PETRA RICHTER, individually and on behalf of all others similarly situated Plaintiff, v. WELLS FARGO BANK N.A, Defendant Case No: 2:11-cv-695-FtM-29DNF United States District Court, M.D. Florida Filed June 11, 2014 Frazier, Douglas N., United States Magistrate Judge ORDER *1 This cause is before the Court on Wells Fargo Bank N.A.’s Motion to Compel and For Sanctions Against Petra Richter for Failure to Produce Documents and Electronically Stored Information (Doc. 247) filed on May 5, 2014. The Plaintiff, Petra Richter (“Plaintiff” or Richter”) filed a Response in Opposition to Defendant Wells Fargo Bank’s Motion to Compel and For Sanctions (Doc. 269) on May 22, 2014. Wells Fargo Bank N.A. (“Wells Fargo”) filed a Notice of Filing in Support of Pending Motions (Doc. 249) on May 8, 2014, and Plaintiff filed a Response to Wells Fargo Bank, N.A.’s Notice of Filing in Support of Pending Motions (Doc. 265) on May 19, 2014. The Court has carefully reviewed the submissions of the parties. Wells Fargo asserts that Richter has failed to respond fully to a Second Request for Production also arguing that some of the information was requested previously in the first Request for Production. Wells Fargo claims that Richter responded to the first Request for Production indicating that she had no responsive documents in her possession, custody or control, but at her deposition, she testified that she never looked for these documents. Wells Fargo also contends that Richter’s objections should be overruled. Richter responds that she provided responsive documents to relevant Requests for Production, that many of the Requests are not relevant, and that she cannot provide documents that are not in her possession. Pursuant to Rule 26, Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense of any party – including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). The purpose of discovery is to require disclosure of relevant information so that the resolution of the civil action is based upon a full and accurate understanding of the facts. Anglin v. Maxim Healthcare Services, Inc., 2009 WL 928305, *2 (M.D. Fla. April 2, 2009) (citing United States v. Proctor & Gamble Co., 356 U.S. 677, 682 (1958)). When the discovery requested appears relevant on its face, then the party objecting to the discovery based upon relevance has the burden to show the requested discovery is not relevant. Unlimited Resources, Inc. v. Deployed Resources, LLC, 2009 WL 212188 at 3 (M.D. Fla. Jan. 29, 2009). The scope of discovery is broad, however, the information must be relevant to a claim or defense, but need not be admissible at trial. Anglin, 2009 WL 928305 at *2 (citations omitted). The Court will consider the merits of Richter’s objections to the Second Request for Production even if Richter failed to file these objections to the First Request for Production. The Court determines that the issues raised should be determined on the merits. In the instant case, Wells Fargo divided the Requests for Production at issue in the Second Request for Production into categories, and the Court will adopt these categories. I. Tax Requests Related to Promissory Note and Lending Agreement *2 Wells Fargo asserts that Richter refused to produce her tax returns or similar documents provided to taxing authorities which would provide evidence as to how she characterized her agreement with Ulrich Felix Anton Engler (“Engler”), and Private Commercial Office, Inc. (“Engler/PCO”), the alleged organizers of the Ponzi scheme at issue in this case. Richter asserts that her tax returns do not contain any relevant information. The Requests and Responses involving the tax returns are as follows: Request Number 1: Any and all documents exchanged between Richter and any federal, state, and/or local tax authorities in the United States, Germany, or otherwise. Request Number 4: All tax returns and/or equivalent document filed by Richter with any federal state, and/or local tax authorities in the United States, Germany, or otherwise. Request Number 5: All tax returns and/or equivalent document filed by any entity in which Richter has any ownership interest with any federal, state, and/or local tax autho1ities in the United States, Germany, or otherwise. Response to Requests 1, 4, and 5: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are not relevant to this case. Therefore, no documents will be produced. Wells Fargo asserts that Plaintiff signed a Promissory Note and Lending Agreement with Engler and/or PCO, and when she transferred her $6,500.00 to Engler, the wire transfer indicated it was a loan. In the related bankruptcy proceedings, Wells Fargo asserts that Richter’s Proof of Claim indicated she had a loan or loans with Engler/PCO. Wells Fargo claims that Richter’s returns were guaranteed and not subject to stock market fluctuation. Wells Fargo raised as a defense that Richter entered into a loan and this loan provided for a simple interest rate which exceeded 800% and would be considered usurious and unenforceable. Wells Fargo claims that