1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Universal Services of America LP, et al., No. CV-23-00463-PHX-JAT
10 Plaintiffs, ORDER
11 v.
12 Daniel Mazzon,
13 Defendant. 14 15 Pending before the Court are Plaintiffs Universal Building Maintenance LLC d/b/a 16 Allied Universal Janitorial Services (“AUJS”), Universal Protection Service LP, and 17 Universal Services of America LP’s (collectively, “Plaintiffs”) fourteen Motions to 18 Compel various responses from Defendant Daniel Mazzon (“Defendant”). (Doc. 44–45, 19 47–58). Defendant has filed individual responses to each motion. (Doc. 60–73). Also 20 pending before the Court are the parties’ Joint Motion for Discovery Dispute, (Doc. 40), 21 and the parties’ Joint Motion for Discovery Dispute, (Doc. 74). The Court now rules. 22 I. BACKGROUND 23 Plaintiffs filed the instant action in Maricopa County Superior Court, alleging three 24 counts: (1) breach of contract, (2) tortious interference with contract, and (3) breach of the 25 duty of loyalty. (See generally Doc. 1-2). The action was subsequently removed to federal 26 court. (Doc. 1). In a previous order, this Court dismissed Plaintiffs’ breach of contract 27 claim, leaving just the tortious interference with contract and breach of duty of loyalty 28 claims remaining. (See generally Doc. 32). 1 The parties filed a Joint Motion for Discovery Dispute on December 18, 2023, 2 informing the court that “[t]he Parties widely disagree over whether Plaintiffs’ discovery 3 requests are relevant to this action.” (Doc. 40 at 3). The Court issued an order on December 4 19, 2023, noting various discrepancies in the parties’ filing and requiring Plaintiffs to file 5 separate motions to compel each discovery request on which Plaintiffs seek to have this 6 court order further production. (See generally Doc. 41). Pursuant to that order, Plaintiffs 7 filed the pending fourteen motions to compel Defendant’s responses as to various requests 8 for production (“RFPs”) and interrogatories. 9 II. LEGAL STANDARD 10 A. Motions to Compel 11 The Federal Rules permit a party to file a motion to compel an “answer, designation, 12 production, or inspection” in one, some, or all of the following relevant circumstances: (1) 13 when “a party fails to answer an interrogatory submitted under Rule 33,” and (2) when “a 14 party fails to produce documents . . . under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii)–(iv). 15 “The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy 16 requirements of Rule 26(b)(1). Thereafter, the party opposing 17 discovery has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining[,] or 18 supporting its objections.” Bryant v. Ochoa, No. 07-cv-00200, 19 2009 WL 1390794, at *1 (S.D. Cal. May 14, 2009). “Those opposing discovery are ‘required to carry a heavy burden of 20 showing’ why discovery should be denied.” Gottesman v. 21 Santana, No. 16-cv-02902, 2017 WL 5889765, at *3 (quoting Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 22 1975)). 23 Washington v. Freedom of Expression LLC, No. CV-21-01318-PHX-MTL, 2022 WL 24 1081200, at *1 (D. Ariz. Apr. 11, 2022). Rule 26(b)(1) states that the scope of discovery 25 includes any non-privileged matter that is relevant to some claim or defense in the case, 26 and that is proportional to the needs of the case, considering various factors. See Fed. R. 27 Civ. P. 26(b)(1). 28 // 1 B. Claims in Plaintiffs’ Action 2 This Court has previously delineated the legal standards for the two remaining 3 claims in this action, (see generally Doc. 32), but the Court reiterates the standards here. 4 In Arizona, to state a claim for intentional interference with contractual relations a 5 plaintiff must allege facts showing: “(1) the existence of a valid contractual relationship; 6 (2) knowledge of the relationship” by the interferer; “(3) intentional interference inducing 7 or causing a breach; (4) resultant damage to the party whose relationship has been 8 disrupted; and (5) that the defendant acted improperly.” Snow v. Western Sav. & Loan 9 Ass’n, 730 P.2d 204, 211 (Ariz. 1986) (citation omitted). The impropriety element 10 ordinarily requires that a defendant’s actions be “improper as to motive or means.” Safeway 11 Ins. Co. v. Guerrero, 106 P.3d 1020, 1026 ¶ 20 (Ariz. 2005). Arizona has adopted the 12 approach of the Restatement (Second) of Torts to determining impropriety. Wagenseller v. 13 Scottsdale Mem’l Hosp., 710 P.2d 1025, 1042 (Ariz. 1985). In general terms, this approach 14 involves “weighing the social importance of the interest the defendant seeks to advance 15 against the interest invaded.” Snow, 730 P.2d at 212 (citation omitted). 