Measured Wealth Private Client Grp. v. Foster
Measured Wealth Private Client Grp. v. Foster
2020 WL 13389331 (S.D. Fla. 2020)
October 28, 2020

Matthewman, William,  United States Magistrate Judge

Failure to Produce
Proportionality
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Summary
The court was tasked with determining the scope of the requested documents, including any ESI. The court had to consider the relevance of the ESI to the case and determine whether it should be included in the request for production, while also considering the privacy rights of the parties involved. Ultimately, the court ordered the production of all pre-transition, responsive, non-privileged documents, as well as all post-transition documents related to the clients leaving Measured Wealth.
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 28, 2020

Counsel

Elizabeth Olivia Hueber, Saenz & Anderson, PLLC, Aventura, FL, Jacob Monroe Resnick, Jordan David Utanski, Steven M. Canter, Maverick Law Firm, Fort Lauderdale, FL, Peter Theodore Mavrick, Peter T. Mavrick PA, Fort Lauderdale, FL, for Plaintiff.
Andrew Broin Thomson, Baritz & Colman LLP, Boca Raton, FL, 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.
Matthewman, William, United States Magistrate Judge

ORDER ON PLAINTIFF'S MOTIONS TO COMPEL [DEs 61, 63, 64, 65, 66, 67]

*1 THIS CAUSE is before the Court upon Plaintiff, Measured Wealth Private Client Group, LLC's (“Plaintiff” or “Measured Wealth”) Motion to Compel Better Responses to First Set of Interrogatories to Defendant Foster [DE 61]; Plaintiff's Second Motion to Compel Better Responses to Plaintiff's First Requests for Production to Defendants Lee Anne Foster and Richard Kesner [DE 63]; Plaintiff's Motion to Compel Better Responses to First Sets of Discovery to Defendants’ Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. [DE 64]; Plaintiff's Second Motion to Compel Better Responses to First Request for Production of Documents to Defendants’ Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. [DE 65]; Plaintiff's First Motion to Compel Better Responses to Second Request for Production of Documents to Defendants’ Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. [DE 66]; and Plaintiff's Second Motion to Compel Better Responses to Second Request for Production of Documents to Defendants’ Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. [DE 67]. The motions were referred to the undersigned by the Honorable Raag Singhal, United States District Judge. See DE 34. The motions are fully briefed. The Court held a hearing on the motions via Zoom video teleconference on October 23, 2020, and took the motions under advisement. This Order now follows.
 
This case involves allegations that Defendants, Lee Anne Foster and Richard Kesner, who previously worked for Measured Wealth and had access to its non-public, confidential information, used Measured Wealth's trade secrets to solicit Measured Wealth's clients and misappropriated information before resigning and going to work at Defendants Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. (collectively, “Stoever Glass” or “Stoever Glass Defendants”). [DE 24]. Defendant Foster left Measured Wealth on or about July 8, 2019, and Defendant Kesner left on or about June 30, 2019.
 
As an initial matter, Defendants have argued in their responses that, as to certain of Plaintiff's motions to compel, Plaintiff has improperly filed more than one motion to compel pertaining to the same set of discovery requests and that Plaintiff should have filed one five-page motion instead of multiple five-page motions per this Court's Order Setting Discovery Order [DE 35]. The Court agrees and is not pleased with the unnecessarily numerous discovery motions filed by Plaintiff. Nonetheless, the undersigned will not deny any of the motions to compel on that basis at this time. Discovery has recently begun, and the Court has decided to hear the motions on the merits rather than rule on a violation of procedure. However, the Court does caution the Plaintiff (as well as all parties) that compliance with the letter and spirit of the Order Setting Discovery Procedure [DE 35] and all applicable rules shall be required in the future. Sanctions and/or cost shifting under Fed. R. Civ. P. 37 shall be considered for further violations.
 
*2 Next, in several of the discovery requests, Plaintiff argues that communications, documents, and/or information from the time period after Measured Wealth clients transitioned to Stoever Glass are relevant and proportional, while Defendants argue that such communications, documents, and information are both irrelevant and disproportionate. The parties similarly argue about documents and communications that were created after the litigation in this case began on January 31, 2020. The Court finds that post-transition discovery and discovery created after the initiation of this litigation require the same analysis. The only difference is that post-litigation discovery does not require a privilege log pursuant to S.D. Fla. L.R. 26.1(e)(2)(C). Thus, when the Court refers to “post-transition” discovery in this Order, it is also referring to “post-litigation” discovery (to the extent the temporal scope of the discovery request at issue exceeds January 31, 2020). In other words, in the Court's view, “post-litigation” discovery is encompassed in “post-transition” discovery. Moreover, as stated below, the Court finds that certain post-transition communications and documents are relevant and proportionate—while others are not.
 
