Charles CORNELIUS, Plaintiff, v. ROLLINS RANCHES, LLC, Defendant CASE NO. 20-14464-CIV-MARRA/MAYNARD United States District Court, S.D. Florida Signed June 15, 2021 Entered June 16, 2021 Counsel Samara Robbins Bober, Peter Joseph Marshall Bober, Bober & Bober, P.A., Hollywood, FL, Silvia Theresa Perez-King, Coral Gables, FL, for Plaintiff. Robert E. Rigrish, Pro Hac Vice, Bodker, Ramsey, Andrews, Winograd & Wildstein, P.C., Atlanta, GA, Geoffrey Dale Ringer, Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., Orlando, FL, for Defendant. Maynard, Shaniek M., United States Magistrate Judge ORDER ON DEFENDANT'S MOTION TO COMPEL (DE 25) *1 THIS CAUSE comes before this Court upon the above Motion. Having considered the Motion, Plaintiff's Response, and being otherwise fully advised in the premises, the Court orders as follows. BACKGROUND Plaintiff Charles Cornelius initiated this case on December 29, 2020, asserting one claim against Defendant Rollins Ranches, LLC, for violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq, (“FLSA”). DE 1. Generally, Plaintiff alleges that while he was employed as a construction worker and carpenter on Defendant's property between June 2015 and October 2020, Defendant willfully failed to pay him overtime wages required under the FLSA. See id. Defendant generally answers that Plaintiff was an independent contractor not eligible for FLSA pay who performed services at Defendant's ranches which, even if performed by an employee, would constitute secondary agricultural services exempt from overtime under section 3(f) of the FLSA. See, e.g., DE 7 at 3. Along with its Answer, Defendant also asserts a counterclaim against Plaintiff seeking overpay. Id. at 5-8. Defendant contends that Plaintiff breached the covenant of good faith and fair dealing implied in his agreement with Defendant as an independent contractor by intentionally misrepresenting the number of hours he worked, thereby inducing Defendant to pay him for hours not actually spent working. Id. Defendant seeks damages in the amount of the overpaid wages. Id. at 8. DISCUSSION Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain discovery regarding any non-privileged 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). While the Federal Rules of Civil Procedure “strongly favor full discovery whenever possible,” trial courts have wide discretion in setting limits on the scope of discovery. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). A party is not entitled to receive every piece of relevant information, but instead is subject to “reasonable limits on discovery” based on “the common-sense concept of proportionality.” In re: Takata Airbag Prod. Liab. Litig., No. 14-24009-CIV, 2016 WL 1460143, at *2 (S.D. Fla. Mar. 1, 2016). An opposing party may object to a discovery request that is unreasonable or otherwise unduly burdensome. Alvar v. No Pressure Roof Cleaning, LLC, No. 17-80725-CIV, 2018 WL 1187777, at *2 (S.D. Fla. Mar. 7, 2018). The grounds for objecting to a discovery request must be stated with specificity. See Fed. R. Civ. P. 33(b)(4) and 34(b)(2)(B). Objections simply stating that a request is overly broad or unduly burdensome, without specifying the ground on which such objections are based, are meaningless and without merit. Rivera v. 2K Clevelander, LLC, No. 16-21437-CIV, 2017 WL 5496158, at *2 (S.D. Fla. Feb. 22, 2017). The objecting party bears the burden to establish a lack of relevancy or some other basis for resisting production. E.g., Glatter v. MSC Cruises S.A., No. 18-62219-CIV, 2019 WL 1300896, at *1 (S.D. Fla. Feb. 7, 2019). *2 Defendant moves the Court for an order compelling Plaintiff to produce documents responsive to seven of its Requests for Production. The Court considers the Requests in groups. I. Request Nos. 1-4 – Plaintiff's Personal Records Defendant's Request Nos. 1 through 4 seek various personal records from Plaintiff, including his bank, credit card, computer, cell phone, telephone, and email records. DE 25-1 at 3-5. Upon review, the Requests are overbroad, seek irrelevant information, and not are proportional to the needs of the case. Request for Production No. 1. Request No. 1 seeks “any bank or financial institution account, debit card, or credit card records reflecting activities and purchases made by Cornelius between December, 2017 and October, 2020, ... whether personally or through any entity.” DE 25-1 at 3. Plaintiff objects to the request as vague, overbroad, not proportional to the needs of the case, and irrelevant. He contends it is vague and overbroad in that it does not define “activities” and includes times Plaintiff was not working. Id. at 3. Plaintiff contends the Request is irrelevant because he is not challenging the total hours he was paid, only the