Nat'l Staffing Sols., Inc v. Sanchez
Nat'l Staffing Sols., Inc v. Sanchez
2022 WL 19354640 (M.D. Fla. 2022)
September 12, 2022
Price, Leslie H., United States Magistrate Judge
Summary
The court denied National's motion to compel Benjamin Benami's compliance with a subpoena duces tecum for ESI, finding that the requests were overly broad and not related to any issue in the case.
Additional Decisions
NATIONAL STAFFING SOLUTIONS, INC., Plaintiff,
v.
HEIDI SANCHEZ, Defendant
v.
HEIDI SANCHEZ, Defendant
Case No: 6:21-cv-1590-PGB-LHP
United States District Court, M.D. Florida
Filed September 12, 2022
Price, Leslie H., United States Magistrate Judge
ORDER
*1 This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: PLAINTIFF'S MOTION TO COMPEL NON-PARTY, BENJAMIN BENAMI'S, COMPLIANCE WITH SUBPOENA DUCES TECUM (Doc. No. 43)
FILED: August 16, 2022
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
I. BACKGROUND
On September 28, 2021, Plaintiff National Staffing Solutions, Inc. (“National”) filed a complaint against its former employee, Heidi Sanchez, for violations of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (“CFAA”), the Florida Computer Abuse and Data Recovery Act, Fla. Stat. § 668.802, et seq. (“CADRA”), and for breach of contract. Doc. No. 1. According to the allegations of the Complaint, National is an employment agency that provides temporary and permanent placement of healthcare professionals across the United States. Id., at ¶ 8. Ms. Sanchez was a Vice President at National, working as a staffer, recruiter, and representative for National, and was provided with a company laptop, iPhone, and access to National's computer systems. Id., at ¶¶ 10-11.
As part of her employment with National, on April 17, 2014, Ms. Sanchez executed a Noncompetition, Nonsolicitation and Confidentiality Agreement (the “Agreement”), which required Ms. Sanchez to return to National all documents and electronically stored information (“ESI”) related to National provided to or acquired by her in connection with her employment, upon the request of National or upon the termination of her employment. Id., at ¶13. The Agreement further required Ms. Sanchez to provide passwords for all ESI, including information stored on smartphones, iPads, laptops, storage mediums such as Dropbox, and any other systems that store electronic information. Id., at ¶ 14. National had the right to collect the devices and remove the ESI. Id.
The Complaint further alleges that National terminated Ms. Sanchez's employment on August 25, 2021, and Ms. Sanchez returned her company laptop. Id., at ¶¶ 16, 18-19. However, a subsequent investigation determined that starting on August 26, 2021, Ms. Sanchez continued to use her company iPhone and login credentials to access portions of National's computer system to download and save National's confidential business records, including financial information and contact information, to a personal account. Id., at ¶¶ 22-25. Ms. Sanchez has refused to allow National access to any of her personal devices to recover this confidential business information. Id., at ¶ 26. This lawsuit followed.
On July 13, 2022, the Presiding District Judge issued a preliminary injunction enjoining Ms. Sanchez from accessing or attempting to access National's computer systems, from using, disclosing, or sharing any documentation or ESI obtained from National, and from contacting any of National's current or prospective clients, other than to notify them of the preliminary injunction. Doc. No. 35. Ms. Sanchez was further directed to provide National with a forensic copy of all documentation and ESI obtained from National, and to allow National access to all devices, email accounts, and systems that contain confidential information and other data related to National. Id. On August 17, 2022, National moved for an Order to Show Cause as to why Ms. Sanchez should not be held in contempt for failing to comply with the preliminary injunction. Doc. No. 44. A hearing is set before the Presiding District Judge for September 22, 2022. Doc. Nos. 48-49.
*2 Discovery has been proceeding in this case in the normal course, with discovery set to close on October 3, 2022. Doc. No. 27, at 1. By the above-styled motion, National seeks to compel a non-party, Benjamin Benami, to respond in full to a subpoena duces tecum served on Mr. Benami on July 14, 2022. Doc. No. 43. According to the motion, Mr. Benami and Ms. Sanchez “were employees who resigned from National and then worked for a competitor of National, Ascendo Resources, LLC (“Ascendo”).” Id., at 2.[1] National represents that the information it seeks in the subpoena relate to Mr. Benami's communications with Ms. Sanchez “regarding their employment at National and Ascendo, along with National's documents and customer lists.” Id.
