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Jill and Robert Webb In Their Own Proper Persons v. Cbs Broadcasting

January 13, 2011

JILL AND ROBERT WEBB IN THEIR OWN PROPER PERSONS,
AND AS PARENTS AND NEXT FRIENDS OF THEIR MINOR CHILDREN, PLAINTIFFS,
v.
CBS BROADCASTING, INC., A FOREIGN CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Geraldine Soat Brown, United States Magistrate Judge

Judge Amy J. St. Eve Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

This opinion addresses two motions: defendant CBS Broadcasting Inc.'s ("CBS") motion for protective order [dkt 92], and plaintiffs Jill and Robert Webb's ("the Webbs") motion to compel, to enjoin and for sanctions [dkt 109 (under seal)]. The events giving rise to the motions are interrelated although they raise separate legal issues. CBS contends that due to repeatedly irrelevant and improper questioning by the Webbs' counsel at the depositions of several CBS employees, those depositions should be terminated. The Webbs contend that CBS should be ordered to turn over certain CBS documents to which they believe they are entitled, and should be sanctioned for failing to turn them over earlier and obstructing justice. The motions are ruled upon as set out below.*fn1

BACKGROUND

1. This lawsuit and the joint depositions with the Jacobson case The Webbs assert state law claims of intrusion upon seclusion and intentional infliction of emotional distress allegedly arising from the fact that on July 6, 2007, they, Craig Stebic (Jill Webb's brother), and NBC reporter Amy Jacobson were videotaped without their consent by Tracy Reardon (a neighbor of Craig Stebic) and/or CBS employee Michael Puccinelli. (Am. Compl.) [Dkt 30.] Significantly, the District Judge limited the Webbs' complaint to the invasion of privacy that occurred as a result of the act of videotaping itself, because any allegations or damages related to the subsequent publication of the video by CBS are time-barred. (Mem. Op. & Order, May 7, 2009, at 1, 5, 7-8.) [Dkt 29.] The District Judge permitted the Webbs to file "an amended complaint that alleges damages only based on the videotaping and spying itself, and not based upon any publication." (Id. at 8.) When CBS moved to dismiss the amended complaint, the District Judge denied that motion but reiterated the limitation, viewing the factual allegations about the publication of the videotape as "simply to provide further context to the factual allegations." (Order, Sept. 3, 2009 at 2.) [Dkt 42.]

The parties scheduled the depositions of several current and former CBS employees for August 2010, agreeing to attempt to conduct them in conjunction with those in a related state court case, Jacobson v. CBS Broadcasting, Inc., No. 2008-L-007331 (Cir. Ct. Cook Co., Ill.) ("Jacobson case"). (Jt. Status Rpt. at 2.) [Dkt 48.] The Webbs' counsel does not represent any party in the Jacobson case. Amy Jacobson is apparently represented in that case by attorneys from the Law Offices of Kathleen T. Zellner.

Four depositions went forward in August 2010: Michael Puccinelli, Carol Fowler, Robert Johnson and Elizabeth Fruehling, although with much contention and drama, as discussed below.*fn2

The deposition of Joseph Ahern was also scheduled to proceed jointly, but only went forward in the state court case, not in this case. Fact discovery closed on October 27, 2010, except to complete previously-noticed discovery and any further discovery ordered pursuant to the pending motions.(Orders, Mar. 8, 2010, Oct. 26, 2010.) [Dkt 65, 145.]

2. Events before and during the depositions

CBS agreed that Ms. Fowler, Mr. Johnson, Mr. Puccinelli and Mr. Ahern would be made available for depositions when the Webbs agreed to dismiss them as defendants in January 2009. (Stip. Agreed Order Dismissal.) [Dkt 22.] Of the four, only Mr. Puccinelli was present while the video was being recorded. Mr. Puccinelli was deposed on August 18, 2010 for approximately eight and one-half hours less a lunch break. Although it was planned to be a joint deposition, the Webbs' counsel's questions took all of the time. At the conclusion, CBS agreed to make Mr. Puccinelli available for an additional three hours of deposition by counsel in the Jacobson case. (Puccinelli Dep. at 306.) The parties also agreed that, for the remaining depositions, the attorneys for the plaintiff in the Jacobson case would interrogate the witness for the first three hours and the Webbs' counsel could follow with questions relevant to their case. (Id. at 306.)

