IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

FIDELITY BROKERAGE SERVICES 

LLC, 

Plaintiff, 

v. 

JENNIFER TAYLOR, 

Defendant. 

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No. 20 CV 2133 

Judge John J. Tharp, Jr. 

ORDER 

Defendant’s amended motion to compel discovery responses [42] is granted in part and 

denied in part. See Statement below for details. 

STATEMENT 

 In a complaint filed on April 3, 2020, plaintiff Fidelity Brokerage Services LLC claims that 

defendant Jennifer Taylor, who was until March 6, 2020, a vice president and financial consultant 

with Fidelity, is misusing Fidelity’s confidential and trade secret customer information to solicit 

Fidelity customers to follow her to her new employer, Fairhaven Wealth Management. Taylor 

denies misusing Fidelity information and soliciting investment management business from her 

former Fidelity customers. 

Fidelity has moved for a preliminary injunction. [4] The Court permitted limited expedited 

discovery [29], in which the parties are now engaged. Among other discovery, each side was 

permitted to make five document requests. The overarching limitation on the scope of the 

discovery permitted is that only discovery of “information at the heart of this dispute—that is, 

whether Ms. Taylor has used Fidelity’s information improperly to solicit her former clients at 

Fidelity to follow her to Fairhaven”—is permitted. 

Defendant Taylor has moved to compel more fulsome responses from Fidelity regarding 

her document requests, complaining that it has (a) asserted a litany of boilerplate objections to 

every single request; (b) failed to state whether it has withheld any documents on the basis of those 

objections; and (c) has refused to produce whole categories of documents that are unquestionably 

relevant to the claims at issue. According to Taylor, Fidelity has produced only six documents in 

response to her requests. For its part, Fidelity maintains that Taylor’s discovery requests are 

inappropriately broad and/or not relevant to the central question of whether Taylor used Fidelity’s 

information to solicit her clients to follow her to Fairhaven. 

The parties’ specific disputes are summarized and resolved as follows: 

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1. Request No. 1: Documents that “constitute, identify, describe, concern or relate to 

the confidential information and/or trade secret information that Fidelity contends Ms. 

Taylor has misappropriated, as alleged in this lawsuit.” 

Fidelity contends that this request is too vague and broad to the extent that it seeks 

discovery of any document that concerns or relates to categories of information like Fidelity’s 

customer lists; read literally, Fidelity contends, the request can be read to call for production of 

any document relating to Fidelity’s customers—a request that would arguably extend to virtually 

every document in Fidelity’s possession. Taylor characterizes this request more narrowly, as 

seeking the trade secrets and confidential information that she is alleged to have misappropriated. 

Memorandum, ECF No. 43, at 6 (the request “could not be more straightforward”; it “simply asks 

Fidelity to produce the ‘confidential information’ and ‘trade secrets’ that she has been accused of 

stealing”). 

To the extent that Taylor is seeking “information” rather than documents, however, she is 

off-base. This is a document request, not an interrogatory; it requires the production of existing 

documents, not the creation of a narrative description or listing of confidential information Taylor 

allegedly misappropriated.1

 Fairly construed and limited to existing documents, Taylor’s request 

is for Fidelity to produce any document it contends evidences misappropriation of trade secrets by 

Taylor. That would include documents containing Fidelity’s confidential information that Taylor 

took with her when she resigned,2

 and any documents that discuss the use of proprietary 

information by Taylor in connection with her resignation and move to Fairhaven. If Fidelity cannot 

identify any such documents then it will have nothing to produce in response to this request. Taylor 

has no grounds to object on that score; she can hardly complain about Fidelity’s inability to 

produce materials that would provide evidentiary support for its claims. 

Request No. 2: Documents “that constitute, identify, describe, concern or relate to 

any allegedly improper solicitation of any Fidelity client(s) by Ms. Taylor, as alleged by 

Plaintiff in this lawsuit.” 

Taylor’s motion focuses on three types of information pertaining to her alleged solicitation 

of Fidelity customers. For one, she seeks production of her Outlook Calendar for the 12 months 

before her resignation. Fidelity has produced the calendar entries for 2020 but maintains that earlier 

entries are not relevant and overly burdensome to produce. Taylor says that the entries are relevant 

to show her normal calendaring practices to rebut Fidelity’s argument that she made appointments 

with Fidelity clients for dates she knew she would no longer be working for Fidelity. That misses 

the point, Fidelity argues; Taylor’s calendaring was relevant because she only made entries for 

1

 In any event, Fidelity has identified what it maintains is the trade secret information that 

Taylor misappropriated. Fidelity says that “Taylor misappropriated names, addresses and phone 

numbers, at a minimum for multiple Fidelity clients from Fidelity’s trade secret client list.” 

