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Filing # 124839072 E-Filed 04/13/2021 02:58:31 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH, FLORIDA
V.C.A. UNITED, LLC,
CASE NO.: 502020CA007471XXXXMB
Plaintiff,
v.
MELISSA L. HANSLER; and
INTEGRATED VASCULAR IMAGING,
LLC,
Defendants.
DEFENDANTS’ MOTION TO SHIFT FEES FOR SPECIAL MASTER TO PLAINTIFF
Defendants, MELISSA L. HANSLER (“Ms. Hansler”) and INTEGRATED VASCULAR
IMAGING, LLC (“IVI”), by and through undersigned counsel, hereby file their Motion to Shift
Fees for Special Master to Plaintiff, according to Rule 1.280 of the Florida Rules of Civil Procedure
and other applicable law, and in support thereof states as follows:
1. On March 8, 2021, the Court entered an Order Appointing a Special Master for
review of materials submitted for in camera review to determine the validity of the privileges and
the confidentiality asserted by the Defendants in response to Plaintiff's First Request for
Production. (See Order at Exhibit “A”).
2. The appointment of the Special Master was appropriate due to the large quantity of
electronically stored information (“ESI’) requested by the Plaintiff and produced by the
Defendants.
3. In order to prepare responses to the Plaintiff's extremely broad discovery requests,
Defendants’ counsel and their staff spent several weeks reviewing approximately 15,000 emails
*** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 04/13/2021 02:58:31 PM ***and thousands of text messages in order to facilitate the in camera inspection at the cost of nearly
$40,000 in attorney and staff time.
4. Given the nature of the case and costs already incurred by Ms. Hansler, the
remaining costs pertaining to review of documents by the Special Master should be shifted to the
Plaintiff.
5. Rule 1.280 of the Florida Rules of Civil Procedure provides that a court may order
some or all expenses incurred by the person from whom the discovery is sought be paid by the
party seeking the discovery.
The court may specify conditions of the discovery, including ordering that
some or all of the expenses incurred by the person from whom discovery is
sought be paid by the party seeking the discovery.
Fla. R. Civ. P. 1.280(d)(1).
6. Trial courts enjoy broad discretion when employing protective provisions of Rule
1.280 in treating discovery problems. Fla. R. Civ. P. 1.280; Fla. Highway Patrol v. Bejarano, 137
So. 3d 619, 622 (Fla. Ist DCA 2014).
7. Rule 1.280 is analogous to Rule 26 of the federal Rules of Civil Procedure. Fed. R.
Civ. P. 26(c)(1)(B); Fla. R. Civ. P. 1.280. The federal rule provides in pertinent part:
The court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense,
including one or more of the following: . .. specifying terms, including
time and place or the allocation of expenses, for the disclosure or
discovery. . .
Fed. R. Civ. P. 26(c)(1)(B)(emphasis added).
8. “Because the Florida Rules of Civil Procedure are modeled after the Federal Rules
of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent and operativeeffect of various provisions of the rules.” Wilson v. Clark, 414 So. 2d 526, 531 (Fla. Ist DCA
1982).
9. Before the Federal Rules of Civil Procedure were amended in December 2015 to
expressly address cost shifting, federal courts relied on another provision in the prior version of
Rule 26 to address fee shifting in discovery.! Zubulake v. UBS Warburg LLC, 217 F.R.D. 309
(S.D.N.Y. 2003); Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421
(S.D.N.Y. 2002).
10. Rowe was one of the first cases to set out a multi-factor test for cost-shifting in
discovery. Andrew Mast, Cost Shifting in E-Discovery: Reexamining Zublake and 28 U.S.C. §
1920, 56 Wayne L. Rev. 1825, 1828 (2010). Rowe was subsequently modified by Zubulake.
Zubulake, 217 F.R.D. 309, at 320-24. In Zubulake the federal court provides clear guidelines to
determine when it is appropriate to shift costs of ESI discovery. Zubulake, 217 F.R.D. 309, at 322.
11. The court in Zubulake listed the below factors to consider when determining
whether to shift costs of discovery to a party:
a. The extent to which the request is specifically tailored to discover relevant
information;
b. The availability of such information from other sources;
c. The total cost of production, compared to the amount in controversy;
d. The total cost of production, compared to the resources available to each
party;
e. The relative ability of each party to control costs and its incentive to do so;
f. The importance of the issues at stake in the litigation; and
1 In cases prior to the 2015 amendment to the Federal Rules of Civil Procedure, courts had to rely on 26(b)(2)(B) to
shift fees, but now can rely on a more specific subsection of the rule, 26(c)(1)(B). Fed. R. Civ. Pro. 26(c)(1)(B).
