United States District Court, D. New Jersey
MEMORANDUM OPINION AND ORDER
DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on a Motion by Plaintiff Goetz
Baier (“Baier”) to compel nonparty Realty
Management Associates (“RMA”) and Defendant
Lawrence Berger (“Berger”) to comply with a
Subpoena Duces Tecum. ECF No. 106. Plaintiff also requests an
award of attorney's fees incurred in connection with this
motion. Id. Mr. Berger and RMA oppose
Plaintiff's Motion. ECF No. 107. The Court has fully
reviewed the submissions of the parties and considers same
without oral argument pursuant to Fed.R.Civ.P. 78(b). For the
reasons set forth below, Plaintiff's Motion to Compel
Discovery is GRANTED, though Plaintiff's
Request for Reasonable Attorney's Fees is
facts and procedural history of this 10-year-old case are
well known to the parties and need not be recited at length.
Briefly, the underlying action concerns investments Mr.
Baier, a native of Germany, indirectly made in Defendants
Princeton Office Park, United States Realty Resources, Inc.,
United States Land Resources, L.P., and other, sometimes
related, entities through an investment vehicle called
Success Treuhand GmbH. ECF No. 1. Defendant Berger is a
principal in many of those entities. Id. at 2-4. A
dispute arose between the parties related to Mr. Baier's
attempt to withdraw his invested funds and associated profit.
Id. at 3-7. The underlying litigation followed.
Id. On May 11, 2012, U.S. District Judge Peter G.
Sheridan entered a Judgment in favor of Mr. Baier and against
Defendants Berger and United States Land Resources L.P.,
jointly and severally, in the amount of $675, 000. ECF No.
81. That Judgment reflected the consent of the parties.
the entry of the Consent Judgment, Plaintiff has thrice
sought the Court's aid in his attempts to collect on the
Judgment. In January 2013, Mr. Baier filed a Motion to Compel
Defendant to Answer Information Subpoena, based on what the
Plaintiff contended were Defendant's insufficient answers
to an Information Subpoena. ECF No. 86 at 1-3. Mr. Baier
withdrew that motion after Mr. Berger agreed to supplement
his answers to the Information Subpoena. ECF Nos. 87, 88. In
December 2016, Plaintiff filed a Motion to Alter Judgment to
Enter Charging Order seeking to attach for the Judgment
Creditor distributions made by 115 business entities to Mr.
Berger. ECF No. 94. That motion was denied without prejudice
by Judge Sheridan, though the Court ordered that Mr. Baier
would be allowed to resubmit the motion with further
documentation and briefing. Id. In response to a
second discovery dispute, this Court by Text Order dated
January 2, 2018 stated that “Plaintiff must file a
formal motion to obtain the post judgment relief it
seeks.” ECF No. 105. The instant Motion to Compel
Production of Documents followed.
contends Mr. Berger-through a Subpoena served upon a nonparty
entity, Realty Management Associates, in which Mr. Berger is
a partner with his wife-has failed to adequately and fully
respond to discovery demands that are part of Mr. Baier's
attempts to collect on the Consent Judgment. ECF No. 106.
Defendant counters that the discovery “will not aid in
collecting” on the Judgment and really is an effort to
“harass, annoy and burden” associated third
parties “in an effort to vex the judgment
debtor.” ECF No. 107 at 2.
latest discovery dispute has two broad categories. First,
Plaintiff contends Mr. Berger failed to provide any documents
responsive to Request Nos. 1, 12-13, and 19-20 of the
Subpoena Duces Tecum. ECF No. 106 at 11. Request No. 1 seeks
documents identifying RMA's “partners, owners,
members, officers, managers or managing agents.”
Id. Request Nos. 12-13 seek documents related to
alleged loans made between RMA, Mr. Berger and any other
related entities. Id. Request Nos. 19-20 seek
documents related to any agreements between or among RMA, Mr.
Berger and United States Land Resources. Id.
Defendant claims it provided no documents because no
documents exist that are responsive to these requests.
