United States District Court, D. South Carolina, Charleston Division
Susan A. Butler, Plaintiff,
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
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.
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.)
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. Defendants now seek leave to depose Keith
and Eldridge, which Butler opposes.
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).
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
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
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 ...