Centennial Bank v. ServisFirst Bank Inc. et al

Filing 165

ORDER granting 88 Plaintiff's Motion to Compel Complete Responses to Subpoenas to Produce Documents Served on ServisFirst Employees and denying 124 Plaintiff's Motion to Compel Bryant to Provide Better Responses to Centennial Bank's First Request for Production. Signed by Magistrate Judge Julie S. Sneed on 7/1/2016. (LBL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CENTENNIAL BANK,
Plaintiff,
v.

Case No: 8:16-cv-88-T-36JSS

SERVISFIRST BANK INC. and
GREGORY W. BRYANT,
Defendants.
___________________________________/
ORDER
THIS MATTER is before the Court on Plaintiff Centennial Bank’s Motion to Compel
Complete Responses to Subpoenas to Produce Documents Served on ServisFirst Employees
(“Non-Party Motion”) (Dkt. 88) and Plaintiff Centennial Bank’s Motion to Compel Bryant to
Provide Better Responses to Centennial Bank’s First Request for Production (“Bryant Motion”)
(Dkt. 124). On June 28, 2016, a hearing was held on the Non-Party Motion and the Bryant Motion.
Upon consideration of the parties’ oral arguments on the Non-Party Motion and the Bryant Motion
at the hearing and for the reasons stated on the record at the hearing, the Non-Party Motion is
granted and the Bryant Motion is denied.
BACKGROUND
A.

Overview
This case concerns alleged violations of the non-compete provisions in the employment

contracts of several of Plaintiff Centennial Bank’s (“Centennial”) former employees. Centennial
acquired Bay Cities Bank (“Bay Cities”) in October 2015. (Dkt. 53 at ¶ 7(b).) In connection with
the acquisition, Centennial retained several former Bay Cities employees to aid in the integration
of its Tampa Bay area branches, specifically Defendant Gregory W. Bryant, the former CEO of

Bay Cities, Patrick Murrin, former Chief Risk Manager and Executive Vice President of Bay
Cities, and Gwynn Davey, Bay Cities’ former Market President of Hillsborough County. (Id. at
¶¶ 13, 26–27.) Mr. Bryant, Mr. Murrin, and Ms. Davey signed employment contracts with
Centennial that included provisions governing the maintenance of Centennial’s confidential
information; noncompetition; non-solicitation of Centennial’s customers; and non-solicitation of
Centennial’s employees. (Id. at ¶¶ 24–25; Ex. 6–8.)
On December 31, 2015, after Centennial’s acquisition of Bay Cities, Mr. Bryant, Mr.
Murrin, and Ms. Davey simultaneously resigned from Centennial and, in January 2016, began
working for Defendant ServisFirst Bank (“ServisFirst”). (Id. at ¶¶ 42–44, 49, 53.) Shortly
thereafter, on January 14, 2016, Centennial filed suit against ServisFirst and Mr. Bryant
(collectively, “Defendants”). (Dkt. 1.)
B.

Non-Party Motion
In the Non-Party Motion, Centennial seeks to compel Ms. Davey and Mr. Murrin (together,

“Non-Parties”) to produce documents responsive to its subpoenas. (Dkt. 88 at ¶ 7.) The
information Centennial seeks from the Non-Parties are: (1) Centennial’s confidential information
that the Non-Parties allegedly forwarded to their personal email accounts while still employed by
Centennial, which Centennial contends is contained in the Non-Parties’ personal email accounts,
and (2) indemnification agreements between the Non-Parties and ServisFirst, executed on
December 31, 2015.
With regard to the confidential information Centennial contends is in the Non-Parties’
personal email accounts, Centennial seeks an order compelling the Non-Parties to produce the hard
drives of their personal devices for inspection and mirror imaging. (Id. at 18–21.) This measure
is warranted, Centennial argued, because there is a question of whether the Non-Parties deleted

