UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No: 20-60849-CV-RUIZ/STRAUSS

YACHT MANAGEMENT 

SOUTH FLORIDA, INC., 

 

Plaintiff,

v. 

M/V PRIVEE, a 2004 95’ Sunseeker, 

Official No. 1249993, her engines, equipment,

tackle, furnishings, etc., in rem, et al., 

Defendants. 

_______________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART RENEWED MOTION TO 

QUASH AND OBJECTIONS TO PLAINTIFF’S SUBPOENAS TO KARI E. OVENS AND 

RSC INSURANCE BROKERAGE, INC. (“MOTION TO QUASH”) (DE 77)

THIS CAUSE is before me upon Defendants’ Motion to Quash (DE 77) requesting that 

the Court quash two (2) subpoenas and stating Defendants’ objections to the two (2) subpoenas, 

which Plaintiff served upon non-party witnesses.1 Plaintiff has filed a response (“Response”). 

(DE 78). Having reviewed the Motion to Quash and the Response, and being otherwise duly 

advised, Defendants’ Motion to Quash is GRANTED IN PART AND DENIED IN PART for 

the reasons stated herein.

I. BACKGROUND

This case arises from a dispute pertaining to the payment for repairs to the Defendant vessel 

(“Vessel”). (DE 25 at ¶¶8-20). The Verified Amended Complaint alleges admiralty jurisdiction 

1 Defendants’ Motion to Quash identifies the non-parties as: (1) Defendants’ accountant, Kari E. 

Evans (“Accountant”); and, (2) Defendants’ insurance broker, RSC Insurance Brokerage, Inc. 

(“Insurance Broker”). (DE 77). 

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pursuant to 28 U.S.C. § 1333 and brings three Counts: one count for Foreclosure on Maritime Lien 

and two counts for Breach of Written Contract. Id. at ¶¶21-58. Defendants filed an amended 

counterclaim that brings five Counts for: Breach of Express Warranty of Workmanship, Breach of 

Contract, Accounting, Negligence, and Unjust Enrichment. (DE 43 at ¶¶24-59). On August 24, 

2020, the District Court entered a scheduling order setting case deadlines including a deadline of 

January 26, 2021 for all discovery. (DE 56). On February 5, 2021, Defendants filed a motion to 

quash the two subpoenas now at issue, and I denied the motion because, inter alia, the discovery 

deadline had passed. (DE 71). On February 11, 2021, I ratified the agreement of counsel extending 

the discovery deadline to March 2, 2021 and set a discovery hearing. (DE 73; DE 74). Plaintiff 

moved to continue the discovery hearing after conferring with Defendants and agreeing upon 

alternative dates to hold the discovery hearing. (DE 75). On February 12, 2021, I cancelled the 

discovery hearing and ordered Defendants to file a renewed motion to quash, and I expedited 

Plaintiff’s response. Thus, given the parties’ compliance with the orders, the Motion to Quash 

(DE 77) is now ripe for review.

II. LEGAL STANDARDS

A. Scope

“Fed. R. Civ. P. 45 does not identify irrelevance or overbreadth as reasons for quashing a 

subpoena.” Am. Fed’n of State, Cty. & Mun. Employees (AFSCME) Council 79 v. Scott, 277 

F.R.D. 474, 476 (S.D. Fla. 2011). Nonetheless, courts “have treated the scope of discovery under 

a subpoena [ ] the same as the scope of discovery under Rule 26” and other discovery rules. Id.

(citations omitted). Furthermore, courts treat Rule 45 motions to quash, which challenge

relevancy, as motions for a protective order under Rule 26. See Auto-Owners Ins. Co. v. Se. 

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Floating Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005) (holding that “the Court may . . . deem 

[a party’s] motion to quash as a motion for a protective order” and also holding that parties “have 

standing to move for a protective order if the subpoenas [issued to non-parties] seek irrelevant 

information”) (citation omitted); see also Bush Truck Leasing, Inc. v. Office Depot, Inc., No. 11-

80026-CIV, 2011 WL 13228102, at *3 (S.D. Fla. May 9, 2011) (citations omitted). Accordingly, 

“a subpoena issued under Rule 45 should be quashed to the extent it seeks irrelevant information.” 

Jordan v. Comm'r, Mississippi Dep't of Corr., 947 F.3d 1322, 1329 (11th Cir.), cert. denied sub 

nom. Jordan v. Georgia Dep't of Corr., 141 S. Ct. 251, 208 (2020).