Next, the Court will consider the specific discovery requests at issue. The Court has carefully considered the relevant law including Federal Rule of Civil Procedure 26(b)(1), the motions, responses, replies, the discovery requests and responses, the Joint Notices [DEs 88, 89, 92], and the arguments of counsel for both parties at the hearing, as well the entire docket in this case. Based on the foregoing, it is hereby ORDERED as follows:
1. Plaintiff's Motion to Compel Better Responses to First Set of Interrogatories to Defendant Foster [DE 61] is DENIED. Plaintiff represented at the discovery hearing that the only category of information still at issue regarding Interrogatory No. 4 involves referrals of new clients by Measured Wealth clients or customers to Defendant Foster. The Court finds that this interrogatory seeks information that is too attenuated, is disproportionate to the needs of this case, and is of only marginal, if any relevancy. If additional discovery in this case discloses a particularly significant referral that would not have been obtained but for the client's transition from Measured Wealth to Stoever Glass, and which is assertedly relevant to this case, Plaintiff can renew its discovery request as to that specific material and the Court will consider the issue. However, the Court sees such “referral” discovery in general to be far too attenuated, wasteful, and disproportionate under the current facts of this case.
2. Plaintiff's Second Motion to Compel Better Responses to Plaintiff's First Requests for Production to Defendants Lee Anne Foster and Richard Kesner [DE 63] is DENIED. Plaintiff represented at the discovery hearing that the only category of documents still at issue regarding Request for Production Nos. 18 and 20 involves referrals of new clients by Measured Wealth clients or customers to Defendant Foster. The Court finds that these requests seek documents that are far too attenuated, are disproportionate to the needs of this case, and are of only marginal, if any relevancy. If additional discovery in this case discloses a particularly significant referral that would not have been obtained but for the client's transition from Measured Wealth to Stoever Glass, Plaintiff can renew its discovery request, as noted above in Paragraph 1.
3. Plaintiff's Motion to Compel Better Responses to First Sets of Discovery to Defendants’ Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. [DE 64] is GRANTED IN PART AND DENIED IN PART. For both Requests for Production Nos. 11 and 14[1], Stoever Glass Defendants have represented that they have produced or will produce all pre-transition, responsive, non-privileged documents. The Court orders such documents produced on or before November 16, 2020. Therefore, the only remaining issue is post-transition, responsive non-privileged documents. The Court finds that the requests, as phrased, are overbroad and seek too much irrelevant and disproportionate production. The Court is also concerned about burdensomeness and overbreadth since there are approximately 69 clients who moved from Measured Wealth to Stoever Glass. Many post-transition documents will clearly be irrelevant and disproportionate in this litigation, while some may be relevant and proportional. In light of these considerations, the motion is granted only to the extent that Stoever Glass Defendants must produce responsive, non-privileged, post-transition communications that show a) why the clients left Measured Wealth; b) the circumstances of them leaving; c) whether any statements, inducements, or promises were made or suggested by Defendants about the customers leaving Measured Wealth, and/or whether any statements, inducements, or promises were made by Defendants which induced, caused or encouraged any customers to leave Measured Wealth; d) inquiries or comments by any customers as to why or when or how they were leaving Measured Wealth and/or going to Stoever Glass; and e) whether Defendants made any negative or detrimental comments or statements about Measured Wealth in order to influence the clients to move to Stoever Glass. The parties shall promptly address search terms that will successfully capture such documents. Defendants shall conduct a good faith search to locate such responsive documents. Production shall be made by November 30, 2020.
*3 4. Plaintiff's Second Motion to Compel Better Responses to First Request for Production of Documents to Defendants’ Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. [DE 65] is GRANTED IN PART AND DENIED IN PART. For the only remaining Request for Production in dispute, No. 42, Stoever Glass Defendants have represented that they have produced or will produce all pre-transition, responsive, non-privileged documents. Defendants also represented that they have produced or will produce “all documents which contain any list of Measured Wealth Clients.” The Court orders such documents produced on or before November 16, 2020. Therefore, the only remaining issue is post-transition, non-privileged documents that “contain information concerning Measured Wealth Clients which was sent to any Stoever Glass entity by Foster.” The Court finds Request for Production No. 42, as phrased, is overbroad and seeks too much irrelevant and disproportionate production. The Court is also concerned about burdensomeness and overbreadth since there are approximately 69 clients who moved from Measured Wealth to Stoever Glass. Many post-transition documents will clearly be irrelevant and disproportionate in this litigation, while some may be relevant and proportional. In light of these considerations, the motion is granted only to the extent that Stoever Glass Defendants must produce non-privileged post-transition communications sent from Defendant Foster to Stoever Glass that show a) why the clients left Measured Wealth; b) the circumstances of them leaving; c) whether any statements, inducements, or promises were made or suggested by Defendants about the customers leaving Measured Wealth, and/or whether any statements, inducements, or promises were made by Defendants which induced, caused or encouraged any customers to leave Measured Wealth; d) inquiries or comments by any customers as to why or when or how they were leaving Measured Wealth and/or going to Stoever Glass; and e) whether Defendants made any negative or detrimental comments or statements about Measured Wealth in order to influence the clients to move to Stoever Glass. The parties shall promptly address search terms that will successfully capture such documents. Defendants shall conduct a good faith search to locate such responsive documents. Production shall be made by November 30, 2020.
