CROM LLC v. PRELOAD LLC et al

Filing 51

ORDER granting in part and denying in part 44 Defendants Preload, LLC And Phuong Bacon's Motion to Compel. Signed by MAGISTRATE JUDGE GARY R JONES on 06/2/17. (grj)

Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
CROM, LLC,
Plaintiff,
v.

CASE NO. 1:16-cv-238-WTH-GRJ

PRELOAD, LLC and
PHUONG BACON,
Defendants.
___________________________/
ORDER
On June 1, 2017, the Court conducted a telephonic hearing to
address Defendants Preload, LLC and Phuong Bacon’s Motion to Compel,
ECF No. 44. For the reasons discussed at the hearing, which are fully
incorporated into this order, and as summarized below, Defendants’ motion
to compel is granted in part and denied in part.
DISCUSSION
Phuong Bacon (“Mrs. Bacon”) previously worked for Crom LLC
(“Crom”) as an intern in Crom’s Gainesville, Florida office, and later as a
full-time staff engineer. When she was initially hired as an intern in 2007,
Mrs. Bacon signed a three-year noncompete agreement with no
Case No: 1:16-cv-238-WTH-GRJ

Page 2 of 17

geographical restrictions. In March 2016, Mrs. Bacon resigned from Crom
and joined Preload, LLC (“Preload”), one of Crom’s competitors in the prestressed concrete storage tank industry. Plaintiff alleges that before Mrs.
Bacon resigned she unlawfully downloaded Crom’s trade secrets and
proprietary data and thereafter either provided them to Preload or utilized
them in her new job at Preload. Plaintiff brings various claims against
Defendants including, but not limited to breach of Mrs. Bacon’s noncompete agreement, tortious interference by Preload, and unfair
competition.
The discovery deadline in this case was May 31, 2017. (ECF No. 43.)
On May 12, 2017, Defendants filed the instant motion to compel. (ECF No.
45.) Defendant argues in the motion to compel that Crom failed to produce
a privilege log as required by Fed. R. Civ. P. 26(b)(5). Further, Defendants
point to eight categories of issues pertaining to deficiencies in specific
responses by Crom. Defendants request the Court to enter an order
compelling Crom to provide a privilege log and responsive answers and
document to each interrogatory and request for production. Finally,
Defendants also seek an award of reasonable expenses incurred in
making their motion to compel under Fed. R. Civ. P. 37(a)(5).
Case No: 1:16-cv-238-WTH-GRJ

Page 3 of 17

A. Privilege Log
Crom objected to a number of Defendants’ requests based on the
attorney-client privilege and the work product doctrine. At the time
Defendants filed the instant motion to compel, however, Crom had not
provided a privilege log as required by Fed. R. Civ. P. 26(b)(5). Shortly
after Defendants filed the motion Crom provided a privilege log, which only
contained two entries—one pertaining to an in-house counsel memo
prepared in anticipation of litigation and one pertaining to the redaction of
employee names on noncompete agreements that were also produced.
Crom did not include communications between counsel and Crom on their
privilege log, nor did Crom include communications between a prior law
firm and Crom. Crom argues that any communications between counsel
and Crom constitutes work product or are protected by the attorney-client
privilege.
To the extent Crom’s general claims of attorney-client privilege and
work product were raised in response to Defendants’ discovery requests,
those objections are not appropriate and are stricken. General objections
such as these do not inform opposing counsel or the Court as to what
documents are being withheld, who created the documents, or to whom the
Case No: 1:16-cv-238-WTH-GRJ

