WESTCHESTER SURPLUS LINES INS. CO., et al., Plaintiffs, v. PORTOFINO MASTERS HOMEOWNERS ASSOC., INC., et al., Defendants Case No. 3:23cv453-MCR-HTC United States District Court, N.D. Florida Filed January 03, 2024 Counsel Alexandra Jordan Schultz, Cozen O'Connor, West Palm Beach, FL, Evan Michael Holober, Cozen O'Connor, Miami, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiffs Westchester Surplu.S. Lines Insurance Company, Arch Specialty Insurance Company, Axis Surplu.S. Insurance Company, Evanston Insurance Company, Aspen Specialty Insurance Company, Maxum Indemnity Company. Evan Michael Holober, Cozen O'Connor, Miami, FL, Taylor Layne Davis, Clyde & Co. U.S. LLP, Atlanta, GA, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiff Endurance American Specialty Insurance Company. Jack Roy Reiter, Jordan Scott Kosches, Gray Robinson PA, Miami, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiff Colony Insurance Company. Brian Patrick Henry, Hagen P. Brody, Rolfes Henry Co., LPA, Sarasota, FL, David Crawford Bibb, Rolfes Henry Co., LPA, Orlando, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiffs Independent Specialty Insurance Company, Lloyds of London. Brian Patrick Henry, Rolfes Henry Co., LPA, Sarasota, FL, David Crawford Bibb, Rolfes Henry Co., LPA, Orlando, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiff Interstate Fire & Casualty Company. Aaron Phillip Konstam, Bryan Matthew Walsh, Kennedys CMK LLP, Miami, FL, Eric Andrew Hiller, Hinshaw & Culbertson LLP, Coral Gables, FL, John David Dickenson, Cozen O'Connor, Boca Raton, FL, for Plaintiff James River Insurance Company. Aaron Phillip Konstam, Kennedys CMK LLP, Miami, FL, Elizabeth Salinas, Mozley Finlayson & Loggins LLP, Orlando, FL, Wayne David Taylor, Mozley Finlayson & Loggins LLP, Atlanta, GA, for Plaintiff Landmark American Insurance Company. Aaron Phillip Konstam, Kennedys CMK LLP, Miami, FL, Amanda Dawn Proctor, Carlton Fields PA, Atlanta, GA, Heidi Hudson Raschke, Carlton Fields PA, Tampa, FL, Madison Elizabeth Wahler, Carlton Fields PA, Orlando, FL, for Plaintiff Homeland Insurance Company of New York. Aaron Tero McCurdy, Edward P. Fleming, Matthew Adam Bush, McDonald Fleming LLP, Pensacola, FL, Charles Franklin Beall, Jr., Moore Hill & Westmoreland PA, Pensacola, FL, for Defendant Portofino Master Homeowners Association Inc. Aaron Tero McCurdy, Edward P. Fleming, Matthew Adam Bush, McDonald Fleming LLP, Pensacola, FL, Charles Franklin Beall, Jr., Moore Hill & Westmoreland PA, Pensacola, FL, Lindsey Miller-Hailey, Tallahassee, FL, for Defendants Portofino Tower One Homeowners Association at Pensacola Beach Inc., Portofino Tower Two Homeowners Association at Pensacola Beach Inc., Portofino Tower Three Homeowners Association at Pensacola Beach Inc., Portofino Tower Four Homeowners Association at Pensacola Beach Inc., Portofino Tower Five Homeowners Association at Pensacola Beach Inc. Cannon, Hope T., United States Magistrate Judge ORDER *1 This matter is before the Court on the Plaintiff Insurers' motion for an order compelling production of documents from non-party Claims Consultants Group (“CCG”).[1] Doc. 156. After considering the motion to compel and CCG's response,[2] Doc. 149, the Court finds the motion should be GRANTED IN PART. I. BACKGROUND As detailed in the Court's prior discovery order, Doc. 153, this action arises out of a dispute over an Appraisal Award determining the amount of damages sustained by the Portofino Towers during Hurricane Sally to be approximately $187,000,000.[3] The Award was entered after a two-week hearing, held in August 2022 before the appraisal panel, which consisted of the appraiser selected by the Insurers, Patrick Lewis, the appraiser selected by the Defendants, George Keys, and the umpire selected by the two appraisers, Jon Doan.[4] The Insurers seek to challenge the Award on several grounds, including that coverage is void because of fraud, failure to cooperate, or failure to give notice. The Insurers also seek to vacate the Award under Fla. Stat. § 682.13.[5] *2 On September 14, 2023, the Insurers issued a subpoena duces tecum to CCG.[6] The subpoena contains 12 requests essentially seeking all documents in CCG's possession, custody, or control dealing with damage to the Portofino Towers or the appraisal process. This includes information exchanged between CCG and third parties and CCG's own notes, estimates, and assessments. Most of the requests cover a period from September 16, 2020, when Hurricane Sally made landfall, to the present day. CCG responded to the subpoena with objections and did not produce any documents, thus prompting the instant motion to compel. II. DISCUSSION The issuance of a subpoena to a third party is governed by Rule 45. See Fed. R. Civ. P. 45. As with any discovery in a civil matter, the information sought in the subpoena must be