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Federal Trade Commission v. Vylah Tec LLC

United States District Court, M.D. Florida, Fort Myers Division

August 2, 2018

FEDERAL TRADE COMMISSION and STATE OF FLORIDA, Plaintiffs,
v.
VYLAH TEC LLC, EXPRESS TECH HELP LLC, TECH CREW SUPPORT LLC, ANGELO J. CUPO, ROBERT CUPO and DENNIS CUPO, Defendants.

          OMNIBUS DISCOVERY ORDER

          MAC R. MCCOY UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are Defendants' Motion to Compel Amended Interrogatory Responses from Plaintiffs (Doc. 178); Plaintiff Federal Trade Commission's (“FTC”) Motion for a Protective Order to Prevent Certain Topics Noticed by Defendants for a 30(b)(6) Deposition of the Federal Trade Commission and Their Request That the Agency Produce Documents at the Time of the Deposition (Doc. 179); and Plaintiff State of Florida's Motion for a Protective Order to Limit the Scope of Topics Noticed by Defendants for a 30(b)(6) Deposition and the Request for Documents at the Time of the Deposition (Doc. 186). The parties timely filed responses in opposition. These matters are ripe for review.

         I. Legal Standards

         The three motions sub judice concern whether certain discovery should be permitted. Fed R. Civ. P. 26(b)(1) governs the scope of permissible discovery. The rule states that:

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).

         As stated by the Rule, the scope of permissible, relevant discovery is determined by the parties' claims and defenses. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1368 n.37 (11th Cir. 1997). “Evidence is relevant if it has any tendency to make the existence of any fact or consequence more or less probable than it would be without the evidence.” Gonzalez v. ETourandTravel, Inc., No. 6:13-cv-827-Orl-36TBS, 2014 WL 1250034, at *2 (M.D. Fla. Mar. 26, 2014) (citing United States v. Capers, 708 F.3d 1286, 1308 (11th Cir. 2013)).

         In addition to the requirements of Rule 26(b)(1), Rule 26(b)(2)(C) requires the Court to limit the frequency or extent of discovery if:

(i) 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; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

Fed. R. Civ. P. 26 (b)(2)(C).

         If a party fails to make a disclosure or fails to provide information in response to a discovery request, a party may file a motion to compel discovery pursuant to Fed.R.Civ.P. 37(a). Rulings on motions to compel discovery under Rule 37(a) are committed to the sound discretion of the trial court. See NetJets Aviation, Inc. v. Peter Sleiman Dev. Grp., LLC, No. 3:10-cv-483-J-32MCR, 2011 WL 6780879, at *2 (M.D. Fla. Dec. 27, 2011) (citing Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984)). The proponent of a motion to compel discovery bears the initial burden of proving that the information sought is relevant. Bright v. Frix, No. 8:12-cv-1163-T-35MAP, 2016 WL 1011441, at *1 (M.D. Fla. Jan. 22, 2016).

         Conversely, any “party or any person from whom discovery is sought may move for a protective order, ” and the Court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .” Fed.R.Civ.P. 26(c)(1). “The party seeking a protective order has the burden to demonstrate good cause, and must make ‘a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements' supporting the need for a protective order.” Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429-30 (M.D. Fla. 2005) (citing U.S. v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978)). The decision to enter a protective order, however, is within the Court's discretion and does not depend on a legal privilege. Id. at 429 (citing Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1548 (11th Cir. 1985)).

         Additionally, with regard to depositions of governmental agencies, Fed.R.Civ.P. 30(b)(6) states “[i]n its notice . . ., a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination.” Fed.R.Civ.P. 30(d)(3)(B) allows for depositions to be limited under Fed.R.Civ.P. 26(c).

         Applying the standards and principles discussed above, the Court addresses the merits of the parties' outstanding discovery disputes below. In doing so, the Court first addresses Defendants' Motion to Compel (Doc. 178). Next, the Court discusses Plaintiffs' Motions for a Protective Order (Docs. 179, 186) together because the Motions are virtually identical.

         II. Defendants' Motion to Compel (Doc. 178)

         Defendants filed a Motion to Compel (Doc. 178) seeking amended interrogatory responses from Plaintiffs to Interrogatory Nos. 6, 7, 12, 14, and 15 of its First Set of Interrogatories (Doc. 178-1). The Court addresses these interrogatories in turn below. Before doing so, however, the Court addresses two general issues that are not specifically directed at the five interrogatories.

