Leslie A. SCHMIDT, Plaintiff, v. John A. HARRIS, Cynthia D. Harris, and Kate Harris, Defendants Case No. 3:08cv570/MCR/EMT United States District Court, N.D. Florida, Pensacola Division Signed February 22, 2010 Counsel Kevin John Christensen, Kevin Christensen & Assoc, New Orleans, LA, for Plaintiff. James Richard Barnes, Law Office of James R. Barnes, Jason Bernard Onacki, Larry Arthur Matthews, Bozeman Jenkins & Matthews PA, Pensacola, FL, for Defendants. Timothy, Elizabeth M., United States Magistrate Judge ORDER *1 This cause is before the court upon the “Motion to Compel Discovery Responses and Rule 26 Disclosures” filed by Plaintiff Leslie A. Schmidt (“Schmidt”) (Doc. 48). In his motion, Schmidt seeks an order compelling Defendants John A. Harris, Cynthia D. Harris, and Kate Harris (“the Harrises”) to respond to his request for production of documents and to make required disclosures under Fed. R. Civ. P. 26. The Harrises have filed a response in opposition to the motion (Doc. 50). As set forth below, the court grants Schmidt's motion in part and denies it in part. I. BACKGROUND This is a diversity action alleging state law claims of theft, conversion, intentional infliction of emotional distress, fraud in the inducement, conspiracy, fraudulent asset conversion, and fraudulent transfer (Doc. 18 at 10–16). The factual allegations in support of Schmidt's claims, as asserted in his second amended complaint (Doc. 18), are as follows. Schmidt and Kate Harris met in 2001 and lived together in New Orleans, Louisiana, for several years before relocating in August 2003 to Atlanta, Georgia. According to Schmidt, the Harrises convinced him to move to Atlanta in a “concerted effort and in furtherance of their plan to permanently deprive [him] of his property” (Doc. 18 at 2). Schmidt and Kate Harris moved into a condominium in Atlanta which—at the suggestion of John A. Harris, Kate Harris' father—was purchased in Kate Harris' name only. Schmidt transported his artwork and antique furniture valued at approximately $250,000.00 to Atlanta, intending to open an art gallery to display and sell his works of art with the Harrises' assistance. After Schmidt transported his property to Atlanta, however, the Harrises abandoned the plan to open a gallery; at the Harrises' urging, Schmidt then moved his artwork and furniture into the Atlanta condominium he and Kate Harris shared. Schmidt, a professional photographer, also stored thousands of his photographs, including photographs of his belongings, in the Harrises' computer but these photographs, Schmidt was later told, were lost when the computer crashed; Schmidt, however, subsequently saw some of the photographs in the Harrises' possession. In approximately June 2004, Schmidt and Kate Harris decided to go their separate ways, agreeing that Schmidt's property would remain in the Atlanta condominium, with Kate Harris paying the expenses to maintain the condominium although neither of them would continue to live there. Schmidt sought the return of his property in December 2004, but he received no response to his numerous requests from Kate Harris or from John A. Harris and Cynthia D. Harris, who is Kate Harris' mother. Schmidt eventually learned that John A. Harris and Cynthia D. Harris were living in the Atlanta condominium, which was still furnished with Schmidt's belongings. Schmidt's efforts to obtain the return of his property from the Harrises have been unsuccessful, as have the efforts of his counsel, whom Schmidt retained in June 2005. *2 According to Schmidt, the Harrises purchased certain real property in 2005 in Walton County, Florida, and transported Schmidt's artwork, antiques, and other items there, where they continue to possess and use them. To the extent the Harrises no longer appear as the owners of record of the real property in Walton County, Schmidt contends, any conveyance or attempted conveyance was a “fraudulent asset conversion and/or a fraudulent transfer” (Doc. 18 at 9). II. DISCUSSION The Federal Rules of Civil Procedure allow discovery of any relevant, non-privileged material that is admissible or reasonably calculated to lead to admissible evidence. Fed. R. Civ. P. 26(b)(1). The overall purpose of discovery under the Federal Rules is to require the disclosure of all relevant information so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts, and therefore embody a fair and just result. See United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958). Courts construe relevancy “broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947) ). Relevant information is discoverable even if it is not admissible at trial, “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The Federal Rules of Civil Procedure strongly favor full discovery whenever possible. See id.; Moore v. Armour Pharmaceutical Co., 927 F.2d 1194, 1197 (11th Cir. 1991). In addition, “discovery is not limited to issues raised by the pleadings.” Oppenheimer, 437 U.S. at 351. Finally, discovery is expected to be accomplished voluntarily with minimal judicial intervention. See Bell v. Brary and Gillespie, LLC, No. 6:05-CV-355-ORL-19JG, 2006 WL 923741, *1 (M.D. Fla. 2006). The Federal Rules provide that a party may serve requests for production of documents which are “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand.” Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). The response, due within thirty (30) days of being served, shall state that inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reasons for objection shall be stated. Fed. R. Civ. P. 34(b)(2). If the documents for production are not in existence, the objecting party should so state under oath. See Cairnes v. Chicago Exp., Inc., 25 F.R.D. 169, 170 (N.D. Ohio 1960). An evasive or incomplete answer to a request for production is to be treated as a failure to answer. Fed. R. Civ. P. 37(a)(4). If a party fails to answer a request for production, the discovering party may move for an order compelling a response. Fed. R. Civ. P. 37(a)(3). Motions to compel discovery under Rule 37(a) are committed to the sound discretion of the trial court. See Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). The trial court's exercise of discretion regarding discovery orders will be sustained absent a finding of abuse of that discretion to the prejudice of a party. Id. A. Requests for Production Schmidt asserts that he propounded specifically-tailored requests for production of documents on the Harrises on October 16, 2009, but that the Harrises' responses, submitted November 16, 2009, are “nothing more than unsupportable, baseless objections” and that the Harrises have not produced a single requested document (id. at 4).[1] As required by Local Rule 26.2(B), in his motion Schmidt lists each disputed discovery request, along with the Harrises' response and his argument in support of granting the motion. The court addresses and rules on each request, as follows. *3 1. Request for Production No. 2: All lease agreements entered into by the Harrises from January 2003 to present. Granted. The requested information may be relevant to Schmidt's assertion that the furniture and other items at issue that were located in the Atlanta condominium were moved to locations in Florida. As Schmidt submits, this request also mirrors the Harrises' request for production of documents to Schmidt (see Doc. 48 at 4; 48-1 at 3). 2. Request for Production No. 6: All homeowner's or renter's insurance policies maintained by the Harrises since January 1, 2003, including endorsements for specific items of personal property. Granted. The requested information is relevant to Schmidt's assertion that the Harrises, knowing the significant value of the allegedly misappropriated items, could have insured them. This request also essentially mirrors the Harrises' request for production of documents to Schmidt (see Doc. 48 at 4; 48-1 at 3). 3. Request for Production No. 8: All phone records for any cellular phone or land line phone maintained and/or used by the Harrises, whether for business or personal use, since January 1, 2003. Denied. The request, which would require each of the Harrises to provide seven years' worth of monthly billing statements and other unspecified phone records, does not appear to be relevant to any issue in this lawsuit or reasonably calculated to lead to the discovery of admissible evidence. The request for records also is broader than the request for telephone numbers and the names of telephone carriers the Harrises made to Schmidt (see Doc. 48-1 at 3). 4. Request for Production No. 9: The addresses of each place where the Harrises lived in the past ten (10) years. Granted, to the extent the Harrises shall identify the address of each place in which each of them lived during or since August 2003, the approximate date Schmidt alleges the Atlanta condominium was purchased, Schmidt and Kate Harris moved into it, and Schmidt transported his belongings to Atlanta, all part of the Harrises' alleged effort and “plan to permanently deprive [Schmidt] of his property” (Doc. 18 at 2). The requested information may be relevant to Schmidt's assertions that John A. and Cynthia D. Harris resided in the Atlanta condominium after Schmidt and Kate Harris departed and that the Harrises removed his personal property from that location and transported it elsewhere. This request also mirrors the Harrises' request to Schmidt (see Doc. 48 at 4; 48-1 at 3) 5. Request for Production No. 10: All immovable property that the Harrises have owned in the past ten (10) years. Granted, to the extent the Harrises shall identify all of the real property each of them owned during or since August 2003. The requested information may be relevant to Schmidt's assertions that the Harrises purchased real property in 2005 in Walton County, Florida, and moved Schmidt's personal property there. 