Edith Wallace GREEN, Plaintiff, v. FCA CORPORATION and Robert W. Scharar, Defendants CASE NO. 8:14–cv–03089–T–17MAP United States District Court, M.D. Florida, Tampa Division Signed June 11, 2015 Counsel Edward Joseph Brown, Stuart Jay Levine, Walters Levine Klingensmith & Thomison, PA, Tampa, FL, for Plaintiff. Erica S. Gooden, Joseph H. Varner, III, Holland & Knight, LLP, Laura H. Howard, Addison & Howard, PA, Tampa, FL, for Defendant. Pizzo, Mark A., United States Magistrate Judge ORDER *1 Plaintiff, who is in her late 80s, alleges FCA fraudulently and negligently gave her improper investment advice by investing without her knowledge or her consent over $2.5 million of her money into risky investments that eventually caused her to lose principal, interest income, and profit (doc. 21). FCA eventually removed this case here after litigating and losing a series of discovery disputes in the state court. Still dissatisfied with these rulings, FCA wants this Court to reconsider FCA's arguments that both a special magistrate and a state-court judge found wanting, to vacate those orders, and to uphold FCA's many objections to the Plaintiff's discovery demands (doc. 25). The Plaintiff, predictably, wants the opposite—compliance with the orders and sanctions for FCA's disobedience (doc. 22). After consideration, I find no reason to undo what has already been done; accordingly, Plaintiff's motion to compel is GRANTED and FCA's motion to vacate is DENIED. A. Procedural history This case has an extensive procedural history that dates back to July 2013 when Plaintiff filed her original complaint demanding an accounting in state court. In early September 2013, she served FCA with an extensive document request. See doc. 25–1. FCA objected contending that Plaintiff was not entitled to any documents until the state court had determined her right to an accounting.[1] The state court overruled that objection and ordered FCA to file specific responses and/or objections to Plaintiff's requests. See doc. 6–1, p. 230. FCA renewed its previous argument and also objected to the requests on grounds they were overbroad and vague (doc. 6–1, pp. 231–263). That prompted Plaintiff to file motions to compel, which the state-court judge granted for the most part. Plaintiff's first motion to compel (March 27, 2014) sought better responses to her requests and the production of electronically stored information through the use of a neutral third party expert. Before ruling on the motion, however, and by stipulation of the parties, the state court appointed a special magistrate (A. Woodson Isom, Jr.) to hear any all discovery disputes concerning the case, including the motion to compel (doc. 6–1, p. 286). After a hearing, the special magistrate issued a report (June 2014) recommending that the state-court judge: (a) overrule FCA's objections that Plaintiff was not entitled to production until the court rules on her entitlement to an accounting; (b) overrule FCA's objections that the scope of production requests was overbroad; (c) order FCA to produce all documents responsive to requests 1, 2, and 3 of the production requests and to categorize the documents to show the documents responsive to each request; (d) overrule all objections to specific requests raised by FCA; (e) order production of responsive documents by a certain date; and (f) appoint a neutral ESI expert to acquire FCA's ESI for a relevant time period and then to search that data for specific terms that are reasonably calculated to locate relevant information (doc. 25–3, pp. 4–8). The court adopted the special magistrate's report and recommendation in its entirety (July 2014) and directed that FCA file its amended responses and produce all responsive documents maintained in hard copy within 30 days of the order and to file a privilege log if it claimed a privilege (doc. 25–3, pp. 2–3) (“Discovery Order No. 1”). The court also appointed a neutral ESI expert, to be agreed on by the parties, to collect and search FCA's ESI for information responsive to the requests (doc. 25–3, p. 3). *2 At the end of July 2014, FCA filed a writ of certiorari with the state appellate court seeking review of Discovery Order No. 1 (doc. 22–12). While that matter was pending, Plaintiff filed a second motion to compel and for sanctions against FCA and its counsel for violation of Discovery Order No. 1 (doc. 6–11, pp. 13–29). The state court denied the motion for sanctions but granted Plaintiff's motion to compel and ordered FCA to provide certain information to Plaintiff before the close of business on August 21, 2014 (doc. 25–4) (“Discovery Order No. 2”). Despite FCA claiming they provided the information directed by the court in Discovery Order No. 2, Plaintiff filed a third motion to compel and for sanctions. The state-court judge deferred ruling on that motion pending the decision on FCA's writ of certiorari (“Discovery Order No. 3”), noting that he “will grant attorney's fees and costs in favor of Edith Wallace Green with respect to all matters brought to this Court's attention or the Special Master's attention regarding the issue of the production of documents including, but not limited to the Motions to Compel, hearings on recommendations of the Special Master, the Second Motion to Compel and whatever motions have been filed relating to discovery should Ms. Wallace Green prevail on the Petition for Writ of Certiorari.” See doc. 25–5 at ¶ 3. The court added that it would consider fees and costs associated with the writ's litigation if directed to do so by the appellate court. Id. at ¶ 4. After FCA filed its writ and before the appellate court denied the writ, Plaintiff amended her complaint adding new factual allegations and new claims (doc. 2). FCA, claiming that the new allegations substantially changed the character of the litigation to create an entirely new lawsuit, removed the action to this Court on December 11, 2014, alleging diversity (doc. 1). On December 19, 2014, the appellate court denied FCA's writ of certiorari.