DIANA MEY, Plaintiff, v. CASTLE LAW GROUP, PC, a Tennessee Corporation, JUDSON PHILLIPS, ESQ., an individual, et al., Defendants CIVIL ACTION NO.: 5:19-CV-185 United States District Court, N.D. West Virginia Filed November 18, 2021 Mazzone, James P., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTIONS [168] and [170] TO COMPEL *1 Currently pending before the Court are Plaintiff's Motions [ECF Nos. 168 and 170] to Compel. These Motions have been referred to the undersigned by the District Court for consideration and disposition. After considering Plaintiff's arguments, Defendants' arguments in response, the applicable law, and the Court file, and after considering the arguments made during the hearing of November 2, 2021, the Court is prepared to issue a decision with respect to each. I. FACTUAL/PROCEDURAL HISTORY The instant dispute arises out of Defendants' (Sean Austin, Steve Huffman, John Preston Thompson, Capitol Compliance Group, and Music City Ventures) alleged failure to fully and completely answer Plaintiff's First Set of Requests for Production of Documents, served on or about July 22, 2021. ECF No. 169 at 3. Also involved in the instant dispute is Defendants' (Sean Austin, Steve Huffman, John Preston Thompson, Capitol Compliance Group, and Music City Ventures) alleged failure to fully and completely answer Plaintiff's Second Set of Requests for Production and Interrogatories, which were served on or about September 1, 2021, and Defendant, Judson Phillips' alleged failure to fully and completely answer Plaintiff's Third Set of Requests for Production and Interrogatories, also served on or about September 1, 2021. ECF No. 171 at 2. All of the aforementioned Defendants filed Responses in Opposition on October 25, 2021. [ECF Nos. 176 and 178]. Plaintiff filed reply briefs on October 29, 2021. [ECF Nos. 179 and 180]. Per the District Court's Order at ECF No. 192, Plaintiff was given until November 17, 2021 to file any supplemental information pertaining to the pending discovery Motions. Plaintiff filed the supplemental information on November 17, 2021. ECF No. 194. As was stated above, a hearing was held in this matter on November 2, 2021. At the hearing, the parties presented arguments in support of their respective positions. Plaintiff acknowledged during the hearing that general issues have been raised by both of Plaintiff's Motions which apply to all sets of discovery at issue. During the hearing, unitary arguments were made with regard to these general issues. The Court will address Plaintiff's Motions in the same fashion here. To the extent the general issues do not resolve certain discovery dispute(s), those dispute(s) will be addressed individually.[1] II. DISCUSSION A. Definition of the Term “You” One of the general issues raised by Plaintiff is Plaintiff's definition of the term “you” as set forth in the implicated discovery. Plaintiff argues that Defendants have not answered the discovery pursuant to this definition. Rather, Plaintiff argues that Defendants have improperly limited their answers in scope to answer only on behalf of the Defendant to whom the discovery was directed instead of as or on behalf of all persons and entities identified in the definition of “you.” Plaintiff claims that this Court previously ratified the definition of “you,” and thus, Defendants' answers are improper and go against a previously entered Court Order. The Court does not agree. *2 Plaintiff contends that the Court “enforced this same definition from Plaintiff's instruction in ordering Defendant Phillips to make complete responses to Plaintiff's initial set of discovery at p. 6 of the aforementioned Order.” ECF No. 169 at 7. The Order to which Plaintiff refers is filed at ECF No. 51. Plaintiff's interpretation of the Court's prior ruling is mistaken, however. The Court's finding set forth on page 6 of the Court's Order at ECF No. 51 refers specifically to the language of Interrogatory #7 of Plaintiff's First Set of Interrogatories to Defendant, Judson Phillips, not a general definition of “you.” Indeed, Interrogatory #7 reads as follows: Identify all persons who worked at any of the entities listed in paragraph 8 of the instructions above, together with their job descriptions and dates of employment. ECF No. 35 at 13; ECF No. 35-2 at 6. Paragraph 8 of the instructions contains the disputed definition of “you.”[2] Initially, Defendant Phillips did not provide an answer. Eventually, he did provide a response, which is as follows: I object to this interrogatory. The request is not proportional to the needs of the case because the information requested is not important to the present action. Further, the request is overly broad and remote and, as such, is not calculated to lead to the discovery of information relevant to the subject matter of this action, nor the discovery of admissible evidence. Without waiving the objection, I am searching for these records and it will be necessary for me to supplement this answer when those records are found. Ultimately, Mr. Phillips provided a list of employees, but only for Castle Law Group. ECF No. 48-1 at 6. Inasmuch as Interrogatory #7 asked for a list of employees for multiple entities including but not limited to Castle Law Group, Mr. Phillips's answer was not fully responsive. Therefore, the Court directed Mr. Phillips to