THIS CAUSE is before the Court on Plaintiffs Motion and Incorporated Memorandum of Law in Support of Her Motion to Compel (DE 42) and was referred to the undersigned pursuant to 28 U.S.C. § 636 (DE 4). Specifically, Plaintiff Jennifer Costa (“Plaintiff’) has filed a motion pursuant to Rules 26, 33 and 34 of the Federal Rules of Civil Procedure and Southern District of Florida Local Rules 7.1 and 26.1, to compel Defendants Kerzner International Resorts, Inc. (“Kerzner Resorts”), Kerzner International North America, Inc. (“Kerzner North America”), Kerzner International Marketing, Inc. (“Kerzner Marketing”), and PIV Inc., d/b/a Destination Atlantis (“PIV”) to (1) produce documents responsive to each of Plaintiffs Document Requests (except Number 13); and (2) supplement their responses to Plaintiffs Interrogatories Nos. 2, 3, 6, 7 and 10, with documents and information in the possession, custody, or control of Defendants’ affiliated corporations Kerzner International Limited (“Kerzner International”), Kerzner International Bahamas Limited (“Kerzner Bahamas”), and Island Hotel Company Ltd. (“Island Hotel”) (collectively the “Bahamian Affiliates”). Plaintiff further seeks an award of attorneys’ fees in connection with her motion. At issue is the scope of Plaintiffs Document Requests and Interrogatories; specifically, whether the reach of Fed. R.Civ.P. 33 and 34 extends to documents and information in the physical possession of Defendants’ Bahamian Affiliates. The Court having considered the briefed Motion (DE 42, DE 43, DE 50, and DE 53) and being otherwise fully advised, it is hereby ORDERED that the Motion is GRANTED in PART as set forth below.
BACKGROUND
This ease is about the collection and distribution of a “mandatory housekeeping gratuity and utility service fee” that Defendants allegedly charged members of the proposed class in connection with their stay at the Atlantis Resort in the Bahamas. Plaintiff alleges that the imposition of this charge is unfair and deceptive because it is not entirely given to housekeepers as a “gratuity” or used to pay utilities, but is instead deceptively used for other (undisclosed) purposes. Amended Complaint ¶ 2 (DE 28).
On July 13, 2011, Plaintiff served her First Set of Requests for the Production of Documents and First Set of Interrogatories upon Defendants, and Defendants served their responses and objections on August 22, 2011. Defendants objected to the majority of Plaintiffs Requests for Production and Interrogatories on the basis that they call for documents and information allegedly not in Defendants’ possession, custody, or control but instead in the possession, custody, or control of their Bahamian Affiliates.
Plaintiff thereafter filed the instant motion to compel, arguing that information and documents in the possession of a defendant’s corporate affiliates are deemed to be in that defendant’s control for purposes of Federal Rules of Civil Procedure 26, 33 and 34, particularly where, as Plaintiff alleges, the non-party affiliated corporations are intimately connected to, and enjoy the benefits of, the transaction at issue, and have a substantial stake in the outcome of the instant litigation. See Motion (DE 42) and Reply (DE 53). Defendants oppose Plaintiffs Motion. See Response (DE 50). They contend that they should not be compelled to produce documents and information from their Bahamian Affiliates because they lack the requisite control; they further contend that Plaintiff should avail herself of the Hague Convention procedures for acquiring discovery from foreign entities. See id.
DISCUSSION
Federal Rule of Civil Procedure 34(a) governs the production of documents in civil matters. Pursuant to Rule 34(a), a party must produce documents in response to a request for production where those documents are “in the responding party’s possession, custody, or control[.]” Fed.R.Civ.P. 34(a). Whether documents are in a parties control under Rule 34 is broadly construed.
Furthermore, as with Rule 34, a party must provide information in response to a Rule 33 interrogatory if such information is under its control. See Ferber v. Sharp Electronics Corp., No. 84 Civ. 3105(RO),
In determining whether a party has control over documents and information in the possession of nonparty affiliates, the Court must look to: (1) the corporate structure of the party and the nonparties; (2) the nonparties’ connection to the transaction at issue in the litigation; and (3) the degree to which the nonparties benefit from the outcome of the litigation. See Steele Software,
As to the first factor, Defendants and their Bahamian Affiliates are all wholly owned by one entity (Kerzner Holdings Limited), part of a unified corporate structure.
