On May 31, 2019, minutes before the close of discovery, Plaintiff filed three motions to compel discovery responses. Docs. 99, 100, 101. Given the impending dispositive motions deadline, the Court directed Defendant to file an expedited response, but Defendant filed a motion requesting an extension of time to do so. Docs. 105. The Court conducted a telephonic hearing to address the issues and, based on counsels’ argument, determined that the request for an extension of time was due to be granted, the motions to compel would not be handled on an expedited basis, and any materials compelled would not be available to the parties for the purpose of dispositive motions. Doc. 113. The Court allowed Plaintiff to file a reply in the event Defendant's response to the motions to compel included an argument attacking the requests as untimely. Id. At the time of the hearing, Defendant's own discovery motion and motion to quash a subpoena for records served on Verizon were also pending, but not ripe. Docs. 108, 109. The parties since agreed that the motion to quash should be handled on a non-expedited basis, and if the subpoena is not quashed then the discovery at issue would not be available for dispositive motions. Doc. 113.

Notably, in all of the motions the parties request fees for filing the motion or responding thereto, and Plaintiff has filed his reply regarding timeliness. Docs. 125, 126, 127, 129, 130, 131. The motions are now ripe for review. Plaintiff has also filed notices of partial resolution of certain topics. Docs. 117, 124. The Court will address the remaining issues.

I. Plaintiff's Motion to Compel Responses to First and Second Set of Interrogatories (Doc. 99)

Plaintiff moves to compel responses to ten interrogatories and requests attorney fees in connection with filing the motion. Doc. 99. Plaintiff has since filed a notice of partial resolution of the motion to compel after conducting a conference with Defendant, but four interrogatories are still at issue along with the request for fees. Doc. 117. The Court finds that the motion (Doc. 99) is due to granted in part and denied in part.

*2 Defendant opposes Plaintiff's request for relief because he waited until 11:44 pm on the last day of an already-extended discovery period to file the motion. Doc. 125. Defendant contends that the motion was not filed within a reasonable period of time in the context of the underlying discovery responses, the parties’ telephonic conferrals, or the other deadlines established in the case. Id. Defendant asserts that this argument relates to the responses to both sets of interrogatories.

With regard to the First Set of Interrogatories, Plaintiff served Defendant on or about October 5, 2018. Doc. 19 at 1.[1] Defendant responded on November 20, 2018. Doc. 99-3. The parties conferred “over several phone calls between January 23 and 25, 2019.” Doc. 99 at 2. Yet, Plaintiff did not file the motion to compel responses until May 31, 2019, which was the last day of the discovery period.

There is significant case law in this District that supports a finding that Plaintiff's late filing was unreasonable and untimely. “While there is no local or federal rule setting a precise deadline for the filing of a motion to compel, it is clear that any such motion must be filed within a ‘reasonable time’ period.” Coleman v. Starbucks, 2015 WL 2449582, at *8 (M.D. Fla. May 22, 2015) (citations omitted). “By virtue of failing to address a discovery violation when the movant first learns of the issue, a party risks waiving the issue.” Goears v. L.A. Entertainment Group, Inc., 2017 U.S. Dist. LEXIS 91093 (M.D. Fla. June 14, 2017) (citations omitted); see also, Oil Consulting Enterprise, Inc. v. Hawker Beechcraft Global Customer Support, LLC, 2017 WL 7355128, at *3 (M.D. Fla. Dec. 21, 2017) (“[F]iling a substantive motion to compel on the last day of discovery does not comply with the policy of the Middle District of Florida for the completion of discovery and the resolution of issues related to discovery prior to the discovery deadline.”).

In response, Plaintiff states that after the January conferral, the parties continued to negotiate the terms of a confidentiality agreement and, after it was finalized, “the parties made substantial production in response to the respective first requests for production on March 20, 2019.” Doc. 131 at 2. Plaintiff then states that over the “following two months, [Plaintiff] reviewed materials provided by [Defendant] and attempted to obtain withheld information through depositions and additional discovery requests.” Id.

While Defendant seems to dispute this characterization of the back and forth between counsel after January 2019, even assuming Plaintiff's description is accurate, the Court is not persuaded that he acted within a reasonable time. There was already a meaningful gap between November 2018, when the responses were served, and March 20, 2019, when production was made. There is no justification as to why Plaintiff then waited two additional months to file the motion. The motion and reply lack an explanation as to why it took that amount of time to review the material even if Plaintiff was trying to obtain “withheld information.”

Further, assuming production in response to the First Requests for Production occurred on March 20, 2019 and Plaintiff needed time to review the material, it is not clear to the Court how that production relates to the First Set of Interrogatories and any outstanding responses. Based on the timeline of events and taking into consideration Plaintiff's version of the dispute, the Court finds that the motion to compel with respect to the First Set of Interrogatories was not timely filed.

