Berlinger et al v. Wells Fargo, N.A. as Successor to Wachovia Bank, N.A.

Filing 45

ORDER granting in part and denying in part 34 The Plaintiffs Stacy Sue Berlinger a.k.a. Stacy O'Conner, Brian Bruce Berlinger, and Heather Anne Berlinger's Motion to Compel the Defendant to Provide Better Responses to Plaintiffs' In terrogatories. The Plaintiffs Stacy Sue Berlinger a.k.a. Stacy OConner, Brian Bruce Berlinger, and Heather Anne Berlinger's Motion to Compel Interrogatories 2, 3, 4, 5, 6, 7, 8, 9, and 21(a) and (b) is due to be GRANTED. The Plaintiffs Stacy Su e Berlinger a.k.a. Stacy O'Conner, Brian Bruce Berlinger, and Heather Anne Berlinger's Motion to Compel Interrogatories 10, 11, 12, 13, 17, 18, 19, 20, 22, and 23 is DENIED. The Defendant Wells Fargo has up to and including March 21, 2012, to file full and complete answers to Interrogatories 2, 3, 4, 5, 6, 7, 8, 9, and 21(a) and (b). Signed by Magistrate Judge Sheri Polster Chappell on 3/1/2012. (LMH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
STACEY SUE BERLINGER, as beneficiaries to
Rosa B. Schwiker Trust and all of its related trusts,
also known as STACEY BERLINGER
O'CONNOR, BRIAN BRUCE BERLINGER, ,
Plaintiffs,
-vs-

Case No. 2:11-cv-459-FtM-99SPC

WELLS FARGO, N.A.,AS SUCCESSOR TO
WACHOVIA BANK, N.A., as Corporate Trustee to
the Rosa B. Schweiker Trust, and all of its related
trusts ,
Defendant.
______________________________________

ORDER
This matter comes before the Court on The Plaintiffs Stacy Sue Berlinger a.k.a. Stacy
O’Conner, Brian Bruce Berlinger, and Heather Anne Berlinger’s Motion to Compel the Defendant
to Provide Better Responses to Plaintiffs’ Interrogatories (Doc. #34) filed on January 9, 2012. The
Defendant filed its Response in Opposition (Doc. # 39) on January 26. 2012. The Motions are fully
briefed and ripe for the Court’s review.
The Federal Rules state that, “[t]he party upon whom the request [for production] is served
shall serve a written response within 30 days after the service of the request.” Fed. R. Civ. P. 34(b).
Likewise, a party upon whom interrogatories have been served has 30days to respond either by filing
answers or objections to the propounded interrogatories. Fed. R. Civ. P. 33(b). If the serving party
does not receive a response to their interrogatories and request for production, then the serving party
may request an order compelling disclosure. Fed. R. Civ. P. 37(a). Whether or not to grant the

motion to compel is at the discretion of the trial court. Commercial Union Insurance Co. v.
Westrope, 730 F.2d 729, 731 (11th Cir. 1984).
October 12, 2011, Plaintiffs’ Interrogatories were propounded and served on the Defendant
Wells Fargo Bank, Individually and as Successor to Wachovia Bank, N.A. On November 14, 2011,
the day that Defendant’s responses to Plaintiffs’ Interrogatories were due, Defendant filed a Motion
with this Court moving for an enlargement of time to respond to the Plaintiffs’ Interrogatories. This
Court granted the extension on November 17, 2011, providing the Defendant with an additional
thirty (30) days. On, December 14, 2011, Defendant served a response to Plaintiffs’ Interrogatories.
The Plaintiffs now move the Court to Compel better responses to interrogatories numbers 2, 3, 4,
5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21a, 21b, 22, and 23.
The Court shall review the interrogatories in order. The Court notes that the Defendant filed
five (5) general objections to the interrogatories. The Defendant states in pertinent part “Defendant
adopts and incorporates by reference each of the following General Responses and Objections to the
extent applicable to any of its specific responses below to Plaintiff’s individual Requests.” General
or blanket objections should be used only when they apply to every [discovery request at issue.]”
Desoto Health & Rehab, L.L.C. v. Philadelphia Indem. Ins. Co., 2010 WL 2330286 *1 (M.D. Fla.
June 10, 2010) (citing Jackson v. Geometrica, Inc., 2006 WL 213860 *1 (M.D. Fla. January 21,
2006) (citing M.D. Fla. Discovery Rule, pp. 11, 15). Otherwise, “[s]pecific objections should be
matched to specific” interrogatories or requests for production. Desoto Health & Rehab, 2010 WL
2330286 at *1 (citing Jackson, 2006 WL 213860 at *1); Fed. R. Civ. P. 33(b) and 34(b).
Additionally, “[w]hen ruling upon a motion to compel, the court generally considers [only] those

