United States District Court, M.D. Florida, Fort Myers Division
OMNIBUS DISCOVERY ORDER
MCCOY UNITED STATES MAGISTRATE JUDGE
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.
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
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).
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)).
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
Fed. R. Civ. P. 26 (b)(2)(C).
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.
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)).
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).
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
Defendants' Motion to Compel (Doc. 178)
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
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.
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.
Interrogatory No. 6
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 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).
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
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.).
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).
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
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.
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
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.
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
this finding is not undermined by Rule 33(d). The Rule
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;
(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).
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.
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.
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).
Interrogatory No. 7
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).
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
(Doc. 178-2 at 10).
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.
their part, Plaintiffs assert the same arguments for
Interrogatory No. 7 as Interrogatory No. 6. (Doc. 189 at
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).