16 In Arizona, “an employee owes his or her employer a fiduciary duty, which includes 17 a duty of loyalty.” Sec. Title Agency, Inc. v. Pope, 200 P.3d 977 ¶ 53 (Ariz. App. 2008) 18 (citing McAllister Co. v. Kastella, 825 P.2d 980, 982–83 (Ariz. App. 1992) (cleaned up)). 19 As a corollary of this duty, although an employee may generally “prepare to compete with 20 a current employer, ‘the tactics that [he] may use . . . are subject to legal limits.’” Taser 21 Int’l, Inc. v. Ward, 231 P.3d 921, 928 ¶ 27 (Ariz. App. 2010) (citing Restatement (Third) 22 of Agency § 8.04 cmt. b (Am. L. Inst. 2006)). One such limit is the agent’s duty “not to 23 use property of the principal for the agent’s own purposes.” Id. (citing Restatement (Third) 24 of Agency § 8.05).1 25 III. DISCUSSION 26 A. Plaintiffs’ RFP Number 1 27 Plaintiffs’ first motion to compel contains their request for all communications of
28 1 See note 5, infra, for further discussion of a breach of duty of loyalty claim that provides relevant context for Plaintiffs’ motions to compel at issue here. 1 any kind between Defendant and any customers of Plaintiffs during Defendant’s 2 employment with Plaintiff AUJS, from January 1, 2020, to present. (Doc. 44 at 6). 3 Plaintiffs argue that they are entitled to this discovery “in order to uncover the full extent 4 of Defendant’s misconduct.” (Id. at 2). Plaintiffs also argue that whether Plaintiffs also 5 have access to the information requested does not change Defendant’s obligations to 6 produce the requested documentation. (Id. at 2–3). Plaintiffs further state that even if 7 Defendant articulated a valid objection, Defendant at minimum “failed to respond to the 8 non-objectionable portions of the request.” (Id. at 3). 9 Defendant argues that Plaintiffs’ first RFP constitutes an improper fishing 10 expedition because the RFP “demands a great wealth of communications that are well 11 beyond the needs of the case, bear no relevance to this matter, and are already in possession, 12 custody, and control of the Plaintiffs.” (Doc. 60 at 3). The Court addresses several issues 13 raised by Plaintiffs’ first RFP below. 14 First, and as noted in its previous order, the Court again notes Defendant presumably 15 does not have access to any communications he made using Plaintiffs’ computers. Thus, to 16 the extent that Plaintiffs request communications located exclusively on Plaintiffs 17 computers and/or servers, the Court denies the request. See Milke v. City of Phoenix, 497 18 F. Supp. 3d 442, 465 (D. Ariz. 2020), aff'd, No. 20-17210, 2022 WL 259937 (9th Cir. Jan. 19 27, 2022) (generally, a party must produce documents in that party’s possession, custody, 20 or control). 21 Next, Defendant has asserted that, pursuant to the Court’s order requiring Plaintiffs 22 to produce all contracts on which they intend to rely by December 29, 2023, (Doc. 43), 23 Plaintiffs have produced just one contract—a March 2016 contract between AUJS and an 24 entity titled LBV-RV Company VIII (hereinafter “LBV-RV Contract”). (Doc. 60 at 2). 25 Defendant argues, and the Court agrees, that because Plaintiffs produced just the LBV-RV 26 Contract, Plaintiffs’ discovery as to their tortious interference with contract claim is limited 27 to discovery relevant to just the LBV-RV Contract. 28 Finally, the Court notes that as for Plaintiffs’ breach of duty of loyalty claim against 1 Defendant, Defendant indeed owed a duty of loyalty to Plaintiffs only while employed by 2 Plaintiff AUJS.2 Moreover, Plaintiffs’ first RFP fails to request discovery regarding any 3 particularized instances that Plaintiffs claim constituted a breach of the duty of loyalty by 4 Defendant. As such, the Court finds that Plaintiffs’ first RFP is an overly broad fishing 5 expedition. Because the breach of duty of loyalty involves the use of company resources, 6 the information required to formulate a good faith basis for requesting specific alleged 7 instances of breach is in Plaintiffs’ exclusive possession, custody, or control. Accordingly, 8 the Court denies Plaintiffs’ first RFP as to the breach of fiduciary duty of loyalty as an 9 overbroad fishing expedition.3 10 Thus, the Court grants in part and denies in part Plaintiffs’ motion regarding 11 Plaintiffs’ first RFP, noting the following limitations. The motion is granted to the extent 12 that Defendant must make a good faith and diligent effort to locate and produce information 13 stored on his personal electronic devices or in paper form relevant to the LBV-RV Contract, 14 over the course of the full period of time Plaintiffs request. As to any other discovery 15 requested in Plaintiffs’ first RFP, Plaintiffs’ motion is denied. 