Bahorski et al v. Eastpointe et al

Filing 44

OPINION AND ORDER REGARDING DEFENDANTS' MOTION TO COMPEL 26 , PLAINTIFFS' MOTION TO COMPEL 34 , AND MOTIONS TO QUASH OF GARNER PROPERTIES 15 AND SUMMIT CONSULTING 16 - Signed by Magistrate Judge Mona K. Majzoub. (LHos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID BAHORSKI, and
CHRISTOPHER L. GARNER,
Plaintiffs,

Case No. 16-cv-12305

v.

District Judge Marianne O. Battani

CITY OF EASTPOINTE,
MARY VAN HAAREN,
JOHN DOE BUILDING OFFICIALS,
and JANE DOE BUILDING OFFICIALS,

Magistrate Judge Mona K. Majzoub

Defendants.
____________________________________/
OPINION AND ORDER REGARDING DEFENDANTS’ MOTION TO COMPEL [26],
PLAINTIFFS’ MOTION TO COMPEL [34], AND MOTIONS TO QUASH OF
GARNER PROPERTIES [15] AND SUMMIT CONSULTING [16]
This matter comes before the Court on Defendants’ Motion to Compel (docket no. 26)
and Plaintiff’s Motion to Compel (docket no. 34). The parties filed Joint Statements of Resolved
and Unresolved Issues regarding both motions. (Docket nos. 39, 43.) In addition, non-parties
Garner Properties & Management, LLC and Summit Consulting Services, LLC each filed a
Motion to Quash a subpoena served on them by Defendants. (Docket nos. 15, 16.)
All four motions were referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A).
(Docket nos. 18, 27, 35.) The Court has reviewed the pleadings and dispenses with oral
argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2).
I.

BACKGROUND
Plaintiffs David Bahorski and Christopher L. Garner provide services to owners of

residential property located in the City of Eastpointe, Michigan. The Parties dispute the precise

nature of the services provided, as well as Plaintiffs’ connections to intermediary entities Garner
Properties & Management, LLC (“GPM”) and Summit Consulting Services, LLC (“SCS”).
Plaintiffs contend that Defendants wrongfully charged them with violations of Section 10-46 of
the Eastpointe Code of Ordinances, which provides as follows.
No person shall hereafter allow to be occupied, or rented or let to another person
for occupancy, any dwelling unit, rooming unit, single-family dwelling, twofamily dwelling, multifamily dwelling, boardinghouse, roominghouse,
lodginghouse, tourist house or hotel, which premises are intended for occupancy
as a residential rental property within the city, for which a registration statement
has not been properly made and filed with the building department of the city and
for which a license has not been issued by the building department of the city.
Plaintiffs allege that Defendants filed such charges in violation of the Fourteenth
Amendment, Fourth Amendment, and First Amendment to the U.S. Constitution, and that such
charges amount to malicious prosecution, abuse of process, unjust enrichment, and defamation
under Michigan law. Plaintiffs seek injunctive relief and money damages. In addition, Plaintiffs
purport to represent a class of similarly situated individuals who (1) “do not own real property in
the City of Eastpointe who have been charged criminally instead of the owners of real property
who have allegedly violated the City’s codes and ordinances” and who (2) “do not own real
property in the City of Eastpointe who suffered malicious prosecution or abuses of process at the
hands of the City of Eastpointe whose criminal charges related to building code enforcement
were dismissed by nolle prosequi.”
Plaintiffs sought a preliminary injunction in order to preclude Defendants from issuing
criminal violations to non-owners of rental properties. (Docket no. 11.) In support, Plaintiffs
contended that they do not own or personally manage any properties subject to the rental-housing
ordinances, and that “it is unconstitutional to attempt to hold an employee or agent responsible
for the acts of a corporate entity.” Plaintiffs accuse Defendants of implementing a policy of
“vicarious criminal liability” by charging Plaintiffs in a personal capacity for violations by
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owners and/or corporate property managers. In addition, Plaintiffs assert that, even assuming
that the ordinances apply to them in an individual capacity, Defendants lacked probable cause to
believe that Plaintiffs violated the ordinances.
Defendants opposed Plaintiffs’ motion, and contended that Plaintiffs signed housing
registration applications in an individual capacity and thereby agreed to be held liable for
violations of the subject ordinances on behalf of the property owners. In addition, Defendants
questioned whether GPM and SCS were legitimately independent from Plaintiffs.
On June 1, 2017, the Court held a hearing regarding Plaintiffs’ motion, and preliminarily
enjoined Defendants from prosecution of criminal charges under the City of Eastpointe’s
Residential Rental Housing Ordinance against Plaintiffs in their individual capacities for
violations arising from properties for which Plaintiffs are not individually identified as “owner”
and/or “agent.”