Mr. Benami responded to the subpoena with numerous general and specific objections, but has not produced a single document or privilege log. Id.; Doc. No. 43-4.[2] National requests that Mr. Benami's objections be overruled, that Mr. Benami be compelled to produce documents in response to the subpoena, and that National be awarded fees and costs. Doc. No. 43, at 3-4. Mr. Benami filed a response in which he states that his objections should be sustained, and the motion to compel denied. Doc. No. 50. Both the motion and response comply with my Standing Order on Discovery. Doc. No. 30.
Upon review of the motion and response, the Court directed the parties to each file supplemental briefing, of no more than 10 pages in length. Doc. No. 51. The parties timely filed their supplemental briefs, see Doc. Nos. 57, 60, which the Court has also taken under consideration. The motion (Doc. No. 43) is therefore fully briefed and ripe for disposition. For the reasons set forth below, the motion shall be granted in part and denied in part.
II. LEGAL STANDARD
A party may subpoena documents, ESI, or tangible things in a non-party's possession pursuant to Federal Rule of Civil Procedure 45. Fed. R. Civ. P. 45(a)(1)(A)(iii). “The scope of discovery under Rule 45 is the same as the scope of discovery under Federal Rule of Civil Procedure 26.” Digital Assur. Certification, LLC v. Pendolino, 6:17-cv-72-Orl-41TBS, 2017 WL 4342316, at *8 (M.D. Fla. Sept. 29, 2017). “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). This includes discovery of documents located in available electronic systems, deleted emails, and computer files. Wynmoor Cmty. Council, Inc. v. QBE Ins. Corp., 280 F.R.D. 681, 685 (S.D. Fla. 2012) (citing Bank of Mongolia v. M & P Global Fin. Servs., 258 F.R.D. 514, 519 (S.D. Fla. 2009)). The party seeking to enforce a subpoena has the burden of demonstrating the information sought is relevant. Fadalla v. Life Auto. Prods, Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007). “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1).
The party opposing a subpoena has the burden of demonstrating that compliance with the subpoena presents an undue burden or that it requires the disclosure of privileged or protected information. Fadalla, 258 F.R.D. at 504. Written objections may be served by the non-party, but the objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. Fed. R. Civ. P. 45(d)(2)(B). “Typically, failure to serve written objections to a subpoena in the time provided by [Rule 45] waives any objections that party may have.” Cadle v. GEICO Gen. Ins. Co., No. 6:13-cv-1591-Orl-31GJK, 2014 WL 12639859, at *3 (M.D. Fla. Aug. 29, 2014); see Gulati v. Ormond Beach Hosp., LLC, No. 6:18-cv-920-Orl-37TBS, 2018 WL 7372080, at *2 (M.D. Fla. Dec. 17, 2018) (“When a party fails to respond to discovery, or provides untimely responses, whatever objections it might otherwise have had are generally deemed waived.”) However, a court can excuse a party from its untimely responses for good cause. Id. (citing Wynmoor Cmty. Council, 280 F.R.D. at 685).
III. ANALYSIS
*3 The subpoena served on Mr. Benami requests 11 categories of documents, and the Court discusses each category and Mr. Benami's responses below. See Doc. 43-4. But first, the Court will address Mr. Benami's general objections.
Mr. Benami raises three (3) general objections: (1) “certain information” sought is unreasonably cumulative or duplicative and/or can be more easily obtained from Ms. Sanchez; (2) Federal Rule of Civil Procedure 45 prohibits “unlimited ‘fishing expedition[s]’ as related to non-parties;” and (3) Mr. Benami is a non-party, and not a representative of any other non-party individual or entity who might have information National seeks. Doc. 43-4, at 2. Mr. Benami does not expressly incorporate these general objections into his responses to any of the subpoena requests, but does discuss some of them in his specific responses to the requests. Id., at 2-8.