16 B. Plaintiffs’ RFP Number 2 17 Plaintiffs’ second RFP asks Defendant to provide all communications between 18 Defendant and any persons, companies, or entities that provide building services that took 19 place from January 1, 2020, to present. (Doc. 45 at 6). Plaintiffs argue that the relevance 20 of this request is “patent” because it will enable Plaintiffs to “inquire into the 21 communications Defendant had with others regarding the provision or [sic] building 22 services.” (Id. at 2). 23 Defendant argues that Plaintiffs’ second RFP is a brazen fishing expedition and 24 asserts that Defendant never dealt with building services while he was employed by 25 Plaintiff AUJS; instead, “his employment related exclusively to janitorial services.” (Doc.
26 2 See Section II.B., supra (explaining the legal standard for a breach of duty of loyalty claim). 27 3 The Court notes that, as for Plaintiffs’ later RFPs that pertain to particular entities, the Court has granted Plaintiffs’ requests so long as Defendant ultimately did enter into 28 business with the particularized entities because in those instances, Plaintiffs indeed made more specific requests. 1 61 at 3 (emphasis in original)). Defendant urges the Court to reject Plaintiffs’ second RFP 2 outright as an abuse of the discovery process. (Id.). 3 The Court agrees with Defendant that Plaintiffs’ second RFP is overly broad and 4 seeks information irrelevant to the claims remaining in this action. To the extent Defendant 5 never dealt in building services while employed by Plaintiff AUJS or after his employment 6 terminated, and thus Defendant is asserting he has no communications to produce, the 7 Court denies Plaintiffs’ second RFP.4 Moreover, and more importantly, whether Defendant 8 communicated with any entities that were not clients of Plaintiffs is irrelevant to the claim 9 of tortious interference, as this claim pertains to Defendant’s alleged dealings with 10 Plaintiffs’ contracts and clients, not building services clients in general. Defendant’s 11 alleged dealings with Plaintiffs’ clients is already covered in Plaintiffs’ first RFP. As for 12 Plaintiffs’ claim of breach of duty of loyalty, the Court reiterates its reasoning in its 13 discussion of Plaintiffs’ RFP Number 1. Thus, the Court denies Plaintiffs’ motion 14 regarding their second RFP. 15 C. Plaintiffs’ RFP Number 3 16 Plaintiffs’ third RFP pertains to Defendant’s communications with any persons, 17 companies, or entities that are customers or prospective customers of building services. 18 (Doc. 57 at 6). Plaintiffs argue that the relevance of this RFP is also “patent” because 19 “Plaintiffs are entitled to inquire into the communications defendant had regarding the 20 provision of building services, the very thing he provided on behalf of AUJS and now 21 provides on behalf of [his company].” (Doc. 57 at 2). Plaintiffs further argue that whether 22 the materials requested are in Plaintiffs’ possession should not impact the Court’s analysis. 23 Defendant reiterates his argument that he never dealt in building services while 24 employed by Plaintiff AUJS. (Doc. 62 at 3). Defendant further argues that Plaintiffs “refuse 25 to tailor their RFP to the matters at issue in this case because they attempting [sic] to 26 uncover irrelevant information regarding [Defendant’s] present business activities,” and