The scope of discovery under Rule 26 is as follows:

Parties 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, considering 

the importance of the issues at stake in the action, the amount in controversy, the 

parties’ relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the burden or 

expense of the proposed discovery outweighs its likely benefit. Information within 

this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). “[I]nformation is relevant if it has a ‘tendency to make a fact more or 

less probable’ and ‘the fact is of consequence in determining the action.’” Jordan, 947 F.3d at

1329 (quoting Fed. R. Evid. 401). Although the scope of discovery is broad, it is not without 

limits. For example, discovery is not permitted for exploratory purposes under the premise that 

the information obtained might conceivably become germane. See Oppenheimer Fund, Inc. v. 

Sanders, 437 U.S. 340, 352 (1978). 

In applying these principles, the party objecting to discovery must explain the specific and 

particular way in which a request is vague, seeks irrelevant information, is disproportionate, or is 

unduly burdensome. See Fed. R. Civ. P. 33(b)(4) and 34(b)(2)(B); see also Democratic Republic 

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of Congo v. Air Capital Grp., LLC, No. 12-CIV-20607, 2018 WL 324976, at *3 (S.D. Fla. Jan. 8, 

2018) (quoting Sallah v. Worldwide Clearing LLC, 855 F. Supp. 2d 1364, 1376 (S.D. Fla. 2012) 

(“A party objecting on these grounds must explain the specific and particular way in which a 

request is vague, overly broad, or unduly burdensome. In addition, claims of undue burden should 

be supported by a statement (generally an affidavit) with specific information demonstrating how 

the request is overly burdensome.”)). Also, “when relevancy is not apparent, the burden is on the 

party seeking discovery to show the relevancy of the discovery request.” AFSCME Council 79, 

277 F.R.D. at 477.

B. Privilege

Federal Rule of Evidence 501, which governs the determination of whether materials 

sought in discovery are privileged, provides:

The common law—as interpreted by United States courts in the light of reason and 

experience—governs a claim of privilege unless any of the following provides 

otherwise:

• the United States Constitution;

• a federal statute; or

• rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for 

which state law supplies the rule of decision.

Fed. R. Evid. 501. Here, the parties agreed in a contract that Florida law would govern their 

disputes. Therefore, Florida law applies here. (DE 25-1 at ¶4).

A party invoking a privilege must establish its applicability. Bogle v. McClure, 332 F.3d 

1347, 1358 (11th Cir. 2003). Accountant-client privilege statutes are narrowly construed. See 

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. KPMG Peat Marwick, 742 So. 2d 328, 330 (Fla. 3d 

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DCA 1999), approved, 765 So. 2d 36 (Fla. 2000). Florida’s accountant-client privilege is set forth 

as part of the evidence code § 90.5055, Fla. Stat., and in Florida Statute’s Section on “Public 

Accountancy,” § 473.316, Fla. Stat., which states in relevant part: 

473.316. Communications between the accountant and client privileged

(1) For purposes of this section:

(a) An “accountant” is a certified public accountant.

(b) A “client” is any person, public officer, corporation, association, or other 

organization or entity, either public or private, who agrees with an accountant 

or accountant’s employer to receive professional services. 

(c) A communication between an accountant and her or his client is “confidential” 

if it is not intended to be disclosed to third persons other than:

1. Those to whom disclosure is in furtherance of the rendition of accounting 

services to the client.

2. Those reasonably necessary for the transmission of the communication.

. . .

(2) A client has a privilege to refuse to disclose, and to prevent any other person 

from disclosing, the contents of confidential communications with an 

accountant when such other person learned of the communications because they 

were made in the rendition of accounting services to the client. This privilege 

includes other confidential information obtained by the accountant from the 

client for the purpose of rendering accounting advice.

Fla. Stat. § 473.316 (1)(a), (b), (c); Fla. Stat. § 90.5055 (same). 

However, “Florida Statute 473.316 is clear that its accountant client privilege extends only 

to Florida-licensed CPA's” or those otherwise compliant with Fla. Stat. § 473.3141 with respect to 

Certified Public Accountants licensed in other states. See Fla. Stat. § 473.3141; Probinsky v. 

Probinsky, No. 13-10097-CIV, 2014 WL 12621968, at *1 (S.D. Fla. Feb. 3, 2014); Wireless Shop, 

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LLC v. TracFone Wireless, Inc., No. 18-23160, 2019 WL 2135666, at *1, n.4 (S.D. Fla. Feb. 28, 

2019) (collecting cases).

