HYUNDAI MOTOR AMERICA CORPORATION, Plaintiff, v. NORTH AMERICAN AUTOMOTIVE SERVICES, INC., et al., Defendants CASE NO. 20-82102-CV-MIDDLEBROOKS United States District Court, S.D. Florida Entered on FLSD Docket April 05, 2021 Counsel Christopher C. Genovese, Pro Hac Vice, Nelson Mullins Riley & Scarborough LLP, Joel H. Smith, Pro Hac Vice, Kevin J. Malloy, Pro Hac Vice, Bowman & Brooke, LLP, Columbia, SC, Robert John Rudock, Bowman and Brooke LLP, Coral Gables, FL, Ginger Barry Boyd, Nelson Mullins Riley & Scarborough LLP d/b/a Nelson Mullins, James Andrew Bertron, Jr., Megan Kamalani Bradley, Nelson Mullins Broad & Cassel, Tallahassee, FL, Samuel Keith Hutto, Pro Hac Vice, Nelson Mullins Riley & Scarborough LLP, Charleston, SC, Todd Keith Norman, Broad and Cassel, Orlando, FL, Loren William Fender, Bowman and Brooke LLP, Miami, FL, for Plaintiff. Brian Farkas, Pro Hac Vice, Christopher Koenig, Pro Hac Vice, Daisy Sexton, Pro Hac Vice, Michael P. McMahan, Pro Hac Vice, Russell P. McRory, Pro Hac Vice, Arent Fox LLP, Charles Andrew Gallaer, New York, NY, Jason Alec Zimmerman, GrayRobinson, P.A., Orlando, FL, John G. White, III, GrayRobinson, P.A., West Palm Beach, FL, Taniel Anderson, Pro Hac Vice, Arent Fox LLP, Washington, DC, for Defendants EFN West Palm Motor Sales, LLC, Gene Khaytin, Ernie Revuelta, Edward W. Napleton. Charles Andrew Gallaer, New York, NY, Jason Alec Zimmerman, GrayRobinson, P.A., Orlando, FL, John G. White, III, GrayRobinson, P.A., West Palm Beach, FL, for Defendants Geovanny Pelayo, Jorge Ruiz. Middlebrooks, Donald M., United States District Judge ORDER ON MOTION TO COMPEL *1 THIS CAUSE comes before the Court upon Defendants’ Expedited Motion to Compel Production of Documents, filed on March 29, 2021. (DE 57). The Motion is now fully briefed. (DE 64; DE 67). For the following reasons, the Motion is granted in part and denied in part. This lawsuit arises from Defendants’ alleged “fraudulent scheme to deliberately damage and/or alter engines in Hyundai vehicles for the purpose of fraudulently collecting warranty funds from [Plaintiff].” (See DE 1 at ¶ 41). In the present Motion, Defendants seek an order compelling Plaintiff to produce documents responsive to their first set of document requests. (See DE 57). “A party seeking discovery may move for an order compelling ... production[ ] ... [if] a party fails to produce documents ... as requested ....” Fed. R. Civ. P. 37(a)(3)(B)(iv). The party resisting discovery bears the burden of showing the grounds for its objection with specificity. See Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (citing Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (“[T]he party resisting discovery ‘must show specifically how ... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive.’ ” (second alteration in original) (citation omitted))). Rule 26 provides that “[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[.]” Fed. R. Civ. P. 26(b)(1). The Motion to Compel makes four separate requests, each of which I will address in turn. 1. Plaintiff's CEO as a Data Custodian Defendants first seek an order requiring Plaintiff to search the ESI of its CEO, asserting that the CEO holds animus toward some Defendants. (See DE 57 at 10–12, 15–17, 21). In support, Defendants provide examples of contentious interactions between Plaintiff's CEO and Defendant Napleton and another individual connected to Defendants’ operations. (See id.). It is Defendants’ position that the CEO may be using this litigation “to exact revenge,” and they assert that, “[b]ased on his past dealings with the Napleton family and organization, there's no doubt that [the CEO] has relevant emails discussing this case and his animus toward the Napleton family.” (Id. at 7). In its Response, Plaintiff contends that searching the ESI of its CEO would not be proportional to the needs of this case because his “day-to-day responsibilities do not involve the investigation of Defendants’ alleged warranty fraud or oversight of warranty claim management.” (DE 64 at 7). However, Plaintiff's conclusory assertions do not provide the Court with any basis upon which to determine whether Defendants’ request is proportional to the needs of this case. That is particularly so given that, in light of the interactions involving Plaintiff's CEO as represented by Defendants (which Plaintiff does not directly dispute), it appears that a search of Plaintiff's CEO's ESI may very well uncover unique relevant information that would not otherwise be discovered. *2 Accordingly, Defendants’ Motion is granted as to this request. 