Cont'l 332 Fund, LLC v. Albertelli
Cont'l 332 Fund, LLC v. Albertelli
2019 WL 9089586 (M.D. Fla. 2019)
November 20, 2019
McCoy, Mac. R., United States Magistrate Judge
Summary
The Court denied the motion to compel production of documents from certain defendants and declined to award sanctions. The Court also ordered defendants to complete their reasonable investigation regarding the server and backup and, if ESI is accessible, to complete a supplemental document production. The Court also ordered defendants to provide outstanding discovery responses and document productions no later than December 2, 2019.
Additional Decisions
CONTINENTAL 332 FUND, LLC, CONTINENTAL 298 FUND LLC, CONTINENTAL 306 FUND LLC, CONTINENTAL 326 FUND LLC, CONTINENTAL 347 FUND LLC, CONTINENTAL 355 FUND LLC, CONTINENTAL 342 FUND LLC, CONTINENTAL 245 FUND LLC and KMM CONSTRUCTION OF FLORIDA, LLC, Plaintiffs,
v.
DAVID ALBERTELLI, ALBERTELLI CONSTRUCTION INC., WESTCORE CONSTRUCTION, LLC, NATIONAL FRAMING, LLC, MFDC, LLC, TEAM CCR, LLC, BROOK KOZLOWSKI, JOHN SALAT, KEVIN BURKE, KERRY HELTZEL, AMY BUTLER, US CONSTRUCTION TRUST, FOUNDATION MANAGEMENT, LLC, KMM CONSTRUCTION, LLC, GEORGE ALBERTELLI, GREGORY HILZ, GREAT AMERICAN INSURANCE COMPANY, ANGELO EQUIZABAL, JAMES ALBERTELLI and ALBERTELLI LAW, Defendants
v.
DAVID ALBERTELLI, ALBERTELLI CONSTRUCTION INC., WESTCORE CONSTRUCTION, LLC, NATIONAL FRAMING, LLC, MFDC, LLC, TEAM CCR, LLC, BROOK KOZLOWSKI, JOHN SALAT, KEVIN BURKE, KERRY HELTZEL, AMY BUTLER, US CONSTRUCTION TRUST, FOUNDATION MANAGEMENT, LLC, KMM CONSTRUCTION, LLC, GEORGE ALBERTELLI, GREGORY HILZ, GREAT AMERICAN INSURANCE COMPANY, ANGELO EQUIZABAL, JAMES ALBERTELLI and ALBERTELLI LAW, Defendants
Case No. 2:17-cv-41-FtM-38MRM
United States District Court, M.D. Florida
Filed November 20, 2019
Counsel
Alvin D. Lodish, Duane Morris, LLP*, Miami, FL, Christopher T. Grohman, Taft, Stettinius, & Hollister LLP, Chicago, IL, Jeffrey L. Hamera, Pro Hac Vice, Keith M. St. Aubin, Pro Hac Vice, George D. Niespolo, Pro Hac Vice, Larry Selander, Pro Hac Vice, Michael J. Shuman, Benjamin A. Johnston, Duane Morris LLP, Chicago, IL, for Plaintiffs.Brooke E. Beebe, Cole, Scott & Kissane, PA, Bonita Springs, FL, Bruce S. Liebman, Kevin Patrick Yombor, Kaufman Dolowitch & Voluck, LLP, Ft Lauderdale, FL, Callie Elizabeth Waers, Jeffrey Michael Partlow, Steven Edward Hermosa, Cole, Scott & Kissane, PA, Abbye Erika Alexander, Kaufman Dolowich & Voluck LLP, Orlando, FL, John D. Webb, John D. Webb P.A., St. Augustine, FL, Lynn Maynard Gollin, Gordon & Rees Scully Mansukhani, LLC, Miami, FL, Alberta L. Adams, Robert Craig Graham, Mills Paskert Divers, PA, Tampa, FL, James P. Miller, Thomas C. Rickeman, Alan A. Greenberg, Greenberg Gross LLP, Costa Mesa, CA, Miesha Hewitt, Hewitt Law, George Hayward Knott, Knott Ebelini Hart, Fort Myers, Fl, for Defendants
McCoy, Mac. R., United States Magistrate Judge
ORDER
*1 Plaintiffs filed a Motion to Compel Production of Documents From Certain Defendants with exhibits on August 23, 2019. (Doc. 424). Plaintiffs separately filed some of the supporting exhibits under seal. (Doc. 433). Defendants George Albertelli and Amy Butler filed a response in opposition on September 27, 2019. (Doc. 486). Defendants David Albertelli, Westcore Construction, LLC (Del.) and Westcore Construction, LLC (Nev) (jointly “Westcore”), National Framing, LLC (“National Framing”), John Salat (“Salat”), Foundation Management, LLC (“FMS”), and KMM Construction, LLC (“KMM”) filed a joint response in opposition on October 18, 2019. (Doc. 503). The matters raised by the motion are now fully briefed and ripe. For the reasons below, the Court DENIES the motion to compel as to each general category of discovery in dispute.