*3 Further, assuming there is not an issue of timeliness regarding the unreasonable delay in the actual filing, there is one with respect to the conference required under Local Rule 3.01(g).[2] Plaintiff states that at the end of the January 23rd and 25th calls, the “parties reached agreements regarding many of the requests and interrogatories,” while others remained in dispute. Doc. 131 at 2, 5. As discussed, Plaintiff contends that production and review of the documents was still ongoing for five months. Plaintiff makes no representation that another 3.01(g) conference occurred between January 25th and May 31st when he filed his motion. Instead, Plaintiff filed the motion to compel after the production and review occurred without conducting any further conference on the motion. Even if Defendant was aware that there was a discovery dispute in January 2018, Plaintiff did not provide Defendant with an opportunity to resolve the pending issues because months had passed and “substantial production” – as Plaintiff describes it – occurred. The Court finds that given the passage of time and the subsequent developments, the 3.01(g) conferences held in January were insufficient to satisfy the rule.

While Plaintiff's motion to compel also relates to the responses to the Second Set of Interrogatories and, again, the motion was not filed until minutes before the deadline, the Court is not persuaded by Defendant's timeliness argument regarding that aspect of the motion. Specifically, Defendant timely responded to Plaintiff's second set of requests on April 1, 2019. Doc. 99-4. The parties conducted the 3.01(g) conference on May 9, 2019, but Plaintiff explains that the parties were unable to discuss each request during the call and agreed to coordinate another conference. Doc. 131 at 2. In light of scheduling conflicts, counsel was unable to confer until May 22, 2019. Id. at 3. While the Court does not encourage parties to wait until minutes before a deadline to file, the filing of the motion approximately one week after the 3.01(g) conference was not unreasonable.

Pursuant to Plaintiff's notice regarding partial resolution of the motion, there is a remaining dispute with regard to two responses found in each set of discovery requests. With regard to Plaintiff's First Set of Interrogatories, Plaintiff moves to compel responses to nos. 4 and 5. Doc. 99 at 6. The interrogatories and responses are as follows:

Doc. 99 at 6.

The entirety of Plaintiff's argument is that Defendant agreed to amend its responses to include information about unforeseen term changes and market conditions, who was involved in determining that the term changes and market conditions were unforeseen, and when Defendant learned of the unforeseen term changes and market conditions. Id. at 6-7. In response, Defendant claims that it has already provided Plaintiff with the supplemental responses to these requests through the deposition of numerous witnesses, including the list of individuals provided in no. 4. Doc. 125 at 10. Defendant states that Mark Lederer, Kevin Fletemeyer, and Mostafa Kamal were deposed, and each individual testified as to how term changes and market conditions were determined to be “unforeseen” per the terms of the 2015 Commission Plan.[3] Id. Further, Defendant provides that “[e]ach of these individuals testified uniformly with respect to the determinations at issue, and such clear testimony serves as a full and sufficient supplement to [Defendant's] responses to First Set of Interrogatories Nos. 4 and 5.”

Upon due consideration, the Court finds that Plaintiff has not met his burden with respect to these interrogatories. Generally, the proponent of a motion to compel discovery bears the initial burden of proving that the information sought was relevant. Bright v. Frix, 2016 WL 1011441 (M.D. Fla. Jan. 22, 2016). When relevant is not apparent, the burden is on the party seeking discovery to show the relevancy of the discovery request. Moss v. GEICO Indem. Co., 2012 WL 682450, at *4 (M.D. Fla. Mar. 2, 2012). Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense, 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. Fed. R. Civ. P. 26(b)(1). The term “relevant” in Rule 26 should encompass “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351-52 (1978).

Nonetheless, the court must limit the extent of discovery otherwise allowed if it determines that the discovery sought can be obtained from some other source that is more convenient, less burdensome, or less expensive, or the burden or expense of proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C).

Here, Plaintiff fails to provide any discussion regarding the relevance of the information sought in the interrogatories and it is not apparent from the face of the requests. Assuming relevancy exists, it appears from the response that Defendant has already provided Plaintiff with a supplemental discovery through the depositions. It was clear from the initial response that it was Defendant's position that the depositions were an adequate and more convenient source of the information. Plaintiff fails to explain to the Court or provide any citation to authority that would demonstrate that something beyond the depositions is necessary to satisfy the requests. Plaintiff does not even address the depositions or the fact that they apparently covered the information sought. As such, Plaintiff's request for the Court to compel supplemental responses is denied.

*5 With respect to the remaining two interrogatories, Plaintiff contends that Defendant is withholding discoverable information. Specifically, Plaintiff argues that interrogatory nos. 7 and 10 of the Second Set of Interrogatories are at issue because Defendant refuses to provide relevant information. Doc. 99 at 7-11.