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their personal emails at the end of 2015 and, therefore, the information it seeks from the NonParties may not be otherwise obtainable. (Id. at 13, 20–21) (“[Counsel for the Non-Parties]
communicated that Davey had committed ‘e-mail bankruptcy’ and deleted all of her personal emails at the end of 2015 and that Murrin followed a similar procedure.”).
As further articulated at the June 28, 2016 hearing, Centennial requests that a data specialist
be permitted to access the devices the Non-Parties used to access their personal email accounts
and mirror image the hard drives, which would remain in the specialist’s custody pending
resolution of the Non-Party Motion. Also, Centennial requests that the specialist be permitted to
access the Non-Parties’ personal email accounts in order to determine which devices accessed the
email accounts and whether emails were deleted or captured in the accounts’ archives. At the
hearing, the parties conferred as to the procedure for mirror imaging the Non-Parties’ hard drives
and reached a tentative agreement in that regard.
As to the indemnification agreements, at the hearing, Centennial argued that the
agreements do not constitute work product because they were not created in anticipation of
litigation, as demonstrated by the timeline of events leading up to the execution of the agreements.
Specifically, on December 11, 2015, ServisFirst offered Mr. Bryant and the Non-Parties positions
with ServisFirst. On December 31, 2015, the Non-Parties and Mr. Bryant gave their notice to
Centennial and executed the indemnification agreements on the same day. Finally, on January 11,
2016, Centennial sent cease and desist letters to Defendants and the Non-Parties, and on January
14, 2016, Centennial filed suit.

Thus, Centennial argues, the Non-Parties could not have

anticipated litigation when the indemnification agreements were executed because no demand had
been made or suit filed.

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At the hearing, the Non-Parties contended that they have produced all responsive
documents, with the exception of the indemnification agreements, but that, to the extent emails
were deleted and are recoverable, those emails have not been produced. They also objected to
Centennial’s request to mirror image the hard drives of their devices because the request is overly
broad and unduly burdensome. (Dkt. 121 at 3–8.) The Non-Parties argued that the indemnification
agreements are protected from production by the work product doctrine because the language of
the agreements themselves show that they were prepared in anticipation of litigation such as the
present case. (Id. at 8.)
C.

Bryant Motion
Centennial moves to compel responses to requests for production it served on Mr. Bryant.

As narrowed at the hearing, Centennial seeks (1) the indemnity agreement between ServisFirst and
Mr. Bryant and (2) emails from Mr. Bryant’s personal email account that he has yet to produce,
should such emails exist. Generally, Centennial argued, Mr. Bryant’s objections to the requests
for production are insufficiently specific and should be overruled. (Dkt. 124 at 6–8.) Further, Mr.
Bryant waived any assertions of attorney-client privilege or work product, Centennial argued,
because he served his privilege log about a week after he produced responsive documents. (Id. at
11.)
In response, Mr. Bryant argued that the indemnification agreements are protected from
discovery by the work product doctrine because the agreements themselves state that they were
created in anticipation of the present litigation. (Dkt. 139 at 9–10.) Further, he did not waive this
protection, Mr. Bryant argued, because no federal rule requires service of a privilege log
simultaneously with the responses to production requests and, here, his log was served only six
business days after his production of responsive documents. (Dkt. 139 at 4–6.) Finally, at the

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hearing, counsel for Mr. Bryant stated that Mr. Bryant has produced his emails to Centennial, and,
to the extent he withholds responsive documents on the basis of his objections, he identified such
documents on his privilege log and specifically stated so in his objections.
Finally, at the hearing, counsel for Mr. Bryant offered to submit his indemnification
agreement with ServisFirst for the Court’s in camera review. Counsel for the Non-Parties likewise
agreed to submit the Non-Parties’ indemnification agreements with ServisFirst. Following the
hearing, the indemnification agreements were submitted for in camera review.
APPLICABLE STANDARDS
A party, “[o]n notice to other parties and all affected persons,” may move to compel
discovery. Fed. R. Civ. P. 37(a)(1). “[A]n evasive or incomplete disclosure, answer, or response
must be treated as a failure to disclose, answer, or respond.” Id. at 37(a)(4). Courts maintain great
discretion to regulate discovery. Patterson v. U.S. Postal Serv., 901 F.2d 927, 929 (11th Cir.
1990). The court has broad discretion to compel or deny discovery. Josendis v. Wall to Wall
Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011).
Through discovery, parties may obtain materials that are within the scope of discovery,
meaning they are nonprivileged, relevant to any party’s claim or defense, and “proportional to the
needs of the case.” Fed. R. Civ. P. 26(b)(1). The term “relevant” is “construed broadly to
encompass any matter that bears on, or that reasonably could lead to other matter that could bear
on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340,
351 (1978). Courts consider the following factors when evaluating whether requested discovery
is proportional to the needs of the case: (1) “the importance of the issues at stake in the action,”
(2) “the amount in controversy,” (3) the parties’ relative access to relevant information,” (4) “the
parties’ resources,” (5) “the importance of the discovery in resolving the issues,” and (6) “whether

