Measured Wealth Private Client Grp. v. Foster
Measured Wealth Private Client Grp. v. Foster
2021 WL 6135156 (S.D. Fla. 2021)
October 8, 2021

Matthewman, William,  United States Magistrate Judge

Privacy
Failure to Produce
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Summary
The court denied the Plaintiff's Motion to Compel Responses to Its Fourth Request for Production and Inspection of Documents and Other Things Propounded on Defendant Lee Anne Foster. The court found that the only digital storage device in Defendant's possession was a Lexar USB flash drive, and the only contents of that flash drive which were allegedly downloaded from Plaintiff's computer had already been produced. An inspection/examination of the digital storage device and computers used to access the information was deemed unnecessary and would constitute an invasion of Defendant's privacy.
Additional Decisions
MEASURED WEALTH PRIVATE CLIENT GROUP, LLC, a New Hampshire limited liability company, Plaintiff,
v.
LEE ANNE FOSTER, an individual, et al., Defendants
Civil No. 20-cv-80148-SINGHAL/MATTHEWMAN
United States District Court, S.D. Florida
Entered on FLSD Docket October 08, 2021

Counsel

Elizabeth Olivia Hueber, Saenz & Anderson, PLLC, Aventura, FL, Jacob Monroe Resnick, Jordan David Utanski, Peter Theodore Mavrick, Steven M. Canter, Maverick Law Firm, Fort Lauderdale, FL, for Plaintiff.
Andrew Broin Thomson, Baritz & Colman LLP, Boca Raton, FL, Benjamin E. Widener, Pro Hac Vice, Cory A. Rand, Pro Hac Vice, Craig S. Hilliard, Pro Hac Vice, Stark & Stark, PC, Lawrenceville, NJ, for Defendants Lee Anne Foster, Richard Kesner.
Andrew Broin Thomson, Baritz & Colman LLP, Boca Raton, FL, Craig S. Hilliard, Pro Hac Vice, Stark & Stark, PC, Lawrenceville, NJ, for Defendant Stoever Glass Wealth Management, Inc. CT Corporation System 28 Liberty Street New York, NY 10005.
Matthewman, William, United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL [DEs 204, 205]

*1 THIS CAUSE is before the Court upon Plaintiff, Measured Wealth Private Client Group, LLC's (“Plaintiff”) Motion to Compel Responses to Its Fourth Request for Production and Inspection of Documents and Other Things Propounded on Defendant Lee Anne Foster (“Motion”) [DEs 204, 205[1]]. The Motion was referred to the undersigned by the Honorable Raag Singhal, United States District Judge. See DE 34. Defendant, Lee Anne Foster (“Defendant”), has filed a Response [DE 210]. This matter is ripe for review.
 
According to the Motion, Plaintiff propounded its Fourth Request for Production to inspect Defendant's “(1) digital storage devices containing Measured Wealth client information; (2) digital storage devices formerly containing Measured Wealth client information; (3) digital storage devices Foster connected to Measured Wealth computers; and (4) computers used to access the Measured Wealth client information Foster saved to the aforementioned digital storage device in 2019.” [DE 205 at 1]. According to Plaintiff, prior to propounding the Requests for Production, Plaintiff discovered through Plaintiff's computer expert that Defendant used “at least three digital devices to collect Measured Wealth's trade secrets in the days immediately preceding her resignation from Measured Wealth” and that Defendant “connected these devices to her assigned Measured Wealth laptop.” Id. Plaintiff claims that the court-appointed forensic examiner “examined Foster's personal cellular telephone and issued a report containing text messages demonstrating Foster used a ‘jump drive’ to save client information downloaded from Measured Wealth's computer systems.” Id. at 2. Plaintiff argues that Defendant's boilerplate objections should be overruled, and she should be compelled to produce the information sought because she has failed to establish privilege, exceptional circumstances are not required to conduct an inspection under Rule 34 because this is a routine request for inspection and not a request for forensic examination, the inspection is narrowly tailored, necessary and proportionate to the needs of the case, and there is already a confidentiality order in place. Id. at 3-5.
 
In response, Defendant claims that she has only one digital storage device, a Lexar USB flash drive, and the only contents of that flash drive which were allegedly downloaded from Plaintiff's computer include TD Ameritrade and Fidelity account statements which have already been produced in this action, along with an Excel spreadsheet titled “consolidatedbalances.csv” which has now been produced to Plaintiff. [DE 210 at 2]. According to Defendant, all other files on that flash drive were created after she resigned from Plaintiff and began working for Stoever Glass Wealth Management, Inc. and include “confidential and sensitive information regarding SGWM clients after they left Measured Wealth (and thus not responsive or relevant to the requests at issue) as well as information protected by the attorney-client privilege or work-product doctrine because they were created at the direction of counsel subsequent to the commencement of this litigation.” Id. With regard to the other digital storage devices identified by Plaintiff's expert, Defendant claims that Plaintiff provided those to her when Plaintiff changed its portfolio management and reporting software; thus, those drives have always belonged to Plaintiff. Id. at 2-3. Defendant argues that the Motion should be denied because “(1) an inspection/examination of the Lone Flash Drive in Foster's possession is unwarranted and would be an invasion of her privacy; (2) an inspection/examination of the computer(s) Foster used to access the Lone Flash Drive is even less warranted and would constitute an even greater invasion of her privacy.” Id. at 3. Attached to Defendant's Response is the Declaration of Lee Anne Foster [DE 210-1].
 
*2 The Court has carefully considered the relevant law, Plaintiff's Motion [DEs 204, 205] and the exhibits attached thereto, Defendant's response [DE 210], Defendant's Declaration [DE 210-1], and the Court's prior discovery orders, as well the entire docket in this case. In her Declaration, Defendant states under the penalty of perjury that she has produced the relevant documents from the sole flash drive in her possession, custody, or control. The Court finds that Plaintiff's Fourth Request for Production seeks discovery that is disproportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Thus, Rule 26(b)(1) requires denial of Plaintiff's Motion.
 
The parties have over-litigated the discovery aspects of this case, and Plaintiff has received more than sufficient information and documents to prosecute its case. The parties have filed countless discovery motions, responses, replies and other papers. This Court has entered more than 50 discovery-related orders in this case. See DEs 42, 44, 51, 54, 56, 60, 74, 76, 78, 91, 93, 95, 97, 100, 103, 107, 111, 113, 115, 116, 118, 122, 125, 127, 131, 133, 135, 137, 144, 148, 149, 153, 160, 161, 165, 166, 168, 170, 172, 175, 176, 178, 181, 187, 189, 191, 193, 195, 197, 203, 206, 209. The Court has also held at least three lengthy and contentious discovery hearings in an effort to get the parties to comply with their respective discovery obligations. [DEs 94, 143, 171]. The discovery currently sought by Plaintiff is redundant, disproportional, and unnecessary. Enough is enough. Plaintiff's latest discovery motion [DEs 204, 205] is clearly due to be denied.
 
The parties are advised that the discovery cutoff in this case is October 29, 2021, and the parties are ORDRED to complete all discovery on or before that date.
 
Based on the foregoing, it is hereby ORDERED that Plaintiff's Motion to Compel Responses to Its Fourth Request for Production and Inspection of Documents and Other Things Propounded on Defendant Lee Anne Foster [DEs 204, 205] is DENIED.
 
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 8th day of October 2021.

Footnotes
The sealed version of the Motion is at DE 204, and the public, redacted version is at DE 205.