In no. 7, Plaintiff seeks information regarding Defendant's claim that Plaintiff interfered with its business relationships. Id. at 7. Namely, Plaintiff requests the identity of the business relationship, the date it was formed, the date Plaintiff allegedly interfered with it, and the manner in which the interference occurred. Id. In response to the interrogatory, Defendant leads with a boilerplate general response, which is waived, but then provides a long list of various business entities. Defendant further responds that it is without knowledge as to the exact date of the alleged interference or the specific nature of the interference, “but such interference has generally occurred in 2018 continuing to the present.” Id. Defendant states that this lack of knowledge is due to Plaintiff's refusal to meaningfully participate in discovery. Id. That said, Defendant then refers Plaintiff to his own deposition testimony and answers to interrogatories, and other testimony from the employees of Anton Health, LLC and Anton Rx, LLC. Id., citing Response to Interrogatory No. 3.

In the Motion, Plaintiff asserts that during the 3.01(g) conference, Defendant's counsel agreed to research the date the relationships were formed and update Plaintiff. Doc. 99 at 8. Plaintiff states that Defendant has not done so and requests that the Court compel Defendant to fully respond. Id.

Plaintiff is not entitled to the requested relief. Specifically, Defendant states in the response that it does not have any additional information to provide. Doc. 125 at 11-12. Defendant states that since the parties’ conversations in May 2019, counsel has not discovered any additional information that would be responsive, and the response is complete. Id. Accordingly, the Court cannot compel something that does not exist. See Country Inns & Suits by Carlson, Inc. v. Interstates Props., LLC, 2010 U.S. Dist. LEXIS, at *3-4 (M.D. Fla. Sept. 17, 2010) (finding that the court cannot compel the disclosure of something which the defendant affirmatively states does not exist.).

With regard to no. 10, Plaintiff seeks information regarding persons that Defendant communicated with concerning the lawsuit. Doc. 99 at 8. Defendant's response is as follows:

Doc. 99 at 8.

This objection is entirely boilerplate and, as a result, is waived. See e.g., Asphalt Paving Sys., Inc. v. General Combustion Corp., 2016 U.S. Dist. LEXIS 74014, at *2 (M.D. Fla. June 7, 2016) (“The Court will not consider frivolous, conclusory, general, or boilerplate objections.); Middle District Discovery (2015) at 16 (“All grounds for an objection must be stated with specificity.”). Accordingly, Plaintiff's motion with respect to no. 10 is due to be granted to the extent that Defendant should be compelled to supplement its response.[4]

*6 Finally, with respect to both parties’ requests for attorney fees for filing the motion and responding thereto, the Court will not award that relief. Federal Rule of Civil Procedure 37 provides that if a motion to compel is granted in part and denied in part, “the court may ... apportion the reasonable expenses for the motion.” Fed.R.Civ.P. 27(a)(5)(C) (emphasis added). Given the disposition of the motion, it seems inappropriate to give an award to either party.

II. Plaintiff's Motion to Compel Production of Documents Responsive to Plaintiff's First Request for Production (Doc. 100)

Plaintiff moves to compel production with respect to 26 requests from his First Request for Production. Doc. 100. Plaintiff has since filed notices of partial resolution, which reflect that eight of the requests are still at issue. See Docs. 117, 124. Plaintiff also takes issue with Defendant's general objections, and requests that Defendant produce a privilege log and be compelled to pay attorney fees for filing the motion. Doc. 100. The motion is due to be denied.

A. Timeliness

The timeline of events discussed in the previous section of this Order with respect to the discovery dispute surrounding Plaintiff's First Set of Interrogatories is the same as it relates to this motion. Specifically, Defendant's responses to the First Set of Request for Production were served on Plaintiff on November 20, 2018. The parties’ conference regarding these responses also occurred during the January 23rd and 25th conversations. Even though the motion was filed five months later, no additional conference took place which is insufficient to satisfy Local Rule 3.01. This is especially true since Plaintiff complains in the motion that Defendant advised during the January conferences that it would confirm its position on several requests and has not since advised Plaintiff “what will or has been produced, nor amended its response to reflect whether responsive documents will be produced.” Defendant provides that it agreed to supplement its responses in January and subsequently produced over 23,500 additional pages of documents. Doc. 126 at 4-5.

As with the First Set of Interrogatories, Plaintiff's decision to file the motion minutes before the close of discovery and almost five months after the conference is unreasonable and is not sufficient under Local Rule 3.01(g). See Branch v. Victory II, LLC, 2017 WL 10808790 (M.D. Fla. Aug. 4, 2017 (finding that the 3.01(g) conference that occurred two months prior to the motion to compel was too remote in time and was incomplete.). Accordingly, the Plaintiff is not entitled to Court intervention on the discovery dispute.

B. Merits

Assuming that the motion was timely filed and complied with the Local Rules, it is still due to be denied. The requests and responses that remain at issue are nos. 5, 23-28, and 32. With respect to Request for Production no. 5, Plaintiff seeks the following:

*7 Doc. 100 at 5.