supplement his answer. The Court did not, however, order Mr. Phillips to answer on behalf of other Defendants based upon the definition of “you” set forth in Plaintiff's First Set of Discovery. ECF No. 51 at 6-7. As a result, this Court's prior Order does not serve as a basis upon which to compel answers to discovery. To the extent Plaintiff requests relief on this basis, the same is DENIED. Defendants have objected to Plaintiff's definition of “you,” and, instead of answering on behalf of all the entities listed in the definition of this term, have answered on behalf of the Defendant to whom the discovery was directed. Defendants argue that discovery should be answered in this manner. Pursuant to the Federal Rules of Procedure, the Court would agree with Defendants and therefore sustain this objection. See Fed. R. Civ. P. 33(b) (“interrogatories must be answered... by the party to whom they are directed... or if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party”). See also Fed. R. Civ. P. 34(b)(2)(A) (“[t]he party to whom the request is directed must respond”). *3 That is not to say that a Defendant cannot answer discovery on behalf of another Defendant, however. The Federal Rules appear to permit an individual Defendant to answer on behalf of an organizational entity who is also a Defendant to the extent the individual is an officer or agent of said organizational entity. As the Court reads the rules, however, the choice of who answers on behalf of an organizational entity is left to the organizational entity, the “party,” to whom the discovery is directed. Plaintiff's expanded definition of “you” circumvents this choice. The Court believes this is not appropriate under the applicable rules. Even if Plaintiff could expand the definition of the term “you” to include persons or entities other than the person or entity to whom the discovery request is directed, Plaintiff has so expanded the definition of this term in the instant matter to make the discovery requests overly broad and unduly burdensome. Inasmuch as the definition includes “all organizations or entities” without regard to whether they are a part of the instant lawsuit, the definition extends the discovery requests to include persons and/or entities that may have absolutely no connection to this lawsuit or these matters whatsoever. Without more of a foundational connection, the Court cannot ratify such a broad discovery request. To the extent the definition includes organizations or entities in which the target Defendant has had an ownership interest or officer status, and to the extent said organization or entity is a named Defendant, the Court believes that the definition is improper inasmuch as it forces a target Defendant to answer on behalf of other organizations or entities. Again, the way in which the term “you” is defined does not permit an organizational Defendant to choose which owner or officer it desires to provide answers on behalf of the organizational entity. Accordingly, to the extent Defendants have asserted an objection to Plaintiff's definition of the term “you” in the discovery at issue, the Court would SUSTAIN this objection. To the extent Plaintiff's Motions to Compel seek an Order compelling discovery over this objection, Plaintiff's Motions are DENIED. B. Compelling Documents Plaintiff also argues that Defendants have not provided full and complete answers to Plaintiff's Requests for Production. Specifically, Plaintiff argues that Defendants have not answered discovery requests truthfully, and they have intentionally withheld documents from production. In support of this argument, Plaintiff cites evidence that demonstrates what she believes is a pattern and practice of discovery abuses, both in this case and in others, including Westgate Resorts Ltd., et al. v. Castle Law Group, P.C., et al. in the United States District Court for the Middle District of Florida.[3] Plaintiff also notes what she claims are inconsistencies between and among the various Defendants' answers to discovery. The Court has reviewed the discovery answers with which Plaintiff takes issue. Insofar as the requests for production, Defendants have, by and large, asserted that they have no responsive documents or that the documents sought do not exist. The evidence introduced by Plaintiff indicates that these answers are not entirely accurate. However, the Court cannot compel production of documents a party does not have. See Kinetic Concepts, Inc., et al. v. Convatec Inc., et al., 268 F.R.D. 226, 251-52 (M.D.N.C. May 12, 2010). Notwithstanding, the Court is troubled by the evidence regarding the pattern and practice of Defendants' behavior, noting in particular the extensive evidence submitted by way of ECF No. 194. The Court is also troubled by the allegations that Mr. Austin was demonstrably untruthful with the Court in the Westgate case about an entity involved here, Castle Marketing, LLC. *4 Given the above, the Court believes that additional efforts by Defendants are necessary to ensure discovery is answered pursuant to the applicable rules. Accordingly, Defendants are ORDERED to REVISIT their search(es) for documents in response to all Requests for Production implicated by Plaintiff's Motions. Defendants are ORDERED to immediately provide to Plaintiff any responsive documents which they locate. The Court