*1 This matter is before the Court on a Motion to Compel [Dkt. 484] filed by Plaintiff Dr. Stephen Ramb on behalf of the Estate of Werner Wicker seeking an order compelling the production of discovery from Defendants Louis Beria and LSC1 Management Corporation (“LSC1”) (the “Beria Defendants”). Having reviewed the record, the Court enters the following Order.

Plaintiff moves to compel production of discovery pursuant to Rule 37 of the Federal Rules of Civil Procedure and LR 37.1, N.D. Ga. See FED. R. CIV. P. 37(a)(1) (permits litigant to “move for an order compelling disclosure or discovery”). A party may file such a motion, for example, if the party from whom discovery is requested fails to answer an interrogatory or to respond to a request for production. FED. R. CIV. P. 37(a)(3)(B)(iii)-(iv).

“The party resisting discovery bears the burden of showing the discovery requests to be improper, unreasonable, or burdensome.” Friday v. Sallie Mae, Inc., 2014 WL 12860394, at *1 (N.D. Ga. Nov. 20, 2014) (citing Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985)). Any objections to an interrogatory or request for production may be deemed waived if not raised in a timely manner. See FED. R. CIV. P. 33(b)(4); Scruggs v. Int'l Paper Co., 278 F.R.D. 698, 700 n.4 (S.D. Ga. 2012).

Moreover, in determining whether information is discoverable, it is not necessary that the proponent of a discovery request establish admissibility at trial. See FED. R. CIV. P. 26(b)(1). Relevance for purposes of discovery is “construed broadly to 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, 98 S. Ct. 2380 (1978) (citation omitted); accord Bowden v. The Med. Ctr., Inc., 773 S.E.2d 692, 695–97 (Ga. 2015) (citations omitted) (courts are to exercise discretion in determining permissible scope of discovery, keeping in mind objectives of discovery include to supply parties with knowledge of relevant facts and reduce element of surprise at trial).

Defendants' failure to comply with discovery obligations was most recently raised with the Court in August 2021. The Court cautioned Mr. Beria in its August 18, 2021 Order that “his cooperation is both necessary and expected ... and that withdrawal of counsel will not alleviate or excuse his ongoing discovery obligations....” [Dkt. 476, ¶¶ 3, 4]. The Court authorized Plaintiff to file a formal motion to compel in the event of Defendants' non-compliance. [Id. at 7].

According to Plaintiff, since issuance of the Court's Order, the Beria Defendants have done little to satisfy the outstanding discovery requests, which were detailed within a letter dated August 2, 2021 authored by Plaintiffs' counsel. [Dkt. 476-1, Exhibit A].[1]

On September 1, 2021, counsel for the Beria Defendants provided Plaintiffs' counsel and the Court with a report on the status of the Beria Defendants' responses to the discovery identified in the August 18 Order. Plaintiff's Motion represents that “the Beria Defendants produced a few tax returns, some new corporate and expulsion documents on September 1” but “have not cured most of the deficiencies outlined in the August Order and Plaintiff's August 2 letter[.]” [Dkt. 474-1 at 3]. Plaintiff states that Mr. Beria has not produced anything since September 1, 2021. [Id. at 3 n.1].

*2 As explained in greater detail within Plaintiff's counsel's August 2 letter, and the Court's August 18 Order, Plaintiff seeks an order compelling discovery of materials produced in connection with Mr. Beria's criminal prosecution for wire fraud in violation of 18 U.S.C § 1343, materials pertaining to the Wave medical documents, plus Text messages and WhatsApp messages. [See Dkt. 476-1, Exhibit A].

Plaintiff's requests for materials produced during Mr. Beria's criminal prosecution warrant a brief discussion and are found within Plaintiff's Request for Production of Documents (“RFP”), served April 9, 2021 [Dkt. 484-1, Exhibit B].

RFP Nos. 1 and 3: Brady materials, discovery, and other documents Mr. Beria received from or sent to the Government.

RFP Nos. 4 and 5: Documents obtained from third-parties, including email provided by Google and/or explanations regarding missing or incomplete production.

RFP No. 6: Presentence Report (“PSR”), objections, and related correspondence.

Here, the record reveals that the Beria Defendants simply elected to ignore the Court's August 18, 2021 Order and guidance contained therein. And the Court is keenly aware that Mr. Beria's imprisonment poses obstacles and that Mr. Beria no longer has the benefit of legal representation. Significantly, the Beria Defendants' non-compliance predates the incarceration of Mr. Beria on June 2, 2021 and the withdrawal of defense counsel on September 7, 2021.

*3 Plaintiff's Motion to Compel is due to be granted, in part, and denied, in part.

It is hereby ORDERED that Plaintiff's Motion to Compel [Dkt. 484] is GRANTED, in part, and DENIED, in part. Accordingly, Mr. Beria is ORDERED to produce the requested discovery materials, with the exception of the PSR, within 14 days or risk entry of Default as to liability being entered against him without further warning or notice.[3]

It is further ORDERED that Mr. Beria shall SHOW CAUSE in writing within 14 days as to why the WhatsApp data has not been produced and whether any of this data still exists; why text messages and equipment such as phones and computers used by the Beria Defendants were not preserved contrary to the Plaintiff's ESI Preservation letter (forwarded to the Beria Defendants no later than January 14, 2019); why sanctions should not be imposed for failure to preserve discoverable evidence; and why the Beria Defendants failed to undertake any search for text messages prior to May 2021.

Mr. Beria is again CAUTIONED that he is subject to the Federal Rules of Civil Procedure and the Local Rules of the Northern District of Georgia, and that FAILURE TO COMPLY with these rules could result in the imposition of an array of sanctions, including striking pleadings and entering a default judgment, and monetary sanctions, for misconduct and for failure to comply with court orders. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989); see also Singleton v. Garden City, Georgia, 2020 WL 8991691, at *3 (S.D. Ga. March 2, 2020). Finally, as the presiding judge over both the instant civil action and Mr. Beria's criminal case, this Court has considerable discretion regarding sanctions. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997).

In order for Plaintiffs to have the benefit of additional discovery from Defendant Beria before filing a motion for summary judgment, it is ORDERED that the summary judgment deadline applicable to all parties is EXTENDED to 30 days following either (1) the production of discovery by Mr. Beria as ordered herein or (2) issuance of an Order by the Court ruling on Plaintiffs' Motion for Default against Mr. Beria.

SO ORDERED this 8th day of December, 2021.

The August 2 letter and all related materials are incorporated herein by reference.

This provision of Rule 6(e)(3)(E), which identifies exceptions to nondisclosure and permissible reasons for court-ordered disclosure, states that:

Plaintiffs' Motion for Default Judgment [Dkt. 487] as to liability against the Beria Defendants is being addressed in a separate Order. Mr. Beria is provided 14 days to comply with these discovery requests and the Court is deferring ruling on entering default as to him for 14 days. If Mr. Beria fails to comply, the Court will grant Plaintiffs' Motion for Default against him personally.