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Butler v. King

United States District Court, D. South Carolina, Charleston Division

September 17, 2019

Susan A. Butler, Plaintiff,
v.
Carl L. King, J.D.; Megan W. Dunham, J.D.; and Culp Elliott & Carpenter, PLLC, Defendants.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants' motion for leave to depose Angela Keith and Ann Eldridge. (Dkt. No. 25.) For the reasons set forth below, the motion is denied.

         I. Background

         In September 2018, Plaintiff Susan Butler initiated this professional malpractice and breach of contract action. She alleges that in September 2015, Defendants-a North Carolina law firm and its two attorneys-negligently counseled her and drafted the premarital agreement that resulted in Butler's now former husband obtaining a substantial amount of financial benefit from their divorce. (Dkt. No. 1.)

         In January 2019, Butler was indicted by a federal grand jury on one count of conspiracy to commit healthcare fraud and one count of healthcare fraud, allegedly arising out of Medicaid billing by her company, the South Carolina Early Autism Project ("SCEAP"). (3:19-cr-0088-JFA.) Discovery in the prosecution is ongoing. (Id. at Dkt. No. 29.) The U.S. Attorney's Office also prosecuted Angela Keith, Butler's colleague at SCEAP, and Ann Eldridge, Butler's co-owner of SCEAP. (3:19-cr-0091-PJG.) Keith and Eldridge each pleaded guilty to making false statements in relation to Medicaid benefits (id. at Dkt. Nos. 17, 18), were sentenced to terms of imprisonment and are currently incarcerated at Federal Prison Camp Alderson in West Virginia.[1] Defendants now seek leave to depose Keith and Eldridge, which Butler opposes.

         II. Legal Standard

         Rule 30 of the Federal Rules of Civil Procedure provides that a party "must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2) if the deponent is confined in prison." Fed.R.Civ.P. 30(a)(2)(B). Rule 26(b)(1) provides that "parties may obtain discovery regarding any nonpriviledged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]" Fed.R.Civ.P. 26(b)(1). For this, the court considers "the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Id. Rule 26(b)(2) then limits this broad scope of discovery, providing that "the court must limit the frequency or extent of discovery [ ] if it determines that: the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed.R.Civ.P. 26(b)(2)(C). "Courts have broad discretion in [their] resolution of discovery problems arising in cases before" them. Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., 334 F.3d 390, 402 (4th Cir. 2003).

         III. Discussion

         Defendants state that at Butler's August 20, 2019 deposition, it "became apparent" that she alleges Defendant Megan Dunham did not warn her against an alimony provision that entitled Butler's then-husband to $250, 000 if they divorced within two years. (Dkt. No. 25 at 3.) Rather, as Defendants contend, Dunham "strongly discouraged" Butler from agreeing to the provision. (Id. at 3.) A review of Butler's actual testimony is required to determine if it revealed new information that may require additional discovery. Butler testified on defense counsel's questioning:

Q. [I]f Megan had done those things and said - said to you, you need to - you need to think this over, I suggest there are bad things that can happen and gave you advice and certain warnings in that regard, would you have listened to her?
A. If Megan had told me you owe him nothing, you should not give him anything, there is no opportunity cost, no.
Q. You would not have listened to her?
A. I would have listened to her. I wouldn't have - I wouldn't - I wouldn't have suggested that payment. She told me just the opposite. He's entitled to X, a large portion of your 40 IK. He's entitled to X amount of you - your financial wealth.
Q. Okay. So your testimony about this subject about the agreement and the payment is that Megan Dunham gave you ...

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