rate he was paid for those hours. Id. Defendant fails to address most of Plaintiff's objections in the instant Motion. Instead, Defendant merely argues that while the discovery sought may not be relevant to Plaintiff's claim, all of the discovery requests as to his personal records are relevant to Defendant's counterclaim for overpaid wages. DE 25 at 4. Defendant argues the records are evidence of what Plaintiff “was actually doing” when he claimed to be working. Id. The undersigned agrees with Plaintiff that the Request is overbroad. The Request is made without limitation. Thus, it seeks Plaintiff's financial records as to any transaction that occurred at any time in a nearly three-year span, necessarily including nights, weekends, holidays, and other times Plaintiff was not working for Defendant. Such an unfettered request for an individual's personal financial records is necessarily overbroad. See Devries v. Morgan Stanley & Co. LLC, No. 12-81223-CIV, 2015 WL 893611, at *3 (S.D. Fla. Mar. 2, 2015) (finding, in FLSA case, defendant-employer's request for production of “[a]ll documents relating to any personal or other activities unrelated to work that you engaged in during your employment ... including ... credit card receipts or statements, bank statements, cancelled checks, ... or expense forms” to be “invasive and overbroad”). Courts have also found overbroad requests for an FLSA plaintiff's bank or credit card records that are more limited than the one in this case. E.g., Palma v. Metro PCS Wireless, Inc., 18 F. Supp. 3d 1346, 1348 (M.D. Fla. 2014) (finding overbroad records of FLSA plaintiff's banking and credit card transactions even after the defendant agreed to limit the request to “portions of the records showing the dates and times of transactions and enough information showing that the transactions were not work-related”). Given it scope, Request No. 1 is improperly overbroad. Request No. 1 is also irrelevant as to the claims and defenses in this case and not proportional to this case's needs. Plaintiff's financial records have no relevance to his claim that he is owed overtime pay because the type of work he performed is not exempt from overtime under the FLSA. The requested records also have little or no relevance to Defendant's counterclaim for overpaid wages. Defendant generally alleges that Plaintiff overstated the hours he worked, thereby inducing Defendant into paying him for time not actually spent working. See generally DE 7 at 5-8. Thus, only Plaintiff's claimed work hours are at issue and any financial transactions made outside of those claimed hours are necessarily irrelevant. Even if the Request was limited to transactions that occurred while Plaintiff reported he was working, however, the information sought would still have only marginal relevance. Account transactions posted during days Plaintiff worked for Defendant could have been made during a break or could be the result of a family member or friend borrowing Plaintiff's credit or debit cards. Thus, such financial records may not accurately reflect what Plaintiff “was actually doing” while he was working. See Jefferson v. Walgreen Co., No. 80-CV-01211, 2010 WL 11629287, at *3 (M.D. Fla. Dec. 30, 2010) (finding the defendant had not demonstrated that a plaintiffs’ phone records or credit card statements were relevant to the FLSA action where defendant argued the records would show whether the plaintiffs were “working while present at work”); cf. Rusignolo v. McLane Suneast, Inc., No. 06-80645-CIV, 2007 WL 9701844, at *2 (S.D. Fla. May 21, 2007) (finding FLSA employer's request for the plaintiff's bank and credit card statements irrelevant because “simply looking at bank records and credit card statements cannot provide any information that would assist [defendant] in calculating how many hours Plaintiffs worked each week”). *3 Lastly, Request No. 1 is not proportional to the needs of this case. Defendant estimates it overpaid Plaintiff by at least approximately $3,000 over a two-year period. DE 7 at 7. Given the Request's broad scope and only marginal relevance, compelling access to three years of Plaintiff's personal financial records, complete versions of which may also implicate privacy concerns, is not proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is ... proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, ... and whether the burden or expense of the proposed discovery outweighs its likely benefit.”). Accordingly, the Motion is denied as to Request No. 1. Request for Production No. 2. Request No. 2 seeks “any electronic mails, texts, instant messages (IM), or social media entries made or posted by Plaintiff [ ] between December, 2017 and October, 2020.” DE 25-1 at 3. As with Request No. 1, Plaintiff objects