Wellin v. Wellin et al
ORDER granting (140) Motion to Compel and granting (141) Motion to Compel in case 2:13-cv-01831-DCN; granting (77) Motion to Compel and granting (79) Motion to Compel in case 2:13-cv-03595-DCN. The court DIRECTS Campbell Lane Hart and Kimerly Henry to produce all responsive documents in their native format and without redaction within thirty (30) days of the date of this order. Signed by Honorable David C Norton on 07/14/2014. Associated Cases: 2:13-cv-01831-DCN, 2:13-cv-03595-DCN. (gcle)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
PETER J. WELLIN, et. al.,
LESTER S. SCHWARTZ, as Trust Protector
of the Wellin Family 2009 Irrevocable Trust,
PETER J. WELLIN, et. al.,
These matters are before the court on two motions to compel that have been filed
by defendants in Wellin v. Wellin (“Wellin I”), Docket No. 13-cv-1831, and Schwartz v.
Wellin (“Schwartz”), Docket No. 13-cv-3595. For the reasons stated below, the court
grants the motions, Wellin I, ECF Nos. 140 and141, and Schwartz, ECF Nos. 77 and 79.
Because the parties are well-versed in the facts of these cases, the court recites
only the procedural history relevant to the disposition of the motions at hand.
A. Wellin I
On July 3, 2013, Keith Wellin (“Keith”) filed a complaint against Peter J. Wellin
(“Peter”), Cynthia Wellin Plum (“Ceth”), and Marjorie W. King (“Mari”) Friendship
Management, LLC (“Friendship Management”), Friendship Partners, LP (“Friendship
Partners”) and South Dakota Trust Company (“SD Trust”). After the court granted in
part and denied in part two motions for judgment on the pleadings, Keith filed an
amended complaint on February 28, 2014 against Peter, Ceth, Mari, and Friendship
On December 17, 2013, Lester A. Schwartz (“Schwartz”), in his capacity as trust
protector1 of the Wellin Family 2009 Irrevocable Trust (“the Trust”), filed a complaint in
Charleston County Probate Court against Keith, Peter, Ceth, Mari, Friendship
Management, and Friendship Partners. Peter, Ceth, Mari, Friendship Management, and
Friendship Partners removed the case to this court on December 27, 2013. Schwartz
dismissed his claims against Keith and Friendship Partners on January 3, 2014. On
January 17, 2014, defendants answered the complaint and asserted two counterclaims
against Keith and Schwartz. Through these counterclaims, defendants seek declarations
that: (i) Schwartz’s appointment as trust protector was invalid; and (ii) any amendments
to the Trust that Schwartz has made are therefore also invalid. On April 21, 2014, Keith
filed a counterclaim seeking the removal of Peter, Ceth, and Mari as trustees of the Trust.
On April 17, 2014, the court issued an order finding that Schwartz must be
dismissed from this case because he is not a real party in interest. On May 2, 2014,
Schwartz and proposed additional plaintiff Larry S. McDevitt (“McDevitt”) submitted a
proposed amended complaint that asserts substantially the same claims as those asserted
in the original complaint.
Wellin I and Schwartz have been consolidated for purposes of pretrial discovery.
The parties hotly contest whether Schwartz has been validly appointed to this position.
On April 29, 2014, defendants filed a motion to compel Wendy Wellin’s daughter
Campbell Lane Hart (“Hart”) to: (i) respond fully and completely to their February 26,
2014 subpoena for documents; (ii) produce a privilege log for any documents withheld on
the basis of privilege; and (iii) produce all electronically stored information and
documents as requested. Hart opposed this motion on May 27, 2014 and defendants filed
a reply on June 6, 2014.
On May 2, 2014, defendants filed a motion to compel Wendy Wellin’s brother,
Kimerly Henry (“Henry”) to: (i) respond fully and completely to their February 26, 2014
subpoena for documents; (ii) produce a privilege log for any documents withheld on the
basis of privilege; and (iii) produce all electronically stored information and documents
as requested. Henry responded to the motion on May 28, 2014 and, after receiving an
extension of time, defendants filed a reply on June 13, 2014.
