Gerald PETERS, Plaintiff, v. Joseph FRONTIERE, Nicholas Frontiere, Michael Ghiselli, Joseph Cellura, and Tarsin Mobile, Inc., Defendants. Joseph Frontiere, Cross-Claimant, v. Michael Ghiselli, Joseph Cellura, and Tarsin Mobile, Inc., Crossclaim Defendants No. 1:21-cv-0564 WJ/JHR United States District Court, D. New Mexico Filed December 16, 2022 Counsel Benjamin W. Allison, Cole P. Wilson, Kathleen Rosemary Bryan, Bardacke Allison Miller LLP, Santa Fe, NM, for Plaintiff. Robert Gentile, Guebert Bruckner PC, Albuquerque, NM, Shawn Stephen Cummings, Tyson & Mendes, LLC Mayer LLP, Albuquerque, NM, for Defendants Joseph Cellura, Michael Ghiselli, Tarsin Mobile, Inc. Julie Sakura, Michael Jacobs, Hinkle Hensley Shanor & Martin LLP, Santa Fe, NM, Kurt B. Gilbert, Hinkle Law Firm, Santa Fe, NM, James Madison Sheehan, Santa Fe, NM, William Darryl Harris, II, Pro Hac Vice, Harris Legal Advisors, LLC, Columbus, OH, Lawrence R. Lonergan, Pro Hac Vice, The Lonergan Law Firm, LLC, Montclair, NJ, for Cross-Claimant Joseph Frontiere, Defendant Nicholas Frontiere. Robert Gentile, Guebert Bruckner PC, Albuquerque, NM, Shawn Stephen Cummings, Tyson & Mendes, LLC Mayer LLP, Albuquerque, NM, for Crossclaim Defendants. Ritter, Jerry H., United States Magistrate Judge MEMORANDUM OPINION AND ORDER *1 Pending before the Court is Plaintiff Gerald Peters’ (“Plaintiff”) Motion to Compel Discovery Responses from Defendants/Crossclaim Defendants Michael Ghiselli, Joseph Cellura, and Tarsin Mobile, Inc. (collectively, the “Tarsin Defendants”) (“the Motion to Compel”) (Doc. 58). The Tarsin Defendants filed a response in opposition (Doc. 71), to which Plaintiff replied (Doc. 77). Having considered the parties’ submissions and the relevant law, the Motion to Compel (Doc. 58) is granted in part. To the extent the Tarsin Defendants have not already provided the discovery at issue in the Motion to Compel through supplemental discovery responses, the Tarsin Defendants are hereby ordered to respond to Plaintiff's First Set of Interrogatories and Requests for Production of Documents no later than fourteen days from entry of this Order. The Court further finds that Plaintiff is entitled to the attorney fees and costs he incurred in bringing the Motion to Compel. I. BACKGROUND Plaintiff filed this lawsuit in February 2021 in New Mexico state court. See Doc. 1. Plaintiff alleges that in July 2019, the Tarsin Defendants and Joseph Frontiere and Nicholas Frontiere (the “Frontiere Defendants”) approached him to invest in Tarsin Mobile, Inc. (“TMIX”), a Florida company with its principal place of business in Nevada, before the company went public. See Doc. 9 at 1–2. Plaintiff agreed to invest $750,000 in TMIX in exchange for a promissory note that would earn 5% interest per annum or be converted into shares of TMIX common stock. Id. at 8–9. Plaintiff alleges that he never received stock in exchange for his investment and that Defendants have essentially absconded with his investment. Id. According to Plaintiff, Defendants induced him to invest in TMIX by allegedly making material misrepresentations regarding TMIX's value, earnings, and business plans. Id. at 2. Plaintiff's amended complaint raises claims for federal securities fraud, New Mexico securities fraud, common law fraud, negligent misrepresentation, breach of contract, breach of the covenant of good faith and fair dealing, civil conspiracy, constructive trust, accounting, and promissory estoppel. See id. at 17–29. Plaintiff seeks compensatory and punitive damages. Id. at 29. After the case was removed to this Court on June 18, 2021, Defendants Ghiselli and Cellura moved to stay the case until an ongoing lawsuit in Nevada state court involving TMIX was resolved. See Doc. 35. On October 15, 2021, the Court denied the motion to stay. Id. A Rule 16 scheduling conference was thereafter held on November 23, 2021, after which the Court entered a Scheduling Order setting a discovery deadline of June 27, 2022, and a pretrial motions deadline of August 12, 2022. See Doc. 40. On December 13, 2021, Plaintiff served his first set of interrogatories and requests for production to the Tarsin Defendants. See Doc. 43. Each of the Tarsin Defendants initially responded to these discovery requests on January 26, 2022. See Doc. 49. On March 2, 2022, Plaintiff filed the Motion to Compel that is presently before the Court. See Doc. 58. Therein, Plaintiff asked the Court to overrule the Tarsin Defendants’ objections and order them to amend and/or supplement their responses to Plaintiff's first set of interrogatories and requests for production, including in particular Interrogatories Nos. 3, 5–8, and Requests for Production Nos. 5–11, 13–16, and 18–19. See id. at 13–14. Plaintiff additionally sought the attorney fees and costs he incurred in bringing the Motion to Compel. Id. at 