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7-10-2020
Ruby Tuesday ORDER ON PETITIONER’S MOTION FOR Ruby Tuesday ORDER ON PETITIONER’S MOTION FOR
PROTECTIVE ORDER PROTECTIVE ORDER
John J. Goger
Fulton County Superior Court Judge
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John J. Goger,
Ruby Tuesday ORDER ON PETITIONER’S MOTION FOR PROTECTIVE ORDER
, Georgia
Business Court Opinions 500 (2020)
https://readingroom.law.gsu.edu/businesscourt/500
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Fulton
County
Superior
Court
*“EFILED**QW
Date:
7/13/2020
12:00
AM
Cathelene
Robinson,
Clerk
IN
THE
SUPERIOR
COURT
OF
FULTON
COUNTY
BUSINESS
CASE
DIVISION
STATE
OF
GEORGIA
RUBY
TUESDAY,
INC.,
Plaintiff/Petitioner,
CIVIL
ACTION
NO.
2018CV304101
Vi
CEDE
&
CO.,
QUADRE
INVESTMENTS,
LLP,
LAWRENCE
N.
LEBOW,
Business
Case
Div.
4
JONATHAN
LEBOW,
MIRIAM
D.
ROTH,
POWELL
ANDERSON
CAPITAL
LP,
and
LELAND
WYKOFF,
Defendants/Respondents.
ORDER
ON
PETITIONER’S
MOTION
FOR
PROTECTIVE
ORDER
The
above
styled
action
is
before
the
Court
on
Petitioner
[Ruby
Tuesday,
Inc.]’s
O.C.G.A.
§9-11-26(c)
Motion
for
a
Protective
Order
to
Stop
Quadre
Investments
LP
from
Taking
NRD
Investor
Depositions
(“Motion”).
Having
considered
the
entire
record,
the
Court
finds
as
follows:
L
Applicable
Standard
With
respect
to
the
general
scope
of
discovery,
O.C.G.A.
§9-11-26(b)(1)
provides:
Parties
may
obtain
discovery
regarding
any
matter,
not
privileged,
which
is
relevant
to
the
subject
matter
involved
in
the
pending
action,
whether
it
relates to
the
claim
or
defense
of
the
party
seeking
discovery
or
to
the
claim
or
defense
of
any
other
party,
including
the
existence,
description,
nature,
custody,
condition,
and
location
of
any
books,
documents,
or
other
tangible
things
and
the
identity
and
location
of
persons
having
knowledge
of
any
discoverable
matter.
It
is
not
ground
for
objection
that
the
information
sought
will
be
inadmissible
at
the
trial
if
the
information
sought
appears
reasonably
calculated
to
lead
to
the
discovery
of
admissible
evidence...
(Emphasis
added).
“[I]n
the
discovery
context,
courts
should
and
ordinarily
do
interpret
‘relevant’
very
broadly
to
mean
any
matter
that
is
relevant
to
anything
that
is
or
may
become
an
issue
in
litigation.”
Bowden
v.
The
Med.
Ctr.,
Inc.,
297
Ga.
285,
291,
773
S.E.2d
692,
696
(2015)
(quoting
Oppenheimer
Fund,
Inc.
v.
Sanders,
437
U.S.
340,
351
(1978))
(internal
punctuation
omitted).
See
DeLoitte
Haskins
&
Sells
v.
Green,
187
Ga.
App.
376,
376,
370
S.E.2d
194,
195
(1988)
(“The
courts
of
this
State
have
long
recognized
the
overriding
policy
of
liberally
construing
the
application
of
the
discovery
law.
To
hold
otherwise
would
be
to
give
every
litigant
an
effective
veto
of
his
adversaries’
attempts
at
discovery”)
(citation
and
internal
punctuation
omitted).
However,
the
Court
must
“balance[]
the
right
of
a
party
to
obtain
discovery
and
the
right
of
individuals
to
be
protected
from
unduly
burdensome
or
oppressive
inquiries.”
In
re
Callaway,
212
Ga.
App.
500,
501,
442
S.E.2d
309,
310
(1994).
In
this
regard
O.C.G.A.
§9-11-26(c)
generally
governs
the
entry
of
protective
orders
and
authorizes
courts
to
“make
any
order
which
justice
requires
to
protect
a
party
or
person
from
annoyance,
embarrassment,
oppression,
or
undue
burden
or
expense.”
O.C.G.A.
§9-11-26(c).
“The
issuance
of
a
protective
order
is
a
recognition
of
the
fact
that
in
some
circumstances
the
interest
in
gathering
information
must
yield
to
the
interest
in
protecting
a
party.”
Bd.
of
Regents
of
Univ.
Sys.
of
Georgia
v.
Ambati
299
Ga.
App.
804,
811,
685
S.E.2d
719,
726
(2009)
(citation
omitted).
