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Crom, LLC v. Preload, LLC

United States District Court, N.D. Florida, Gainesville Division

June 2, 2017

CROM, LLC, Plaintiff,


          GARY R. JONES United States Magistrate Judge

         On June 1, 2017, the Court conducted a telephonic hearing to address Defendants Preload, LLC and Phuong Bacon's Motion to Compel, ECF No. 44. For the reasons discussed at the hearing, which are fully incorporated into this order, and as summarized below, Defendants' motion to compel is granted in part and denied in part.


         Phuong Bacon (“Mrs. Bacon”) previously worked for Crom LLC (“Crom”) as an intern in Crom's Gainesville, Florida office, and later as a full-time staff engineer. When she was initially hired as an intern in 2007, Mrs. Bacon signed a three-year noncompete agreement with no geographical restrictions. In March 2016, Mrs. Bacon resigned from Crom and joined Preload, LLC (“Preload”), one of Crom's competitors in the pre-stressed concrete storage tank industry. Plaintiff alleges that before Mrs. Bacon resigned she unlawfully downloaded Crom's trade secrets and proprietary data and thereafter either provided them to Preload or utilized them in her new job at Preload. Plaintiff brings various claims against Defendants including, but not limited to breach of Mrs. Bacon's non-compete agreement, tortious interference by Preload, and unfair competition.

         The discovery deadline in this case was May 31, 2017. (ECF No. 43.) On May 12, 2017, Defendants filed the instant motion to compel. (ECF No. 45.) Defendant argues in the motion to compel that Crom failed to produce a privilege log as required by Fed.R.Civ.P. 26(b)(5). Further, Defendants point to eight categories of issues pertaining to deficiencies in specific responses by Crom. Defendants request the Court to enter an order compelling Crom to provide a privilege log and responsive answers and document to each interrogatory and request for production. Finally, Defendants also seek an award of reasonable expenses incurred in making their motion to compel under Fed.R.Civ.P. 37(a)(5).

         A. Privilege Log

         Crom objected to a number of Defendants' requests based on the attorney-client privilege and the work product doctrine. At the time Defendants filed the instant motion to compel, however, Crom had not provided a privilege log as required by Fed.R.Civ.P. 26(b)(5). Shortly after Defendants filed the motion Crom provided a privilege log, which only contained two entries-one pertaining to an in-house counsel memo prepared in anticipation of litigation and one pertaining to the redaction of employee names on noncompete agreements that were also produced. Crom did not include communications between counsel and Crom on their privilege log, nor did Crom include communications between a prior law firm and Crom. Crom argues that any communications between counsel and Crom constitutes work product or are protected by the attorney-client privilege.

         To the extent Crom's general claims of attorney-client privilege and work product were raised in response to Defendants' discovery requests, those objections are not appropriate and are stricken. General objections such as these do not inform opposing counsel or the Court as to what documents are being withheld, who created the documents, or to whom the documents were disseminated. See Fed. R. Civ. P. 26(b)(5) (a party withholding information on the basis of privilege must “describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim”); MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 584 (S.D. Fla. 2013) (“Federal courts in Florida sitting in diversity . . . have rejected blanket claims of attorney-client privilege and have required that specific detail as to the content of documents and their authors and recipients be provided in order to permit meaningful judicial review of the asserted privilege.”); CSX Transp., Inc. v. Admiral Ins. Co., No. 93-132-CIV-J-10, 1995 WL 855421, at *3 (M.D. Fla. July 20, 1995) (conclusory statements pertaining to the attorney-client privilege and attorney work product are insufficient). This information is necessary to determine whether those communications and documents are indeed privileged or constitute attorney work product.

         Accordingly, Defendant's motion is granted to the extent it seeks an order compelling Crom to produce a privilege log. Crom shall have ten (10) days to provide Defendants with an updated privilege log that lists all documents being withheld, including the date created, the type of communication, the person who generated the document, to whom the document was disseminated, and a general description of the subject matter of the communication sufficient to identify its general nature.

         B. Deficiencies in Specific Responses

         1. Interrogatories and Requests Relating to Crom's Corporate Structure

         Mrs. Bacon's interrogatories 1 and 2 and Preload's request for production 4 seek information pertaining to entities that have an ownership interest in Crom, entities and organizations in which Crom has an ownership share or serves as a parent corporation, and organizational charts or documents relating to Crom's ownership and corporate structure. Crom says information regarding its own corporate structure already was disclosed in its Rule 26 disclosures as well as in a prior motion to dismiss. To the extent Defendants seek information pertaining to ownership interest or other entities, Crom argues that information is not relevant because there are no subsidiaries or affiliates involved in this case. Defendants contend, however, that information pertaining to ownership interests and ownership shares is relevant because the noncompete agreement Mrs. Bacon signed specifically extends to Crom's subsidiaries and affiliates.

         Crom's relevancy objections are sustained. Although Crom's corporate structure is not a trade secret, it is not within the scope of discovery because it is not relevant to the claims or defenses in this case. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case”). Moreover, Crom already has produced its corporate disclosure statement in accordance with Fed.R.Civ.P. 7.1. (ECF No. 16.) Furthermore, despite the noncompete prohibiting disclosure of confidential information pertaining to Crom as well as any of its subsidiaries or affiliates, there are no subsidiaries or affiliates involved in this case. Accordingly, Defendants' motion to compel with regard to these requests is denied.

         2. Production of Documents Evidencing or Relating to ...

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