Under Rule 45 of the Federal Rules of Civil Procedure, a “command in a
subpoena to produce documents . . . requires the responding person to permit inspection,
copying, testing, or sampling of the materials.” Fed. R. Civ. P. 45(a)(1)(D). If the person
commanded to produce documents makes a timely written objection, “the serving party
may move the court for the district where compliance is required for an order compelling
production or inspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). If the court orders compliance
with the subpoena, production “may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from significant
expense resulting from compliance.” Fed. R. Civ. P. 45(d)(2)(B)(ii). Moreover,
A person withholding subpoenaed information under a claim that it is
privileged or subject to protection as trial-preparation material must: (i)
expressly make the claim; and (ii) describe the nature of the withheld
documents . . . in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
Fed. R. Civ. P. 45(e)(2)(A). A court may, on timely motion, quash or modify a subpoena
that subjects a person to undue burden or requires disclosure of privileged or other
protected matter. Fed. R. Civ. P. 45(d)(3)(A). “[T]he scope of discovery allowed under a
subpoena is the same as the scope of discovery allowed under Rule 26.” HDSherer LLC
v. Natural Molecular Testing Corp., 292 F.R.D. 305, 308 (D.S.C. 2013).
Rule 26(b)(1) of the Federal Rules of Civil Procedure states:
Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense--including the existence,
description, nature, custody, condition, and location of any documents or
other tangible things and the identity and location of persons who know of
any discoverable matter. . . . Relevant information need not be admissible
at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.
District courts have “wide latitude in controlling discovery and [their] rulings will not be
overturned absent a showing of clear abuse of discretion.” Ardrey v. United Parcel Serv.,
798 F.2d 679, 683 (4th Cir. 1986); Middleton v. Nissan Motor Co., No. 10-2529, 2012
WL 3612572, at *2 (D.S.C. Aug. 21, 2012). The latitude given to district courts “extends
as well to the manner in which [they] order the course and scope of discovery.” Ardrey,
798 F.2d at 683.
Defendants ask the court to compel Hart’s and Henry’s compliance with
subpoenas issued on February 26, 2014. Defendants contend that Hart’s and Henry’s
responses are insufficient because the documents have been redacted even though neither
party has asserted privilege over the redacted text. Defendants also object that the
documents produced do not comply with the subpoenas’ instructions that all responsive
materials be produced in their native formats.
A. Redaction of Responsive Documents
Initially, Hart and Henry responded to their respective subpoenas by broadly
objecting to all subpoena requests as irrelevant, overly broad, unduly burdensome, and
seeking private information from a non-party. In an amended response dated May 27,
2014, Hart produced twenty-four pages of documents and stated that she had no other
responsive documents. In an amended response dated May 28, 2014, Henry produced
seventeen pages of documents and stated that he had no other responsive documents.
The documents produced have clearly been redacted: portions of sentences, email
addresses, and entire paragraphs are missing from the documents produced.
The court begins its analysis by recalling that:
Redaction is, after all, an alteration of potential evidence. The Federal
Rules sanction only very limited unilateral redaction, see Fed. R. Civ. P.
5.2. Outside of these limited circumstances, a party should not take it
upon him, her or itself to decide unilaterally what context is necessary for
the non-redacted part disclosed, and what might be useless to the case.
David v. Alphin, No. 07-11, 2010 WL 1404722, at *7 (W.D.N.C. Mar. 30, 2010) (citing
Evon v. Law Offices of Sidney Mitchell, No. 09-0760, 2010 WL 455475, at *2 n.1 (E.D.
Cal. Feb. 3, 2010)). Accord In re MI Windows & Doors, Inc. Products Liab. Litig.,
Docket No. 12-mn-0001, 2013 WL 268206 at *3 (D.S.C. Jan. 24, 2013) (“It is apparent
to the court that partial redaction cannot be accomplished easily or accurately. As a
result, it will not be done at all.”); In re State Street Bank & Trust Co. Fixed Income
Funds Inv. Litig., Nos. 08-1945, 08-333, 2009 WL 1026013, at *1 (S.D.N.Y. Apr. 8,
2009) (“[Unilateral] redactions [of non-responsive information] are generally unwise.
They breed suspicions, and they may deprive the reader of context. Rule 26(b)(1) says
that information is relevant as long as it ‘appears reasonably calculated to lead to the
discovery of admissible evidence.’”); In re FedEx Ground Package Sys., Inc. Emp’t
Practices Litig., No. 05-527, 2007 WL 79312, at *5 (N.D. Ind. Jan. 5, 2007) (“[T]he
Federal Rules provide no procedural device for unilateral redaction by a party and it is a
procedure that is not favored.”).