Plaintiff argues that at the meet and confer, Defendant's counsel agreed to discuss the objection with the client and advised Plaintiff's counsel of its position, which it has not done. Doc. 100 at 6. Plaintiff contends that “the requested information is highly relevant to the calculation of commissions owed to Larweth under the 2015 commission plan at issue in Count I of the Complaint. The 2014 data may reflect foreseen changes to terms and market conditions, including budgeted items for both, and the 2016 data will evidence any true-ups of 2015 financials based on income and losses that were unknown until final calculations were made in 2016.” Id.

The Court agrees with Plaintiff's argument, but only in part. Plaintiff has a claim for unpaid commission earned in 2015 in connection with rebate contracts that he brokered. Doc. 1 at 1, 2, 7, and 15. Plaintiff alleges in the Complaint that “the commission plan outlined in exchange for Plaintiff's services negotiating rebate contracts, Magellan would pay Plaintiff commissions during the first quarter of 2016 in the manner and amount outlined in the commission plan.” Id. at 15. Plaintiff also alleges that the “the commission plan applied to the entire calendar year of 2015 and was the sole document governing Plaintiff's compensation.” Doc. 1 at 15.

Accordingly, it is clear that the financial statements relating to the 2015 commissions Plaintiff earned in connection with the rebate contracts are relevant to the claims. Indeed, it appears that Defendant concedes that this aspect of the request is relevant. See Doc. 126 at 10. However, the Court is not persuaded that Plaintiff is entitled to the additional documentation, to the extent it even exists, regarding financial statements for 2014 and 2016. The Complaint is clear that the commissions at issue solely stem from 2015, to be paid out in the first quarter of 2016, and the relevance of “foreseen changes to terms and market conditions” seems tenuous. Further, calling for Defendant, and the Court for that matter, to determine what financial statements reflecting sales and losses attributable to each rebate contract Defendant “benefited from” is vague and does not appear relevant to the 2015 plan Plaintiff alleges is at issue.

As such, it would appear that Plaintiff is entitled to relief but only with respect to financial statements relating to the 2015 rebate contracts Plaintiff brokered. However, Defendant provides in the response that it has produced documentation with respect to Plaintiff's 2015 rebate contracts that would allow him to calculate the commissions owed as alleged in Count I. Doc. 126 at 10. Again, the parties have advised the Court that significant production occurred after the January 2019 conferences. There is nothing to dispute Defendant's contention that the documents were produced and, therefore, the relevant portion of the request is moot.

Likewise, Plaintiff is not entitled to relief with respect to request no. 32 and the general objections because the Court cannot compel something that is not withheld. Defendant provides that it is not withholding documents responsive to request no. 32, and it advised Plaintiff that it is not withholding any information subject to the general objections. Doc. 126 at 9, 17. Admittedly, Defendant states that it inadvertently failed to confirm this fact in earlier correspondence with Plaintiff's counsel. Doc. 126 at 9. While the omission might be the fault of Defendant, this emphasizes the importance of a more recent meet and confer before the filing of a motion to compel.

*8 This leaves the Court with requests nos. 23 through 28, which all relate to the “carve-out rebate business and insurance companies.” Plaintiff states that during the January 2019 meet and confer call, Defendant agreed to “produce documents exchanged between Larweth and the entities identified in Requests for Production 23-28 from January 1, 2015 to July 1, 2016.” Doc. 100 at 13. Plaintiff's complaint is that Defendant stated that it was unwilling to produce materials related to Defendant's customers and business not involving Plaintiff. Id. Plaintiff argues that relief is appropriate because “[g]iven the language of the restrictive covenants at-issue, see DE 35-1 at 7(b)-(c), that extend to the restrictions to all ‘products or services developed, provided or offered by [Magellan] at the time of his or her employment with Employer’ and ‘any customer of employer for purposes of providing or selling products or services that are offered by employer,’ Magellan must provide all responsive materials to these requests reflecting and the at-issue customers.” Id. Plaintiff states further that Defendant has not amended its written responses or confirmed in writing that such materials have been produced. Id.

The Court is not persuaded. These requests broadly seek production of documents that are not entirely relevant on the face of the request. The Court understands that Defendant has asserted a breach of contract claim based on the restrictive covenants, but the existence of the claim does not explain why Plaintiff is entitled to “all documents” between Plaintiff and members relating to base rebates, price protection rebates, and term improvements/enhancement rebates for the applicable years. And even if relevancy seemed apparent from the face of the request, Defendant has convinced the Court that the requests are overly broad and not actually relevant. See Moss, 2012 WL 682450, at *4 (when the discovery sought appears relevant on its face, the objecting party carries the burden to show why the requests are improper and irrelevant.).

Namely, the requests appear to request every email or communication Plaintiff exchanged with the insurance company and other end user customers from January 1, 2015 through December 31, 2016, which encompasses the time Plaintiff was still employed.[5] Although restrictive covenants might be at issue by virtue of Defendant's own allegations, the requests appear to be overreaching or otherwise irrelevant.

