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League of Women Voters of Fla., Inc. v. Lee

2021 WL 4963419 (N.D. Fla. 2021)

October 14, 2021

Walker, Mark E., United States District Judge

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Summary

The Court did not discuss ESI, as it was not relevant to the dispute between the parties. The Court instead focused on the plain language of the initial scheduling order, which included “admissions requests” in its definition of discovery materials. The Court found that Plaintiffs had the better argument and ordered them to file an expedited response to Defendants' motion on or before October 22, 2021.

Additional Decisions

LEAGUE OF WOMEN VOTERS OF FLORIDA, INC., et al., Plaintiffs,
v.
LAUREL M. LEE, in her official capacity as Florida Secretary of State, et al., Defendants,
and
NATIONAL REPUBLICAN SENATORIAL COMMITTEE and REPUBLICAN NATIONAL COMMITTEE, Intervenor-Defendants

Case No.: 4:21cv186-MW/MAF | 4:21cv187-MW/MAF, 4:21cv201-MW/MJF, 4:21cv242-MW/MAF

United States District Court, N.D. Florida

Signed October 14, 2021

Counsel

Aria Christine Branch, David Robert Fox, Francesca Ashley Gibson, Lalitha D. Madduri, Christina A. Ford, Marc E. Elias, Elias Law Group, Washington, DC, David Lee Anstaett, Perkins Coie LLP, Madison, WI, Danielle E. Sivalingam, Perkins Coie LLP, Los Angeles, CA, Thomas Alan Zehnder, Frederick Stanton Wermuth, King Blackwell Zehnder & Wermuth PA, Orlando, FL, for Plaintiffs League of Women Voters of Florida Inc., League of Women Voters of Florida Education Fund Inc., Black Voters Matter Fund Inc., Florida Alliance for Retired Americans Inc., Cecile Scoon, Robert Brigham, Alan Madison.
David Lee Anstaett, Perkins Coie LLP, Madison, WI, David Robert Fox, Francesca Ashley Gibson, Elias Law Group, Washington, DC, Danielle E. Sivalingam, Perkins Coie LLP, Los Angeles, CA, Frederick Stanton Wermuth, King Blackwell Zehnder etc. PA, Orlando, FL, for Plaintiff Susan Rogers.
Dallin B. Holt, John J. Cycon, Kenneth Clark Daines, Phillip Michael Gordon, Holtzman Vogel Baran et al., Haymarket, VA, Ashley E. Davis, Colleen E. O'Brien, Bradley Robert McVay, Florida Department of State Office of General Counsel, Gary Vergil Perko, Mohammad Omar Jazil, Holtzman Vogel Baran et al., Tallahassee, FL, for Defendant Laurel M. Lee.
Rachel Rose Siegel, Bilal Ahmed Faruqui, Karen Ann Brodeen, William Edward Chorba, William Henry Stafford, III, Florida Office of the Attorney General, Tallahassee, FL, for Defendant Ashley Moody.
Diana Masters Johnson, Robert Charles Swain, Alachua County Attorneys Office, Gainesville, FL, for Defendant Kim A. Barton.
Edward Paul Cuffe, Susan Smith Erdelyi, Marks Gray PA, Jacksonville, FL, for Defendants Chris Milton, Mark Andersen, Amanda Seyfang, Sharon Chason, Tomi S. Brown, Starlet Cannon, Heather Riley, Shirley Knight, Laura Hutto, Carol Dunaway, Travis Hart, Grant Conyers, Janet H. Adkins, Charles Overturf, Tappie A. Villane, Vicky Oakes, William Keen, Jennifer M. Kinsey, Dana Southerland, Deborah Osborne, Joseph Morgan, Bobby Beasley, Carol F. Rudd.
Frank Michael Mari, John M. Janousek, Roper PA, Orlando, FL, for Defendants Lori Scott, Mark F. Negley, Kaiti Lenhart, Connie Sanchez, John Hanlon, Penny Ogg, Marty Bishop, Heath Driggers.
Benjamin Salzillo, Joseph K. Jarone, Nathaniel Adam Klitsberg, Broward County Attorneys Office, Fort Lauderdale, FL, for Defendant Joe Scott.
Andy V. Bardos, GrayRobinson PA, Tallahassee, FL, for Defendants Paul A. Stamoulis, Jennifer J. Edwards, Leslie Swan, Alan Hays, Tommy Doyle, Michael Bennett, Wesley Wilcox, Joyce Griffin, Brian Corley, Christopher Anderson.