In so holding, the Court preliminarily held that if Plaintiffs were “mere

employees or contractors of the corporate applicant[s], then they cannot be individually
charged.” (Docket 29, p. 42.)
On June 9, 2017, Defendants filed a motion to compel Plaintiffs to respond to
Defendants’ first interrogatories and document requests. (Docket no. 26.) On June 30, 2017
Plaintiffs filed a motion to compel Defendants to respond to Plaintiffs’ initial requests. (Docket
no. 34.) The Parties dispute the relevance and proportionality of each other’s discovery requests.
In addition, non-parties GPM and SCS filed motions to quash subpoenas served on them by
Defendants. (Docket nos. 15, 16.)
II.

GOVERNING LAW
The scope of discovery under the Federal Rules of Civil Procedure is traditionally quite

broad. Lewis v. ACB Bus. Servs., 135 F.3d 389, 402 (6th Cir. 1998). Parties may obtain

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discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Fed. R. Civ. P. 26. Information
within this scope of discovery need not be admissible in evidence to be discoverable. Id.
“Although a [party] should not be denied access to information necessary to establish her claim,
neither may a [party] be permitted to ‘go fishing,’ and a trial court retains discretion to determine
that a discovery request is too broad and oppressive.” Superior Prod. P’ship v. Gordon Auto
Body Parts Co., 784 F.3d 311, 320-21 (6th Cir. 2015) (citing Surles ex rel. Johnson v.
Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007)).
Rules 33 and 34 allow a party to serve interrogatories and requests for production of
documents on an opposing party. Fed. R. Civ. P. 33, 34. A party receiving these types of
discovery requests has thirty days to respond with answers or objections. Fed. R. Civ. P.
33(b)(2), 34(b)(2)(A). Rule 30 allows a party to conduct a deposition of any person without
leave of court, subject to certain exceptions. Fed. R. Civ. P. 30(a)(1). If the party receiving
discovery requests under Rules 33 or 34 fails to respond properly, or if the person whose
deposition is sought under Rule 30 fails to properly comply with the rule, Rule 37 provides the
party who sent the discovery the means to file a motion to compel. Fed. R. Civ. P. 37(a)(3). If a
court grants a Rule 37 motion to compel, or if discovery is received after a Rule 37 motion is
filed, then the court must award reasonable expenses and attorney’s fees to the successful party,
unless the successful party did not confer in good faith before the motion, the opposing party’s

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position was substantially justified, or other circumstances would make an award unjust. Fed. R.
Civ. P. 37(a)(5)(A).
Federal Rule of Civil Procedure 45 governs subpoenas and provides that the court must,
upon motion, quash or modify a subpoena if the subpoena fails to allow a reasonable time to
comply, requires a non-party to travel more than 100 miles, requires disclosure of privileged or
protected materials, or subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A). The
court may quash or modify the subpoena if it requires the subpoenaed entity to disclose a trade
secret or other confidential research, development, or commercial information. Id.
III.

ANALYSIS
This matter is before the Court on four discovery motions: Defendants’ motion to compel

(docket no. 26); Plaintiffs’ motion to compel (docket no. 34); GPM’s motion to quash (docket
no. 15) and SCS’s motion to quash (docket no. 16). The Court will address each motion in turn
below.
A.

Defendants’ Motion to Compel [26]

Defendants’ motion to compel presents nine issues covering thirty four separate
discovery requests. (Docket no. 39.) The Parties resolved one issue, with Plaintiffs stipulating
that they do not allege lost wages or lost income damages, leading Defendants to withdraw their
Request to Produce no. 11. The remaining issues will be addressed below.
1.

Plaintiffs’ Social Security Numbers
(Interrogatory no. 1)

Defendants seek to compel Plaintiffs to disclose their Social Security numbers. Plaintiffs
provided the last four digits of their Social Security numbers and object to Defendants’ request to
compel the entire numbers.

On review of the pleadings, Defendants fail to advance any

explanation for the alleged relevance of Plaintiffs’ Social Security numbers, instead simply
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asserting that such information “falls within the scope of discovery.” (Docket no. 26, p. 1.)
Absent a more reasoned argument regarding the relevance of Plaintiffs’ Social Security numbers,
the Court has no basis to compel Plaintiffs to produce such information.
2.