relevant to the case. See Nat'l Staffing Sols., Inc. v. Sanchez, 2022 WL 19355853, at *2 (M.D. Fla. Sept. 12, 2022) (“The scope of discovery under Rule 45 is the same as the scope of discovery under Federal Rule of Civil Procedure 26.”). Additionally, the party issuing the subpoena must take reasonable steps to avoid imposing undue burden or expense on the subpoenaed party. See Fed. R. Civ. P. 45(d)(1). CCG objects to the subpoena on the grounds that it seeks irrelevant information and is unduly burdensome. Although the Insurers have the burden of establishing relevance, Sanchez, 2022 WL 19355853, at *2, CCG has the burden of demonstrating that compliance with the subpoena is unduly burdensome, and it has attempted to meet its burden with an affidavit from Doan, Fadalaa v. Life Auto. Prods, Inc., 258 F.R.D. 501, 504 (M.D. Fla. 2007). For the reasons set forth below, the Court agrees that much of the information sought is irrelevant but finds that the subpoena can be modified to exclude irrelevant requests. Additionally, the Court finds CCG has not met its burden of showing compliance is unduly burdensome, particularly when considering the modifications imposed herein. A. Relevancy Pursuant to Federal Rule of Civil Procedure 26(b), “[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. In determining whether discovery is relevant, the Court must consider the allegations, claims, and defenses raised. See Jordan v. Comm'r, Miss. Dept of Corr., 947 F.3d 1322, 1329 (11th Cir. 2020) (citing Fed. R. Civ. P. 26(b)(1)). The Plaintiff Insurers argue the information sought in the subpoena is relevant for two reasons. First, the parties dispute the amount of loss. Second, the Insurers are entitled to discovery regarding whether grounds exist to vacate the Award. The Court finds the Insurers' first ground has no merit because it is well settled that once the appraisal process is invoked, it is the province of the appraiser to determine the amount of loss and the province of the court to determine coverage. See State Farm Fire & Cas. v. Licea, 685 So. 2d 1285, 1287-88 (Fla. 1996). A court cannot “second guess the appraisers” on the amount of the loss. See e.g., Karsel Holdings, L.L.C. v. Scottsdale Ins. Co., 2023 WL 2087935, at *6 (S.D. Fla. Jan. 18, 2023), appeal dismissed sub nom. Karsel Holdings, LLC v. Scottsdale Ins. Co., 2023 WL 4058290 (11th Cir. May 2, 2023). A court also cannot “substitute its judgment as to how the panel should have conducted the appraisal process.” Three Palms Pointe, Inc. v. State Farm Fire & Cas. Co., 362 F. 3d 1317, 1319 (11th Cir. 2004).[7] A court cannot set aside an award for mere errors of judgment either as to the law or set of facts. See A.L. Gary & Assocs., Inc. v. Travelers Indem. Co. of Conn., 2008 WL 11333729, at *7 (S.D. Fla. Aug. 27, 2008). And, even if the appraisal panel made a mistake, a court cannot undo it. See Karsel, 2023 WL 2087935, at *6. Once “a court decides that coverage exists for a claim under a policy then the dollar value agreed upon under the appraisal process will be binding upon both parties.” Island Roofing & Restoration LLC v. Empire Indem. Ins. Co., 2022 WL 4305922, at *5 (M.D. Fla. Sept. 19, 2022). *3 As the Insurers have done in this action, an insurer may seek to avoid an appraisal award by relying on defenses going to a lack of coverage or a violation of one of the standard policy conditions. See Mont Claire at Pelican Marsh Condo. Ass'n, Inc. v. Empire Indem. Ins. Co., 2022 WL 3701584, at *3 (M.D. Fla. Aug. 11, 2022), report and recommendation adopted, 2022 WL 3700833 (M.D. Fla. Aug. 26, 2022). As CCG points out, however, nothing in Doan's files is relevant to the defenses raised by the Insurers. The information sought is not relevant to (1) whether the Defendant HOAs provided sufficient notice under the Policies, (2) whether the Defendant HOAs failed to cooperate with the Insurers, or (3) whether the Defendant HOAs committed fraud in the claims process. Tellingly, the Insurers do not argue the information sought is relevant to their coverage defenses. Instead, the Insurers' requests for everything in Doan's files related to the properties, the Award, or the Appraisal to date, go to the basis for the Appraisal Award. However, that “sort of inquiry behind the appraisal award is ... not permitted by Florida law.” First Protective Ins. Co. v. Hess, 81 So. 3d 482, 485 (Fla. 1st DCA 2011) (“After the parties have gone through the appraisal process, the trial court may not consider evidence beyond the face of the appraisal award.”); see also, Baptist Coll. of Fla., Inc. v. Church Mut. Ins. Co., SI, No. 5:22CV158-MW/MJF, 2023 WL 4358781, at *4-5 (N.D. Fla. March 7, 2023) (concluding that discovery to the appraiser and umpire “do not concern facts material to the claim at issue”). Thus, regardless of whether the information sought is relevant to the “amount of loss,” the amount of loss is not an issue to be decided by the Court. The Court also disagrees with the Insurers' second relevancy argument – that they should be allowed to discover whether a basis exists for vacating the Award. Allowing discovery, particularly to a nonparty, to be used for that purpose would be sanctioning a fishing expedition.