Response, ECF No. 49, at 3-4. In complaining that this description is inadequate, Taylor conflates 

interrogatories with document requests. 

2

 Taylor’s reply brief makes it clear that she is asking for production of trade secret 

documents that she is alleged to have misappropriated. See Reply, ECF No. 50, at 2 (e.g., “Did she 

download files on a thumb drive? If so, produce them.”). 

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post-resignation meetings with Fidelity clients in her personal Outlook calendar, not in the Sales 

Force calendar that others could access. Taylor argues that is consistent with her historical practice, 

so a full year’s information is needed. While this line of evidence strikes the Court as lacking 

substantial probative force (for either party), since both sides agree that calendaring is going to be 

an issue, the Court will require Fidelity to produce Taylor’s Outlook calendar for the 12-month 

period prior to her resignation. The burden in doing so should be minimal; as Taylor points out, 

producing 12 months of calendar data is only minimally more burdensome than producing 3 

months’ worth. In suggesting that this will potentially require review of tens of thousands of 

calendar entries, Fidelity’s unexplained estimate is unpersuasive hyperbole. 

In her initial brief, Taylor also sought production of Fidelity’s full compliance manual. 

Fidelity says it offered to produce the portions of the manual addressing “what an employee should 

say when asked by a client about a former financial consultant’s new contact information, and in 

reply, Taylor has limited her request to “the 2019 policy regarding FINRA Regulatory Notice 19-

10” (“Guidance on Customer Communications Related to Departing Registered Representatives”). 

Again, this is of dubious probative force (evidence that Fidelity had a policy requiring employees 

to provide contact information of departed advisers seemingly cuts against a claim that Fidelity 

employees did not do so; Taylor’s evidence presumably must come from testimony of clients or 

Fidelity employees who say that, notwithstanding such a policy, such information was not 

provided, or from records of communications between Fidelity employees and Taylor’s former 

clients—see next paragraph). At any rate, Fidelity’s policy concerning information to be provided 

about departed advisers has some relevance and should not pose any significant burden to produce; 

accordingly, Fidelity is directed to produce it. 

Third, and perhaps most significantly, Taylor seeks documents constituting or reporting 

Fidelity’s communications with clients about Taylor’s departure. These documents, she argues, 

“are relevant to Fidelity’s allegation that Ms. Taylor was soliciting clients while at Fidelity, and 

the issue of whether Fidelity was wrongfully refusing to provide clients with Ms. Taylor’s 

contact information upon request (in violation of its own internal compliance procedures and 

FINRA rules).” Memorandum, ECF No. 43, at 8-9. Fidelity has produced its “Salesforce” (a client 

contact application) records of communications with Fidelity clients about Taylor’s departure, but 

Taylor correctly notes that numerous Salesforce entries refer to email communications that are 

either paraphrased or only partially copied into the Salesforce entry. Fidelity’s production of the 

relevant Salesforce records is a necessary, but not sufficient, response; they provide, at best, only 

a partial record of Fidelity’s communications with clients about Taylor’s departure. 

Fidelity characterizes Taylor as seeking the production of “the full contents of her 

Microsoft Outlook account,” which “would include every email ever sent or received.” Resp. ECF 

No. 49 at 7. But that is not what Taylor asks for; her request is more limited: “Fidelity must produce 

all of its email communications with clients concerning her departure.” Memorandum, ECF No. 

43, at 9. That is a reasonable request, and indeed, Fidelity says that it has “gone back to search for 

additional client emails related to Taylor’s departure from Fidelity, and it will be producing those 

shortly,” Resp. at 7, so there appears to be no dispute as to the need to produce such documents. 

Fidelity is directed to produce all of its email (or other documented communications) with clients 

concerning Taylor’s departure, whether they are included (in whole or part) in the Salesforce 

records already produced. 

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Request No. 3 and 5: documents relating to the quality of Taylor’s performance. 

Taylor maintains that documents showing that she was a top performer at Fidelity are 

relevant because they explain why clients would follow her to Fairhaven without being solicited 

to do so. Specifically, she seeks in Request 5 documents that “identify, describe, concern or relate 

to Ms. Taylor’s compensation and relative performance during the period of Scott Marshall’s 

tenure as branch manager of Fidelity’s Oak Brook office.” In Request 3, she seeks documents 

“sufficient to identify each Vice President Financial Consultant that Charles Meyer or Scott 

Marshall have placed on ‘final written warning’ at Fidelity.” These documents, she contends, 

would somehow show that she was the victim of bias by her bosses and that their reviews of her 

work are therefore unreliable and do not rebut the evidence that she was a top performer.3

These documents have little relevance to the question of whether Taylor improperly used 

Fidelity’s trade secret and confidential information to solicit Fidelity clients to follow her to 

Fairhaven. Unquestionably, evidence that Taylor was an effective financial consultant at Fidelity 

would tend to make it more likely that some clients would follow her to Fairhaven. The proposition 

is simple: good financial advisers engender more client loyalty than poor ones. But that does not 

tell us anything about whether Ms. Taylor solicited clients to follow her or whether they did so on 

their own. Even if we accept the proposition that more clients would follow an effective financial 

consultant without prompting than would follow an ineffective consultant, that says nothing about 

whether any clients who did move from Fidelity to Fairhaven in the wake of Ms. Taylor’s move 

did so at her behest or on their own initiative. 

