*1 This matter is before the Court on Plaintiffs’ objections (Doc. 290) to United States Magistrate Judge Daniel C. Irick's order (Doc. 285) denying Plaintiff's motion for sanctions for non-disclosure and spoliation of documents (Doc. 272). The Court has considered Defendants’ response to the objections (Doc. 299) as well the briefing and exhibits submitted regarding the original motion (Docs. 272, 275, 279).

I. Background

Plaintiffs (“Westgate”), a group of approximately 30 related entities that develop or own timeshares, sued Defendants (“TET”) in July 2018 for allegedly inducing timeshare owners to stop making their payments to Westgate. This case is not the first of these cases against TET; nine cases in total have been filed in this Division and seven by the same law firm. That collection of cases includes Orange Lake v. Reed Hein & Associates, LLC, No. 17-cv-1542 (“Orange Lake”). The parties noticed this trend and stipulated to the use of depositions and documents in the Orange Lake matter here. See Doc. 111-4.

At a status conference on February 18, 2021—two and a half years after this case commenced—Westgate asserted that “a very serious discovery matter ha[d] arisen within the last few weeks. Doc. 268 at 5. That matter formed the basis of Westgate's Motion. Judge Irick denied that Motion on March 25, 2021. See Doc. 285 (the “Order”). He held that TET had not violated its initial disclosure obligations under Rule 26(a)(1)(A)(ii) or its duty to supplement under Rule 26(e)(1), and that Westgate failed to establish spoliation. Id. at 5, 9. Westgate now objects to that Order.

II. Legal Standard

Any objection to a magistrate judge's ruling on a non-dispositive motion must be set aside if it is “clearly erroneous or ... contrary to law.” Fed. R. Civ. P. 72(a). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). An order is contrary to law when it fails to apply or misapplies the relevant law. Quality of Life, Corp. v. City of Margate, No. 17-cv-61894, 2018 WL 8787784, at *2 (S.D. Fla. May 31, 2018). These standards are extremely deferential. Id.

III. Analysis

Westgate lodges three objections to the Order. The Court addresses each in turn.

Westgate objects to the Order's holding that TET did not violate its duty to supplement its discovery responses.[1] Rule 26 requires supplementation of “a disclosure under Rule 26(a)” or a “request for production:”

Fed. R. Civ. P. 26(e)(1)(A).

*2 The second prong was met through deposition testimony.[2] Westgate bears the burden of demonstrating that the additional information had not otherwise been made known to it during discovery. See Johnson v. R.J. Reynolds Tobacco Co., No. 12–cv–618, 2014 WL 1930392, at *2 (M.D. Fla. May 14, 2014). From the record before the Court, Westgate learned about TET's practice of recording calls twice—once in the Orange Lake deposition of Scott Loughran, and again in the deposition here of Chastity Porter. Indeed, the Orange Lake deposition took place on August 1, 2018 (see Doc. 275-4), just one month into this lawsuit and before Westgate issued its first set of requests for production (Doc. 272-9). Instead of being a “passing reference” as Westgate claims, these questions made clear twice that TET recorded calls. That disclosure was sufficient to make this information known to Westgate, especially considering TET's repeated concession that it does not plan to use these recordings in its case. The Court agrees with the Order and overrules Westgate's objection on this point.[3]

Westgate argues that the Order's conclusion that no spoliation occurred is clearly erroneous because it “unjustifiably credits TET's assertion that the call recordings were ‘fully recovered.’ ” Doc. 290 at 21. In making this argument, Westgate argues that Rule 34(b)(2)(E)(ii) required TET to “produce this ESI ‘in a reasonably usable form,’ ” and that the produced recordings are not in a usable form because they lack metadata. Id.

But that is not what Rule 34 requires. Rule 34(b)(E) governs the procedure used when producing ESI. That section provides that where “a request does not specify a form for producing electronically stored information, a party must produce it in” either “a form ...in which it is ordinarily maintained or in a reasonably usable form.” Fed. R. Civ. P. 34(b)(E)(ii) (emphasis added).[4] And here, there is no evidence in the record that all of the call files should have contained metadata. The only evidence on this point is the Declaration of Andreas Mueller, submitted by TET. He attests that only 1,038 files with a “.wma” extension could contain “embedded content metadata.” See Doc. 275-10 ¶¶ 11, 14. Westgate has not provided any evidence to counter this claim. Therefore, the Order's conclusion on spoliation is not clearly erroneous or contrary to law. The objection is overruled.

Finally, Westgate claims that the Order “overlooks” the prejudice caused to Westgate. It points to how Westgate “was forced to litigate this case” and “how it has been forced to prepare for trial with TET's best evidence produced in a mass on the eve of trial.” Doc. 290 at 24. But the data at issue here has been recovered and produced to Westgate. If prejudice falls on Westgate because of this late production, the proper remedy is a continuance of trial to give Westgate the opportunity to assess what it now has. But Westgate does not ask for a continuance.[5] Instead, it asks for sanctions. The Court finds no clear error in the Order's findings on this point.

IV. Conclusion

*3 For these reasons, Plaintiffs’ objections to the Order are OVERRULED. Magistrate Judge Irick's Order (Doc. 285) is CONFIRMED.

DONE and ORDERED in Chambers, Orlando, Florida on April 26, 2021.