Although the 2015 amendment provides a specific provision for cost shifting in discovery, to this day courts still apply
Zubulake and the factors it set out. See Kabelis v. NCL (Bahamas) Ltd., No. 20-21430-CIV-
ALTONAGA/GOODMAN, 2021 WL 790067 at *4-5 (S.D. Fla. Mar. 2, 2021).
3g. The relative benefits to the parties of obtaining the information.
Zubulake, 217 F.R.D. 309, at 322. The court held that the factors should be weighed in descending
order of importance, with the first two factors being the most important. /d. at 323.
12. Zubulake is widely cited by Florida federal courts. See Kabelis v. NCL (Bahamas)
Ltd., No. 20-21430-CIV-ALTONAGA/GOODMAN, 2021 WL 790067 at *4-5 (S.D. Fla. Mar. 2,
2021); Classic Soft Trim, Inc. v. Albert, No. 6:18-cv-1237-Orl-78GJK, 2020 WL 6734369, at * 9
(M.D. Fla. June 15, 2020); /.D.L.C. v. Brudnicki, 291 F.R.D. 669, 676 (N.D. Fla. 2013).
13. While the court in Zubulake focused the basis for fee shifting on the inaccessible
format of the ESI, the Northern District of Florida applied the Zubulake factors and held that the
requesting party should also share in the costs because of proportionality” (i.e., the cost of
producing discovery versus the benefit of its production). Brudnicki, 291 F.R.D. at 676. The court
opined that because the responding plaintiffs had already incurred significant discovery costs, the
requesting defendant should have to share in the additional costs. Jd.
14. The following analysis of the Zubulake factors and their application here support
Defendants’ request to shift the Special Master’s fees to the requesting party: Plaintiff.
15. Requests not specifically tailored: Plaintiff's discovery requests were so broad,
that many emails responsive to the requests are irrelevant to the breach of fiduciary duty and
accounting claims brought by Plaintiff. Defendants vehemently objected to overbreadth and were
met with resistance from Plaintiff’. Moreover, hearing was held, Plaintiffs counsel appeared,
arguing (successfully) that the full complement of “any and all” documents had to be produced.
? In March of 2021, the Federal District Court for the Southern District of Florida applied the Zubulake factors, and
noted that the Brudnicki court permitted cost shifting as part of enforcing proportionality limits. Kabelis v. NCL
(Bahamas) Ltd., No. 20-21430-CIV-ALTONAGA/GOODMAN, 2021 WL 790067 at *4-5 (S.D. Fla. Mar. 2, 2021).
3 After indicating that limited discovery could be provided, Plaintiff's counsel disavowed the offer and persisted with
extremely overbroad discovery requests. See Correspondence at Exhibit “B”.
4As discussed above, weeks were spent by Defendants’ counsel and counsel’s staff reviewing over
15,000 emails and thousands of text messages, many of which were not pertinent to the claims
brought by Plaintiff.
16. Plaintiff could have drafted more narrowly tailored discovery requests instead of
resisting Defendants’ objection that the requests were overbroad. Additionally, Plaintiff’s counsel
could have abided by his offer of limiting discovery instead of disavowing that offer and
demanding extremely overbroad discovery requests. Instead, Plaintiff requested all
communications with VCA or IVI vendors, employees, subcontractors, and even Ms. Hansler’s
parents without any subject matter or scope limitation. Plaintiff's failure to narrowly tailor its
request directly contributed to the costs and burdens of production.
17. Availability from other sources: Rather than request such a voluminous amount
of ESI from Defendants, Plaintiff could have obtained the same information by serving narrowly-
tailored subpoenas to its prior customers or employees that it believed were relevant to the breach
of fiduciary duty and accounting claims Plaintiff brought. That action was not taken, and instead
a broad dragnet of discovery was issued to Defendants.
18. Cost of production vs. amount in controversy: As discussed above, Defendants’
counsel has expended nearly $40,000 in attorney and staff time directly related to the production
of the discovery requests from the Plaintiff and in facilitating the in camera inspection to protect
Defendants’ confidential information. This amount may usurp the amount in controversy, but it is
difficult to tell with the lack of specificity pleaded regarding damages in Plaintiffs operative
complaint.19. Cost of production vs. resources available to party: As a single mother running
a new, small company, Ms. Hansler has significantly limited access to funds and resources with
which to fund responses to Plaintiff's overly broad, extensive discovery requests.
20. Ability of party to control costs and incentives to do so: Plaintiff could have
served more tailored discovery requests to the Defendants pertaining to his claims of breach of
fiduciary duty and accounting, but Plaintiff clearly had no incentive to control costs as evidenced
by its overly broad discovery requests.
21. Importance of issues in litigation: Every request by the Plaintiff is not crucial for
its claims of breach of fiduciary duty and accounting. Most of the discovery still at issue for review
is protected by the trade secrets privilege, accounting privilege, or other recognized privileges. The
information being withheld reveals IVI’s daily operations. How Ms. Hansler currently operates
IVI is not relevant to Plaintiff’s claims for breach of fiduciary duty and accounting.
