Nat'l Staffing Sols., Inc v. Sanchez
Nat'l Staffing Sols., Inc v. Sanchez
2022 WL 19355853 (M.D. Fla. 2022)
September 12, 2022
Price, Leslie H., United States Magistrate Judge
Summary
The Court ordered Ascendo to produce documents in response to the subpoena, including ESI such as emails, text messages, and other digital records. The Court required Ascendo to make a reasonable and diligent search for all such responsive documents, utilizing the definitions set forth in the subpoena.
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, ASCENDO RESOURCES, LLC'S, COMPLIANCE WITH SUBPOENA DUCES TECUM (Doc. No. 47)
FILED: August 18, 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 and to download and save National's confidential business records, including financial information and contact information, to her personal accounts. 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. National has recently filed several motions to compel, related to subpoenas duces tecum served on various non-parties. Doc. Nos. 43, 47, 54-55. The above-styled motion to compel is one such motion, and addresses a subpoena duces tecum served on Ascendo Resources, LLC (“Ascendo”) an employer of Ms. Sanchez for a brief period following her termination from National, and a direct competitor of National. Doc. No. 47; see also Doc. No. 52, at 1. Ascendo responded to the subpoena with numerous general and specific objections, but has not produced a single document. Doc. No. 47, at 2; Doc. No. 47-2. National requests that Ascendo's objections be overruled, that Ascendo be compelled to produce documents in response to the subpoena, and that National be awarded fees and costs. Doc. No. 47, at 3. Ascendo has filed a response in which it states that its objections should be sustained, and the motion to compel denied. Doc. No. 52. Both the motion and response comply with my Standing Order on Discovery. Doc. No. 30. Ascendo has requested additional briefing, see Doc. No. 30, at ¶ 7, however, the Court finds that it does not require additional briefing in order to rule on the motion.
The motion 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 also 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).
There is no “absolute privilege” for trade secrets and similar confidential business information, rather the court weighs “the claim to privacy against the need for disclosure, and commonly enter[s] a protective order restricting disclosure.” United States ex rel. Willis v. SouthernCare, Inc., No. CV410-124, 2015 WL 5604367, at *3 (S.D. Ga. Sept. 23, 2015) (quoting Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006)); Fed. R. Civ. P. 45(d)(3)(B)(i) (“To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires ... disclosing ... commercial information.”). Pursuant to Federal Rule of Civil Procedure 45(e)(2)(A)(ii), if a party claims privilege, the party must “describe the nature of the withheld documents, communications, or tangible thing in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.”
*3 “The party resisting discovery must first establish that the information sought is [otherwise confidential] and then demonstrate its disclosure might be harmful.” Sams v. GA West Gate, LLC, 316 F.R.D. 693, 698 (N.D. Ga. 2016) (citation and quotation marks omitted); Fadalla, 258 F.R.D. at 504. The burden then shifts to the requesting party to demonstrate a “substantial need” which cannot otherwise be met without undue hardship and assures that the non-party is reasonably compensated. Sams, 316 F.R.D. at 698 (citing Gonzales v. Google, Inc., 234 F.R.D. 674, 684 (N.D. Cal. 2006)). Instead of quashing or modifying a subpoena under these circumstances, a court may also impose specified conditions for disclosure. Fed. R. Civ. P. 45(d)(3)(C).
III. ANALYSIS
The subpoena served on Ascendo requests 11 categories of documents, and the Court discusses each category and Ascendo's responses below. See Doc. No. 47-2. But first, the Court will address Ascendo's general objections.
Ascendo lists 14 general objections, which Ascendo then incorporates into its responses to each of the 11 categories of documents. These general objections run the gamut from claiming that the subpoena is an “improper fishing expedition;” that the information sought constitutes confidential, proprietary, and trade secret information; that the information sought is irrelevant to the present case; that the subpoena is both temporally and substantively overbroad, as well as vague and ambiguous; that compliance with the subpoena would require undue burden and expense, particularly in light of Ascendo's status as a direct competitor of National; that any production must be subject to a confidentiality and protective order; that Ascendo objects to producing documents not in its possession, custody or control, or which belongs to non-parties (which Ascendo defines to includes its own employees); that documents are protected by the attorney-client and/or work-product privileges; that the documents are cumulative, duplicative, and can be obtained from other sources; and that the definitions contained in the subpoena go beyond the discovery obligations of the Federal Rules of Civil Procedure and this Court's Local Rules. Doc. 47-2, at 1-7.
