United States District Court, M.D. Florida, Ocala Division
R. Lammens United States Magistrate Judge
fraud action, Plaintiff has filed a motion to compel
Defendant's response to his outstanding discovery
requests. (Doc. 30). After Plaintiff filed his motion,
Defendant filed a cross motion for a protective order. (Doc.
35). For the following reasons, Plaintiffs motion is due to
be GRANTED and Defendant's motion is due to be DENIED.
action arises out of a dispute over funds that were in a pay
on death account belonging to decedent, Rose Sorrentino
Cotrone. Plaintiff is decedent's brother and the
beneficiary of the funds in decedent's pay on death
account. Defendant is decedent's husband and her power of
attorney. Plaintiff claims that Defendant violated the terms
of the power of attorney and misappropriated the funds in
decedent's account. Plaintiff is now seeking to recover
$274, 000 from Defendant. (Doc. 1). Defendant claims that as
the decedent's power of attorney, he had a right to
transfer the funds from the account. (Doc. 10).
regarding the decedent's account have already been
disclosed. Based on information revealed in those documents,
Plaintiff requested that Defendant produce copies of the
executed wire transfer authorization form authorizing the
transfer of funds from the decedent's account, copies of
bank statements from April 2017 through July 2019 for Bank of
America accounts xxxxxxxxx2947800 and xxxxxxxxxxxx2852, as
well as copies of cancelled checks from April 2017 through
July 2019, checks deposited from April 2017 through July
2019, and beneficiary designations for those two accounts.
Defendant is the owner of the two Bank of America accounts.
Plaintiff asserts that Defendant’s daughter is the
named power of attorney and beneficiary on both accounts.
objects to providing the requested information and argues
that the information is irrelevant to the issues in the case.
(Doc. 35). After Defendant failed to produce the documents,
Plaintiff filed a motion to compel Defendant’s response
to his outstanding discovery requests. (Doc. 30). Shortly
after, Defendant filed a cross motion for a protective order.
to compel discovery under Rule 37(a) of the Federal Rules of
Civil Procedure are committed to the sound discretion of the
trial court. See Commercial Union Ins. Co. v.
Westrope, 730 F.2d 729, 731 (11th Cir. 1984). “The
overall purpose of discovery under the Federal Rules is to
require the disclosure of all relevant information so that
the ultimate resolution of disputed issues in any civil
action may be based on a full and accurate understanding of
the true facts, and therefore embody a fair and just
result.” Oliver v. City of Orlando, No.
6:06-cv-1671, 2007 WL 3232227, at *2 (M.D. Fla. Oct. 31,
2007). The moving party “bears the initial burden of
proving that the information sought is relevant.”
Douglas v. Kohl’s Dep’t Stores, Inc., No.
6:15-cv-1185, 2016 WL 1637277, at *2 (M.D. Fla. Apr. 25,
2016) (quoting Moore v. Lender Processing Servs. Inc.,
No. 3:12-cv-205, 2013 WL 2447948, at *2 (M.D. Fla. June
5, 2013)). Relevancy is based on the “tendency to make
a fact more or less probable than it would be without the
evidence, and the fact is of consequence in determining the
action.” Garcia v. Padilla, No. 2:15-cv-735,
2016 WL 881143, at *2 (M.D. Fla. March 8, 2016).
Federal Rule of Civil Procedure 26(c)(1), a party can obtain,
upon a showing of “good cause, ” a protective
order “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”
A protective order should be entered “only when the
movant makes a particularized showing of ‘good
cause’ and specific demonstration of fact by affidavit
or testimony of a witness with personal knowledge, of the
specific harm that would result from disclosure or loss of
confidentiality; generalities, conclusory statements and
unsupported contentions do not suffice.” E.E.O.C.
v. v. DiMare Ruskin, Inc., No. 2:11-cv-158, 2012 WL
12067868, at *3 (M.D. Fla. Feb. 15, 2012). Factors to
consider in determining if good cause exists to grant a
protective order include “ the severity and the
likelihood of the perceived harm;  the precision with
which the order is drawn;  the availability of a less
onerous alternative; and  the duration of the
order.” Corcel Corp. v. Ferguson Enters.,
Inc., 291 F.R.D. 680, 681 (S.D. Fla. 2013) (citing
In re Alexander Grant & Co. Litig., 820 F.2d
352, 356 (11th Cir. 1987)).
issue are discovery requests involving copies of two bank
account statements, cancelled checks, checks deposited,
beneficiary designations, and an executed wire transfer
authorization form. Plaintiff claims that the production of
these documents will show that Defendant misappropriated the
funds in decedent’s pay on death account and
transferred the funds to various personal bank accounts that
name his daughter as the power of attorney and beneficiary.
Additionally, Plaintiff believes that Defendant exceeded the
scope of the power of attorney, which had a limitation
providing “[m]y attorney-in-fact has the power to make
gifts of any of my assets . . . to any individuals . . .
provided that I have previously made gifts to such donee, or
such donee is a beneficiary under my most recently executed
Will or Living Trust . . . or such donee is a natural object
of my bounty.” (Doc. 39, Exhibit C).
asserts that decedent had not made gifts to Defendant’s
daughter and had not named her as a beneficiary. Meanwhile,
Defendant claims that the documents are irrelevant because as
the power of attorney, he had the right to transfer the funds
and Plaintiff never had ownership rights over the funds.
Further, Defendant “strongly believes that this action
will be summarily disposed of in the Defendant’s
favor.” (Doc. 35). Whether Plaintiff can ultimately
prevail on this claim is not before the Court. At issue now
is whether the documents are relevant, and this Court finds
that Plaintiff has met his burden and that the documents are
relevant to the claims in this action. See Douglas, 2016 WL
1637277, at *2.
Court reaches this conclusion based on the nature of the
claims and defenses in this case, and the evidence that has
already been produced. In short, the evidence (including
records of decedent’s account) reveals a tangled web of
transfers from and between decedent’s account and
various accounts owned by Defendant that name his daughter as
the power of attorney and beneficiary. Further,
Defendant has put into issue how the disputed funds were
spent by claiming that he transferred the money out of
decedent’s account for Medicaid planning purposes in
accordance with Florida law and to reimburse himself for the
out of pocket nursing home expenses he incurred for the
decedent’s care. For these reasons, the Court concludes
that Plaintiff is entitled to the requested discovery.
Defendant has moved for a protective order on the discovery
documents requested by Plaintiff because he believes that
Plaintiff is on a “wholesale fishing expedition
designed to annoy and harass the Defendant and to force him
into an unwarranted settlement of a frivolous lawsuit.”
(Doc. 35). However, Defendant has not shown how the
disclosure of the documents would cause him any harm.
Instead, Defendant merely claims that the protective order
should be granted because the documents contain “highly
intrusive and embarrassing information about the daily living
and medical needs of an ailing 91-year-old man.” A
generalized claim of embarrassment is not enough to establish
good cause for a protective order. See Cipollone v.
Liggett Grp., Inc., 7852d. 1108, 1121 (3d Cir. 1986)
(“[A]n applicant for a protective order whose chief
concern is embarrassment must demonstrate that the
embarrassment will be particularly serious.”). Yet