[2] After removal and the district judge's order denying Plaintiff's motion for remand, Plaintiff filed her motion to compel compliance with state court Discovery Orders Nos. 1, 2, and 3 (doc. 22). In sum, the motion argues the Court should enforce these orders because FCA cannot present any valid reason to reconsider them. She also contends the appellate court's denial of FCA's writ of certiorari reaffirmed these orders. FCA's view as to all this is opposite. It continues to reject the state-court findings and moves to vacate Discovery Orders Nos. 1, 2, and 3 (docs. 24, 25), contending these rulings are at odds with the federal rules. Lastly, FCA also requests the Court vacate a discovery order entered by the state court on October 8, 2014, in which FCA moved to compel discovery responses from Plaintiff (“Discovery Order No. 4”) (doc. 25–8). In that order, the state court granted in part and denied in part FCA's amended motion to compel. (Id.). FCA claims Discovery Order No. 4 effectively precludes it from engaging in discovery as to Plaintiff's new claims set forth in her amended complaint. B. Discussion When FCA elected to remove this case to federal court, taking advantage of its privilege to do so under 28 U.S.C. § 1441, FCA took with it the litigation record of the state proceedings. The removal scheme contemplates as much. In keeping with this Court's authority under 28 U.S.C. § 1447(b), our Local Rule 4.02(b) requires the removing party to file the “the notice of removal a true and legible copy of all process, pleadings, orders, an other papers or exhibits of every kind, including depositions, then on file in the state court.” These demands are not by happenstance or simple convenience. The reason for this is based again on the statutory scheme (28 U.S.C. § 1450): “All injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved by the district court.” Thus, the parties, and particularly in our circumstance—the removing party, must expect that the federal court will “ ‘take[ ] the case up where the State court left if off.’ ” Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 436 (1974) quoting Duncan v. Gegan, 101 U.S. 810, 812 (1880). This consequence, says the Supreme Court, promotes two policies: judicial economy by the avoidance of unnecessary duplication and the protection of the parties' rights already covered by interlocutory orders that do not lapse upon removal. Id. at 435–436. Thus, the district court considers the pre-removal orders as its own. See Johnston v. Tampa Sports Authority, 530 F. 3d 1320, 1324 (11th Cir. 2008). And with that acceptance comes the recognition that the district court possesses the authority to vacate or set aside any state court order as if it were reexamining its own. Id.; See also Jackson v. American Sav. Mort. Corp., 924 F.2d 195, 198 (11th Cir. 1991) (A “district court naturally is able to reexamine its own proceedings.”). While a district court is vested with considerable discretion in reexamining what it has done, a motion for reconsideration (which is what FCA is really asking for here) is appropriate when there has been an intervening change in the controlling law, or new evidence which has become available, or the need to correct clear error or prevent manifest injustice. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689 (M.D. Fla. 1994). For pre-removal orders, the typical reason given for reconsideration is that the applicable federal standard differs from the one the state judge applied when deciding the issue at hand. 21 Wright & Miller, Federal Practice and Procedure § 3738. That is not our situation, as FCA admits Florida's applicable discovery rule (Fla. Civ. P. 1.280(b)(1)) mirrors the federal one (Fed. Civ. P. 26(b)(1)). See doc. 24 at 11 n. 3. FCA's real claim is that the state judge got it wrong, and got it wrong, apparently, on all, most, or some of his discovery orders (FCA's motion is not altogether clear on this point). *3 Notably, FCA does not argue that an intervening change in the controlling law has occurred necessitating review or that new evidence requires the court take another look at the state-court orders. At best, it argues that this Court should reconsider these orders to prevent clear error or prevent manifest injustice; yet, FCA fails to point to any controlling case that defines the error the state judge committed or any resulting circumstance from his orders that points to manifest injustice. Aside from compelling document production, the Plaintiff also demands sanctions in accordance with the state judge's orders and for fees and costs in bringing the instant motion to compel. Discovery Order No. 3 (doc. 25–5 at ¶ 3) says the following about sanctions: This Court will grant attorney's fees and costs in favor of Edith Wallace Green with respect to all matters brought to this Court's attention regarding the issue of the production of documents including, but not limited to the Motions to Compel, hearings on the recommendation of the Special Master, the Second Motion to Compel and whatever motions have filed relating to discovery should Ms. Wallace Green prevail on the Petition for Writ of Certiorari. As noted, the state appellate court's denial of the writ carries no preclusive effect because removal of the case to federal court had already occurred. Nonetheless, the state judge's