6. Request for Production No. 11: All documents in any way related to the purchase or sale of each immovable property listed in response to Request for Production No. 10. *4 Granted, to the extent the Harrises shall, with respect to each parcel of real property listed in response to Request for Production No. 10, identify the date of purchase and, if applicable, the date of sale of such real property and the names of persons who were parties to the transactions. The request is otherwise denied. Schmidt contends that the requested discovery will assist him in gathering additional information in support of his claims and/or potential impeachment evidence, particularly that the information will assist him in locating the furniture and other items he alleges the Harrises misappropriated and moved from Atlanta to Florida. The broad request presumably would require each of the Harrises to provide all closing, mortgage, and similar paperwork connected with the purchase or sale of all of their real properties. Such documents do not appear to be relevant to the issues specifically identified by Schmidt. Nor, Schmidt's claims of fraudulent asset conversion and fraudulent transfer notwithstanding, does it appear that such documents in fact are relevant to any other issue in this lawsuit and are not reasonably calculated to lead to the discovery of admissible evidence. 7. Request for Production No. 12: All immovable property rented or leased by the Harrises in the past ten (10) years. Granted, to the extent the Harrises shall identify all of the real property each of them rented or leased during or since August 2003. The request is otherwise denied as not relevant to any issue in this lawsuit and not reasonably calculated to lead to the discovery of admissible evidence. 8. Request for Production No. 13: All documents in any way related to the rental or lease of each immovable property listed in response to Request for Production No. 10. Granted, to the extent the Harrises shall, with respect to rented or leased parcels of real property listed in response to Request for Production No. 10, identify the parties to whom and dates during which the real property was rented or leased. The request is otherwise denied as not being relevant to any issue in this lawsuit and not reasonably calculated to lead to the discovery of admissible evidence. 9. Request for Production No. 14: The addresses of all storage units the Harrises have rented and/or owned and/or used in the past ten (10) years. Granted, to the extent the Harrises shall identify the addresses of all storage units each of them rented or leased during or since August 2003, including the date and the parties involved. The request is otherwise denied as not relevant to any issue in this lawsuit and not reasonably calculated to lead to the discovery of admissible evidence. 10. Request for Production No. 15: Copies of the income tax returns of John A. Harris, Cynthia D. Harris, and Kate Harris, with any and all attachments for the years 2001 to the trial of this matter. Denied. The income and financial records of the Harrises are not at issue in this lawsuit. The request is not relevant to any issue in this lawsuit and is not reasonably calculated to lead to the discovery of admissible evidence. 11. Request for Production No. 16: The financial records for John A. Harris, Cynthia D. Harris, and Kate Harris for the period 2001 to the trial of this matter to include but not be limited to credit card records the identification of all bank accounts, whether used for business or personal use, during that period. Denied. The income and financial records of the Harrises are not at issue in this lawsuit. The request is not relevant to any issue in this lawsuit and is not reasonably calculated to lead to the discovery of admissible evidence. 12. Request for Production No. 17: Itemized list of all work or business ventures undertaken in Florida to include but not be limited to all professional or trade based licenses, or certifications sought, applied for, or granted. Denied. This request is not relevant to any issue in this lawsuit and is not reasonably calculated to lead to the discovery of admissible evidence. 