*1 This cause came on for consideration without oral argument on the following motion:

I. BACKGROUND

On July 31, 2018, Defendant Ross Albert removed this action to federal court. Doc. No. 1. At that time, he was the only Defendant. Id. On April 5, 2019, a Second Amended Complaint was filed that alleged various claims against Albert, Katzkin Leather, Inc. (“Katzkin”), Clearlight Partners, LLC (“Clearlight”), and Clearlight Partners Management, LLC (“CPM”). Doc. No. 104. The Second Amended Complaint alleged a broad conspiracy to take over the Florida leather restyling market that began in July 2015 when Katzkin and Clearlight solicited Albert to assist them while he was employed by Plaintiff Classic Soft Trim (“CST”). Id. The Second Amended Complaint alleges causes of action against Albert for breach of fiduciary duty/breach of loyalty and violation of the Computer Fraud & Abuse Act based on actions taken both before and after he terminated his employment with CST on March 18, 2016. See id. at 20, 33, 69. Upon terminating his employment with CST, Albert became employed by Katzkin. Doc. No. 104. The Second Amended Complaint alleges causes of action against Katzkin, Clearlight and CPM for violation of the Sherman Act, violation of Ohio's and Florida's Deceptive and Unfair Trade Practices Act, tortious interference, and violation of the Computer Fraud & Abuse Act among other things. Doc. No. 104. On August 13, 2020, the Court dismissed Clearlight and CPM as Defendants, and dismissed the Sherman Act and deceptive and unfair trade practices claims against Katzkin. Doc. No. 347.

On March 19, 2020, Plaintiffs served a Rule 34 demand for production of documents as part of a Rule 30(b)(2) Notice of Deposition for Albert (“Rule 34 Deposition Demand”). Doc. Nos. 302 at 1; 302-1. On April 20, 2020, Albert filed a timely response to the Rule 34 Deposition Demand which included objections to almost every request and no documents. Doc. No. 302 at 4; 302-4. On April 17, 2020, Plaintiffs served a separate Rule 34 request for documents on Albert (“Rule 34 Set Three Demand”). Id. On March 28, 2020, Albert timely served a response to the Rule 34 Set Three Demand which included objections to almost every request and no documents. Doc. No. 302-5. Thereafter, the parties engaged in meet and confers regarding the outstanding discovery. Doc. No. 302 at 5-6. On June 22, 2020, Plaintiffs filed a Motion to Compel Albert (the “Motion to Compel”) to respond to the Rule 34 Deposition Demand and the Rule 34 Set Three Demand. Doc. No. 302.

On July 13, 2020, Albert filed a Response to the Motion to Compel. Doc. No. 324. Albert argues that: service via email was insufficient; the discovery requested in the deposition notice was mooted when the deposition was rescheduled and the new notice did not include the discovery request again; that the requests are “relentlessly duplicative” and not proportional; and the time frame of discovery must be limited to the time prior to Albert's resignation from CST. Id. at 3, 5, and 7.

*2 With respect to the Rule 34 Deposition Demand, Albert objected to requests 1-5, 8-15, 17-19, 22-25, and 27 as “entirely subsumed in and duplicative of a prior document request served by Plaintiff, CST in 2018.” Doc. No. 302-4 at 2. Albert advised that he responded to that request and produced documents in April 2018. Id. Albert noted that Requests 6-7, 16, 20-21 and 26, were not entirely duplicative of prior requests and responded to those separately to the extent they were not but did not provide documents. Id. at 3.

Albert additionally objected to Requests 6, 20, and 21, 26 because the definition of Clearlight was overly broad but that to the extent it referenced only Clearlight Partners Management, LLC, Albert had no responsive documents and the term Roadwire customer was undefined. Id. at 5, 9-10, 12. Albert also complained that Request 26 was undecipherable. Id. at 12. Albert additionally objected to Requests 7 and 16 because they might implicate spousal privilege as the requests sought communications sent to his wife, including CST work orders he may have emailed to her. Id. at 5, 8.

