*1 Pending before the Court is Defendants’ Motion to Quash Subpoenas to Carlos Ramirez, Miguel Carbonell, and Alfonso Alsina Under Rule 45 and/or to Request A Protective Order Under Rule 26 at Docket No. 345, Defendants’ Motion For A Protective Order And To Partially Quash Or In the Alternative, Modify The Financial Institutions’ Subpoenas at Docket No. 346, Defendants’ Motion to Quash Subpoena to Jorge Borri Under Rule 45 And/Or To Request a Protective Order Under Rule 26 (C) at Docket No. 351, and Defendants’ Motion to Quash Subpoenas to Antonio Ochoa Under Rule 45 And/Or To Request a Protective Order Under Rule 26(C) at Docket No. 355. Plaintiffs filed an Omnibus Opposition to Defendants’ Motions For Protective Orders and to Partially Quash Accountant and Bank Subpoenas at Docket No. 352 in response to Docket Nos. 345, 346, and 351. Thereafter, Plaintiffs filed a separate Response to Docket No. 355 at Docket No. 367.

In a nutshell, Defendants argue that Plaintiffs’ subpoenas to third parties seek the same privileged and irrelevant information sought through Plaintiffs’ Request for Production of documents (“RFPs”), and represent an impermissible attempt to circumvent the objections that Defendants raised to their production when requested directly from them in the RFPs. See, Docket No. 345 at 1. Defendants support their argument with the following: (1) the product sought from third parties is irrelevant and could result in tens of thousands of documents with information that could go back several decades; such that the incremental value of the information does not justify the burdens of production because the information requested is irrelevant and not proportional to the needs of the case; (2) [Plaintiffs] seek documents protected by the attorney-client privilege, work product doctrine, and the accountant-client privilege; (3) the subpoenas seek duplicative information that Plaintiffs already sought from Defendants. Id. at 1-2.

As Defendants correctly illustrate, the first three subpoenas addressed at Docket No. 345, 346, and 351 (See Notice of Issuance of Subpoena Duces Tecum at Docket Nos. 303, 313, 318) are directed to tax advisors, accountants and/or financial consultants who provided services to the Titín Defendants or their clients. Specifically, Carlos Ramirez, Alfonso Alsina, Miguel Carbonell, and Jorge Borri are all accountants who may have provided a broad range of services to Felipe Segarra Investment Corp. (“FSIC”), Titín Foundation, Titín Estate, Martinal Real Estate (“MRE”) and Martinal Management Corp. (“MMC”), among others. The four financial institutions, Banco Popular de Puerto Rico; Oriental Financial Services, Inc; Merrill Lynch, Pierce, Fenner, and Smith, Inc; and UBS Financial services, Inc. are banking institutions who may have had control of Plaintiffs’ money.

Finally, and important to distinguish, the subpoena addressed at Docket No. 355 to Antonio Ochoa bares a separate analysis as it is substantively different even though Defendants raise the same arguments set forth in their motions to quash the subpoenas to accountants and banks (Docket Nos. 345, 346, and 351). Ochoa is referenced in the Amended Complaint as one of Freddie's confederates, whom Freddie also brought in as a director of FSB and FSIC. See, Docket No. 41 at 28. According to Plaintiffs, Ochoa was a director to at least three parties in the litigation including FSB, FSIC, and the Titín Foundation. See, Docket No. 41 ¶ 75, 234 & 280.

A. Relevancy

*2 Fed.R.Civ.P. 26(b)(1)’s discovery relevancy standard applies equally to Fed.R.Civ.P. 45 requests. Said discovery rule states that:

Not only do the subpoenas cover financial documentation over which Defendants do not currently have control, but the subpoenas pertain to non-parties whom Plaintiffs have specifically alleged at relevant times as having significant ties to, or being in the control of, Defendants and their conduct alleged in the Amended Complaint.[1] The Court has already ruled that Plaintiffs sufficiently pleaded their civil RICO allegations against Defendants. See, Docket No. 188. Similarly, the Court already ruled that the financial documents generated by accountants and banks relating to Defendants are relevant and proportional to the needs of the case. See, Docket No. 347 Accordingly, the Court's finding that Plaintiffs’ Rule 34 requests for financial discovery are relevant apply equally to Plaintiffs’ Rule 45 financial subpoenas to non-parties.