What is especially troubling is Plaintiff's complaint that Defendant has not amended its written responses or confirmed that responsive materials have been produced. This is precisely the reason why a timely conference pursuant to Local Rule 3.01(g) was necessary. At least with respect to request no. 23, Defendant states that after the conference it requested that Plaintiff provide search terms. Doc. 126 at 11. When counsel refused, Defendant provides that it developed its own search terms, conducted a diligent search, and “ultimately produced a significant number of documents.” Id. Without conferring on the remaining discovery issues, Plaintiff went ahead with his motion which is apparently based on the original broad requests. If Plaintiff believed that amended responses were due even after production occurred which would be the basis for the motion to compel, that issue should have been discussed during a 3.01(g) conference.

C. Privilege Log

Plaintiff argues that while Defendant has asserted attorney-client privilege and work product protections as a justification for withholding materials, it has not produced a privilege log. Doc. 100 at 20. The entirety of Plaintiff's argument is that “a log of materials withheld is particularly important in this case where the scope of materials and communications shielded by privilege or work product protections is contested as detailed herein.” Id. at 20-21.

Upon due consideration, the Court finds that Plaintiff is not entitled to an order compelling production of the log. Defendant states that Plaintiff has never conferred with counsel pursuant to Local Rule 3.01(g) with regard to the log. Defendant adds that the subject of privilege logs was mentioned on May 17, 2019 when Defendant's counsel asked Plaintiff's counsel whether documents referenced in a deposition had been included on Plaintiff's privilege log. Defendant states that Plaintiff's counsel “indicated that the parties had not yet exchanged privilege logs; he did not specifically ask for Magellan to do so.” Doc. 126 at 8. Defendant asserts that Plaintiff's counsel during a subsequent conversation “mentioned in passing that both parties needed to produce privilege logs.” Id. Even so, Plaintiff's counsel did not ask about Defendant's log or demand that it be produced. Id.

*9 As such, Plaintiff failure to confer on this issue is detrimental to his motion. “The purpose of Local Rule 3.01(g) is to force counsel to try to achieve a resolution of a motion without judicial intervention and use of judicial resources.” Kaplan v. Burrows, 2011 U.S. Dist. LEXIS 125653, at *31 (M.D. Fla. Sept. 6, 2011). The Court fails to see why it should expend resources resolving a discovery dispute that never existed.

Finally, while Plaintiff's motion is denied in its entirety, the Court finds that Defendant is not entitled to fees. Although the January conferences were inadequate, the Court finds that Plaintiff's reply with regard to the timeliness of the conferences to be sincere, if ultimately unpersuasive.

III. Plaintiff's Motion to Compel Production Responsive to Plaintiff's Second Request for Production (Doc. 101)

Plaintiff's original motion seeks production as it relates to 26 requests. Doc. 101. Pursuant to Plaintiff's notices of partial resolution, 16 requests remain along with an argument challenging Defendant's general objections and the need for a privilege log. See Doc. 117, 124, and 101. As an initial matter, Defendant raises the same argument that the motion to compel is due to be denied because it was not brought within a reasonable period of time and because counsel failed to confer. Doc. 127. The Court is not persuaded that Defendant prevails on this argument. As stated with regard to the Second Set of Interrogatories, the filing of the motion approximately one week after the 3.01(g) conference was not unreasonable.[6] Also, given the disposition of this motion, the Court finds that neither party is entitled to fees.

A. Merits

Defendant states that it has “clarified the status of its production, thus mooting [Plaintiff's] motion with respect to many requests.” Doc. 127 at 7. Indeed, Plaintiff filed the notice of partial resolution which states that the issues surrounding request nos. 4-6, 9-11, 18, 20, 54, and 55 have been resolved. Docs. 117, 124. Accordingly, the Court will address request numbers 1-3, 16, 23-32, 35, and 36.[7]

*10 With regard to request nos. 1-3, 24-32, 35 and 36, the Court finds that Plaintiff is entitled to relief because Defendant's responses are pure boilerplate. None of the responses include specific objections and are entirely based on generic responses that the requests are overly broad, vague, unduly burdensome, not proportional to the needs of the case, and irrelevant. The objections are, therefore, deemed waived. See Spencer v. City of Orlando, Florida, 2016 WL 397935, at *2 (M.D. Fla. Feb. 2, 2016) (concluding that objections that are “are too vague and nonspecific” fail to “preserve any objection to the requested discovery.”).

Notwithstanding the boilerplate objections to request nos. 16 and 23, the Court is not inclined to compel production. With regard to no. 16, Plaintiff seeks “[d]ocuments sufficient to show all revenue, profits, and losses attributable to Larweth during his employment with Magellan.” Doc. 101 at 9. Defendant responds with a generic objection that the request is overbroad in time and scope, is unduly burdensome, and seeks documents that are neither relevant to the claims and defenses in this action nor proportional to the needs of the case. Id.

