Wellin v. Wellin, s. 2:13-cv-1831-DCN

• Decision Date: 30 September 2016
• Docket Number: 2:13-cv-3595-DCN,Nos. 2:13-cv-1831-DCN,2:14-cv-4067-DCN,s. 2:13-cv-1831-DCN
• Citation: 211 F.Supp.3d 793
• Court: U.S. District Court — District of South Carolina
• Parties: Wendy WELLIN, as the Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2001, Plaintiff, v. Peter J. WELLIN, et. al., Defendants. Larry S. McDevitt, as Trustee of the Wellin Family 2009 Irrevocable Trust, Plaintiff, v. Peter J. Wellin, et. al., Defendants. Peter J. Wellin, et. al., Plaintiffs, v. Wendy Wellin, individually and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, Defendant.

211 F.Supp.3d 793

Wendy WELLIN, as the Special Administrator of the Estate of Keith S. Wellin and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2001, Plaintiff,
v.
Peter J. WELLIN, et. al., Defendants.

Larry S. McDevitt, as Trustee of the Wellin Family 2009 Irrevocable Trust, Plaintiff,
v.
Peter J. Wellin, et. al., Defendants.

Peter J. Wellin, et. al., Plaintiffs,
v.
Wendy Wellin, individually and as Trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2011, Defendant.

Nos. 2:13-cv-1831-DCN
2:13-cv-3595-DCN
2:14-cv-4067-DCN

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

Signed September 30, 2016

211 F.Supp.3d 797

Bryson M. Geer, Merritt G. Abney, Patrick Coleman Wooten, Robert H. Brunson, Nelson Mullins Riley and Scarborough, Charleston, SC, for Plaintiff.

Gedney M. Howe, III, James B. Hood, Molly Agnes Hood Craig, Robert H. Hood, Hood Law Firm, Charleston, SC, Gray Thomas Culbreath, John D. Hudson, Jr, John T. Lay, Lindsay Anne Joyner, Gallivan White and Boyd, John Fisher Beach, Ellis Lawhorne and Sims,

211 F.Supp.3d 798

Lyndey Ritz Zwingelberg, Adams and Reese, Columbia, SC, William G. Deschamps, IV, Leclercq Law Firm, Mt. Pleasant, SC, for Defendants.

ORDER

DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

The following matter is before the court on a Report and Recommendation ("R & R") by Special Master William L. Howard regarding non-party movant Dr. Ann Plum's ("Plum") motion for a protective order. ECF No. 370.¹ For the following reasons, the court adopts as modified and rejects in part the R & R, and grants in part and denies in part Plum's motion for a protective order.

I. BACKGROUND

Because the parties are well-acquainted with this litigation, the court will provide only a brief recitation of the underlying facts and focus on the matters at hand. The above-captioned actions each involve claims related to the estate plan of Keith Wellin ("Keith"). Keith's wife, Wendy Wellin ("Wendy"), in her capacity as special representative of Keith's estate and as trustee of the Keith S. Wellin Florida Revocable Living Trust u/a/d December 11, 2001, brings an action against Keith's children, Peter J. Wellin, Cynthia W. Plum and Marjorie W. King (collectively, the "Wellin Children"), alleging the Wellin Children cheated Keith out of his wealth in a number of ways. ECF No. 103, May 2014 Order 4–6. One of Wendy's more significant allegations is that the Wellin Children improperly orchestrated a 2009 transaction by which Keith transferred certain Berkshire Hathaway Class A common shares to the Wellin Family 2009 Irrevocable Trust (the "Irrevocable Trust"), and later used their positions as co-trustees of the Irrevocable Trust to liquidate and distribute the shares amongst themselves. Id. at 2–5. Larry McDevitt ("McDevitt"), in his capacity as trust protector of the Irrevocable Trust, has brought a separate action against the Wellin Children, alleging their liquidation of the trust assets frustrated the intent and purpose of the trust. Id. at 7. Finally, the Wellin Children have filed their own action against Wendy, in her individual capacity, alleging she was the one who took advantage of Keith, by isolating him and exerting undue influence over his estate planning decisions at a time when his mental and physical capacity was diminished. ECF No. 113 in Case No. 2:14–cv–4067–DCN, Wellin II Order 5, 6.

These three actions, Wellin v. Wellin, et. al. ("Wellin I "), No. 2:13–cv–01831–DCN, McDevitt v. Wellin, et. al. ("McDevitt "), No. 2:13–cv–03595–DCN, and Wellin, et. al. v. Wellin ("Wellin II "), No. 2:13–cv–4067–DCN, have been consolidated for the purposes of pretrial discovery. ECF No. 271. On February 17, 2015, this court appointed William L. Howard to serve as special master over all non-dispositive, pre-trial matters and motions in these cases, including those pending before this court at the time. ECF No. 270.