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objections which have been timely asserted and relied upon in response to the motion. Jackson, 2006
WL 213860 at * 1.
Here, the Defendant states the general objections apply to the extent applicable to any
specific responses without designating which response or how each objection applies to the said
response(s). Thus, objections that are simply made as general blanket objections will be overruled
by the Court.
Interrogatory number 2 asks for the Defendant to state the full names, addresses, profession,
official position and relationship with the party to whom the interrogatories are directed of those
people consulted with and/or utilized when formulating responses to these interrogatories. The
Defendant objected stating “Wells Fargo objects to this Interrogatory to the extent it seeks
documents protected by the attorney-client privilege and/or the work product doctrine.” Naming the
individual that answered or that were tasked with gathering the information to answer the
interrogatories is not protected by the attorney-client privilege nor is it protected attorney work
product. The objection is overruled and the Motion to Compel Interrogatory number 2 is due to be
granted.
Interrogatory number 3 asks the Defendant to “[p]lease list any and all records, notes, but not
limited to, documents reviewed and/or utilized when formulating responses to these interrogatories.”
The Defendant responded
Wells Fargo objects to this Interrogatory to the extent it seeks documents
protected by the attorney-client privilege and/or the work product doctrine.
Wells Fargo objects to this Interrogatory since it seeks access to records
required to be kept confidential by Wachovia pursuant to Section 655.059,
Florida Statutes. Moreover, Wells Fargo objects to this Interrogatory on the
grounds that it invades the privacy rights of non-parties as set forth in the
Florida Constitution.
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The Defendant’s objection is not well taken. Under Fla. Stat. § 655.059(e), confidential bank
records may be produced for inspection upon the order of a court of competent jurisdiction. Further
the request merely asks that the Defendant disclose what documents were used to answer the
interrogatories and did not ask for the documents to be produced. The request is asking for factual
information and not confidential or protected privileged information. Thus, the Motion is due to be
granted as to Interrogatory number 3.
Interrogatory number 4 asks the Defendant to
Please state the full names, addresses, profession, official position and
relationship with the party to whom the interrogatories are directed of those
individual(s) involved in the decision to have Wachovia Bank, N.A. pay
$2,000,000.00—through the purchase of a one third interest in property
owned by Bruce D. Berlinger and located at 550 Banyan Blvd., Naples,
Florida 34102—to Sue Casselberry for the equitable distribution of marital
Assets in a divorce settlement between Sue Casselberry and Bruce D.
Berlinger.
The Defendant responded
Wells Fargo objects to this interrogatory to the extent it seeks documents
protected by the attorney-client privilege and/or the work product doctrine.
Wells Fargo objects to this Interrogatory since it seeks access to records
required to be kept confidential by Wachovia pursuant to Section 655.059,
Florida Statutes. Moreover, Wells Fargo objects to this Interrogatory on the
grounds that it invades the privacy rights of non-parties as set forth in the
Florida Constitution. Wells Fargo objects to this Interrogatory as vague and
ambiguous.

The Defendant’s objection is not well taken. The Interrogatory asks for the names of the individuals
that made the decision to purchase a $2,000,000.00 interest in the home of Sue Casselberry. Those
names are not protected by the attorney-client nor the work product privilege. As such, the Motion
is due to be granted as to number 4.
Interrogatory number 5 asks the Defendant to
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Please state the full names, addresses, profession, official position and
relationship with the party to whom the interrogatories are directed of those
individual(s) who authorized or approved Wachovia Bank, N.A. to pay
$2,000,000.00—through the purchase of a one third interest in property
owned by Bruce D. Berlinger and located at 550 Banyan Blvd., Naples,
Florida 34102— to Sue Casselberry for the equitable distribution of marital
assets in a divorce settlement between Sue Casselberry and Bruce D.
Berlinger.