Prior to the depositions, the Webbs' counsel somehow came into possession of certain documents that had been produced by CBS to the plaintiff in the Jacobson case. They were all marked "confidential" and Bates-stamped with "CBS 2 Jacobson" numbers 1 through 443 (hereinafter "Jacobson documents"). (Pls.' Suppl. Resp. ¶ 11.) According to the Webbs, the Jacobson documents include e-mails, memos, and handwritten notes which were not produced by CBS in the present litigation. (Pls.' Mot. Compel ¶ 20.) Those documents are subject to a protective order entered in the Jacobson case. (See Def.'s Mem., Ex. C, Jacobson Protective Order.) When the Webbs' counsel asked Mr. Puccinelli about some of the Jacobson documents, CBS's counsel protested that the Webbs' counsel should not have been given those documents, and that his possession of them violated the protective order in the Jacobson case. (Puccinelli Dep. at 220-22.)*fn3

Ms. Fowler's deposition took place on August 20, 2010, beginning with questioning by counsel for Amy Jacobson. (Fowler Dep. at 4-185.) Before the Webbs' counsel began his questioning, CBS's counsel warned the Webbs' counsel that, based what happened at Mr. Puccinelli's deposition, he would not permit questioning beyond the scope of the issues in the Webbs' case. (Id. at 187.) The Webbs' counsel asked questions regarding the Jacobson documents, and CBS's counsel again objected that those documents should not have been given to anyone other than counsel for Amy Jacobson. (Id. at 200.) After the Webbs' counsel questioned Ms. Fowler for several hours, CBS's counsel terminated the deposition because of questions about the Jacobson documents and questions that CBS's counsel believed to be improper and abusive. (Id. at 308-09.)

Counsel in the Jacobson case took Mr. Johnson's deposition on the morning of August 24, 2010, and the Webbs' counsel, who had been present for the morning session, deposed him beginning at 12:15 p.m. (Johnson Dep. at 1, 6.) At 2:00 p.m., CBS's counsel terminated the deposition, citing a previous agreement that because Mr. Johnson would not be available past 2:00 p.m., the deposition would conclude then. (Id. at 94; Def.'s Suppl. Mem., Ex. B.) The Webbs' counsel protested. (Johnson Dep. at 94.)

That scenario repeated following day, August 25, 2010. Counsel in the Jacobson case took Ms. Fruehling's deposition in the morning, and the Webbs' counsel, who was present for the morning session, deposed her beginning at 1 p.m. (Fruehling Dep. at 1.) At 4:24 p.m., CBS's counsel terminated the deposition. (Id. at 141-42.) CBS complains that the Webbs' counsel questioned Ms. Fruehling about matters unrelated to the Webbs' claims, including asking "inappropriate and bizarre questions," and questions about the Jacobson documents. (Def.'s Suppl. Mem. at 4-5.)

The Webbs' counsel, however, no longer had the Jacobson documents, only his notes about them. Sometime before Ms. Fruehling's deposition, according to the Webbs' counsel, he left his briefcase at Ms. Zellner's office, and his "file ha[d] been riffled." (Fruehling Dep. at 129.) The Webbs claim that the documents were "purloined" from their counsel. (Pls.' Supp. Mot. ¶ 20.) On August 23, CBS's counsel sent a letter to the Webbs' counsel stating that Ms. Zellner "has taken possession from you of the confidential materials that were inadvertently provided to you." (Def.'s Mem. Ex. D.)

On August 27, 2010, the day for Mr. Ahern's deposition, the Webbs' counsel received a letter from Ms. Zellner stating that she would not make her conference room available to the Webbs' counsel for any further depositions and that all future discovery in the Jacobson case would be conducted separately from discovery in the Webbs' case. (Pls.' Mot. ¶¶ 9-10, Ex. 5.) CBS states that its counsel called the Webbs' counsel to confirm that Mr. Ahern's deposition would go forward in the Webbs' counsel's office that afternoon, presumably after counsel in the Jacobson case completed the morning session, but that the Webbs' counsel declined to proceed. (Def.'s Suppl. Mem. at 6-7.)*fn4

DISCUSSION

I. CBS's Motion for Protective Order

CBS requests a protective order pursuant to Federal Rules of Civil Procedure 30(d)(3) and 26(c)(1) terminating the depositions of Ms. Fowler, Mr. Johnson and Ms. Fruehling, and ordering that Mr. Ahern's deposition not proceed.*fn5 (Def.'s Suppl. Mem. at 7, Def.'s Reply at 2.) CBS argues, in essence, that the time the Webbs' counsel has already had to question them (Ms. Fowler, 2.5 hours; Mr. Johnson, 1 hour and 45 minutes; Ms. Fruehling, 3.5 hours: Mr. Puccinelli, 8.5 hours minus breaks), is more than sufficient for the limited issues of this case, especially considering the questioning by counsel in the Jacobson case. CBS contends that the Webbs' counsel's questioning veered off into strange and irrelevant topics. Specifically, CBS argues that the Webbs' counsel: 1) asked questions about matters beyond the scope of the District Judge's May 7, 2009 order; 2) asked questions about the Jacobson documents; and 3) asked "bizarre" and harassing questions.