Page 4 of 17

documents were disseminated. See Fed. R. Civ. P. 26(b)(5) (a party
withholding information on the basis of privilege must “describe the nature
of the documents, communications, or tangible things not produced or
disclosed—and do so in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the claim”);
MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 584
(S.D. Fla. 2013) (“Federal courts in Florida sitting in diversity . . . have
rejected blanket claims of attorney-client privilege and have required that
specific detail as to the content of documents and their authors and
recipients be provided in order to permit meaningful judicial review of the
asserted privilege.”); CSX Transp., Inc. v. Admiral Ins. Co., No. 93-132CIV-J-10, 1995 WL 855421, at *3 (M.D. Fla. July 20, 1995) (conclusory
statements pertaining to the attorney-client privilege and attorney work
product are insufficient). This information is necessary to determine
whether those communications and documents are indeed privileged or
constitute attorney work product.
Accordingly, Defendant’s motion is granted to the extent it seeks an
order compelling Crom to produce a privilege log. Crom shall have ten (10)
days to provide Defendants with an updated privilege log that lists all
Case No: 1:16-cv-238-WTH-GRJ

Page 5 of 17

documents being withheld, including the date created, the type of
communication, the person who generated the document, to whom the
document was disseminated, and a general description of the subject
matter of the communication sufficient to identify its general nature.
B. Deficiencies in Specific Responses
1.

Interrogatories and Requests Relating to Crom’s Corporate
Structure
Mrs. Bacon’s interrogatories 1 and 2 and Preload’s request for

production 4 seek information pertaining to entities that have an ownership
interest in Crom, entities and organizations in which Crom has an
ownership share or serves as a parent corporation, and organizational
charts or documents relating to Crom’s ownership and corporate structure.
Crom says information regarding its own corporate structure already was
disclosed in its Rule 26 disclosures as well as in a prior motion to dismiss.
To the extent Defendants seek information pertaining to ownership interest
or other entities, Crom argues that information is not relevant because
there are no subsidiaries or affiliates involved in this case. Defendants
contend, however, that information pertaining to ownership interests and
ownership shares is relevant because the noncompete agreement Mrs.
Case No: 1:16-cv-238-WTH-GRJ

Page 6 of 17

Bacon signed specifically extends to Crom’s subsidiaries and affiliates.
Crom’s relevancy objections are sustained. Although Crom’s
corporate structure is not a trade secret, it is not within the scope of
discovery because it is not relevant to the claims or defenses in this case.
See Fed. R. Civ. P. 26(b)(1) (“Parties 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”). Moreover, Crom already has
produced its corporate disclosure statement in accordance with Fed. R.
Civ. P. 7.1. (ECF No. 16.) Furthermore, despite the noncompete prohibiting
disclosure of confidential information pertaining to Crom as well as any of
its subsidiaries or affiliates, there are no subsidiaries or affiliates involved
in this case. Accordingly, Defendants’ motion to compel with regard to
these requests is denied.
2.

Production of Documents Evidencing or Relating to Relevant
Communications
Mrs. Bacon’s requests for production 4, 7, 9, 12, and Preload’s

requests for production 10 and 11 seek information relating to
communications pertaining to Mrs. Bacon, her noncompete agreement,
Mrs. Bacon’s replacement, another former employee, and Preload. Several
Case No: 1:16-cv-238-WTH-GRJ

Page 7 of 17

days before Crom filed its response to the instant motion to compel,
however, Crom produced electronically stored information (“ESI”)
responsive to these requests. Defendants contend, however, that Stephen
Crawford admitted during his deposition that he created written notes
following his discussions with Mrs. Bacon regarding her departure from
Crom. Defendants represent that although other documents were
produced in response to these requests, Mr. Crawford’s notes were not
produced. According to Crom, however, these alleged notes do not exist
and document production is complete.
These issues appear to be moot because Crom produced responsive
ESI after Defendants filed the instant motion to compel. Further, whether or
not Mr. Crawford took notes, Crom has searched for these alleged notes
and is unable to locate them. Crom cannot produce what it does not have.
Nonetheless, Crom shall provide a certification statement to Defendants
certifying that (other than production ordered herein) document production
is complete. Accordingly, Defendant’s motion to compel pertaining to these
requests is denied as moot.
3.