because the Request is overbroad, not proportional, and harassing as it contains no limitations whatsoever, such as to time or subject matter. Id. at 4. He also argues Request No. 2 is not relevant to his claim and unduly burdensome because it could require significant resources to local old cell phone or hardware just to determine if such documentation exists. Id. The Motion only addresses relevance, stating all of the Requests are relevant to Defendant's claim for overpaid wages as evidence of what Plaintiff was doing when he claimed to be working. DE 25 at 4. Again, the Court finds Defendant's Request to be overbroad, irrelevant, and not proportional to the needs of the case. Although social media content generally is neither privileged nor protected by any right of privacy, a discovery request still must be sufficiently tailored to prevent a defendant from engaging in a proverbial fishing expedition in a plaintiff's social media accounts. Davenport v. State Farm Mut. Auto. Ins. Co., No. 11-CV-00632, 2012 WL 555759, at *1 (M.D. Fla. Feb. 21, 2012). Request No. 2, which seeks all social media entries made or posted by Plaintiff at any time during a three-year span, without further limitation, is not sufficiently tailored and is overbroad on its face. See Devries, 2015 WL 893611, at *4 (finding overbroad and irrelevant employer's request for production of all messages and postings employee-plaintiffs transmitted or received through social media sites during their employment); Artt v. Orange Lake Country Club Realty, Inc., No. 14-CV-00956, 2015 WL 4911086, at *2 (M.D. Fla. Aug. 17, 2015) (FLSA case finding similar request for production to be overbroad, unduly burdensome, and unreasonable on its face). Cf Blake v. Batmasian, No. 15-81222-CIV, 2016 WL 7442832, at *1 (S.D. Fla. July 22, 2016) (granting employer's narrowly tailored request to compel a plaintiff's social media documents from specific dates and times, only after the plaintiff's deposition testimony showed such a request was relevant and reasonable). Unlike social media posts, emails, texts, and IMs are inherently private conversations. “Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Davenport, 2012 WL 555759, at *2 (internal quotation omitted). In this modern era, significant portions of people's lives occur through or are discussed in text and email. See Pendlebury v. Starbucks Coffee Co., No. 04-80521-CIV, 2005 WL 2105024, *2 (S.D. Fla. Aug. 29, 2005) (noting that discovery requests should be carefully scrutinized when they have the potential for “harassment, embarrassment, and unnecessary invasions into [one's] private life”). This Request makes no limitations as to the subject or recipient of any of these messages or limitations as to dates or times. There is no question the request is overbroad. See Devries, 2015 WL 893611, at *5 (finding “overbroad and invasive” an employer's request for production of documents relating to telephone calls made or received, text messages, instant messages, and e-mail the plaintiffs sent or received during their employment). *4 As to relevance, it is clear that emails, texts, IMs, or social media posts are irrelevant to Plaintiff's claim. Those posts or messages made outside the hours Plaintiff claimed to be working are necessarily irrelevant to Defendant's counterclaim that Plaintiff overreported his work hours. Even if Defendant sought only those messages and post made during Plaintiff's claimed work hours, however, the relevance of the Request would still be limited at best. That an email or text message may have been made during work hours does not necessarily lead to a conclusion that Plaintiff was not also performing work. See Palma, 18 F. Supp. 3d at 134 (“Whether or not an opt-in Plaintiff made a Facebook post during work hours or about work has no bearing on total hours worked or whether their job position qualifies for an exemption under the FLSA.”); cf. Rusignolo, 2007 WL 9701844, at *2. As with Request No. 1, this intrusive and unfettered Request is also not proportional to the needs of the case. Accordingly, the Motion is denied as to Request No. 2. Request for Production No. 3. Request No. 3 seeks “[m]obile telephone invoices showing telephone usage detail for any mobile telephone numbers or accounts” used by Plaintiff during the same period. Id. at 4. For similar reasons as Request Nos. 1 and 2, Plaintiff argues that this Request is also overbroad and harassing, irrelevant, not proportional to the needs to the case, and unduly burdensome. DE 25-1 at 5. Again, the Motion only addresses relevance, arguing the information evidences what Plaintiff was “actually doing” during hours he claimed to be working for Defendant. Again, the Court disagrees with Defendant. As with Request Nos. 