Tsanacas v. Amazon.Com, Inc., et al

Filing 34

MEMORANDUM OPINION AND ORDER. Plaintiff's Motion to Compel Document Production (Dkt. #25) is hereby GRANTED in part and DENIED in part. Defendant shall produce all items in accordance with this order by 5:00 p.m. on January 15, 2018. Signed by District Judge Amos L. Mazzant, III on 1/8/2018. (rpc, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

PETER G TSANACAS
v.
AMAZON.COM, INC., AMAZON WEB
SERVICES, INC., and CHRIS LEATH

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Civil Action No. 4:17-CV-00306
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Compel Documents from Defendant Chris
Leath (Dkt. #25). After reviewing the relevant pleadings and motion, the Court finds the motion
should be granted in part and denied in part.
BACKGROUND
Plaintiff Peter Tsanacas alleges that his personal, confidential information was unlawfully
distributed to third-parties by Defendant Chris Leath (“Defendant” or “Leath”), an Amazon Senior
Category Merchandise Manager, who allegedly accessed Plaintiff’s Amazon account using his
home computer and sent pictures of Plaintiffs confidential information by text to a woman in
Texas.

Plaintiff’s causes of action against Leath include federal claims under the Stored

Communications Act, 18 U.S.C. 2701–2712, and the Computer Fraud and Abuse Act, 18 U.S.C.
1030; and state law claims under the Texas Harmful Access by Computer Act, the Texas Identity
Theft Enforcement and Protection Act, the Deceptive Trade Practices Act, invasion of privacy,
negligence, gross negligence and defamation.
On August 15, 2017, Plaintiff served his first set of requests for production (“RFPs”) to
Leath (Dkt. #26, Exhibit A). On September 14, 2017, Defendant Leath served his responses to
Plaintiff’s first set of RFPs (Dkt. #26, Exhibit B).

On October 25, 2017, the Court held a telephone conference on certain discovery issues,
including Leath’s invocation of the Fifth Amendment privilege against self-incrimination in
response to document requests. The Court directed both parties to provide additional briefing on
the issue.
On October 30, 2017, Plaintiff filed this motion to compel (Dkt. #25). On November 13,
2017, Leath filed a response (Dkt. #26).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 26(b)(1), parties “may obtain discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense . . . .” FED. R. CIV. P.
26(b)(1). Relevance, for the purposes of Rule 26(b)(1), is when the request is reasonably
calculated to lead to the discovery of admissible evidence. Id.; Crosby v. La. Health & Indem.
Co., 647 F.3d 258, 262 (5th Cir. 2011). It is well-established that “control of discovery is
committed to the sound discretion of the trial court.” Freeman v. United States, 556 F.3d 326, 341
(5th Cir. 2009) (quoting Williamson v. U.S. Dep’t of Agric., 815 F.2d 368, 382 (5th Cir. 1987)).
Rule 37 of the Federal Rules of Civil Procedure allows a discovering party, on notice to
other parties and all affected persons, to “move for an order compelling disclosure or discovery.”
FED. R. CIV. P. 37(a)(1). The moving party bears the burden of showing that the materials and
information sought are relevant to the action or will lead to the discovery of admissible evidence.
Export Worldwide, Ltd. v. Knight, 241 F.R.D. 259, 263 (W.D. Tex. 2006). Once the moving party
establishes that the materials requested are within the scope of permissible discovery, the burden
shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad, unduly
burdensome or oppressive, and thus should not be permitted. Id.

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Federal Rule of Civil Procedure 34 governs requests for production of documents,
electronically stored information, and tangible things. Rule 34 requires responses to “either state
that inspection and related activities will be permitted as requested or state with specificity the
grounds for objecting to the request, including the reasons.” FED. R. CIV. P. 34(b)(2)(B). “An
objection [to the entire request] must state whether any responsive materials are being withheld on
the basis of that objection.” Id. 34(b)(2)(C). On the other hand, “[a]n objection to part of a request
must specify the part and permit inspection of the rest.” Id.
After responding to each request with specificity, the responding attorney must sign their
request, response, or objection certifying that the response is complete and correct to the best of
the attorney’s knowledge and that any objection is consistent with the rules and warranted by
existing law or a nonfrivolous argument for changing the law. FED. R. CIV. P. 26(g). This rule
“simply requires that the attorney make a reasonable inquiry into the factual basis of his response,
request, or objection.” Fed. R. Civ. P. 26(g) advisory committee note (1983).
The federal rules follow a proportionality standard for discovery. FED. R. CIV. P. 26(b)(1).
Under this requirement, the burden falls on both parties and the court to consider the
proportionality of all discovery in resolving discovery disputes. FED. R. CIV. P. 26(b)(1), advisory
committee note (2015). This rule relies on the fact that each party has a unique understanding of
the proportionality to bear on the particular issue. Id. For example, a party requesting discovery
may have little information about the burden or expense of responding. Id. “The party claiming
undue burden or expense ordinarily has far better information—perhaps the only information—
with respect to that part of the determination.” Id.