Information regarding SCS and GPM
(Interrogatory no. 4, Requests to Produce nos. 3, 6, 7)

Defendants request various information regarding SCS and GPM. Plaintiffs object to
producing such information, asserting that “the companies are not parties to this case and . . .
Plaintiffs are parties only in their individual, and not their representative, capacities.” (Docket
no. 39, p. 2.) Defendants contend that information regarding SCS and GPM is relevant to (1)
“the asserted separation between” Plaintiffs and the LLCs associated with them and to (2) the
LLCs’ compliance or noncompliance with Eastpointe ordinances.
Under the circumstances of this case, Plaintiffs’ basis for opposing Defendants’ requests
regarding GPM and SCS—that those companies are separate and independent corporate
entities—does not withstand scrutiny.

Information regarding those companies is relevant

precisely because Plaintiffs claim that they are separate entities.
In their complaint, Plaintiffs allege that Defendants unlawfully charged Bahorski and
Garner in their individual capacities because the person “that actually violates their code . . . is
typically a corporate entity.” (Docket no. 1, ¶ 35.) In their motion for preliminary injunction,
Plaintiffs further contend that “it is unconstitutional to attempt to hold an employee or agent
responsible for the acts of a corporate entity.” (Docket no. 11, p. 13.) During the hearing on
Plaintiffs’ motion, the Parties raised the issue of whether GPM and SCS were separate corporate
entities, with Counsel for Plaintiffs asserting that “David Bahorski individually and Christopher
Garner individually have no contractual or legal obligation to these properties whatsoever” and
that Plaintiffs “don’t manage the properties.” (Docket no. 29, p. 9.) The Court ultimately
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granted Plaintiffs’ motion for preliminary injunction, reasoning that Plaintiffs had a likelihood of
success on the merits because “if, in fact, as plaintiff[s] argue[] they are mere employees or
contractors of the corporate applicant then they cannot be individually charged.” (Id. at 42.) In
so holding, the Court plainly anticipated Defendants’ challenge to the corporate identities of
GPM and SCS.
Defendants’ seek information regarding the ownership, operating agreements, and
management contracts of SCS and GPM. In light of the issues addressed above, such discovery
is relevant and proportional to the needs of the case. To the extent that Plaintiffs clearly attest
that they have produced all responsive material in their possession and control, the Court will not
compel any additional production.
3.

Employment Records and Income Tax Records
(Requests to Produce nos. 4, 12, 13, 14)

Defendants request Plaintiffs’ previous employment records, employment agreements,
wage records, pay stubs, 1099s and W-2s, as well as authorizations for the release of such
records from Plaintiffs’ employers. Plaintiffs contend that such information lacks relevance
because they do not claim lost wages or lost income.
Because Plaintiffs have stipulated that they do not seek lost wages or lost income, much
of the material requested by Defendants is rendered irrelevant. The Court will not compel
Plaintiffs to produce previous employment records, previous employment agreements, or wage
records and pay stubs from previous employers. However, records regarding Plaintiffs’ work for
GPM and SCS are relevant to the issue of whether GPM and SCS are separate and independent
corporate entities. Accordingly, the Court will order Plaintiffs to produce wage records, pay
stubs, 1099s and/or W-2s associated with their work for GPM and SCS.

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4.

Residential Rental Property Registration Applications
(Requests to Produce nos. 8, 9)

Defendants seek rental property registration applications prepared by Plaintiffs. Plaintiffs
object to this request, contending that Plaintiffs in their individual capacities did not prepare any
such applications. Plaintiffs further assert that Defendants should be in possession of any
applications filed with the City of Eastpointe, rendering the requests duplicative and unduly
burdensome in violation of Fed. R. Civ. P. 26(b)(2)(C)(i).
Because Defendants fail to explain why they are not already in possession of materials
filed with the City of Eastpointe or to describe any additional relevance attributable to the fact of
Plaintiffs’ possession of such material, Defendants’ requests for the registration applications are
unreasonably cumulative and unduly burdensome. Accordingly, the Court will not compel
Plaintiffs to produce the requested applications.
5.