22. Relative benefits: The relative benefit to Plaintiff is outweighed by the costs and
burdens of production, and by the need to protect IVI’s confidential and privileged information.
IVI’s confidential business information should be protected. Given that Plaintiff is a competitor
with a vendetta against Ms. Hansler stemming from the couple’s divorce, access to such
information by Plaintiff serves no benefit to the Defendants and would give the Plaintiff an
improper benefit in business competition.
23. — Ingiving the relevant weight to the factors as the court noted in Zubulake, Plaintiff's
discovery requests were not appropriately tailored to issues pertaining to the claims asserted by
Plaintiff. See Zubulake, 217 F.R.D. 309, at 323. In fact, the requests were so broad that much of
what is responsive to them is irrelevant to the claims of breach of fiduciary duty and accounting
brought by Plaintiff. Further, Plaintiff could have obtained much of such information from othersources, including through subpoenas that could have been issued to Plaintiff's prior customers
and employees. These two factors alone warrant shifting all costs of the Special Master to the
Plaintiff.
24. It is clear from the 2015 amendment to the Federal Rules of Civil Procedure, which
expressly grants fee shifting in discovery, that doing so is a permissible practice under proper
circumstances. It is clearly justified here upon application of the Zubulake factors. Further,
proportionality interests also weigh in favor of shifting the fees to be bome by Plaintiff. Zubulake,
217 F.R.D. 309, at 322; Brudnicki, 291 F.R.D., at 676.
25. For the foregoing reasons, including but not limited to application of the Zubulake
factors, the nature of Plaintiff's broad discovery requests in relation to the narrow claims for breach
of fiduciary duty and accounting that Plaintiff brought, combined with the significant costs (nearly
$40,000 in attorney and staff time) in responding to Plaintiff's discovery requests and facilitating
an in camera inspection, the Court should shift fees associated with the Special Master to the
Plaintiff.
WHEREFORE, Defendants MELISSA L. HANSLER and INTEGRATED VASCULAR
IMAGING, LLC., respectfully request that the Court enter an Order (1) GRANTING this Motion
to Shift Fees of Special Master to Plaintiff, (2) ordering Plaintiff to pay for all costs incurred using
the Special Master in reviewing discovery materials, and (3) awarding further relief as the Court
deems just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been filed via
Florida ePortal and furnished via electronic mail on this 13th day of April, 2021, to all counsel of
record.
Respectfully submitted,THE MARKARIAN GROUP
Attorneys for Defendants
2925 PGA Boulevard, Suite 204
Palm Beach Gardens, Florida 33410
Telephone: (561) 626-4700
Facsimile: (561) 627-9479
By: /s/ David K. Markarian
David K. Markarian
Florida Bar No. 480691
Jessica R. Glickman
Florida Bar No. 118586
Alexandra S. Eichner
Florida Bar No. 1025384Exhibit “A”THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH, FLORIDA
V.CA. UNITED, LLC,
CASE NO.: 502020CA007471XXXXMB
Plaintiff,
Vv.
MELISSA L. HANSLER; and
INTEGRATED VASCULAR IMAGING,
LLC,
Defendants.
/
ORDER APPOINTING SPECIAL MASTER
THIS MATTER came before the Court for a Case Management Conference on March 3,
2021 with respect to in camera inspection, and the Court hereby supplements its February 1, 2021
Order Granting, in Part, Motion to Compel, as follows:
1. Pursuant to Rule 1.490(b) of the Florida Rules of Civil Procedure, the Court finds
it appropriate to appoint a Special Master to review the materials submitted for in camera
inspection to determine the validity of the privileges and confidentiality privileges asserted by
Defendants with regard to them. By agreement of the parties, the Court hereby appoints Jeffrey
Colbath to serve as Special Master. If the Special Master recommends disclosure of any of the
subject information, the Special Master may also recommend any safeguards concerning the
further protection of this information. If the Special Master determines that some or all of the
documents are deserving of protection, he shall specify, with respect to each such document or
category of documents, the basis for making that determination.
2. The Special Master shall seek to resolve the issues by agreement, however in the
event the Parties are unable to reach agreement, the Special Master will provide a Report ofFindings and Recommendations to the Court regarding his findings. Fla. R. Civ. P. 1.490(h). In
that event, the Parties may submit exceptions and cross-exceptions in conformity with Fla. R. Civ.
P. 1.490(i).
3. The Parties agree that they will retain the special master as soon as reasonably
practicable.
4. The Special Master’s term of service will end when his duties are completed or the
Court terminates the appointment, whichever comes first.
5. The Special Master will be compensated equally by each party, subject to partial or
complete shifting of responsibility, if appropriate, by the Court, without prejudice and subject to
further Motion by either party.