Requests for Documents Allegedly Supporting Crom’s Claims
Mrs. Bacon’s requests for production 3 and 17 seek “all documents

Case No: 1:16-cv-238-WTH-GRJ

Page 8 of 17

supporting, or relating to any of [Crom’s] factual claims or defenses,” and
“[a]ll documents and/or electronic data that support, refute, or relate to the
allegations in paragraphs 26, 27, 28, 29 of the Amended Complaint.”
Defendants claim they still do not know what Crom believes Mrs. Bacon
took that allegedly constitutes proprietary trade secret information. Crom
argues, however, that these requests are overly broad because they do not
request a discrete category of documents that can be identified and
assembled by a layperson.
The Court agrees that these requests are overly broad. Mrs. Bacon’s
requests for production 3 and 17 are essentially “contention requests” that
simply refer to claims and various allegations and seek production of
documents related to those claims and allegations. Other districts have
found that requests like these, which sweep entire pleadings or claims,
require the responding party to provide, in essence, a running narrative or
description of the entire case or claim. See Megdal Assocs., LLC v. La-ZBoy, Inc., No. 14-81476-CIV-ZLOCH, 2016 WL 4503337, at *5–6 (S.D. Fla.
Feb. 1, 2016) (finding defendant’s interrogatory asking plaintiff to “identify
all facts and legal bases that tend to support or refute each and every
allegation in the Complaint” to be overly broad because it was not tailored
Case No: 1:16-cv-238-WTH-GRJ

Page 9 of 17

to any specific claim or allegation and “sweeps in not only material facts,
but incidental details, secondary accounts, and trivial tidbits”); Switch
Commc’ns Grp. v. Ballard, No. 2:11-cv-00285-KJD-GWF, 2011 WL
3957434, at *8 (D. Nev. Sept. 7, 2011); Lucero v. Valdez, 240 F.R.D. 591,
594 (D.N.M. 2007). Defendants’ motion to compel is therefore denied with
respect to Mrs. Bacon’s requests for production 3 and 17.
4.

Requests for Forensic Images of Mrs. Bacon’s Hard Drives
Mrs. Bacon’s request for production 8 seeks production of forensic

images of any hard drives, flash drives, tablets, or phones used by Mrs.
Bacon while employed by Crom. Defendants argue the forensic images are
necessary because they still do not know what Mrs. Bacon took that
allegedly constitutes proprietary trade secrets. They admit receiving the list
of files that Mrs. Bacon accessed for the six-month period prior to her
departure from Crom, but represent that the list is referenced as an exhibit
to a report, suggesting that someone created a forensic evaluation report.
Moreover, Crom references a forensic evaluation report in its Complaint.
Defendants argue that evidence pertaining to why Crom believes Mrs.
Bacon downloaded and took those files with her is vital to Crom’s claims.
Crom, on the other hand, strongly opposes this request because
Case No: 1:16-cv-238-WTH-GRJ

Page 10 of 17

providing forensic images of these items would reveal unrelated
confidential information, trade secrets, and proprietary information.
Moreover, the vast majority of the information on these items is wholly
irrelevant to this case.
The Court agrees with Crom that forensic images are not relevant to
this case and that Crom has no obligation under the Federal Rules of Civil
Procedure to produce mirror images of hard drives. Defendants are not
entitled to that information. Accordingly, Defendants’ motion to compel is
denied to that extent.
Nonetheless, the forensic evaluation report is relevant because it
directly relates to the evidence Crom would presumably rely on to support
its claims that Mrs. Bacon impermissibly downloaded certain information
prior to leaving Crom and thereafter either utilized the information at her
job with Preload or provided the information to Preload. Crom is, therefore,
directed to produce a copy of the forensic evaluation report referenced in
the Complaint, subject to—if necessary—the parties entering into a
protective order pertaining to any confidential information contained within
the report.

Case No: 1:16-cv-238-WTH-GRJ

Page 11 of 17

5.