Itemization of Damages
(Interrogatory no. 8, Requests to Produce nos. 10, 15)

Defendants seek information and records regarding Plaintiffs’ damages, including records
of fines and fees paid to Defendants. Plaintiffs assert that they are not in possession of such
material, and are seeking records from the 38th District Court. Plaintiffs further submit that Mr.
Garner has provided all responsive records in his possession.
Because Plaintiffs attest that they do not possess the information sought by Defendants,
the Court must deny Defendants’ requests. Although Defendants reasonably contend that “[i]t is
the Plaintiffs’ duty and burden to identify and come forward with evidence of any damages they
claim,” any failure by Plaintiffs to prove their damages can be addressed at the dispositive
motion stage of this case.

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6.

Prior Litigation Records
(Request to Produce no. 20)

Defendants seek records regarding Plaintiffs’ involvement in “any other litigation than
the present matter.” Plaintiffs contend that this request is overly broad and unduly burdensome,
and that the records Defendants seek are publicly available.
In Interrogatory no. 12, Defendants requested that Plaintiffs provide information
regarding any claims made or lawsuits filed by Plaintiffs, including:
the names of the parties involved, the dates upon which the claim or Complaint
was filed, the Court in which each action was prepared, the case number and
caption of the litigation, and the status and/or result of that claim or lawsuit,
including any disposition, judgment, settlement or reward and the nature of every
injury and damage you sustained.
(Docket no. 26-2, p. 17; docket no. 26-3, p. 16.) Plaintiff Bahorski responded that he was “not
aware of any such claims.” (Docket no. 26-2, p. 17.) Plaintiff Garner disclosed the existence of
one prior lawsuit—Lawrence M. Garner et al. vs. City of Roseville et al.—and provided the case
number, filing date, venue, and a summary of its resolution.

(Docket no. 26-3, p. 16.)

Defendants do not seek to compel any additional response to Interrogatory no. 12. (See Docket
no. 39, Joint Statement of Resolved and Unresolved Issues Regarding Defendants’ Motion to
Compel.)
Defendants’ Request to Produce no. 20 seeks production of “copies of any and all
records, documents, pleadings, writings, recordings, or correspondence of any kind identifying
[Plaintiffs’] involvement in any other litigation than the present matter.” (Docket no. 26, p. 9.)
Plaintiff Bahorski states that he “is not in possession of any documents relative to this request.”
(Docket no. 26-2, p. 26.) Plaintiff Garner objects to the request as “overly broad and unduly
burdensome,” asserts that the request “seeks confidential attorney-client information and

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attorney work product,” and contends that “Defendant can access all public files through the
PACER system.” (Docket no. 26-3, p. 24.)
Defendants contend that the records requested “are relevant and subject to discovery,”
that “Plaintiffs have personal knowledge of their own prior litigation and are in the best position
to identify and produce the requested documents,” and that “PACER covers only the federal
courts and does not include state courts, many of which have not adopted electronic filing.”
(Docket no. 39, p. 6.)
As set forth above, 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. Fed. R. Civ.
P. 26. Because Plaintiff Garner’s prior action against the City of Roseville involved claims
similar to those asserted by Plaintiffs in the present matter, documents from the Roseville action
are relevant to this case.
With regard to Plaintiffs’ contention that the request is unduly burdensome, Rule 26
provides that the court must limit the extent of discovery if it determines that the material sought
“can be obtained from some other source that is more convenient, less burdensome, or less
expensive.” Id. Plaintiffs assert that material regarding the Roseville case is publicly available
through PACER. Because Defendants are able to use PACER to obtain the particular documents
sought, the requested material can be obtained from a source that is less burdensome than
production by Plaintiffs.

However, Plaintiffs should produce any material regarding the

Roseville case that was not filed on PACER, subject to assertion of applicable privileges via
privilege log.
Finally, to the extent that the scope of Request to Produce no. 20 exceeds the scope of
Interrogatory no. 12 by virtue of the fact that the latter is limited to cases initiated by Plaintiffs,

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Plaintiffs are ordered to identify any legal proceedings in which they have been involved,
including the filing date, case number, and venue, and to produce any related documents that are
not publicly available, subject to assertion of applicable privileges via privilege log.
7.

Particularized Allegations
(Interrogatories nos. 13-19, Requests to Produce nos. 22-26, 29-31)

Defendants request the Court to compel Plaintiffs to provide additional information
regarding the allegations in their complaint, including that Defendants violated Plaintiffs’ rights
under the U.S. Constitution. Plaintiffs contend that they have fully responded to these requests,
and object to the requests to the extent that Defendants seek legal analysis from lay witnesses.
The Court observes that Plaintiffs have made a good faith effort to respond to
Defendants’ requests.

