The DHA Corporation v. BRC Operating Co, LLC et al
Filing
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ORDER granting in part and denying in part Non-Party Gina Cieri's 1 Motion to Quash Defendants' Subpoena and for a Protective Order to Limit Discovery. Signed by Magistrate Judge Alicia O. Valle on 6/15/2015. (ms01)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-MC-80201-BLOOM/VALLE
THE DHA CORPORATION,
Plaintiff,
v.
BRC OPERATING CO., LLC d/b/a
HAGELIN FLAVORS), and HAGELIN
& COMPANY (d/b/a HAGELIN FLAVOR
TECHNOLOGIES, INC.),
Defendants/Third-party Plaintiffs,
v.
DIDIER HARDY,
Third-party Defendant.
_______________________________________/
ORDER GRANTING IN PART AND DENYING IN PART
NON-PARTY GINA CIERI’S MOTION TO QUASH DEFENDANTS’
SUBPOENA AND FOR A PROTECTIVE ORDER TO LIMIT DISCOVERY
THIS MATTER is before the Court on Non-party Gina Cieri’s (“Cieri”) Motion to Quash
Defendants’ Subpoena and for a Protective Order to Limit Discovery (“Motion”) (ECF No. 1).
United States District Judge Beth Bloom has referred this matter to the undersigned for appropriate
disposition. (ECF No. 6). The Court has reviewed Cieri’s Motion, Defendants BRC Operating Co.,
LLC and Hagelin & Company’s Response (ECF No. 12), and Cieri’s Reply (ECF No. 20), and is
otherwise duly advised in the premises.
For the reasons set forth below, Cieri’s Motion is
GRANTED IN PART AND DENIED IN PART.
I.
BACKGROUND
This is a miscellaneous action to quash (or enter a protective order against) a subpoena
served in this District on non-party Gina Cieri in connection with litigation pending in the Northern
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District of Georgia. See The DHA Corp. v. BRC Operating Co., LLC, et al., No. 13-CV-03186WBH (N.D. Ga.).
As relevant here, Defendants BRC Operating Company, LLC and
Hagelin & Company (“Defendants”) have filed counterclaims against Plaintiff The DHA
Corporation (“DHA”) and Third-Party Defendant Didier Hardy (“Hardy”).
The gist of the
counterclaims is that DHA and Hardy allegedly misappropriated Defendants’ trade secrets and
created Florida Flavors and Concentrates, Inc. (“Florida Flavors”) “to compete with
[Defendants] . . . in connection with supplying cola products to Brazilian customers Sul America
and Amazon Flavors.” (ECF No. 12 at 1).
On January 30, 2015, Defendants served a subpoena in this District for a deposition and
production of documents on non-party Cieri, who was Florida Flavors’ corporate treasurer, general
manager, and registered agent. (ECF No. 1-3). According to Defendants, obtaining information
from Cieri is crucial to their counterclaims because, not only was Cieri involved in Florida Flavors,
but she also was the very person who notified Defendants that one of Florida Flavors’ employees
“had Defendants’ confidential information on his Florida Flavors computer.” (ECF No. 12 at 4-5).
Cieri also happens to be Hardy’s wife.
On February 2, 2015, Cieri filed a motion to quash or for a protective order against
Defendants’ subpoena. (ECF No. 1). Counsel for Defendants and Cieri subsequently cooperated to
resolve many of the issues raised by the motion. See (ECF Nos. 13, 15 and 17). According to Cieri,
the only unresolved issues are: (1) whether Requests Numbers 1, 2, 4, 5, 6, 8, 9, 11, and 12 in
Defendants’ subpoena should be amended to specifically exclude information protected from
disclosure under Florida’s husband-wife privilege; (2) whether Request Number 12 should be
quashed as redundant; 1 and (3) whether Cieri should be compensated for responding to the
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Although Cieri cites Request Number 10 in her papers, the request that she quotes is actually
Request Number 12, which concerns a USB drive. Id. at 4, n.2. The Court will thus construe
Cieri’s argument as addressing Request Number 12.
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subpoena and awarded attorney’s fees and costs under Federal Rule of Civil Procedure 45.