III. ANALYSIS

Defendants object to the subpoenas on grounds that they are irrelevant, overly broad in 

scope and redundant. (DE 77 at 3). Furthermore, Defendants argue that the subpoena served upon 

the Accountant attempts to subpoena privileged information under both California law and Florida 

law. Id. at 3-6. Plaintiff responds that Florida law applies, which does not protect tax returns when 

they are relevant to the case as Plaintiff argues they are here. (DE 78 at 2-3). Plaintiff also argues 

that, given that the total amount in controversy exceeds half a million dollars in repairs and that 

Plaintiff determined during discovery that Defendants may have made material misrepresentations 

to the insurer, obtaining the subpoenaed records directly from the Insurance Broker is within the 

broad scope of permitted discovery under Federal Rule of Civil Procedure 26. Id. at 7-9. I address 

the arguments pertaining to each subpoena in turn.

A. Accountant Subpoena

The Subpoena to the Accountant seeks:

All communications, including e-mails, and text messages, related to corporate tax 

returns for Privee Management One, LLC [(“PMO”)] for 2017-2020 [and] [c]opies 

of all corporate tax returns (including all attachments and schedules) for [PMO] for 

2017-2020.

(DE 77-1 at 1). However, by letter dated February 15, 2021, Plaintiff agreed to limit the subpoena 

to: “All tax returns for [PMO] and Privee Management, LLC for the years 2017-2020, including 

all attachments and schedules.” (DE 78-1 at 1-2).

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i. Privilege

Defendants assert standing to object to the subpoena to be served on the Accountant based 

on privilege. (DE 77 at 2) (citing Chaikin v. Fid. & Guar. Life Ins. Co., No. 02 C 6596, 2003 WL 

22715826, at *1 (N.D. Ill. Nov. 17, 2003) (“A party has standing to object to a subpoena directed 

at a nonparty when the party claims a ‘personal right or privilege’ regarding the documents 

sought.”)). Defendants argue that the information sought is privileged under California and Florida 

accountant-client privileges and under Florida’s law providing individuals with a right to financial 

privacy. (DE 77 at 2, 4). 

Plaintiff does not dispute Defendants’ standing. However, Plaintiff argues correctly that, 

as stated above, Florida law applies in this case because the parties contracted to have Florida law

apply. (DE 78 at 2). Plaintiff also correctly argues that Florida’s accountant-client privilege 

protects “communications” but not the tax returns. Id. at 2-3. See Fla. Stat. §§ 90.5055, 473.316. 

I also find, however, that the subject tax returns are not subject to Florida’s accountantclient privilege because Defendants have not demonstrated that the Accountant falls within the 

definition of a Certified Public Accountant under Florida’s accountant-client privilege law. Fla. 

Stat. § 473.3141; Probinsky, 2014 WL 12621968 at *1. Defendants fail to carry their burden to 

show that the privilege applies. Bogle, 332 F.3d at 1358. Nowhere in Defendants’ Motion to 

Quash is there discussion regarding how the Accountant qualifies as a Certified Public Accountant 

whose communications with clients would be subject to Florida’s accountant-client privilege. 

Furthermore, financial information is discoverable under Florida law when relevant to damages’ 

calculations under a breach of contract claim. Florida Gaming Corporation of Delaware v. 

American Jai-Alai, Inc., 673 So.2d 523, 524 (Fla 4th DCA 1996). Here, the tax returns are relevant 

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to the calculations of damages pursuant to breach of contract claims as further discussed below. 

Therefore, for all of the above-stated reasons, Defendants’ arguments pertaining to privilege as to 

the requested tax returns fail.

ii. Relevance

Defendants do not carry their burden here to demonstrate why the subpoena, as limited to 

the specified corporate tax returns, requests irrelevant information. Specifically, Defendants 

object that “the requests are duplicative of prior produced records.” (DE 77 at 3). Defendants also 

assert that the request is not proportional to the needs of the case and has no relevance to the issues 

in the case regarding whether Defendants owe Plaintiff money for work done and whether Plaintiff 

overcharged Defendants. Id. at 4-5. In support of their argument that the request for tax returns 

is duplicative, Defendants argue that Plaintiff has been provided Defendant PMO’s bank 

statements, which reflect the flow of income and expenditures from December 2018 to December 

2020. Id. at 5. Defendants contend that Plaintiff can more accurately determine Defendant PMO’s 

lost charter profits by using the bank statements. Id.