6. Once retained, the Special Master shall submit his report and recommendations to
the Court within 60 days of that retention.
DONE AND ORDERED in Chambers in West Palm Beach, Florida.
sorozacanorarixxxgtie pfagfoors ees
562020CA0G7471XXXXMB 03/08/2021
Glenn D. Kelley
Circuit Judge
See attached Service ListConformed copies to:
Name
Address
DAVID K. MARKARIAN
DAVID K. MARKARIAN
DAVID R. GLICKMAN
JAMES S. TELEPMAN
THOMAS J. ALI
Jeffrey Colbath, Special
Master
2925 PGA BLVD STE 204
PALM BEACH GARDENS, FL
33131
2925 PGA BLVD SUITE 204
PALM BEACH GARDENS, FL
33410
712 US HIGHWAY ONE SUITE
400 NORTH PALM BEACH, FL.
33408
3399 PGA BOULEVARD SUITE
150 PALM BEACH GARDENS,
FL 33410
DAVE @BUSINESSMINDEDLAWFIRM.COM;
dave @forbusinessandlife.com;
service @forbusinessandlife.com
DAVE @BUSINESSMINDEDLAWFIRM.COM
davidg@forbusinessandlife.com
JST@FCOHENLAW.COM;
jst@cohennorris.com;
smc@cohennorris.com
TALI@STUARTNKAPLANPA.COM;
rbailey@stuartnkaplanpa.com;
tali@jla.legal
jeff@colbathmediation.comExhibit “B”nature of email and other Internet-based communication, you cannot assume we receive such transmissions, or
that we do so in a timely manner. Because assuring quality representation is important to us, we ask that all
communications that relate to our legal representation of you be conducted in person or by telephone.
From: Jim Telepman
Sent: Tuesday, December 8, 2020 4:04:58 PM.
To: Dave Markarian
Ce: David Glickman
Subject: RE: Hansler
Ihave not heard from you. Will you agree to an order requiring a response within 15 days?
Did | make such an offer? At this point, | honestly don’t remember, as it’s been lingering for so long. So, at this
point, I'd prefer just agreeing to a confidentiality order, Let me know by 5:00 please
*** PLEASE NOTE THAT OUR EMAIL ADDRESSES AND DOMAIN NAME HAVE CHANGED.
PLEASE UPDATE YOUR CONTACT LIST. THANK YOU, ***
Board Certified Business
¢ S Wornié: AY Attorney
Norris Wot My RRay 712 U.S. Highway One, Suite 400
re & Cones North Palm Beach, Florida 33408-
7 7146
(561) 844-3600; (561) 842-4104 (fax)
Direct Line: (561) 840-8953
Cell: (561) 596-3040
Assistant Direct Line: (561) 615-1039
ist@coh «
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igation
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INTENDED ONLY FOR USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. LF THE READER OF THIS MESSAGE IS
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From: Dave Markarian
Sent: Monday, December 7, 2020 6:00 PM
To: Jim Telepman
Subject: RE: Hansler
Hey Jim:
Melissa dropped off a thumb drive with abundant material and we’re sifting through it for production.
We would also embrace your offer to limit production to the companies’ accounts that were customers ofVCA.
We'll call you tomorrow, and thanks.
Dave
Dave Markarian
Business Representation
& Strategic Guidance
for business and life
THE MARKARIAN GROUP
2925 PGA BWvd. Suite 204
Palm Beach Gardens, FL 33410
561-626-4700 | Fax: 561-627-9479
Website / Biography / VCard / Avvo / Facebook / Twitter / Linkedin
Confidentiality Note: This e-mail and any attachments are intended only for the named addressee(s). tis private and confidential, and may contain
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distribution or copying of this communication is strictly prohibited and actionable under applicable federal and state laws. (fyou have received this e-mail
and any attichments in error, please immediately inform the sender via reply e-mail and then delete it and all attachments. We will not be responsible for
Internet-based communication. Given the sometimes unreliable nature of email and other Internet-based corwmunication, you cannot assume we receive
such transmissions, of that we do so ina timely manner. Because assuring quality representation is important to us, we ask that all communications that
relate to our legal representation of you be conducted in person or by telephane.
From: Jim Telepman
Sent: Wednesday, November 4, 2020 3:39 PM
‘To: Dave Markarian
Ce: David Glickman
Subject: RE: Hansler
Guys, just a reminder that you will get back to me by Friday with some idea as to how you want to proceed with
respect to my discovery.
