, 528 (S.D. Fla. 2015) (“[A] party seeking

an attorney’s deposition must demonstrate that the deposition is the only practical means available

of obtaining the information. Moreover, the party seeking the deposition of an attorney has the

burden to show that the information sought 1) is relevant; 2) its need outweighs the dangers of

depositing a party’s attorney; and 3) the information sought will not invade the realm of the

attorney’s work product or interfere with the attorney-client privilege.” (internal quotation marks

and citations omitted)); W. Peninsular Title Co. v. Palm Beach Cnty., 132 F.R.D. 301 (S.D. Fla.

1990).

The Court finds that the Supplemental Order is not supported by the record in this case.

Murphy is not counsel of record. Moreover, Plaintiff has demonstrated that even using the test for

deposing counsel of record, there is a need for the deposition, and it is the only practical means of

obtaining the relevant information. Judge Otazo-Reyes ruled at the hearing that the deposition

would be relevant to the extent Plaintiff sought to ask Murphy about any disclosure made to him

that the Plaintiff was on administrative leave at the relevant time. ECF No. [61] at 18:7-10. The

Court agrees and finds that the deposition would be relevant to the limited extent identified by

Judge Otazo-Reyes. The Court also agrees with Plaintiff that the information sought is necessary

to the preparation of the case if Plaintiff’s confidential information was disclosed to Murphy. See

ECF No. [50] at 15-16. In the operative Second Amended Complaint (“Complaint”), Plaintiff

alleges that the basis for Plaintiff’s claim under The Privacy Act is that his confidential personnel

information was disclosed by USDA lawyer Vanessa Eisemann (“Eisemann”) and/or DOJ lawyer

John C. Truong, (“Truong”) to Murphy. ECF No. [41] at 3-5. Judge Otazo-Reyes ordered that

Plaintiff submit to Murphy five written deposition questions, ECF Nos. [61] at 21:13-15, [47], and

after consideration of the deposition questions and responses provided, issued the protective order

in favor of Murphy. See ECF Nos. [48], [49]. Judge Otazo-Reyes determined that the five

deposition questions and their responses were sufficient for the needs of this case. See ECF No.

[49]. The Court disagrees. Given the responses, the written deposition questions were insufficient

and Plaintiff has demonstrated that Murphy’s deposition is the only means of obtaining the relevant

information.

In an analogous case, a court in this district determined that it was error to preclude the

deposition of an attorney who was not the attorney of record for either party but prepared one of

the documents that formed the basis for the dispute between the parties. Gratchev v. Gratchev, No.

20-60022-CIV, 2021 WL 8825350, at *2-3 (S.D. Fla. Nov. 30, 2021). That court held that the

magistrate judge’s decision to preclude the deposition of that attorney was not supported by law

because the deposition “seems to be necessary given the lack of memory testified to by the

Defendant in his deposition. To the extent that [the attorney] has non-privileged information about

the parties’ course of dealing and relationship, her testimony is necessary and the information

sought seems not to be discoverable any other way.” Id. at *2-3.

Here, Plaintiff argues that “Murphy’s written responses to Plaintiff’s interrogatories are a

continuation of his attempts to avoid responding truthfully and without reservation about how he

learned of [Plaintiff’s] status on administrative leave.” ECF No. [50] at 7. Plaintiff argues that

when he deposed Truong, Truong claimed to have no recollection of the discussion with Murphy.

Id. at 15 Through interrogatories, Eisemann also claimed that she does not remember disclosing

Plaintiff’s confidential information to Murphy. Id. It is clear from his answers to the five deposition

questions that Murphy at least remembers having the conversation while Eisemann and Truong

claim not to. Therefore, just as in Gratchev, the only way for Plaintiff to obtain adequate

information relevant and crucial to this case is to depose Murphy.

Plaintiff has demonstrated the propriety and need for Murphy’s deposition and that it is the

only practical means of obtaining the information about the conversation in which his confidential

information was allegedly disclosed.

B. Objections to Interrogatories

Next, Plaintiff objects to the Supplemental Order on the basis that Judge Otazo-Reyes did

not address the specific objections to each of Murphy’s responses to the interrogatories. ECF No.

[50] at 7-10. The Court examined the questions posed and responses provided to the five

interrogatory questions. ECF No. [48-1]. The Court notes that Murphy objected to three of the five

interrogatories on the grounds that they were outside of the relevant scope and sought to discover

privileged information and then proceeded to answer each question. See ECF No. [48-1] at 2-4.

In the First interrogatory, Plaintiff requested that Murphy specify the date and time,

duration, location, means, subject, and witnesses related to the relevant “discussion.” Id. at 1.

Murphy responded with the date, said the time was various points throughout the day, that

Eisemann, Truong, Plaintiff and Murphy, and one or more deponents were present. Id. at 2.

Murphy provided the general vicinity in which the discussion occurred and indicated that he did

not recall the discussion verbatim but that “it came up in conversation that after the Merit

Protection Board (“MPB”) ruled in Plaintiff’s favor, he never supplemented his discovery

responses to retract his claim for lost wages/benefits as damages” in the litigation for which

Murphy was Counsel. Id. Murphy also indicated that he did not recall anyone else present at the

time of the discussion and believes that the discussion lasted one to two minutes. Id.