“General objections to discovery requests as a whole are not proper.” Doe v. Rollins Coll., No. 6:18-cv-1069-Orl-37KRS, 2019 WL 11703980, at *1 (M.D. Fla. Feb. 27, 2019). Rather, “[g]eneral or blanket objections should be used only when they apply to every [discovery request at issue.]” Jackson v. Geometrica, Inc., No. 3:04-cv-640-J-20HTS, 2006 WL 213860 *1 (M.D. Fla. Jan. 21, 2006) (citation omitted). Otherwise, “[s]pecific objections should be matched to specific” interrogatories or requests for production. Id.; see also Fed. R. Civ. P. 34(b)(2)(B) (the response to each request for production must state that inspection will be permitted and documents produced or state an objection to the request including the reasons for the objection). As such, “objections that are simply made as general blanket objections will be overruled by the Court.” Desoto Health & Rehab, L.L.C. v. Phila. Indem. Ins. Co., No. 2:09-cv-599-FtM-99SPC, 2010 WL 2330286, at *1 (M.D. Fla. June 10, 2010).
Here, it is clear that Mr. Benami's general objections do not apply to all 11 of the subpoena topics. For example, Mr. Benami's objection about not being able to speak on behalf of other entities – an objection that itself makes no sense as it is self-obvious – is only mentioned in his responses to Requests Seven, Eight, and Ten. Doc. 43-4, at 2-8. Accordingly, Mr. Benami's general objections are overruled, and the Court will consider these objections only to the extent such objection is specifically asserted (not just blanket incorporated) in response to a specific subpoena topic. See Doe, 2019 WL 11703980, at *3 (overruling general blanket objections on the basis of privilege, overbreadth, and undue burden where party failed to specifically establish how those objections applied to each specific discovery request); Zamperla, Inc. v. I.E. Park SrL, No. 6:13-cv-1807-Orl-37KRS, 2014 WL 12614505, at *4 (M.D. Fla. Nov. 3, 2014) (overruling general objection based on privilege where it did not apply to every discovery request, and where party failed to produce a privilege log).
The Court now turns to each subpoena request and Mr. Benami's specific objections.
Request One: Documentation sufficient to evidence all of Sanchez's email addresses, phone numbers, screen names, social media profiles, or other identifying numbers, emails, or usernames utilized to communication [sic] with you from January 1, 2018 until the present.
*4 Doc. No. 43-4, at 2-3.
Mr. Benami objects on the basis that this request is overly broad in scope and time, is confusing and ambiguous, is not relevant to any of the issues in the present case, that the materials sought “can and must be demanded and acquired directly from the Defendant herself,” and that this is a fishing expedition. Id., at 3. Mr. Benami does not expand on the objections as to overbreadth and vague and ambiguous language, other than to simply recite the phrases. Id. These are classic boilerplate objections and therefore overruled. Siddiq v. Saudi Arabian Airlines Corp., Case No. 6:11-cv-69-Orl-19GJK, 2011 WL 6936485, at *3 (M.D. Fla. Dec. 7, 2011) (“Objections which state that a discovery request is ‘vague, overly broad, or unduly burdensome’ are, by themselves, meaningless, and are deemed without merit by this Court.”); Asphalt Paving Sys., Inc. v. Gen. Combustion Corp., No. 6:15-cv-49-Orl-41TBS, 2016 WL 3167712, at *2 (M.D. Fla. June 7, 2016) (“The Court does not consider frivolous, conclusory, general, or boilerplate objections.”).
The Court also is not persuaded by Mr. Benami's objection that National can obtain these documents from Ms. Sanchez or some other source, or that simply asking Mr. Benami to provide documentation as to the manner in which he communicated with Ms. Sanchez poses an undue burden. See Democratic Republic of Congo v. Air Capital, LLC, No. 12-Civ-20607-COOKE/TORRES, 2018 WL 324976, at *3 (S.D. Fla. Jan. 8, 2018) (in order denying non-party's motion to quash subpoena duces tecum, court noted that an objecting party “must explain the specific and particular way in which a request is vague, overly broad, or unduly burdensome. In addition, claims of undue burden should be supported by a statement (generally an affidavit) with specific information demonstrating how the request is overly burdensome.”) (citations omitted); Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005) (finding that the objecting party must make a “particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements”). Moreover, National represents in its supplemental briefing that it already has attempted to obtain discovery from Ms. Sanchez prior to seeking documentation from Mr. Benami, and that Ms. Sanchez has failed to produce such materials. See Doc. No. 57, at 8.