Despite the waiver, Defendant's opposition in its response to the motion with regard to this request is persuasive. Specifically, Defendant states that it has attempted to explain to Plaintiff's counsel that it does not attribute profits or losses to Plaintiff. Doc. 127 at 12. Instead, Defendant convincingly explains that the profitability of any business is derived from numerous factors and Defendant cannot identify a single employee's contribution. Defendant's point is well taken and, therefore, the Court cannot compel documents that do not exist. At any rate, Defendant provides that it has produced documents to show revenue “attributable” to Plaintiff during 2015. The Court finds that this production sufficiently responds to this request.

Further, even though the boilerplate objection is not an adequate response, the Court will not grant relief with respect to no. 23 because the request is not proportional to the needs of this case and appears on its face to be unduly burdensome. Request no. 23 is “All Disputed Material.” Doc. 101 at 10. Plaintiff defines “disputed materials” as follows:

Doc. 101 at 12.

Pursuant to Federal Rule of Civil Procedure 26(b)(2)(C)(i), the Court finds on its own accord that requiring Defendant to provide “all disputed material” even with the added definition of what Plaintiff means by this phrase is overreaching. While the restrictive covenants are relevant, such a broad request is disproportionate to the needs of this case especially since the Court is granting relief with respect to other requests dealing with the covenants.

B. Privilege Log

In the response, Defendant advises the Court that at no time has Plaintiff conferred with Defendant under Local Rule 3.01(g) regarding the production of the privilege log. Doc. 127 at 6. Defendant provides the same specifics regarding counsels’ conversations or lack thereof on this topic as discussed with respect to the Second Set of Interrogatories. The Court will not compel production on an issue the parties did not even attempt to resolve.

IV. Defendant and Non-Party George Petrovas’ Motion to Quash and for Protective Order (Doc. 108)

*11 On May 17, 2019, Plaintiff served a Notice of Production from Non-Party, which included a subpoena for records issued to Verizon. Plaintiff originally requested all call logs and text message logs from June 1, 2017 to the present from telephone numbers owned by Defendant but used by three employees: Mostafa Kamal, Mark Lederer, and Joseph Taveres. Plaintiff sought the same information from the privately-owned telephone number of George Petrovas who is described as an “independent consultant to [Defendant].” Doc. 108 at 1-2. The subpoena also requested the content of all text messages between these four individuals and three other wireless cell phone numbers.[8]

Defendant explains that counsel conferred on more than one occasion and Plaintiff has agreed to narrow the scope of the subpoena from December 1, 2017 to the present, and agreed to withdraw requests no. 2, 4, 6, and 8, which sought content of text message communications. Doc. 108 at 2, n. 5. Accordingly, Plaintiff now seeks the text and call logs from the narrowed time period. Doc. 130 at 1-2.

Defendant, along with Mr. Petrovas, seeks to quash the subpoena pursuant to Rules 26 and 45 of the Federal Rules of Civil Procedure. Doc. 108. Courts maintain great discretion to regulate discovery. Patterson v. U.S. Postal Serv., 901 F.2d 927, 929 (11th Cir. 1990). The court has broad discretion to compel or deny discovery. Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). Through discovery, parties may obtain materials that are within the scope of discovery, meaning they are nonprivileged, relevant to any party's claim or defense, and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Courts consider the following factors: (1) “the importance of the issues at stake in the action,” (2) “the amount in controversy,” (3) “the parties’ relative access to relevant information,” (4) “the parties’ resources,” (5) “the importance of the discovery in resolving the issues,” and (6) “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

A court must quash or modify a subpoena that “requires disclosure of privileged or other protected matter, if no exception or waiver applies.” Id. at 45(d)(3)(A)(iii). Further, a protective order may be issued for good cause to protect a person from annoyance, embarrassment, oppression, or undue burden or expense, by forbidding the discovery, forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters. Id. at 26(c)(1)(A), (D). The party seeking a protective order has the burden of demonstrating good cause. Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429-30 (M.D. Fla. 2005). “ ‘Good cause’ is a well-established legal phrase. Although difficult to define in absolute terms, it generally signifies a sound basis or legitimate need to take judicial action.” In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987).

