Marta Gomez, Plaintiff, v. Easlan Management, Defendant, v. 2207 wh LLC, Handford Capital, passiveinvesting.com, Capstone Apartment Partners, Interested Parties C/A No. 6:20-cv-2156-TMC-JDA United States District Court, D. South Carolina, Greenville Division Filed April 26, 2021 Counsel Brian P. Murphy, Stephenson and Murphy, Greenville, SC, for Plaintiff. Donald Randle Moody, II, Jackson Lewis PC, Matthew Randall Ozment, Grove Ozment LLC, Greenville, SC, for Defendant. Amy M. Snyder, Clawson and Staubes LLC, Greenville, SC, for Interested Parties 2207wh LLC, Handford Capital, passiveinvesting.com LLC. Nathan Adam White, Alexander Ricks PLLC, Charlotte, NC, for Interested Party Capstone Apartment Partners. Austin, Jacquelyn D., United States Magistrate Judge ORDER *1 This matter is before the Court on Plaintiff's motions to compel compliance with subpoenas issued to non-parties 2207 wh LLC, Handford Capital, passiveinvesting.com, and Capstone Apartment Partners (the “Interested Parties”). [Docs. 20; 38.] Plaintiff, represented by counsel, brings this action alleging race/national origin discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and race discrimination pursuant to 42 U.S.C. § 1981. [Doc. 10.] Pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(A) and Local Civil Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in this employment discrimination action are referred to the undersigned United States Magistrate Judge for consideration. Plaintiff, a Hispanic female of Puerto Rican descent, filed this action on June 5, 2020, and filed an Amended Complaint on August 5, 2020. [Docs. 1; 10.] On January 1, 2021, Plaintiff filed a motion to compel compliance with records subpoenas as to 2207 wh LLC, Handford Capital, and passiveinvesting.com (the “Investor Entities”). [Doc. 20.] Thereafter, by Orders dated January 21, 2021, the undersigned (1) directed the Clerk to add the Investor Entities who are represented by Attorney Amy Snyder of Clawson and Staubes to the docket; (2) directed Plaintiff to file the subpoena served on 2207 wh LLC; and (3) directed the Investor Entities to respond to Plaintiff's motion to compel. [Docs. 23; 25; 26.] Plaintiff filed the subpoena on January 21, 2021. [Doc. 28-1.] The Investor Entities filed a response in opposition to the motion to compel on February 5, 2021, along with exhibits. [Docs. 31; 31-1; 31-2; 31-3; 31-4; 31-5.] Plaintiff filed a reply on February 8, 2021, with fifteen exhibits [Docs. 33; 33-1; 33-2; 33-3; 33-4; 33-5; 33-6; 33-7; 33-8; 33-9; 33-10; 33-11; 33-12; 33-13; 33-14; 33-15], and the Investor Entities filed a sur reply on February 11, 2021 [Doc. 36]. Additionally, on February 23, 2021, Plaintiff filed a motion to compel compliance with a records subpoena as to Capstone Apartment Partners (“Capstone”). [Doc. 38.] Thereafter, by Orders dated April 5, 2021, the undersigned (1) directed the Clerk to add Capstone who is represented by Attorney Nathan White of Alexander Ricks to the docket and (2) directed Capstone to respond to Plaintiff's motion to compel. [Docs. 44; 46.] Capstone filed a response in opposition to the motion to compel on April 12, 2021. [Doc. 47.] Plaintiff filed a reply on April 13, 2021, along with exhibits. [Docs. 48; 48-1; 48-2; 48-3.] Accordingly, Plaintiff's motions to compel [Docs. 20; 38] are ripe for review. The undersigned has carefully review the pleadings filed in this matter and each of the submissions filed by Plaintiff and the Interested Parties noted above. BACKGROUND Plaintiff makes the following allegations in her Amended Complaint. [Doc. 10.] Plaintiff was hired by Defendant's regional property manager, Sally Garza, in April 2018 to serve as the property manager for an apartment complex formerly known as Hampton Forest Apartments, located at 2207 Wade Hampton Boulevard in Greenville, South Carolina. [Id. ¶¶ 5–6.] Plaintiff is Hispanic, of Puerto Rican descent. [Id. ¶ 4.] *2 In December 2018, Hampton Forest Apartments was acquired by an entity controlled by principals Dan Handford of Handford Capital, Danny Randazzo of Randazzo Capital, and Brandon Abbott (the “Principals”), all of passiveinvesting.com. [Id. ¶ 7.] The Principals, through 2207 wh LLC, acquired the property, rebranded it as “2207 North,” and invested $1.9 million in renovations to reposition the property from a Class C designation, described as “blue collar,” to a Class B designation, described as “low end white collar” and “high end blue collar.” [Id. ¶ 9.] Plaintiff and Ms. Codrington, a black female leasing agent who was hired through a temporary firm, were considered “the face” of the property and were responsible for marketing the property and meeting with potential tenants. [Id. ¶¶ 10–11; Doc. 11 ¶ 10.] Plaintiff contends the renovations limited the number of apartments available for lease and were not completed in a timely manner. [Doc. 10 ¶ 12.] Plaintiff was not responsible for the renovations, which were far more expensive and have taken far longer than the Principals anticipated. [Id. ¶ 13.] Defendant failed to timely create marketing materials, and the Principals complained to Defendant about the profitability of the property. [Id. ¶¶ 14–15.] A conflict arose between the Principals and Defendant. [Id. ¶¶ 16–17.] Thereafter, Garza was relieved of her responsibility for the property, the leasing agent and Plaintiff were terminated, and all three individuals were replaced with white individuals. [Id. ¶¶ 17–21.] Plaintiff was informed that “the [P]rincipals wanted the leasing agent to be replaced because she did not attract the ‘right demographic.’ ” [Id. ¶ 20.] Plaintiff was also informed that she was being terminated due to “property performance issues.” [Id. ¶ 22.] However, Plaintiff disputes this reason for her termination. [Id.] Instead, Plaintiff contends she was terminated on the basis of her race and national origin. [Id. ¶¶ 26–32.] Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission and has received a Notice of Right to Sue. [Id. ¶ 24.] Thereafter, Plaintiff commenced this action for discrimination and asserts causes of action for discrimination under Title VII [id. ¶¶ 26–29] and § 1981 [id. ¶¶ 30–32]. APPLICABLE LAW The scope of discovery is broad and a party may obtain discovery of “any nonprivileged matter that is relevant to any party's claim or defense” so long as the information is “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “A party seeking discovery may move for an order compelling an answer, designation, production, or inspection,” and such motion may be made if a party fails to produce documents. Livingston Jr. v. Copart of Connecticut, Inc., No. 3:17-cv-2543-JFA, 2020 WL 8167497, at *3 (D.S.C. May 21, 2020) (citing Fed. R. Civ. P. 37(a)(3)(A)–(B)). However, the court “must limit the frequency or extent of discovery ... if it determines that the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). The court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” by forbidding the discovery of the material at issue. Fed. R. Civ. P. 26(c)(1). Rule 45 of the Federal Rules of Civil Procedure governs subpoenas in federal courts. “Rule 45 expressly permits a party to issue discovery subpoenas to a nonparty for documents and things in the nonparty's possession, custody, or control.” In re Rule 45 Subpoena Issued to Robert K. Kochan, No. 5:07-MC-44-BR, 2007 WL 4208555, at *4 (E.D.N.C. Nov. 26, 2007) (citing Fed. R. Civ. P. 45(a)(1)(C)). Rule 45(d)(3)(A)(iv) permits a district court to quash or modify a subpoena that “subjects a person to undue burden.” “A subpoena that seeks information irrelevant to the case is a per se undue burden,” and “[a] subpoena that would require a non-party to incur excessive expenditure of time or money is unduly burdensome.” Livingston Jr., 2020 WL 8167497, at *4. Determining whether a subpoena is unduly burdensome is within the discretion of the district court. Bland v. Fairfax Cty., 275 F.R.D. 466, 468 (E.D. Va. 2011) (“The decision whether to enforce or quash a party's subpoena is within the district court's discretion.”). DISCUSSION *3 As noted, Plaintiff has filed a motion to compel compliance with records subpoenas that were issued to the Investor Entities and a motion to compel compliance with a records subpoena that was issued to Capstone. [Docs. 20; 38.] The Court will address Plaintiff's motions separately. The Investor Entities Plaintiff's subpoenas to the Investor Entities are identical. The subpoenas requested the following documents and information from each of the three Investor Entities: 1. All presentations, including investor presentations, regarding 2207 North. 2. List of all equity owners or investors in 2207 North, passiveinvesting.com, or Handford Capital. 3. All communications from July 1, 2018 to the present, including electronic communications, between members of the Owner Group regarding: a. the operations or performance of 2207 North, including the management of the property and performance of Easlan Management. b. the condition of 2207 North and any maintenance or repairs contemplated or performed on the property. c. any appraisal or analysis of the value of 2207 North. d. any offers to purchase 2207 North e. reasons for seeking to sell the property. f. Marta Gomez. g. Elisha Codrington. 4. All communications from July 1, 2018 to the present, including electronic communications, between any member(s) of the Owner Group and Easlan Management regarding: a. the operations or performance of 2207 North, including the management of the property and performance of Easlan Management. b. the condition of 2207 North and any maintenance or repairs contemplated or performed on the property. c. any appraisal or analysis of the value of 2207 North. d. any offers to purchase 2207 North e. reasons provided for the property owners seeking to sell the property. f. Marta Gomez. g. Elisha Codrington. h. Marketing of 2207 North, including demographics of tenants and prospective tenants. 