Nat'l Staffing Sols., Inc v. Sanchez
Nat'l Staffing Sols., Inc v. Sanchez
2022 WL 19355861 (M.D. Fla. 2022)
September 15, 2022
Price, Leslie H., United States Magistrate Judge
Summary
The court granted National's motion to compel non-parties Atcachunas and Foor to produce documents responsive to Request One, but denied the motion to compel in all other respects. The court considered the relevance, temporal scope, overbreadth, vagueness, and ambiguity of the ESI in making its decision. The court also denied National's request for fees and costs in bringing the motions.
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 15, 2022
Price, Leslie H., United States Magistrate Judge
ORDER
*1 This cause came on for consideration without oral argument on the following motions filed herein:
MOTION: PLAINTIFF'S MOTION TO COMPEL NON-PARTY, JACKIE ATCACHUNAS'S, COMPLIANCE WITH SUBPOENA DUCES TECUM (Doc. No. 54)
FILED: August 24, 2022
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
MOTION: PLAINTIFF'S MOTION TO COMPEL NON-PARTY, MIKE FOOR'S, COMPLIANCE WITH SUBPOENA DUCES TECUM (Doc. No. 55)
FILED: August 24, 2022
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
I. BACKGROUND
The substance of the claims raised in this case, as well as the procedural history, have been more fully set forth in prior Orders of the Court. See Doc. Nos. 68–69. In short, Plaintiff National Staffing Solutions, Inc. (“National”) alleges that its former employee, Heidi Sanchez, misappropriated and used National's confidential business information following her termination from employment. See Doc. No. 1.
On July 13, 2022, the Presiding District Judge issued a preliminary injunction enjoining Ms. Sanchez from accessing National's computer systems, using documentation or ESI obtained from National, and contacting any of National's current or prospective clients, other than to notify them of the preliminary injunction. Doc. No. 35. 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.
In a recent flurry of discovery practice, National has filed four motions to compel directed to non-parties Ascendo Resources, LLC (“Ascendo”), Benjamin Benami, Jackie Atcachunas, and Mike Foor, which relate to subpoenas duces tecum served on these non-parties. See Doc. Nos. 43, 47, 54, 55. Each of the subpoenas duces tecum contain an identical “Exhibit A,” seeking 11 identical categories of documents from the non-parties. See id. The Court has already issued Orders granting in part and denying in part National's requests to compel Ascendo and Benami's compliance with those subpoenas. See Doc. Nos. 68–69. This Order concerns the remaining motions to compel directed to Atcachunas and Foor. See Doc. Nos. 54–55. Upon review, National's motions to compel related to Atcachunas and Foor will be granted in part and denied in part, as set forth herein.
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).
*2 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).
III. ANALYSIS
National seeks to compel Atcachunas and Foor's compliance with all 11 categories of documents sought by Exhibit A to the subpoenas. Doc. Nos. 54–55. The motions to compel, Atcachunas and Foor's responses to the motions to compel, see Doc. Nos. 58–59, and Atcachunas and Foor's objections to each of the categories of documents are substantively the same, see Doc. Nos. 54-2, 55-2, and thus, the motions and Atcachunas and Foor's objections will be addressed collectively.
A. General Objections
In response to the subpoenas, Atcachunas and Foor assert 10 general objections that purport to apply to each of the individual document requests. Doc. No. 54-2, at 2–4; Doc. No. 55-2, at 2–4. National argues that each of these general objections are improper and should be stricken. Doc. No. 54, at 3; Doc. No. 55, at 2–3. Neither Atcachunas nor Foor respond to this argument. See Doc. Nos. 58–59.
As explained in the Orders related to the Ascendo and Benami subpoenas,
“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).
See Doc. No. 68, at 9; Doc. No. 69, at 7–8.
Here, Atcachunas and Foor attempt to incorporate each of their general objections into their individual objections to each category of requested documents, without explanation. Doc. No. 54-2, at 5–9; Doc. No. 55-2, at 5–9. However, not all of the general objections would necessarily apply to all 11 of the subpoena topics. Absent explanation from Atcachunas and Foor as to how each of the general objections apply to the individual subpoena requests, the general objections are due to be overruled. 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 will consider Atcachunas and Foor's general objections only to the extent that such objection is specifically asserted (not just blanket incorporated) in response to a specific subpoena topic.