Requests for Documents and Information Relating to the Nature
and Location of Crom’s Work
Preload’s interrogatory 1 seeks documents and information relating

to all projects involving a concrete storage tank or similar device on which
Crom submitted a bid or worked on from 2007 to the present. Similarly,
Mrs. Bacon’s interrogatory 3 requests Crom to identify all the projects Mrs.
Bacon worked on during her employment with Crom. Defendants believe
this information is necessary to defend Crom’s noncompete claims. They
assert that the nature of Crom’s business activities and the regions where
Crom is engaged are at the heart of the dispute in this case.
Crom argues that these interrogatories seek irrelevant information
and are overly broad and unduly burdensome. Specifically, Plaintiff says,
Defendants’ request for information on all projects Crom worked on from
2007 to the present would, in essence, require Crom to compile a list of
everything it has done in the past ten years. Moreover, the claims pertain
to a specific type of concrete storage tank, yet the requests seek
information pertaining to other projects on which Crom has worked. With
respect to Defendants’ request for information regarding all projects Mrs.
Bacon worked on, Crom’s system does not track work on unsuccessful
bids. Thus, identification of any unsuccessful bids Mrs. Bacon worked on
Case No: 1:16-cv-238-WTH-GRJ

Page 12 of 17

would be unduly burdensome. Nonetheless, Crom has produced a list of
the successful projects Mrs. Bacon worked on during her time at Crom,
including the locations of those jobs.
The Court agrees that Defendants’ requests are unduly burdensome
and are not proportional to the needs of the case because they would
require Crom to identify its entire business activities for a decade. The
geographic areas in which Crom does business related to these concrete
storage tanks is, however, relevant to the geographic scope of Mrs.
Bacon’s noncompete agreement. Accordingly, Defendants’ motion to
compel is granted to the extent that Crom shall provide evidence going
back three years prior to the date the instant lawsuit was filed identifying
those geographic areas where Crom has actively done business related to
concrete storage tanks.
6.

Requests for Information and Documents Relating to Crom’s
Damages (or Lack Thereof)
Preload’s requests for production 6 and 9, Preload’s interrogatory 2,

and Mrs. Bacon’s request for production 13 seek Crom’s financial
statements, sales information, profits, and communications with customers
that relate to or mention Defendants. Defendants argue this information is
necessary because Crom must prove that Defendants have damaged
Case No: 1:16-cv-238-WTH-GRJ

Page 13 of 17

Crom in some way in order to succeed on any of its claims. Crom objects
because at this point the damages are indeterminable. Crom says the
dollar amount of its damages depends upon the profit it would have earned
from jobs that Crom ultimately lost to Preload since Mrs. Bacon left Crom.
Crom, therefore, says it first needs to determine which jobs it lost from
Preload to determine the amount of damages.
Defendants’ motion to compel with respect to these requests is
denied. Crom is not claiming damages related to a change in the financial
condition of the company but instead is simply claiming loss of profits from
the jobs for which it would have won the bid, but for Defendants conduct.
Defendants’ requests are therefore not irrelevant to Crom’s claim for
monetary damages.
Accordingly, the motion to compel pertaining to Crom’s damages is
denied. Crom is directed, however, to provide to Defendants a list of all
jobs it contends it lost out on as a result of the activities alleged in this
case, as well as an estimate of what it believes its damages are and any
supporting documentation thereof. Furthermore, Crom shall be permitted to
supplement this list as the case proceeds in the event that Crom discovers
additional projects pertaining to its calculation of damages.

Case No: 1:16-cv-238-WTH-GRJ

Page 14 of 17

7.

