PEDIATRIC SERVICES OF AMERICA, INC., a foreign corporation, d/b/a PSA Healthcare, Plaintiff, v. Jodi Lynn KENDRICK and Aloa Care Group, LLC, Defendants Case No. 3:18cv1372-RV-CJK United States District Court, N.D. Florida, Pensacola Division Signed January 17, 2019 Counsel Linda Hohlt Wade, Wade Palmer & Shoemaker PA, Pensacola, FL, for Plaintiff. James E. Fakhoury, William Cantrell, Cantrell PLC - Tampa FL, Tampa, FL, for Defendants. Kahn, Charles J., Jr., United States Magistrate Judge ORDER *1 This matter is before the court on Plaintiff's Motion to Compel Discovery (doc. 30) and Defendants' Response to Motion to Compel Discovery (doc. 34). Through its motion, plaintiff seeks an order compelling defendants to provide responses to an interrogatory and several requests for production of documents. I. BACKGROUND This case stems from defendant Jody Lynn Kendrick's employment with plaintiff, during which Ms. Kendrick entered into a non-solicitation and non-disclosure agreement which prohibited Ms. Kendrick from directly or indirectly soliciting plaintiff's patients, nurses, or other clinical employees or disclosing plaintiff's confidential information for a period of 12 months after cessation of employment. Upon termination of her employment with plaintiff, Ms. Kendrick signed another agreement, pursuant to which she was prohibited from disparaging plaintiff in any manner. Following her employment with plaintiff, Ms. Kendrick formed Aloa Care Group, LLC (“Aloa”), which directly competed with plaintiff, including for contracts to provide health services for the Escambia and Santa Rosa County school districts. After Aloa was awarded the Escambia County contract, plaintiff filed suit, alleging breach of contract, tortious interference, misappropriation of trade secrets, and defamation. Plaintiff also protested award of the Escambia County contract to Aloa, which led to the Escambia County Contract being rebid. After a competitive re-bidding process, the contract again was awarded to Aloa. Aloa alleges that throughout the bidding process, plaintiff took affirmative steps to interfere with its ability to administer its contract with Escambia County and obtain the Santa Rosa County contract. Aloa further alleges plaintiff made misrepresentations and defamatory statements against it. Aloa filed counterclaims against plaintiff for tortious interference, defamation, fraudulent misrepresentation, and negligent misrepresentation. Plaintiff served its First Interrogatories and Request for Production on August 14, 2018. Defendants responded to the requests for production on September 21, 2018, and the interrogatories on October 2 and December 10, 2018. Plaintiff challenges a number of defendants' discovery responses. II. DISCUSSION Pursuant to Rule 26 of the Federal Rules of Civil Procedure, [p]arties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). Information within the scope of discovery need not be admissible in evidence to be discoverable. Id. One method of discovery provided for under the Rules is interrogatories. As set forth in Rule 33, an interrogatory “may relate to any matter that may be inquired into under Rule 26(b).” Fed. R. Civ. P. 33(a)(2). “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). “The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ. P. 33(b)(4). *2 Another method of discovery provided for under the Rules is requests for production of documents. Pursuant to Rule 34(a)(1)(A), [a] party may serve on any other party a request within the scope of Rule 26(b) ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample ... any designated documents or electronically stored information ... stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. Fed. R. Civ. P. 34(a)(1)(A). “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). “In applying these principles, the party resisting the discovery has the burden to establish facts justifying its objections by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1) or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.” Am. Fed'n of State, Cnty. and Mun. Employees (AFSCME) Council 79 v. Scott, 277 F.R.D. 474, 477 (S.D. Fla. 2011) (internal marks omitted). “ ‘However, when relevancy is not apparent, the burden is on the party seeking discovery to show the relevancy of the discovery request.’ ” Id. (quoting Dean v. Anderson, No. 01-2599, 2002 WL 1377729, at *2 (D. Kan. June 6, 2002) ). A. Interrogatory No. 1 Through Interrogatory No. 1, plaintiff seeks the identity of “each employee of Aloa Care Group who currently performs, or has performed work in the past related to Escambia County School District's health services contract. This list should include each employee's full name and job title.” Doc. 30 at p. 2. Defendants objected to the request as “overbroad and unduly burdensome.” Doc. 30 at p. 2. According to defendants, “[l]isting all of Aloa's employees who perform services for Escambia County, without any limitations whatsoever, is overbroad and not reasonably calculated to lead to admissible evidence - it is simply a fishing expedition intended to harass Aloa.”[1] Doc. 30 at pp. 2-3. Aloa provided a list of its 2 executives, Ms. Kendrick and her husband, Benjamin Kendrick, but maintains the request otherwise is overly broad considering Ms. Kendrick is not subject to a non-compete agreement and there are no allegations Ms. Kendrick hired any nurse or clinical employee of plaintiff within 12 months of her termination. The undersigned finds Request for Production No. 1 overly broad and not reasonably calculated to lead to the discovery of admissible evidence to the extent it requests the identities of employees other than nurses or clinical employees of plaintiff hired during the 12-month period Ms. Kendrick was subject to the non-solicitation agreement. The undersigned notes plaintiff did not address the relevancy of the requested information in its motion, focusing instead on rebutting defendants' objections. Plaintiff's motion thus will be denied in part and granted in part with respect to Interrogatory No. 1. Defendant must disclose the requested information as to nurses or clinical employees hired during the effective dates of the non-solicitation agreement and 2 months thereafter, if any such individuals were hired. B. Request for Production No. 1 *3 Request for Production No. 1 seeks “[a]ll drafts (including any handwritten notes) and/or working copies (including the final submission) of Aloa Care Group's response to the Escambia County School District's RFP # 181001.” Doc. 30 at p. 6. Defendants objected to the request as “overbroad,” stating “[a]ny drafts and/or working copies are not reasonably calculated to lead to admissible evidence as they are not relevant to any of the claims pending in this action.” Doc. 30 at pp. 6-7. Aloa produced the final copy of its response to the RFP at issue. The undersigned finds the documents requested in plaintiff's first request for production both relevant and discoverable, as negligence is an element of a defamation claim under Florida law, placing at issue what defendants knew or should have known about the falsity of the alleged defamatory statements. See, e.g., Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018). Plaintiff's motion therefore will be granted with respect to Request for Production No. 1. C. Request for Production No. 7 Through Request for Production No. 7, plaintiff seeks “[a]ll forms and documents Aloa Care Group has used in the implementation of school health services with the Escambia County School District, including, but not limited to, care plans, manuals, training materials, timesheets, clinic forms, education logs, medication documents, and timesheets.” Doc. 30 at p. 8. Aloa objected to the request as “overbroad” and “not reasonably calculated to lead to [the discovery of] admissible evidence.” Doc. 30 at p. 8. “Defendants further object[ed] on the basis that this Request seeks Aloa's confidential information and/or trade secrets, related to the services it provides.” Doc. 30 at p. 8. Aloa, however, produced training materials provided by the Escambia County School District, which it provided to its employees. The undersigned finds Request for Production No. 7 overly broad for the reasons stated by defendants in their response – i.e., “[b]y requesting that Aloa provide every form and document that Aloa uses in implementing its business, Aloa would be required to produce every single document in its possession, including documents such as proprietary business forms, payroll records, tax documents, insurance records, and bank records, to name just a few,” many of which “would not be relevant to any claim in this lawsuit” or constitute confidential or proprietary information. Doc. 34 at p. 10. Plaintiff's motion thus will be denied with respect to Request for Production No. 7. D. Requests for Production Nos. 11 and 12 Request for Production No. 11 seeks “[a]ll documents (including, but not limited to, interview schedules, emails, and contemporaneous notes) relating in any way to Aloa Care Group's interviewing of prospective employees to fill job positions related to its provision of Health Care Services for Escambia County School District.” Doc. 30 at p. 10. Defendants objected to the request as “vague, overbroad and not reasonably calculated to lead to admissible evidence.” Doc. 