Hall v. Sargeant
Hall v. Sargeant
2019 WL 13067292 (S.D. Fla. 2019)
June 4, 2019

Reinhart, Bruce E.,  United States Magistrate Judge

Protective Order
Third Party Subpoena
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Summary
The court granted the non-parties' motions to quash the subpoenas for documents from Elijah Ltd. Corp. and a deposition from its president, Andrew Reisman, without prejudice. The court found that Plaintiffs had not established a threshold showing of relevance for the discovery sought. Defendant's motion for a protective order was denied as moot.
Additional Decisions
DANIEL HALL, et al., Plaintiffs,
v.
HARRY SARGEANT, III, Defendant
Case No. 9:18-CV-80748-Altman/Reinhart
United States District Court, S.D. Florida
Entered on FLSD Docket June 04, 2019

Counsel

Armando Cordoves, Jr., Samuel Alberto Danon, Hunton Andrews Kurth LLP, Miami, FL, Andrew E. Goldsmith, Pro Hac Vice, Minsuk Han, Pro Hac Vice, Christine A. Bonomo, Pro Hac Vice, Derek T. Ho, Pro Hac Vice, Kellogg Hansen Todd Figel & Frederick PLLC, Washington, DC, for Plaintiffs Daniel Hall, Burford Capital LLC, Dundrod Investments Ltd.
Adam Rabin, Lauren Elizabeth Johnson, Ryon M. McCabe, McCabe Rabin, P.A., Gregory William Coleman, Santo DiGangi, Critton Luttier & Coleman, LLP, West Palm Beach, FL, Caroline May Poor, Joshua Mahlon Hawkes, Melissa B. Coffey, Christopher Michael Kise, Foley, Lardner LLP, Tallahassee, FL, Curtis Bradley Miner, Stephanie Anne Casey, Colson Hicks Eidson, Coral Gables, FL, Heather Anne Lee, Kathryn Throo Williams, Foley and Lardner LLP, Tampa, FL, Scott T. Allen, Pro Hac Vice, Foley & Lardner LLP, Milwaukee, WI, for Defendant.
Reinhart, Bruce E., United States Magistrate Judge

ORDER GRANTING WITHOUT PREJUDICE NON-PARTIES’ MOTIONS TO QUASH PLAINTIFFS’ SUBPEONAS (DE 174, 176) AND DENYING AS MOOT DEFENDANT'S MOTION FOR A PROTECTIVE ORDER (DE 189)

*1 Currently before the Court are motions to quash two subpoenas served by Plaintiffs on non-parties Elijah Ltd. Corp. and its president Andrew Reisman. Defendant retained Elijah, which provides computer forensics and electronic discovery services to law firms, as a non-testifying consultant “to assist with document collection and forensic analysis relating to the claims in this matter and related cases.” DE 174 at 1.[1]
 
Plaintiffs seek documents from Elijah and a deposition from Reisman based on their belief that Elijah and Reisman “possess highly relevant documents and information related to [Defendant's] knowledge regarding the origins of the HS3 Material – specifically, information that will show [Defendant] knew well before he filed his SAC that that material had been downloaded from his email account years prior to October 2016.” DE. 194 at 1-2. According to Plaintiffs, this would be “critical evidence” in proving their malicious prosecution claim because it would demonstrate that Defendant lacked probable cause and acted in bad faith when he filed his SAC. Id.
 
According to Plaintiffs, they seek discovery from Elijah and Reisman as fact witnesses and not in their capacity as consulting experts. DE 194 at 2. Plaintiffs contend that Elijah and Reisman
were involved in at least two key events that are relevant to this litigation. First, that they were involved in investigating the circumstances surrounding the Christmas 2013 episode, where HS3's brother, James Sargeant, disclosed certain pictures included in the HS3 Material to HS3's family. And second, that they were involved in the investigation leading up to HS3's decision to file the SAC, which baselessly alleged Hall conspired with others to “hack” into HS3's email account in October 2016.
Id.
 