As to the “fishing expedition” objection, Mr. Benami relies upon a July 6, 2022 preservation letter sent by National's counsel to Mr. Benami. Doc. No. 43-4, at 3, 17-19. In that letter, National's counsel accuses Mr. Benami of multiple breaches of his Non-Competition, Non-Solicitation, and Confidentiality Agreement with National, and states that “National anticipates litigation against you.” Id., at 17-19. According to Mr. Benami, this letter proves that the subpoena duces tecum is really an attempt by National to obtain discovery in advance of filing suit against Mr. Benami, and therefore is not relevant to any issue in the present case – which is only against Ms. Sanchez – and is improper under Federal Rule of Evidence 26(b). Id., at 3.
*5 As National points out in its motion and supplemental brief, Doc. No. 43, at 3; Doc. No. 57, at 6, just because the documents requested may also be used in some future potential litigation is not a proper objection. And other than relying on cases that cite to the general proposition that discovery must be related to the claims and issues in the case upon which the discovery is sought, Mr. Benami provides no authority to support his objection. See Doc. No. 43-4, at 3; Doc. No. 50, at 2; Doc. No. 60, at 4. The Court agrees that National cannot use its subpoena to seek information that solely relates to issues or claims that are not at play in the present case. However, that is not the case here.
Request One is narrowly tailored specifically to information that identifies methods of communication used between Ms. Sanchez and Mr. Benami for a specified time period (and Mr. Benami make no argument as to why this time period is unduly burdensome or overly broad), and such information may arguably lead to the discovery of admissible evidence relating to the issues in this case, including issues relating to the pending motion for civil contempt. See Doc. No. 57, at 7. See also Fed. R. Civ. P. 26(b)(1) (the scope of discovery includes “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case,” and “need not be admissible in evidence to be discoverable.”); Lesti v. Wells Fargo Bank NA, 297 F.R.D. 665, 667 (M.D. Fla 2014) (“When the discovery request appears relevant on its face, then the party objecting to the discovery based upon relevance has the burden to show the requested discovery is not relevant.”).[3] Accordingly, Mr. Benami's objections as to Request One are overruled, and the motion to compel as to this request will be granted.
Request Two: All of your communications with Sanchez from January 1, 2021 until the present date, including but not limited to text messages, Signal messages, Whatsapp messages, Telegram messages, and emails.
Doc. No. 43-4, at 3.
In his second amended responses, Mr. Benami mistakenly interprets Request Two to ask for the same information as in Request One, and reasserts the same objections. Id., at 3-4. Mr. Benami appears to correct this mistake in his supplemental brief, in which he asserts a relevancy and overbreadth objection on the basis that the phrase “your communications” is “without any subject matter limitation.” Doc. No. 60, at 9. The Court agrees. Request Two seeks all communications between Mr. Benami and Ms. Sanchez without any substantive limitation.
National raises no arguments specific to Request Two, instead generally claiming in its supplemental brief that all of its subpoena requests “are relevant to the present action because they relate to Benami's communications with Sanchez regarding their employment at National and Ascendo, along with National's documents and customer lists, and are specifically tailored to address Plaintiff's allegations concerning information that was wrongfully taken from National by Sanchez and disseminated to others.” Doc. No. 57, at 7. See also Doc. No. 43, at 2, 3. National further argues that all of its subpoena requests relate to the preliminary injunction entered against Ms. Sanchez, and National's pending motion for contempt. Id. But despite being provided multiple opportunities to do so, National has not narrowly tailored Request Two. Rather, as written, this request encompasses any documents regarding any and all subject matters, regardless of whether they relate to any issue in this case.
*6 Accordingly, Mr. Benami's relevancy objections are sustained and the motion to compel will be denied as to Request Two.
Request Three: All of your communications regarding Sanchez from January 1, 2021 until the present date, including but not limited to text messages, Signal messages, Whatsapp messages, Telegram messages, and emails.
Doc. No. 43-4, at 4.
