Wellin v. Wellin et al
ORDER denying (434) Motion to Quash; adopting in part Report and Recommendations re (465) Report and Recommendation. in case 2:13-cv-01831-DCN; denying (458) Motion to Quash; adopting in part Report and Recommendations re ( 500) Report and Recommendation. in case 2:13-cv-03595-DCN; denying (206) Motion to Quash; adopting in part Report and Recommendations re (251) Report and Recommendation. in case 2:14-cv-04067-DCN Signed by Honorable David C Norton on 3/31/2017.Associated Cases: 2:13-cv-01831-DCN, 2:13-cv-03595-DCN, 2:14-cv-04067-DCN(eric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
WENDY WELLIN, as the Special
Administrator of the Estate of Keith S. Wellin
and as Trustee of the Keith S. Wellin Florida
Revocable Living Trust u/a/d December 11,
PETER J. WELLIN, et. al.,
LARRY S. McDEVITT, as Trustee of the
Wellin Family 2009 Irrevocable Trust,
PETER J. WELLIN, et. al.,
PETER J. WELLIN, et. al.,
WENDY WELLIN, individually and as Trustee
of the Keith S. Wellin Florida Revocable Living
Trust u/a/d December 11, 2011,
These matters are before the court on the Report and Recommendation
(“R&R”) of Special Master William L. Howard, ECF No. 465,1 recommending the
court deny the Gustav Wellin, Nathaniel Wellin, Nicholas Wellin, Abigail King,
Claire King, Mackenzie King, Dr. Ann Plum, and Keith Plum’s (collectively, the
“Wellin Grandchildren”) Motion to Quash and/or for Protective Order, ECF No. 434,
but allow the Wellin Grandchildren to redact call information regarding numbers not
identified by Wendy Wellin (“Wendy”) as numbers of interest. Wendy filed an
objection to the R&R.2 For the reasons that follow, the court rejects the R&R to the
extent it permits the Wellin Grandchildren to redact call information from the
requested telephone records, and adopts the remainder of the R&R as amended to
correct a scrivener’s error identified in Wendy’s objections.
Because the parties are well-acquainted with these cases, the court will
dispense with a recitation of the facts and include only a brief overview of the matters
at hand. These cases involve a variety of claims related to the estate plan of Keith
Wellin (“Keith”). The R&R ably summarized one of the primary “themes” of the
many arguments made by Peter J. Wellin, Cynthia W. Plum, and Marjorie W. King
(the “Wellin Children”) as follows:
[T]hroughout his life, Keith  intended to leave the bulk of his estate
to his children and their lineal descendants. But once he became
physically and mentally compromised by his failing health, . . . Wendy
 unduly influenced him and manipulated him into changing his estate
plan to benefit Wendy to the exclusion of the Wellin Children and
All ECF Number citations refer to Case Number 2:13-cv-1831-DCN.
The Wellin Grandchildren also filed an objection to the R&R addressing a
separate matter, ECF No. 474, but that objection was withdrawn on September 16,
2016. ECF No. 495.
their descendants. The Wellin Children maintain Wendy successfully
exerted undue influence over Keith by insulating him from his children
and grandchildren, in part, by denying them telephone access to Keith
R&R at 10. In contrast, “Wendy  contends the Wellin Children and Grandchildren
did not maintain regular contact with Keith  during his latter years.” Id. at 11.
Wendy served a set of subpoenas duces tecum on the Wellin Grandchildren on
March 27, 2015, and a supplemental set of subpoenas on March 31, 2016. The
supplemental subpoenas requested “[a]ll telephone records from January 1, 2009 to
September 14, 2014, including the records from the land lines of any houses owned
by you, or the cell phone records of any cell phones owned by you.” The Wellin
Grandchildren objected to this request as overbroad, irrelevant, and unduly
burdensome, and filed the Motion to Quash and/or for Protective Order on April 13,
2016. ECF No. 434. Wendy filed a response on May 2, 2016, ECF No. 442, and the
Wellin Grandchildren filed a reply on May 9, 2016. ECF No. 444.
The special master issued the R&R on July 1, 2016.3 The special master
found that the requested telephone records were relevant, noting that “the number of
calls attempted by each Grandchild over the relevant time period may provide
pertinent information, such as a pattern or trend,” that may clarify whether the
Grandchildren attempted to maintain a relationship with Keith. R&R at 11.
However, the special master found the scope of the request to be “overbroad because
it does not limit the requested records to telephone numbers pertinent to the issues,”
The above-captioned matters have been consolidated for the purposes of
pretrial discovery. ECF No. 271. On February 17, 2015, this court appointed
William L. Howard to serve as special master over all non-dispositive, pre-trial
matters and motions in these cases, including those pending before this court at the
time. ECF No. 270.
and thus, “gives Wendy access to call information regarding communications having
no relevance to the issues in these cases.” Id. at 12. To remedy this problem, the
magistrate judge recommended that Wendy be required “to identify each number
and/or call of interest for which she requests the telephone record information,
thereby allowing the Grandchildren to redact other call information.” Id. Wendy
filed her objection to the R&R on July 21, 2016, arguing that the recommended
redactions should not be permitted. ECF No. 475. The Wellin Grandchildren did not
respond to this objection. The matter is now ripe for the court’s review.
In reviewing a special master’s order, report, or recommendation, the court
may “adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the
master with instructions.” Fed. R. Civ. P. 53(f)(1). The court is required to review all
objections to any findings of fact or conclusions of law made or recommended by a
special master de novo. Fed. R. Civ. P. 53(f)(3), (4); Wellin I, ECF No. 270.