5. All communications from July 1, 2018 to the present, including electronic communications, between any member(s) of the Owner Group and Capstone Companies/Capstone Apartment Partners, LLC regarding: a. the operations or performance of 2207 North, including the management of the property and performance of Easlan Management. b. the condition of 2207 North and any maintenance or repairs contemplated or performed on the property. c. any appraisal or analysis of the value of 2207 North. d. any offers to purchase 2207 North e. reasons provided for the Owner Group for seeking to sell the property. [Docs. 20-1 at 5–7; 20-3 at 5–7; 28-1 at 5–7 (emphasis omitted).] Plaintiff served her subpoenas on the Investor Entities in October 2020. [Docs. 20-1 at 8–9; 20-3 at 8–9; 28-2 at 1–2.] According to Plaintiff, none of the Investor Entities “would provide anything in response” despite “several attempts to resolve the standoff” with counsel for the Investor Entities. [Doc. 20 at 1.] Accordingly, Plaintiff filed the pending motion to compel the Investor Entities to comply with the subpoenas. [Doc. 20.] In response to the motion, the Investor Entities argue that the subpoenas are overly broad and intrusive and that certain documents and information sought by the subpoenas are protected from disclosure as trade secrets under South Carolina state law. [Docs. 31 at 7–10; 36 at 3.] However, the Investor Entities concede that they are willing to produce “any emails or communications regarding Plaintiff regardless of the domain name the email user may be using” if the parties can agree on search terms. [Doc. 36 at 3.] *4 Having carefully reviewed the parties’ arguments and submissions and in light of the applicable law, the undersigned concludes that the subpoenas are overly broad, unduly burdensome, and seek information beyond what is relevant to the case. The Investor Entities’ financial records related to the repair, maintenance, value, and sale of the property are not relevant to Defendant's purportedly discriminatory conduct towards Plaintiff, which is the sole issue in this case. The Amended Complaint alleges that Plaintiff was responsible for marketing the property and meeting with potential tenants [Doc. 10 ¶ 11] and that she was purportedly terminated for “property performance issues” [id. ¶ 22]. The Amended Complaint further alleges that “Plaintiff's white replacement is not held to the same standard.” [Id. ¶ 23.] Accordingly, information regarding occupancy rates would be relevant to Plaintiff's claims; however, financial records related to the repair, maintenance, value, and sale of the property would not be relevant. Indeed, the evidence Plaintiff relies on to establish relevancy indicates that the performance issues that allegedly led to her termination were related to occupancy rates, not property value. [Doc. 33-10 at 3–5.] Additionally, the Amended Complaint alleges that “Plaintiff was not responsible for the renovations.” [Doc. 10 ¶ 13.] Accordingly, Plaintiff's subpoenas are overly broad, unduly burdensome, and seek information beyond what is relevant in this case.[1] As such, the Court will grant in part and deny in part Plaintiff's motion to compel. Specifically, the Court will grant Plaintiff's motion to compel all documents and communications related to the employment of Plaintiff and Elisha Codrington. Thus, the Investor Entities must produce all documents responsive to item numbers 3(f), 3(g), 4(f), and 4(g).[2] Plaintiff's motion to compel is denied as to all remaining requests in the subpoenas.[3] Capstone Plaintiff's subpoena to Capstone requested the following documents and information: 1. All communications from July 1, 2018 to the present, including electronic communications, between Capstone Apartment Partners or its affiliates/officers/managing agents and Dan Hanford, Danny Randazao, Brandon Abbott or any other principal or agent of 2207 wh LLC, passiveinvesting.com, LLC, Handford Capital, or Easlan Management Co., Inc. regarding: a. the operations or performance of 2207 North, including the management of the property and performance of Easlan Management. b. the condition of 2207 North and any maintenance or repairs contemplated or performed on the property. c. any appraisal or analysis of the value of 2207 North. d. any offers to purchase 2207 North e. reasons provided for the property owners seeking to sell the property. [Doc. 38-1 at 5 (emphasis omitted).] Plaintiff served her subpoena on Capstone in October 2020. [Docs. 38-1 at 6.] According to Plaintiff, “Capstone produced a limited number of documents ... but it did not respond to the bulk of the request.” [Doc. 38 at 1.] Accordingly, Plaintiff filed the pending motion to compel Capstone to comply with the subpoena. *5 In response to the motion, Capstone argues that it has provided Plaintiff's counsel with documents