At best, evidence that Ms. Taylor was a strong performer may lend some plausibility to 

other evidence that is more directly related to the question of whether Taylor solicited clients to 

follow her to Fairhaven. In that light, evidence that she was compensated well, or that her 

evaluations were strong has enough probative weight to warrant production and, accordingly, the 

Court will require Fidelity to produce documents described in Paragraph 5 of Ms. Taylor’s motion. 

The documents sought by Request No. 3, however, are another matter. They are not 

documents relating to Taylor’s performance but to the performance of others. This gives them even 

less probative value; the argument for their relevance requires additional layers of inference (her 

supervisors treated others better than her, so they were biased against her, so their performance 

reviews are unreliable, so Taylor was actually a top performer, so clients would have an incentive 

to follow her to Fairhaven, so some of them must have done so unbidden). That the requests seek 

personal and sensitive information about non-parties to this suit who have nothing to do with the 

events surrounding Ms. Taylor’s departure provides another substantial reason to deny these 

requests. In short, this chain of inferences is too tenuous and tangential to support discovery—

much less limited expedited discovery for purposes of resolving a preliminary injunction motion—

of personnel records of other individuals who are not parties to this dispute and who had nothing 

to do with Taylor’s departure from Fidelity. 

3

 Ms. Taylor does not explain how documents that identify others who were given final 

performance warnings would show that she was mistreated. 

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Request No. 4: “documents and communications concerning the departure of a Vice 

President Financial Consultant in Fidelity’s Chicago cluster market (each a “former 

employee”) who, since 2004, left Fidelity to join another firm in the financial services 

industry.” 

 Ms. Taylor says that she needs this information to bolster her “waiver/estoppel” defense; 

evidence that Fidelity did not sue others who left Fidelity and took clients with them, she contends, 

establishes that Fidelity waived its right to enforce contractual restrictions on disclosure of 

confidential information and solicitation of customers. There are several problems with this 

argument, but three will suffice. Putting aside the question of whether non-enforcement of 

restrictive covenants can ever rise to the level that would establish waiver or estoppel of any 

attempt in another case to enforce such restrictions, the proposition that Fidelity regularly ignores 

violations of its restrictive covenants is unpersuasive in light of the myriad cases Fidelity identifies 

in which it has successfully enforced its restrictive covenants against departing employees. See 

Response, ECF No. 49, at 13. Second, any species of estoppel argument that might be made would 

depend on a showing that individual cases in which Fidelity did not seek enforcement of its 

restrictive covenants were substantially similar to this case. As Fidelity argues, establishing that 

proposition would require a “mini-trial” as to each situation Taylor identifies in order to establish 

that reliance on non-enforcement in that situation would have been reasonable. Id. at 14. That is 

not an exercise that the Court is going to entertain in the context of a preliminary injunction 

hearing, particularly one that is merely a precursor to an arbitration. The evidence that Taylor 

would require to support such a defense would take the hearing far afield of the limited scope of 

expedited discovery the Court has authorized. And third, as with Taylor’s Request No. 3, this 

request would extend discovery in this case to private and confidential employment records of 

individuals who have nothing to do with the present dispute. 

 Beyond her motion to compel the production of additional documents, Ms. Taylor also 

objects to Fidelity’s redaction of information from the documents it has produced. Fidelity 

represents that it has redacted only information “regarding customer investments and investment 

decisions.” Id. at 15. Ms. Taylor contends that “attorneys’ eyes only” treatment of such records 

should suffice and that she has no means to verify that the scope of the redactions is as Fidelity 

describes it. Here, Ms. Taylor has the better of the argument; the Court has entered an agreed 

protective order that adequately protects the confidentiality of information produced in the course 

of discovery; that is the appropriate manner of protecting the confidentiality of documents 

produced in discovery. Fidelity is therefore directed to produce unredacted copies of the 

documents it has produced and will produce in this matter. 

* * * * * 

Fidelity is required to produce the additional materials identified above by July 2, 2020. 

Because Ms. Taylor’s motion received a mixed verdict, the Court denies her request for fees and 

costs associated with bringing the motion. 

 /s/ John J. Tharp, Jr. 

Dated: June 24, 2020 John J. Tharp, Jr. 

 United States District Judge 

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