(ECF No. 20 at 4-5).
II.
DISCUSSION
A. Florida’s Husband-Wife Privilege
Cieri argues that Requests Numbers 1, 2, 4, 5, 6, 8, 9, 11, and 12 in Defendants’ subpoena
should be amended to explicitly exclude information protected from disclosure under Florida’s
husband-wife privilege. 2 (ECF No. 20 at 4). In response, Defendants contend that their document
requests already exclude privileged documents. (ECF No. 12 at 7). Nonetheless, Defendants are
concerned that Cieri may attempt to use the marital privilege to shield properly discoverable
evidence. Id. According to Defendants, both “(i) communications between Cieri, acting in her
capacity as an officer and/or employee of Florida Flavors, and Hardy, acting as President of Florida
Flavors, and (ii) communications on which third parties (such as other business associates,
customers, and suppliers) were included are . . . not protected by the spousal privilege.” Id. at 7-8.
The Court agrees with Defendants.
Under Florida Statute § 90.504(1), “[a] spouse has a privilege during and after the marital
relationship to refuse to disclose, and to prevent another from disclosing, communications which
were intended to be made in confidence between the spouses while they were husband and wife.”
FLA. STAT. § 90.504(1) (emphasis added). Although private communications between spouses are
generally presumed to be confidential, that presumption may be rebutted by various factors,
“including the nature of the message and the circumstances under which it was delivered.” Hanger
Orthopedic Grp., Inc. v. McMurray, 181 F.R.D. 525, 530 (M.D. Fla. 1998) (citing CHARLES W.
EHRHARDT, FLORIDA EVIDENCE, § 504.3 (1997 ed.) and MCCORMICK
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ON
EVIDENCE, § 80 (4th
The parties agree that Florida law applies to Cieri’s privilege claims. See (ECF No. 1-2 at 4) and
(ECF No. 12 at 7-8).
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ed.1992)); see also Tropical Mktg. & Consulting, LLC. v. Glock, Inc., No. 6:12-CV-1388-ORL-36,
2012 WL 5431002, at *4 (M.D. Fla. Nov. 7, 2012) (citation omitted).
For instance, the presumption of confidentiality is generally rebutted as to business-related
communications between spouses who are business associates. See Hanger Orthopedic Grp., Inc.,
181 F.R.D. at 530-31 (citing G–Fours, Inc. v. Miele, 496 F.2d 809, 813 (2d Cir. 1974) (holding that
a wife was not entitled to assert New York’s husband-wife privilege because the “questions posed
to her dealt with business matters that either were not confidential or, if deliberate efforts were
made to conceal them to prevent execution of judgment [by the husband’s judgment creditors], were
not privileged even if the parties intended them to be confidential”). In Hanger Orthopedic Group,
Inc., the court overruled objections to a magistrate judge’s order compelling a husband to answer
various deposition questions concerning business conversations he had with his wife about the
formation of their business. 181 F.R.D. at 525. The court concluded that, because the wife was the
incorporator, director, majority shareholder, and president of the business, “no reasonable person
could believe that the [spouses’] discussions relating to the formation and business of the
corporation were made in confidence.” Id. at 525-26.
Similarly, in In re Southern Air Transport, Inc., 255 B.R. 706 (Bankr. S.D. Ohio 2000), the
court compelled a widow to testify “as to any business related conversations” with her deceased
husband about his corporation under Florida law. Id. at 713. In doing so, the court found that
because the wife had been an employee of the business, “[i]t would be improper to shield nonconfidential conversations between ‘business associates’ about business matters solely based on the
fact that the ‘business associates’ are also married.” Id.; see also MCCORMICK ON EVID. § 80 (7th
ed.) (“To cloak [business-related communications between spouses] with privilege when the
transactions come into litigation would be productive of special inconvenience and injustice.”).
That being said, the court also found that to the extent any “conversations only took place based on
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the marital relationship,” the privilege would “apply to those conversations.” In re S. Air Transp.,
Inc., 255 B.R. at 713.