Mr. Benami's objections on the basis of undue burden and disproportionality, made without explanation, see id., are overruled as boilerplate. TIC Park Centre 9, LLC v. Cabot, No. 16-24569-Civ-COOKE/TORRES, 2017 WL 3099317, at *2 n.1 (S.D. Fla. April 12, 2017) (“Courts in the Eleventh Circuit have made clear that to demonstrate an undue burden, the moving party must put forth either affidavits or other evidence that reveals the nature of the burden.”); Tropical Marketing & Consulting, LLC v. Glock, Inc., No. 6:12-cv-1388-Orl-36TBS, 2012 WL 5431002, at *3 (M.D. Fla. Nov. 7, 2012) (overruling undue burden objection due to failure to submit “affidavits or other proof to support” the objection). The Court also overrules the “fishing expedition” objection on the same basis stated above, as this request at least mentions Ms. Sanchez. However, the Court agrees with Mr. Benami as to his overbreadth objection concerning the terms “regarding” and “all communications.” Doc. No. 43-4, at 4; Doc. No 60, at 9. As written this Request requires production of every single document that mentions Ms. Sanchez in any form and for any reason, directed at any person, for a nearly two-year period. And contrary to National's assertions in its supplemental briefing, see Doc. No. 57, at 7, this request is not narrowly tailored to any issues in this case.
The Court finds that Request Three is patently overbroad, Mr. Benami's overbreadth objection is sustained, and National's motion to compel as to Request Three will be denied. See Orange Lake Country Club, Inc. v. Castle Law Group, P.C., No. 6:17-cv-1044-Orl-31DCI, 2018 WL 3390254, at *2 (M.D. Fla. Feb. 21, 2018) (finding that certain requests are “overly broad on their face, and fail to survive Rule 26(b) scrutiny, in that they are not proportional to the needs of this case, given the relevance of the requested discovery” and further noting that requests for “ ‘all documents’ at the outset of each request lacks proportionality and arguably captures a host of documents and communications that would have little to no relevance to this case”).
Request Four: All of your communications with National employees or contractors from January 1, 2021 until the present date, including but not limited to text messages, Signal messages, Whatsapp messages, Telegram messages, and emails.
Doc. No 43-4, at 5.
Mr. Benami reasserts the same objections raised in response to Requests One, Two, and Three, and further objects on the basis of undue burden because National can obtain this information from its own employees and contractors. Id. National also relies on its same arguments that the objections are boilerplate, that the requested information is relevant, and that the temporal scope objection is invalid. Doc. No. 43, at 3.
*7 For the same reasons discussed above, the Court overrules all of Mr. Benami's objections except for his relevancy and overbreadth objections. National argues that the information sought in this subpoena is relevant because it relates to Mr. Benami's communications with Ms. Sanchez regarding their employment at National and Ascendo, along with National's documents and customer lists, and that the documentation sought “specifically relates to Sanchez's activities, communications with Sanchez and National's employees, contractors, clients, and data taken from National.” Doc. No. 43, at 2, 3; see also Doc. No. 57, at 7. Request Four, however, nowhere mentions Ms. Sanchez, but instead seeks all of Mr. Benami's communications with National's employees and contractors, without any substantive limit. See also Doc. No. 60, at 9. As Mr. Benami correctly notes, there are no claims in this case relating to Mr. Benami's conduct in general, and National does not explain how Mr. Benami's communications about any and all subject matters would be relevant to any issue in this case. It is National's burden to first establish the relevancy of the information it seeks to compel – National has not met its burden here.
Mr. Benami's relevancy and overbreadth objections are sustained, and National's motion to compel as it pertains to Request Four will be denied. See Jones v. Z.O.E. Enters. of Jax, Inc., No. 3:11-cv-377-J-32MCR, 2012 WL 3065384, at *2 (M.D. Fla. July 27, 2012) (denying a motion to compel when the moving party failed to make an adequate initial showing of relevancy). See also Orange Lake Country Club, 2018 WL 3390254, at *2.
Request Five: All of your communications regarding any non-competition, non-solicitation, or confidentiality agreements referencing or regarding National.
Doc. No. 43-4, at 5.
In addition to incorporating his objections from Requests One, Two, and Three, Mr. Benami further objects on the basis that Request Five is not relevant to any claim or defense relating to Ms. Sanchez, and is overly broad and unduly burdensome because it is not limited in temporal scope or to a party. Id. The Court sustains Mr. Benami's relevancy and temporal scope objections. National does not provide any time period for this request, and does not discuss the temporal scope in its supplemental brief. And the Court cannot ascertain how Mr. Benami's communications about these agreements to any and all persons – without any mention of Ms. Sanchez whatsoever – are relevant to any issue in the present case. The motion to compel as to Request Five will be denied. See Jones, 2012 WL 3065384, at *2; Orange Lake Country Club, 2018 WL 3390254, at *2.