B. Subpoena Requests
*3 The Court now turns to each subpoena request and Atcachunas and Foor'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. 54-1, at 6; Doc. No. 55-1, at 6.
Atcachunas and Foor object based on relevance, temporal scope, and overbreadth grounds, and argue that Request One is vague and ambiguous. Doc. No. 54-2, at 5; Doc. No. 55-2, at 5. As to vagueness, they take issue with the term “sufficient to evidence.” Id. And as to temporal scope, they state that “this request far exceeds Sanchez's short tenure of employment with Ascendo.” Id.
As National argues, the vagueness and overbreadth objections to Request One are classic boilerplate objections and therefore overruled. See 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 finds unpersuasive the suggestion that the term “sufficient to evidence” is ambiguous.
As to temporal scope, although Atcachunas and Foor assert that “this request far exceeds Sanchez's short tenure of employment with Ascendo,” they do not expand on this argument, or otherwise support it in response to the motions to compel. See Doc. No. 54-2, at 5; Doc. No. 55-2, at 5; Doc. Nos. 58–59. Absent some explanation from Atcachunas and Foor, the Court overrules the objection. And the Court otherwise finds that Request One is narrowly tailored to information that identifies methods of communication used between Sanchez and Atcachunas and Foor, 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.”); 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.”). Accordingly, Atcachunas and Foor's objections as to Request One are overruled, and the motions 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.
*4 Atcachunas and Foor object based on relevance, temporal scope, and vagueness and ambiguity, specifically in that the request seeks “communications,” only partially limited by further explanation. Doc. No. 54-2, at 5; Doc. No. 55-2, at 5.
Upon review, the motions to compel as to Request Two will be denied for the same reasons the Court denied National's motion to compel related to Benami. See Doc. No. 69, at 13 (“[A]s written, this request encompasses any documents regarding any and all subject matters, regardless of whether they relate to any issue in this case.”).
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. 54-1, at 6; Doc. No. 55-1, at 6.
Atcachunas and Foor object to Request Three based on relevance, temporal scope, overbreadth, and vagueness and ambiguity grounds, focusing on the terms “communications” and “regarding Sanchez.” Doc. No. 54-2, at 6; Doc. No. 55-2, at 6.
Upon consideration, the motions to compel as to Request Three will be denied for the same reasons the Court denied National's motion to compel related to Benami. See Doc. No. 69, at 14–15 (“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.... The Court finds that Request Three is patently overbroad.”).
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. 54-1, at 6; Doc. No. 55-1, at 6.
Atcachunas and Foor assert objections as to relevance, temporal scope, overbreadth, vagueness, and ambiguity, citing to the term “communications” and noting that the request is in no way limited to Sanchez. Doc. No. 54-2, at 6; Doc. No. 55-2, at 6. Atcachunas and Foor also state that the request improperly assumes that they know the identity of “National employees or contractors.” Id.
The motions to compel as to Request Four will be denied for the same reasons the Court denied National's motion to compel related to Benami. See Doc. No. 69, at 16–17 (“Request Four ... nowhere mentions Ms. Sanchez, but instead seeks all of Mr. Benami's communications with National's employees and contractors, without any substantive limit.... [T]here 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.”).
Request Five: All of your communications regarding any non-competition, non-solicitation, or confidentiality agreements referencing or regarding National.
Doc. No. 54-1, at 6; Doc. No. 55-1, at 6.
Atcachunas and Foor object on relevance, temporal scope, overbreadth, vagueness, and ambiguity grounds, focusing on the terms “communications” and “regarding” “non-competition, non-solicitation, or confidentiality agreements,” and contending that the request is in no way limited to Sanchez. Doc. No. 54-2, at 7; Doc. No. 55-2, at 7.
*5 On review, the motions to compel as to Request Five will be denied for the same reasons the Court denied National's motion to compel related to Request Five directed to Benami. See Doc. No. 69, at 17 (“The Court sustains Mr. Benami's relevancy and temporal scope objections. National does not provide any time period for this request, ... 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.”).
Request Six: All non-competition, non-solicitation, or confidentiality agreements referencing or regarding National.
Doc. No. 54-1, at 6; Doc. No. 55-1, at 6.