27 4 The Court notes that Plaintiffs dispute this assertion, arguing that building services are the very services Defendant provided while employed. The Court believes the parties likely 28 are arguing over semantics. Regardless, the Court denies Plaintiffs’ motion for reasons independent from this distinction. 1 that this Court “has already established that [Defendant] may compete with Plaintiffs.” 2 (Id.). 3 The Court finds that Plaintiffs’ third RFP is overbroad for the same reasons stated 4 in the Court’s discussion of Plaintiffs’ second RFP—namely, that Defendant’s 5 communications with any entities not already covered by Plaintiffs’ first RFP (that is, 6 Plaintiffs’ disclosed contract) are irrelevant to Plaintiffs’ tortious interference claim, and 7 that Plaintiffs’ request is a fishing expedition as to Plaintiffs’ breach of duty of loyalty 8 claim. Thus, the Court denies Plaintiffs’ motion pertaining to their third RFP. 9 D. Plaintiffs’ RFP Number 4 10 Plaintiffs’ fourth RFP requests that Defendant provides all communications of any 11 kind, sent by Defendant from Defendant’s email address assigned to him by Plaintiffs, to 12 any personal email address, from January 1, 2020 to present. (Doc. 47 at 6). Plaintiffs argue 13 that they are “entitled to inquire into ways Defendant surreptitiously schemed, while 14 employed by AUJS, to conduct business on behalf of [Defendant’s company] using AUJS 15 resources and computers.” (Id. at 2). Plaintiffs further argue that whether Plaintiffs already 16 possess the communications they have requested should not sway the Court to deny their 17 motion because other courts in this Circuit have rejected the argument. (Id. at 3). 18 Defendant argues that the email address from which Plaintiffs’ ask Defendant to 19 produce communications is in Plaintiffs’ exclusive “access, custody, and control.” (Doc. 20 63 at 2). Moreover, Defendant argues, if any emails relevant to Defendant’s alleged 21 misconduct existed, Plaintiffs should have produced them pursuant to Fed. R. Civ. P. 22 26(a)(1), which requires a party to produce anything it “may use to support its claims or 23 defenses.” (Id.). 24 The Court first notes that any communication Defendant sent via his work email to 25 anyone other than his own personal email is almost certainly not in Defendant’s possession, 26 custody, or control because Defendant presumably no longer has access to his work email 27 address. Thus, at a minimum, Defendant need not produce such communications because 28 Defendant cannot produce them. As for communications that Defendant may have sent 1 from his work email to his own personal email, the Court is persuaded by Plaintiffs’ 2 citations to various cases in which courts have compelled production when both sides 3 possess the same documentation. Thus, the Court grants Plaintiffs’ motion, only as to any 4 communications Defendant sent from his work email address to an email address in 5 Defendant’s possession, custody, or control; moreover, the motion is granted only as to (1) 6 the LBV-RV Contract, over the course of the full period of time Plaintiffs request, and (2) 7 Defendant’s alleged breach of duty of loyalty, starting on January 1, 2020, and ending on 8 the date Defendant’s employment terminated.5 The Court otherwise denies Plaintiffs’ 9 motion regarding their fourth RFP. 10 E. Plaintiffs’ RFP Number 5 11 Plaintiffs’ fifth RFP asks Defendant to provide all documents, such as contracts, 12 evidencing a business relationship between Defendant and any entity other than Plaintiffs, 13 including any drafts thereof, from January 1, 2020, to present. (Doc. 48 at 5). Plaintiffs 14 argue that they are entitled to inquire into “the nature of the relationships between 15 Defendant and companies such as [list of examples],” as they are “at the core of this 16 lawsuit.” (Id. at 2). Plaintiffs further assert that they “are entitled to discover whether there 17 are additional, unknown improper contractual relationships that [D]efendant entered into.” 18 (Id. at 2). 19 Defendant argues that requesting production of all contracts with any person will 20 yield documents “so far afield from relevance . . . that it cannot be reasonably responded 21 to.” (Doc. 64 at 3). Defendant further argues that Plaintiffs are obligated—and here, have 22 failed—to articulate a good faith basis for bringing their subsequent discovery requests. 23 (Id.). 24 The Court agrees with Defendant that Plaintiffs’ fifth RFP is woefully overbroad, 25 and that Plaintiffs have not articulated a sufficient basis for its breadth. Indeed, “any” 26 contract with “any” entity includes a vast array of irrelevant documents and demonstrates