Defendants’ irrelevance argument regarding Categories A-2 and A-3 pertaining to Titín or the Titín Estate is mooted by the Opinion and Order entered by this Court at Docket No. 347. The Court held that “what is not relevant is the distribution of Titín's estate per se, but the role that the management of Titín's estate played in the allegedly fraudulent practices with the Segarra-Boerman family affairs is potentially partially involved. The Court does not know of any discovery as to Titín's estate distribution to be an illegal matter at this stage of the case. As a result, Plaintiffs are entitled to discovery of Titín's estate to prove their allegations relating to those fraudulent practices and claims that relate to the allegations in the Amended Complaint.” Id. at 10.

As to Defendants’ overbreadth argument regarding Category A-4 that is “other clients of any Defendant excluding Plaintiffs” which could trigger product of Defendants’ clients that receive federal HUD money, Plaintiffs clarified that the “the subpoenas by their terms only seek information of other clients of any Defendants to the extent those clients are entities related in any way to Defendants, meaning entities controlled or otherwise influenced by Defendants because, e.g., they sit on their boards or have an ownership interest in the same. Infinity, Famas, and the Méndez Bagur Foundations are specific examples,” because “[t]he information sought as to those types of entity clients is also highly relevant.” See, Docket No. 352 at 9. Furthermore, on the same token, Defendants object to Request # 3 in the bank subpoenas which expressly seeks “all the documents and communications regarding and relating contracts and other agreements (and the origination of the same) between [the bank] and any other account holder (i) in which any one of the Defendants has a business interest, and (ii) that had transactions with either Plaintiffs, FSIC, Titín Foundation, Titín, or the Titín Estate.” Defendants argue that the request triggers production of transactions involving their clients under the HUD and their respective confidential information, but said argument excludes the scope of the request which requires the clients to have had transactions with either Plaintiffs, FSIC, Titín Foundation, Titín, or the Titín Estate to be responsive to the request. Complying with one or the other pre-requisites is not sufficient to be considered responsive as to the subpoena.

B. Privacy

*3 Defendants argue the general assertions of privacy, confidentiality or privilege in response to the Rule 45 requests for production documents of non-party accountants and banks. First, Defendants have not met their burden with specificity of establishing its applicability pursuant to Fed.R.Civ.P. 45(d)(3)(A) and Fed.R.Civ.P. 45(e)(2)(A). Rather, they claim that the privilege covers all the requested materials instead of describing the nature of the documents that are protected by each privilege. The only examples provided by Defendants are relating to number 2 and 3 in all three Subpoenas that call for “all documents and communications relating to any member of the Segarra Boerman Family, specifically including documents prepared by Mr. Alfredo Martínez Alvarez in his capacity as attorney and executor of the estates.” See Docket No. 345 at 10. Plaintiffs respond by stating the “the nature of the allegations and defenses raised in this case puts potentially privileged documents at issue.” See, Docket No. 352 at 18. Furthermore, they cite to the crime-fraud exception to allow Plaintiffs to access documents or communications that would otherwise be confidential. See, In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 75-77 (1st Cir. 1999); U.S. v. Gorski, 807 F.3d 451, 461-62 (1st Cir. 2015). Second, the Stipulated Confidentiality Agreement and Protective Order at Docket No. 223 (“Protective Order”) resolves Defendants’ concerns as to the protection of documents. See, Jee Family Holdings, LLC v. San Jorge Children's Healthcare, Inc., 297 F.R.D. 19 21 (D.P.R. 2014)( [T]o the extent that the Non-parties seek to prevent the disclosure of personal and/or commercial financial information, see Fed.R.Civ.P. 45(d)(3)(B)(i), Local Rule 5.2 and the Court's confidentiality order “provide adequate safeguards of their privacy interests in the records sought.” See Loc. R. Civ. P. 5.2 (requiring redaction of personal identifiers in filings). The Stipulated Confidentiality Agreement provides a “mechanism through which the parties may request confidential treatment for particular documents.” Id. Finally, Defendants’ assertion that Puerto Rico's “accountant-client privilege” should apply fails because it does not apply to production of evidence in a clear federal question case. Coastal Fuels of Puerto Rico, Inc. v. Caribbean Petroleum Corp., 830 F. Supp. 80, 81 (D.P.R. 1993).