Request Six: All non-competition, non-solicitation, or confidentiality agreements referencing or regarding National.
Doc. No. 43-4, at 6.
Mr. Benami raises essentially the same objections here as in his response to Request Five. Id. And the Court again finds that Mr. Benami's objections as to temporal scope and relevancy are well founded and therefore sustained. National's arguments remain the same, Doc. No. 43, at 3, and do not explain how this request as drafted – which requests agreements from anyone and everyone without limit (and without mention of Ms. Sanchez) – is relevant to any issue in the case, nor does National attempt to narrow the temporal scope. See also Doc. No. 57, at 7-9. The motion to compel as to Request Six will be denied.[4]
Request Seven: 7. All employee or prospective employee disclosure forms or applications referencing or regarding National.
*8 Doc. No. 43-4, at 6.
As before, Mr. Benami raises the same objections as in Requests One, Two, and Three, and further argues that this information seems to be designed to obtain information from Ascendo, for which Mr. Benami does not speak, and does not have access to such information. Id. Mr. Benami further argues that this request, which relates to employee forms and applications, bears no relevance to any of National's claims against Ms. Sanchez. Id. And National reasserts its same arguments challenging these objections – although notably, National makes no argument in its motion or supplemental brief regarding temporal scope. Doc. No. 43, at 3; Doc. No. 57, at 4-7.
For the reasons discussed above, Mr. Benami's objections as to temporal scope, overbreadth, and relevancy are sustained – this request seeks documents related to any and all employees or prospective employees without even identifying the employer/prospective employer – without explanation and without time limit. The motion to compel as to Request Seven will be denied. See Jones, 2012 WL 3065384, at *2; Orange Lake Country Club, 2018 WL 3390254, at *2; Skyline Steel, 2015 WL 13358183, at *3; Ubiquiti Networks, Inc. v. Kozumi USA Corp., 295 F.R.D. 517, 527 (N.D. Fla. 2013) (finding subpoena request “facially overbroad” because it “does not have any time parameters” and ordering plaintiff to narrowly tailor the subpoena requests and add “time parameters” if it desires to go forward with the discovery).
Request Eight: All resumes or curriculum vitae referencing or regarding National.
Doc. No. 43-4, at 6.
In its supplemental brief, National limits this request to the time period January 1, 2020 to present, and excludes Mr. Benami's own resume or curriculum vitae. But even as limited, National's motion to compel fails. National still has not established the relevancy of these requested materials, and the request is still overbroad – it seeks any and all resumes or curriculum vitae from any and all persons without any explanation as to how this information would lead to the discovery of any admissible evidence as to any issue in this case. Mr. Benami's objections as to relevancy and overbreadth, see Doc. No. 43-4, at 6-7 and Doc. No. 60, at 9, are sustained, and the motion to compel as to Request Eight will be denied.
Request Nine: All documents related to, concerning, or evidencing your use, custody, possession, control, or access to National's documentation or data, including but not limited to customer lists, financial statements, contact information for National employees or contractors, or contact information for potential staffing candidates.
Doc. No. 43-4, at 7.
National has also narrowed this request to remove the phrase “related to, concerning,” and to exclude Mr. Benami's personal payroll and employment documentation provided by National and associated with Mr. Benami's own payroll or employment records. Doc. No. 57, at 8. Despite this limitation, Mr. Benami continues to assert objections as to temporal scope, relevancy, and that the term “evidences” is ambiguous. Doc. No. 60, at 9.
*9 While the Court finds that this request as limited is more narrowly tailored as to subject matter, it is overly broad as to temporal scope as it provides no time limit. But more importantly, National has failed to meet its burden of establishing relevancy. While National argues that Mr. Benami and Ms. Sanchez worked together at National, there are no claims against Mr. Benami in this case, and other than stating that Mr. Benami was a co-worker, National has not provided further information as to their relationship, or their roles at Ascendo. The Court is therefore at a loss as to how documents relating to Mr. Benami's use, custody, possession, control, or access to National's information is relevant to any of the claims in this case against Ms. Sanchez, particularly when Ms. Sanchez is nowhere mentioned in this request. And even though the Court provided National with supplemental briefing, it has failed to explain how any information sought in this request would be relevant to any issue in this case aside from the general and conclusory statements previously identified. See Doc. No. 57, at 7. To hold otherwise would require the Court to rewrite this request, and to speculate as to the potential connections between Ms. Sanchez and Mr. Benami that National has had multiple opportunities to explain to the Court, but has failed to do so.