The same principles apply in this case. Given that Cieri and Hardy were business associates
with respect to Florida Flavors, any business-related communications between them may not be
shielded from discovery as privileged marital communications, “unless specific circumstances show
the conversations to have been confidential in nature.” Id. (citation omitted). By the same token, to
the extent Cieri is properly withholding any information responsive to Defendants’ subpoena as
privileged, Cieri must prepare a privilege log in accordance with Federal of Civil Procedure Rule
45. Specifically, Rule 45(e)(2)(a) requires Cieri to: “(i) expressly make the claim; and (ii) 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.” 3
For these reasons, Cieri’s motion to require Defendants to amend their subpoena to
explicitly exclude information protected from disclosure under Florida’s husband-wife privilege is
denied.
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As this Court has explained, a privilege log “should identify each document and the individuals
who were parties to the communications with sufficient detail to permit the compelling party or
court to determine if the privilege is properly claimed.” NIACCF, Inc. v. Cold Stone Creamery,
Inc., No. 12-CV-20756, 2014 WL 4545918, at *5 (S.D. Fla. Sept. 12, 2014) (citing In re Denture
Cream Prods. Liab. Litig., No. 09–2051–MD, 2012 WL 5057844, at *9 (S.D. Fla. Oct.18, 2012)).
Specifically, a proper privilege log should contain the following information for each withheld
document:
(1) the name and job title or capacity of the author of the document;
(2) the name and job title or capacity of each recipient of the
document;
(3) the date the document was prepared and, if different, the date(s)
on which it was sent to or shared with persons other than the
author(s);
(4) the title and description of the document;
(5) the subject matter addressed in the document;
(6) the purpose(s) for which it was prepared or communicated; and
(7) the specific basis for the claim that it is privileged.
Id. (citation omitted).
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B. Request Number 12
Next, Cieri asks the Court to quash Request Number 12 in Defendants’ subpoena because it
is purportedly redundant. (ECF No. 20 at 4). Specifically, Request Number 12 seeks “[a]ny and all
documents that reflect, refer, or relate to the USB drive or documents located on said drive provided
by you to the principals of BRC Operating Co., LLC and Hagelin & Company.” (ECF No. 1-3 at
12). Cieri argues that this request is redundant because “[t]he USB in question had been provided
to Defendants in 2012 and Defendants produced the entire USB as part of their production.” (ECF
No. 20 at 4, n.2); see also (ECF No. 1-2 at 15). Defendants, for their part, do not dispute that they
already possess the USB drive that is the subject of Request Number 12. (ECF No. 12 at 9-10).
Moreover, Defendants do not mention the USB drive anywhere in their response.
Accordingly, given that Defendants already possess the USB drive that is the subject of
Request Number 12, the Court finds that the request is duplicative and redundant. Cieri’s motion to
quash Request Number 12, therefore, is granted.
C. Cieri is not Entitled to Compensation or Attorney’s Fees
Finally, Cieri asks the Court to order Defendants to compensate her for her time in
responding to the subpoena and to pay her attorney’s fees and costs under Federal Rule of Civil
Procedure 45. (ECF No. 20 at 4-5). Although Cieri has attached an affidavit in support of her
request for compensation, see (ECF No. 1-5), Cieri has not shown that Defendants failed to “take
reasonable steps to avoid imposing undue burden or expense” on her under Rule 45(d)(1).
Accordingly, Cieri’s request for compensation and attorney’s fees and costs is denied.
III.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Cieri’s Motion
to Quash Defendants’ Subpoena and for a Protective Order to Limit Discovery (ECF No. 1) is
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GRANTED IN PART AND DENIED IN PART as follows:
(1)
Cieri’s motion to require Defendants to amend their subpoena to explicitly exclude
information protected from disclosure under Florida’s husband-wife privilege is DENIED.
(2)
Cieri’s motion to quash Request Number 12 as redundant is GRANTED.
(3)
Cieri’s motion for compensation and attorney’s fees in responding to the subpoena is
DENIED.
DONE AND ORDERED in Chambers in Fort Lauderdale, Florida, on June 15, 2015.
________________________________________
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
United States District Judge Beth Bloom
All Counsel of Record
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