Albert interposed similar objections to the requests in the Rule 34 Set Three Demand. Doc. No. 302-7. Albert raised objections to the time periods requested, January 1, 2015 to January 1, 2020, and in some requests January 1, 2015 to January 1, 2017, and insisted he only need address the time period preceding March 18, 2016. Doc. No. 302-7 (Requests 1-6, 9-19, 26, 29, 30). Albert also objected based on the previous document request in 2018, and claimed in some instances that he had “no such documents.” Doc. No. 302-7 (no such documents – requests 21, 23-25, 27, 28; duplicative – requests 2-10, 12, 13, 16-19). In addition to these objections, Albert objected to requests that might include confidential and proprietary information of his new employer.[1] Doc. No. 302-5 (requests 10, 17, 19, 26, 30).

II. ANALYSIS

The Federal Rules of Civil Procedure “strongly favor full discovery whenever possible.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). “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 ....” Fed. R. Civ. P. 26(b)(1). A party is entitled to the facts relevant to the litigation. Dunkin’ Donuts, Inc. v. Mary's Donuts, Inc., 206 F.R.D. 518, 520 (S.D. Fla. 2002). Motions to compel are committed to the sound discretion of the trial court. Comm. Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984).

Albert first argues that neither discovery demand was properly served because the requests were only served via electronic mail and such service was done without express written consent “which Plaintiffs never sought nor obtained.” Doc. No. 324. Service may be properly accomplished by “sending it to a registered user by filing it with the court's electronic-filing system or sending it by other electronic means that the person consented to in writing – in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served.”[2] Fed. R. Civ. P. 5(b)(2)(E).

*3 Albert's position appears to conflict with a Declaration made by defense counsel[3] in support of a recent motion to compel which stated that “[t]he parties in this case reached an agreement to serve discovery documents in this matter by electronic service to prevent any delays associated with mailed hard copies.”[4] Doc. No. 278-1 at 2. Albert's counsel, Courtney B. Wilson, Esq., serves as local counsel for Defendants Katzkin, Clearlight, and CPM in addition to acting as counsel for Albert. See Doc. Nos. 57 at 2; 278 at 27.

Even assuming that Albert's counsel did not assent to service of discovery documents via electronic service in writing, Albert timely responded to the requests and did not raise any objection to the manner of service. In fact, Albert's counsel himself served Albert's discovery responses via electronic mail. Doc. Nos. 302-4 at 13; 302-7 at 34. Thereafter, the parties met and conferred in an attempt to resolve the discovery issues related to Albert's objections and there is no indication Albert's counsel raised the issue of service at that time. Doc. No. 302 at 5-6. As such, the Court finds that Albert has waived any objection to the manner of service by responding to discovery requests, doing so via email, and engaging in meet and confers without raising the issue. See Gamblin v. Miss. Farm Bureau Mut. Ins. Co., No. 3:07-cv-698, 2009 WL 10676958, at *3, 2009 U.S. Dist. LEXIS 146693, at *10-11 (S.D. Miss. Oct. 7, 2009) (finding counsel waived any objections to improper service of discovery by his behavior). The Court further finds that it would be inherently unfair not permit this matter to proceed under the circumstances. See Rocky Mt. Holdings v. Johnson, No. 5:13-cv-58, 2013 WL 5928550, at *2, 2013 U.S. Dist. LEXIS 160259, at *5 (N.D. Fla. Oct. 31, 2013) (finding that it was in the interests of fairness to require plaintiff to respond to discovery requests that were improperly served via email because defendants made good faith efforts to resolve the dispute prior to the end of the discovery period).

Albert next argues that the discovery requested in advance of his deposition was somehow nullified when his deposition was rescheduled and a new notice was delivered without a renewed discovery request included. The Court would again observe that Albert's behavior belies his argument. Albert acknowledged the discovery, discussed it with Plaintiffs’ counsel, responded to the discovery requests, met and conferred on the discovery responses, and only now argues that such discovery was improper because the Rule 34 request was not included when the deposition was rescheduled.[5] The Court finds that any such arguments have been waived by Albert's behavior. Gamblin, 2009 WL 10676958, at *3, 2009 U.S. Dist. LEXIS 146693, at *10-11.