after it raised this defense, Richter claimed that her agreement with Engler/PCO was an equity investment. Wells Fargo claims that Richter’s tax documents are relevant to show how she characterized her agreement with Engler/PCO and how she characterized her losses for tax purposes. Richter responds that the tax documents are not relevant in this case. Richter argues that Wells Fargo is speculating as to the need for these tax documents claiming Richter may have reported something in these documents which would indicate whether she considered her transaction and loss with Engler/PCO as a promissory note and loan or as an equity investment. Richter asserts that she has provided all documents in her possession as to the Engler/PCO Ponzi scheme. Richter also asserts that German tax law applies to her tax documents, and what she submitted to German tax authorities is not relevant. Wells Fargo is entitled to obtain documents that are relevant to any party’s claim or defense and relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). “Federal courts are split on the question whether income tax returns are entitled to enhanced protection from discovery.” Coach, Inc. v. Visitors Flea Market, LLC, 2013 WL 5770598, *2 (M.D. Fla. Oct. 24, 2013) (citing United States v. Certain Real Property, 444 F. Supp.2d 1258, 1262-64 (S.D. Fla. 2006)). The Eleventh Circuit has not determined whether tax returns have a special privilege. Id.Some courts have held that in addition to relevance, a party seeking tax returns must also show a compelling need. Id. Nonetheless, courts have recognized that even if relevance is the only objection they may also take “steps to protect the confidentiality of tax returns.” Id (citing EEOC v. DiMare Ruskin, Inc., 2011 WL 3715067 *4 (M.D. Fla. Aug. 24, 2011)). *3 Wells Fargo is requesting that Richter produce all tax returns for the purpose of reviewing them to show whether Richter considered the transactions and losses with Engler/PCO as a loan or as an equity investment. Richter asserts that Wells Fargo is speculating as to whether the tax documents will show the information regarding loans versus investments and how losses are considered. The Court has considered Wells Fargo’s argument as to the necessity of obtaining Richter’s tax documents. Even if the Court considers the issue as to relevance alone, the Court does not find that on their face, all tax documents that Richter has provided to any taxing authority or any entity that Richter has an ownership in that filed tax documents are relevant to a claim or defense in this case. Wells Fargo has failed to show that any of these possible tax documents would show how Richter considered her transaction as a loan or investment by Engler/PCO or show how any losses would be considered. The Court will not require Richter to respond to Request Nos. 1, 4 and 5. II. Request Related to Richter’s Investment Knowledge/Experience Wells Fargo asserts that in its First Request for Production and Second Request for Production it asked for documents concerning, referring or evidencing Richter’s investment experience. Richter responded to the First Request for Production that she did not have any responsive documents, but at her deposition, she testified that she had thirty (30) years of investment experience. Wells Fargo claims that Richter now admits that she has responsive documents, but refuses to produce them arguing that the documents are not relevant. Wells Fargo argues that the documents showing Richter’s investment experience are relevant to the claim for aiding and abetting fraud because one element of the underlying common law fraud is that Richter relied on statements by Engler/PCO to her detriment, and any individualized amount of investment experience may prevent certification of any class. Richter asserts that the degree of investment experience is not relevant to a claim or defense in this action nor is it relevant to the issue of class certification. Richter argues that a Ponzi scheme by definition is a fraudulent scheme. Richter contends that the Ponzi scheme will be established by expert opinions and is not an issue before the fact finder. Richter states that as long as Plaintiffs assert that Wells Fargo and Engler/PCO committed the same wrongful acts in the same manner against all members of the potential class, then the issue of typicality is established. The Requests and Responses involving the investment knowledge or experience are as follows: Request Number 10: All documents in any way concerning, referring to, and/or evidencing any legal proceedings between Richter and Deutsche Bank at any time, including, but not limited to the legal proceedings referenced by Petra Richter during her March 6, 2014 deposition. Request Number 11: All documents in any way concerning, referring to, and/or evidencing any loan and/or investment to which Richter is a party utilizing any account she maintained at Deutsche Bank at any time. Request Number 12: All documents in any way concerning referring to, and/or evidencing any