The Defendant objected to this interrogatory stating
Wells Fargo objects to this interrogatory to the extent it seeks documents
protected by the attorney-client privilege and/or the work product doctrine.
Wells Fargo objects to this Interrogatory since it seeks access to records
required to be kept confidential by Wachovia pursuant to Section 655.059,
Florida Statutes. Moreover, Wells Fargo objects to this Interrogatory on the
grounds that it invades the privacy rights of non-parties as set forth in the
Florida Constitution. Wells Fargo further objects to this Interrogatory as
vague and ambiguous.
The Defendant’s objection is overruled. Interrogatory number 5 takes Interrogatory number 4 one
step further and asks for the names of any individual that may have authorized the distribution of
funds from the respective trust funds for the purchase of a $2,000,000.00 interest in the home of
Bruce D. Berlinger. Thus, the Motion is due to be granted.
Interrogatory number 6 asks the Defendant to
Please state the reasons for your decision to authorize or approve Wachovia
Bank, N.A. to pay $2,000,000.00—through the purchase of a one third
interest in property owned by Bruce D. Berlinger and located at 550 Banyan
Blvd., Naples, Florida 34102—to Sue Casselberry for the equitable
distribution of marital assets in a divorce settlement between Sue Casselberry
and Bruce D. Berlinger.
The Defendant objected to the request

Wells Fargo objects to this interrogatory to the extent it seeks documents
protected by the attorney-client privilege and/or the work product doctrine.
Wells Fargo objects to this Interrogatory since it seeks access to records
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required to be kept confidential by Wachovia pursuant to Section 655.059,
Florida Statutes. Moreover, Wells Fargo objects to this Interrogatory on the
grounds that it invades the privacy rights of non-parties as set forth in the
Florida Constitution. Wells Fargo further objects to this Interrogatory as
vague and ambiguous.
The interrogatory goes to the heart of the matter and should therefore be answered. The general
objection is overruled.
Request number 7 asks Defendant to
state the full names, addresses, profession, official position and relationship
with the party to whom the interrogatories are directed of those individual(s)
involved in the decision to have Wachovia Bank, N.A. use $1,318,356.50
from principal from the Rosa B. Schweiker Trust in order to pay the
$2,000,000.00-through the purchase of a one third interest in property owned
by Bruce D. Berlinger and located at 550 Banyan Blvd., Naples, Florida
34102-to Sue Casselberry for the equitable distribution of marital assets in a
divorce settlement between Sue Casselberry and Bruce D. Berlinger.

The Defendant objected as follows:
Wells Fargo objects to this interrogatory to the extent it seeks documents
protected by the attorney-client privilege and/or the work product doctrine.
Wells Fargo objects to this Interrogatory since it seeks access to records
required to be kept confidential by Wachovia pursuant to Section 655.059,
Florida Statutes. Moreover, Wells Fargo objects to this Interrogatory on the
grounds that it invades the privacy rights of non-parties as set forth in the
Florida Constitution. Wells Fargo further objects to this Interrogatory as
vague and ambiguous.
The Plaintiff did not ask for the production of documents but only the names, addresses, profession,
official position and relationship with the party to whom the interrogatories are directed of those
individual(s) involved in the decision to have Wachovia Bank, N.A. use $1,318,356.50 for the
purchase of a one third interest in Bruce Berlinger’s house. As such, the attorney-client privilege
is inapplicable as well as any argument that the information is protected from disclosure by the
Florida Statutes.
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Interrogatory number 8 asks
Please state the full names, addresses, profession, official position and
relationship with the party to whom the interrogatories are directed of
those individual(s) who authorized or approved Wachovia Bank, N.A.
paying $1,318,356.50 from principal from the Rosa B. Schweiker Trust
in order to pay the $2,000,000.00—through the purchase of a one third
interest in property owned by Bruce D. Berlinger and located at 550
Banyan Blvd., Naples, Florida 34102—paid to Sue Casselberry for the
equitable distribution of marital assets in a divorce settlement between
Sue Casselberry and Bruce D. Berlinger.
The Defendant filed the same objection. Again the objection is not well taken. The Plaintiff is only
asking for names and not document production therefore, the Defendant’s objections are overruled.
Interrogatory number 9
Please state the reasons for your decision to authorize or approve Wachovia
Bank, N.A. to pay $1,318,356.50 from principal from the Rosa B. Schweiker
Trust in order to pay the $2,000,000—through the purchase of a one third
interest in property owned by Bruce D. Berlinger and located at 550 Banyan
Blvd., Naples, Florida 34102—paid to Sue Casselberry for the equitable
distribution of marital assets in a divorce settlement between Sue Casselberry
and Bruce D. Berlinger.

