Case No: 6:16-cv-1603-Orl-37KRS
United States District Court, M.D. Florida
Filed May 18, 2018
*1 This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: MOTION FOR DEFAULT (Doc. No. 297)
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
Although captioned as a motion for entry of a default, in the concluding paragraph of the motion Plaintiffs ask that the Court enter a default judgment against Defendant, Hartford Fire Insurance Company (“Hartford”), pursuant to Federal Rule of Civil Procedure 37(b)(2)(A) for its violation of discovery orders. Doc. No. 297, at 15. Hartford filed an opposition to the motion. Doc. No. 303. Both sides also filed a number of exhibits in support of their papers.
In the motion, counsel for Plaintiffs recites many of the Court’s findings that Hartford did not act in good faith during discovery in this case. See, e.g.,
Doc. No. 297, at 13. I am familiar with the discovery issues in this case. See, e.g.,
Doc. Nos. 243, 251, 267, 270, 271, 273, 288, 294. Accordingly, I will not restate those disputes. I will, however, address whether Hartford complied with the Court’s discovery orders by the close of discovery, which was May 4, 2018.
Counsel for Hartford represents that Hartford produced documents responsive to the Court’s orders on March 14, 16 and 19 and April 2, 3, 13, 18 and 27. Doc. No. 303, at 2-3. It produced documents in the format counsel for Plaintiffs requested and also in a “Relativity” database set up by an outside vendor that enabled counsel for Plaintiffs to sort and filter ESI by date, custodian and file type and to run text-based searches. Hartford did not charge Plaintiffs for the creation or use of this database. Id.
On April 3, 13, 18, and 27, Hartford produced spreadsheets containing Bates numbered indices of the documents produced. Doc. No. 303, at 4-5.
Hartford served its first privilege log on October 20, 2017 and its second privilege log on January 10, 2018. Doc. No. 297, at 2-3. I found that these privilege logs (Doc. Nos. 231-13, 236-2) did not comply with my Standing Order on Privilege Logs, www.flmd.uscourts.gov – About the Judges – Magistrate Judges – Judge Spaulding – Standing Orders (“Standing Order”), for a number of reasons. These included that Hartford failed to exclude from the logs documents and information for which privilege was waived in Monserrate
. Doc. No. 243, at 8-9. I also noted that the evidence in support of the logs, which was a Declaration of Maria Fazzino (Doc. No. 236-1), did not satisfy the requirement of the Standing Order that the evidence be correlated with the privilege logs. Doc. No. 243, at 10 n. 7.
I gave Hartford “one (and only one) more opportunity to provide in the form required by my Standing Order (with additional information specified [in the March 5 Order] ) and supporting evidence organized as required by the Standing Order.” Id.
*2 On April 2, 2018, Hartford served a supplemental response supported by a Third Amended Privilege Log. Doc. No. 277, 277-1. It did not provide any evidence in support of the Third Amended Privilege Log. Instead, it included in the supplemental response prepared by counsel a discussion on a document-by-document basis of documents in the log with citations to Ms. Fazzino’s declaration and legal argument. E.g.,
Doc. No. 277, at 3-4. Plaintiffs did not move to compel production of documents listed in the Third Amended Privilege Log before the close of discovery.
On April 14, 2018, Hartford served a fourth privilege log and on April 18, 2018 it served a corrected version of the fourth privilege log. Doc. No. 303, at 9-10. Plaintiffs did not move to compel production of documents listed in fourth privilege logs before the close of discovery.
On March 16, 2018, Plaintiffs served their third request for production of documents. Doc. No. 297-3. Hartford objected to the single request for production to the extent it sought documents that did not relate to the Plaintiffs in this case as irrelevant, unreasonably cumulative and duplicative, not proportional to the needs of the case, unduly burdensome and seeking confidential information about its current and former employees. Id.
at 2-3. Plaintiffs did not file a motion to compel production of documents responsive to this request before the close of discovery.
On April 13 and 18, 2018, counsel for Hartford filed notices of compliance in which its counsel represented that Hartford had complied with the Court’s orders (except for one forthcoming supplementation of discovery). Doc. Nos. 285, 293. On April 27, 2018, counsel for Hartford certified that supplemental discovery had been produced. Doc. No. 298.
Rule 37(b)(2)(A)(vi) states that if a party fails to obey an order to provide or permit discovery, the Court may issue further just orders which may include rendering a default judgment against the disobedient party. To impose such a severe sanction, Plaintiffs must establish that Hartford acted willfully or in bad faith and that no lesser sanctions would ensure compliance with the Court’s orders. Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993); Johnson v. New Destiny Christian Ctr. Church, Inc., No. 6:15-cv-1698-Orl-37GJK, 2018 WL 259244, at * 9 (M.D. Fla. Jan. 2, 2018).