27 5 The Court notes that, given the restrictions it has imposed, Plaintiffs’ fourth RFP likely will lead to some production that is duplicative of Plaintiffs’ first RFP. To the extent that 28 this is true, Defendant need only provide documentation of the relevant communications once. 1 Plaintiffs’ questionable reasonableness in crafting their RFPs. Moreover, Plaintiffs have 2 previously been ordered to produce every contract on which they intend to rely, and 3 Defendant reported that Plaintiffs have produced just one contract. The Court reiterates 4 that the only two claims remaining in this action revolve around interference with 5 Plaintiffs’ contracts with individuals; thus, all relevant contracts should be in the 6 possession, custody, or control of Plaintiffs. Whether Defendant has also entered into other 7 contracts is of minimal consequence, absent Plaintiffs’ specific allegations or explanations 8 to the contrary. As such, the Court denies Plaintiffs’ motion regarding their fifth RFP. 9 F. Plaintiffs’ RFP Number 6 10 Plaintiffs’ sixth RFP requests that Defendant produce all documents of solicitations, 11 marketing materials, or other promotional materials sent to anyone other than Plaintiffs, 12 from January 1, 2020, to present. (Doc. 49 at 5). Plaintiffs argue that they “are entitled to 13 discover what efforts Defendant made to improperly market and solicit [Defendant’s 14 company] to potential customers.” (Id. at 2). 15 Defendant argues that Plaintiffs’ RFP is overbroad, as it does not specify any details 16 about the types of companies, purpose of the material, or whether they were a customer. 17 (Doc. 65 at 3). Defendant further states that he “sent a great deal of advertising material 18 during his employment,” and that “AUJS is in sole possession, custody, and control of such 19 material.” (Id.). 20 The Court reiterates its earlier discussion limiting the scope of Plaintiffs’ discovery 21 in its first RFP. As such, the Court grants in part and denies in part Plaintiffs’ motion 22 regarding Plaintiffs’ sixth RFP, noting the following limitations. The motion is granted to 23 the extent that Defendant must make a good faith and diligent effort to locate and produce 24 documents from his personal communications (i.e., those made using his personal contact 25 information and/or from sources not belonging to Plaintiffs) relevant to the LBV-RV 26 Contract, over the course of the full period of time Plaintiffs request. As to any other 27 discovery requested in Plaintiffs’ sixth RFP, Plaintiffs’ motion is denied. 28 // 1 G. Plaintiffs’ RFP Number 8 2 Plaintiffs’ eighth RFP seeks all calendars, planners, journals, or other documents 3 reflecting Defendant’s schedule and business activities from January 1, 2020, to present. 4 (Doc. 50 at 5). Plaintiffs argue that they “are entitled to discover the specifics of 5 Defendant’s activities during the relevant time period” because it would “aid in that 6 investigation.” (Id. at 2). 7 Defendant argues that Plaintiffs’ eighth RFP is again overbroad and fails to denote 8 any specifics as to the relevant documents given the limitations already placed on 9 Plaintiffs’ claims. (Doc. 66 at 3). Thus, Defendant argues, Plaintiffs’ eighth RFP, like 10 others, constitutes an improper fishing expedition to “uncover [Defendant’s] present 11 clientele.” (Id.). 12 The Court again reiterates its discussion regarding Plaintiffs’ first RFP. As such, the 13 Court grants in part and denies in part Plaintiffs’ motion regarding Plaintiffs’ eighth RFP, 14 noting the following limitations. The motion is granted to the extent that Defendant must 15 make a good faith and diligent effort to locate and produce documents in his possession, 16 custody, or control relevant to the LBV-RV Contract, over the course of the full period of 17 time Plaintiffs request. As to any other discovery requested in Plaintiffs’ eighth RFP, 18 Plaintiffs’ motion is denied. 19 H. Plaintiffs’ RFP Number 9 20 Defendant correctly points out that Plaintiffs’ ninth RFP is identical to Plaintiffs’ 21 fourth RFP. Thus, the Court denies Plaintiffs’ motion as to their ninth RFP as moot. 22 I. Plaintiffs’ RFP Number 10 23 Plaintiffs’ tenth RFP asks Defendant to produce all communications between 24 Defendant and Ace Building Maintenance and/or any agent or representative thereof, from 25 January 1, 2020, through present. (Doc. 52 at 5). Plaintiff argues that the complaint states 26 that while Defendant was employed by Plaintiff AUJS, Defendant used his work laptop to 27 access a proposal he offered to Ace Building Maintenance. (Id. at 2). As such, Plaintiffs 28 argue, they are entitled to discovery into “the content of communications that Defendant 1 had with Ace building Maintenance.” (Id.). 