Hart and Henry have neither explained their redactions nor asserted privilege
over any of the redacted information. As a result, the court cannot divine any reason –
good, bad, or otherwise – why these passages have been redacted. The redaction of
irrelevant information, even when sparingly done, deprives defendants of context for the
relevant information. See Bartholomew v. Avalon Capital Grp., 278 F.R.D. 411, 451 (D.
Minn. 2011) (“It is a rare document that contains only relevant information.”). The
“attendant expense and delay” hampers the discovery efforts of all parties. Orion Power
Midwest, L.P. v. Am. Coal Sales Co., No. 05-555, 2008 WL 4462301, at *2 (W.D. Pa.
Sept. 30, 2008).
Because Henry and Hart have provided no explanation for their redactions and
because they have not asserted privilege over the redacted material, the court will require
them to reproduce all responsive documents in their complete form.
B. Production of Documents in Native Format
Defendants also contend that the court should require Hart and Henry to produce
all responsive electronic data in its native format, as requested by the subpoenas.2
The subpoenas issued to Hart and Henry stated: “For all electronic data, you are requested to
provide the responsive electronic data in its native-application electronic format on read-only
media. When producing electronic data in its native-application format, include all meta-data.”
Hart Subpoena ¶ 5; Henry Subpoena ¶ 5.
Instead of producing responsive material in its native format, Hart and Henry
printed out responsive emails and provided photocopies of certain portions of those
emails to defendants. Additionally, Hart provided the content of several text message
exchanges and Facebook posts by transcribing those messages on loose-leaf paper.
Rule 45 explains how parties who have been served with subpoenas may object to
A person commanded to produce documents or tangible things or to
permit inspection may serve on the party or attorney designated in the
subpoena a written objection to inspecting, copying, testing, or sampling
any or all of the materials or to inspecting the premises--or to producing
electronically stored information in the form or forms requested. The
objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served.
Fed. R. Civ. P. 45(d)(2)(B). “The failure to serve written objections to a subpoena within
the time specified by Rule 45(c)(2)(B) typically constitutes a waiver of such objections.”
Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996).
Hart and Henry have not served written objections to the requests to produce all
electronic data in its native format, including all metadata.3 The time to object to such
The Fourth Circuit recently defined “metadata” as “data that provides information about other
data.” Country Vintner of N. Carolina, LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 253 n.4
(4th Cir. 2013) (quotation omitted). The court further explained that
Metadata may be totally innocuous, such as formatting instructions and margin
determinations, but sometimes metadata provides crucial evidence that is not
available in a paper document. Metadata may reveal who worked on a
document, the name of the organization that created or worked on it, information
about prior versions of the document, recent revisions, and comments inserted in
the document during drafting or editing. The hidden text may reflect editorial
comments, strategy considerations, legal issues raised by the client or the lawyer,
or legal advice provided by the lawyer. Metadata may provide information that a
paper document would not provide or information that differs from a paper
document. Metadata may also reveal that a document has been changed or
Id. (quotation omitted).
production has long since passed. Because Hart and Henry have not objected to
producing responsive documents in their native format, any such objection has been
waived. See, e.g., Hanwha Azdel, Inc. v. C & D Zodiac, Inc., Docket No. 6:12-cv-00023,
2013 WL 3660562, at *2 (W.D. Va. July 11, 2013). The court will require Hart and
Henry to reproduce all responsive documents in their native format, including metadata
for responsive electronic documents.
In light of the foregoing, the court GRANTS defendants’ motion to compel
Campbell Lane Hart’s compliance with the February 26, 2014 subpoena, Wellin I, ECF
No. 140 and Schwartz, ECF No. 77. The court also GRANTS defendants’ motion to
compel Kimerly Henry’s compliance with the February 26, 2014 subpoena, Wellin I,
ECF No. 141 and Schwartz, ECF No. 79.
The court DIRECTS Hart and Henry to produce all responsive documents in their
native format and without redaction within thirty (30) days of the date of this order. For
all responsive electronic documents, metadata should also be produced.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
July 14, 2014
Charleston, South Carolina
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