8:21-cv-00146
M.D. Fla.Jan 11, 2022Background
- Aileron Investment Management and American Lending Center (ALC) partnered on an EB‑5 loan product; Aileron served as exclusive fund manager and alleges ALC paid fees to a shell company controlled by former Aileron representatives (Bonora, Maguire) and counsel Justin Blackhall.
- Aileron sued ALC for aiding and abetting breaches of fiduciary duty, tortious interference, and breach of fiduciary duty; ALC answered and asserted counterclaims and an advice‑of‑counsel defense regarding omnibus assignments.
- ALC moved for a protective order quashing 23 corporate‑representative deposition topics as overbroad, privileged, irrelevant, or barred by prior court rulings.
- The Court reviewed each deposition topic individually under Rule 26 and the protective‑order standard (good cause/burden on movant).
- The Court granted the protective order in part (notably limiting financial topics previously precluded) but denied protection for most topics, allowing Aileron to depose ALC’s corporate representative on formation/affiliates, factual bases for defenses/counterclaims, communications with former Aileron reps and third parties, website content, compensation/distributions, and Blackhall‑related topics subject to privilege objections.
- The Court held that ALC’s invocation of attorney‑client and work‑product protections did not broadly shield facts underlying claims and defenses, and that ALC’s advice‑of‑counsel affirmative defense caused a limited waiver as to communications about the omnibus assignments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Overbreadth / reasonable particularity of corporate/affiliate topics (Topic 1) | Aileron: corporate structure and affiliates are basic, relevant info; similar topics used by ALC. | ALC: "affiliations" is overly broad and not proportional. | Granted in part — topic allowed; term "affiliate/affiliation" not shown to be ambiguous or overbroad here. |
| Discovery into facts underlying ALC’s answers, defenses, counterclaims (Topics 3,13) | Aileron: entitled to facts and existence of supporting documents; work‑product protects mental impressions, not underlying facts. | ALC: questioning would force testimony as to legal conclusions and invade privilege/work product. | Granted in part — Aileron may probe factual bases and existence of supporting documents; privilege cannot broadly shield underlying facts; advice‑of‑counsel waiver limits claimed privilege on omnibus assignments. |
| Identity/knowledge of ALC representatives (Topic 5) | Aileron: seeks basic information about who knows what on disputed issues. | ALC: would be burdened to cover many counts/paragraphs. | Denied — topic is sufficiently particular and allowable. |
| Privilege re: communications with counsel Blackhall (Topics 25,29,36) | Aileron: waiver by ALC’s advice‑of‑counsel defense and crime‑fraud exception; many communications non‑privileged. | ALC: privilege remains except limited waiver for omnibus assignments. | Denied — deposition topics allowed; ALC may assert specific privilege objections; limited waiver applies to counsel advice re omnibus assignments. |
| Financial discovery / net worth and financial performance (Topics 14,15) | Aileron: seeks financials relevant to damages/motive. | ALC: prior order already limited financial discovery; topics are disproportional. | Granted — topics foreclosed by earlier court order denying Aileron’s motion to compel. |
| Communications with former Aileron reps and entities (Topics 23,24) | Aileron: directly relevant and narrowly tailored to allegations about Bonora/Maguire. | ALC: too broad across many entities and time. | Denied — topics are reasonably particular and discoverable. |
| Website content and limited web history (Topics 43,52) | Aileron: narrowly tailored page/content topics differ from earlier rejected broad preservation RFP. | ALC: prior order forecloses web content discovery sought earlier. | Denied — topics are sufficiently narrow and allowed. |
Key Cases Cited
- Mut. Serv. Ins. Co. v. Frit Indus., 358 F.3d 1312 (11th Cir.) (district courts have broad discretion to control discovery)
- Porter v. Ray, 461 F.3d 1315 (11th Cir.) (limits on "fishing expeditions" in discovery)
- United States v. Garrett, 571 F.2d 1323 (5th Cir.) (burden‑of‑proof principles for protective orders)
- Liu v. SEC, 140 S. Ct. 1936 (U.S. 2020) (background on the EB‑5 immigrant investor program cited in complaint)
- U.S. Commodity Futures Trading Comm’n v. Trade Exch. Network Ltd., 61 F. Supp. 3d 1 (D.D.C.) ("affiliated" not ambiguous on its face)
- Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. 29 (D. Conn.) (facts within privileged documents may be discoverable)
- In re Douglas Asphalt Co., 436 B.R. 246 (S.D. Ga.) (complexity alone does not render topics infeasible to examine)
- Inmuno Vital, Inc. v. Telemundo Grp., Inc., 203 F.R.D. 561 (S.D. Fla.) (advice‑of‑counsel affirmative defense can waive privilege as to the subject matter)
- Henry v. Quicken Loans, Inc., 263 F.R.D. 458 (E.D. Mich.) (distinguishing mere good‑faith defense from reliance on counsel for waiver)