responsive to the subpoena requests. [Doc. 47 at 1.] Capstone maintains that it “believes it has provided all documents responsive to the subpoena within its possession, custody, or control.” [Id.] Capstone further contends that the information requested is in the possession of other persons or entities, namely Defendant. [Id.] By way of reply, Plaintiff asserts she “cannot yet accept Capstone's assurances based on information already known.” [Doc. 48 at 1.] Specifically, Plaintiff contends that Capstone has not responded to her request for “information regarding communications on the sale of the property and for documents regarding offers made.” [Id.] In light of Capstone's assertion that it has provided all responsive documents to Plaintiff's subpoena requests and Plaintiff's concession that she has received documents from Capstone, Plaintiff's motion to compel is denied.[4] Notice to Counsel Finally, the undersigned reminds counsel for Plaintiff and for the Interested Parties that their conduct must comply with Rule 4.4 of the Rules of Professional Conduct of Rule 407, SCACR, providing that “[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” See In re White, 707 S.E.2d 411, 413–14 (S.C. 2011); see also Local Civ. Rule 83.I.08 (D.S.C.), RDE Rule IV(B) (“The Code of Professional Responsibility adopted by this court is the South Carolina Rules of Professional Conduct (Rule 407 of the South Carolina Appellate Court Rules) adopted by the South Carolina Supreme Court.”). The Court notes that counsel for the Investor Entities takes issue with “the amount of invective [by Plaintiff's counsel] directed at entities not parties to this suit and their counsel.” [Doc. 36 at 1.] Having reviewed the parties’ briefs and email communications between counsel attached as exhibits to the briefs, the undersigned agrees and cautions counsel to perform their duties with the civility required by this Court's Local Civil Rules and the South Carolina Rule of Professional Conduct. CONCLUSION AND ORDER In light of the foregoing, Plaintiff's motion to compel as to the Investor Entities [Doc. 20] is GRANTED in part and DENIED in part as follows: by May 3, 2021, Plaintiff and the Investor Entities shall agree on search terms to be used, and by May 24, 2021, the Investor Entities shall produce all documents responsive to item numbers 3(f), 3(g), 4(f), and 4(g). Plaintiff's motion to compel is denied as to all remaining requests in the subpoenas to the Investor Entities. Plaintiff's motion to compel as to Capstone [Doc.38] is DENIED. Finally, counsel are reminded to perform their duties with the civility required by this Court's Local Civil Rules and the South Carolina Rule of Professional Conduct. IT IS SO ORDERED. Footnotes [1] To the extent Plaintiff asserts that financial records related to the repair, maintenance, value, and sale of the property are relevant because a portion of the property was under renovation and unavailable to rent, Plaintiff should be able to show what apartments were available to rent by means other than the Investor Entities’ financial records. Indeed, Plaintiff has submitted monthly reports she received from Defendant during discovery that include information regarding occupancy, weekly leasing results, reasons for not leasing, reasons for denials, reasons for cancellations, and renewals. [Doc. 33-9.] [2] Plaintiff and the Investor Entities are directed to agree on search terms to be used. [3] Because the Court finds that Plaintiff's subpoenas are overly broad, unduly burdensome, and seek information beyond what is relevant to the case, the Court need not reach the Investor Entities’ remaining arguments and objections to the subpoenas, including the applicability of any trade secret privilege under state law. However, the Court notes that the motion to compel does not comply with the Local Civil Rules. The subpoenas to the Investor Entities commanded compliance by October 28, 2020. [Docs. 20-1 at 2; 20-2 at 2; 20-3 at 2.] Local Civil Rule 37.01, D.S.C., requires that motions to compel “be filed within twenty-one (21) days after receipt of the discovery response ... or, where no response has been received, within twenty-one (21) days after the response was due.” Although counsel “may agree to extend the time to comply with the discovery request” if they “are actively engaged in attempts to resolve the discovery dispute,” “[t]he extension shall be confirmed in writing” and “the correspondence confirming the extension shall be attached” to a subsequently filed motion to compel. Id. No such correspondence was attached to the motion to compel as to the Investor Entities. [4] Additionally, as discussed above in relation to the subpoenas to the Investor Entities, Plaintiff's subpoena to Capstone is overly broad, unduly burdensome, and seeks information beyond what is relevant to the case, and Plaintiff's motion to compel does not comply with the Local Civil Rules.