1 and 2, this Request is unqualified and without limitation, making it overbroad on its face given that Defendant's counterclaim only puts Plaintiff's claimed work hours at issue. In this way the Request also seeks irrelevant information because Plaintiff's calls on days and at times he was not working are not at issue. Even during alleged work hours, however, “the mere fact that a personal call may have been made during work hours does not necessarily lead to a conclusion that Plaintiffs were not performing work.” Rusignolo, 2007 WL 9701844, at *2. The same conclusion was discussed by the court in Pendlebury v. Starbucks Coffee Company. See No. 04-80521-CIV, 2005 WL 2105024, *2 (S.D. Fla. Aug. 29, 2005). In that overtime FLSA case, the employer sought records regarding employees’ calls and text messages made over a four-year span because the records “could provide information about whether plaintiffs were able to conduct personal business during the hours they were allegedly working.” Id. The Court reasoned that the request was not likely to provide the information the defendant wanted because such records would only indicate whether a call or other communication was made, and not the substance of those communications (which may have been wholly unrelated to the plaintiffs’ employment). See also Rusignolo, 2007 WL 9701844, at *2 (“Phone records ... would not necessarily provide any information that would assist [defendant] in calculating how many hours Plaintiffs worked each week.”). The Pendlebury Court also found the scope of the request troubling “given [the] legitimate expectation of privacy in these types of records and the tenuous connection, at best, they might have to the issues in this lawsuit.” Pendlebury, 2005 WL 2105024, at *2. Accordingly, the Motion is denied as to Request No. 3. Request for Production No. 4. Finally, Request No. 4 asks for records describing or detailing Plaintiff's use of any home or business land-line telephone between December 2017 and October 2020. DE 25-1 at 5. Plaintiff initially objected to the request as overbroad and harassing, not proportional, unduly burdensome, and irrelevant.[1] Id. For the same reasons as those discussed above, the undersigned finds Request No. 4 to be overbroad and irrelevant. Plaintiff's landline telephone records are irrelevant to his claim that his work was not secondary agricultural services exempt from overtime pay. The Request is not limited to the hours Plaintiff claimed to be working, so on its face seeks records irrelevant to Defendant's claim that Plaintiff overstated his work hours. Even if limited to the hours Plaintiff claimed he was working for Defendant, the records are not relevant to Defendant's claim. Land-line phone records would only show that a call was placed, not who made the call or what the call concerned. Thus, the records do not necessarily reflect Plaintiff's activities. See Jefferson, 2010 WL 11629287, at *3; Pendlebury, 2005 WL 2105024, at *2. Accordingly, the Motion is denied as to Request No. 4. II. Request No. 5 – Plaintiff's Calendars or Planners *5 Request No. 5 seeks “[a]ny calendars, daytimers, planners, or similar record (whether electronic or paper) where Plaintiff Charles Cornelius recorded his activities between December, 2017 and October, 2020.” Id. at 5. In response, Plaintiff identified documents Bates numbered 0001 to 0050. Id. In the instant Motion, Defendant contends that the records produced are not responsive and are simply email confirmations of money paid to Plaintiff by Defendant. DE 25 at 4 n.2. In support of this contention, Defendant provides only one document, Bates number 0009, which appears to be an electronic receipt showing Defendant paid Plaintiff $287.50 on October 23, 2020. DE 25-2. Plaintiff does not respond to Defendant's contention as to this Request. See DE 27. Having seen only one page of Plaintiff's production, the Court cannot determine whether Bates numbers 0001 to 0050 are in fact responsive to Request No. 5. That said, to the extent the other pages are similar to the document at Bates number 0009, they are not calendars, daytimers, planners, or the like. Calendars and planners, to the extent they exist, would have some relevance to Defendant's claim of overpayment because they could indicate appointments or other obligations at times when Plaintiff reported he was working for Defendant. Plaintiff did not object to Request No. 5 and the undersigned finds the requested documents to be relevant. Thus, the Motion is granted as to Request No. 5. III. Request Nos. 8 and 9 – Attorney's Fee Contracts or Timesheets Defendant's Request Nos. 8 and 9 seek documents related to Plaintiff's counsel's fees in this case. Specifically, Request No. 8 seeks copies of any retainer agreement