“The scope of discovery under a Rule 45 non-party subpoena is the same as the scope of discovery under Fed.R.Civ.P. 26(b)[.]” Medi-Weightloss Franchising USA, LLC v. Medi-Weightloss Clinic of Boca Raton, LLC, 2012 WL 12904394, *2 (M.D. Fla. May 10, 2012). The party seeking to quash the subpoena bears the burden to establish that the information sought is protectable under Rule 45, but the party issuing the subpoena bears the burden of proving the requests are relevant. Hence, in determining whether to quash the subpoena, the Court should balance the need for the particular discovery against the burden imposed with production and the opposing party's interest in maintaining confidentiality of the requested information. Id. (citing Fadalla v. Life Auto. Prods., Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2011)). “Other factors a court should consider are the relevance of the requests, the breadth of the requests, the time period covered by the requests, and the particularity with which documents requested are described.” Black Knight Fin. Servs., Inc. v. Powell, 2014 WL 10742619, *2 (M.D. Fla. Dec. 11, 2014). “The status of a person as a non-party is a factor that weighs against disclosure.” Id.

*12 Here, Defendant argues that the remaining information sought in the subpoena is overbroad in time and irrelevant. Doc. 108 at 6. Defendant states that the logs are sought in conjunction with Plaintiff's defamation claim, which according to Defendant, is limited to statements made in March 2018. Id. Defendant then argues that these logs “necessarily will include confidential and sensitive customer information,” including client phone numbers and the frequency of contact with customers. Id. at 8. Defendant states that the information will show which customers are significant to Defendant's business and would be harmful. Id. Further Defendant argues that since the phone numbers are owned or operated by non-parties, extra precaution should be taken. Id.

In response, Plaintiff argues that the three employee phones belong to Defendant and Mr. Petrovas is a “key figure in this litigation.” Doc. 130 at 1. Plaintiff states that Defendant advised Plaintiff that he would be terminated in December 2017 and Defendant subsequently engaged in a smear campaign designed to destroy Plaintiff's reputation in the market. Doc. 130 at 2, citing Complaint ¶¶ 70-79. Plaintiff argues that the countersuit seeking to enforce restrictive covenants against Plaintiff means that Defendant has put its customer relationships at issue and renders the information sought discoverable. Doc. 130 at 2. Plaintiff adds that the Court previously permitted discovery via subpoena of Plaintiff's call logs from March 2017 forward and the subpoena at issue here “seeks information virtually identical.” Id.

The Court is not inclined to grant the motion. As Plaintiff points out, and the Court agrees, Plaintiff has not limited the alleged defamatory statements to March 2018. Doc. 130 at 3. While Plaintiff does reference March 9th and 12th, Plaintiff more generally alleges that Defendants’ executives disseminated false statements to certain businesses and to numerous employees. Doc. 1 at ¶¶ 72-79. Further, while it is not clear to the Court how the call logs relate to the counterclaim even if Defendant has made the significance of its relationships an issue in this litigation, the Court is persuaded that Plaintiff is entitled to the information in connection with the defamation claim. Plaintiff states that discovery has “revealed additional defamatory statements by Magellan agents, including Petrovas.” If that is so, then the call logs may be relevant regarding the contact between the employees and customers as Plaintiff argues. Further, since Plaintiff has limited the scope of the subpoena to the logs as opposed to the actual content, the Court is not convinced that Defendant's confidentiality argument wins the day.

Having considered the positions of the parties and the subject matter of this lawsuit, the Court finds that the phone records are relevant and discovery is permissible under Rule 26 to the extent that Plaintiff has already agreed to limit the temporal scope and content. Thus, the subpoena shall be modified to reflect that the records sought shall be produced from December 2017 to the present and do not include call or text content. Plaintiff shall serve the modified subpoena upon the third party.

While the motion is denied, the Court will not award fees to Plaintiff because the request for relief was substantially justified, although ultimately unsuccessful. See Baumann v. Bank of Am., 2017 U.S. Dist. LEXIS (M.D. Fla. Jan. 13, 2017) (if a motion for protective order is denied, the court must award reasonable attorney's fees and costs to the party opposing the motion unless it was substantially justified or other circumstances make the award of expenses unjust.).

V. Plaintiff's Motion to Compel the Continued Deposition of Defendant's 30(b)(6) Corporate Representative (Doc. 109)

*13 Plaintiff moves to compel the continued deposition of Defendant's corporate representative because Defendant's counsel improperly instructed this individual not to answer questions at the deposition because a motion for protective order was pending and based on relevance objections. Plaintiff's motion is due to be granted. In relevant part, on May 3, 2019, Plaintiff served his second notice of taking videotaped deposition of the corporate representative, which was scheduled for May 15, 2019. In the response, Defendant's counsel states that he reviewed the notice on May 7th, after returning to the office from a retreat, and determined that unresolved issues remained. Doc. 129 at 2-3. Defendant provides that it advised Plaintiff's counsel that it would move for protective order but did not do so until May 13th – two days before the scheduled deposition. Id. at 3. The deposition went forward, and the Court subsequently denied Defendant's motion for protective order as moot. Doc. 93.

As stated in the Court's Order, Defendant did not request a temporary stay of the deposition pending consideration of the motion and, because the Court had no opportunity to obtain a response or even set a hearing prior to the scheduled deposition, the Court took no immediate action and awaited Plaintiff's response. Id. at 2. The Court provided Plaintiff with an extension of the discovery period for the sole purpose of filing a motion to compel another deposition of Defendant's corporate representative, which he has done.

