SUPERIOR CONSULTING SERVICES, INC., Plaintiff, v. SHAKLEE CORPORATION and SHAKLEE U.S., LLC, Defendants Case No: 6:16-cv-2001-Orl-31GJK United States District Court, M.D. Florida Filed July 24, 2018 Kelly, Gregory J., United States Magistrate Judge ORDER *1 This cause came on for consideration without oral argument on the following motion filed herein: MOTION: THE SHAKLEE DEFENDANTS’ MOTION TO EXCLUDE “PROTOCOL” (Doc. No. 338) FILED: June 26, 2018 THEREON it is ORDERED that the motion is DENIED. I. FACTUAL BACKGROUND On January 2, 2018, Defendants (collectively, “Shaklee”) filed their answer, affirmative defenses, and counterclaim (the “Counterclaim”). Doc. No. 166. Count III of the Counterclaim alleges that Plaintiff (“Superior”) violated Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. Id. at 40-41. Specifically, Count III of the Counterclaim alleges that Superior, through its owner, Eleanor Cullen, engaged in a deceptive act by practicing medicine without a license and using Shaklee’s supplements for treating medical conditions. Id. On May 25, 2018, the Court held a hearing on Superior’s Daubert motion to exclude Dr. Arthur Herold. Doc. No. 331. At the hearing, an issue was raised regarding the existence of a medical protocol allowing Ms. Cullen to interpret blood test results and communicate with her clients regarding the same. Id. at 52-54. Superior represented that it has such a protocol, but it was not produced in discovery. Id. at 52-53. The undersigned ordered Superior to produce the protocol, which was done on May 30, 2018. Id. at 53; Doc. No. 338 at 2. On June 26, 2018, Shaklee filed a motion (the “Motion to Exclude”) requesting that the Court exclude any reference to the protocol at trial and award Shaklee reasonable expenses incurred in bringing the motion. Doc. No. 338 at 13. Shaklee asserts three arguments as a basis for excluding the protocol as a sanction for Superior’s alleged failure to timely disclose it. First, Shaklee argues that the protocol should be excluded because Superior failed to disclose it in any of its initial disclosures under Federal Rule of Civil Procedure 26(a). Id. at 3, 9-12. Second, Shaklee argues that the protocol was responsive to a subpoena duces tecum served on Dr. Tamara Sachs, and was clearly within her care, custody, or control but was not produced.[1] Id. at 4-5. Finally, Shaklee argues that Superior did not produce the protocol in native format or with the document’s original metadata. Id. at 7-8. On July 10, 2018, Superior filed a response to the Motion to Exclude. Doc. No. 341. Superior argues that it fulfilled its obligations under Rule 26 by describing the categories of documents within its care, custody, or control and the location of such documents. Doc. No. 341 at 9-10 (citing Doc. No. 338-3 at 4, 9, 16, 22, 28). Superior also argues that Dr. Sachs “did not and does not have the [protocol] in her possession, custody, or control” and that Shaklee sought no further discovery from Dr. Sachs in this case.[2] Id. at 5-8. Finally, Superior argues that it could not produce the protocol with the original metadata because Superior only had a tangible copy of the same, which was scanned and provided to Shaklee. Id. at 10-11. *2 On July 18, 2018, Shaklee filed a reply in support of the Motion to Exclude. Doc. No. 349. Shaklee states that it was never made aware of the protocol through: 1) Superior’s Rule 26 disclosures; 2) the deposition testimony of Carol Guth; and 3) various declarations Superior used in support of a motion for summary judgment. Id. at 2-3. Specifically, Shaklee argues that Superior’s “general reference to 130.5 GB of data” in its initial disclosures does not put Shaklee on notice that Superior could use the protocol at trial. Id. at 2. II. APPLICABLE LAW Rule 26 requires a party to provide “a copy--or a description by category and location--of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(ii). “The rule does not require a party to produce documents; instead, it gives the disclosing party the option of producing the documents or providing a description of the category and the location of the documents.” Arroyo Process Equip., Inc. v. SPX Corp., 8:12–cv–1862–T–33MAP, 2013 WL 12157584, at * 1 (M.D. Fla. Jan. 16, 2013). See also 2P Commercial Agency S.R.O. v. SRT USA, Inc., No. 2:11–CV–652–FtM–29SPC, 2012 WL 1660614, at * 1 (M.D. Fla. May 11, 2012) (“Nevertheless, while Rule 26 does not require the Defendant to produce the requested documents, it does require the Defendant to state the location of any documents or electronic production disclosed under the Rule.”); Forbes v. 21st Century Ins. Co., 258 F.R.D. 335, 337 (D. Ariz. 2009) (citations omitted) (“Rule 26(a)(1)(A)(ii) does not require parties to produce documents; other parties are ‘expected to obtain the documents under Rule 34 or through informal requests.’ ”). Rule 37(c) allows the Court to exclude information that was not disclosed under Rule 26(a). Fed. R. Civ. P. 37(c). Rule 37(c) states that in the event that “a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Id.[3] The “party failing to comply with Rule 26 bears the burden of showing that its actions were substantially justified or harmless.” Murdick v. Catalina Mkt’g Corp., 496 F. Supp. 2d 1337, 1345 (M.D. Fla. 2007). III. ANALYSIS Shaklee’s first argument is that the protocol and any reference thereto should be excluded because Superior failed to disclose it in any of its Rule 26 disclosures. Doc. No. 338 at 3, 9-12. Superior argues that it fulfilled its obligations under Rule 26 by describing the categories of documents within its care, custody, or control and their location. Doc. No. 341 at 9-10. In support of their argument, Superior cites their initial disclosures stating that it has “emails, marketing materials, research, correspondence, financial documents, legal files, client files, business files, text messages.” Id. (citing Doc. No. 338-3 at 4, 9, 16, 22, 28). Superior’s disclosures also state that such documents are in the care, custody, and control of its vendor for electronically stored information. Id. In its reply, Shaklee argues that Superior’s Rule 26 disclosures are so general that they failed to put Shaklee on notice that the protocol could be used at trial. Doc. No. 349 at 2. *3 As noted above, Rule 26(a) “gives the disclosing party the option of producing the documents or providing a description of the category and the location of the documents.” Arroyo Process Equip., Inc., 2013 WL 12157584 at * 1. In each of their Rule 26 disclosures, Superior described the categories and the location of the documents it may use to support its claims or defenses. Doc. No. 338-3 at 4, 9, 16, 22, 28. Rule 26(a) does not require anything more.