loan and/or investment to which Richter is a party utilizing any broker, financial advisor, financial institution, and/or intermediary at any time, including, but not limited to, any investment made through the internet as referenced by Petra Richter during her March 6, 2014 deposition. Response to Requests 10, 11, 12: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are not relevant to this case. Therefore, no documents will be produced. Request Number 15: Any and all correspondence and/or communications between Richter and any financial broker, financial advisor, financial institution, and/or intermediary, and any notes of any such correspondence or communications. Request Number 23: All documents in any way concerning, referring to, and/or evidencing any complaint, dispute, grievance, and/or legal proceedings pertaining to any loan and/or investment made by Richter at any time. *4 Response to Requests 15, 23: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are not relevant to this case to the extent that they concern any transaction not related to the PCOM accounts held at Wachovia. In addition, Plaintiff produced documents responsive to this request along with Plaintiffs initial disclosures on March 15, 2012. Nevertheless, Plaintiff will produce additional documents responsive to this Document Request relating to her investment with Engler. Request Number 26: A copy of any books, magazines, articles, and/or any other publications read by Richter in any pertaining to loans and/or investments, including those to which Richter identified at her deposition. Response to Request 26: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are not relevant to this case; further, Plaintiff has no responsive documents in her possession relating to her investment with Engler. Wells Fargo claims that these Requests add specificity to Request No. 98 in its First Request for Production which requests documents concerning Richter’s investing experience. Richter first responded that she has no documents, and Wells Fargo asserts that Richter cannot now object that the document requests are not relevant. Wells Fargo argues that Richter had thirty (30) years of investing experience, yet she involved herself in this investment even though the rate of return was as Richter testified, “unbelievable.” (Doc. 247, p. 15). Wells Fargo asserts that Richter’s investment experience and knowledge are directly relevant to the element that she relied on the statements to her detriment. Wells Fargo also states that these requests may reveal additional information as to how Richter came to execute the Promissory Note and Lending Agreement. Richter asserts that the information is not relevant to a claim and that there is no issue as to the reliance by Richter on Engler/PCO’s statements. The elements of aiding and abetting in Florida are: “(1) an underlying violation on the part of the primary wrongdoer; (2) knowledge of the underlying violation by the alleged aider and abetter; and (3) the rendering of substantial assistance in committing the wrongdoing by the alleged aider and abettor.” Lawrence v. Bank of America, N.A., 455 F. App’x 904, 906 (11th Cir. 2012) (citations omitted). The elements of the underlying fraud are: “(1) the opposing party made a misrepresentation of a material fact, (2) the opposing party knew or should have known the falsity of the statement (3) the opposing party intended to induce the aggrieved party to rely on the false statement and act on it, and (4) the aggrieved party relied on that statement to his or her detriment. Jackson v. Shakespeare Foundation, Inc., 108 So. 3d 587, n. 2 (Fla. 2013). Richter claims that the Ponzi scheme is by definition, fraudulent, and the degree of sophistication of the investors is not relevant. For the issue of class certification, the issue of whether the investors were sophisticated or not does not appear to be an issue that is considered. Kennedy v. Tallant, 710 F.2d 711, 717 (11th Cir. 1983). Courts look to whether the same unlawful act was committed in the same manner against the entire class, and therefore all the members of the class would have identical claims. Id.“The degree of investment experience or sophistication of each of the class members is irrelevant.” Id. See also, Amerifirst Security Litigation, 139 F.R.D. 423, 434 (S.D. Fla. 1991) and Coquina Inv. v. Rothstein, 2012 WL 4479057, n. 7 (S.D. Fla. Sept 28, 2012). *5 Wells Fargo has failed to show that on its face, information at to Richter’s past investment experience is relevant to a claim or defense in this matter. Wells Fargo cites to the elements of common law fraud to show that Richter’s investment experience is relevant to the claims in this case and to the issue of class certification. Wells Fargo failed to provide any cases showing that where a Ponzi scheme is alleged, that the issue of investment experience for either an individual plaintiff or a class member is relevant to a claim or defense in the case. Therefore, the Court will not Richter to respond to Request Nos. 