[8] That said, the Court finds at least some of the information sought goes to the actual grounds the Insurers raise for vacating the Award and, thus, is discoverable. Under Florida law, a party to an appraisal award may move to vacate the award based only on certain statutorily authorized grounds. See Fla. Stat. § 682.13(1). Here, the Insurers argue the Defendant HOAs, Keys, and their experts fraudulently represented the extent of the damages sustained by the Portofino Towers and engaged in improper conduct during the appraisal process, including withholding critical documents. Doc. 116 at 19; see § 682.13(a). The Insurers further contend Doan refused to postpone the hearing upon a showing of sufficient cause and refused to hear evidence material to the controversy, thereby substantially prejudicing the Insurers' rights. Id.; see § 682.13(d). Given these allegations, the Court finds communications between Doan and the parties (as well as their appraisers and experts), and documents provided by the parties to CCG as part of the appraisal process are relevant. The Court agrees with the Insurers that documents CCG received from the appraisers are relevant to whether, as the Insurers contend, Doan made his decision without the benefit of purportedly critical documents. See Marlowe v. Ironshore Specialty Ins. Co., 2020 WL 736628, at *4 (M.D. Fla. Jan. 29, 2020), report and recommendation adopted, 2020 WL 736000 (M.D. Fla. Feb. 13, 2020) (“The only other reason subsection (d) might support this Court vacating the award would be if the panel “refused to hear evidence material to the controversy.”). The documents and communications CCG received from the parties would also be relevant to whether Defendant HOAs, Keys, or their experts made any fraudulent misrepresentations to Doan during the appraisal process. *4 Although CCG argues any documents it received from Keys or Lewis are already in the Insurers' possession, the Insurers nonetheless have a right to confirm this fact. In other words, they have a right to confirm that what they thought CCG had, was in fact, what it had. Thus, the Court finds Request No. 8, seeking “[a]ny and all communications, correspondence, emails, letters, text messages, or any other communication between you and Keys Consultants and/or Lewis Claims Solutions relating to the Properties and/or the Appraisal” to be relevant. To the extent Request Nos. 2, 3, 5, 6, and 7 seek information provided to CCG by the parties (including their appraisers, experts, consultants, and subcontractors) for the appraisal process, that information is also relevant and CCG shall produce responsive documents. CCG, however, does not have to produce other information sought by those requests, including producing documents obtained by CCG independently or after the entry of the Appraisal Awards. B. Unduly Burdensome CCG also argues that responding to the subpoena is unduly burdensome. In support of this position, CCG relies on the affidavit from Doan, in which he states that “the number of documents and photographs therein would total in the hundreds of thousands.” Doc. 149 at 10. As an initial matter, the Court finds such a statement to be too conclusory to meet CCG's burden of establishing the subpoena is unduly burdensome. See e.g., Chubb Integrated Sys. Ltd. v. Nat'l Bank of Washington, 103 F.R.D. 52, 60 (D.D.C. 1984) (“Plaintiff's objections do not reveal the nature of its burden. Without more, this Court cannot conclude that Chubb will be unduly burdened by the interrogatories.”). That statement, for example, does not tell the Court (1) whether those documents are in a centrally located place, (2) whether those documents are in, or can be, produced in electronic format, (3) the cost of the production to CCG, (4) the hours necessary to review or gather the documents, or (5) the hurdles, if any, CCG must jump through to produce relevant documents. See e.g., Henderson v. Holiday CVS, LLC., 269 F.R.D. 682, 686 (S.D. Fla. 2010) (“an objection must show specifically how a discovery request is overly broad, burdensome or oppressive, by submitting evidence or offering evidence which reveals the nature of the burden”). Regardless, now that the Court has narrowed the subpoena to one request, the Court finds the subpoena, as modified, is not unduly burdensome. Likewise, given the Court's ruling, the Court finds CCG and Doan's motion to strike, Doc. 155, the Insurers' Amended Notice of Filing Supplemental Exhibit in Support of Motion to Compel, Doc. 154, as an improper reply, should be DENIED AS MOOT. Accordingly, it is ORDERED: 1. The Insurers' motion to compel, Doc. 156, is GRANTED IN PART. Within thirty (30) days of this Order, CCG shall produce documents responsive to Request No. 8 of the subpoena. CCG shall also produce documents responsive to Request Nos. 2, 3, 5, 6, and 7, to the extent those requests seek information provided by the parties (including their appraisers, experts, consultants, and subcontractors) to CCG for the appraisal process.