*4 The Second Amended Complaint alleges, among other things, that Defendants attempted to monopolize the national market for aftermarket leather interiors for cars, trucks, and sports utility vehicles in violation of the Sherman Act and tortuously interfered with Plaintiffs’ business and contractual relationships. Doc. No. 104. Plaintiffs allege Albert was an active participant in the attempt to overtake the Orlando market and assisted Katzkin, Clearlight, and CPM in harming Plaintiffs both before and after his employment with CST. Doc. No. 104.

Upon review of the Second Amended Complaint, Motion and Response, the Court finds that the each of the subject requests are relevant and proportional. Defendant's predominant objection is that he already responded to similar discovery in state court in 2018 before this case was removed. However, Albert fails to acknowledge this case is no longer just about him or his behavior prior to terminating his employment with CST. On December 28, 2018, even before the Second Amended Complaint was filed, the Court observed that the nature of this action had changed considerably. Doc. No. 37. The Court found that “[t]his is no longer simply a cause of action against a solitary former employee of CST. Thus, the scope of discovery and the relevance of the information sought has shifted to Katzkin's behavior as well as Albert's, both before and after his employment with CST.” Id. at 3-4. Indeed, the Second Amended Complaint references Albert's behavior both before and after his departure from CST. Albert's objections based on having previously responded to similar discovery in state court when he was the only defendant and the claims were much more limited are not well-taken. Even though some claims have been dismissed, Katzkin remains a Defendant, and Katzkin's and Albert's behavior both before his departure and after his departure from CST remain relevant for discovery purposes. For the same reasons, Albert's objections to providing information sought for the time periods after March 18, 2016 are also not well-taken. However, based on the dismissal of some of the claims against Katzkin, the Court finds that limiting requests 1, 9, and 10 of the Rule 34 Set Three Demand to the time period ending January 1, 2018 is appropriate. Similarly, Albert's complaints about the definitions provided for Katzkin, Clearlight, and Roadwire or CST customers are also overruled.[6]

As to Requests 7 and 16 of the Rule 34 Deposition Demand, Albert objects to producing information sent to his wife Julienne Albert because the request potentially seeks communications subject to the spousal privilege. The requests seek: “All Documents and Communications related to Classic Soft Trim work orders that were sent from YOU to Julienne Albert between January 1, 2015 and March 31, 2016.” Doc. No. 302-1 at 3, 7. Albert also claims he already provided responsive documents in 2018, but Plaintiffs argue that Classic Designs Automotive (“CDA”) has provided copies of twenty-four CST contracts Albert emailed to his wife and John Held but the emails produced are not legible, and Plaintiffs require the emails in their native format.[7] Id. Plaintiffs argue that the contracts, property, and documents of CST are not protected by spousal privilege and, even if they were, that privilege was waived when CDA produced the emails in question to Plaintiffs. Id.

*5 “The marital communications privilege excludes information privately disclosed between husband and wife in the confidence of the marital relationship.” Michael K. Sheils Trust v. Kuhn, No. 6:08-cv-1704, 2010 WL 11507727, at *2, 2010 U.S. Dist. LEXIS 150053, at *5 (M.D. Fla. Feb. 26, 2010) (quoting U.S. v. Abram, 171 F. App'x 304, 309-10 (11th Cir. 2006) (citing Trammel v. United States, 445 U.S. 40, 50-51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)). The privilege “does not apply to communications made in the presence of third parties, and generally applies only to utterances, not acts.” Id. at *6 (citing Pereira v. United States, 347 U.S. 1, 6, 74 S.Ct. 358, 98 L.Ed. 435 (1954)). Here, instead of providing a privilege log for relevant documents and communications that might be subject to the privilege, Albert only lodged this general objection. Id. “The party asserting a privilege has the burden to show that the privilege applies.” Weber v. Finker, No. 3:07-mc-27, 2008 WL 1771822, *4, 2008 U.S. Dist. LEXIS 31067, *12-13 (M.D. Fla. Apr. 15, 2008) (where respondents suggested there might be documents covered by spousal privilege court would not prohibit discovery based on such an “unsubstantiated and speculative argument”); see generally Sidman v. Dougherty, No. 14-24594, 2015 WL 13657146, at *2, 2015 U.S. Dist. LEXIS 192137, at *3-4 (S.D. Fla. Sept. 8, 2015) (where defendant made generalized assertions of privilege, court found he failed to meet his burden of establishing a personal right or privilege with respect to subpoenaed documents); Morgan v. Emeritus Corp., No. 1:09-cv-1292, 2010 WL 11508307, at *2, 2010 U.S. Dist. LEXIS 149949, at *5-6 (N.D. Ga. Feb. 18, 2010) (motion to quash denied where party failed to support claim of privilege with a proper privilege log).

