United States District Court, W.D. North Carolina, Charlotte Division
CATHERINE DIEHL, Plaintiff.
WILLIAM K. DIEHL, JR., Defendant.
DENNIS L. HOWELL, Magistrate Judge.
THIS MATTER is before the pursuant to Plaintiff's Motion to Compel (#20) and Plaintiff's Motion to Enforce Subpoena Duces Tecum (#21). The Defendant acting pro se, responded to the Motion to Compel and acting as attorney for the parties subject to the subpoenas, that being James, McElroy & Diehl, P.A. and Scharf Pera & Co., PLLC, responded to the motions (#25). The undersigned held a hearing in regard to the motions on March 27, 2015 and now enters the following Order.
Plaintiff filed a Complaint (#1) on June 3, 2014 alleging causes of action for specific performance and breach of contract against Defendant. Plaintiff alleges Defendant has failed to comply with the terms of the Contract of Separation and Property Settlement Agreement dated August 20, 2004 entered into between the Plaintiff and Defendant (#1-1). Defendant filed Amended Motions, Answer, Affirmative Defenses and Counterclaim (#11). In the Counterclaim, Defendant alleges Plaintiff breached the separation agreement and prayed for damages as a result of that alleged breach. Plaintiff filed a reply (#16) to the Counterclaim on August 15, 2014 denying Defendant's allegations.
Discovery - Interrogatories and Request to Produce
After the Court entered a Pretrial Order and Case Management Plan (#18), Plaintiff, on October 8, 2014, served interrogatories and request for production of documents on Defendant (#20-2, p. 2 & #20-2, p. 11). Included as an interrogatory was the following:
"(11). Please describe your annual salary and bonuses received from August 2004 to the present"; (#20-2, p. 8)
Included in the request for production of documents (#20-2, p. 11) is the following request:
"(10). Any and all documents, including pay stubs, cancelled checks, and annual reports that sets forth your annual salary and bonuses since August 2004". (#20-2, p. 15)
Defendant responded to the interrogatories and request for production of documents with the following identical response: "Objection, the request is over broad and completely impertinent. There is no contention that Defendant has not paid Plaintiff every penny that Plaintiff could contend is due prior to October 2013." (#20-3, pp. 5 & 11)
In a letter sent to Defendant dated January 16, 2015, Plaintiff's counsel narrowed the interrogatory and the request to produce to the period of 2011 through 2014. (#20-4, p. 2) Defendant did not respond to Plaintiff's counsel's letter.
Subpoena Duces Tecum
On October 2, 2014, Plaintiff issued a subpoena duces tecum to James, McElroy & Diehl, P.A. (#21-2, p. 4) which is the employer of Defendant and is a law firm of which Defendant is a partner. In this subpoena, Plaintiff commands the law firm to produce: "Any and all pay records for William K. Diehl, Jr. for the past ten (10) years; including, but not limited to salary, bonuses, 401K retirement plans and raises." (#21-2, p. 4) On that same date, Plaintiff issued a subpoena duces tecum to Scharf Pera & Co., PLLC (#21-3, p. 4) which is an accounting firm. The subpoena commanded the accounting firm to produce, "any tax returns prepared by your company for William K. Diehl, Jr. for the past ten (10) years." (#21-3, p. 4)
Defendant, now acting as attorney for the law firm and accounting firm, presented objections to the subpoenas. (#21-4, p. 2, #21-5, p. 2) In the objections, the law firm and the accounting firm object to the subpoenas for the reason that: "(1) The place of production is outside of the Western District of North Carolina; (2) The subpoenas are oppressive, unreasonable and burdensome; (3) The time for which the materials are sought is irrelevant and immaterial". (#21-4, p. 3, #21-5, p. 3)
In response, Plaintiff issued new subpoenas to the law firm and the accounting firm on October 13, 2014. In the new subpoenas to the law firm, the Plaintiff subpoenas: "production of any and all pay records for William K. Diehl, Jr. for 2011, 2012 and 2013, including, but not limited to salary, bonuses, 401K retirement plans and raises." (#21-6, p. 4) In the subpoena to the accounting firm, Plaintiff subpoenas: "any tax returns prepared by your company for William K. Diehl, Jr. for 2011, 2012 and 2013." (#21-7, p. 4) The place of production for both subpoenas was changed to Plaintiff's law firm in Charlotte, North Carolina which is within the Western District of North Carolina. Defendant, acting as attorney for the law firm and the accounting firm, again objected to the subpoenas contending that: "(1) the subpoenas are over reaching, overbroad, and seek information irrelevant to the dispute and; (2) the time for which the materials are sought prior to 2013 is irrelevant and immaterial." (#21-10, p. 3, #21-11, p. 3)
Plaintiff's counsel attempted to resolve the issues regarding the interrogatory, request for production of documents and the subpoenas by letter dated January 16, 2015. (# 21-12) Defendant did not respond either on behalf of himself, as attorney for the law firm or as attorney for the accounting firm.
(a) The Interrogatory and Request for Production of Documents
Generally speaking, parties are entitled to discovery regarding any non-privileged matter that is relevant to any claim or defense. Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. Where a party fails to respond to an interrogatory or a request for production of documents, the party seeking discovery may move for an order compelling an answer to the interrogatories or the production of documents responsive to the request. Fed.R.Civ.P. 37(a)(3)(B). "Over the course of more than four decades, district judges and magistrate judges in the Fourth Circuit... have repeatedly ruled that the party or person resisting discovery, not the party moving to compel discovery, bears the burden of persuasion." Kinetic Concepts, Inc. v. Convatec Inc., 268 F.R.D. 226, 243 (M.D. N.C. 2010) (collecting cases); Mainstreet Collection, Inc. v. Kirkland's, Inc. 270 F.R.D. 238, 241 (E.D. N.C. 2010); Billips v. Benco Steel, Inc., No. 5:10cv95, 2011 WL 4005933 (W.D. N.C. Sept. 8, 2011) (Keesler, Mag. J.).
In his response (#25) and in oral argument, Defendant contended the information requested in the interrogatory and request for production of documents was not relevant to any claim or defense. The Court finds that such information, limited to the period from 2011 to 2014, is relevant to the Plaintiff's causes of action and to the Defendant's Counterclaim.
The information would be relevant to insure that Defendant, during the period of time covered by the statute of limitations, did comply with the terms and conditions of the Separation Agreement. The information could also be relevant to the period after Defendant admittedly declined to make further payments to Plaintiff as provided in the Separation Agreement. Defendant argued he had agreed to provide the requested records for 2013 and 2014 but he further admitted as of the date of hearing of March 27, 2015, Defendant had not, in fact, provided such records. The relevance of the 2013 and 2014 records is self-evident.
Further, the records sought for the period from 2011 to 2014 have relevance in regard to the Counterclaim presented by Defendant. No information or testimony could be more relevant or material to the issue presented by Defendant's Counterclaim than those which Defendant could use to prove or substantiate his damages. The evidence sought by Plaintiff in the interrogatory and request for production of documents is exactly the same evidence Defendant will need to produce to prove and substantiate his damages. As a result, the Motion to Compel (#20) will be granted subject to a protective order directing that Plaintiff's counsel may show the answer to the interrogatory and the request for production of documents to Plaintiff, but Plaintiff's counsel is not to provide copies of the documents to her. Plaintiff's counsel is further not to disclose the documents to any other person and is to return them to Defendant at the close of this litigation.
Where a motion to compel is granted, Rule 37(a)(5)(A) of the ...