*** PLEASE NOTE THAT OUR EMAIL ADDRESSES AND DOMAIN NAME HAVE CHANGED.
PLEASE UPDATE YOUR CONTACT LIST. THANK YOU. ***
Board Certified Business Litigation
ey. g =) o Attorn
v Conen Nors Woumer Ray Pit ectigtvias onal on
Tevepsan Berkowirz & Cont North Palm Beach, Florida 33408-
STTURNIYES APT AW 7146
(561) 844-3600; (561) 842-4104 (fax)
Direct Line: (561) 840-8953
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Assistant Direct Line; (561) 615-1039
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Filing # 124839072 E-Filed 04/13/2021 02:58:31 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH, FLORIDA V.C.A. UNITED, LLC, CASE NO.: 502020CA007471XXXXMB Plaintiff, v. MELISSA L. HANSLER; and INTEGRATED VASCULAR IMAGING, LLC, Defendants. DEFENDANTS’ MOTION TO SHIFT FEES FOR SPECIAL MASTER TO PLAINTIFF Defendants, MELISSA L. HANSLER (“Ms. Hansler”) and INTEGRATED VASCULAR IMAGING, LLC (“IVI”), by and through undersigned counsel, hereby file their Motion to Shift Fees for Special Master to Plaintiff, according to Rule 1.280 of the Florida Rules of Civil Procedure and other applicable law, and in support thereof states as follows: 1. On March 8, 2021, the Court entered an Order Appointing a Special Master for review of materials submitted for in camera review to determine the validity of the privileges and the confidentiality asserted by the Defendants in response to Plaintiff's First Request for Production. (See Order at Exhibit “A”). 2. The appointment of the Special Master was appropriate due to the large quantity of electronically stored information (“ESI’) requested by the Plaintiff and produced by the Defendants. 3. In order to prepare responses to the Plaintiff's extremely broad discovery requests, Defendants’ counsel and their staff spent several weeks reviewing approximately 15,000 emails *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 04/13/2021 02:58:31 PM ***and thousands of text messages in order to facilitate the in camera inspection at the cost of nearly $40,000 in attorney and staff time. 4. Given the nature of the case and costs already incurred by Ms. Hansler, the remaining costs pertaining to review of documents by the Special Master should be shifted to the Plaintiff. 5. Rule 1.280 of the Florida Rules of Civil Procedure provides that a court may order some or all expenses incurred by the person from whom the discovery is sought be paid by the party seeking the discovery. The court may specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery. Fla. R. Civ. P. 1.280(d)(1). 6. Trial courts enjoy broad discretion when employing protective provisions of Rule 1.280 in treating discovery problems. Fla. R. Civ. P. 1.280; Fla. Highway Patrol v. Bejarano, 137 So. 3d 619, 622 (Fla. Ist DCA 2014). 7. Rule 1.280 is analogous to Rule 26 of the federal Rules of Civil Procedure. Fed. R. Civ. P. 26(c)(1)(B); Fla. R. Civ. P. 1.280. The federal rule provides in pertinent part: The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . .. specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery. . . Fed. R. Civ. P. 26(c)(1)(B)(emphasis added). 8. “Because the Florida Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, federal decisions are highly persuasive in ascertaining the intent and operativeeffect of various provisions of the rules.” Wilson v. Clark, 414 So. 2d 526, 531 (Fla. Ist DCA 1982). 9. Before the Federal Rules of Civil Procedure were amended in December 2015 to expressly address cost shifting, federal courts relied on another provision in the prior version of Rule 26 to address fee shifting in discovery.! Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003); Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421 (S.D.N.Y. 2002). 10. Rowe was one of the first cases to set out a multi-factor test for cost-shifting in discovery. Andrew Mast, Cost Shifting in E-Discovery: Reexamining Zublake and 28 U.S.C. § 1920, 56 Wayne L. Rev. 1825, 1828 (2010). Rowe was subsequently modified by Zubulake. Zubulake, 217 F.R.D. 309, at 320-24. In Zubulake the federal court provides clear guidelines to determine when it is appropriate to shift costs of ESI discovery. Zubulake, 217 F.R.D. 309, at 322. 11. The court in Zubulake listed the below factors to consider when determining whether to shift costs of discovery to a party: a. The extent to which the request is specifically tailored to discover relevant information; b. The availability of such information from other sources; c. The total cost of production, compared to the amount in controversy; d. The total cost of production, compared to the resources available to each party; e. The relative ability of each party to control costs and its incentive to do so; f. The importance of the issues at stake in the litigation; and 1 In cases prior to the 2015 amendment to the Federal Rules of Civil Procedure, courts had to rely on 26(b)(2)(B) to shift fees, but now can rely on a more specific subsection of the rule, 26(c)(1)(B). Fed. R. Civ. Pro. 26(c)(1)(B). Although the 2015 amendment provides a specific provision for cost shifting in discovery, to this day courts still apply Zubulake and the factors it set out. See Kabelis v. NCL (Bahamas) Ltd., No. 20-21430-CIV- ALTONAGA/GOODMAN, 2021 WL 790067 at *4-5 (S.D. Fla. Mar. 2, 2021). 