United States District Court, M.D. Florida, Orlando Division
B. SMITH United States Magistrate Judge.
case comes before the Court without a hearing on the
following motions papers:
• Defendant Metropolitan Life Insurance Company's
Motion to Compel Production of Documents from Beachside Legal
Services, P.L.L.C. f/k/a Turner & Costa P.L. (Doc. 55);
• Non-Party's Objection and Response to Defendant
Metlife's Motion to Compel Production of Documents from
Beachside Legal Services, P.L.L.C. f/k/a Turner & Costa
P.L. (Doc. 59);
• Metlife's Motion to Overrule Non-Parties Beachside
Legal Services, P.L.L.C.'s and Scott A. Turner's
Objections to Metlife's Subpoena to Produce Documents,
Information or Objects in a Civil Action and Compel
Production of Documents from Leslie A. McElhinney, CPA, P.A.
(Doc. 60); and
• Non-Party's Response to Defendant Metlife's
Motion to Overrule Non-Parties Beachside Legal Services,
P.L.L.C.'s and Scott A. Turner's Objections to
Metlife's Subpoena to Produce Documents, Information or
Objects in a Civil Action and Compel Production of Documents
from Leslie A. McElhinney, CPA, P.A. (Doc. 61).
Lori Costa is a lawyer (Doc. 1, ¶ 6). She began working
for attorney Scott Turner in October 2007, and in 2010, she
became a partner in the firm, which at some point, changed
its name to Turner & Costa P.L. (Doc. 55-3 at 3, 5; Doc.
59-1, ¶ 9). In 2010, Costa began having issues with her
balance, speech, coordination, fatigue and weakness (Doc. 2,
¶ 7). By 2015 she was experiencing cognitive problems
including processing errors, difficulty concentrating and
dizziness (Id., ¶ 8). Costa's treating
neurologist opined that her symptoms suggested Multiple
Sclerosis (Id., ¶ 10). Costa claims that her
condition forced her to stop practicing law in September 2015
(Id., ¶ 11). Costa has disability insurance
through Metlife and in October 2015, she made a claim for
benefits under the policy (Id., ¶¶ 3, 13).
April 2016, Turner sent an email to all firm employees
informing them that Costa would not be returning to work and
that the name of the firm would be changing (Doc. 55-4). He
also submitted Articles of Amendment to the Florida Division
of Corporations to document the change in the firm name from
Turner & Costa, P.L. to Beachside Legal Services P.L.L.C.
(Doc. 55-5). The Articles of Amendment show the removal of
Costa as a manager of the company (Id.).
denied coverage and in March 2017, Costa filed this lawsuit
in state court alleging breach of the policy and violation of
Fla. Stat. § 624.155 (Doc. 2). Metlife removed the case
to this Court based upon diversity jurisdiction (Doc. 1), and
filed an answer denying liability (Doc. 24). The only
affirmative defense Metlife has pled is failure to state a
cause of action for which relief can be granted (Doc. 24).
her August 2017 deposition, Costa was asked about the
financial performance of Turner & Costa and her own
compensation while working at the firm (Doc. 55-3). Costa
testified that in 2012, she received 21.77 percent of the
firm's profits; in 2013, she received 19.77 percent of
the profits; and in 2014, despite billing 2, 600 hours, she
received 1.5 percent of the firm profits (Id., at
10-11, 14). Costa explained that the 2014 decrease in her
compensation was due to Turner's need for money to settle
an Internal Revenue Service claim (Id., at 13).
Based on this information, Metlife suggests Costa had a
non-medical reason for leaving Turner & Costa, i.e., that
the firm was having financial problems (Doc. 60 at 4-5).
October 2017, Metlife subpoenaed documents concerning Costa,
Turner & Costa, and other entities from Leslie A.
McElhinney, CPA, P.A. (Doc. 60-1). Apparently, McElhinney has
provided accounting services to Turner & Costa and
Beachside Legal (Doc. 61). The Court is unaware of any
objection by McElhinney to the subpoena. However, Beachside
Legal and Turner did file a timely objection (Doc. 60-3).
January 2018, Metlife subpoenaed Beachside Legal for a
deposition duces tecum (Doc. 55 at 3). Beachside
Legal responded by producing 28 pages of information and
otherwise objected to the subpoena (Id.). The day
before the deposition was scheduled to occur, it was
cancelled by Metlife (Doc. 59 at 2).
Metlife seeks an order compelling Beachside Legal to produce
certain documents and information, and an order overruling
Beachside Legal and Turner's objections to the subpoena
served on McElhinney (Docs. 55, 60). Beachside Legal and
Turner oppose both motions (Docs. 59, 61). McElhinney has not
appeared in the case.
Rule of Civil Procedure 45 provides that parties may issue
subpoenas commanding non-parties to, inter alia,
produce documents, and appear and testify at depositions. The
scope of discovery under Rule 45 is the same as the scope of
discovery under Fed.R.Civ.P. 26. Baptiste v. Ctrs.,
Inc., No. 5:13-civ-71-Oc-22PRL, 2013 WL 3196758, at *2
(M.D. Fla. June 21, 2013); see also Chambers v. Sygma
Network, Inc., No. 6:12-cv-1802-Orl-37TBS, 2013 WL
1775046, at *3 (M.D. Fla. April 25, 2013) (quoting Rule
26(b)(1) and applying to a Rule 45 subpoena dispute);
Madeline LLC v. Street, No. 09-80705-MC, 2009 WL
1563526, at *1 (S.D. Fla. June 3, 2009) ("Rule 45 must
be read in conjunction with [Rule] 26, because the latter
rule 'clearly defines the scope of discovery for all
discovery devices.'") (citations omitted). Under
Rule 26, unless the Court enters an order limiting discovery,
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, considering the
importance of the issues at stake in the action, 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. Information within this scope of discovery need not
be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).
motion to compel, the party desiring to enforce a subpoena
bears the burden of demonstrating that the information it
seeks is relevant. Fadalla v. Life Auto. Prods.,
Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007); Connectus LLC
v. Ampush Media, Inc., No. 8:16-mc-00159-VMC-JSS, 2017
WL 385758, *2 (M.D. Fla Jan. 27, 2017). Rule 26's
requirement that discovery be relevant “‘signals
to the court that it has the authority to confine discovery
to the claims and defenses asserted in the pleadings, and
signals to the parties that they have no entitlement to
discovery to develop new claims or defenses that are not
already identified in the pleadings.'” Builders
Flooring Connection, LLC v. Brown Chambless Architects,
No. 2:11CV373-MHT, 2014 WL 1765102, at *1 (M.D. Ala. May 1,
2014) (quoting GAP Report of Advisory Committee to 2000
amendments to Rule 26). “As the Advisory Committee