Plum is the daughter of Cynthia W. Plum (individually, "Ceth") and one of Keith's eight grandchildren. Though Plum is not a party to this litigation, she and Keith's other grandchildren (collectively, the "Wellin Grandchildren") are represented in this action by the law firm Duffy and Young of Charleston, South Carolina, and are contingent beneficiaries under the Irrevocable Trust. In connection with a previous discovery dispute between McDevitt and the Wellin Children, Plum and the

211 F.Supp.3d 799

other Wellin Grandchildren each signed virtually identical affidavits, wherein they expressed their support for the Wellin Children's actions and their view that McDevitt was not acting in the best interests of the Irrevocable Trust and its beneficiaries. ECF No. 306-2, Plum Aff. ¶ 6. These affidavits were filed by the Wellin Children to support their argument that McDevitt did not represent the true interests of the Irrevocable Trust's beneficiaries. Id.

On October 7, 2015, Wendy subpoenaed Plum to appear for a video deposition on October 29, 2015. ECF No. 370 at 3. During the course of Plum's deposition, she was asked various questions by opposing counsel about communications between herself and her attorneys, communications among her attorneys, her brother, her cousins, her mother, and her mother's attorney. R & R at 3. Plum's counsel objected to such questions, citing the attorney-client privilege, work-product privilege, or the protections offered by the joint-client and common interest doctrines. Id. On the basis of these objections and instructions from counsel, Plum declined to answer on numerous occasions. Id.

Following her deposition, Plum filed the instant motion for a protective order on November 12, 2015.² ECF No. 370. Plum argues that her communications with her attorneys were protected by the attorney-client privilege and the work-product privilege, her communications with the other Wellin Grandchildren were protected by the joint-client doctrine, and her communications with her mother and her mother's attorneys were protected by the common interest doctrine. Id. McDevitt and Wendy each filed a response on December 3, 2015. ECF Nos. 380, 381. Plum filed a reply on December 14, 2015. ECF No. 385.

The Special Master issued the R & R on March 8, 2016, recommending the court apply New York privilege law and find that the bulk of Plum's communications were protected by either the attorney-client privilege, work-product privilege, or the joint-client and common interest doctrines. R & R at 11–13, 22–24. Wendy and McDevitt filed objections to the R & R on April 4, 2016, ECF Nos. 430–32,³ and Plum filed a reply on April 21, 2016. ECF No. 440. The matter is now ripe for the court's review.⁴

II. STANDARDS

"The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense" by forbidding or limiting the scope of discovery. Fed. R. Civ. P. 26(c)(1). "The scope and conduct of discovery are within the sound discretion of the district court." Columbus–Am. Discovery Grp. v. Atl. Mut. Ins. Co. , 56 F.3d 556, 568 n.16 (4th Cir. 1995) (citing Erdmann v. Preferred Research, Inc. of Ga. , 852 F.2d 788, 792 (4th Cir. 1988) ); see also U.S. ex rel. Becker v. Westinghouse Savannah River Co. , 305 F.3d 284, 290 (4th Cir. 2002) (stating that district courts are afforded "substantial discretion...in managing discovery").

211 F.Supp.3d 800

"The party moving for a protective order bears the burden of establishing good cause." Webb v. Green Tree Servicing LLC , 283 F.R.D. 276, 278 (D. Md. 2012). "Normally, in determining good cause, a court will balance the interest of a party in obtaining the information versus the interest of his opponent in keeping the information confidential or in not requiring its production." UAI Tech., Inc. v. Valutech, Inc. , 122 F.R.D. 188, 191 (M.D.N.C. 1988). In other words, "the Court must weigh the need for the information versus the harm in producing it." A Helping Hand, LLC v. Baltimore Cty., Md. , 295 F.Supp.2d 585, 592 (D. Md. 2003) (internal quotation marks omitted). "The standard for issuance of a protective order is high." Nix v. Holbrook , 5:13–cv–02173, 2015 WL 631155, at *2 (D.S.C. Feb. 13, 2015) (citing Minter v. Wells Fargo Bank, N.A. , 258 F.R.D. 118, 125 (D. Md. 2009) ). However, courts are afforded broad discretion "to decide when a protective order is appropriate and what degree of protection is required." Seattle Times Co. v. Rhinehart , 467 U.S. 20, 36, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).

Local Rule 30.04(C) provides that "[c]ounsel shall not direct or request that a witness not answer a question, unless that counsel has objected to the question on the ground that the answer is protected by a privilege.... Counsel directing that a witness not answer a question on those grounds or allowing their clients to refuse to answer a question on those grounds shall move the court for a protective order under Fed. R. Civ. P. 26(c) or 30(d)(3) within seven (7) days of the suspension or termination of the deposition." "When a party withholds information otherwise...