Plaintiff, on the other hand, argues that Defendants “opened the door” to discovery of the 

tax returns by claiming a loss of significant charter income as a result of repairs that the Vessel 

needed after leaving Plaintiff’s facility. (DE 78 at 4). Plaintiff further contends that deposition 

testimony revealed that the Accountant likely has financial records that will demonstrate the 

amount of income that was allegedly lost. Id. at 4-5. According to Plaintiff, the tax returns are 

necessary to determine the charter income generated by the Vessel before and after the Vessel was 

at Plaintiff’s facility for repairs. Id. at 5. Plaintiff argues that the bank records that Defendants 

provided are insufficient because they do not explain the nature of the deposits and withdrawals 

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from the account and do not establish whether the Vessel was running at a profit or a loss. Id. 

Additionally, Plaintiff asserts that Defendants produced some tax documents, and Plaintiff now 

merely seeks the production of all of the tax returns for the 2017-2020 period. Id. at 6.

The question of whether income tax returns are subject to discovery is within the sound 

discretion of the trial court. Fulenwider v. Wheeler, 262 F.2d 97, 99 (5th Cir. 1959).2

 Indeed, 

“such information need be only arguably relevant.” Erenstein v. S.E.C., 316 F. App’x 865, 869–

70 (11th Cir. 2008) (citing Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th 

Cir.1997)). Here, Plaintiff has established that the tax returns are relevant to quantifying the 

amount of lost charter income that Defendants allege occurred due to repairs that were required 

after the Vessel departed from Plaintiff’s facility. Defendants do not dispute that Plaintiff should 

have information that speaks to the lost charter income. Rather, Defendants argue that Plaintiff 

should be able to determine the lost charter income from bank statements. Bank statements, 

however, do not report income and loss as Plaintiff correctly points out. Although I conclude that

Defendants have not demonstrated irrelevance of the tax returns themselves, the broader request 

for “communications” is not facially relevant to determining the Vessel’s income. Plaintiff does 

not argue that “communications” are relevant and has agreed to limit the discovery request to tax 

returns. Accordingly, I find that the Motion to Quash should be granted to the extent that the 

subpoena seeks information beyond the requested tax returns. 

 Insurance Broker Subpoena

The Subpoena to the Insurance Broker seeks: 

2 Bartlett v. Allen, 724 F.2d 1524, n.4 (11th Cir. 1984) (“Decisions of the Fifth Circuit handed 

down prior to October 1, 1981, are binding precedent on this Court unless and until overruled or 

modified . . . en banc.”) (citation omitted). 

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1. All communications between Atlass Insurance Group and Phil Cyburt 

relating to insurance for the M/V PRIVEE, a 95-foot Sunseeker (Official 

Number 1249993).

2. All communications between Atlass Insurance Group and Anna Cyburt 

relating to insurance for the M/V PRIVEE, a 95-foot Sunseeker (Official 

Number 1249993).

3. All documents reflecting any insurance claims submitted by or on behalf of

[PMO] or Privee Management LLC for property damage or injury related 

to the M/V PRIVEE, a 95-foot Sunseeker (Official Number 1249993).

4. All applications for insurance submitted by or on behalf of [PMO] or Privee 

Management LLC for the M/V PRIVEE, a 95-foot Sunseeker (Official 

Number 1249993).

5. All policies of insurance procured by Atlass Insurance Group for [PMO] or 

Privee Management LLC for the M/V PRIVEE, a 95-foot Sunseeker 

(Official Number 1249993).

(DE 77-2 at 1-2). However, by letter dated February 15, 2021, Plaintiff agreed to limit the 

subpoena to only request numbers 3 through 5. (DE 78-1 at 1).

Defendants argument as to why the subpoenaed insurance records, as Plaintiff has limited 

the request, are not relevant is unavailing. Their argument speaks to why courts preclude evidence 

about insurance benefits, which Plaintiff makes clear is not the purpose for its request, and why 

the subject insurance policy is disconnected from the case, which Plaintiff successfully refutes. 