3g. The relative benefits to the parties of obtaining the information. Zubulake, 217 F.R.D. 309, at 322. The court held that the factors should be weighed in descending order of importance, with the first two factors being the most important. /d. at 323. 12. Zubulake is widely cited by Florida federal courts. See Kabelis v. NCL (Bahamas) Ltd., No. 20-21430-CIV-ALTONAGA/GOODMAN, 2021 WL 790067 at *4-5 (S.D. Fla. Mar. 2, 2021); Classic Soft Trim, Inc. v. Albert, No. 6:18-cv-1237-Orl-78GJK, 2020 WL 6734369, at * 9 (M.D. Fla. June 15, 2020); /.D.L.C. v. Brudnicki, 291 F.R.D. 669, 676 (N.D. Fla. 2013). 13. While the court in Zubulake focused the basis for fee shifting on the inaccessible format of the ESI, the Northern District of Florida applied the Zubulake factors and held that the requesting party should also share in the costs because of proportionality” (i.e., the cost of producing discovery versus the benefit of its production). Brudnicki, 291 F.R.D. at 676. The court opined that because the responding plaintiffs had already incurred significant discovery costs, the requesting defendant should have to share in the additional costs. Jd. 14. The following analysis of the Zubulake factors and their application here support Defendants’ request to shift the Special Master’s fees to the requesting party: Plaintiff. 15. Requests not specifically tailored: Plaintiff's discovery requests were so broad, that many emails responsive to the requests are irrelevant to the breach of fiduciary duty and accounting claims brought by Plaintiff. Defendants vehemently objected to overbreadth and were met with resistance from Plaintiff’. Moreover, hearing was held, Plaintiffs counsel appeared, arguing (successfully) that the full complement of “any and all” documents had to be produced. ? In March of 2021, the Federal District Court for the Southern District of Florida applied the Zubulake factors, and noted that the Brudnicki court permitted cost shifting as part of enforcing proportionality limits. Kabelis v. NCL (Bahamas) Ltd., No. 20-21430-CIV-ALTONAGA/GOODMAN, 2021 WL 790067 at *4-5 (S.D. Fla. Mar. 2, 2021). 3 After indicating that limited discovery could be provided, Plaintiff's counsel disavowed the offer and persisted with extremely overbroad discovery requests. See Correspondence at Exhibit “B”. 4As discussed above, weeks were spent by Defendants’ counsel and counsel’s staff reviewing over 15,000 emails and thousands of text messages, many of which were not pertinent to the claims brought by Plaintiff. 16. Plaintiff could have drafted more narrowly tailored discovery requests instead of resisting Defendants’ objection that the requests were overbroad. Additionally, Plaintiff’s counsel could have abided by his offer of limiting discovery instead of disavowing that offer and demanding extremely overbroad discovery requests. Instead, Plaintiff requested all communications with VCA or IVI vendors, employees, subcontractors, and even Ms. Hansler’s parents without any subject matter or scope limitation. Plaintiff's failure to narrowly tailor its request directly contributed to the costs and burdens of production. 17. Availability from other sources: Rather than request such a voluminous amount of ESI from Defendants, Plaintiff could have obtained the same information by serving narrowly- tailored subpoenas to its prior customers or employees that it believed were relevant to the breach of fiduciary duty and accounting claims Plaintiff brought. That action was not taken, and instead a broad dragnet of discovery was issued to Defendants. 18. Cost of production vs. amount in controversy: As discussed above, Defendants’ counsel has expended nearly $40,000 in attorney and staff time directly related to the production of the discovery requests from the Plaintiff and in facilitating the in camera inspection to protect Defendants’ confidential information. This amount may usurp the amount in controversy, but it is difficult to tell with the lack of specificity pleaded regarding damages in Plaintiffs operative complaint.19. Cost of production vs. resources available to party: As a single mother running a new, small company, Ms. Hansler has significantly limited access to funds and resources with which to fund responses to Plaintiff's overly broad, extensive discovery requests. 20. Ability of party to control costs and incentives to do so: Plaintiff could have served more tailored discovery requests to the Defendants pertaining to his claims of breach of fiduciary duty and accounting, but Plaintiff clearly had no incentive to control costs as evidenced by its overly broad discovery requests. 21. Importance of issues in litigation: Every request by the Plaintiff is not crucial for its claims of breach of fiduciary duty and accounting. Most of the discovery still at issue for review is protected by the trade secrets privilege, accounting privilege, or other recognized privileges. The information being withheld reveals IVI’s daily operations. How Ms. Hansler currently operates IVI is not relevant to Plaintiff’s claims for breach of fiduciary duty and accounting. 