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ANALYSIS
I.

Objections
a. Boilerplate Objections
Defendant Leath waived several objections by making boilerplate over broad, unduly

burdensome, and relevance objections. It is well-established that parties cannot make general or
boilerplate objections to discovery requests. Heller, 303 F.R.D. at 483 (N.D. Tex. 2014). Rule 34
requires that a response to an RFP “must either state that inspection and related activities will be
permitted as requested or state an objection to the request, including the reasons.” Fed. R. Civ. P.
34(b)(2)(B). The party resisting discovery “must show specifically . . . how each [request] is not
relevant or how each question is overly broad, burdensome or oppressive.” McLeod, Alexander,
Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (quoting Josephs v. Harris
Corp., 677 F.2d 985, 991–92 (3d Cir. 1982)). A party may not “refuse discovery simply by making
a boilerplate objection that it is not proportional.” Rule 26(b)(1), advisory committee note (2015).
Because “[i]n the face of [general] objections, it is impossible to know whether information has
been withheld and, if so, why.” Heller, 303 F.R.D. at 483 (quoting Weems v. Hodnett, No. 10-cv1452, 2011 WL 3100554, at *1 (W.D. La. July 25, 2011)).
Nearly all of Defendant’s responses begin with the objection:
Objection. Defendant would object to this request as it is over broad, unduly
burdensome, and harassing. Defendant would further object as the information
requested is neither relevant nor reasonably calculated to lead to the discovery of
admissible evidence. Defendant would further object in that, on the advice of
counsel, Defendant asserts his right against self-incrimination as afforded by the
5th Amendment to the United States Constitution and pursuant to Article 1,
Section 10 of the Texas Constitution.
(Dkt. #25, Exhibit B).

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Defendant Leath argues that his objections, including the one above, are not boilerplate
because “[e]ach of those objections is appropriate and applicable to the specific items sought in
Plaintiff’s Request for Production.” (Dkt. #26 at p. 7). The Court disagrees.
“Boilerplate” means “standardized text” or “ready-made or all-purpose language.”
Boilerplate, Merriam-Webster Collegiate Dictionary (11th ed. 2007); Boilerplate, Black's Law
Dictionary (10th ed. 2014). Defendant used the above objections on all nine (9) of his RFP
responses. (Dkt. #25, Exhibit B). This is the epitome of “standardized text.”

Simply put, the

above over broad, unduly burdensome, relevance objections do not “state with specificity the
grounds for objecting to the request.” FED. R. CIV. P. 34(b)(2)(B).
Defendant’s additional reason after the objection, address separate concerns such as the
privilege against self-incrimination, privacy rights, and harassment. However, those objections
stand or fall on their own. Therefore, Defendant’s failure to specify specific grounds in the above
objections results in waiver of those objections.

FED. R. CIV. P. 34(b)(2)(B); Keycorp,

2016 WL 6277813, at *11.
Even if Defendant did not waive these objections, Defendant’s objections are overruled.
Defendants have not met their burden to explain the specific and particular way that each request
is overbroad, unduly burdensome, and/or irrelevant after exercising reason and common sense to
attribute ordinary definitions to terms and phrases used in the request. Id. at 491. Further, based
on the Court’s review, these requests are not so overbroad and/or unduly burdensome as to be
incapable of reasonable interpretation and to prohibit Defendant’s responses.

Thus, these

objections are overruled. The Court will now address the additional reasons that accompany some
of Defendant’s responses.