Dale A. Scott, Roper PA, Orlando, FL, for Defendant Maureen Baird.
John T. Lavia, III, Gardner Bist Bowden et al., Ronald A. Labasky, Brewton Plante PA, Tallahassee, FL, for Defendants Chris H. Chambless, Vicki Davis, Mary Jane Arrington, Lori Edwards, Gertrude Walker.
Craig Dennis Feiser, Mary Margaret Giannini, City of Jacksonville Office of General Counsel, Jacksonville, FL, for Defendant Mike Hogan.
Kia M. Johnson, Escambia County Attorneys Office, Pensacola, FL, for Defendant David H. Stafford.
Geraldo Francis Olivo, III, Robert C. Shearman, Henderson Franklin Starnes etc., Fort Myers, FL, for Defendants Aletris Farnam, Diane Smith, Brenda Hoots, Therisa Meadows, Tammy Jones, Melissa Arnold.
Jon A. Jouben, Hernando County, Brookesville, FL, Kyle J. Benda, Hernando County Attorneys Office, Brooksville, FL, for Defendant Shirley Anderson.
Stephen Mark Todd, Office of the County Attorney, Tampa, FL, for Defendant Craig Latimer.
Mark Herron, Patrick Scott O'Bryant, Summer Denay Brown, Messer Caparello & Self PA, Tallahassee, FL, for Defendant Mark Earley.
Michael Beny Valdes, Oren Rosenthal, Miami-Dade County Attorneys Office, Miami, FL, for Defendant Christina White.
Elizabeth Desloge Ellis, Gregory Thomas Stewart, Kirsten H. Mood, Nabors Giblin & Nickerson PA, Tallahassee, FL, for Defendant Paul A. Lux.
Nicholas Ari Shannin, Shannin Law Firm PA, Orlando, FL, for Defendant Bill Cowles.
Ashley Dolan Houlihan, Palm Beach County Supervisor of Elections, West Palm Beach, FL, for Defendant Wendy Link.
Kelly Lynn Vicari, Pinellas County Attorneys Office, Clearwater, FL, for Defendant Julie Marcus.
Morgan Ray Bentley, Bentley & Bruning PA, Asarasota, FL, for Defendant Ron Turner.
London Lee Ott, William Kevin Bledsoe, Volusia County Attorney, DeLand, FL, for Defendant Lisa Lewis.
Mohammad Omar Jazil, Holtzman Vogel Baran et al., Tallahassee, FL, for Defendant Governor of Florida.
Benjamin J. Gibson, Amber Stoner Nunnally, Daniel Elden Nordby, Shutts & Bowen LLP, Tallahassee, FL, Cameron Thomas Norris, Steven Christopher Begakis, Daniel Joseph Shapiro, Consovoy McCarthy PLLC, Arlington, VA, Tyler R. Green, Consovoy McCarthy PLLC, Salt Lake City, UT, Frank A. Zacherl, Shutts & Bowen LLP, Miami, FL, for Intervenor-Defendants.

Walker, Mark E., United States District Judge

ORDER DENYING IN PART MOTION FOR PROTECTIVE ORDER AND REQUIRING EXPEDITED RESPONSE

*1 To advise is “to give (someone) a recommendation about what should be done: to give advice to.” Advise, Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/advise (last visited Oct. 12, 2021). It can also mean to caution, warn, or recommend. Id. To direct, on the other hand, is to “request or enjoin ... with authority.” Direct, Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/direct (last visited Oct. 12, 2021).

This Court's initial scheduling order “directed” the parties “to conduct discovery so that the due date of any discovery requested shall not be later than” the close of discovery. ECF No. 22 at 1. It also “advised” the parties “to make discovery requests no later than 75 days before the end of the discovery period.” Id. at 2.

Defendant Lee, joined by Defendant Moody and the Intervenor-Defendants,[1] moves for a protective order, arguing in part that Plaintiffs' requests for admission in Case Nos: 4:21cv186 and 4:21cv201 are untimely. ECF No. 276. Sidestepping the scheduling order's plain language, they argue that this Court's advice to the parties to make discovery requests no later than 75 days before the close of discovery is really a directive. As explained below, it is not. Accordingly, Defendants' motion is DENIED in part.