In addition to making an overarching statement that all 14 general objections apply to all 11 of National's subpoena requests, Ascendo incorporates all 14 general objections into its specific responses to each subpoena request. Doc. 47-2, at 7-14. However, Ascendo only provides further explanation as to some of these general objections in its specific responses. Id.
“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, at *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).
*4 Here, it is clear that Ascendo's 14 general objections do not apply to all 11 of the subpoena topics. For example, Ascendo has not established that any of the information requested in the subpoena would constitute confidential, trade secret, or proprietary information or attorney-client privileged information. See, e.g., Mullins v. Encore Senior Living II, LLC, No. 3:07-cv-325/WS/EMT, 2007 WL 4098851, at *1 n.1 (N.D. Fla. Nov. 16, 2007) (“[A] baldfaced assertion [of privilege or protection] is insufficient ....” (quoting Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984))). And it appears that Ascendo has abandoned many of these general objections, for in its response to the motion to compel, it limits its argument to the issues of relevancy, that the subpoena is an improper fishing expedition, and that requiring Ascendo to produce documents would constitute an undue burden or expense, particularly in light of Ascendo's status as a non-party direct competitor of National. Doc. No. 52. See Zamperla, Inc. v. I.E. Park SRL, No. 6:13-cv-1807-Orl-37KRS, 2015 WL 12836001, at *1 (M.D. Fla. Sept. 22, 2015) (objections not raised in response to a motion to compel are abandoned).
Accordingly, Ascendo'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, 2014 WL 12614505, at *4 (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 Ascendo'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.
Doc. No. 47-2, at 7.
Ascendo objects on the basis that this request is not relevant to any of the issues in the present case, and is temporally overbroad given that Ascendo only employed Ms. Sanchez from May 2, 2022 through July 14, 2022. Id. Then Ascendo confusingly argues that the request merely requires the “identification” of the information requested and is vague and ambiguous as “sufficient to evidence” is not defined. Id., at 7-8.
In its motion to compel, National claims that Ascendo's arguments are boilerplate, and that “the information sought by the Subpoena specifically relates to Sanchez's activities during her employment at Ascendo, communications with Sanchez and National's employees, contractors, clients, and data taken from National.” Doc. No. 47, at 3. See also id., at 2 (stating that the documents requested “relate to Ascendo's communications with Sanchez regarding her employment at National and Ascendo, along with what Sanchez did with National's documents and customer lists.”). As to the temporal scope, National argues in conclusory fashion that this objection is not valid because “whether relevant documents are dated before or after Sanchez worked at Ascendo is not a meterstick for relevance.” Id., at 3.
The Court finds that both sides’ arguments have some teeth to them. To begin, the Court does not find Ascendo's specific objections to this request to be boilerplate – Ascendo provides some explanation for each objection. Cf. 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.”). However, Ascendo's objections on the basis of relevancy, vagueness, and substantive overbreadth are without merit and are overruled. It is clear to the Court what information National is requesting, it is narrowly tailored to documents identifying the manner in which Ascendo specifically communicated with Ms. Sanchez, 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 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.”).
*5 On the other hand, Ascendo's objection as to temporal scope is well taken. National has not even attempted to explain why information from January 1, 2018 to the present would be relevant to this case where National terminated Ms. Sanchez's employment in August 2021, Ascendo did not employ Ms. Sanchez until May 2, 2022, and there is not even a suggestion of any relationship between Ms. Sanchez and Ascendo prior to May 2, 2022 that would be relevant to any of the issues in the present case. Accordingly, the Court will sua sponte limit the time period for this request to January 1, 2022 to present, and require Ascendo to produce documents responsive to this request for this limited time period. See Skyline Steel, LLC v. J.D. Fields & Co., Inc., No. 6:15-cv-528-Orl-41KRS, 2015 WL 13358183, at *3 (M.D. Fla. Nov. 24, 2015) (finding categories of a subpoena request overbroad because they had no temporal limitation).