5. Plaintiff's First Motion to Compel Better Responses to Second Request for Production of Documents to Defendants’ Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. [DE 66] is GRANTED IN PART AND DENIED IN PART. The only remaining requests in dispute are Request for Production Nos. 2, 5, and 6[2]. The Court finds that Nos. 2, 5, and 6, as phrased, are overbroad and seek too much irrelevant and disproportionate production. The Court is also concerned about burdensomeness and overbreadth of the requests. In light of these considerations, the motion is granted only to the extent that Stoever Glass Defendants must produce all responsive, non-privileged documents that show a) why the clients left Measured Wealth; b) the circumstances of them leaving; c) whether any statements, inducements, or promises were made or suggested by Defendants about the customers leaving Measured Wealth, and/or whether any statements, inducements, or promises were made by Defendants which induced, caused or encouraged any customers to leave Measured Wealth; d) inquiries or comments by any customers as to why or when or how they were leaving Measured Wealth and/or going to Stoever Glass; e) whether Defendants made any negative or detrimental comments or statements about Measured Wealth in order to influence the clients to move to Stoever Glass; and f) whether Defendants Foster or Kesner were compensated for taking clients to Stoever Glass. The parties shall promptly address search terms that will successfully capture such documents. Defendants shall conduct a good faith search to locate such responsive documents. Production shall be made by November 30, 2020.
6. Plaintiff's Second Motion to Compel Better Responses to Second Request for Production of Documents to Defendants’ Stoever, Glass & Co., Inc. and Stoever Glass Wealth Management, Inc. [DE 67] is GRANTED IN PART AND DENIED IN PART. The Requests for Production at issue request documents relating to former Measured Wealth clients. Defendants have represented that they have produced or will produce all pre-transition, responsive, non-privileged documents. The Court orders such documents produced on or before November 16, 2020. Therefore, the only remaining issue is post-transition, responsive non-privileged documents. As phrased, the requests are overbroad and seek too much irrelevant and disproportionate production. The Court is also concerned about burdensomeness and overbreadth of the requests. Many post-transition documents will clearly be irrelevant and disproportionate in this litigation, while some may be relevant and proportional. In light of these considerations, the motion is granted only to the extent that Defendants Stoever Glass must produce all non-privileged, post-transition documents that show a) why the clients left Measured Wealth; b) the circumstances of them leaving; c) whether any statements, inducements, or promises were made or suggested by Defendants about the customers leaving Measured Wealth, and/or whether any statements, inducements, or promises were made by Defendants which induced, caused or encouraged any customers to leave Measured Wealth; d) inquiries or comments by any customers as to why or when or how they were leaving Measured Wealth and/or going to Stoever Glass; and e) whether Defendants made any negative or detrimental comments or statements about Measured Wealth in order to influence the clients to move to Stoever Glass. The parties shall promptly address search terms that will successfully capture such documents. Defendants shall conduct a good faith search to locate such responsive documents. Production shall be made by November 30, 2020.
*4 7. The Court notes that the discovery cutoff date in this case is February 25, 2021. [DE 34]. The rulings above are all without prejudice to Plaintiff renewing a specific, targeted request for additional discovery if it uncovers additional facts or information through the discovery process that provide it with a good-faith basis to request such additional discovery. The Court will consider any such issues as they may be raised. However, the Court requires the parties and counsel to confer and cooperate in good faith during the discovery process. The Court notes that Plaintiff has made approximately 892 discovery requests. The Court will not allow “scorched earth” discovery in this case, and the parties are ordered to confer and cooperate during the discovery process so that further unnecessary disputes are avoided.
 
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 28th day of October, 2020.

Footnotes
Request for Production No. 11 seeks “all Communications between any Stoever Glass entity and any other person or entity which refers to Measured Wealth, relates to Measured Wealth, or otherwise contain the terms ‘Measured Wealth’ or any derivative of Measured Wealth's name, that was sent and/or received in 2019 and 2020, which was not produced in the prior two requests for production of documents. This request does not seek communications with legal counsel which are sent for the purpose of acquiring legal advice, but includes all other responsive Communications.”
Request for Production No. 14 requests “all documents, records, or Communications which refers to or are concerning any Stoever Glass Client or potential Stoever Glass Client who was at any time in 2019 was a Measured Wealth client.”
Request for Production No. 2 seeks “[f]or the period from July 15, 2019 to the present, all documents (including emails and its attachments) exchanged between Steven Sapirstein and Foster.”
Request for Production No. 5 seeks “[f]or the period of July 15, 2019 through January 15, 2020, all documents (including emails and its attachments) exchanged between Stoever Glass & Co. and Foster.”
Request for Production No. 6 seeks “[f]or the period of July 15, 2019 through January 15, 2020, all documents (including emails and its attachments) exchanged between any Stoever Glass entity and Foster.”