Plaintiffs discuss five categories which they contend illustrate Hartford’s failure to fully comply with the Court’s orders.
In my March 5, 2018 order, I required Hartford to serve an updated index with each additional production of documents “identifying the documents produced by Bates Number and the request to which each document is responsive.” Doc. No. 243, at 12. Plaintiffs contend that Hartford’s indices do not adequately identify the documents produced and, at times, do not identify the discovery request to which the documents are responsive. They also argue that the indices are not text searchable due to misspellings. They filed examples of these indices in support of the argument. Doc. Nos. 297-4 through 297-6.
With respect to the identification of documents, I did not require that Hartford identify the documents produced except by Bates numbers. I also did not require that the indices be text-searchable. Therefore, Hartford did not violate a Court order by providing the electronic title of the document in the indices or by a misspelling in an entry.
*3 In some instances in the Bates indices, Hartford stated that documents were responsive to my March 5 and March 19 orders rather than identifying the discovery requests to which each document was responsive. See, e.g.,
Doc. No. 297-5. Hartford explains that due to the breadth of production required by those orders, it performed a broad search to identify documents responsive to the orders. Doc. No. 303, at 6. Nevertheless, reference to my discovery orders rather than to specific discovery requests to which each document was responsive was a violation of my March 5 Order.
I required Hartford to produce privilege logs in the form required by my Standing Order. Doc. No. 224, at 2. Plaintiffs contend that Hartford violated the Standing Order because it did not (1) identify the role of each individual; (2) provide the dates required by the Standing Order; (3) specifically state the purpose for which the document was prepared or the information communicated; (4) adequately describe the document or information withheld; and, (5) state the discovery response to which each withheld document or information was responsive. Counsel for Plaintiffs filed excerpts of privilege logs in support of this argument. Doc. Nos. 297-7, 297-8.
Plaintiffs are correct that many of the entries in the privilege log excerpts do not comply with my Standing Order. Sometimes no individual is identified as the author or recipient of the document or information. See, e.g.,
Doc. No. 297-8. As to the title or capacity of the individuals, Hartford concedes that it did not always provide that information. Doc. No. 303, at 12 (stating that counsel for Plaintiffs could identify whether a listed individual was a lawyer “for virtually all
of the log entries”). The privilege log excerpts also do not appear to provide both the date the document was prepared or the information was provided “and, if different, the date(s) on which it was sent to or shared with persons other than its provider(s) or author(s)[.]” Standing Order, at 1. Some of the descriptions of the purpose for which a document was prepared or information was communicated are vague. For example, “Legal advice regarding Additional Information,” and “Legal advice regarding Current Deck.” Doc. No. 297-8, at 8, 12. Additionally, Hartford admits that it did not always state the discovery request to which a withheld document was responsive. Doc. No. 303, at 13. Therefore, Hartford violated the Standing Order in its preparation of these privilege logs excerpts.
Plaintiffs also argue that Hartford’s supplemental response in support of the April 2, 2018 privilege log (Doc. No. 277) violated my March 5, 2018 order because Hartford relied on a declaration of Maria Fazzino that I found was insufficient to support the first and second privilege logs. Hartford responds that it excerpted portions of Ms. Fazzino’s declaration in its supplemental response in order to satisfy the correlation requirement I found lacking. This procedure did not strictly comply with the Standing Order. The Standing Order requires filing of “an appendix containing ‘affidavits, deposition testimony, other sworn statements or other evidence’ upon which the party relies to support each element of each asserted privilege or protection in dispute.” Standing Order, at 2. It further requires that the appendix “be organized so that the evidence submitted in support of the privileges or protections asserted is specifically correlated with the information or document to which the evidence applies.” Id.
The supplemental response in which counsel for Hartford interspersed citations to Ms. Fazzino’s declaration with legal arguments made it difficult to discern what the evidence actually established. Therefore, Hartford’s supplemental response also violated the Standing Order requiring submission of an appendix with evidence correlated to the withheld documents.
*4 If counsel for Plaintiffs had moved to compel production of documents and information listed in the third and fourth privilege logs, I may have concluded that the privilege logs and evidence were insufficient to support the privileges and protections claimed. Cf.
Doc. No. 243, at 7 (observing that it was not clear that Ms. Fazzino had personal knowledge of the information in her declaration). However, because Plaintiffs did not file a motion to compel production of documents and information listed on the third and fourth privilege logs, the record is insufficient to determine whether Hartford improperly withheld documents as privileged or protected that should have been produced under the terms of my discovery orders.