Here, Plaintiff argues, and the Court agrees, that counsel's instruction to the representative to not answer because the motion for protective order was pending was improper. Counsel may instruct a deponent not to answer only under the following circumstances: (1) when necessary to preserve a privilege; (2) to enforce a limitation on evidence directed by the court; or (3) to protect a witness from an examination being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress the deponent. Fed. R. Civ. P. 30(c)(2), (d)(3). The use of an instruction not to answer, absent the limited circumstances in Rule 30(c)(2), is disfavored. Middle District Discovery (2015) at 8-9. The circumstances outlined in the rule permitting the instruction not to answer are not present. Indeed, “the mere filing of a motion for protective order does not, absent an order of the court granting the motion, excuse the moving party from complying with the requested or scheduled discovery.” Id. at 22.

Also, Plaintiff provides that counsel instructed the representative not to answer based on a relevancy objection. “It is arguable whether objections on relevancy should be made during depositions; however, if counsel feels compelled to make a relevancy objection, he may do so, but the deposition should continue with the testimony being taken subject to the objection.” U & I corp. v. Advanced Med. Design, Inc., 2008 U.S. Dist. LEXIS 127460, at *5 (M.D. Fla. July 3, 2008) (citing, Geico Casualty Co., v. Beauford, 2006 WL 2789013, at * 3 (M. D. Fla. Sept. 26, 2006)). Thus, during the deposition, Defendant's counsel could have made a relevancy objection and then instructed the deponent to proceed with his testimony. This did apparently did not occur.

Based on the foregoing, Plaintiff is entitled to re-depose the corporate representative pursuant to Rule 30(b)(6) for the limited purpose of asking the questions counsel instructed the deponent not to answer. The Court is not inclined to grant Plaintiff's request for attorney fees because Defendant's position at the deposition was substantially justified.[9]

VI. Conclusion

*14 Based on the foregoing, it is ORDERED that:

DONE and ORDERED in Orlando, Florida on July 16, 2019.

Defendant's response reflects that the interrogatories were dated October 3, 2018. Doc. 99-3 at 2. Whether the discovery was served on October 3rd or 5th does not impact this analysis.

Local Rule 3.01(g) provides that before filing any motion in a civil case, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, or to involuntarily dismiss an action, the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion, and shall file with the motion a statement (1) certifying that the moving counsel has conferred with opposing counsel and (2) stating whether counsel agree on the resolution of the motion.

It appears that Defendant mentions the 2015 Commission Plan because interrogatory no. 3, referenced in Nos. 4 and 5, focuses on that plan. Doc. 99-1 at 6.

The Court notes that it is Defendant's argument in the response that the interrogatory seeks information protected by the attorney-client privilege and/or work-product doctrine. Doc. 125 at 12. However, Plaintiff specifies in the Motion that it was explained at the meet and confer that he does not seek attorney notes from the communications. Id. at 9.

The counterclaim provides that Plaintiff worked for Magellan from 2006 to 2011 and 2014 to 2018. Doc. 116.

The Court recognizes that Defendant states that during the parties May 22, 2019 conference, counsel for Defendant advised that she would confirm that all non-privileged documents had been produced with respect to these requests and counsel subsequently explained in writing that Defendant was not withholding any documents. Doc. 127 at 6. Regardless, Defendant states that Plaintiff filed the motion to compel “at least half of which appears to seek the very confirmation which [Defendant's] counsel had already provided, without first contacting [Defendant's] counsel to indicate when they would in fact provide the confirmation they had promised to prove (and had in fact provided.).” Id. Defendant contends that this conference was insufficient. Id. On the other hand, Plaintiff states that it is inaccurate to state that Defendant's counsel's email reflected that documents were not being withheld, and actually confirmed that Defendant was maintaining objections. Doc. 131 at 3. Since there seems to be a dispute whether documents are being withheld and it appears to the Court that a 3.01(g) conference occurred, the Court will address the individual requests and responses.

Since Plaintiff's motion to compel is due to be granted with respect to all but two of the requests, the Court finds it unnecessary to rule on his request to overrule the “general objections.”

Defendant states that the numbers were “later identified as belonging to a former Magellan employee and two individuals in the industry to whom allegedly defamatory comments about Larweth were made.” Doc. 108 at 3.

While Defendant agrees that case law from this District and the Discovery Handbook “recommend that parties avoid instructing witness not to answer on grounds other than privilege, it maintains that it was relying on good faith based on Salzbach v. Harford Ins. Co. of the Midwest, 2013 WL 12098763, at *2 (M.D. Fla. Apr. 19, 2013), “regarding the proper way to proceed ‘when a party asserts that a noticed [30(b)(6)] topic is irrelevant or harassing.’ ” Id.