2. Additional Data Custodians Additionally, Defendants request that I order Plaintiff to search the ESI of two other data custodians. (See DE 57 at 21). In support, Defendants represent that Plaintiff was, in late March, “still deciding whether to search the ESI of ... two ESI custodians requested nearly a month ago” and “is dragging their [sic] feet on collection” as it relates to those individuals. (Id. at 13–14, 21). The Motion fails to set forth any other basis for this request. In its Response, Plaintiff reasonably argues that searching the ESI of those two custodians is not proportional to the needs of this case because it has interviewed those individuals—whose “job responsibilities are focused on the sales-side of the business, rather than the warranty, service, and parts operations that are relevant to the allegations in this lawsuit”—and determined that “there is no reason to suspect they are likely to have relevant information.” (See DE 64 at 4–6, 14). Defendants’ Reply clarifies that the collected information may be relevant to potential future counterclaims, relating to unlawful sales practices, that Defendants will assert should any of Plaintiff's claims survive their Motion to Dismiss, the nature of which has already been disclosed in Defendants’ initial disclosures. (See DE 67 at 7). Defendants, however, have failed to establish that searching the ESI of these two custodians is likely to lead to information relevant to any claims or defenses that are currently pending in this lawsuit, and it is possible that no counterclaims will ever be raised in this action. Therefore, I am persuaded by Plaintiff's argument, and Defendants’ Motion is thus denied as to this request. 3. Common Interests Exception Defendants also seek an order compelling Plaintiff to produce responsive documents and communications that Plaintiff has withheld on the grounds that the “common interests” exception to the doctrine of waiver of privilege applies. (DE 57 at 17–20, 21). Plaintiff asserts that it shares common interests with two plaintiffs, and their counsel, who have civil suits pending in state court[1] because (1) the lawsuits have a common defendant (Defendant Napleton) and (2) the credibility of one witness “is a significant issue in all cases.” (DE 64 at 10). Defendants represent that Plaintiff “points to the common-interest privilege or the work-product doctrine as a shield in more than half of its discovery responses, claiming protected communications with [those] third-parties ... and their attorneys.” (DE 57 at 17). Defendants argue, inter alia, that the commonalities between the three lawsuits do not rise to the level necessary for the common interests exception to apply. (Id. at 18–19). Having carefully considered the Parties’ respective arguments and the applicable law, I agree that Plaintiff has failed to meet its burden of establishing that this exception applies here. *3 “In most cases, a voluntary disclosure to a third party of ... privileged material[ ] ... waives the privilege.” Visual Scene, Inc. v. Pilkington Bros., plc., 508 So. 2d 437, 440 (Fla. 3d DCA 1987) (citation omitted). The common interests exception “enables litigants who share unified interests to exchange this privileged information to adequately prepare their cases without losing the protection afforded by the privilege.” Id. (citation omitted). It permits “clients and their respective attorneys sharing common litigation interests [to] exchange information freely among themselves without fear that by their exchange they will forfeit the protection of the privilege.” Id. (footnote omitted). This exception “is entirely consistent with the policy underlying the privilege, that is, to allow clients to communicate freely and in confidence when seeking legal advice.” Id. In addition to the attorney-client privilege, the common interests exception applies to the work product privilege. Id. at 442. “Because the purposes of the two privileges are different, a waiver of the attorney-client privilege, designed to protect client confidentiality, does not in itself constitute a waiver of the work product privilege, designed ‘to protect the legal craftsman in the product of his labors.’ ” Id. (citation omitted). “In determining whether the work product privilege has been waived, ‘[c]ourts ... have looked to whether the transferor and transferee share “common interests” in litigation, and to whether the disclosure is consistent with “maintaining secrecy against opponents.’ ”” Id. (alterations in original) (citations and footnote omitted). Therefore, the threshold issue here is whether Plaintiff and the two plaintiffs with civil suits pending in state court have the requisite common interests such that this exception applies. Based upon the arguments set forth in Plaintiff's Response, I find that they do not. First, the cases clearly involve different factual scenarios: warranty fraud, sexual battery, and wrongful termination. And although each case involves a common defendant, the only significant link between them is the credibility of one individual. I am not persuaded that this exception applies merely because three plaintiffs in civil suits involving different factual scenarios seek to protect the credibility of one individual. Plaintiff has pointed to no binding precedent extending this exception to the present circumstances, nor has Plaintiff made a cogent and compelling argument for why I should do so now. Moreover, Plaintiff has not established that the documents and communications were meant to further the purported common interest of supporting that key witness's credibility. See United States v. Bay State Ambulance & Hosp. Rental Serv., Inc., 874 F.2d 20, 28 (1st Cir. 1989) (“[T]he party asserting the privilege must show that ... the statements were designed to further the effort[.]” (citation omitted)). Accordingly, Plaintiff's objection to the production of documents on the basis of the common interests exception to the attorney-client and work product privileges is overruled.[2] 4. Production Deadline Finally, Defendants request that I set a deadline of April 15, 2021, for Plaintiff to produce all documents responsive to Defendants’ First Request for Production, which was served on January 29, 2021. (DE 57 at 22; DE 57-3). Defendants argue that they require responses to their document requests in order to adequately prepare for depositions, and they propose an April 15, 2021 deadline in light of the May 17, 2021 discovery deadline. (See DE 57 at 14, 21). Plaintiff argues that the Parties have been producing documents on a rolling basis and that Plaintiff has been diligently working to comply with its discovery obligations. (DE 64 at 6). However, Plaintiff fails to make a compelling argument for not setting a production deadline or to counter with a deadline that it believes is reasonable, and it does not argue that producing the documents by April 15, 2021, would be unduly burdensome or costly. I will grant Defendants’ Motion as to this request because Defendants served their First Request for Production over two months ago and I find it reasonable to request sufficient time to review the documents responsive to those requests prior to attending the remaining depositions (which must be scheduled before the May 17, 2021 discovery deadline).[3] *4 Based upon the foregoing, it is ORDERED AND ADJUDGED that: (1) Defendants’ Expedited Motion to Compel Production of Documents (DE 57) is GRANTED IN PART AND DENIED IN PART. (2) Plaintiff SHALL PRODUCE all documents responsive to Defendants’ First Request for Production on or before April 15, 2021. (3) Plaintiff SHALL SEARCH the ESI of its CEO for responsive documents. However, Plaintiff need not search the ESI of the other two data custodians, as Defendants request. (4) Plaintiff's objection to the production of documents on the basis of the common interests exception to the attorney-client and work product privileges is OVERRULED. SIGNED in Chambers at West Palm Beach, Florida, this 5th day of April, 2021. Footnotes [1] One relates to an alleged sexual battery; the other alleges wrongful termination. (See id. at 18). [2] Defendants also raise concerns regarding Plaintiff's refusal to prepare a privilege log as to the documents and communications that Plaintiff withheld. (See DE 57 at 20). To the extent that those concerns remain, the Parties are advised that strict compliance with Local Rule 26.1 is required. [3] In so ruling, I note that I am not persuaded by Plaintiff's concerns that setting this deadline may result in Defendants making “accusations of impropriety” if Plaintiff produces documents after the deadline expires in order to supplement its responses to these requests or to respond to another set of discovery requests. (See id.). Plaintiff must make a diligent effort to produce all documents responsive to Defendants’ First Request for Production by April 15, 2021. However, this deadline only applies to Defendants’ First Request for Production, and Plaintiff must supplement or correct any response in a timely manner, even after the deadline expires, if Plaintiff “learns that in some material respect the ... response is incomplete or incorrect,” as is required by Federal Rule 26(e).