Nevertheless,
protective
orders
should
not
be
used
as
a
means
to
hinder
legitimate
discovery
and
the
burden
is
on
the
movant
to
show
“good
cause”
for
its
entry.
O.C.G.A.
§9-11-
26(c).
As
summarized
by
the
Court
of
Appeals
of
Georgia
in
Caldwell
v.
Church,
341
Ga.
App.
852,
802
S.E.2d
835
(2017):
“O.C.G.A.
§
9-11-26(c)
does
establish
a
general
statutory
basis
for
the
entry
of
protective
orders
limiting
or
curtailing
discovery
under
appropriate
circumstances,
provided such
limitations
do
not
have
the
effect
of
frustrating
and
preventing
legitimate
discovery.”
Christopher
v.
State
of
Ga.,
185 Ga.
App.
532,
533,
364
S.E.2d
905
(1988)
(citation
and
punctuation
omitted).
Such
protective
orders,
which
are
within
the
discretion
of
the
trial
judge,
“are
intended
to
be
protective—not
prohibitive—and,
until
such
time
as
the
court
is
satisfied
by
substantial
evidence
that
bad
faith
or
harassment
motivates
the
discoveror’s
[sic]
action,
the
court
should
not
intervene
to
limit
or
prohibit
the
scope
of
pretrial
discovery.”
Bullard
v.
Ewing,
158
Ga.
App.
287,
291,
279
S.E.2d
737
(1981)
Caldwell,
341
Ga.
App.
at
861
(no
error
in
denying
protective
orders
where
movants
failed
to
show
that
bad
faith
or
harassment
motivated
the
party
seeking
certain
depositions
or
what
specific
prejudice
might
result
from
the
depositions)
(emphasis
added).
See
Galbreath
v.
Braley,
318
Ga.
App.
111, 113,
733
S.E.2d
412,
414
(2012)
(“[P]rotective
orders
should
not
be
awarded
“when
the
effect
is
to
frustrate
and
prevent
legitimate
discovery’”)
(citing
Intl.
Svc.
Ins.
Co.
v.
Bowen,
130
Ga.
App.
140,
144,
202
S.E.2d
540
(1973));
Young
v.
Jones,
149
Ga.
App.
819,
824,
256
S.E.2d
58,
62
(1979)
(“Good
cause
for
the
issuance
of
a
protective
order
designed
to
frustrate
discovery
must
be
clearly
demonstrated”).
In
the
instant
Motion
Petitioner
Ruby
Tuesday,
Inc.
(“RTI”)
asks
the
Court
to
enter
a
protective
order
to
“stop
Respondent
Quadre
Investment,
L.P.
(“Quadre”)
from
seeking
duplicative
discovery
from
NRD
Partners
II,
L.P.’s
(“NRD’s”)
outside
investors.'”
Motion,
p.
1.
RTI
asserts
Quadre
has
already
filed
a
notice
of
deposition
of
one
investor
(referred
to
as
“Individual
A”)?
and
now
Quadre
has
contacted
RTI
to
coordinate
the
deposition
of
a
second
investor
(referred
to as
“Individual
B”).
RTI
asserts
the
deposition
of
Individual
B
would
be
'
According
to
RTI,
the
names
of
NRD’s
investors
and
their
representatives
have
been
designated
as
confidential
such
that
their
names
have
been
redacted
from
the
Motion.
;
In
its
response
brief,
Quadre
asserts
Individual
A
was
ultimately
deposed
via
videoconference,
without
issue,
over
the
course
of
a
couple
of
hours.
See
Respondent
Quadre
Investment,
L.P.’s
Response
Brief
in
Opposition
to
Petitioner’s
Motion
for
Protective
Order
(“Response
Brief”),
p.
5.
4
J
duplicative
of
certain
investor
related
discovery
that
has
already
been
produced
and
would
be
duplicative
of
Individual
A’s
deposition
testimony.
RTI
contends
Quadre
has
not
articulated
the
need
for
Individual
B’s
deposition
testimony
and
such
“third-party
investor
discovery
[i]s,
at
best,
a
duplicative
backstop”
to
the investor
related
discovery
that
has
already
been
produced.
Motion,
p.
3.
Respondent
Quadre,
in
turn,
recounts
the
parties’
ongoing
discovery
disputes,
instances
when
the
Court
has
had
to
order
RTI
and
its
affiliates
to
produce
relevant
discovery,
and
various
instances
when
documents
were
received
from
non-parties
that
should
have been
contained
within
RTI’s
prior
document
production
but
were
not.
Quadre
asserts
it
“must
be
permitted
to
depose
non-parties
who
have
first-hand
knowledge
directly
relevant
to
this
litigation.”
Quadre’s
Response
Brief,
p.
1.