will further ORDER that each of the Defendants implicated by Plaintiff's currently pending Motions [168 and 170] SHALL separately provide to Plaintiff an AFFIDAVIT describing the efforts made to locate all of the requested documents at issue, including dates, times, and locations of the searches, as well as all persons involved in the search and the results of the same. C. Verification Plaintiff argues that none of the Defendants provided verifications with their Interrogatory answers. ECF No. 171 at 3. Plaintiff cites Fed. R. Civ. P. 33(b)(5) in support of her argument that verifications must be provided. Plaintiff is correct. Insofar as Defendants have failed to provide verifications for their Interrogatory answers, Defendants are ORDERED to provide the same. D. Interrogatory Answers and Responses to Requests for Production of Documents In addition to the aforementioned issues, the Court conducted a thorough examination of the Requests for Production and Interrogatories for which Plaintiff believes Defendants failed to provide truthful and complete answers. Though the rulings set forth above resolve nearly all of the issues raised by Plaintiff's Motions, there appear to be several discovery requests that require individual discussion. They are below. 1. Plaintiff's Second and Third Set of Requests for Production and Interrogatories a. Request No. 4 and Interrogatory No. 1 Insofar as Interrogatory No. 1 seeks information concerning demand deposit and time deposit bank accounts opened or maintained by any Defendant, without limitation to this case or the matter involved herein, the same is overly broad and seeks information that is not necessarily relevant to the matters at issue. Because Request for Production No. 4 is tied to Interrogatory No. 1, the Court would similarly find that the language of RPD No. 4 is overly broad and seeks irrelevant information. Notwithstanding, the Court does believe that certain banking information implicated by these discovery requests is relevant to the claims raised by Plaintiff in this case. Having said that, the Court is also cognizant of the need to proceed slowly and cautiously where personal banking information is involved. Therefore, the Court would ORDER Defendants to supplement their answers to RPD No. 4 and Interrogatory No. 1 with the information requested as it relates to corporate and/or organizational Defendants. Once Plaintiff receives this information, Plaintiff may seek personal banking information of the individual Defendants if the documentary evidence bears out the need for production of the same. b. Request No. 6 Defendants Huffman, Thompson, Music City Ventures, and Capital Compliance's objections are OVERRULED. They assert that the Request is duplicative of RPD No. 1, Defendants are incorrect. RPD No. 6 requests information beyond that included in RPD No. 1, as Plaintiff correctly notes. These Defendants are therefore ORDERED to supplement their answer to this RPD. Evidence provided by Plaintiff seems to indicate that Mr. Austin's response to this RPD is untruthful. This is troubling to the Court. Mr. Austin is ORDERED to correct and/or supplement his answer to this RPD. c. Interrogatory No. 2 The evidence provided by Plaintiff seems to indicate that Mr. Austin's answer to this Interrogatory is, at the very least, incomplete. Mr. Austin is therefore ORDERED to correct and/or supplement his answer to this Interrogatory. d. Interrogatory No. 3 *5 As the Plaintiff observed, the question asks Defendants to identify certain items. Defendants have answered that “there are no documents responsive to this request.” The Court would therefore agree with Plaintiff's argument regarding this Interrogatory. Defendants Austin, Huffman, Thompson, Capital Compliance, and Music City Ventures' answer to this Interrogatory is non-responsive. Accordingly, Defendants are ORDERED to correct and/or supplement this answer. e. Interrogatory Nos. 4 and 6 Defendants Austin, Huffman, Thompson, Capital Compliance, and Music City Ventures asserted that they are unsure what a ‘Controlled Group’ is under the Internal Revenue Code. Plaintiff notes that this misunderstanding could have been clarified during a meet and confer. The Court agrees. The Parties are DIRECTED to meet and confer with regard to the meaning of ‘Controlled Group’ as used in Interrogatory No. 4. Once the meet and confer has taken place, Defendants are ORDERED to supplement their answer to this Interrogatory within ten (10) days after the meet and confer has taken place. The Court would agree with Plaintiff's arguments with regard to Defendants Austin, Huffman, and Thompson's answers to Interrogatory No. 6. The Defendants are therefore ORDERED to revisit their answers and supplement with greater detail as to the nature of the business relationship. For example, Defendants should provide information that includes but is not limited to whether ‘business relationship’ means common stockholders, creditors/debtors... or some other such relationship. f. Interrogatory Nos. 7 and 9 The Court would agree with Plaintiff with respect to Interrogatory No. 7. In particular, the Court would note that this is the same type of information required under Fed. R. Civ. P. 26(a)(1)(A) in a party's initial disclosures. Therefore, Defendants' objections to this Interrogatory are OVERRULED. Defendants are ORDERED to revisit their answers to this Interrogatory and to supplement their answers with greater detail as to the facts known, including but not limited to dates, times, actions, or activities... etc. With respect to Interrogatory No. 9, the Court would agree that any misunderstanding regarding the nature of Plaintiff's request could have and should have been remedied during a substantive meet and confer session. The parties are DIRECTED to meet and confer. Once this meet and confer has taken place, Defendants are DIRECTED to supplement their answers to this Interrogatory within ten (10) days after the meet and confer has taken place. 