         A. Miscellaneous Issues

         First, Plaintiffs contend that Defendants' counsel failed to meet and confer regarding these interrogatories prior to filing their Motion. (Doc. 189 at 2). The Court finds this allegation troubling. In general, the Court requires parties to comply strictly with M.D. Fla. R. 3.01(g) before filing any motion with the Court. Even so, it is clear that the parties continue to disagree regarding the specific issues raised here. The Court declines to address Defendants' noncompliance at this time. Going forward, however, the Court admonishes the parties that failure to comply fully with Local Rule 3.01(g) may result in the summary denial of the offending motion and/or the imposition of sanctions.

         Second, Defendants object to Plaintiffs' list of “General Objections” from their responses to Defendants' Interrogatories. (Doc. 178 at 3-4). Defendants argue that Plaintiffs had two options in responding to their interrogatories, answer or object. (Id. at 4 (citations omitted)). To the extent that Plaintiffs have not done so, Defendants argue that Plaintiffs' General Objections should be ignored. (Id. at 3-4). The Court need not resolve this issue at this time because Plaintiffs asserted specific objections to the interrogatories at issue here. The Court addresses Plaintiffs' specific objections below.

         B. Interrogatory No. 6

         Defendants' Interrogatory No. 6 states: “[i]dentify any customers of the Defendants you have communicated with in connection with the facts alleged in your Complaint and describe each communication.” (Doc. 178-1 at 8).

         Plaintiffs' response states:

Plaintiffs object to this request to the extent that it is overbroad and unduly burdensome because it imposes an obligation greater than those set forth in the Federal Rules of Civil Procedure. Plaintiffs further object to the extent that this request calls for documents protected from disclosure by the deliberative process privilege, attorney work product doctrine, or any other applicable privilege.
Notwithstanding Plaintiffs' objection, Plaintiffs direct Defendants to Volume I, Plaintiffs' Exhibits 16-25 and 28-31, which are in the possession of Defendants. Additionally, identifying information about customers was provided to Defendants in Plaintiffs' Initial Disclosures, which were served August 4, 2017.

(Doc. 178-2 at 10).

         Here, Defendants argue that, because Plaintiffs designated prior Exhibits in which responsive information was provided, Plaintiffs answered the interrogatory and, therefore, waived any objections. (Doc 178 at 5-6). Defendants further argue that Interrogatory No. 6 “does not impose any overbroad or unduly burdensome obligation greater than those set forth in the federal rules.” (Id. at 6). Finally, Defendants argue that basic facts are discoverable. (Id.). As a result, Defendants argue that they are entitled to this factual information notwithstanding any privilege objections Plaintiffs may assert. (See id.).

         For their part, Plaintiffs first state that they have supplemented their discovery responses by providing letter and email communications. (Doc. 189 at 5). Additionally, Plaintiffs state that they have updated their discovery responses by providing a list of additional employees who were contacted. (Id.).

         Plaintiffs further argue that “[a]lthough Defendants have access to the identities of the consumers and employees who have been contacted, it appears they are also seeking a more substantive description of the communications.” (Id.). On this point, “Plaintiffs object to producing their work product.” (Id.). Specifically, Plaintiffs object to producing their interview notes from conversations with these individuals because “[t]he information sought would involve disclosing the thought process of the attorney conducting the interview and what information was important in developing Plaintiffs' case.” (Id.). Plaintiffs argue that “[t]his is core work product” and that “Defendants are unable to establish the requisite need for Plaintiffs' interview notes because they are capable of conducting their own interviews with the consumers and employees to develop the facts of the case.” (Id. at 5-6). Plaintiffs argue that “[t]he initial disclosures and the documents productions, including Defendants' business records, provide the necessary information to contact these individuals on their own.” (Id. at 6).

         As an initial matter, the Court notes that Plaintiffs expressly state that they have supplemented their responses. (Id. at 5). As a result, it is possible that Plaintiffs' supplementations have resolved or narrowed the present discovery dispute as to Interrogatory No. 6. Nevertheless, no party has filed a notice or other filing indicating that this issue has been fully resolved. The Court, therefore, addresses the specific issues raised by the parties below.

         First, although Defendants argue that that Plaintiffs waived any objections to their discovery responses by designating certain materials in response to the interrogatory, the Court declines to find that waiver occurred here. On this point, Defendants are correct that that “[i]f an objection to a discovery request is raised, and then the question is answered ‘subject to' or ‘without waiving' the objection, this court is reluctant to sustain the objection.” Sewell v. D'Alessandro & Woodyard, Inc., No. 2:07-CV-343-FTM-29, 2011 WL 1232347, at *1 (M.D. Fla. Mar. 30, 2011) (citing Mann v. Island Resorts Dev., Inc., No. 3:08CV297/RS/EMT, 2009 WL 6409113, at *2-3 (N.D. Fla. Feb. 27, 2009)). Even so, what Plaintiffs did in responding to Defendants' request appears to be consistent with a scenario outlined in the Court's Handbook on Civil Discovery Practice.

