GILL et al v. HARTSHORN et al
Filing
97
ORDER granting 57 Motion to Compel. Ordered by Judge Clay D. Land on 03/15/2013. (CGC)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
KAREN GILL, et al.,
*
Plaintiffs,
*
vs.
* CASE NO. 4:12-CV-77 (CDL)
KEVIN HARTSHORN, et al.,
*
Defendants.
*
O R D E R
Plaintiffs Karen Gill and Lauren Gill (“Plaintiffs”) and
Defendants Kevin Hartshorn, Daniel Van Gasken, Eastern Property
Development,
LLC,
(collectively,
and
“SEE
South
East
Defendants”)
Enterprise
agreed
to
Group,
a
LLC
forensic
examination of the financial records of certain entities whose
property
and
Defendants.
assets
are
managed
by
one
or
more
of
the
SEE
Plaintiffs contend that the SEE Defendants have not
produced a significant number of documents that are relevant to
the
forensic
examination.
Compel
(ECF
Accordingly,
No.
57),
which
is
Plaintiffs
Motion
to
pending
Court.
filed
before
a
the
As discussed below, the motion is granted.
DISCUSSION
The Joint Scheduling Order in this action states that “the
discovery
required
includes
an
extensive
and
time
consuming
forensic examination of the financial records and other related
books
and
records
and
properties
Scheduling & Disc. Order 3, ECF No. 43.
involved.”
of
all
trusts,
accounts,
According
to the Joint Scheduling Order, the forensic examination will be
conducted
by
Robert
accounting firm.
Behar
Id.
(“Mr.
Behar”)
and
members
of
his
The Joint Scheduling Order further states
that the forensic examination will cover the period of 2005 to
the present and that it “will include the financial books and
records
and
related
records
of
the
Gill
Family
Cornerstone
Trust, the individual single asset trusts, the Gill Companies,
LLC,
any
other
examination
management
period,
and
company
of
the
Defendants
trusts
during
Eastern
Properties
Development, LLC and South East Enterprise Group, LLC.”
3-4.
the
Id. at
To facilitate the forensic examination process, Mr. Behar
prepared
comply
an
with
Examination
it.
See
Protocol,
generally
and
the
Attach.
parties
1
to
agreed
Pls.’
Mot.
to
to
Compel, Behar Decl. Ex. A, Examination Protocol, ECF No. 57-2 at
10-15.
Under the Examination Protocol, the forensic examination is
to be conducted for
“Gill Enterprises,” which is defined as
“Gill Family Cornerstone Trust (the ‘GFCT’), each of the 220
Trusts listed in an attachment to the GFCT Agreement and related
documents
and
beneficiary.”
any
other
trust
of
which
Id. ¶ A, ECF No. 57-2 at 10.
the
GFCT
is
a
The Examination
protocol lists a number of “required records,” which include,
2
among other things, bank statements, cancelled checks, deposit
slips, check stubs, check copies, bank reconciliations, receipt
records,
tenant
records.
ledgers,
invoices,
contracts,
Id. ¶ D(1), ECF No. 57-2 at 11.
and
payroll
The Examination
Protocol also states that Mr. Behar understood “that all rents
and other income are deposited into Eastern Property Development
bank
account(s),
Property
that
Development
funds
and
are
transferred
Southeastern
between
Enterprises
Eastern
Group
bank
accounts, and that the rental proceeds from all real properties
are utilized to pay expenses of all Gill Enterprises.”
Id. ¶
D(8), ECF No. 57-2 at 11.
Plaintiffs
produced
all
Protocol.
Defendants
of
contend
the
the
documents
Plaintiffs
provided
that
further
Mr.
Behar
SEE
Defendants
required
assert
with
by
that
online
the
have
Examination
while
access
not
the
to
SEE
several
closed banking accounts and have agreed to provide Mr. Behar
with online access to open bank accounts, the SEE Defendants
have failed to do so.
In response, the SEE Defendants appear to
assert that they are excused from complying with the Examination
Protocol because the Examination Protocol does not list them in
the
definition
of
“Gill
Enterprises.”
The
SEE
Defendants
further argue “any effort by Plaintiffs to compel production
from “Gill entities” is appropriate for third-party subpoenas,
not a motion to compel against defendants in this case.”
3
Opp’n
to Mot. to Compel 4, ECF No. 78.
This position is disingenuous.
Defendant Kevin Hartshorn is the trustee of the Gill Family
Cornerstone Trust.