30 at p. 11. Defendants stated “[a]ll documents related to Aloa interviewing prospective employees are not relevant to any pending claim in this matter, and this Request is simply an improper fishing expedition intended to harass Aloa.”Doc. 30 at p. 11. Through Request No. 12, plaintiff seeks “[a]ll contracts that Aloa Care Group has entered into for the employment of staff involved with Aloa's provision of school health services to the Escambia County School District.” Doc. 30 at p. 11. Defendants objected to the request a “overbroad and not reasonably calculated to lead to admissible evidence.” Doc. 34 at p. 12. Defendants elaborated, “[r]equesting every contract that Aloa has entered into with its staff is overbroad and not relevant to any pending claim in this matter – this Request is simply an improper fishing expedition intended to harass Aloa.” Doc. 34 at p. 12. *4 In response to plaintiff's motion, defendants explain Aloa first objected to Request No. 11 as vague because it is unclear what “documents relating in any way to” the interviewing of employees would encompass. Although specific categories of documents are listed, the request does not only seek those documents, it seeks all documents relating in any way to Aloa interviewing employees. Due to the phrasing of this request, Aloa would be left guessing as to what documents to produce in response to this discovery request. Doc. 34 at p. 13. In addition, defendants aver, both Request Nos. 11 and 12 are overbroad for the same reason. These requests both seek documents related to the interviewing of Aloa's employees and the contracts between Aloa's employees, without limitation in scope or time. As explained above, Ms. Kendrick does not have a non-competition agreement and in the event that the non-solicit is deemed enforceable, Ms. Kendrick would still be allowed to hire nurses and other clinical employees of PSA after May 2018. Despite this, PSA seeks full access to Aloa's hiring process and contracts with their employees, regardless of who the employee is and when they were hired. Doc. 34 at p. 13. The undersigned finds Request Nos. 11 and 12 overly broad and not reasonably calculated to lead to the discovery of admissible evidence to the extent they seek information regarding employees who never worked for plaintiff and employees other than nurses and clinical employees. Plaintiff's motion thus will be denied with respect to Request Nos. 11 and 12. E. Request for Production No. 19 Through Request for Production No. 19, plaintiffs seek “[a]ll forms and documents Aloa Care Group or Kendrick have provided to Aloa Care Group employees, including but not limited to orientation documents, PowerPoint presentations shown during any training or orientation sessions, or other training or employee manuals or forms.” Doc. 30 at p. 9. Defendants objected to the request as “overbroad” and “seek[ing] documentation that is not reasonably calculated to lead to admissible evidence.” Doc. 30 at p. 10. “Defendants further object[ed] on the basis that this Request seeks Aloa's confidential information and/or trade secrets, related to the services it provides.” Doc. 30 at p. 10. Defendants nevertheless produced all documents provided to employees during orientation. The undersigned finds Request for Production No. 19 seeks information that is both relevant and discoverable. The undersigned also notes the parties are subject to a stipulated protective order and confidentiality agreement that shields such information from further use or disclosure. Plaintiff's motion therefore will be granted with respect to Request for Production No. 19. Based on the findings set forth above, the undersigned finds an award of attorneys' fees and costs unwarranted at this time and thus denies plaintiff's motion in that regard. Accordingly, it is hereby ORDERED as follows: 1. Plaintiff's Motion to Compel Production of Documents and Answer to Interrogatory (doc. 30) is GRANTED in part and DENIED in part as set forth above. *5 2. Defendants shall have fourteen (14) days from the date of this order in which to serve supplemental discovery responses consistent with this Order. DONE AND ORDERED this 17th day of January, 2019. [1] Defendants also asserted “providing such a list would irreparably harm Aloa, as Plaintiff is one of Aloa's competitors and the parties are currently involved in a re-bidding process for the Escambia County School District. Aloa fears that Plaintiff will contact its employees and attempt to dissuade them from working with Aloa.” Doc. 30 at p. 3. Defendants acknowledge in their response that such objection is no longer valid now that the bidding process is complete.