2. Interrogatories Directed to Judson Phillips With respect to Interrogatory No. 2, the Court would agree with Plaintiff. Interrogatory No. 2 is an Interrogatory and has asked for specific information. Inasmuch as Mr. Phillips answered by declaring he has ‘no other documents responsive’ to this request, Mr. Phillips answer is non-responsive. Mr. Phillips is therefore ORDERED to correct and supplement this answer. With regard to Interrogatory No. 3, the Court would note, as it has before, that the meaning of ‘Controlled Group’ under the Internal Revenue Code should have been discussed during the meet and confer that is required under the rules. Inasmuch as Plaintiff believes that this misunderstanding can be remedied during a meet and confer, the Court would DIRECT the parties to meet and confer regarding this issue. Defendant is DIRECTED to supplement his answer to this Interrogatory within ten (10) days after the meet and confer has taken place. E. Answering in the Present Tense Only *6 Plaintiff points out that many of Defendants' discovery answers are set forth in the present tense, rather than inclusive of present and past, as the applicable question requests. For example, RPD No. 1 as discussed in ECF No. 171 at 6 provides as follows: Provide copies of all documents and minutes associated with meetings of shareholders, members, boards or owners of (a) any entities named herein; and (b) any entity in which you and one or more of the co-defendants named herein both have (or have had) interest or ownership. Defendants answered with respect to the entities in which one or more of the co-defendants named herein “both have interest or ownership.” (Emphasis added.) Clearly this question (and others like it) contemplated both present and past states of interest of ownership. To the extent Defendants have failed to answer in both tenses, Defendants have failed to completely answer the discovery request propounded. Defendants are therefore ORDERED to correct and/or supplement those discovery requests that were not fully answered as a result of a limitation to the present tense.[4] III. CONCLUSION Accordingly, and for all of the foregoing reasons, Plaintiff's Motions [168 and 170] are GRANTED IN PART AND DENIED IN PART as set forth more fully above. Unless otherwise directed herein, Defendants shall have ten (10) days to supplement their answers, as directed. It is so ORDERED. Any party may, within FOURTEEN DAYS of this Order, file with the Clerk of the Court written objections identifying the portions of the Order to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the District Court Judge of Record. Failure to timely file objections to the Order set forth above will result in a waiver of the right to appeal from a judgment of this Court based upon such an Order. The Court DIRECTS the Clerk of the Court to mail a copy of this Order to any pro se party by certified mail, return receipt requested, and to counsel of record herein. Footnotes [1] Per the District Court's Order [ECF No. 192], the undersigned will not address the issue of sanctions. [2] “All requests to ‘you’ are also directed to all organizations or entities in which you have had ownership, interest, officer status, or affiliation, including but not limited to Castle Law Group, PC; Castle Marketing Group, LLC; Tristar Consumer Group; Tristar Consumer Law; Tristar Consumer Law Foundation; Tristar Consumer Law Organization; Music City Ventures, Inc.; American Consumer Rights Organization; Capital Compliance Group, CO; US Consumer Advocates; US Consumer Advocates Foundation; Judson Phillips Law; Advocus Legal Group; Advocus Legal Organization; Advocus Legal Inc and/or Advocus Law. This further includes all parent, related, affiliate and subsidiary companies or identities of any Defendant named herein, including you, to the greatest extent permissible under the discovery rules. Moreover, Defendant is to make transparent, best efforts to obtain materials from third parties such as vendors, which are within their ‘possession, custody or control” as those terms appear in Fed R. Civ. P. 34. ECF No. 35-2 at 2-3. [3] ECF No. 194 enumerates other, additional Court actions. [4] It appears the following discovery requests are implicated by this ruling: RPD No. 1 in Plaintiff's Second and Third Set of Requests for Production and Interrogatories to Defendants; RPD Nos. 1, 2, 3, 4, 5, 6, 7, 8, and 9 in Plaintiff's First Set of Requests for Production. This list is not offered by way of limitation; rather, Defendants are responsible for providing full and complete answers to all discovery requests implicated by Plaintiff's Motions that Defendant initially improperly limited to present tense.