22. Relative benefits: The relative benefit to Plaintiff is outweighed by the costs and burdens of production, and by the need to protect IVI’s confidential and privileged information. IVI’s confidential business information should be protected. Given that Plaintiff is a competitor with a vendetta against Ms. Hansler stemming from the couple’s divorce, access to such information by Plaintiff serves no benefit to the Defendants and would give the Plaintiff an improper benefit in business competition. 23. — Ingiving the relevant weight to the factors as the court noted in Zubulake, Plaintiff's discovery requests were not appropriately tailored to issues pertaining to the claims asserted by Plaintiff. See Zubulake, 217 F.R.D. 309, at 323. In fact, the requests were so broad that much of what is responsive to them is irrelevant to the claims of breach of fiduciary duty and accounting brought by Plaintiff. Further, Plaintiff could have obtained much of such information from othersources, including through subpoenas that could have been issued to Plaintiff's prior customers and employees. These two factors alone warrant shifting all costs of the Special Master to the Plaintiff. 24. It is clear from the 2015 amendment to the Federal Rules of Civil Procedure, which expressly grants fee shifting in discovery, that doing so is a permissible practice under proper circumstances. It is clearly justified here upon application of the Zubulake factors. Further, proportionality interests also weigh in favor of shifting the fees to be bome by Plaintiff. Zubulake, 217 F.R.D. 309, at 322; Brudnicki, 291 F.R.D., at 676. 25. For the foregoing reasons, including but not limited to application of the Zubulake factors, the nature of Plaintiff's broad discovery requests in relation to the narrow claims for breach of fiduciary duty and accounting that Plaintiff brought, combined with the significant costs (nearly $40,000 in attorney and staff time) in responding to Plaintiff's discovery requests and facilitating an in camera inspection, the Court should shift fees associated with the Special Master to the Plaintiff. WHEREFORE, Defendants MELISSA L. HANSLER and INTEGRATED VASCULAR IMAGING, LLC., respectfully request that the Court enter an Order (1) GRANTING this Motion to Shift Fees of Special Master to Plaintiff, (2) ordering Plaintiff to pay for all costs incurred using the Special Master in reviewing discovery materials, and (3) awarding further relief as the Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been filed via Florida ePortal and furnished via electronic mail on this 13th day of April, 2021, to all counsel of record. Respectfully submitted,THE MARKARIAN GROUP Attorneys for Defendants 2925 PGA Boulevard, Suite 204 Palm Beach Gardens, Florida 33410 Telephone: (561) 626-4700 Facsimile: (561) 627-9479 By: /s/ David K. Markarian David K. Markarian Florida Bar No. 480691 Jessica R. Glickman Florida Bar No. 118586 Alexandra S. Eichner Florida Bar No. 1025384Exhibit “A”THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH, FLORIDA V.CA. UNITED, LLC, CASE NO.: 502020CA007471XXXXMB Plaintiff, Vv. MELISSA L. HANSLER; and INTEGRATED VASCULAR IMAGING, LLC, Defendants. / ORDER APPOINTING SPECIAL MASTER THIS MATTER came before the Court for a Case Management Conference on March 3, 2021 with respect to in camera inspection, and the Court hereby supplements its February 1, 2021 Order Granting, in Part, Motion to Compel, as follows: 1. Pursuant to Rule 1.490(b) of the Florida Rules of Civil Procedure, the Court finds it appropriate to appoint a Special Master to review the materials submitted for in camera inspection to determine the validity of the privileges and confidentiality privileges asserted by Defendants with regard to them. By agreement of the parties, the Court hereby appoints Jeffrey Colbath to serve as Special Master. If the Special Master recommends disclosure of any of the subject information, the Special Master may also recommend any safeguards concerning the further protection of this information. If the Special Master determines that some or all of the documents are deserving of protection, he shall specify, with respect to each such document or category of documents, the basis for making that determination. 2. The Special Master shall seek to resolve the issues by agreement, however in the event the Parties are unable to reach agreement, the Special Master will provide a Report ofFindings and Recommendations to the Court regarding his findings. Fla. R. Civ. P. 1.490(h). In that event, the Parties may submit exceptions and cross-exceptions in conformity with Fla. R. Civ. P. 1.490(i). 3. The Parties agree that they will retain the special master as soon as reasonably practicable. 4. The Special Master’s term of service will end when his duties are completed or the Court terminates the appointment, whichever comes first. 