For example, Interrogatory no. 13 requests Plaintiffs to provide the

following information:
(a) Identify each due process right which you claim was violated by the
Residential Housing Ordinance.
(b) Identify by name, address and telephone number each person who you claim
violated your Fourteenth Amendment due process rights.
(c) Identify with specificity each act, action and occurrence attributable to each
individual which you claim violates your Fourteenth Amendment due process
rights.
(d) Identify with specificity each paragraph, element and/or application of the
Residential Housing Ordinance which you claim violates the due process
provisions of the Fourteenth Amendment.
(Docket no. 26-3, p. 17.) Plaintiffs objected to the request to the extent that it “seeks a legal
opinion from a layperson” and added that “discovery is ongoing in this case which may result in
additional information relative to these responses.” (Id. at 18.) Subject to these objections,
Plaintiffs stated that “the City unconstitutionally charges [Plaintiffs] with charges related to
criminal conduct of owners/operators of investment real estate in the City of Eastpointe without
proper notice, in violation of their own ordinances, and without probable cause.” (Id.) Plaintiffs
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asserted that “The City of Eastpointe; Mary Van Haaren; Debra Shultz, and potentially other
unknown actors on behalf of the City of Eastpointe” violated their Fourteenth Amendment rights
by “charging [Plaintiffs] with criminal activity without notice, without probable cause, and in
violation of their own ordinances for the sole purpose of trying to extract fines and fees from
[Plaintiffs] to do so.”

(Id.)

Plaintiffs responded similarly to Defendants’ Interrogatories

regarding alleged violations of the Fourth Amendment (Interrogatory no. 14) and First
Amendment (Interrogatory no. 15), and stated particularized allegations with respect to their
claims of municipal liability (Interrogatory no. 16), abuse of process (Interrogatory no. 17),
unjust enrichment (Interrogatory no. 18), and defamation (Interrogatory no. 19). In addition,
Plaintiffs attested that “[t]he specificity sought by Defendant[s] cannot be provided at this time
as the documents that support this response are in the exclusive possession of the Plaintiff [sic,
Defendants] at this time.” (Docket no. 26-2, p. 20.)
With respect to the requests for production, Defendants seek “copies of all documents,
records and materials, audio, video, photographs, drawings, recordings and depictions of every
kind and nature which evidence your claims that the Residential Housing Ordinance violates
your due process rights” and/or “that any individual employed by the City of Eastpointe violated
your due process rights.” (Docket no. 26-3, pp. 19, 20.) Defendants make similar requests for
production regarding the other counts of Plaintiffs’ complaint. (Id. at 22-31.)
Plaintiffs objected to these requests as overly broad and unduly burdensome, and asserted
that “the requested documents are likely in the possession of the 38th District Court” and/or “in
the exclusive possession of the Defendant.” (Id. at 19, 20, 22; docket no. 26-2, pp. 21, 22.) In
addition, Plaintiff Garner “attached what documents are currently in his possession” and/or
attested that he “has no such documents.” (Docket no. 26-3, pp. 22-31.)

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As addressed above, these requests seek to compel Plaintiffs to produce information that
they claim not to possess or claim to have already produced. The Court cannot reasonably
compel Plaintiffs to produce information they claim not to possess, or compel Plaintiffs, who are
lay persons, to respond with legal conclusions. However, similar to Plaintiff Garner, Plaintiff
Bahorski is ordered produce all responsive materials in his possession or control, or attest that he
is not in possession or control of responsive documents.
8.

Discovery Concerning Class Certification
(Interrogatory no. 20, Requests to Produce nos. 33, 34)

Defendant moved to compel Plaintiffs to produce additional information regarding their
attempt to certify a class of similarly situated individuals. However, Defendant now asserts that
“at the hearing on Plaintiffs’ Motion for Preliminary Injunction, the Court indicated that
litigation of class certification issues would be deferred until resolution of the merits of
Plaintiffs’ claims.” (Docket no. 39, p. 10.)
When Plaintiffs raised the prospect of filing a motion for class certification, the Court
responded as follows:
You know, you could file a motion for class cert[ification] but my inclination
right now is that we need to find out what the answer is here on these two because
it is going to apply to everybody else, so I'm not barring you from doing that but I
don't know that I’m going to entertain this until this case is—until the motions are
heard, the dispositive motion.
(Docket no. 29, p. 45.) In addition, the Court expressed a desire to “get to the merits of the
case.” (Id.) Ultimately, the Court opened discovery until November 30, 2017 and imposed a
dispositive motion filing deadline of January 10, 2018. (Id.)
Although the Court did not expressly postpone discovery regarding class certification, the
desire to address dispositive motions prior to class certification strongly suggests that judicial
economy favors such a limitation on the scope of discovery. The Court must determine whether