Defendants argue that the insurance contracts sought by Plaintiff are irrelevant because they exist 

for Defendants’ benefit, not for Plaintiff’s benefit. (DE 77 at 6-7) (citing FDIC v First Am. Title 

Ins. Co., 611 F. App’x 522, 534 (11th Cir. 2015) for the application of Florida’s collateral source 

rule to actions in contract as well as in tort, which bars the introduction of evidence regarding 

collateral insurance benefits and the setoff of these benefits from a damage award). Defendants 

also argue that the Insurance Broker’s policy only took effect on May 15, 2020, after Plaintiff 

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arrested the Vessel on May 13, 2020, and is not tethered in any way to the repair process at 

Plaintiff’s facility. (DE 77 at 7). Further, Defendants aver that they have not collected any monies 

from the Insurance Broker’s policy on the fire damage that occurred before the policy went into 

effect. Id. Defendants also argue that only Defendants, and not any insurer, will be liable to 

Plaintiff for any unpaid amounts under the parties’ agreement. Id. at 7-8. Defendants acknowledge 

producing the Insurance Broker’s policy during discovery but argue that the subpoena seeks 

completely irrelevant documents because all of the Insurance Broker’s records “will begin after 

this litigation had begun.” Id. at 8. On this basis, Defendants also argue that the records are not 

proportional to the needs of the case, which Defendants describe as seeking to resolve disputes 

about contractual and lien issues. Id.

Plaintiff, on the other hand, argues that the documents it seeks, as limited, are relevant 

because, in part, they pertain to claims and defenses. Plaintiff argues that the beneficial owner of 

the Vessel gave testimony in a deposition that conflicted with a copy of the insurance application 

to the Insurance Broker, which Defendants had produced. (DE 78 at 7-8). Specifically, Plaintiff 

avers that discovery revealed that Defendants may have made material misrepresentations to the 

insurer about the scale, scope and quality of repairs to the Vessel as evidenced, in part, by the 

subject insurance application suggesting that the Vessel’s damage was limited to under $17,000 

from smoke due to a “small electrical fire in the crew quarters.” Id. at 7. Plaintiff argues that its 

more limited request for documents pertaining to claims, applications and policies are relevant 

because: (1) a prior inconsistent statement on an application signed by Defendants is admissible 

for impeachment purposes; (2) evidence of prior claims on the Vessel represent potential preCase 0:20-cv-60849-RAR Document 81 Entered on FLSD Docket 02/25/2021 Page 11 of 13
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existing defects for which Plaintiff should not be held responsible; and (3) evidence of subsequent 

claims demonstrate that Defendants filed their counterclaim in bad faith. Id. at 8-9. 

I find that Plaintiff has established that its subpoena, as limited, seeks relevant information. 

Plaintiff’s explanation indicates that the information bears on claims and defenses, and such 

information is within the scope of discovery allowed by the federal rules. See Fed. R. Evid. 401

(defining relevance as information that would tend to make a fact of consequence in the action 

more or less probable). As demonstrated by the copy of the insurance application produced to 

Plaintiff and by the deposition of the Vessel’s beneficial owner, the documentation in the 

possession of the Insurance Broker may bear on the history of the Vessel prior to the issuance of 

the Insurance Broker’s policy. Therefore, it is not completely untethered from the timeframe or 

events that occurred in this case. Additionally, even though Defendants allege that they did not 

collect for fire damage before the policy went into effect, claims made by Defendants under the 

policy could still be relevant to pre-existing defects. Also, to the extent that the Insurance Broker 

has documents pertaining to “any insurance claims” as the subpoena specifies, the documentation 

could likewise be relevant to pre-existing defects or to Defendants’ counterclaims. Plaintiff does 

not argue that “communications” are relevant and has agreed to limit the subpoena to requests 3 

through 5. Therefore, I conclude that the Motion to Quash, as it pertains to the Insurance Broker 

subpoena, should be denied to the extent that the subpoena seeks the information in requests 3 

through 5.

IV. CONCLUSION

Accordingly, it is hereby

ORDERED AND ADJUDGED as follows:

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1. The Motion to Quash (DE 77) is GRANTED IN PART AND DENIED IN PART;

2. With respect to the Accountant, the Motion to Quash is GRANTED to the extent that 

Plaintiff seeks information beyond the specified tax returns and DENIED with respect 

to the requested tax returns. Further, Defendants’ objections to discovery of the tax 

returns are OVERRULED;

3. With respect to the Insurance Broker, the Motion to Quash is GRANTED with respect 

to request numbers 1 and 2 and DENIED with respect to request numbers 3 through 5. 

Further, Defendants’ objections to request numbers 3 through 5 are OVERRULED; 

and

4. The subject discovery shall be served upon Plaintiff no later than March 1, 2021.

DONE AND ORDERED in Fort Lauderdale, Florida, this 25th day of February 2021.

Copies furnished counsel via CM/ECF

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