10, 11, 12, 15, 23 and 26. III. Richter’s Proof of Claim Request No. 31 and Response provide as follows: Request Number 31: All documents in any way concerning, referring to, and/or evidencing any financial and/or legal advice, including any communications with any financial and/or legal advisor, obtained by Richter in connection with the filing of any Proof of Claim on Richter’s behalf in the Bankruptcy Action. Response to Request 31: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request, if they exist, are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. Plaintiff further objects on the grounds that documents regarding “legal advice” are clearly protected from disclosure by the attorney-client privilege. Plaintiff otherwise has no responsive documents in her possession and, therefore, no documents will be produced. Wells Fargo asserts that Richter authorized her counsel to file a Proof of Claim in the bankruptcy case, and indicated on it that her claim had been a loan. Wells Fargo asserts that a loan would be usurious, and Richter responded that the loan characterization was made with the assistance of her counsel. Richter now asserts that the loan characterization was incorrect and she should have identified the Promissory Note and Lending Agreement as an equity investment. Wells Fargo argues that Richter placed communications with her attorney at issue and waived any attorney client privilege. Wells Fargo claims that it is entitled to obtain any documents showing this legal advice to designate the Promissory Note and Lending Agreement as a loan rather than an equity investment. Wells Fargo also argues that if the documents requested are in the possession of others such as the Trustee, then Richter should provide them as she has access to them through the Joint Prosecution and Cooperation Agreement entered into between the Trustee and Richter in the bankruptcy case. Richter responds that she has no responsive documents and further argues that Wells Fargo fails to meet the requirement to establish an “ ‘at issue’ waiver of the attorney-client privilege.” (Doc. 269, p. 9). Richter claims that Wells Fargo cannot make allegations in pleading that constitute a waiver of the attorney client privilege. Richter also asserts that whether she characterizes the fraud in this case as a loan to Engler/PCO’s Ponzi scheme or an equity investment, Engler/PCO still conducted a fraudulent scheme to defraud investors, and how Richter characterizes her contribution is immaterial. “ ‘[W]hen confidential communication are made a material issue in a judicial proceeding, fairness demands treating the defense as a waiver of the [attorney client] privilege.’ ” Lockheed Martin Corp. v. L-3 Communication Corp, 2007 WL 2209250, *7 (M.D. Fla. July 29, 2007). The attorney-client privilege is waived when a party places information that is protected by the privilege at issue through “some affirmative act for his own benefit, and to allow the privilege to protect against disclosure of such information [which] would be manifestly unfair to the opposing party.’ ” Id. (quoting Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D.Wash.1975)). By putting a protected disclosure “at issue”, it constitutes an “at issue” waiver. Id. However, allegations in pleadings are not sufficient by themselves to constitute an “at issue” waiver. Id. (citing In re Hillsborough Holdings Corp., 176 B.R. 223, 241 (M.D.Fla.1994). *6 In the instant case, Wells Fargo claims that Richter waived her attorney client privilege by stating her attorney characterized her contribution to the Engler/PCO Ponzi scheme as a loan rather than an equity investment. Wells Fargo is now raising the defense that Richter made a loan to Engler/PCO and the loan would be considered usurious under Florida law. Wells Fargo placed Richter’s classification of her contribution to the Engler/PCO at issue through its defense, however, this alone will not be sufficient to waive the attorney client privilege. Wells Fargo has failed to show that advice from an attorney to Richter as to how to characterize her claim in a bankruptcy proceeding is a material issue in this case sufficient to require Richter to waive her attorney client privilege. Therefore, the Court will not require Richer to respond to Request No. 31. IV. Statement by Relevant Persons and Entities Wells Fargo asserts that Richter is withholding documents that she asserts are in the possession of the Bankruptcy Trustee, Robert Tardif (“Trustee”). The Trustee is no longer a party in this case because the Trustee’s claims have been dismissed. Wells Fargo claims that Richter has access to the documents held by the Trustee because they entered into a Joint Prosecution and Cooperation Agreement in the Bankruptcy case. Richter asserts that if the documents requested are in possession of others, then Wells Fargo should have directed subpoenas to those individuals or entities. Richter asserts that she does not have any responsive documents in her possession, and Richter contends that even though she entered into a Joint Prosecution and Cooperation Agreement with the bankruptcy Trustee, Wells Fargo has failed to show that she has control over the documents in possession of the bankruptcy Trustee.