A. Missing Emails and Other Documents (and Recordings) (see Doc. 424 at 4): The Court denies the motion as to Request for Production No. 56[1] and all subcategories of documents falling within the request because the request, as written, is grammatically nonsensical and, even under the most generous grammatical interpretation, it is also patently vague, ambiguous, overbroad, not relevant in large part, and not proportional to the needs of the case. Plaintiffs make no effort in their motion to demonstrate the relevance or the proportionality of the discovery sought by this request and, thus, have failed in their burden as movants. Moreover, Defendants’ stated objections to the document request appear to be well-founded and the Court sustains those objections.
Because the Court denies the motion as to Request for Production No. 56 and sustains Defendants’ objections thereto, any request by Plaintiffs for sanctions in connection with such discovery is deemed moot. Alternatively, even if the Court were to consider Plaintiffs’ demand for sanctions, the Court: (1) finds that Plaintiffs’ allegations of spoliation are not adequately supported – either legally or factually – on the existing record; and (2) declines to award sanctions, including fees and costs, on any other ground.
Notwithstanding the Court’s rulings above, to the extent Defendants David Albertelli and KMM have volunteered to confirm the availability of other repositories of potentially relevant and proportional emails (see Doc. 503 at 6), the Court hereby requires Defendants to reasonably exhaust their efforts and to produce any additional relevant, proportional, and non-privileged documents no later than December 11, 2019. Moreover, to the extent Defendants Salat, David Albertelli, and ACI have agreed to produce additional documents as part of their good-faith efforts to comply with their discovery obligations (see Doc. 503 at 6-8, 10, 17), the Court will require them to complete that supplemental production no later than December 11, 2019, if not already done.
*2 B. Failure to Adhere to ESI Protocol (see Doc. 424 at 6; Doc. 104-1): Plaintiffs argue that Defendants Westcore, National Framing, KMM, and ACI failed to comply fully with the Agreed Production Guidelines for All Discovery and Electronically Stored Information (Doc. 104-1) that the parties previously stipulated to abide by in this litigation. (Doc. 424 at 6-7).
Defendants respond that, inter alia, they lack the financial resources to fund the document production in the manner required pursuant to the agreed-to ESI protocol. (Doc. 503 at 2, 17-18). To the extent Plaintiffs complain that Defendants failed to produce attachments to emails, Westcore responds that Plaintiffs have not identified the specific emails in question and Defendants object to being required to re-review every email previously produced in discovery. (See Doc. 503 at 9). For their part, Defendants George Albertelli and Amy Butler argue separately that they should not be required to produce metadata associated with discovery produced by other Defendants. (Doc. 486 at 6). The also argue that Plaintiffs have not shown why metadata relating to custodian information is relevant to any pending issue in the case. (Doc. 486 at 6 n.1).
While the Court would normally hold parties to their stipulation regarding the method, manner, format, and means of production of electronically stored information, the Court is mindful that the parties’ proposed stipulation was never formally approved by the Court (see Doc. 104-1), unlike the parties’ other stipulations (see Docs. 120-122, 124-126), and most of the Defendants maintain now that they lack the financial resources to produce their discovery in the manner and in the formats Plaintiffs would prefer. With regard to email attachments, the Court agrees with Westcore that Plaintiffs should be required to specify the emails about which they complain and cannot simply demand that Defendants revisit the entirety of their document production.
Because (1) the Court never approved the parties’ stipulation regarding discovery of electronically stored information, (2) Defendants have shown good cause for why the stipulation should not be enforced, (3) Plaintiffs do not otherwise adequately argue that the format of Defendant’s extant document production is inadequate, and (4) Plaintiffs do not attempt to argue that any specific metadata sought from any Defendant is both relevant and proportional to the needs of this case, the Court denies Plaintiffs’ motion to compel insofar as Plaintiffs seek to compel Defendants’ strict compliance with the Agreed Production Guidelines for All Discovery and Electronically Stored Information (Doc. 104-1).
C. Missing/Potentially Destroyed ESI (Including Metadata): Plaintiffs complain that Defendant Westcore disclosed as part of its mandatory initial disclosures under Fed. R. Civ. P. 26(a)(1)(A)(ii) that it had in its possession “ ‘[e]lectronic files for each project [ ] stored on servers and on two USB thumb drives in possession of John D. Webb, Esq.,’ ” but that Westcore only produced two thumb drives and 12 boxes of paper documents and files on a thumb drive, without any metadata or any other information required by the ESI Protocol. (Doc. 424 at 7 (emphasis in original)). Plaintiffs then jump to the conclusion that “it appears Westcore and the other Defendants have failed to preserve ESI ‘that should have been preserved in the anticipation or conduct of litigation’ and therefore be subject to the sanctions provided in Rule 37(e).” (Doc. 424 at 8).