Mr. Benami's objections as to relevancy and temporal scope are sustained and the motion to compel as to Request Nine will be denied.
Request Ten: All communications or documentation referencing or regarding attempts to conceal or avoid National's discovery of any of your or Sanchez's actions.
Doc. No. 43-4, at 7.
Again, the same objections and arguments are raised. Doc. No. 43, at 3; Doc. No. 43-4, at 8; Doc. No. 57, at 2-7; Doc. No. 60, at 9.[5] Mr. Benami's objections are well taken and sustained. This request is overbroad in the extreme – there is no temporal limitation, and the Court has no idea what National means with respect to “any of your or Sanchez's actions.” The motion to compel as to Request Ten will be denied.
Request Eleven: All documentation that you obtained from National, directly or indirectly.
Doc. No. 43-4, at 8.
National has also limited this request to exclude Mr. Benami's personal payroll and employment documentation that he was provided by National and associated with his own payroll or employment records. Doc. No. 57, at 8. This limitation does not save this request. This request remains patently overbroad in both temporal and substantive scope, and is not fashioned to relate to any claim or issue in this case. Id. The motion to compel will be denied as to Request Eleven.
National also seeks an award of its fees and costs. However, because the Court is granting in part and denying in part the motion to compel, the Court finds that an award of fees would be unjust. See Fed. R. Civ. P. 37(a)(5)(A)(ii), (a)(5)(C). National's request for fees and costs will therefore be denied.
IV. CONCLUSION
Accordingly, Plaintiff's Motion to Compel Non-Party, Benjamin Benami's, Compliance With Subpoena Duces Tecum (Doc. No. 43) is GRANTED IN PART AND DENIED IN PART.
As discussed in this Order, Mr. Benami's general objections are OVERRULED. Mr. Benami's objections to Request One are OVERRULED. On or before September 27, 2022, Mr. Benami shall produce all documents responsive to subpoena Request One. See Doc. No. 43-1. Mr. Benami's specific objections to Requests Two through Eleven are SUSTAINED as explained above. In all other respects, Plaintiff's motion (Doc. No. 43) is DENIED.
DONE and ORDERED in Orlando, Florida on September 12, 2022.
Footnotes
Ascendo was also the subject of a subpoena duces tecum and resulting motion to compel, which the Court has addressed by separate Order. See Doc. Nos. 47, 52, 68.
Mr. Benami submitted initial responses, and two sets of amended responses. Doc. Nos. 43-2, 43-3, 43-4. The Court focuses solely on Mr. Benami's most recent responses, the second amended responses and objections. Doc. No. 43-4.
For example, this information may lead National to discover personal accounts of Ms. Sanchez where she may have stored or used National's confidential information.
While the Court is willing to limit the temporal scope of some of these subpoena requests where the relevancy is either explained or readily ascertainable, the Court will not wholesale rewrite National's subpoena requests when it is unclear what exactly National is looking for or the relevancy of same. As written, many of these subpoena requests are so broad as to encompass any and all documents, and if the Court were to attempt to redraft or narrow them, the Court would be scouring through the record in the hopes of reading National's mind and engaging in a complete rewrite of the subpoena. The Court will not do National's job for it. Moreover, the parties were required to meet and confer prior to National filing the present motion, and required to meet and confer an additional time prior to filing their supplemental briefing. As such, National has had ample opportunity to narrow and clarify these requests.
Mr. Benami further objects on the basis that this request “appears to seek attorney/client privileged information.” Doc. No. 43-4, at 8. See also Doc. No. 60, at 10 (arguing that the request “also fails to expressly exclude any communications with counsel.”). Because the Court will deny the motion to compel on other grounds, the Court need not address this objection further. However, the Court notes that claims of privilege – whether by a party or non-party – must be supported by a privilege log in order to be considered. See Standing Order Regarding Privilege Logs, Case No. 6:19-mc-32-Orl-LRH, Doc. No. 1 (M.D. Fla. June 17, 2019).