13. Request for Production No. 18: Produce for inspection any and all computer systems used by you from 2001 to the date of trial. If these computer systems are no longer in your possession, please indicate where these computer systems are currently located and whether any of the information stored on those computer systems is currently in your possession. *5 Denied. Although Schmidt asserts that his photographs were stored on the Harrises' computer and that he was told that the photographs had been lost when the computer crashed, in his second amended complaint he makes no clear claims with respect to these photographs. The court finds that this request is not relevant to any issue raised in this lawsuit and is not reasonably calculated to lead to the discovery of admissible evidence. The court also finds that, accepting the Harrises' assertion that their computers contain sensitive, personal, private, and confidential information unrelated to any issue in this lawsuit, the request also is unduly burdensome and invasive. The Harrises' objection that the computers also contain information that is protected by the work product and attorney client privileges is overruled, as they have failed to produce a privilege log in accordance with Rule 26(b)(5)(A). 14. Request for Production No. 19: Produce copies of all emails the Harrises sent or received from any other Defendant or any natural or juridical person who might be considered their agent from 2001 to the date of trial. Denied, without prejudice. The court finds this request for production to be so nonspecific, ambiguous, and unclear as to make it impossible to determine whether the emails requested would be relevant to any issue raised in this lawsuit. Moreover, to the extent the request was clear to the Harrises, they evidently indicated to Schmidt that they have “none” of the requested emails in their possession (Doc. 48 at 13). The court cannot direct the Harrises to produce documents which, they represent, they do not possess. 15. Request for Production No. 20: Itemized list of all furniture and objets d'art in the Harrises' possession from 2001 to the time of the trial of this matter, including date of purchase or acquisition; purchase or acquisition price; person or entity from which that item was purchased or acquired; whether the purchase price was financed and, if so, the name of the financing company; the name of each insurance company that insured each item; the date of each appraisal on any of the property, a description of the property appraised, and the appraised value; and a specific description of each item. Granted, to the extent the itemized list shall only include furniture and objets d'art in the Harrises' possession that were purchased or acquired during or since August 2003. This information may be relevant to Schmidt's assertion that the furniture and other items at issue that were located in the Atlanta condominium were moved to locations in Florida B. Rule 26 Disclosures Schmidt complains that the Harrises have also failed to make requested Rule 26 disclosures, though he acknowledges that many of the requested disclosures pertain to information he subsequently requested—albeit did not receive—through his request for production of documents (Doc. 48 at 14; see also doc. 48-1 at 1). Other than the names of four witnesses, Schmidt contends, the Harrises have failed to comply with his request. The Harrises respond that their Rule 26 disclosures were complete and that, in any event, in his motion Schmidt does not address any purported insufficiencies regarding the disclosures (Doc. 50 at 1). The Harrises state that they therefore assume that Schmidt is satisfied with their Rule 26 disclosures (id.). The court agrees with the Harrises' contention regarding the lack of specificity in Schmidt's motion as to Rule 26disclosures. Accordingly, the court takes no action on the motion with respect to the Harrises' alleged failure to fully make all required Rule 26 disclosures. One final matter remains for the court's consideration—Schmidt's request for attorney's fees and costs for bringing this motion to compel. Federal Rule of Civil Procedure 37(a) provides that the court may require the party “whose conduct necessitated the motion” to pay the moving party's reasonable expenses and fees. When a motion is granted in part and denied in part, “the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Fed. R. Civ. P. 37(a)(5)(C) (emphasis added). As outlined above, the court has granted Schmidt's motion to compel in part and denied it in part. Several of the Harrises' defenses were meritorious, and Schmidt did not succeed on each of his discovery demands. Pursuant to Rule 37(a)(5)(C), the court therefore finds that the parties should bear their own attorney's fees and expenses incurred in connection with this motion to compel. Schmidt's request for attorney's fees and costs thus is denied. *6 Accordingly, it is ORDERED: 1. Plaintiff Leslie A. Schmidt's “Motion to Compel Discovery Responses and Rule 26 Disclosures” is GRANTED in part and DENIED in part as outlined in the body of this order. 2. Plaintiff Leslie A. Schmidt's request for attorney's fees and costs is DENIED. DONE AND ORDERED this 22nd day of February 2010. Footnotes [1] The court notes that Schmidt does not assert that the Harrises' responses were untimely and, from the dates provided, it appears that the responses in fact were timely provided.