*3 Defendants respond that no documents have been intentionally withheld or destroyed. (Doc. 503 at 1). As it relates to the previously disclosed server, Defendants state:
Westcore and other Defendants’ server and backup were maintained by Cirrus-ts.com in Jacksonville, FL. On October 7, 2019, Jeffrey Nichols Managing Partner and Engineer at Cirrus Technology Services in Jacksonville advised [Defendants’] counsel that he met with David Albertelli in or about February 2019, at which time Mr. Albertelli paid the balance due for Cirrus’ services related to the server and backup. That same month Mr. Albertelli removed the server and backup from Cirrus-ts.com’s premises. Mr. Albertelli no longer had the ability to pay for these servers. The ability to access the data on the server and backup is being investigated.
(Doc. 502 at 11).
Based upon the above representations, the Court hereby orders Defendants to complete their reasonable investigation regarding the server and backup and, if electronically stored information is accessible on the server and backup to complete a supplemental document production of any relevant, proportional, responsive, and non-privileged documents contained on the server and backup no later than December 11, 2019. Moreover, because it appears that the server and backup still exist and the only question remaining is whether the electronically stored information saved thereon is accessible, the Court finds that Plaintiffs have not made a sufficient factual or legal showing that any sanctions are warranted for spoliation or otherwise in connection with this subissue.
D. Answers to Plaintiffs’ May 17, 2019 Written Discovery (Doc. 424 at 8): Plaintiffs also complain that they served additional discovery requests on May 17, 2019 on all Defendants and specific supplemental requests on Westcore, KMM, National Framing, and ACI, to which Defendants have not timely responded despite Plaintiffs’ requests that they do so. (Doc. 424 at 8). In their response, Defendants state that they will serve responses within forty-five (45) days and that any responsive documents identified will be produced if not previously produced by Defendants or any other party. (Doc. 503 at 12). That forty-five (45) day period has not yet expired. (Doc. 503). In light of the representation by Defendants that responses are forthcoming, the Court denies the motion sub judice without prejudice as moot. Nevertheless, the Court hereby orders Defendants to provide the outstanding discovery responses and document productions no later than December 2, 2019.
E. Failure to Execute Authorization/Declaration for Recordings: Plaintiffs argue that they served a subpoena to a third-party, Teltech Systems, Inc., for records related to “any accounts created and/or used by, inter alia, [Defendant] Salat.” (Doc. 424 at 8). Plaintiffs advise that Teltech served an objection to the subpoena on August 9, 2019. (Doc. 424 at 8). Through further negotiation, Plaintiffs’ counsel secured Teltech’s agreement to produce the requested discovery provided Defendant Salat executed a written authorization. (Doc. 424 at 8-9). Plaintiffs complain that Defendant Salat has failed to return an executed authorization despite being requested by Plaintiffs’ counsel to do so. (Doc. 424 at 9). Plaintiffs contend that these circumstances prompted them to file not only the instant motion to compel but also a separate motion to compel Teltech to comply with the third-party subpoena. (Doc. 424 at 9; see also Doc. 426).
*4 However, Plaintiffs subsequently withdrew their separate motion to compel against Teltech, stating that “Plaintiffs and Teltech have resolved their differences, and Teltech has complied with the subpoena issued to it.” (Doc. 426). Based upon Plaintiffs’ unequivocal representation to the Court that Teltech has complied with the subpoena at issue, the Court denies the instant motion to compel against Salat as moot. If Defendants John Salat and David Albertelli maintain (see Doc. 503 at 14) that Teltech’s production is subject to the operative clawback order in this case (see Doc. 124) and that issue has not yet been resolved to Defendants’ satisfaction, they must promptly file an appropriate motion seeking relief. That issue is not, however, properly before the Court at this time in the motion to compel sub judice.
F. Any Remaining Demand for Sanctions: To the extent Plaintiffs’ motion seeks sanctions for any matter not affirmatively addressed by the Court above, the Court declines to award any sanctions against any Defendant at this time because: (1) the Court has not granted Plaintiffs the majority of the relief they sought; (2) it appears that Plaintiffs waited an unreasonable amount of time before filing their motion to compel despite the ripeness of many of the issues raised in the motion; (3) it appears Plaintiffs ultimately sought relief uncomfortably close to the then-operative discovery cutoff in a way that suggests an element of gamesmanship; and (4) Plaintiffs do not appear to have completed a meaningful, good-faith conference under M.D. Fla. R. 3.01(g) on all the issues raised in the motion before seeking court intervention.
CONCLUSION
For the reasons stated above, the Plaintiffs’ Motion to Compel Production of Documents From Certain Defendants (Doc. 424) is DENIED. The parties must, however, comply with the instructions and deadlines ordered above for completing certain outstanding document discovery.
DONE AND ORDERED in Fort Myers, Florida on November 20, 2019.
Footnotes
This is the only document request Plaintiffs quote in their motion. (Doc. 424 at 4). To the extent Plaintiffs seek to compel the production of documents in response to any other document requests, Plaintiffs fail to comply with M.D. Fla. R. 3.04(a) and their motion to compel must be denied on that basis alone.