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discovery is “proportional to the needs of the case” considering factors such as “the importance
of the discovery in resolving the issues” and “whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Discovery concerning class
certification will impose a substantial burden on the parties. And because information regarding
the putative class is not relevant unless Plaintiffs themselves possess viable claims, the burden of
such discovery at this stage of the case outweighs its benefit.
Accordingly, the Court will postpone discovery regarding class certification until after
resolution of dispositive motions.
B.

Plaintiffs’ Motion to Compel [34]

Plaintiffs request the Court to compel Defendants to respond to six requests for
production. (Docket no. 43.) The first five requests concern Plaintiffs’ efforts to certify a class
of similarly situated individuals. Defendants object to each request on the same basis—that
discovery regarding class certification should be postponed until after resolution of dispositive
motions. Accordingly, these five requests will be discussed together below.
1.

Discovery Concerning Class Certification
(Requests to Produce nos. 1-5)

Plaintiffs request the Court to compel Defendants to produce material regarding potential
members of a class of similarly situated individuals, including, for example, a list of rental
properties in Eastpointe and a list of fines assessed against those properties. For the reasons set
forth above, the burden of such discovery, at the present stage of the case, outweighs its benefit.
Discovery regarding the putative class of similarly situated individuals is postponed until after
resolution of dispositive motions.

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2.

All Other Documents and Things
(Request to Produce no. 12)

Plaintiffs’ Request for Production no. 12 seeks “a copy of all documents, electronically
stored information, and tangible things in [Defendants’] possession related to this litigation.”
Defendants object to this request as overly broad, unduly burdensome and not reasonably
tailored to the facts or circumstances of the present litigation.
As observed by Defendants, this request is remarkably open-ended. It is unclear how
Defendants could comply with a request for everything “related to this litigation.” The Court
retains discretion to determine that a discovery request is too broad and oppressive. Superior
Prod. P’ship, 784 F.3d at 321. Request no. 12 is overly broad, and Plaintiffs’ motion to compel
a response is denied.
C.

GPM and SCS Motions to Quash [15, 16]

In April of 2017, Defendants subpoenaed GPM and SCS in an effort to obtain
information directly from those entities. The companies filed motions to quash Defendants’
subpoenas, contending that the requests are unduly burdensome, and seek information that is
irrelevant and/or proprietary. (Docket nos. 15, 16.) The Court will address these objections in
general before applying them to Defendants’ particular requests.
1.

Relevance

GPM and SCS contend that Defendants’ Subpoena seeks documents that are not relevant
to the underlying cause of action. For example, GPM asserts that “Defendant’s subpoena seeks
information that purports to continue to tie a relationship between the individual Plaintiffs and
the corporate entities that they work for—an argument the court implicitly rejected in its ruling
on the preliminary injunction motion.” (Docket no. 23, p. 3.)

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Defendants challenge this assertion, observing that Plaintiffs have made inconsistent
statements regarding their respective relationships with GPM and SCS.

For example,

Defendants submit that Plaintiff Bahorski has claimed to be both an “employee” and an
“independent contractor” of SCS. (Docket no. 21, p. 4.)
As addressed above, Plaintiffs’ assertion of independence from SCS and GPM places
those entities’ corporate existences squarely at issue. The Court’s determination that Plaintiffs
have a likelihood of prevailing on certain issues does not foreclose discovery regarding those
issues. In addition, the agreements between SCS/GPM and property owners—which likely set
forth the scope of SCS’s and GPM’s responsibilities—are relevant to Plaintiffs’ contention that
ordinance violations must be directed against the property owners, as opposed to the property
managers and/or their agents. Accordingly, the objections based on relevance are without merit.
2.