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the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P.
26(b)(1).
Parties responsible for issuing subpoenas “must take reasonable steps to avoid imposing
undue burden or expense on a person subject to the subpoena,” and the Court must enforce this
duty. Id. at 45(d)(1). An order compelling production “must protect a person who is neither a
party nor a party’s officer from significant expense resulting from compliance.”

Id. at

45(d)(2)(B)(ii). In response to a subpoena, a subpoenaed person may serve objections to the
subpoena and, if a person withholds information under a claim of privilege or work product
protection, the person must “expressly make the claim” and “describe the nature of the withheld
documents, communications, or tangible things in a manner that, without revealing information
itself privileged or protected, will enable the parties to assess the claim.” Id. at 45(d)(2)(B) and
(e)(2).
Under the work product doctrine, documents and other “tangible things” are not
discoverable by a party when they were “prepared in anticipation of litigation or for trial by or for
another party or its representative (including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent).” Id. at 26(b)(3)(A). These protected materials may be discovered,
however, if “they are otherwise discoverable under Rule 26(b)(1)” and the party seeking
production “shows that it has substantial need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equivalent by other means.” Id.
As to the production of electronically-stored information, “[a] party need not provide
discovery of electronically stored information from sources that the party identifies as not
reasonably accessible because of undue burden or cost.” Id. at 26(b)(2)(B). When a motion to
compel has been filed, the resisting party “must show that the information is not reasonably

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accessible because of undue burden or cost,” and, if such showing is made, “the court may
nonetheless order discovery from such sources if the requesting party shows good cause,
considering the limitations of Rule 26(b)(2)(C).” Id.
ANALYSIS
A.

Non-Party Motion
As stated on the record at the hearing, the Non-Party Motion is granted and the Non-Parties

shall produce e-discovery responsive to Centennial’s requests because the requests are relevant to
Centennial’s claims in this case. See Fed. R. Civ. P. 26(b)(1). Specifically, Centennial’s
information that the Non-Parties forwarded to their personal email accounts while they were still
employed by Centennial is relevant to Centennial’s allegations of Defendants’ wrongdoing. (Dkt.
53 at ¶ 73.)
As to the indemnification agreements between the Non-Parties and ServisFirst, the
indemnification agreements are relevant and therefore discoverable because ServisFirst’s
agreement to indemnify the Non-Parties and Mr. Bryant in the event of litigation such as the
present litigation is relevant to Centennial’s claims regarding ServisFirst’s interference with the
Non-Parties’ and Mr. Bryant’s employment agreements. See Fed. R. Civ. P. 26(b)(1). Because
the Non-Parties oppose production, it is their burden to establish that the work product doctrine
protects the indemnification agreements from discovery. Republic of Ecuador v. Hinchee, 741
F.3d 1185, 1189 (11th Cir. 2013).
The work product doctrine protects from production documents and other “tangible things”
that were “prepared in anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or
agent).”

Fed. R. Civ. P. 26(b)(3)(A).

