United States District Court, D. New Jersey
MEMORANDUM AND ORDER
DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Plaintiff Hiroki
Takahashi's informal application to compel Defendant
Lincoln Tan, Jr., to furnish responsive answers to
Plaintiff's Interrogatories and Request for Production.
ECF No. 127. Plaintiff contends Defendant's answers to
Plaintiff's Interrogatories “include either
baseless objections or are nonresponsive, ” and that
Defendant “wholly failed to furnish any responses (or
even object) to Plaintiff's Requests for
Production.” Id. Defendant opposes the
application. ECF Nos. 129-130. The Court has fully reviewed
the submissions of the parties and heard oral argument on
this matter on May 3, 2019. For the reasons set forth below
as well as the reasons set forth on the record,
Plaintiff's informal application is
the Court writes only for the parties, it recites only those
facts necessary to its disposition. Plaintiff commenced this
action in June 2015 in the Eastern District of New York
alleging, inter alia, breach of fiduciary duty, conversion,
and fraud. ECF No. 1. Pursuant to the March 2018 Memorandum
and Order of U.S. District Judge Roslynn R. Mauskopf, all
claims were dismissed except “[D]efendant Cuyco's
breach of fiduciary duty only insofar as he failed to
disclose material facts as a co-member of Champion
Autosports; and (2) defendant Tan's aiding and abetting
Cuyco's breach of fiduciary duty.” ECF No. 106 at
p.7. Judge Mauskopf also transferred the matter to the
District of New Jersey. Id. Pursuant to this
Court's Initial Scheduling Order of November 2018, the
Parties' initial written discovery requests were to be
served by December 14, 2018, while responses were to be
served by January 31, 2019. ECF No. 125 at ¶¶7-8.
Pursuant to L.Civ.R. 16.1, the Parties also were ordered to
“meet and confer in a good faith effort to resolve any
discovery or case-management dispute, ” while any
unresolved disputes were to be brought to the Court's
attention promptly by a joint letter. Id. at
¶9. At a February 6, 2019 status conference, the Parties
identified the instant discovery dispute. This Court ordered
the parties to submit any unresolved dispute in writing by
February 22, 2019, with any response to be submitted by March
7, 2019. ECF No. 126 at ¶3. Plaintiff by letter to the
Court dated February 14, 2019 contended that Defendant Tan
had failed to respond to Plaintiff's First Set of
Interrogatories and Requests for Production by asserting a
blanket objection citing an attorney-client privilege. ECF
No. 127. By letter dated February 20, 2019, Defendant Tan
asserted that his invocation of the attorney-client privilege
was “proper” and “those valid objections
should not be disturbed by the Court.” ECF No.
The Court heard oral argument on the matter on May 3, 2019.
well established that the scope of discovery in federal
litigation is broad. Fed.R.Civ.P. 26(b)(1). “The
general rule in the federal system is that, subject to the
district court's discretion, ‘[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense.'” Republic
of Argentina, 573 U.S. at 139 (quoting Fed.
Rule Civ. Proc. 26(b)(1)); see also Pearson v.
Miller, 211 F.3d 57, 65 (3d Cir. 2000). Information
sought by the parties need not be admissible in evidence to
be discoverable. Fed.R.Civ.P. 26(b)(1). During 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 cannot obtain. See Bumgarner v.
Hart, 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., 1996 WL 653114, at *1 (E.D.Pa. 1996).
While 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
proposed discovery is outside the scope permitted by Rule
26(b)(1). 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).
Rule 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).
Plaintiff contends Defendant improperly asserted “a
generic objection based upon attorney-client privilege,
without specifying how or why the privilege applies” to
Plaintiff's Interrogatories. ECF No. 127 at p.1.
Plaintiff cites In re Grand Jury Empanelled, 603
F.3d 469, 474 (3d Cir. 1979) for the proposition that
“[t]he party asserting the attorney-client privilege
bears the burden to show that it applies.” Id.
