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

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