The deposition transcript of Mr. Puccinelli confirms CBS's characterization. After questioning Mr. Puccinelli extensively about the decision to make the videotape and his involvement in it, the Webbs' counsel pursued a long line of questions about the editing and broadcasting process, including who decided to air the footage, how scripts and memoranda were created relating to the broadcast, how it came to be posted on the CBS website, and the public response to the broadcast. (Puccinelli Dep. at 231-32, 269-73, 278-80, 283-96, 298-302.) He also repeatedly questioned Mr. Puccinelli about his opinion of Amy Jacobson's physical appearance in her bathing suit. (Id. at 199-200 (asking if Mr. Puccinelli had ever commented that "Jacobson really looks hot" or "looks hot in a bathing suit"), 210, 252-53 (asking if he had ever commented "about Amy Jacobson showing a little too much breast at the poolside").)

Ms. Fowler's deposition took a similar course. The Webbs' counsel was present while counsel in the Jacobson case asked Ms. Fowler, former Vice-President and News Director at CBS, questions about the videotaping. (Fowler Dep. at 9, 49-69.) The Webbs' counsel then also questioned Ms. Fowler about the videotaping. (Id. at 222-23, 234-36, 272-78, 284-86.) However, the bulk of his questions related to the editing and broadcast of the videotape, including how the scripts were prepared and the response from viewers. (Id. at 199-203, 229-44.) He also asked Ms. Fowler questions about her family, whether she allows her daughters to wear bikinis, and whether she would object to her daughters being filmed in bikinis. (Id. at 218-20.) CBS's counsel objected to many of the questions, but he only occasionally instructed the witness to not to answer.*fn6 CBS eventually terminated the deposition after repeated questions about the Jacobson documents. (Id. at 303, 306-09.)

The Webbs' counsel asked similar questions of Mr. Johnson, a news anchor at CBS. The Webbs' counsel questioned him about his communications to other CBS staff about the video footage, where those communications were stored, and the transmission and editing of the videotape in the CBS studio. (Johnson Dep.at 4-31, 50-60, 70-72.) Subject to numerous objections from CBS counsel, the Webbs' counsel also inquired whether Mr. Johnson thinks Ms. Jacobson and Ms. Webb are attractive, whether he noticed their bathing suits in the video, and whether Craig Stebic was touching the "private parts" of the women in the video. (Id. at 60-67 (asking if Amy Jacobson is "a rather comely and attractive lady," and whether anyone had commented that she "looks good in that film," or "is pretty hot").) The Webbs' counsel also asked about some of the Jacobson documents. (Id. at 79-80.)

The Webbs' counsel asked Ms. Fruehling, Managing Editor at CBS, a number of questions about the decision to send Mr. Puccinelli to film around the Stebic home. (Fruehling Dep. at 76-81, 94-97.) He also questioned her about the editing and airing of the video on the CBS news and the website as well as the communications among CBS staff relating to the airing of the video. (Id. at7, 23-25, 74-75, 106, 124-35.) In addition, he attempted to question her about the content of the Jacobson documents related to the broadcast of the video. (Id. at 128-40.) Further, he asked Ms. Fruehling a series of questions about videotaping women with "wonderful tight bodies with nice bathing suits on," whether she or her daughters wear bikinis, and whether she would be comfortable being photographed in a bathing suit. (Id. at 72-75.) CBS's counsel terminated the deposition after the Webbs' counsel asked more questions about the Jacobson documents sent internally by staff at CBS. (Id. at 141-42.)

The scope of discovery is generally broad: any non-privileged matter that is relevant to any party's claim or defense and that is admissible evidence or reasonably calculated to lead to admissible evidence. Fed. R. Civ. P. 26(b)(1). But discovery is also limited by Federal Rule of Civil Procedure 26(b)(2)(C), which provides that a court must, on ...


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