C. Protective Order

Fed. R. Civ. P. 26 provides that “[a] party or any person from whom discovery is sought may move for a protective order.” Fed. R. Civ. P. 26(c)(1). “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ....” Id. In Puerto Rico Med. Emergency Grp., Inc., 318 F.R.D. 224 at 233, the Court held that:

Defendants do not meet their burden of establishing good cause for a protective order. First, Defendants justify the grant of a protective order on the basis that the third-party subpoenas “are irrelevant or overbroad”. (Docket No. 345, 346, 351) This argument constitutes a conclusory statement “devoid of substantiation through facts or any attempt at explanation and, therefore, does not establish good cause for a protective order.” Puerto Rico Med. Emergency Grp., Inc., 318 F.R.D. 224 at 233. Second, Defendants claim that the subpoenas cause an undue burden. A party can move for a protective order to prevent undue burdens, see Fed. R. Civ. P. 26(c)(1), but the Defendants’ motions provide no facts describing how the subpoena requests “would extend the period of production of documents or the completion of depositions beyond the court's discovery deadline or that they would require Defendants to devote substantial resources to reviewing the discovery, participating in depositions, filing motions in limine.” Noble Roman's Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304 (S.D. Ind. 2016). “It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). The Court cannot grant a protective order without the specificity required for a finding of good cause. Puerto Rico Med. Emergency Grp., Inc., 318 F.R.D. 224 at 233.

D. Antonio Ochoa

*4 The Plaintiffs argue that Defendants’ motion should be denied for three main reasons. First, the motion was filed without a certification of good faith meeting and conferral in violation of Fed. R. Civ. P. 26(c) and Local Rule 26(b). See, Docket No. 367 at 3. Second, the motion conflicts with Ochoa's responses and objections to which he agreed to produce responsive documents to twenty out of the thirty requests. Id. Finally, the Subpoena seeks relevant information to the facts alleged in the Amended Complaint. Defendants’ incorporation of the same arguments regarding relevancy, privilege, and undue burden arguments advanced in their prior motions to quash Plaintiffs’ subpoenas to the banks and accountants at Docket Nos. 345, 346, and 351 are out of context.

The fact that the parties did not meet and confer prior to Defendants filing their motion are enough grounds to deny it on procedural grounds. This is not the first time Defendants file a discovery motion without abiding by Fed. R. Civ. P. 26(c), Local Rule 26(b), and previous Court orders regarding this matter. As Plaintiffs correctly illustrate, the motion lacks merit. For those reasons, the motion at Docket No. 355 is denied, and is not to be refiled.

E. Costs

If a motion to is denied, “the court the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.” Fed.R.Civ.P. 37(a)(5)(B).

On the other hand, if the court, grants a party's motion to compel discovery under Rule 37(a)(1), it must award the moving party reasonable cost associated with filing the motion, including attorney's fees, unless it can be shown that (1) the moving party filed the motion before attempting in good faith to obtain the discovery without court intervention, (2) the opposing party's failure to disclose was substantially justified, or (3) other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(5). See, Colon v. Blades, 268 F.R.D. 129, 134 (D.P.R. 2010). When it comes to motions to compel,

The Court finds that the moving party did attempt in good faith to obtain the discovery without court intervention when on May 20 and May 29, 2020, the Titín Defendants met and conferred with Plaintiffs to discuss Defendants’ concerns regarding the Subpoenas to the banks and accountants. However, the Titín Defendants objections were not justified as much of the substance has been already addressed by this Court in its Discovery Opinion and Order at Docket No. 347 and/or resolved by the Stipulated Confidentiality Agreement at Docket No. 223. For those reasons, the Plaintiffs’ request for attorney's fees is hereby GRANTED.

*5 For the reasons stated above, the Titín Defendants requests at Docket No. 345, 346, 351, and 355 to quash the Subpoena or to issue a protective order in their favor are DENIED and Defendants are hereby ORDERED to pay attorney's fees and reasonable expenses to Plaintiffs incurred to oppose the unnecessary Discovery Motions pursuant to Fed.R.Civ.P. 37(a)(5)(B).

IT IS SO ORDERED.

In San Juan, Puerto Rico, this 21st day of July, 2020.