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. 47-2, at 8.
Ascendo objects to this request on the same bases: relevancy, temporal and substantive overbreadth, and that the request is vague and ambiguous. However, the only explanation Ascendo provides is that the term “communications” is vague because it “is only partially limited by further explanation.” Id. In its motion, National raises the same concerns as with Ascendo's objections to Request One. Doc. No. 47, at 3.
Here, National has the better of the arguments. Ascendo's objections are boilerplate – there is no explanation as to why Request Two is substantively overbroad, irrelevant, or vague and ambiguous. See Siddiq, 2011 WL 6936485, at *3 (“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.”). And Ascendo's explanation as to why the term “communications” is vague is itself vague and ambiguous. As such, with the exception of the temporal scope objection, Ascendo's objections are overruled. Ascendo shall produce all responsive documents for the time period January 1, 2022 to present.
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. 47-2, at 8.
Ascendo's objections are identical to those raised in response to Request Two, with one addition: Ascendo claims that the phrase “regarding Sanchez” is vague and ambiguous “as it calls for qualitative determinations.” Id., at 8-9. National's arguments in favor of compelling production are the same. Doc. No. 47, at 3.
The Court agrees with Ascendo as to the temporal scope of the request, as well as the phrase “regarding Sanchez.” The Court itself is unable to ascertain what this phrase means, and National has shed no light on the matter. As written, this Request requires production of every single document that mentions Ms. Sanchez in any form and for any reason for a nearly two-year period. The Court finds that Request Three is patently overbroad, Ascendo's overbreadth objections are 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.”).
*6 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 47-2, at 9.
Ascendo reasserts the same objections it raised in response to Request Two, with two additional explanations. First, that this Request “improperly assumes Ascendo knows, or improperly obligates Ascendo to know, the identity of ‘National employees or contractors.’ ” Id. Second, that “this request does not even purport to be limited to items connected in some way to Sanchez – her name is not even mentioned in the request.” Id. National again 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. 47, at 3.
Upon consideration, the Court first finds Ascendo's objection relating to assuming or obligating Ascendo to know the identity of National's employees or contractors both legally unsupported and unpersuasive. The words and terms used in the subpoena requests are defined in the subpoena, and if not, have the meaning ascribed by the Oxford English Dictionary, Second Edition. Doc. No. 47-1, at 4. Moreover, parties respond to discovery requests on the basis of their personal knowledge, and upon a reasonable and diligent search, and that is all that is required here.
However, Ascendo's objection on the basis of relevancy, for which Ascendo provides some explanation and therefore is not boilerplate, is well taken. National argues that the information sought in this subpoena is relevant because it relates to Ms. Sanchez's activities while employed at Ascendo, communications with Ms. Sanchez and persons with ties to National, and what Ms. Sanchez did with National's documents sand customer lists. Doc. No. 47, at 2, 3 (emphasis added). Request Four, however, nowhere mentions Ms. Sanchez, and instead seeks all of Ascendo's communications by anyone acting on behalf of Ascendo, with National's employees and contractors, without any substantive limit. It is National's burden to first establish the relevancy of the information it seeks to compel – National has not met its burden here. For the same reasons, the Court finds Request Four to be substantively overbroad.
Ascendo'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. 47-2, at 10.
Ascendo's objections, and National's arguments, essentially mirror those raised in response to Requests Three and Four. Doc. No. 47, at 3; Doc. No. 47-2, at 10. For the same reasons listed above, the Court sustains Ascendo's relevancy and temporal scope objections. The motion to compel as to Request Five will be denied.
*7 Request Six: All non-competition, non-solicitation, or confidentiality agreements referencing or regarding National.