[4] Fed. R. Civ. P. 26(a). Thus, Shaklee’s first argument is unavailing. Shaklee’s second argument states that the protocol and any reference thereto should be excluded because it was responsive to the subpoena duces tecum served on Dr. Sachs, and she “clearly” possessed the protocol but never produced it. Doc. No. 338 at 4-5. Superior argues that Dr. Sachs “did not and does not have the [protocol] in her possession, custody, or control.” Doc. No. 341 at 7. Although the parties offer completely different allegations about whether the protocol was within Dr. Sachs’ care, custody, or control, neither side offers any evidence to support their bald assertions. Shaklee has the burden to show entitlement to the sanctions it requests and has failed to carry that burden. Thus, because Shaklee has failed to show that Dr. Sachs had the protocol within her care, custody, or control, Shaklee’s second argument is unavailing.[5] *4 Shaklee’s third argument states that the protocol and any reference thereto should be excluded because Superior produced it without any accompanying metadata. Doc. No. 338 at 7-9. The undersigned, however, only ordered that a copy of the protocol be produced. Doc. No. 331 at 53. The protocol was not ordered to be produced in any specific format. Id.Given the foregoing, along with Superior’s representation that it only has a tangible copy of the protocol, Shaklee’s third argument is unavailing. For the foregoing reasons, Shaklee has not met its burden to show sanctions are warranted, and thus, the Motion to Exclude will be denied.[6] IV. CONCLUSION Accordingly, it is ORDERED that the Motion to Exclude (Doc. No. 338) is DENIED. DONE and ORDERED in Orlando, Florida on July 24, 2018. Footnotes [1] Dr. Sachs is a non-party physician who approved the protocol and was represented by the same counsel as Superior at the time she responded to the subpoena. Doc. No. 338 at 4-5; Doc. No. 341 at 7. According to Shaklee, Dr. Sachs produced only one document in response to the subpoena and stated that she had no other documents within her care, custody, or control. Doc. No. 338 at 4-5 (citing Doc. No. 338-5). [2] Superior states that it was never served with any discovery regarding Count III of the Counterclaim. Doc. No. 341 at 5-6. Shaklee did not provide any response to that argument. Doc. No. 349. [3] Rule 37(c) acts as an “automatic sanction” barring the party from using that information or witness unless the failure to disclose was substantially justified or harmless. See Nat’l. Union Fire Ins. Co. of Pittsburgh v. Tyco Integrated Sec., No. 13-CIV-80371-BLOOM/Valle, 2015 WL 11251736, at *2 (S.D. Fla. July 29, 2015). [4] Superior’s disclosures are patently general and generic. Doc. No. 338-3 at 4, 9, 16, 22, 28. They only describe the types of records within Superior’s care, custody, and control and their location. Id. No particular documents are described. Id. Given that the complaint Shaklee raises now was open, obvious, and could have easily been remedied if presented earlier, Shaklee should not be heard to complain at this late stage. Shaklee could have easily remedied the issue it raises by either moving to compel more detailed disclosures and, if that were unsuccessful, by propounding a request for production of all documents described in Superior’s Rule 26 disclosures. See Solis-Alarcon v. United States, 514 F. Supp. 2d 185, 190 (D.P.R. 2007) (declining to impose sanctions in the form of exclusion of documents that were disclosed under Rule 26 but not produced because the plaintiff failed to serve written discovery encompassing such documents). [5] While it is certainly reasonable to believe that Dr. Sachs may have custody of any protocol she issued, that alone is not a sufficient basis for the imposition of sanctions. At the Dauberthearing regarding Dr. Herold, the undersigned found it difficult to believe that there had not been a discovery request made for the protocol which Superior admitted to having. That belief was largely based on the fact that the parties had seemingly exchanged comprehensive document requests, which resulted in numerous discovery disputes brought before the Court. Thus, at the Daubert hearing, the undersigned sua sponte ordered Plaintiff to produce the protocol. On the current record, it appears that despite serving a subpoena duces tecum on Dr. Sachs, Shaklee never served a document request on Superior that encompassed the protocol or, at least, Shaklee never argues that it did so. The only discovery request Shaklee relies on is the subpoena served on Dr. Sachs. As to that subpoena, Shaklee offers nothing more than rank speculation about whether Dr. Sachs actually possessed the protocol, and Shaklee never deposed Dr. Sachs regarding that issue. Therefore, the record before the Court simply does not support Shaklee’s request for sanctions. [6] The Court notes that Superior has not listed the protocol as a trial exhibit, and thus, Superior cannot offer it as evidence at trial without leave of court. Doc. No. 338 at 3-4; Doc. No. 344 at 2. The Court’s Case Management and Scheduling Order states that “[u]nlisted exhibits will not be received into evidence at trial, except by order of the Court in the furtherance of justice.” Doc. No. 30 at 8.