order and his remarks at the hearing that precipitated that order can only be interpreted as a signal to FCA that if it lost its arguments it would have to pay fees and costs associated with its discovery faults. FCA dismisses all this with a syllogistic slight of hand. The state judge stayed his order on sanctions pending the disposition of the writ; the decision on the writ is void due to the removal; therefore, the order as to sanctions is void as well. This reasoning is not persuasive for the same reasons I have already outlined. To paraphrase Granny Goose's language (supra), this Court takes up this case where the Thirteen Judicial Circuit in and for Hillsborough County left it. When FCA opted for federal court, it abandoned its writ. The state-court judge's order, which obviously did not contemplate removal, simply withheld the imposition of sanctions until the appellate court acted. Instead, FCA acted for them. To accept FCA's logic would mean that the stay would presumably remain in effect to this day, and that all the discovery orders would have no effect. In reviewing the state-judge's order, I find the more appropriate question to ask now is whether his imposition of sanctions runs afoul the discretion this Court would have exercised under Fed. R. Civ. P. 37 when confronted with FCA's conduct. Nissho–Iwai American Corp. v. Kline, 845 F.2d 1300, 1304 (5th Cir. 1988) (sustaining state-court sanctions imposed before removal).[3] Clearly it does not. Under the rule, “[i]f the motion [to compel discovery] is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion ... to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). *4 The remaining consideration is whether Plaintiff should be awarded its costs and fees in bringing its motion to compel FCA's compliance with the state-court orders (doc 22). Both 28 U.S.C. § 1450 and Rule 37 resolve this question. As these state-court orders are now this Court's orders, the Plaintiff's current motion can only be viewed as an effort to enforce a court order under Rule 37(b). Rule 37(b)(2)(C) provides that if the court does not choose from any of the rule's list of available sanctions (or in addition to any of those sanctions): “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” For the above reasons, it is hereby ORDERED: 1. FCA's motion to vacate state-court discovery orders (doc. 25) is DENIED. 2. Plaintiff's motion to compel compliance with state court orders (doc. 22) is GRANTED, and FCA is directed to pay the Plaintiff's reasonable fees and costs in bringing the motion and in responding to FCA's motion to vacate (doc. 25). 3. FCA is directed to pay the Plaintiff her reasonable costs and fees as directed in Discovery Order #3: This Court will grant attorney's fees and costs in favor of Edith Wallace Green with respect to all matters brought to this Court's attention regarding the issue of the production of documents including, but not limited to the Motions to Compel, hearings on the recommendation of the Special Master, the Second Motion to Compel and whatever motions have filed relating to discovery ... 4. To the extent that FCA has withheld documents it claims is covered by a privilege or protection, FCA is to furnish the Plaintiff with a privilege log within 30 days that includes the following information: (1) a brief description or summary of the document sufficient to understand its context without revealing the contents; (2) the date it was prepared; (3) the name(s) of the person(s) who prepared the document and their position(s); (4) the person(s) to whom the document was directed or received, or for whom it was prepared, and their position(s); (5) the purpose for preparing the document; (6) the privilege asserted; and (7) the reasons that document purportedly satisfies the asserted privilege. As to this last provision, with regard to documents allegedly protected as work product, FCA must identify the “litigation” at issue at the time the document was prepared and state why this document meets the “in anticipation of litigation” standard in this case. FCA may also supplement the log with an affidavit or affidavits by reviewing attorneys. See CSX Transportation, Inc. v. Admiral Insurance Company, 1995 WL 855421 (M.D. Fla. 1995); Gottlieb v. Wiles, 143 F.R.D. 241 (D.C. Colo. 1992). The privilege log must permit the Plaintiff and the Court to assess the documents under all of the elements of work product protection under federal law and the attorney-client privilege under Florida law. See Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980). 5. The Court will convene a hearing on Thursday, June 18, 2015, at 10:00 a.m., in Courtroom 11B, 801 N. Florida Avenue, Tampa, Florida 33602. Parties should be prepared to discuss the discovery production to date. DONE AND ORDERED. Footnotes [1] Plaintiff eventually amended her complaint. The added claims prompted FCA to remove the matter here in December 2014. See Order denying Plaintiff's motion for remand (doc. 16). After removal, Plaintiff amended her complaint a third time adding Robert W. Scharar as a defendant. [2] While the state appellate court's denial of FCA's certiorari effort may have some persuasive effect, it has no preclusive effect because FCA's removal the week before ended the state court's jurisdiction over the matter. Allman v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962). [3] “If, for example, it appears that the state court imposed sanctions inconsistent with federal standards, the federal court should not be fettered by considerations of deference from independently developing the record and then modifying or dissolving the order, as the circumstances may require.” Id.