14. *2 Before responding to the Motion to Compel, the Tarsin Defendants supplemented their responses to the discovery requests at issue on March 18, 2022, and again on March 23, 2022. See Docs. 67, 70. The Tarsin Defendants then filed their response brief. See Doc. 71. In their response, the Tarsin Defendants withdrew all “general objections based on ‘confidential, proprietary, or trade secrets information’,” and indicated that they had attempted to resolve the “discovery deficiencies” Plaintiff identified by filing two sets of supplemental discovery responses, and that they were “continu[ing] to work with Plaintiff regarding discovery supplementation.” Id. at 2, 3. On April 6, 2022, Plaintiff filed his reply brief in connection with the Motion to Compel. See Doc. 77. In his reply, Plaintiff indicated that the Tarsin Defendants’ supplemental discovery responses did not resolve the issues raised in his Motion to Compel. Id. On April 15, 2022, the Tarsin Defendants supplemented their discovery responses for the third time. See Doc. 83. In June 2022, the Court, at the request of the parties, extended the discovery deadline to August 8, 2022, and the pretrial motions deadline to September 30, 2022. See Doc. 124. The pretrial motions deadline was subsequently extended to October 10, 2022, at the request of the parties. See Doc. 182. II. LEGAL STANDARDS Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery, providing 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be admissible in evidence to be discoverable.” Id. “[T]he scope of discovery under the federal rules is broad and [ ] ‘discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and clarify issues.’ ” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). Nonetheless, the Court is not required to permit the parties to engage in fishing expeditions in the hope of supporting their claims or defenses. See Landry v. Swire Oilfield Servs., L.L.C., 323 F.R.D. 360, 375 (D.N.M. 2018). Federal Rule of Civil Procedure 33 governs interrogatories to parties. “Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). A responding party may object to an interrogatory but the grounds for an objection “must be stated with specificity.” Fed. R. Civ. P. 33(b)(4). Furthermore, responses by general reference to another document are insufficient. See Fed. R. Civ. P. 33(d)(1) (If responding by producing business records, the responding party is required to “specify[ ] the records ... in sufficient detail to enable the interrogating party to locate and identify them ...”); see, e.g., Heuskin v. D&E Transp., L.L.C., No. Civ. 19-957 MV/GBW, 2020 WL 1450575, at *3 (D.N.M. Mar. 25, 2020); Bayview Loan Servicing, L.L.C. v. Boland, 259 F.R.D. 516, 518 (D. Colo. 2009). Federal Rule of Civil Procedure 34 governs requests for production. Requests for production “must describe with reasonable particularity each item or category of items to be inspected[.]” Fed. R. Civ. P. 34(b)(1)(A). A proper response “must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Fed. R. Civ. P. 34(b)(2)(B). A party responding to a request to produce documents has the responsibility to provide meaningful responses to the request and a general reference to another document is insufficient. See Fed. R. Civ. P. 34(b)(2)(E)(i) (“A party must ... organize and label [documents] to correspond to the categories in the request[.]”); see, e.g., Orchestrate HR, Inc. v. Trombetta, 178 F. Supp. 3d. 476, 509–10 (N.D. Tex. 2016) (A party responding to a request is responsible “to review the voluminous documents to identify those that are responsive to specific requests.”); Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535, 541 (D. Kan. 2006) (A party responding to a request must identify which documents are responsive to which requests.). *3 Where the Court grants a motion to compel under Rule 37(a), it must “after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees” unless: “the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action”; “the opposing party's nondisclosure, response, or objection was substantially justified”; or “other circumstances make an award of expenses unjust.” See Fed. R. Civ. P. 37(a)(5)(A). III. ANALYSIS At the outset, because the Tarsin Defendants supplemented their responses to Plaintiff's first set of interrogatories and requests for production multiple times, including at least once after briefing was completed on Plaintiff's Motion to Compel, it is difficult to ascertain whether any of the issues raised in the Motion remain unresolved. Because Plaintiff has not withdrawn his Motion, the Court will decide the Motion. A. The Tarsin Defendants’ General Objections based on “Confidential, Proprietary, or Trade Secrets Information” Plaintiff first argues that it was improper for the Tarsin Defendants to lodge a general objection to