The Eleventh Circuit, in Tambourine Comercio

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Internacional SA v. Solowsky, held that “[b]y its plain text, Rule 26(b)(3) applies to documents or
things prepared by or for another party or its representative” and held that the work product
protection does not apply to documents prepared for those who are not parties to the case “even
though the person may be a party to a closely related lawsuit in which he will be disadvantaged if
he must disclose in the present suit.” 312 F. App’x 263, 284 (11th Cir. 2009) (internal citations
omitted). The Eleventh Circuit’s holding in Tambourine has been interpreted to mean that “[a]
non-party is not entitled to claim work product protection.” Bozeman v. Chartis Cas. Co., No.
2:10-CV-102-FTM-36, 2010 WL 4386826, at *2 (M.D. Fla. Oct. 29, 2010) (citing Tambourine,
312 F. App’x 263).
Here, the Non-Parties are not parties to the present litigation. As such, they cannot claim
the protections of the work product doctrine and therefore must produce the indemnification
agreements. However, the Court notes that, since the hearing, ServisFirst has filed a motion to
quash Centennial’s subpoenas to the Non-Parties to the extent they seek the indemnification
agreements. (See Dkts. 160–161.) At the time of entry of this Order, ServisFirst’s motion to quash
remains pending. Accordingly, the Court finds it appropriate to stay the Non-Parties’ production
of the indemnification agreements pending the disposition of ServisFirst’s motion to quash.
B.

Bryant Motion
The Court rejects Centennial’s contention that Mr. Bryant’s objections to Centennial’s

request for production are not sufficiently specific because, after review of his objections (Dkt.
124 at Ex. B), the Court finds that Mr. Bryant adequately stated the basis for his objections and
the objections are well taken. The Court further rejects Centennial’s argument that Mr. Bryant has
waived any attorney-client privilege or work product protections because Centennial cites no
binding authority that a privilege log must be produced simultaneously with a party’s responses

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and, in any event, Mr. Bryant served his privilege log shortly after providing responsive
documents. Universal City Dev. Partners, Ltd. v. Ride & Show Eng’g, Inc., 230 F.R.D. 688, 696
(M.D. Fla. 2005) (“The Eleventh Circuit has never determined what constitutes a timely
production of a privilege log in response to a request for production of documents.”). Further,
Centennial suffered no prejudice due to the short delay.
As to Centennial’s request to compel production of the indemnification between ServisFirst
and Mr. Bryant, the Court denies the request because it is protected from discovery under the work
product doctrine. Specifically, Mr. Bryant, as a party, may assert the work product protection and,
after the Court’s in camera inspection of the indemnification agreement, the agreement, on its face,
states that it was prepared in anticipation of litigation such as the present litigation.1 See Fed. R.
Civ. P. 26(b)(3)(A).

Further, Centennial has not shown that the agreement is “otherwise

discoverable under Rule 26(b)(1)” or that it has a “substantial need for the materials to prepare its
case and cannot, without undue hardship, obtain their substantial equivalent by other means.” See
Fed. R. Civ. P. 26(b)(3).
Accordingly, it is
1.

Plaintiff Centennial Bank’s Motion to Compel Complete Responses to Subpoenas

to Produce Documents Served on ServisFirst Employees (“Non-Party Motion”) (Dkt. 88) is
GRANTED; however, the Non-Parties’ obligation to produce the indemnification agreements is
stayed pending the disposition of ServisFirst’s motion to quash. (See Dkts. 160–161.)
2.

The Non-Parties shall serve e-discovery responsive to Centennial’s subpoenas

within sixty (60) days of entry of this Order.

1

The indemnification agreement between ServisFirst and non-parties Mr. Murrin and Ms. Davey were virtually
identical to the indemnification agreement between ServisFirst and Mr. Bryant. Having conducted an in camera
review of the three agreements, they all appear to have been prepared in anticipation of litigation such as the present
litigation.

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3.

Plaintiff Centennial Bank’s Motion to Compel Bryant to Provide Better Responses

to Centennial Bank’s First Request for Production (“Bryant Motion”) (Dkt. 124) is DENIED.
DONE and ORDERED in Tampa, Florida on July 1, 2016.

Copies furnished to:
Counsel of Record

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