Plaintiff counters that New Jersey law requires certain
documents be filed with the state by all limited partnerships
or limited liability companies, ECF No. 106 at 12, while the
lack of any documentation for $4, 564, 267.84 of
disbursements by RMA or United States Land Realty to Mr.
Berger calls into question whether those payments amount to a
“scheme to pass off millions of dollars' worth of
income used by Berger to fund a princely lifestyle as
‘loans.'” Id. at 22.
second category, Plaintiff contends Mr. Berger and RMA are
unfairly withholding documents associated with and
authenticating the disbursements to Mr. Berger and other
related parties chronicled in a 74-page spreadsheet provided
by RMA in response to Request Nos. 2, 5-7, 10-11, and 14-17
of the Subpoena Duces Tecum. Id. Mr. Berger and RMA
counter that such documentation, where it exists, would be
unduly burdensome to produce and not proportionate to
Plaintiff's needs. ECF No. 107.
well established that the scope of discovery in federal
litigation is broad. Fed R. Civ. P. 26(b)(1). “Parties
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense.”
Id.; see also Pearson v. Miller, 211 F.3d
57, 65 (3d Cir. 2000). Moreover, information sought by the
parties need not be admissible in evidence to be
discoverable. Fed.R.Civ.P. 26(b)(1). During the course of
discovery, “[a] party may serve on any other party a
request within the scope of Rule 26(b)” to
produce documents “in the responding party's
possession, custody, or control.” Fed.R.Civ.P.
34(a)(1). Of course, the responding party is not obliged to
produce documents it does not possess or can not obtain.
See Bumgarner v. Hart, Civ. No. 05-3900, 2007 WL
38700, at *5 (D.N.J. Jan. 4, 2007) (holding that the Court
cannot order production of documents that are not in the
responding party's possession or control), Not only must
the requested documents be in the responding party's
possession or control, they also must be relevant. The
precise boundaries of the Rule 26 relevance standard
depend upon the context of each particular action, and the
determination of relevance is within the discretion of the
District Court. Barnes Found. v. Twp. of Lower Merion et
al., Civ. No. 96-372, 1996 WL 653114, at *1 (E.D.Pa.
the scope of discovery is undoubtedly broad, the Federal
Rules also provide that a Court “must limit the
frequency or extent of discovery otherwise allowed” if
it concludes that: (1) the discovery sought is cumulative or
duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive; (2)
the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or (3) the
burden or expense of the proposed discovery outweighs its
likely benefit. Fed.R.Civ.P. 26(b)(2)(C). Further, “the
Court has a responsibility to protect privacy and
confidentiality interests” and “has authority to
fashion a set of limitations that allow as much relevant
material to be discovered as possible ... while preventing
unnecessary intrusions into legitimate interests that may be
harmed by the discovery of material sought.”
Schmulovich v. 1161 Rt. 9 LLC, Civ. No. 07-597, 2007
WL 2362598, at *1-2 (D.N.J. Aug. 15, 2007); see also
Pearson, 211 F.3d at 65; Fed.R.Civ.P. 26(c).
37(a) allows a party to file a motion to compel discovery
where the opposing party fails to respond adequately to a
document request propounded pursuant to Rule 34.
Fed.R.Civ.P. 37(a)(3)(B)(iv). Ultimately, it is within the
Court's discretion whether to grant a motion to compel
disclosure. In re Cendant Corp. Sec. Litig., 343
F.3d 658, 668 (3d Cir. 2003).
seeks to collect on the Consent Judgment in favor of Mr.
Baier and against Defendants, including Mr. Berger. That
Judgment thus far is unsatisfied. Plaintiff states Mr. Berger
has claimed he has “virtually no unencumbered assets
and no income.” See Pl.'s Br. in Supp. of Mot. to
Compel Produc. at pg. 6. In light of the failure of
Defendants, including Mr. Berger, to satisfy this Consent
Judgment and pursuant to Fed.R.Civ.P. 26, Plaintiff served on
Mr. Berger as well as a related but nonparty entity, RMA, a
Subpoena Duces Tecum. That Subpoena sought information
regarding the ownership ...