Proprietary Nature

The subpoenaed entities contend that Defendants request “proprietary” information
regarding, for example, management contracts between GPM/SCS and property owners. GPM
and SCS assert that “[t]he details of the private contracts between those parties are both
irrelevant and contain proprietary information in the form of client information and the form and
substance of the contract itself.” However, GPM and SCS fail to develop this assertion. For
example, the motions to quash contain no reasoning regarding the extent to which the requested
information is known to competitors of GPM and SCS, the extent of measures taken by the
companies to guard the secrecy of such information, or the value of such information to the
companies and their competitors. See Dow Corning & Corp v. Jie Xiao, 283 FRD 353 (E.D.
Mich, 2012) (reciting the factors used under Michigan law to determine whether a trade secret
exists). To the extent that SCS and GPM treat their clients’ identities as confidential, such
information may be redacted in the materials produced to Defendants.
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3.

Undue Burden

SCS and GPM contend that Defendants’ requests are unduly burdensome to the extent
the requests seek materials in Defendants’ possession. (Docket no. 16, p. 2.) Defendants fail to
address this assertion in any meaningful way. Although Defendants submit that “production of
[SCS’s and GPM’s] property management files, from entities engaged in the business of property
management, is not ‘unduly burdensome’ as defined by law,” Defendants advance no rational
argument to counter subpoenaed entities’ assertion that much of the requested material should be
in Defendants’ possession. Accordingly, as addressed below, the Court will uphold objections to
duplicative requests for material submitted to Defendants and/or requests for communications
with Defendants.
4.

Application to Defendants’ Requests to GPM

As an initial matter, the Court observes that GPM claims to have fully responded (either
by producing all materials in its possession or by claiming not to possess responsive materials) to
ten out of Defendants’ thirteen requests.

(Docket no. 23-3.)

The Court will address the

remaining objections below.
GPM’s objections to Defendants’ request for records of payments to Plaintiff Garner
(Requests d(iii), d(iv), and e) are denied. Such material is relevant, and GPM fails to establish
that the information is proprietary, privileged or protected.
GPM’s objection to Defendants’ request for GPM’s operating agreements (Request m) is
denied. The agreements are relevant to Plaintiff Garner’s assertion of independence from GPM,
and GPM fails to establish that the information is proprietary, privileged or protected.
5.

Application to Defendants’ Requests to SCS

In contrast to GPM, SCS maintains its objections to each of Defendants’ requests. As set
forth below, the Court will uphold certain objections and reject others.
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SCS contends that Defendants’ requests for materials submitted to Defendants (Requests
a, h, i, j, k) are unduly burdensome. For the reasons set forth above, the Court upholds SCS’s
objections to duplicative requests for material submitted to Defendants and/or communications
with Defendants.
SCS objects to Defendants’ requests for management contracts between SCS and
property owners (Request b) as well as records of charges to property owners for fines and fees
associated with the rental properties (Request m). The requested materials are relevant to
Plaintiffs’ contention that ordinance violations must be directed against the property owners, as
opposed to the property managers and/or their agents. Accordingly, SCS’s objections to these
requests are denied.
SCS objects to producing documents regarding Plaintiff Bahorski’s relationship with
SCS, including invoices for services (Requests d, f), contracts between Bahorski and SCS
(Request e), and payroll records (Request g). As discussed above, the relationship between
Bahorski and SCS is at issue in this matter, and materials that pertain to the nature of that
relationship are relevant.

Moreover, SCS fails to demonstrate that these requests seek

proprietary information or impose an undue burden. Accordingly, SCS’s objections to these
requests are denied.
Finally SCS’s objection to Defendants’ request for SCS’s operating agreements (Request
n) is denied. The agreements are relevant to Plaintiff Bahorski’s assertion of independence from
SCS, and SCS fails to establish that the information is proprietary, privileged or protected.

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IV.

CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motion to Compel [26] is

GRANTED IN PART, and DENIED IN PART as set forth in this order. Plaintiffs will
respond accordingly within 21 days of this Order.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel [34] is DENIED.
IT IS FURTHER ORDERED that motions to quash filed by non-parties Summit
Consulting Services, LLC [16] and Garner Property & Management, LLC [15] are GRANTED
IN PART, and DENIED IN PART as set forth in this order. Summit Consulting Services, LLC
and Garner Properties & Management, LLC shall respond accordingly within 21 days of this
Order.

NOTICE TO THE PARTIES
Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date
of this Order within which to file any written appeal to the District Judge as may be permissible
under 28 U.S.C. § 636(b)(1).
Dated: November 14, 2017

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon counsel of record
on this date.
Dated: November 14, 2017

s/ Leanne Hosking
Case Manager
19