It is also apparent that there are financial and operational interactions between Defendants and their Bahamian Affiliates. Defendants Kerzner Resorts and PIV state that they transfer the charges and fees ostensibly collected for housekeeping gratuities and utility payments to Island Hotel. See Motion at 10 (DE 42); Defendants’ Responses to Plaintiffs Interrogatories Nos. 3 and 6-8 (DE 43). Thus, the companies from which Plaintiff is seeking discovery share commonality in their corporate structure and operations sufficient to require Defendants to produce all responsive documents in the possession, custody, or control of their Bahamian Affiliates. See, e.g. Appleton Papers Inc. v. George A. Whiting Paper Co., No. 08-16,
In Appleton Papers, the court described Appleton Coated LLC, as “a member of a labyrinthine group of corporations under the ownership of a company called Sequana, S.A., a French paper company.” Id. at *1. The court held that the “[defendants have established that there is sufficient intermingling of resources and efforts here such that one could reasonably expect that Appleton Coated LLC has the ability to obtain documents from [the affiliated corporation].” Id. at *1-2. In support of this holding, the court noted that the companies “are united in a shared business purpose,” id. at *3, just as Defendants and their Bahamian Affiliates share the same business purpose (selling resort vacations). See also Uniden America Corp.,
As to the second factor, the Bahamian Affiliates are directly connected to the transactions at issue here. In response to Plaintiffs discovery requests relating to the “mandatory housekeeping gratuities and utility service fees,” Defendants stated that “such sums are transferred to the Island Hotel Company” or that they “distribute” the fee to Island Hotel. See Motion at 12 (DE 42); Defendants’ Responses to Plaintiffs Interrogatories Nos. 3 and 6-8 (DE 43). Furthermore, it appears that cooperation between Defendants and their Bahamian Affiliates is indispensable for the completion of the transaction: Defendants impose and collect the “mandatory housekeeping gratuity” and the Bahamian Affiliates distribute those funds. Id.
The fact that the documents are situated in a foreign country does not bar their discov-ery____ Defendant cannot be allowed to shield crucial documents from discovery by parties with whom it has dealt in the United States merely by storing them with its affiliate abroad ... if defendant could so easily evade discovery, every United States company would have a foreign affiliate for storing sensitive documents.
Id. at 920. Given their established corporate and transactional connections, it is similarly unlikely that Defendants do not have access to and the ability to obtain documents and information in the possession of their Bahamian Affiliates. See, e.g., Uniden America Corp.,
As to the third factor, as the parent company of Defendants and their Bahamian Affiliates, Kerzner International (and by extension its subsidiaries), has a direct financial interest in the outcome of the litigation, as it may ultimately be responsible for damages to the Class. Plaintiff, therefore, has sufficiently demonstrated that Defendants “control” the requested documents and information in the possession, custody, or control of their Bahamian Affiliates.
And finally, the Court is not persuaded that Plaintiff must first resort to the Hague Convention to obtain the requested discovery from Defendants. The Hague Convention on Taking Evidence Abroad provides procedures for judicial authorities of one signatory country to use in requesting evidence located in another signatory country. In Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa,
The holding of Societe Nationale has been followed in circumstances almost identical to those before this Court. In Alcan, the Court required a (domestic) party to produce documents in the possession of its nonparty foreign affiliate where they were “corporate members of a unified worldwide business entity ... under common control.”
CONCLUSION
Accordingly, based on the forgoing, it is here by ORDERED that Plaintiffs Motion and Incorporated Memorandum of Law in Support of Her Motion to Compel (DE 42) is GRANTED in PART and DENIED in PART as follows:
1. Plaintiffs Motion is GRANTED to the extent that Defendants shall provide within thirty (30) days of the issuance of this Order all documents that are in the possession of Defendants’ Bahamian Affiliates responsive to each of Plaintiffs document requests (except Number 13) contained in Plaintiffs First Set of Requests for the Production of Documents; and within thirty (30) days of the issuance of this Order, Defendants shall supplement their responses to Plaintiffs Interrogatories Nos. 2, 3, 6, 7 and 10, contained within Plaintiffs First Set of Interrogatories to Defendants, with information in the possession of Defendants’ Bahamian Affiliates.
2. Plaintiffs Motion is DENIED in all other respects.
Notes
. Significantly, under this principle, discovery can be sought from one corporation regarding materials that are in the physical possession of another, affiliated corporation. See Desoto Health,
. The burden is on the party seeking discovery to establish that the opposing party has “control” over documents held by an affiliate. See U.S. v. Int’l Union of Petroleum and Indus. Workers,
. Defendants cite Calixto v. Watson Bowman Acme Corp., No. 07-60077,