Defendant and the non-parties seek to quash the subpoenas and/or for a protective order arguing that Reisman and Elijah are non-testifying experts, and thus, their knowledge and opinions are protected by Federal Rule of Civil Procedure 26(b)(4)(D), which provides that
a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial. But a party may do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
Fed. R. Civ. P. 26(b)(4)(D).[2]
 
At the outset, and before deciding whether Rule 26(b)(4)(D) applies, the Court finds that, with the exception of communications between Defendant and Elijah/ Reisman, Plaintiffs have not established a threshold showing of relevance for the discovery sought. “The threshold question for any discovery request is relevance.” Devries v. Morgan Stanley & Co. LLC, No. 12-81223-CIV, 2013 WL 3243370, at *1 (S.D. Fla. June 26, 2013) (J. Matthewman). Here, Plaintiffs make the conclusory assertion that “[i]t goes without saying ... that Elijah's examination of the HS3 Material, and its knowledge about what HS3 knew at the time he filed the SAC is directly relevant to whether he had probable cause to make the allegations he did.” DE 194 at 4. However, as this Court has repeatedly concluded, at this stage, it is only Defendant's personal knowledge at the time the SAC was filed that is relevant; information possessed by his attorneys or others that was not shared with Defendant is not imputable to him for purposes of this malicious prosecution claim. DE 198 at 2-3.[3] Likewise, information known by an expert retained by Defendant's attorney, but not communicated to Defendant, is not evidence of Defendant's state of mind.
 
*2 Thus, the only sought-after communications that might be relevant are those between the subpoenaed non-parties and Defendant. Nevertheless, it is undisputed that Elijah and Reisman were retained by Defendant in connection with his receipt of the HS3 Material from an opposing party in the related federal action. See Plaintiffs’ Response (DE 194 at 4); Defendant's Reply (DE 200 at 2). Since they were retained as consulting experts in anticipation of litigation, the limited universe of testimony and documents that are both responsive and relevant would be protected by Rule 26(b)(4) (D). Once the protections of the Rule attach, Plaintiffs have the burden of showing “exceptional circumstances” to pierce those protections, including that it is impracticable to obtain the same information from another source. As things currently stand, Plaintiffs have not satisfied this burden. At a minimum, Plaintiffs have not shown that the relevant information cannot be obtained from Defendant at his deposition scheduled for June 11, 2019. This information should be sought from him, first, as a less burdensome source than the non-parties. See Fed. R. Civ. P. 26(b)(2)(C); 26(b)(4)(D)(ii).
 
Based on the foregoing, the non-parties’ Motions to Quash the subpoenas (DE 174, 176) are GRANTED WITHOUT PREJUDICE for Plaintiffs to renew, if necessary, following Defendant's deposition. Defendant's Motion for a Protective Order (DE 189) is DENIED AS MOOT.
 
DONE and ORDERED in Chambers at West Palm Beach in the Southern District of Florida, this 4th day of June, 2019.

Footnotes
Defendant states that Elijah was also retained on a consulting basis in Southern District of Florida Case No.: 17-cv-81070 (the prior federal action), and Palm Beach Circuit County Court Case No.: 2018-CA-007932 (the related state court case). DE 176 at n.1.
Rule 35(b), which deals with physical and mental examinations, does not apply in this case.
During a hearing on April 19, 2019, Plaintiffs argued that they are entitled to defense counsel's case file, including communications between Defendant and his attorneys, to prove their malicious prosecution claim. According to Plaintiffs, the communications exchanged between Defendant and his counsel in advance of the SAC would reveal whether they had probable cause to support their claims. See Transcript (DE 24) at 21-26. This Court noted that Defendant has not raised an advice of counsel defense and so ordering production of such privileged communications was, at best, premature.
In addition, the Court observed that Plaintiffs rely on two types of cases to support their position, namely, cases involving bad faith claims against insurance companies and malicious prosecution cases brought against government entities. Id. at 26-28. These cases are distinguishable. First, “[d]iscovery of opinion work product is most often granted in bad-faith settlement cases [because] ‘mental impressions [of the underlying counsel] are the pivotal issue in the current litigation.’ ” Doe v. United States, 2015 WL 4077440, at *8 (S.D. Fla. July 6, 2015) (quoting Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir. 1992)). Second, cases against government entities are inapplicable because the files ordered produced are typically not those of the party's lawyer. See Doubleday v. Ruh, 149 F.R.D 601, 606 (C.D. Cal. 1993) (in malicious prosecution case against County Sheriff's Office, court ordered district attorney's office to turn over its file in the underlying criminal case because the County was not the district attorney's client). Also, in governmental malicious prosecution cases, the underlying case generally is initiated by a prosecuting or enforcement agency, which then becomes the malicious prosecution defendant; therefore, that party's knowledge is relevant. Here, the underlying case was initiated by Defendant not by his lawyers. Only Defendant's personal knowledge therefore is relevant.