Betternoi, LLC v. Aloizos et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 0:25-CV-60090-LEIBOWITZ/AUGUSTIN-BIRCH
BETTERNOI, LLC,
Plaintiff,
v.
STAVROS ALOIZOS, et al.,
Defendants.
________________________________________/
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL
DISCOVERY RESPONSES, GRANTING DEFENDANTS’ RENEWED MOTION
FOR PROTECTIVE ORDER, AND CANCELING AUGUST 26 DISCOVERY HEARING
This case comes before the Court on two discovery motions. The first motion is Plaintiff
BetterNOI, LLC’s Motion to Compel Discovery Responses, which is fully briefed at docket entries
222, 228, and 230. 	In that motion, Plaintiff asks the Court to compel Defendants to produce
documents responsive to its Third and Fourth Sets of Requests for Production. But Plaintiff does
not explain which particular responses from Defendants are inadequate and why or which
particular objections Defendants raised are meritless and why.
Instead, Plaintiff points to a letter between counsel to provide the explanation. DE 222 at 3
(“Plaintiff BNOI articulates each request, Defendants’ responses to such requests, and BNOI’s
reasoning as to why such responses are deficient within the discovery discrepancy letter attached
hereto as Exhibit C.”); DE 230 at 2 (“Exhibit C . . . sets forth with specificity each deficient request,
Defendants’ inadequate response, and the basis for BetterNOI’s position.”). The Court has already
twice stated that the parties may not simply attach counsel correspondence to motion briefing as
the means of making their arguments to the Court. The parties must make their arguments in their
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briefs. DE 56 at 3–4 (“The parties must make their arguments in the briefing itself and may not
incorporate by reference or otherwise direct the Court to review communications between counsel
(such as conferral letters or emails) to understand their arguments. If a party intends the Court to
review such communications to understand its arguments, those communications are considered
part of the briefing and may violate the briefing page limitations.”); DE 188 at 4 (“Plaintiff did not
brief the substance of any requests or objections in the Motion. 	Plaintiff did attach conferral
communications to the Motion, . . . but Plaintiff cannot make arguments to the Court simply by
incorporating conferral communications by reference. . . . The Court will not rule on the merits of
any requests or objections because Plaintiff did not brief them.”). As Plaintiff again did not brief
why a further response to any request should be compelled or why any objection should be
overruled, the Motion to Compel Discovery Responses [DE 222] is DENIED.
The Court reminds the parties that the standard for the production of documents is that the
responding party must produce documents that are within its possession, custody, or control.
Fed. R. Civ. P. 34(a)(1); see Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984) (“Under Fed.
R. Civ. P. 34, control is the test with regard to the production of documents. Control is defined
not only as possession, but as the legal right to obtain the documents requested upon demand.”).
It is apparent from the briefing that, for at least some requests for production, Defendants maintain
that they do not have responsive documents within their possession, custody, or control, and
Plaintiff asserts this is false. If Plaintiff is going to make that assertion to the Court, it will need
to specifically point to evidence demonstrating that its assertion is correct and that Defendants do
have responsive documents within their possession, custody, or control. 	The Court must be
directed to some evidence by which to resolve a dispute where the requesting party argues that the
responding party has responsive material, and the responding party argues that it does not. This is
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especially true here, where it appears that the dispute over whether Defendants have responsive
documents involves a disagreement over how technology works and/or how electronic information
is saved or disseminated.
The second motion before the Court is Defendants’ Renewed Motion for Protective Order
Regarding Subpoenas Directed to Google, LLC and Microsoft Corporation, which is fully briefed
at docket entries 223, 231, and 233. In that motion, Defendants ask the Court to enter a protective
order with respect to subpoenas Plaintiff issued to two third parties to produce information
concerning Defendants’ personal email accounts, including all sent, received, and draft emails
beginning in April of 2019. Defendants attached the subject subpoenas to their motion. DE 223-3
to -6.
Parties generally “may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1)
(defining the scope of discovery in federal lawsuits). A “court may, for good cause, issue an order
to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense.” Fed. R. Civ. P. 26(c)(1). Rule 26(c) enables a party to move for a protective order on
the ground that a third-party subpoena seeks irrelevant information. Sun Cap. Partners v. Twin
City Fire Ins. Co., 303 F.R.D. 673, 678 (S.D. Fla. 2014), aff’d, No. 12-CV-81397, 2015 WL
11921411 (S.D. Fla. July 2, 2015).
Here, the third-party subpoenas clearly request irrelevant information. The subpoenas do
not ask for emails that might have a bearing on this case, instead asking for all sent, received, and
draft emails from Defendants’ personal email accounts. Further, Plaintiff has not explained how
emails from as far back as April of 2019 might be relevant. Plaintiff did not respond to Defendants’
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argument 	that, 	even 	according 	to 	Plaintiff’s 	own 	expert, 	Defendants’ 	alleged 	acts 	of
misappropriation did not begin until around 2024.
Because the subpoenas request irrelevant information, Defendants’ Renewed Motion for
Protective Order Regarding Subpoenas Directed to Google, LLC and Microsoft Corporation
[DE 223] is GRANTED. Plaintiff’s counsel must immediately withdraw the subpoenas issued to
Google, LLC and Microsoft Corporation and must immediately inform those companies that they
must not respond to the subpoenas.
Having resolved the two discovery motions before the Court, the discovery hearing
scheduled for August 26, 2026, is CANCELED. The Court advises the parties that any additional
hearings it schedules in this case, whether for discovery purposes or otherwise, will be set to take
place in person at the Federal Courthouse in Fort Lauderdale, Florida.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 25th day of
August, 2026.
___________________________________
PANAYOTTA AUGUSTIN-BIRCH
UNITED STATES MAGISTRATE JUDGE
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