2 Defendant argues that Plaintiffs issued their tenth RFP for an improper purpose and 3 have failed to limit the request to the relevant scope dictated by the remaining claims in the 4 action. (Doc. 68 at 3). Specifically, Defendant asserts that because Plaintiffs argue that this 5 RFP is relevant to breach of duty of loyalty, discovery should be limited to reflect the fact 6 that a duty of loyalty exists only for the period a person is employed. (Id.). Finally, 7 Defendant argues that given the improper purpose and overbreadth, this Court should reject 8 the RFP outright. (Id.). 9 The Court first notes that Plaintiffs’ tenth RFP almost certainly will not lead to the 10 production of any evidence relevant to Plaintiffs’ tortious interference claim, as Plaintiffs 11 do not allege that Ace Building Maintenance was a party to the LBV-RV Contract. As for 12 the breach of duty of loyalty claim, the Court first notes that any communications between 13 Defendant and Ace Building Maintenance that took place using Plaintiff AUJS equipment 14 or Defendant’s AUJS email address are solely in Plaintiffs’ possession, custody, or control. 15 However, the Court acknowledges that, to the extent that Defendant ultimately conducted 16 business with Ace Building Maintenance, Plaintiffs have at least requested documents 17 relating to a particularized allegation of breach of duty of loyalty.6 As such, the Court grants 18 Plaintiffs’ motion regarding their tenth RFP in part, subject to the following limitations: 19 Defendant must produce any communications with Ace Building Maintenance in his 20 possession, custody, or control that (1) pertain to janitorial or building services, and (2) 21 contain or otherwise refer to materials Defendant obtained from Plaintiff AUJS while 22 employed there. As to any other discovery requested in Plaintiffs’ tenth RFP, Plaintiffs’ 23 motion is denied. 24 As for Plaintiffs’ subpoena intended for Ace Building Maintenance, the Court finds 25 6 See Firetrace USA, LLC v. Jesclard, 800 F. Supp. 2d 1042, 1052–53 (D. Ariz. 2010) 26 (discussing a breach of fiduciary duty of loyalty claim in Arizona and concluding that genuine issues of material fact remained concerning whether the defendant’s subsequent 27 development of a competing product was proximately caused by his alleged breach of fiduciary duty). The Court thus finds that although Defendant’s fiduciary duty was cut off 28 when he no longer was employed by Plaintiff AUJS, subsequent communications may nonetheless be relevant to Plaintiffs’ breach of duty of loyalty claim. 1 that, although a subpoena at this stage is not prohibited, it is at least premature considering 2 Defendant has not yet produced any communications that indicate that Defendant has even 3 entered into any contract with Ace Building Maintenance. As such, Plaintiffs’ subpoena is 4 quashed. 5 J. Plaintiffs’ RFP Number 11 6 Plaintiffs’ eleventh RFP requests all communications between Defendant and 7 Global Roofing Group and/or any agent or representative thereof, from January 1, 2020, to 8 present. (Doc. 53 at 5). Plaintiffs argue that Global Roofing Group is another potential 9 partner whom Defendant targeted for his own company while using company equipment. 10 (Id. at 2). As such, Plaintiffs argue, Plaintiffs are entitled to inquire into Defendant’s 11 communications with Global Roofing Group to uncover “the full extent of Defendant’s 12 misconduct.” (Id.). 13 Defendant argues that Plaintiffs’ eleventh RFP “bears no relevance” to either of the 14 two claims remaining in this action because Global Roofing Group “was not a client of 15 Defendant during his time at AUJS, does not provide janitorial services, and the document 16 disclosed by Plaintiffs indicate Defendant was offering to assist in marketing and branding 17 for Global Roofing Group.” (Doc. 69 at 3). Defendant points out that breach of the duty of 18 loyalty exists when an employee uses company resources to compete with an employer, 19 while in this case, Defendant’s contact with Global Roofing Group was an unrelated 20 enterprise and thus irrelevant. (Id.). 