5. The Special Master will be compensated equally by each party, subject to partial or complete shifting of responsibility, if appropriate, by the Court, without prejudice and subject to further Motion by either party. 6. Once retained, the Special Master shall submit his report and recommendations to the Court within 60 days of that retention. DONE AND ORDERED in Chambers in West Palm Beach, Florida. sorozacanorarixxxgtie pfagfoors ees 562020CA0G7471XXXXMB 03/08/2021 Glenn D. Kelley Circuit Judge See attached Service ListConformed copies to: Name Address DAVID K. MARKARIAN DAVID K. MARKARIAN DAVID R. GLICKMAN JAMES S. TELEPMAN THOMAS J. ALI Jeffrey Colbath, Special Master 2925 PGA BLVD STE 204 PALM BEACH GARDENS, FL 33131 2925 PGA BLVD SUITE 204 PALM BEACH GARDENS, FL 33410 712 US HIGHWAY ONE SUITE 400 NORTH PALM BEACH, FL. 33408 3399 PGA BOULEVARD SUITE 150 PALM BEACH GARDENS, FL 33410 DAVE @BUSINESSMINDEDLAWFIRM.COM; dave @forbusinessandlife.com; service @forbusinessandlife.com DAVE @BUSINESSMINDEDLAWFIRM.COM davidg@forbusinessandlife.com JST@FCOHENLAW.COM; jst@cohennorris.com; smc@cohennorris.com TALI@STUARTNKAPLANPA.COM; rbailey@stuartnkaplanpa.com; tali@jla.legal jeff@colbathmediation.comExhibit “B”nature of email and other Internet-based communication, you cannot assume we receive such transmissions, or that we do so in a timely manner. Because assuring quality representation is important to us, we ask that all communications that relate to our legal representation of you be conducted in person or by telephone. From: Jim Telepman Sent: Tuesday, December 8, 2020 4:04:58 PM. To: Dave Markarian Ce: David Glickman Subject: RE: Hansler Ihave not heard from you. Will you agree to an order requiring a response within 15 days? Did | make such an offer? At this point, | honestly don’t remember, as it’s been lingering for so long. So, at this point, I'd prefer just agreeing to a confidentiality order, Let me know by 5:00 please *** PLEASE NOTE THAT OUR EMAIL ADDRESSES AND DOMAIN NAME HAVE CHANGED. PLEASE UPDATE YOUR CONTACT LIST. THANK YOU, *** Board Certified Business ¢ S Wornié: AY Attorney Norris Wot My RRay 712 U.S. Highway One, Suite 400 re & Cones North Palm Beach, Florida 33408- 7 7146 (561) 844-3600; (561) 842-4104 (fax) Direct Line: (561) 840-8953 Cell: (561) 596-3040 Assistant Direct Line: (561) 615-1039 ist@coh « www,cohennorris.com igation ‘THE INFORMATION CONTAINED IN THIS TRANSMISSION IS PRIVILEGED AND CONFIDENTIAL INFORMATION INTENDED ONLY FOR USE OF THE INDIVIDUAL OR ENTITY NAMED ABOVE. LF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, DO NOT READ I'l, PLEASE IMMEDIATELY REPLY TO THE SENDER THAT YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR. THEN DELETE It. THANK YOU. From: Dave Markarian Sent: Monday, December 7, 2020 6:00 PM To: Jim Telepman Subject: RE: Hansler Hey Jim: Melissa dropped off a thumb drive with abundant material and we’re sifting through it for production. We would also embrace your offer to limit production to the companies’ accounts that were customers ofVCA. We'll call you tomorrow, and thanks. Dave Dave Markarian Business Representation & Strategic Guidance for business and life THE MARKARIAN GROUP 2925 PGA BWvd. Suite 204 Palm Beach Gardens, FL 33410 561-626-4700 | Fax: 561-627-9479 Website / Biography / VCard / Avvo / Facebook / Twitter / Linkedin Confidentiality Note: This e-mail and any attachments are intended only for the named addressee(s). tis private and confidential, and may contain information that is proprietary, attomey work-product and/or attorney-client privileged. f you are not the Intended recipient, any dissemination, distribution or copying of this communication is strictly prohibited and actionable under applicable federal and state laws. (fyou have received this e-mail and any attichments in error, please immediately inform the sender via reply e-mail and then delete it and all attachments. We will not be responsible for Internet-based communication. Given the sometimes unreliable nature of email and other Internet-based corwmunication, you cannot assume we receive such transmissions, of that we do so ina timely manner. Because assuring quality representation is important to us, we ask that all communications that relate to our legal representation of you be conducted in person or by telephane. From: Jim Telepman Sent: Wednesday, November 4, 2020 3:39 PM ‘To: Dave Markarian Ce: David Glickman Subject: RE: Hansler Guys, just a reminder that you will get back to me by Friday with some idea as to how you want to proceed with respect to my discovery. *** PLEASE NOTE THAT OUR EMAIL ADDRESSES AND DOMAIN NAME HAVE CHANGED. PLEASE UPDATE YOUR CONTACT LIST. THANK YOU. *** Board Certified Business Litigation ey. g =) o Attorn v Conen Nors Woumer Ray Pit ectigtvias onal on Tevepsan Berkowirz & Cont North Palm Beach, Florida 33408- STTURNIYES APT AW 7146 (561) 844-3600; (561) 842-4104 (fax) Direct Line: (561) 840-8953 Cell: (561) 596-3040 Assistant Direct Line; (561) 615-1039 ist@cohennorris.com www.cohennorris,com