Requests for Qualification Statements for Public Projects
Preload’s request for production 8 seeks any qualification statements

that Crom has submitted for a public project within the last six months.
Crom objects, arguing that the qualification statements often contain
confidential tank design data, which is not publicly disclosed or publicly
available. Crom further argues that the information sought is not relevant to
the claims or defenses in this case. Defendants counter that many, if not
all, of these requested qualification statements are public documents
subject to disclosure under the various states’ open records acts.
Nonetheless, Defendants cannot make the appropriate records requests
because Crom has refused to respond to requests for information
pertaining to projects it has performed. And even if Defendants could make
the open records requests, such would be expensive and overly
burdensome.
The Court agrees that Defendants are entitled to discover these
statements to the extent they have been filed and publicly available.
Accordingly, Defendants’ motion to compel is granted regarding their
request for qualification statements. Crom shall produce the qualification
statements for public projects that were filed and publicly available within
the last six months. Crom is only required to produce the information in the
Case No: 1:16-cv-238-WTH-GRJ

Page 15 of 17

qualification statements that was made publicly available.
8.

Requests for Prior Noncompetition Agreements and Information
Relating to Former Employees’ Noncompetition Agreements
Preload’s request for production 7 and Preload’s interrogatories 6

and 7 request copies of all noncompetition and employment agreements
executed by any engineers at Crom from 2007 through the present, and
information pertaining to former Crom employees that have left the
company since 2007. Crom says it has produced an examplar copy of
each type of noncompetition agreement it has used since 2007, but that
the names have been redacted. Otherwise, Crom contends that the
information sought is not relevant or reasonably calculated to lead to the
discovery of admissible evidence and/or confidential information.
Defendants argue that unredacted copies of the agreements are necessary
because the names of employees will allow Defendants to determine what
type of duties that employee performed in comparison to Mrs. Bacon,
which could aid Defendants in determining the reasonableness of Mrs.
Bacon’s noncompete agreement. Moreover, Defendants contend that
discovering which employees left Crom will allow Defendants to determine
whether Crom has a history of making an exception to the enforceability of
the noncompete agreements.
Case No: 1:16-cv-238-WTH-GRJ

Page 16 of 17

Crom’s objections are sustained in part. According to Crom, all
employees, regardless of their job title, sign the same noncompete
agreement. Thus, the names on the noncompete agreements are
irrelevant. The noncompete agreement, however, has changed from time
to time. Accordingly, the dates upon which the noncompete agreements
were signed is relevant. Crom is therefore directed to produce a copy of
every noncompete agreement signed by an engineer from January 2007 to
the present. Crom may redact the names of the engineers, but not the
dates. Furthermore, to the extent an engineer signed more than one
noncompete agreement, that information needs to be identified, as well as
identifying that certain noncompete agreements are related to the same
employee.
The fact that other employees left Crom, however, has no relevance
to this case or to Mrs. Bacon’s noncompete agreement. Accordingly,
Defendants’ motion to compel is denied with respect to Preload’s
interrogatory 6 requesting Crom to identify all former Crom employees who
have left Crom from 2007 to the present.
C. Reasonable Expenses
Finally, Defendants seek an award of reasonable expenses incurred
in making their motion to compel, including attorney’s fees. Rule 37(a)(5) of
Case No: 1:16-cv-238-WTH-GRJ

Page 17 of 17

the Federal Rules of Civil Procedure governs awards of expenses and
sanctions in connection with motions to compel. Under Rule 37(a)(5)(C), if
a motion to compel is granted in part and denied in part, the court may
apportion the reasonable expenses for the motion. As the Court explained
at the hearing, both parties’ positions had some justification with respect to
the discovery requests and the objections. An award of attorney’s fees and
expenses are, therefore, denied.
Accordingly, upon due consideration, it is ORDERED:
Defendants Preload, LLC and Phuong Bacon’s Motion to Compel,
ECF No. 44, is GRANTED in part and DENIED in part as explained
above. Plaintiff has ten (10) days to produce an amended privilege
log, and twenty (20) days to produce all other identified information.
DONE AND ORDERED this 2nd day of June 2017.

s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge

Case No: 1:16-cv-238-WTH-GRJ