Plaintiff's first set of discovery requests based on “confidential, proprietary, or trade secrets information” as there is a protective order in place in this case. See Doc. 58 at 6–7. The Tarsin Defendants lodged this objection to all requests for production and Interrogatory Nos. 3, 6, 7, and 15 (objection lodged by Defendants Cellura and Ghiselli) and Interrogatory Nos. 3, 5, 7, 9, and 13 (objection lodged by TMIX). Id. In their response brief, the Tarsin Defendants indicated that they were withdrawing this objection and had accordingly supplemented their discovery responses. See Doc. 71 at 3. Plaintiff, however, indicated in his reply brief that the Tarsin Defendants’ supplementation was insufficient. See Doc. 77 at 2–3 (noting that (1) Defendants Cellura and Ghiselli had yet to provide answers to Interrogatory Nos. 3 and 15, and gave inadequate responses to Interrogatory Nos. 6 and 17, and (2) TMIX provided no supplemental answers to Interrogatory Nos. 3, 9, and 13, and inadequate responses to Interrogatory Nos. 6 and 7). To the extent the Tarsin Defendants have not supplemented their discovery responses to account for the withdrawal of their confidential/proprietary/trade secrets objection, the Court orders the Tarsin Defendants to provide complete responses to Plaintiff's first set of requests for production and Interrogatory Nos. 3, 6, 7, and 15 (by Defendants Cellura and Ghiselli) and Interrogatory Nos. 3, 5, 7, 9, and 13 (by TMIX). The Court acknowledges that the Tarsin Defendants have lodged other objections to some of these discovery requests, but as the Court explains below, those objections lack merit and are also overruled. B. The Tarsin Defendants’ Boilerplate Objections to the Requests for Production Plaintiff argues, and the Court agrees, that the Tarsin Defendants’ boilerplate objections to Plaintiff's first set of requests for production were improper. See Pruess v. Presbyterian Health Plan, Inc., 579 F. Supp. 3d 1235, 1240 (D.N.M. Jan. 12, 2022) (A party resisting discovery must specifically detail the reasons why each request is irrelevant or otherwise objectionable, and may not rely on boilerplate, generalized, conclusory, or speculative arguments); D.J. Simmons, Inc. v. Broaddus, 2001 WL 37125080, at *3 (D.N.M. Jul. 10, 2001) (“Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.”). Significantly, Plaintiff points out that the Frontiere Defendants produced numerous communications they had with the Tarsin Defendants about the financial status of TMIX, Plaintiff's investment, and plans for an initial public offering for TMIX. See Doc. 58 at 7–8. The Tarsin Defendants, however, failed to produce any of these documents. *4 Because the Tarsin Defendants have not presented any specific reasons beyond boilerplate objections, the Court orders the Tarsin Defendants to fully produce all documents responsive to Plaintiff's requests for production Nos. 5, 6, 8–11, 13–16, and 18–19, to the extent they have not already done so through supplementation. The Court notes that Plaintiff raises some concerns regarding whether the Tarsin Defendants have produced all relevant emails and/or other communications from Defendants Ghiselli and Cellura's corporate and personal email accounts. See Doc. 77 at 5, 7. The Court directs the Tarsin Defendants to review their prior discovery responses and produce all responsive documents or communications, including those that are in corporate or personal email accounts. C. Interrogatory No. 5 (Cellura & Ghiselli) and No. 4 (TMIX) These two interrogatories sought information concerning the Tarsin Defendants’ communications and meetings “with any person, including but not limited to Natasha Lyukevich” regarding the financial status of TMIX and the location of TMIX's assets and funds. See Doc. 58-1 at 12; Doc. 58-2 at 13; Doc. 58-3 at 11. The Tarsin Defendants lodged the same objection to both interrogatories, arguing that the interrogatories were “overly broad and not properly limited in scope” because they requested information pertaining to ‘any person.’ Id. The Court disagrees that the interrogatories are overly broad. Plaintiff alleges that Defendants induced him to invest in TMIX by allegedly making material misrepresentations regarding TMIX's value, earnings, and business plans. The interrogatories are particularly relevant to these allegations as well as the specific securities fraud claims Plaintiff has raised in this case. These interrogatories must necessarily be broad to state “any person” so that Plaintiff may ascertain what, if any, communications existed regarding the financial status of TMIX and whether there were other individuals besides TMIX's bookkeeper, Ms. Lyukevich, who had information relevant to Plaintiff's allegations and claims. Thus, the Tarsin Defendants’ objections to these interrogatories are overruled