The SEE Defendants have represented that
Defendant Daniel Van Gasken is the primary trustee of the many
single
asset
Family
Cornerstone
(“Eastern
property
trusts
Trust.
Property”)
whose
beneficiary
Eastern
and
South
Property
East
is
the
Gill
Development,
Enterprise
LLC
Group,
LLC
(“SEE”) are the companies responsible for managing the assets
and
properties
beneficiary
is
undisputed
of
that
the
the
single
Gill
before
asset
Family
2010,
property
Cornerstone
the
Gill
trusts
Trust.
Companies
whose
It
managed
is
the
assets and properties of the single asset property trusts; in
2010,
Eastern
Property
responsibilities.
previously
documents
Companies.
SEE
took
over
these
management
Eastern Property and SEE occupy the offices
occupied
that
and
had
by
been
the
Gill
created
Companies
and
and
maintained
kept
by
many
the
Gill
Under these circumstances, the Court sees no reason
why the SEE Defendants should not be compelled to produce all of
the documents in their possession, custody, or control that are
“required documents” under the Examination Protocol.
The SEE Defendants also contend that they have produced all
of
the
control.
relevant
documents
in
their
possession,
custody,
or
Plaintiffs, however, assert that during the deposition
of Marlene Blossfield (“Ms. Blossfield”), the office manager of
4
Eastern Property and SEE, Plaintiffs discovered that a number of
documents on the “required documents” list existed and were in
the possession, custody, or control of the SEE Defendants but
had not been produced to Mr. Behar—in part, apparently, because
the
SEE
Defendants’
produce them.
records,
counsel
did
not
ask
Ms.
Blossfield
to
Those documents include: Tenant Pro computerized
including
records
from
the
updated
database;
tax
documents, including 1099s and W-2s; payroll tax returns; lease
records and other contracts; check and deposit payment history
records,
which
are
documents;
and
Cornerstone
Trust,
kept
in
binders;
correspondence
the
single
related
asset
bank
to
reconciliation
the
property
Gill
trusts,
Family
or
any
property or assets held by the single asset property trusts.
These documents are certainly relevant to this action and should
be produced for the forensic examination.
already
done
documents,
so,
the
including
SEE
Defendants
electronically
If they have not
shall
stored
produce
documents,
Behar within seven days of the date of this Order.1
Ms.
Blossfield,
the
documents—especially
the
these
to
Mr.
According to
payment
history
binders and the bank reconciliation documents—have been kept in
an organized manner.
The Court expects that this is how they
will be produced to Plaintiffs.
1
If it is not possible for the SEE Defendants to meet the seven day
deadline for electronically stored documents, then the parties shall
confer and develop a mutually agreeable schedule for producing those
documents.
5
Plaintiffs also point out that the SEE Defendants agreed to
provide Mr. Behar with online access to certain bank records.
In fact, the SEE Defendants did provide Mr. Behar with online
access
to
three
Bank
of
America
bank
accounts,
accounts have been closed and moved to Wells Fargo.
but
those
Though the
SEE Defendants agreed to provide Mr. Behar with online access to
the Wells Fargo accounts, they had not done so by the date of
Plaintiffs’ Motion to Compel.
The SEE Defendants offered no
compelling reason why the online access should not be extended
to the new Wells Fargo accounts and any other bank accounts used
by
the
SEE
property
Defendants
trusts
or
in
the
connection
Gill
with
Family
the
single
Cornerstone
asset
Trust.
Therefore, within seven days of the date of this Order, the SEE
Defendants shall provide Mr. Behar with online access to all
bank accounts that are (or were) used in connection with the
single
Trust.
asset
property
Should
information
for
trusts
or
the
the
online
access
the
forensic
Gill
Family
Cornerstone
not
provide
sufficient
examination,
Plaintiffs
may
subpoena the relevant records from the banks.
CONCLUSION
For the reasons set forth in this Order, Plaintiffs’ Motion
to Compel (ECF No. 57) is granted, and the SEE Defendants shall
provide the documents and access detailed above.
6
The Court should not have had to spend its time on this
discovery dispute, which could have been avoided had the SEE
Defendants
engaged
in
a
good
faith
matter with opposing counsel.
attempt
to
resolve
this
Although the Court declines to
impose sanctions at this time, counsel is on notice that if this
type of obstinate conduct recurs, sanctions will be immediate
and severe.
IT IS SO ORDERED, this 15th day of March, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
7
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