This dispute began on September 22, 2021, when Plaintiffs in both cases served requests for admission on Defendants. Defendants argue that these requests are untimely. Their argument goes like this. First, the scheduling and mediation order sets October 22, 2021 as the discovery deadline. ECF No. 276 at 3. Plus, for matters the scheduling and mediation order does not address, the initial scheduling order governs. Id. at 4. In turn, the initial scheduling order “required that all parties ‘make discovery requests no later than 75 days before the end of the discovery period.’ ” Id. (emphasis added) (quoting ECF No. 22 at 2). Thus, because October 22, 2021 is the discovery deadline, “all discovery requests should have been served by August 9, 2021, at the latest.” Id. By this logic, “Plaintiffs have ... missed the Court's deadline by over six weeks.” Id.

The Plaintiffs in Case No: 4:21cv186 respond that the “no later than 75 days before” language is cautionary, but not mandatory. And they emphasize that the initial scheduling order provides that the parties must conduct discovery “so that the due date of any discovery requested shall not be later than the last day of the discovery period.” ECF No. 279 at 2 (quotations omitted). Accordingly, any discovery requests must be served so that they are due no later than October 22, 2021. Id. Requests for admission are due 30 days after service. Fed. R. Civ. P. 36(a)(4). And Plaintiffs served their requests on September 22, 2021, making the responses due on October 22, 2021. Thus, according to Plaintiffs, their requests comply with this Court's initial scheduling order.[2]

*2 Defendants' argument is creative, but it relies on a selective reading of this Court's orders. In full, the portion of the initial scheduling order Defendants cite warns the parties to serve their discovery requests well in advance of the deadline because, ordinarily, this Court will not entertain motions to compel brought less than 30 days before the close of discovery:

(c) This Court's intent is to encourage early discovery and discourage discovery at the eleventh hour unless it is truly necessary. The parties are advised to make discovery requests no later than 75 days before the end of the discovery period. Unless otherwise ordered by the Court, motions to compel discovery are due no later than 30 days before the close of discovery. The Court will ordinarily entertain a motion to compel brought during the last 30 days of discovery only on a showing of reasonable diligence during the discovery period and the discovery dispute in question arose during the last 30 days of discovery.

ECF No. 22 at 2.

As explained above, to advise is to warn or caution. And that is all this provision does. Contrary to Defendants' selective reading, it does not require anything. Instead, a different provision of the initial scheduling order sets the deadline for discovery requests. That provision provides that the parties must make their requests so that the responses will be due no later than the last day of discovery:

(a)The parties must begin discovery immediately. The parties are further directed to conduct discovery so that the due date of any discovery requested shall not be later than September 15, 2021. The conduct of any discovery which would require a later due date shall be permitted only on order of the Court. An extension of time will ordinarily be granted only for good cause and upon showing of diligence during the initial discovery period. See N.D. Fla. Loc. R. 6.1.

...

Id. at 1–2. In short, Plaintiffs have the better argument. The initial scheduling order, combined with the scheduling and mediation order, requires the parties to serve all discovery requests so that the response is due on or before the close of discovery, October 22, 2021. Thus, although Plaintiffs waited to the last possible moment, their requests for admission were timely. Defendants' motion for a protective order is therefore DENIED in part as to Case No: 4:21cv186.

Defendants, however, also argue that the requests for admission in Case No: 4:21cv201 “are unduly burdensome, and are not proportional to the needs of the case.” ECF 276 at 2. Plaintiffs in Case No: 4:21cv201 are ordered to file an expedited response to Defendants' motion on or before October 22, 2021.

SO ORDERED on October 14, 2021.

Footnotes

[1]

The Intervenor Defendants join only in the argument that Plaintiffs' requests were untimely, and Defendant Moody joins only as to Case No: 4:21cv186. This Order refers to them collectively as “Defendants.”

[2]

In email correspondence that Defendant Lee attaches to her motion, Plaintiffs maintained that requests for admissions “are not discovery requests at all.” ECF No. 276-1. Plaintiffs, however, do not make that argument in their response. Nor could they, this Court's initial scheduling order includes “admissions requests” in its definition of discovery materials. ECF No. 22 at 11.