Atcachunas and Foor's objections are substantially similar to those raised to Request Five, see Doc. No. 54-2, at 7; Doc. No. 55-2, at 7, and the temporal scope and relevancy objections to Request Five will be sustained for the same reasons previously set forth by the Court. See Doc. No. 69, at 18 (“[T]he Court again finds [the] objections as to temporal scope and relevancy are well founded .... [National] do[es] 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.”).
Request Seven: All employee or prospective employee disclosure forms or applications referencing or regarding National.
Doc. No. 54-1, at 6; Doc. No. 55-1, at 6.
Atcachunas and Foor object on relevance, temporal scope, overbreadth, vagueness, and ambiguity grounds, and point out that the request is in no way limited to any connection with Sanchez. Doc. No. 54-2, at 7–8; Doc. No. 55-2, at 7–8.
For the same reasons previously set forth by the Court as it relates to the subpoena directed to Benami, the motions to compel as to Request Seven will be denied. See Doc. No. 69, at 18–19 (“[The] 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.”).
Request Eight: All resumes or curriculum vitae referencing or regarding National.
Doc. No. 54-1, at 6; Doc. No. 55-1, at 6.
Atcachunas and Foor object on relevance, temporal scope, overbreadth, vagueness, and ambiguity grounds, and again because the request does not relate specifically to Sanchez in any way. Doc. No. 54-2, at 8; Doc. No. 55-2, at 8.
On review, the motions to compel as to Request Eight will be denied for the same reasons the Court denied National's motion to compel related to Request Eight directed to Benami. See Doc. No. 69, at 19–20 (sustaining relevancy and overbreadth objections to Request Eight because “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”).
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. 54-1, at 7; Doc. No. 55-1, at 7.
Atcachunas and Foor object on relevance, temporal scope, overbreadth, vagueness, and ambiguity grounds, because the request improperly obligates them to know whether identified items are “National's,” and again because the request does not relate specifically to Sanchez in any way. Doc. No. 54-2, at 8–9; Doc. No. 55-2, at 8–9.
*6 For the same reasons supporting the Court's ruling as to the subpoena directed to Benami, National has not carried its burden of establishing relevancy as to Request Nine as it relates to Atcachunas and Foor, and therefore the motions to compel as to Request Nine will be denied. See Doc. No. 69, at 20–22.
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. 54-1, at 7; Doc. No. 55-1, at 7.
Atcachunas and Foor object on relevance, temporal scope, overbreadth, vagueness, and ambiguity grounds, and on the ground that the request improperly assumes the existence of wrongdoing by them. Doc. No. 54-2, at 9; Doc. No. 55-2, at 9.
The motions to compel as to Request Ten will be denied for the same reasons previously set forth by the Court. See Doc. No. 69, at 22 (“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.”).
Request Eleven: All documentation that you obtained from National, directly or indirectly.
Doc. No. 54-1, at 7; Doc. No. 55-1, at 7.
Atcachunas and Foor again raise relevancy, overbreadth, temporal scope, vagueness, and ambiguity objections, and argue that the request is in no way limited to any connection with Sanchez. Doc. No. 54-2, at 9; Doc. No. 55-2, at 9.
For the same reasons the Court denied National's motion to compel related to Request Eleven directed to Benami, the motions to compel here will also be denied as to Request Eleven. See Doc. No. 69, at 22–23 (“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.”).
National also seeks an award of its fees and costs in bringing the motions. Doc. No. 54, at 4; Doc. No. 55, at 3. However, because the Court is granting in part and denying in part the motions to compel, National's request for fees and costs will be denied. See Fed. R. Civ. P. 37(a)(5)(C).
IV. CONCLUSION
For the reasons stated herein, Plaintiff's Motion to Compel Non-Party, Jackie Atcachunas's, Compliance With Subpoena Duces Tecum (Doc. No. 54) and Plaintiff's Motion to Compel Non-Party, Mike Foor's, Compliance With Subpoena Duces Tecum (Doc. No. 55) are GRANTED IN PART AND DENIED IN PART.
As discussed in this Order, Atcachunas and Foor's general objections are OVERRULED. Atcachunas and Foor's objections to Request One are OVERRULED. On or before September 29, 2022, Atcachunas and Foor shall produce all documents responsive to subpoena Request One. See Doc. Nos. 54-1, 55-1. In all other respects, National's motions (Doc. Nos. 54, 55) are DENIED.
DONE and ORDERED in Orlando, Florida on September 15, 2022.