Particularly
in
light
of
the
problems
with
RTI’s
production
to
date,
Quadre
asserts
it
should not
be
forced
to
rely
on
RTI’s
representations
alone,
but
rather
“third-party
discovery
is
crucial
to
ensure
[Quadre]
receives
all
relevant
evidence.”
Id.,
pp.
2-5.
Further,
“[t]o
demonstrate
that
[Quadre]
does
not
intend
to
act
in
bad
faith
or
harass
NRD
or
its
investor,
(Quadre]
has
voluntarily
offered
to
limit
the
deposition
of
NRD’s
investors
to
only
“Individual
B”...even
though
NRD
has
many
other
investors
with
relevant
information.”
Id.,
p.
5.
Having
considered
the
entire
record,
the
Court
finds
the
deposition
of
Individual
B
seeks
information
relevant
to
RTI’s
fair
value
and
“appears
reasonably
calculated
to
lead
to
the
discovery
of
admissible
evidence.”
O.C.G.A.
§9-11-26(b)(1).
Further,
given
the
prior
discovery
disputes
in
this
litigation
including delays
and
other
problems
with
production
and
given
that
Quadre
has
agreed
to
limit
the
depositions
of
NRD’s
investors
to
only
Individual
B,
the
Court
does
not
find
that
bad
faith
or
harassment
motivates
Quadre’s
actions
or
that
the
proposed
deposition
of
Individual
B
is
oppressive,
prejudicial
or
otherwise
unreasonable.
Caldwell,
341
Ga.
App.
at
861.
Accordingly,
RTI’s
Motion
is
hereby
DENIED.
4
The
parties
are
directed
to
coordinate
and
facilitate
the
deposition
of
Individual
B
within
thirty
(30)
days
of
this
order.
The
deposition
shall
take
place
via
videoconference
unless
Individual
B
and
all
affected
parties
consent
to
an
in-person
deposition.
Except
as
ordered
herein,
all
deadlines
in
the
Court’s
Third
Order
Amending
Case
Management
Deadlines
issued
on
June
5,
2020
remain
in
effect.
SO
ORDERED
this
10"
day
of
July,
2020.
/s/
John
J.
Goger
JOHN
J.
GOGER,
SENIOR
JUDGE
Fulton
County
Superior
Court
Business
Case
Division
Atlanta
Judicial
Circuit
Ruby
Tuesday,
Inc.
v.
Cede
&
Co.
et
al.
(2018CV304101)
Order
on
Petitioner’s
Motion
for
Protective
Order
Electronically
served
upon
registered
service
contacts
through
eFileGA
Attorneys
for
Plaintiff
Attorneys
for
Defendants
Stanford
G.
Wilson
Brent
D.
Wasser
ELARBEE,
THOMPSON,
SAPP
&
WILSON,
LLP
800
International
Tower
229
Peachtree
Street,
N.E.
Thomas
T.
Tate
R.
Matthew
Reeves
Tyler
A.
Dillard
ANDERSON,
TATE,
&
CARR,
P.C.
1960
Satellite
Boulevard,
Ste.
4000
Atlanta,
Georgia
30303
Tel:
(404)
659-6700
Fax:
(404)
222-9718
Frederic
A.
Cohen*
Aaron-Michael
Sapp*
Allison
R.
Grow*
CHENG
COHEN
LLC
363
W.
Erie
Street,
Suite
500
Chicago,
Illinois
60654
Tel:
(312)
243-1701
Counsel
for
Plaintiff
Ruby
Tuesday,
Inc.
and
Non-Party
NRD
Partners
II,
L.P.
Dututh,
Georgia
30097
Tel:
(770)
822-0900
Counsel
for
Powell
Anderson
Capital
LP
and
Quadre
Investments, LP,
Richard
K.
Strickland
Emily
R.
Hancock
BROWN
READDICK
BUMGARTNER
CARTER
STRICKLAND
&
WATKINS
LLP
5
Glynn
Avenue
(31520)
Post
Office
Box
220
Brunswick,
Georgia
31521
Tel:
(912)
264-8544
Fax:
(912)
264-9667
Counsel
for
Defendant
Cede
&
Co.
Leland
Wykoff
Post
Office
box
444
Pigeon
Forge,
Tennessee
37868
Defendant,
Pro Se
Jonathan
Lebow
4625
Forest
Ave.,
SE
Mercer
Island,
Washington
98040
jonathan.
Defendant,
Pro Se
Miriam
D.
Roth
4625
Forest
Ave.,
SE
Mercer
Island,
Washington
98040
Defendant,
Pro Se
Lawrence
Lebow
3748
Woodlane
Road
Gainesville,
Georgia
30506
Defendant,
Pro
Se
Ruby
Tuesday,
Inc.
v.
Cede
&
Co.
et
al.
(2018CV304101)
Order
on
Petitioner’s
Motion
for
Protective
Order
6