and they must supplement their answers to these interrogatories if they have not already done so. D. Interrogatory Nos. 6–8 (Cellura & Ghiselli) and Nos. 5-7 (TMIX) These interrogatories sought information regarding the Tarsin Defendants’ valuations of TMIX to Plaintiff and any other potential investors, plans for an initial public offering (“IPO”) for TMIX, why the IPO did not occur, as well as Defendants Cellura and Ghiselli's involvement in TMIX. See Doc. 77 at 6–7. The Tarsin Defendants did not respond to these interrogatories, indicating in their response brief that TMIX “never had a formal underwriting agreement with any banks or a valuation from any bank at the time of [Plaintiff's] investment.” See Doc. 71 at 4. But in the next sentence of their response, the Tarsin Defendants seemingly imply valuations were made because they state that “any ‘valuation’ provided to [the Frontiere Defendants] were [sic] for discussion purposes only, and dependent upon the successful acquisition of Lord Cultural Resources and capitalization of its Monumint Donor Block project on a best efforts basis.” Id. Further supporting the existence of valuations – even if they were informal in nature – as well as IPO discussions are the email and text communications produced by the Frontiere Defendants that Plaintiff referenced in the Motion to Compel. See Doc. 58 at 11. The Tarsin Defendants have not presented a valid objection to these interrogatories. Therefore, the Court orders the Tarsin Defendants to respond to these discovery requests to the extent they have not already done so. E. Discovery Regarding Tarsin Defendants’ Assets (Interrogatory No. 3 and Request for Production No. 7) *5 Finally, the Court addresses the Tarsin Defendants’ objections to providing information regarding their finances, as requested in Interrogatory No. 3 and Request for Production No. 7. See Doc. 58 at 12. Plaintiff argues that this information is discoverable because he is seeking punitive damages. Id. In response, the Tarsin Defendants argue that personal financial information for Defendants Ghiselli and Cellura is not discoverable because they are not personally liable for the alleged breach of the promissory note between Plaintiff and TMIX. See Doc. 71 at 5. As Plaintiff points out, both the securities fraud and common law fraud claims in this action provide avenues for individual liability for Defendants Cellura and Ghiselli given their positions within TMIX. See 15 U.S.C. § 78t (creating liability for certain “controlling persons” of entities who violate securities laws); NMSA 1978, § 58-13-509G. Although Plaintiff may be entitled to Defendants Cellura and Ghiselli's personal financial information, one of the dispositive motions currently pending before the Court is Plaintiff's motion seeking partial summary judgment on “derivative, or control person, liability against the Tarsin Defendants for the actions of Joseph and Nicholas Frontiere based on 15 U.S.C. § 78(t) (§ 20(a)) of the Federal Act and § 58-13C-509(G)(1) of the NM Act.” See Doc. 184 at 2. That motion also seeks a ruling on whether the Tarsin Defendants are “joint and severally liable for any primary liability of the Frontiere defendants because they are executives and directors of Tarsin under § 58-13C-509(G)(1) of the NM Act.” Id. Until a ruling is issued on Doc. 84, the Court will deny Plaintiff's discovery request without prejudice. Plaintiff may renew his request for this discovery if the Court determines that Defendants Cellura and Ghiselli can be held personally liable. F. Attorney's Fees and Costs Under Rule 37(a)(5), the Court finds that Plaintiff is entitled to attorney fees and costs associated with bringing the Motion to Compel. Within fourteen days of entry of this Order, the Court invites Plaintiff to submit an affidavit setting forth the fees and expenses incurred in connection with the motion. The Tarsin Defendants may lodge objections, if any, to the requested fees and expenses within fourteen days of service of the affidavit. IV. CONCLUSION For the reasons set forth above, it is ordered that: 1. Plaintiff's Motion to Compel (Doc. 58) is granted in part. 2. To the extent the Tarsin Defendants have not already provided the discovery at issue in the Motion to Compel through supplementation, the Tarsin Defendants must provide supplemental responses in accordance with this Order no later than fourteen days from entry of this Order. 3. If, upon review of the Tarsin Defendants’ supplemental responses, Plaintiff determines that the newly received discovery is relevant to the issues raised in the dispositive motions currently pending before the Court, Plaintiff may seek leave to file supplemental briefing in connection with the dispositive motions no later than fourteen days after receipt of the discovery. IT IS SO ORDERED.