However, the special master’s rulings on procedural matters will only be set aside for
abuse of discretion. Fed. R. Civ. P. 53(f)(5); Wellin I, ECF No. 270, 6.
The Federal Rules of Civil Procedure provide that a party 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,
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(b)(1). Such information “need not be admissible in evidence to be
“The court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense” by
forbidding or limiting the scope of discovery. Fed. R. Civ. P. 26(c)(1). “The scope
and conduct of discovery are within the sound discretion of the district court.”
Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir.
1995) (citing Erdmann v. Preferred Research, Inc. of Ga., 852 F.2d 788, 792 (4th Cir.
1988)); see also U.S. ex rel. Becker v. Westinghouse Savannah River Co., 305 F.3d
284, 290 (4th Cir. 2002) (stating that district courts are afforded
“substantial discretion . . . in managing discovery”).
Wendy argues that the court should reject the R&R’s recommendation that the
Wellin Grandchildren be allowed to redact call information that is not connected to
the telephone numbers she identifies as “numbers of interest.” R&R at 12. Wendy
notes that the court has twice rejected previous attempts in this litigation to make
relevance-based redactions of this sort, see Wellin v. Wellin, No. 2:13-cv-1831-DCN,
2015 WL 5781383 (D.S.C. Sept. 30, 2015); Wellin v. Wellin, No. 2:13-cv-1831DCN, 2014 WL 3496514 (D.S.C. July 14, 2014), and argues that there is no reason to
depart from this rule here. The court agrees.
The special master reasoned that the proposed redactions were necessary
because without them Wendy would have access to irrelevant call information. R&R
at 12. However, the court does not find the prospect of allowing Wendy access to
irrelevant call information to be particularly troubling. The fact that a document
contains both relevant and irrelevant information is by no means extraordinary.
Bartholomew v. Avalon Capital Grp., Inc., 278 F.R.D. 441, 451 (D. Minn. 2011) (“It
is a rare document that contains only relevant information.”). Much of the material
that parties exchange in discovery contains irrelevant information, but this is not
ordinarily viewed as problem. Thus, relevance, in and of itself, does not seem a
particularly compelling reason to depart from the ordinary practice of providing
responsive documents in full. Id. at 452 (“[C]ourts view ‘documents’ as relevant or
irrelevant; courts do not, as a matter of practice, weigh the relevance of particular
pictures, graphics, paragraphs, sentences, or words . . . .”). Moreover, as the court has
previously observed, “relevance-based redactions are disfavored, because they ‘breed
suspicions, and they may deprive the reader of context.’” Wellin, 2015 WL 5781383,
at *5 (quoting In re State St. Bank & Trust Co. Fixed Income Funds Inv. Litig., 2009
WL 1026013, at *1 (S.D.N.Y. Apr. 8, 2009)); see also David v. Alphin, 2010 WL
1404722, at *7 (W.D.N.C. Mar. 30, 2010) (“[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.”).
The court finds that this concern applies in this situation. If the telephone
records are restricted to particular “[telephone] number[s] and/or call[s] of interest,”
then they will only disclose patterns that can be discovered by looking at calls
between those numbers. But it is certainly possible that the Wellin Grandchildren’s
calls to these “numbers of interest” might be part of a broader pattern that involves
calls to other numbers. Perhaps this argument is too speculative to make all of the
numbers contained in the Wellin Grandchildren’s telephone records “relevant,” but
the court remains convinced that the additional context provided by the full records
will be beneficial, even if the only benefit is to prevent the suspicion that might arise
if redaction were allowed.
The court also finds it significant that it has prohibited other parties and nonparties in this litigation from making similar redactions. See Wellin, 2015 WL
5781383 (prohibiting Wendy from redacting specific vendor information from credit
card records subpoenaed by the Wellin Children); Wellin, 2014 WL 3496514, at *4
(requiring non-parties—Wendy’s daughter and brother—to reproduce subpoenaed
documents without redactions). In the interest of fairness, the court finds that the
Wellin Grandchildren must comply with the same rule. This is not to say that there
may not be some situation in which relevance-based redactions might be appropriate.
For instance, if redactions were necessary to protect parties or non-parties from
harassment or to prevent the disclosure of sensitive information, the court would be
more inclined to consider them. But the law already provides tools that are generally
sufficient to address these concerns—namely, confidentiality orders and legally
recognized privileges. There is no suggestion that such concerns are at stake here.
Wendy has explained that the parties’ have a standing agreement that, if one party has
a question about a number contained in the telephone records produced by another
party, the first party may request additional information from the producing party, but
it may not call the number. ECF No. 475 at 7. Therefore, the court concludes that
even if there may be some situations in which relevance-based redactions would be
permitted, this is not one.
For the foregoing reasons, the court ADOPTS the R&R in part and
REJECTS the R&R in part. The court rules that the Wellin Grandchildren shall not
be permitted to redact the requested telephone records. The court also AMENDS the
R&R to correct the scrivener’s error on page 25 of the R&R attributing the Motion to
Quash and/or for Protective Order to the Wellin Children, rather than the Wellin
Grandchildren. The remainder of the Wellin Grandchildren’s motion shall be
DENIED as set forth in the R&R, except that the court does not intend to disturb any
agreement the parties have reached regarding the matters addressed therein.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 31, 2017
Charleston, South Carolina
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?