21 The Court first notes the same issues as noted above—the only claim to which this 22 discovery could be relevant is the breach of duty of loyalty claim, and any communications 23 Defendant made from his AUJS computer and/or email address are no longer in 24 Defendant’s possession, custody, or control. For these reasons, and because Defendant’s 25 contact with Global Roofing Group while employed was related to marketing, not janitorial 26 or building services, the Court denies Plaintiffs’ motion regarding their eleventh RFP. 27 K. Plaintiffs’ RFP Number 12 28 Plaintiffs’ twelfth RFP requests all communications between Defendant and 1 Restoration HQ and/or any agent or representative thereof, from January 1, 2020, to 2 present. (Doc. 54 at 5). Plaintiffs argue that Restoration HQ is another entity to whom 3 Defendant offered the services of his own company, using AUJS equipment, while still 4 employed by AUJS. (Id. at 2). As such, Plaintiffs argue that they are “entitled to inquire 5 into the content of communications that Defendant had with Restoration HQ.” (Id.). 6 Defendant argues that his communications with Restoration HQ are irrelevant 7 because Restoration HQ was not a client of Plaintiffs (or Defendant), the documents 8 Plaintiff produced “indicate Defendant was offering to assist in marketing and branding for 9 Restoration,” and the breach of a duty of loyalty would occur through the use of an 10 employer’s resources, not through communications with a new potential client. (Doc. 70 11 at 3). 12 The Court reiterates its discussion in addressing Plaintiffs’ eleventh RFP. For the 13 same reasons, the Court denies Plaintiffs’ motion regarding their twelfth RFP. Also for the 14 same reasons, the Court quashes Plaintiffs’ subpoena intended for Restoration HQ. 15 L. Plaintiffs’ Interrogatory Number 3 16 Plaintiffs’ third interrogatory asks Defendant to provide identities of everyone to 17 whom Defendant had provided building services or consulting relating to building services 18 since January 1, 2020. (Doc. 58 at 5). Plaintiffs argue that they are entitled to these 19 identities “[i]n order to discover the full extent of Defendant’s misconduct,” and “to 20 discover whether there are additional, unknown individuals and entities” to whom 21 Defendant provided such services. (Id. at 2). 22 Defendant argues that the clientele of his new company “are not even related to 23 Defendant’s former employment,” so Plaintiffs should not be entitled to the identities 24 because they are irrelevant. (Doc. 71 at 3). Defendant further argues that Plaintiffs are 25 merely “attempting to uncover irrelevant information regarding [Defendant’s] present 26 business activities,” and that this court should reject such an overbroad discovery request 27 as “an abuse of the discovery process.” (Id.). 28 The Court reiterates its discussion limiting the scope of Plaintiff’s first RFP. Thus, 1 the Court grants in part and denies in part Plaintiffs’ motion regarding Plaintiffs’ third 2 interrogatory, noting the following limitations. The motion is granted to the extent that 3 Defendant must make a good faith and diligent effort to locate and provide identities from 4 his personal sources (i.e., those contacted using his personal contact information and/or 5 from sources not belonging to Plaintiffs) relevant to the LBV-RV Contract, over the course 6 of the full period of time Plaintiffs request. As to any other discovery requested in 7 Plaintiffs’ third interrogatory, Plaintiffs’ motion is denied. 8 M. Plaintiffs’ Interrogatory Number 4 9 Plaintiffs’ fourth interrogatory seeks the identities whom Defendant has contacted 10 to solicit building services or consulting relating to building services since January 1, 2020. 11 (Doc. 55 at 5). Plaintiffs argue that they are entitled to these identities because it will enable 12 them to discover “more about the tortious conduct that Plaintiffs are already aware about,” 13 as well as “whether there are additional, unknown individuals and entities that Defendant 14 improperly contacted.” (Id. at 2). 15 Defendant argues that “Plaintiffs have not demonstrated any basis for [Defendant’s] 16 potential customer list to be relevant,” and that Defendant “never offered, managed, or sold 17 ‘business services’ during his time with AUJS.” (Doc. 72 at 3). Defendant further points 18 out that Plaintiff has produced just one contract with which Defendant allegedly interfered, 19 and Defendant may compete with Plaintiffs, so Defendant’s contacts “bear no relevance to 20 this matter.” (Id.). 