[1] The Requests and Responses involving documents in possession of others are as follows: Request Number 38: Any and all documents concerning, referring to, or evidencing any non-privileged communications, correspondence, statement and/or notes of any statement by any Lender relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action, including, but not limited to, any and all documents which were not produced in response to Request Number 118 of Wells Fargo’s First Request for Production to Plaintiffs. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to thjs request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. However, to the extent that this request seeks documents relating to Plaintiffs communications with Engler’s brokers, such as Junemann and Balsiger, such documents are being produced in response to other Document Requests. Request Number 39: Any and all documents concerning, referring to, or evidencing any communications, correspondence, statement and/or notes of any statement by any law enforcement agency and/or governmental entity relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action, including, but not limited to, any and all documents which were not produced in response to Request Number 119 of Wells Fargo’s First Request for Production to Plaintiffs. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-pa1ty, not Plaintiff. However, Plaintiff has previously produced documents relating to this request. Plaintiff has no other responsive documents in her possession and, therefore, no documents will be produced. *7 Request Number 40: Any and all documents concerning, referring to, or evidencing any communications, correspondence, statement and/or notes of any statement by the Trustee relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action, including, but not limited to, any and all documents which were not produced in response to Request Number 120 of Wells Fargo’s First Request for Production to Plaintiffs. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-pa1ty, not Plaintiff. However, Plaintiff has previously produced documents relating to the Bankruptcy Action. Plaintiff has no other responsive documents in her possession and, therefore, no documents will be produced. Request Number 41: Any and all documents concerning, referring to, or evidencing any communications, correspondence, statement and/or notes of any statement by Wells Fargo relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action, including, but not limited to, any and all documents which were not produced in response to Request Number 121 of Wells Fargo’s First Request for Production to Plaintiffs. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. However, Plaintiff has previously produced documents relating to the Bankruptcy Action. Plaintiff has no other responsive documents in her possession and, therefore, no documents will be produced. Request Number 42: Any and all documents concerning, referring to, or evidencing any communications, correspondence, statement and/or notes of any statement by the Debtors relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action, including, but not limited to, any and all documents which were not produced in response to Request Number 122 of Wells Fargo’s First Request for Production to Plaintiffs. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. However, Plaintiff has no responsive documents in her possess ion and, therefore, no documents will be produced. Request Number 43: Any and all documents concerning, referring to, or evidencing any communications, correspondence, statement and/or notes of any statement by Neumeier relative to any issues raised in this action the Bankruptcy Action, any Trustee Action, and/or any Lender Action, including, but not limited to, any and all documents which were not produced in response to Request Number 123 of Wells Fargo’s First Request for Production to Plaintiffs. *8 Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-pa1iy, not Plaintiff. However, Plaintiff has previously produced documents relating to Neumeier and her involvement with and relationship to PCOM. Plaintiff has no additional responsive documents in her possession and, therefore, no documents will be produced. Request Number 44: Any and all documents concerning, referring to, or evidencing any communications, correspondence, statement and/or notes of any statement by any financial institution other than Wells Fargo relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action, including, but not limited to, any and all documents which were not produced in response to Request Number 124 of Wells Fargo’s First Request for Production to Plaintiffs. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. However, Plaintiffs previously involved in this litigation produced documents relating to SunTrust on May 8, 2012, which Wells Fargo also received. However, to the extent that this request seeks documents relating to Plaintiffs communications with Engler’s brokers, such as Junemann and Balsiger, such documents are being produced in response to other Document Requests. Request Number 45: Any and all documents exchanged between the Trustee and any Robert F. Elgidely, Esq. and/or any attorney and/or employee at Genovese Joblove & Battista, P.A. prior to the Trustee’s retention of Robert F. Elgidely, Esq. and/or Genovese Joblove & Battista, P.A. relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. Plaintiff has no responsive documents in her possession and, therefore, no documents will be produced. Request Number 46: Any and all documents concerning, referring to, or evidencing any communications, including any recordings and notes of oral communications, between the Trustee and any Robert F. Elgidely, Esq. and/or any attorney and/or employee at Genovese Joblove & Battista, P.A. prior to the Trustee’s retention of Robert F. Elgidely, Esq. and/or Genovese Joblove & Battista, P.A. relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action. *9 Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession o f a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. Plaintiff has no responsive documents in her possession and, therefore, no documents will be produced. Request Number 47: Any and all documents exchanged between the Trustee and Dr. AnneRose Tashiro and/or Schultze & Braun, LLP prior to the Trustee’s retention of Dr. AnneRose Tashiro and/or any attorney and/or employee at Schultze & Braun, LLP relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. Plaintiff has no responsive documents in her possession and, therefore, no documents will be produced. Request Number 48: Any and all documents concerning, referring to, or evidencing any communications, including any recordings and notes of oral communications, between the Trustee and Dr. AnneRose Tashiro and/or any attorney and/or employee at Schultze & Braun, LLP prior to the Trustee’s retention of Dr. AnneRose Tashiro and/or Schultze & Braun, LLP relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. Plaintiff has no responsive documents in her possession and, therefore, no documents will be produced. Request Number 49: Any and all documents exchanged between the Trustee and David A. Samole, Esq. and/or any attorney and/or employee at Kozyak Tropin & Throckmorton P.A. prior to the Trustee’s retention of David A. Samole, Esq. and/or Kozyak Tropin & Throckmorton P.A. relative to any issues raised in th.is action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action. Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party, not Plaintiff. Plaintiff has no responsive documents in her possession and, therefore, no documents will be produced. Request Number 50: Any and all documents concerning, referring to, or evidencing any communications, including any recordings and notes of oral communications, between the Trustee and David A. Samole, Esq. and/or any attorney and/or employee at Kozyak Tropin & Throckmorton P.A. prior to the Trustee’s retention of David A. Samole, Esq. and/or Kozyak Tropin & Throckmo11on P.A. relative to any issues raised in this action, the Bankruptcy Action, any Trustee Action, and/or any Lender Action. *10 Response: Subject to and notwithstanding the foregoing objections, Plaintiff objects on the grounds that documents responsive to this request are in the possession of a non-party and, to the extent any responsive documents exist and are relevant to this action, this request should be properly directed to the relevant non-party not Plaintiff. Plaintiff has no responsive documents in her possession and, therefore, no documents will be produced. Wells Fargo asserts that Richter has control over documents that are in the possession of the Trustee and should produce these documents. Richter argues that she has produced the documents in her possession, custody or control that are responsive, and that she cannot produce documents that are in the possession, custody or control of others including the Trustee. Rule 34 requires a party to produce documents in their “possession, custody, or control” in response to a request for production. Fed. R. Civ. P. 34(a)(1). The issue of whether documents are in a parties’ control is broadly construed. Costa v. Kerzner Intern. Resorts, Inc. 277 F.R.D. 468, 471(S.D. Fla. 2011) (citing Jans ex rel. Jans v. The GAP Stores, Inc., 2006 WL 2691800, at *2 (M.D. Fla. Sept. 20, 2006)). The term “control” includes not only legal ownership or actual possession of the documents, but also documents where the party has the “ ‘right, authority, or practical ability to obtain the materials sought on demand.’ ” Id. (citing Desoto Health & Rehab, L.L.C. v. Philadelphia Indem. Ins. Co., 2010 WL 4853891, at *3 (M.D. Fla. Nov. 22, 2010) (additional citations omitted)). Richter indicates that she does not have any additional materials that are in the possession of others including the Trustee. Wells Fargo has failed to show that Richter has possession, custody or control, or has the right, authority or ability to obtain material held by others. Even though Richter has agreed to enter into a Joint Prosecution and Cooperation Agreement, Wells Fargo has not shown where in this agreement it gives Richter the right, authority or ability to obtain documents in the possession of the Trustee or his counsel. Wells Fargo implies that the Trustee continues to “spoonfeed” documents to Richter, but at the same time Richter refuses to respond to these document requests. (See, Doc. 247, p. 22). This statement appears to be speculation on the part of Wells Fargo as it did not provide any concrete instances of documents Richter received from the Trustee that were not produced to Wells Fargo. Therefore, the Court will not require Richer to respond to Request Nos. 38-50 for documents that are not in her possession, custody or control. V. Electronically Stored Information Wells Fargo asserts that Richter has failed to provide her electronically stored information (“ESI”) information. Wells Fargo argues that on March 6, 2014, at her deposition, Richter stated for the first time that she was willing to hire a technician to determine whether any responsive documents could be restored from a computer that was inoperable. Wells Fargo contends that Richter now asserts that her computer is inoperable without obtaining an expert to examine her computer. Wells Fargo also requests that Richter be deposed again to be able to inquire as to the most recent document production. *11 Richter responds that in the most recent documents production, she provided documents that she will not concede are relevant, but produced them to moot any issues as to their production. Richter claims that she need not attempt to retain a technician to look at her computer because under Rule 26(b)(2)(B), a “party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). Richter asserts that Wells Fargo has not shown good cause to overcome the burden and cost. From a brief review of Richter’s deposition, she testified that some responsive documents may be stored in the old computer that is no longer operable. (See, Doc. 196-3, p. 143). Wells Fargo has shown good cause for the inoperable computer to be examined by a technician to determine if the documents stored in the computer can be retrieved. The Court will require counsel to confer and determine the best method of having a technician or computer forensic expert examine the inoperable computer and determine whether the stored documents are able to be retrieved, and if so, the best method to retrieve them. Wells Fargo has shown good cause to have the inoperable computer examined and the documents stored in the computer restored. The cost of the technician or forensic expert shall be borne by Richter. If the documents stored in the computer can be retrieved, then Richter shall review them and respond to the Requests for Production as to these additional documents. Thereafter, the Court will consider allowing Wells Fargo to depose Richter again on any issues raised by the documents produced after her March 6, 2014 deposition. VI. Sanctions The Court does not find an award of sanctions is appropriate at this time. The discovery in this case has been extremely contentious but not rising to the level of awarding sanctions under Fed. R. Civ. P. 37. IT IS HEREBY ORDERED: 1) The Motion to Compel and For Sanctions Against Petra Richter for Failure to Produce Documents and Electronically Stored Information (Doc. 247) is GRANTED in part and DENIED in part. 2) Richter is not required to respond to any of the Requests for Production listed in the Motion. 3) The Request for Sanctions is DENIED. 4) Within seven (7) days from the date of the Order, Counsel shall confer and determine the best method of having a technician or computer forensic expert examine Richter’s inoperable computer and determine whether the stored documents are able to be retrieved, and if so, the best method to retrieve them. Within fourteen (14) days thereafter, the technician or computer forensic expert shall examine Richter’s inoperable computer, and if the documents stored in the computer can be retrieved, then Richter shall review them and respond to the Requests for Production as to these additional documents within fourteen (14) days from receipt of the documents. The cost of the technician or forensic expert shall be borne by Richter. 5) Thereafter if the parties agree or upon motion, the Court will consider allowing Wells Fargo to depose Richter again, by video deposition, on any issues raised by the documents produced after her March 6, 2014 deposition. DONE and ORDERED in Fort Myers, Florida on June 11, 2014. Footnotes [1] The Court reviewed Wells Fargo’s Notice of Filing in Support of Pending Motions (Doc. 249) and the Response (Doc. 265). The Court does not find the Notice of Filing persuasive as to the issue of whether Richter has possession, custody, and control of documents held by the Trustee.