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b. Harassing and Personal Privacy Rights
Leach again objects to all nine (9) RFPs as harassing and in RFPs 5 and 9 claims the
information sought is subject to his personal privacy rights. Again, the Court finds Defendant’s
reasoning is insufficient to explain the basis for these objections. FED. R. CIV. P. 34(b)(2)(B).
Therefore, the Court overrules Defendant’s objections on these grounds.
c. Fifth Amendment Privilege
In raising a Fifth Amendment objection, a party must selectively invoke the privilege
against self-incrimination and “object with specificity to the information sought from him.” See
SEC v. First Fin. Grp. of Texas, Inc., 659 F.2d 660, 668 (5th Cir. 1981). This allows a district
court to conduct “a particularized inquiry, deciding in connection with each specific area that the
questioning party seeks to explore, whether or not the privilege is well-founded. See United States
v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir. 1976). Whether a party is entitled to the
protection of the privilege is for the court to decide, not the invoking party. See First Fin., 659
F.2d at 668.
Defendant’s objections are not specific enough for the Court to decide whether the
privilege is well-founded. For example, Defendant has claimed his Fifth Amendment privilege in
response to a production request about itemized mobile phone bills and Defendant’s employment,
severance and termination agreements with Amazon (Dkt. #25, Exhibit B FRPs 1, 3).
The Fifth Circuit has held that the mere fact that evidence might be used in a later
prosecution will not support a claim of self-incrimination. See United States v. Roundtree, 420
F.2d 845, 852 (5th Cir. 1969). “Even if the danger of self-incrimination is great, the defendant’s
remedy is not to voice a blanket refusal to produce his records.” See SEC v. Kiselak Capital Grp.,

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LLC, No. 4:09-CV-256-A, 2011 WL 4398443, at *6 (N.D. Tex. Sept. 20, 2011). Instead, as
previously discussed, he must object with specificity. See id.
Confronted with inadequate information, the Court is not in a position to conjecture about
the possibility or potential nature of criminal proceedings. It is not self-evident that any disclosure
of Plaintiff’s requested document production would form a link to the chain of evidence of some
crime. The Court concludes that Defendant did not meet his burden to show that he has asserted
the objections with sufficient specificity. As discussed below, the Court will require Defendant to
produce a privilege log as to certain RFPs.
II.

Document Production
For the Court to order production, Plaintiff must show that Defendant failed to produce

documents or to permit the appropriate inspection. FED. R. CIV. P. 37(a)(3)(B). An evasive or
incomplete response suffices to show a failure to respond. Id. 37(a)(4). When some documents
have been produced in response to a request, Courts have interpreted “evasive or incomplete” to
place a modest burden on the requesting party to support, with existing documents, a reasonable
deduction that other documents may exist or did exist but have been destroyed. See Zubulake v.
UBS Warburg LLC, 217 F.R.D. 309, 313 (S.D.N.Y. 2003); see also Hubbard v. Potter,
247 F.R.D. 27, 29 (D.D.C. 2008).
The Court has already determined that Defendant’s over broad and unduly burdensome
objections were waived as boilerplate objections and Defendant’s harassment objections were
overruled. However, a party will still not be compelled to produce documents if the request is
overbroad or unduly burdensome on its face.

E.g., Aikens v. Deluxe Fin. Servs., Inc.,

217 F.R.D. 533, 537–38 (D. Kan. 2003). The federal rules follow a proportionality standard for
discovery. See FED. R. CIV. P. 26(b)(1). Under Rule 26, a request must be proportional to the needs

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of the case when 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).
Regarding Plaintiff’s RFPs 1 and 3, the Court finds Plaintiff’s request are proportional and
deserve no Fifth Amendment protection.

The Court orders that Defendant’s objections to

Plaintiff’s RFPs 1 and 3 are overruled and Defendant is hereby ordered to produce responsive
information to Plaintiff’s counsel by 5:00 p.m. on January 15, 2018.
Regarding Plaintiff’s RFPs 2, 4, 5, 6, 7, 8, and 9, to the extent that Defendant is withholding
any documents or information based on an over broad, unduly burdensome, and/or harassing
objection, those objections are overruled, and any responsive documents should be produced. The
Court does find there are possible Fifth Amendment implications regarding these RFP because the
production of those documents may have “communicative aspects of [their] own.” United States
v. Doe, 465 U.S. 605, 609 (1984). “[T]he act of production could constitute protected testimonial
communication because it might entail implicit statements of fact: by producing documents in
compliance with [the production request], [Defendant] would admit that the papers existed, were
in his possession or control, and were authentic.” United States v. Hubbell, 530 U.S. 27, 36 n.19
(2000) (citing Doe, 465 U.S. at 613).
However, a privilege log must be produced for any documents, communications, or other
materials withheld from production on privilege grounds. See FED. R. CIV. P. 26(b)(5). Neither
party addresses whether Defendant produced such a log. To the extent that Defendant have not
done so, the Court orders Defendant to produce a privilege log for each assertion of privilege by
5:00 p.m. on January 15, 2018.

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CONCLUSION

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It is therefore ORDERED that Plaintiff’s Motion to Compel Document Production
(Dkt. #25) is hereby GRANTED in part and DENIED in part. Defendant shall produce all items
in accordance with this order by 5:00 p.m. on January 15, 2018.
IT IS SO ORDERED.

SIGNED this 8th day of January, 2018.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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