or contract entered between Plaintiff and any attorneys representing him in this case and Request No. 9 seeks a copy of Plaintiff's counsel's timesheets “to establish the amount of any attorney's fees [ ] Plaintiff seeks to recover in this matter.” DE 25-1 at 6. Plaintiff objects to the Requests as untimely, overbroad,[2] and harassing. Id. He argues that the documents sought are not pertinent at this stage of the case as Plaintiff has yet to obtain a judgment or move for fees. Id. Plaintiff contends, instead, that the fee information could only have relevance if he were to ultimately prevail in this case. DE 27 at 5. Defendant argues the documents are directly relevant to a remedy Plaintiff seeks in this case. DE 25 at 4-5; see DE 1 at 6 (Plaintiff's Complaint requesting, inter alia, “reasonable attorney's fees and costs and expenses of this litigation pursuant to 29 U.S.C. § 216(b)”). Whereas Defendant proffers no caselaw in support of its proposition that Plaintiff's fee agreement is relevant at this stage of the case, Plaintiff directs the Court to two cases in support of its objection. Compare DE 25 at 4-5 with DE 27 at 5. The undersigned finds the two cases cited by Plaintiff to be persuasive on this issue. First, in Wynder v. Applied Card Systems, Inc., the FLSA defendant filed a motion to compel a copy of the plaintiffs’ retainer agreement with their attorneys as well as the hourly rate charged and hours expended by such attorneys since they were retained in that case. No. 09-80004-CIV, 2009 WL 10667792, at *1 (S.D. Fla. Oct. 14, 2009). The Wynder plaintiffs objected to the production as irrelevant at that juncture of the litigation but agreed to produce the retainer agreement if they filed a motion for fees. Id. The court “concur[red] with Plaintiffs’ argument,” found that the defendant had failed to carry its burden of persuasion over their objection, and denied the motion to compel. Id. at *2-4. The second case cited by Plaintiff, Devries v. Morgan Stanley & Co., was another FLSA action for unpaid overtime wages that considered a motion to compel an identical request. 2015 WL 893611, at *6-7. Relying on Wynder, the Devries court denied the defendant's motion to compel given the early stage of the litigation. Id. The court reasoned “should Plaintiffs prevail in this FLSA case, then information pertaining to attorney retainer agreements may be relevant in the event Plaintiffs move for an award of attorney's fees and costs pursuant to the FLSA statute.” Id. at *7. *6 In line with Wynder and Devries, Defendant's request to compel copies of Plaintiff's retainer agreement or attorney billing information is denied at this stage of the litigation. See also Eldredge v. Edcare Mgmt., Inc., No. 12-61984-CIV, 2013 WL 12131898, at *2 (S.D. Fla. Apr. 2, 2013) (finding, in FLSA unpaid wages case, that the defendant's request for plaintiff's fee arrangement with her counsel “is premature at this stage in the proceedings” where defendant does not argue the agreement is relevant to anything other than the plaintiff's general claim for attorneys’ fees should she prevail on her underlying claims). Should Plaintiff prevail in this FLSA case and move for attorney's fees, Defendant may reassert its requests for the documents listed in Request Nos. 8 and 9. The Court notes, however, that in that circumstance, this District's Local Rules would require Plaintiff to provide the information sought by Request Nos. 8 and 9 in filing his motion for fees. See S.D. Fla. Local R. 7.3(a) (“The motion [for an award of attorneys’ fees] shall: ... (4) disclose the terms of any applicable fee agreement; (5) provide ... (B) the number of hours reasonably expended ... and (D) the hourly rate(s) claimed[.]”). CONCLUSION For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendant's Motion to Compel (DE 25) is GRANTED IN PART and DENIED IN PART. The Motion is granted as to Defendant's Request for Production No. 5 and denied as to all other Requests. Plaintiff shall provide a supplemental response to Request No. 5 or before date June 22, 2021. DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 15th day of June, 2021. Footnotes [1] Plaintiff provided a supplemental Response, however, stating: “Notwithstanding the Plaintiff's original objections, which he still maintains and reincorporates herein, the Plaintiff responds as follows: None.” DE 25-1 at 5 (emphasis in original). [2] Plaintiff argues the Requests are overbroad because the fee agreement signed between Plaintiff and his counsel contains privileged, confidential information. DE 25-1 at 6-7. Defendant responds that although privilege was “not asserted,” Plaintiff's concerns about privileged communications or work production could be addressed through redaction. DE 25 at 5.