In response to the second interrogatory question which asked what documentation Murphy

expected to receive from Eisemann and Truong, Murphy stated that he did not have any

expectation and did not know what existed or what could be produced. Id.

In response to the third interrogatory which asked how Murphy knew the USDA had paid

Plaintiff his back leave and/or placed him on administrative leave before March 2, 2020, Murphy

said

I was never provided documents regarding Plaintiff’s back pay or administrative

leave. Prior to March 2, 2020, I read the MPB decision ordering the USDA to

retroactively reinstate Plaintiff’s employment with back pay. I made the assumption

the Untied States government complied with the MPB’s Order. It was further my

assumption that Plaintiff was placed on some form of administrative leave since,

by then, Plaintiff was a licensed attorney with an active law practice. These were,

however, just assumptions on my part at that time I was piecing the information

together. To the best of my recollection, the March 2, 2020 conversation referenced

above was me inquiring about possible documentation that might be available to

confirm my assumption.

Id. at 2-3.

The fourth interrogatory asked Murphy to explain the basis for his logical assumption

and/or educated assumption. Id. at 3. Murphy responded, “See Answer No.3.” Id.

Finally, the fifth interrogatory requested that Murphy describe his FOIA request,

information obtained through FOIA or written discovery, the employees or persons that provided

the materials and the date and time materials were received. Id. Murphy replied that on July 10,

2019, he electronically sent a records deposition notice to Truong on behalf of the USDA, with a

copy to Plaintiff, for Plaintiff’s employment records. Id. at 4. Murphy further answered that On

July 21, 2019, Plaintiff e-mailed Truong stating his objection and that to the best of his recollection,

the USDA never produced Plaintiff’s employment records. Id. Murphy said that it

became a moot point when Plaintiff later admitted what I had assumed for some

time – that the USDA placed him on administrative leave and he was collecting a

salary and benefits from the government while pursuing numerous lawsuits for

monetary damages and actively practicing law.

Id.

Plaintiff objects to the adequacy of the written deposition question responses. ECF No.

[50] at 7-11. Plaintiff contends that Murphy’s responses are evasive and a continuation of his

attempts to avoid responding truthfully and without reservations. Id. at 7. Murphy also reasserts

the same objections he raised in the Notice. See ECF No. [48]. The Court notes that Judge Otazo-

Reyes did not specifically rule on those objections before issuing the Supplemental Order in which

she found the responses provided were sufficient for the needs of the case. See ECF No. [49].

Finally, Murphy argues that Murphy’s “responses, rather than providing definitive answers, raised

more questions about [Murphy’s] involvement in the disclosure of [Plaintiff’s] information by the

USDA” demonstrating that a deposition is the only effective way for Plaintiff to obtain testimony

that would allow him to prove his case against the USDA. ECF No. [50] at 11-12. The Court

agrees, it does not find the responses sufficient, and determines that Plaintiff is entitled to depose

Murphy.

C. Claims of Privilege

Plaintiff also argues that the Supplemental Order incorrectly relied on the attorney client

privilege. ECF No. [50] at 5. Plaintiff then argues that any privilege Murphy might assert has been

waived. Id. at 13-15. In the Supplemental Order, Judge Otazo-Reyes said,

Upon review of Mr. Murphy’s answers, the undersigned finds that Mr. Murphy has

not waived the attorney client privilege as to matters not set forth in his answers

and further finds the answers to be sufficient for the needs of the case.

ECF No. [49]. The Supplemental Order provides no reasoning with regard to Judge Otazo-

Reyes’s assertion that Murphy had not waived any claim of attorney client privilege. Murphy did

not assert the attorney client privilege, nor did he represent Eisemann or Truong and so any

conversation that he had with them would not be subject to the attorney client privilege. The Court

acknowledges that Murphy remains counsel on the related Washington DC cases and that a claim

of work product privilege may be implicated, but there has not been a sufficient showing at this

point to preclude his deposition on that basis. The Court disagrees that Murphy’s answers were

sufficient and does not make any finding with regard to any claimed privileges.

For these reasons, the Court concludes that the Magistrate Judge’s Supplemental Order

must be reversed, and the deposition of Murphy is permitted. The Court will, however, impose

conditions for the deposition of Murphy as set forth below.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Plaintiff’s Objections, ECF No. [50], are SUSTAINED.

2. The Supplemental Order, ECF No. [49], is REVERSED.

3. The deposition of Murphy will proceed upon the following conditions:

a. The deposition will be limited to one hour.

b. The deposition will be limited in scope to inquiry about any information disclosed

to Murphy about Plaintiff’s status on administrative leave and the circumstances of

that disclosure.

c. The deposition will take place on or before November 28, 2022, via zoom.

d. Plaintiff shall compensate Murphy at his normal hourly rate no later than two days

prior to the scheduled deposition. Delivery of a check shall satisfy this condition.

Case No. 22-cv-20312-BLOOM/Otazo-Reyes

DONE AND ORDERED in Chambers at Miami, Florida, on October 27, 2022.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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