Albert has failed to demonstrate that the martial communications privilege would apply globally to any communications between he and his wife that involved CST work orders. Albert's objections based on spousal privilege are overruled and he is directed to respond to these requests. However, Albert may include a privilege log with his responses to identify any specific communications he believes may be protected by spousal privilege.

In his responses to the Rule 34, Set Three Demand, Albert objects there may be confidential and proprietary information of his employer, Katzkin, contained in responsive documents which he is not in a position to disclose.

Request 10 seeks “Any reports, (including memos, emails, summaries) from YOU to any other Katzkin employee or to YOU from any other Katzkin employee that discusses efforts to obtain business from then-existing CST customers, including dealerships doing business with CST, for the time frame of January 1, 2015 to January 1, 2020.” Doc. No. 302-7 at 13.

Request 16 seeks “All emails and text messages, including deleted emails and text messages, from YOU to any car dealerships regarding Katzkin prior to April 30, 2016.” Doc. No. 302-7 at 19.

Request 17 seeks “All emails and text messages, including deleted emails and text messages, from YOU to any car dealerships regarding CDA prior to April 30, 2016.” Doc. No. 302-7 at 20.

Request 19 seeks “All emails and text messages, including deleted emails and text messages, from YOU to any car dealerships regarding Roadwire after March 18, 2016.” Doc. No. 302-7 at 22.

Request 26 seeks “All documents You sent to any dealerships that refer to relate to Roadwire or CST after March 18, 2016.” Doc. No. 302-7 at 29.

Request 29 seeks “All text message and emails, including deleted emails and text messages, You sent to any dealerships that refer or relate to CST after March 18, 2016.” Doc. No. 302-7 at 32.

Request 30 seeks “All text message and emails, including deleted emails and text messages, You sent to any dealerships that that refer or relate to Roadwire after March 18, 2016.” Id. at 33, 74 S.Ct. 358.

Given the remaining allegations of the Second Amended Complaint, and Albert's employment with Katzkin, and the fact that Katzkin is a Defendant in this case, which distinguishes it from the one case Albert relies on, Fadalla v. Life Auto. Prods., No. 3:07-mc-42, 2008 WL 68594, at *, 2008 U.S. Dist. LEXIS 626, at * (M.D. Fla. Jan. 4, 2008), the Court finds these requests relevant. Because there is no detail regarding any confidential or proprietary information that may be implicated because Albert has raised only a general objection, the Court cannot determine whether such communications should be protected. Further, any concerns regarding the confidentiality and proprietary information of Katzkin contained in such communications may be addressed by the Confidentiality Agreement Katzkin, CST, and Roadwire have executed as a part of this litigation.

*6 Finally, having considered Plaintiffs’ arguments that Albert has documents he is not producing even where he has stated he has “no such documents” or “no responsive documents,” the Court will direct Albert to respond to those requests and clarify that he has no responsive documents within his possession, custody or control as required by Rule 34, but the Court otherwise accepts Albert's representation that he has no responsive documents.

Accordingly, it is ORDERED that the Motion to Compel (Doc. No. 302) is GRANTED in part and DENIED in part as follows:

DONE in Orlando, Florida on August 18, 2020.