         The Civil Discovery Handbook contains a specific section for answering objectionable interrogatories. See Middle District Discovery (2015) at IV.C.6, p. at 18. The Handbook states:

If any interrogatory is objectionable because of overbreadth, the responding party, although objecting, must answer the interrogatory to the extent that the interrogatory is not overbroad. In other words, an objection for overbreadth does not relieve the duty to respond to an extent that is not overbroad, while a party awaits a judicial determination regarding the objection.

Id. Here, Plaintiffs followed this procedure by objecting on overbreadth but also providing a response to Defendants' discovery request. (Doc. 178-2 at 10). Because the Court finds the Handbook highly persuasive on civil discovery issues, the Court declines to find a waiver by Plaintiffs on this ground.

         Notwithstanding this finding, however, the Court notes that Fed.R.Civ.P. 33(b)(3) provides that “[e]ach interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Here, the Court finds that Plaintiffs failed to comply fully with Rule 33(b)(3) because Plaintiffs only directed Defendants to certain designated materials as being responsive to the Interrogatory. (See Doc. 178-2 at 10). Plaintiffs did not separately and fully state an answer to this question.

         Furthermore, this finding is not undermined by Rule 33(d). The Rule provides:

If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:
(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and
(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

Fed. R. Civ. P. 33(d).

         Plaintiffs made no argument that their answer was satisfactory under Rule 33(d). Moreover, Plaintiffs are in a far better position to “[i]dentify any customers of the Defendants you have communicated with in connection with the facts alleged in your Complaint and describe each communication” than Defendants. (See Doc. 178-1 at 8). The Court finds, therefore, that a separate and complete answer by Plaintiffs is warranted here.

         To be clear, the Court is not directing Plaintiffs to produce documents that are privileged or work product. (See Doc. 189 at 5). Instead, the Court is requiring Plaintiffs to comply with Rule 33(b)(3) by separately and fully answering the Interrogatory with responsive, non-privileged information to which no objection has been raised. Moreover, to the extent that it can be argued that merely providing a description of their communications with Defendants' customers threatens to invade the work product protection, Plaintiffs have not expressly made such an argument. The Court, therefore, declines to address it here.

         Accordingly, the Court grants Defendants' Motion as to Interrogatory No. 6. Plaintiffs must serve an amended response to Interrogatory No. 6 separately and fully in writing under oath within fourteen (14) days from the date of this Order. See Fed. R. Civ. P. 33(b)(3).

         C. Interrogatory No. 7

         Defendants' Interrogatory No. 7 states: “[i]dentify any employees, former or current, of the Defendants you have communicated with in connection with the facts alleged in your Complaint and describe each communication.” (Doc. 178-1 at 8).

         Plaintiffs' response states:

In connection with the facts alleged in Plaintiffs' complaint, Plaintiffs have communicated with Matt Luongo in connection with his employment with Vylah Tec LLC, as described in his declaration identified as PX 15. Identifying information about Mr. Luongo was provided to Defendants in Plaintiffs' Initial Disclosures, which were served August 4, 2017.

(Doc. 178-2 at 10).

         Defendants argue that “[s]worn deposition testimony shows that the above answer is woefully incomplete.” (Doc. 178 at 7). In support, Defendants cite deposition testimony showing that two former employees other than Mr. Luongo were contacted by Plaintiffs. (Id.). As a result, Defendants argue that Plaintiffs should be required to amend their response. (Id.).

         For their part, Plaintiffs assert the same arguments for Interrogatory No. 7 as Interrogatory No. 6. (Doc. 189 at 5-6).

         As with Interrogatory No. 6, Plaintiffs expressly state that they have supplemented their responses. As a result, it is possible that Plaintiffs' supplementations have resolved or narrowed the present discovery dispute as to Interrogatory No. 7. Nevertheless, based on the evidence cited by Defendants, it appears that Plaintiffs' answers are potentially incomplete. As a result, the Court will require Plaintiffs to serve an amended response to Interrogatory No. 7 separately and fully in writing under oath within fourteen (14) days from the date of this Order. See Fed. R. Civ. P. 33(b)(3).

         D. ...


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