Doc. No. 47-2, at 10.
Again, both parties raise the same objections and arguments. Doc. No. 47, at 3; Doc. No. 47-2, at 10-11. The Court finds that Ascendo's objections as to temporal scope and relevancy are well founded and therefore sustained. National's arguments remain the same, and do not explain how this request as drafted is relevant to any issue in the case, nor does National attempt to narrow the temporal scope. The motion to compel as to Request Six will be denied.[1]
Request Seven: All employee or prospective employee disclosure forms or applications referencing or regarding National.
Doc. No. 47-2, at 11.
Ascendo again raises the same objections, in particular as to temporal scope and relevancy, and notes that this request is not limited to Ms. Sanchez or to any issue or claim in this case, but rather seeks all documents without qualification. Id. And National again makes the same arguments as to relevance, temporal scope, and boilerplate objections. Doc. No. 47, at 3. For the reasons discussed above, Ascendo'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 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.
Request Eight: All resumes or curriculum vitae referencing or regarding National.
Doc. No. 47-2, at 12.
Request Eight suffers from the same deficiencies as Request Seven. Ascendo's objections as to relevancy, temporal scope, and substantive overbreadth, see id., 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. 47-2, at 12.
Ascendo asserts the same objections as before, and National raises the same arguments in its motion. Doc. No. 47, at 3; Doc. No. 47-2 at 12-13. With the exception of Ascendo's temporal scope objection, the Court finds that Ascendo's remaining objections are without merit and overruled. Unlike National's prior requests which merely requested “all documents,” Request Nine is further qualified to seek documentation relating to National's “customer lists, financial statements, contact information for National employees or contractors, or contact information for potential staffing candidates.” Doc. No. 47-2, at 12. The Court will therefore limit Request Nine to require production of documentation related to National's customer lists, National's financial statements, contact information for National's employees/contractors, and contact information for National's potential staffing candidates. And if any such documentation does not exist, or is not in Ascendo's possession, custody, or control, Ascendo shall explain as much.
*8 As limited, this request could lead to admissible information, particularly with respect to Ms. Sanchez's use of National's confidential information and/or transmission of same to a direct competitor and Ms. Sanchez's recent employer (i.e. Ascendo). As before, Ascendo shall respond to this request based on a reasonable and diligent search based on personal knowledge, using the definitions of the terms and words used as set forth in the Oxford English Dictionary, Second Edition. However, in the absence of any explanation or argument from National as to an appropriate time limit, the Court will again limit the time period to January 1, 2022 to present.
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. 47-2, at 13.
Again, the same objections and arguments are raised. Doc. No. 47, at 3; Doc. No. 47-2, at 13-14. Ascendo'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. 47-2, at 14.
The motion to compel as to Request Eleven will be denied. As noted in Ascendo's objections, this request is patently overbroad in both temporal and substantive scope, and is not fashioned to relate to any claim or issue in this case. Id. National sheds no light on the matter in its motion. Doc. No. 47, at 2, 3.
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, Ascendo Resources, LLC's Compliance With Subpoena Duces Tecum (Doc. No. 47) is GRANTED IN PART AND DENIED IN PART.
As discussed in this Order, Ascendo's general objections are OVERRULED. Ascendo's specific objections to Requests Three, Four, Five, Six, Seven, Eight, Ten, and Eleven are SUSTAINED.
With the exception of Ascendo's temporal scope objections, its objections to Requests One, Two, and Nine are OVERRULED. On or before September 27, 2022, Ascendo shall produce all documents responsive to Requests One, Two, and Nine as discussed above for the time period January 1, 2022 to the present. See Doc. No. 47-1. Ascendo shall make a reasonable and diligent search for all such responsive documents, utilizing the definitions set forth in the subpoena. Id.
In all other respects, Plaintiff's motion (Doc. No. 47) is DENIED.
DONE and ORDERED in Orlando, Florida on September 12, 2022.
Footnotes
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, thus National has had an opportunity to work with Ascendo to narrow and clarify these requests.