[9] 2. CCG and Doan's motion to strike, Doc. 155, is DENIED AS MOOT. DONE AND ORDERED this 3rd day of January, 2024. Footnotes [1] The motion was initially filed in the Middle District of Florida, transferred to this district, and assigned a miscellaneous case number, 3:23-mc-54-MCR. That miscellaneous action, however, has been consolidated with this declaratory judgment action. The motion is docketed as Doc. 156 in this action and as Doc. 1 in the miscellaneous action. [2] The response in opposition was filed by CCG and Jon Doan. As set forth herein, Doan was the umpire selected by the appraisers and is one of the partners of CCG. [3] The Appraisal Award consists of seven separate awards issued between February 15, 2023, and July 16, 2023. Doc. 104 at 38-40. [4] The Policies at issue contain an “Appraisal” provision, which includes in pertinent part that (1) either the Insured or the Insurer may demand an appraisal 60 days after the Insurer's receipt of the proof of loss if the parties cannot agree as to the amount of loss; (2) the Insured and the Insurer shall each select a competent and disinterested appraiser, who shall jointly select a competent and disinterested umpire; (3) the appraisers shall appraise the loss, stating separately the value at the time of loss and the amount of loss; (4) if the appraisers cannot agree, they shall submit their differences to the umpire; and (5) an award in writing by any two shall determine the amount of loss. See Doc. 104, at ¶ 34. The Defendant HOAs demanded an appraisal on some of the Insurers in December 2020. [5] Although appraisal proceedings should be conducted in accordance with policy provisions, Florida state and federal courts have consistently held that Florida's Arbitration Code, Fla. Stat. § 682.13, provides the grounds for vacating appraisal awards. See e.g., Villas at the Hammocks v. Empire Indem. Ins. Co., 2011 WL 13223726, at *2 (S.D. Fla. Apr. 5, 2011). In the absence of one of the reasons set forth in the statute, “a court may not vacate the award.” Id. Section 682.13 also provides the basis for confirming an appraisal award. See Mont Claire at Pelican Marsh Condo. Ass'n, Inc. v. Empire Indem. Ins. Co., 2021 WL 3476406, at *6 (M.D. Fla. May 24, 2021). [6] Although only six of the Plaintiff Insurers issued the subpoena, the other Plaintiff Insurers also join in the motion to compel. [7] In Three Palms, the Eleventh Circuit interpreted the Florida Supreme Court's decision in Licea as allowing an insurer to dispute coverage for “loss as a whole,” meaning that an insurer could not challenge coverage for specific elements of the award. Several Florida state appellate courts, however, have disagreed with the Eleventh Circuit's interpretation of Licea, and Florida district courts are split on the issue. See e.g., Liberty Am. Ins. Co. v. Kennedy, 890 So. 2d 539 (Fla. 2d DCA 2005) (disagreeing with Three Palms); see also, Mont Claire at Pelican Marsh Condo. Ass'n, Inc. v. Empire Indem. Ins. Co., 2022 WL 3701584, at *3 (M.D. Fla. Aug. 11, 2022) (recognizing district split on whether an insurer is limited in the defenses that it may assert following an appraisal award). Courts in this District have found Three Palms to be binding authority. See Wilson v. Fed. Ins. Co., 5:19-cv-371-RH/MJF, 2021 WL 12133081, at *2 (N.D. Fla. Aug. 24, 2021); Baptist Coll. of Fla., Inc. v. Church Mut. Ins. Co., SI, 656 F. Supp. 3d 1290, 1294 (N.D. Fla. 2023) (disagreeing with the Three Palms decision, but nonetheless adhering to it). [8] Relying on Royal Hospitality Corp. v. Underwriters at Lloyd's, 2022 WL 18436754 (S.D. Tex. Jan. 4, 2022), the Insurers argue they should be able to see “whether grounds exist to set aside” the Award. Doc. 156 at 8. Royal, however, was decided under Texas law, not Florida law, which, as discussed above, severely restricts the basis on which an appraisal award may be vacated. Regardless, despite finding the information sought was relevant, the Royal court nonetheless limited the subpoenas to requests for communications between the appraiser and the umpire which relate to the litigation – which is the same limitation imposed by the Court here. See id. [9] CCG also argues the information is confidential, but given the narrow scope of the production required, the Court finds that argument to be moot.