The Defendant responded
Wells Fargo objects to this interrogatory to the extent it seeks documents
protected by the attorney-client privilege and/or the work product doctrine.
Wells Fargo objects to this Interrogatory since it seeks access to records
required to be kept confidential by Wachovia pursuant to Section 655.059,
Florida Statutes. Moreover, Wells Fargo objects to this Interrogatory on the
grounds that it invades the privacy rights of non-parties as set forth in the
Florida Constitution. Wells Fargo further objects to this Interrogatory as
vague and ambiguous.
The Defendant’s objection is not well taken. The interrogatory goes to the heart of the matter
and should therefore be answered. The general objection is overruled.

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Regarding Interrogatories numbers 10, 11, 12, 13, 17, 18, 19 20, 22, and 23, the Defendant
objected on the grounds of the attorney client privilege, statutory privilege, or that the interrogatory
was vague and ambiguous. However, the Defendant then answered the questions. The Defendant
cannot object and then provide an answer notwithstanding the objection. In such instances, the
objections are waived with the exception of the attorney client privilege. If the Defendant wishes
to make an objection based upon the attorney client privilege, then the Defendant can supply the
Court and Plaintiff with a privilege log with the basis for the privilege. Otherwise, the answers
provided in response to Interrogatories 10, 11, 12, 13, 17, 18, 19 20, 22, and 23 stand as written.
Therefore, since the Defendant answered 10, 11, 12, 13, 17, 18, 19, 20, 22, and 23, the Motion is due
to be denied regrading those interrogatories.
Finally, Interrogatory number 21(a) and (b) states
Please state the known monthly amount(s) that were distributed for the
purposes of paying the alimony or support obligations of Bruce D. Berlinger.
A) Were budgets ever created by Wachovia bank, N.A., and/or Wells Fargo
Bank, N.A., that reflect the amounts determined to be necessary in order to
pay those alimony or support payments referenced above?
B) If so, who assembled those budgets and were/are they kept in the usual
course of business and how are they archived so that they can be identified
and then produced through a request for production.

The Defendant objected to parts (a) and (b) of the Interrogatory stating
Wells Fargo objects to this Interrogatory since it seeks access to records
required to be kept confidential by Wachovia pursuant to Section 655.059,
Florida Statutes. Moreover, Wells Fargo objects to this Interrogatory on the
grounds that it invades the privacy rights of non-parties as set forth in the
Florida Constitution.
The Defendant’s objection is overruled. Under Fla. Stat § 655.059(e) the confidential materials may
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be ordered produced by a court of competent jurisdiction. Furthermore, the Court has issued a
Confidentiality Order (Doc. # 44), to protect the privacy interests of any non-parties that may be
involved. The Motion to Compel 10, 11, 12, 13, 17, 18, 19, 20, 22, and 23 is due to be denied.
Accordingly, it is now
ORDERED:
The Plaintiffs Stacy Sue Berlinger a.k.a. Stacy O’Conner, Brian Bruce Berlinger, and Heather
Anne Berlinger’s Motion to Compel the Defendant to Provide Better Responses to Plaintiffs’
Interrogatories (Doc. #34) is GRANTED in part and DENIED in part.
(1) The Plaintiffs Stacy Sue Berlinger a.k.a. Stacy O’Conner, Brian Bruce Berlinger, and
Heather Anne Berlinger’s Motion to Compel Interrogatories 2, 3, 4, 5, 6, 7, 8, 9, and 21(a) and (b)
is due to be GRANTED.
(2) The Plaintiffs Stacy Sue Berlinger a.k.a. Stacy O’Conner, Brian Bruce Berlinger, and
Heather Anne Berlinger’s Motion to Compel Interrogatories 10, 11, 12, 13, 17, 18, 19, 20, 22, and
23 is DENIED.
(4) The Defendant Wells Fargo has up to and including March 21, 2012, to file full and
complete answers to Interrogatories 2, 3, 4, 5, 6, 7, 8, 9, and 21(a) and (b).
DONE AND ORDERED at Fort Myers, Florida, this

Copies: All Parties of Record
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1st

day of March, 2012.