Finally, Plaintiffs assert that Hartford listed documents in privilege logs that should have been produced in Monserrate
, citing a privilege log excerpt (Doc. No. 297-2). Hartford responds that documents listed in this excerpt were not responsive to discovery requests in Monserrate
Doc. No. 303, at 10-11. Because Plaintiffs did not move to compel production of these documents, the record is insufficient for me to conclude that documents listed in the privilege log excerpt relied on by Plaintiffs were subject to the attorney-client privilege waiver in Monserrate
and should have been produced pursuant to my discovery orders.
Plaintiffs contend that Hartford improperly asserted objections to its third request for production of documents that the Court found it had waived. The waiver to which Plaintiffs refer occurred when Hartford did not assert specific objections to earlier discovery requests. Nothing in the Court’s earlier rulings precluded Hartford from asserting specific objections to subsequent discovery requests. As to the dispute about whether a confidentiality objection was well taken, this issue should have been addressed in a motion to compel documents responsive to the third request for production of documents. Plaintiffs did not file such a motion before the close of discovery. Therefore, the record is insufficient to conclude that Hartford failed to produce documents responsive to the third request for production of documents that should have been produced under the terms of my discovery orders.
Counsel for Plaintiffs also contend that because of the belated production of discovery, they had “less than three (3) weeks to review approximately one million documents (200 bankers boxes), that should have been produced in the fall of 2017.” Doc. No. 297, at 10. Counsel for Plaintiffs do not acknowledge, however, that they did not file their first motion to compel in this case until January 2018. Doc. No. 215. If counsel for Plaintiffs wished to receive discovery earlier in the litigation, a motion to compel should have been filed promptly after initial good faith attempts to resolve the dispute were not successful. See
Doc. No. 218. Additionally, I note that the breadth of Plaintiffs’ discovery requests ultimately led to the production of the voluminous information about which they now complain. Accordingly, this objection does not establish that Hartford violated an order of the Court in the timing of its discovery production.
Counsel for Plaintiffs assert that counsel for Hartford made misrepresentations to the Court in their notices of compliance with discovery orders. Specifically, they contend that counsel for Hartford (1) inaccurately argued that the description of documents in its Bates indices were reasonable and not amorphous; (2) incorrectly stated that Hartford was producing documents “today” when supplemental documents were not produced until later; and, (3) made a material misrepresentation when they certified that Hartford produced “the required
privilege logs.” Doc. No. 297, at 8-9 (original emphasis). While the Court never condones material misrepresentations by counsel, the examples relied on by Plaintiffs do not rise to that level. Indeed, Plaintiffs’ arguments in this category continue the niggling that has exacerbated the discovery disputes in this case.
*5 As discussed above, Hartford violated orders of the Court in several respects. The remaining question is what sanction to impose. Rule 37(b)(2)(A) gives the Court discretion to impose any just order. After review of the arguments and supporting documents presented by Plaintiffs and Hartford’s response, I conclude that Hartford’s violation of the discovery orders does not warrant imposition of the severe sanction of default or default judgment. While Hartford’s lack of cooperation with the discovery process was problematic, it appears that Hartford attempted to comply with Court orders after its objections to those orders were overruled. Although Hartford failed to strictly comply with those orders, Plaintiffs have not established that Hartford violated the orders willfully and in bad faith.
Rule 37(b)(2)(C), however, requires the Court to “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.” Counsel for Plaintiffs did not move for imposition of expenses, and Hartford should have an opportunity to respond to such a request. Therefore, it is ORDERED that counsel for Plaintiffs may file a motion for imposition of reasonable expenses, including attorney’s fees, incurred in filing the Motion for Default on or before July 16, 2018, if the parties are unable to resolve the issue in the required good faith conference. A contested motion must be supported by evidence of the reasonable hourly rates of the professionals for whose work fees are sought and contemporaneous time sheets showing the work performed and the hours expended on each task.
DONE and ORDERED in Orlando, Florida on May 18, 2018.
For example, Ms. Fazzino’s declaration contained a bold heading addressing 13 entries in the privilege log followed by three paragraphs of facts that did not specifically address each of the documents identified in those entries. Doc. No. 236-1, at 3.
Plaintiffs cite only one entry in which FLSA is spelled “FSLA.” Doc. No. 297-9. Counsel for Hartford states that this is the spelling used in the document.
Hartford also argued that work-product protection was not waived in Monserrate
. Doc. No. 303, at 11 n. 15.
End of Document.