Moreover, Defendant's objection, Plaintiff contends,
“is wholly without merit because the information sought
is not a privileged communication, or the privilege was
either waived or inapplicable.” Id.
information sought is not privileged, Plaintiff contends, for
Interrogatory No. 4 because facts are not communications, and
facts are what Plaintiff sought in that interrogatory, which
states: “Identify and describe all legal, accounting,
or tax related services you provided to Defendant Cuyco prior
to March 1, 2013.” Id. at p.2. Plaintiff
contends that In re Human Tissue Prod. Liab. Litig.,
255 F.R.D. 151, 164 (D.N.J. 2008) stands, in part, for the
proposition that “[a] description of the legal service
in and of itself is not a communication between an attorney
and a client and is therefore not privileged.”
Id. (citing Human Tissue Prod. Liab.
Litig., 255 F.R.D. at 164). Plaintiff raises a similar
argument for Interrogatory Nos. 9-10, 14-17, 19-20.
Id. at pp.2-8.
was inapplicable for Interrogatory Nos. 5-8, 19-20, Plaintiff
contends, because those interrogatories seek information
related legal and tax services Defendant Tan allegedly
provided to Champion Autosports LLC. Id. at pp.2-4,
8. As Plaintiff was a member of that limited liability
company along with Defendant Renato Cuyco-Plaintiff allegedly
holds an 80% stake-Plaintiff contends Defendant Tan would
have represented both Plaintiff and Defendant Cuyco when
performing services for that entity. Id.
(citing N.J.R. 2A:84A-20: “[w]here 2 or more
persons have employed a lawyer to act for them in common,
none of them can assert such privilege as against the others
as to communications with respect to that matter.”)
Plaintiff makes similar arguments as to Interrogatory Nos.
9-13, which seek information related to “the Cuyco
entities, ” in which Plaintiff contends he holds an
ownership stake, though he does not quantify the size of that
interest. Id. at pp.4-6.
Plaintiff contends he is not asking Defendant Tan to waive
privilege in Interrogatory Nos. 14-17, which seek information
related to the lease on property that Plaintiff claims
Defendants surreptitiously transferred out of his name and
into the name of Champion Leasing and Champion Performance.
Id. at pp.6-8; see also ECF No. 5 at
¶19. Instead, Plaintiff contends he seeks the same as
discussed above, the identification of and description of
legal or notary services he provided for Defendant Cuyco, the
Cuyco entities and the South Amboy property lease.
counters that Fisher v United States stands for the
principle that “the privilege between attorney and
client protects those disclosures necessary to obtain
informed legal advice.” ECF No. 129. at p.1 (citing
Fisher, 425 U.S. 391 (1976)). Defendant extrapolates
from this to conclude that “[a]sking an attorney for a
summary of all the services and issues they have advised a
client guts this entire theory.” Id. Defendant
contends that, contrary to Plaintiff's argument, a
summary of all legal work performed for a client, as
requested in many of the interrogatories detailed above, is
protected by the attorney-client privilege. Id.
Furthermore, Defendant asks how Plaintiff can argue that the
privilege is not implicated by the Champion Autosports share
structure since Plaintiff's Complaint refers to Defendant
Tan only as Defendant Cuyco's attorney and nowhere
alleges that Defendant Tan represented Champion Autosports.
Id. at p.2 (citing ECF No. 5,
counters that privilege “protects only those
disclosures necessary to obtain informed legal advice which
might not have been made absent the privilege.” ECF No.
127 at p.2 (emphasis in original). Plaintiff
contends, then, that the interrogatories sought facts, on the
principle that “[f]acts are not communications and thus
are discoverable.” Id. (citing Louisiana
Mun. Police Employees Ret. Sys. v. Sealed Air Corp., 253
F.R.D. 300, 305 (D.N.J. 2008) (citing United States v.
Rockwell, 897 F.2d 1255, 1264 (3d Cir. 1990)). Thus,
Plaintiff contends, “[b]asic information, including a
general description of the services [Tan] provided to
Champion Autosports ...