21 The Court reiterates its discussion limiting the scope of Plaintiffs’ first RFP. Thus, 22 the Court grants in part and denies in part Plaintiffs’ motion regarding Plaintiffs’ fourth 23 interrogatory, noting the following limitations. The motion is granted to the extent that 24 Defendant must make a good faith and diligent effort to locate and provide identities from 25 his personal sources (i.e., those contacted using his personal contact information and/or 26 from sources not belonging to Plaintiffs) relevant to the LBV-RV Contract, over the course 27 of the full period of time Plaintiffs request. As to any other discovery requested in 28 Plaintiffs’ fourth interrogatory, Plaintiffs’ motion is denied. 1 N. Plaintiffs’ Interrogatory Number 5 2 Plaintiffs’ fifth interrogatory requests that Defendant provide the phone number and 3 email address by which Defendant communicated with anyone regarding providing 4 building services or consulting relating to building services since January 1, 2020. (Doc. 5 56 at 5). Plaintiffs argue that “[a]ny telephone numbers and email addresses that Defendant 6 used” to communicate with others about building services so that Plaintiffs can uncover 7 more about Defendant’s misconduct and discover whether there are further individuals 8 with whom Defendant interacted. (Id. at 2). 9 Defendant argues that Plaintiffs’ fifth interrogatory is improper and overbroad 10 because it seeks “unfettered access” to Defendant’s email address(es) and phone. (Doc. 73 11 at 3). 12 The Court first notes that it is unclear how obtaining Defendant’s contact 13 information will assist Plaintiffs in discovering more about Defendant’s alleged 14 misconduct or whether there are additional individuals with whom Defendant 15 communicated, unless Plaintiffs intend to seek a subpoena of Defendant’s phone(s) or 16 email address(es). The Court agrees with Defendant’s contention that Plaintiff is not 17 entitled to “unfettered access” to Defendant’s email or phone. Thus, because the only 18 purpose for which Plaintiffs request Defendant’s phone number(s) and email address(es) 19 appears to be to request a subpoena, the Court denies Plaintiffs’ motion to compel regarding 20 their fifth interrogatory as overbroad. 21 IV. CONCLUSION 22 For the foregoing reasons, 23 IT IS ORDERED that Plaintiffs’ Motion to Compel RFP Number 1, (Doc. 44), is 24 GRANTED in part and DENIED in part, as described above. 25 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 2, 26 (Doc. 45), is DENIED. 27 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 3, 28 (Doc. 57), is DENIED. 1 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 4, 2 (Doc. 47), is GRANTED in part and DENIED in part, as described above. 3 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 5, 4 (Doc. 48), is DENIED. 5 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 6, 6 (Doc. 49), is GRANTED in part and DENIED in part, as described above. 7 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 8, 8 (Doc. 50), is GRANTED in part and DENIED in part, as described above. 9 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 9, 10 (Doc. 51), is DENIED as moot. 11 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 10, 12 (Doc. 52), is GRANTED in part and DENIED in part, as described above. 13 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 11, 14 (Doc. 53), is DENIED. 15 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel RFP Number 12, 16 (Doc. 54), is DENIED. 17 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Interrogatory 18 Number 3, (Doc. 55), is GRANTED in part and DENIED in part, as described above. 19 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Interrogatory 20 Number 4, (Doc. 58), is GRANTED in part and DENIED in part, as described above. 21 IT IS FURTHER ORDERED that Plaintiffs’ Motion to Compel Interrogatory 22 Number 5, (Doc. 56), is DENIED. 23 IT IS FURTHER ORDERED that the Joint Motion for Discovery Dispute, (Doc. 24 40), is DENIED as moot. 25 IT IS FURTHER ORDERED that Defendant shall produce all documents or 26 information required by this Order within 14 days of this Order. 27 / / / 28 / / / 1 IT IS FINALLY ORDERED that Plaintiffs’ subpoenas as to Ace Building || Management and Restoration HQ are quashed, which resolves the joint discovery dispute || motion, (Doc. 74). 4 Dated this 17th day of January, 2024. 5 6 ' James A. Teilborg 8 Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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