Delotta v. S. Broward Hosp. Dist.
Delotta v. S. Broward Hosp. Dist.
2021 WL 6134784 (S.D. Fla. 2021)
January 22, 2021

Valle, Alicia O.,  United States Magistrate Judge

Audio
Mobile Device
Manner of Production
Text Messages
Sanctions
Adverse inference
Spoliation
Bad Faith
Attorney Work-Product
Facebook
Failure to Produce
Cost Recovery
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Summary
The court ordered the plaintiff to produce timeline/notes, depose the plaintiff regarding the alleged spoliation of evidence related to text messages and audio recordings, and depose the plaintiff regarding the alleged spoliation of evidence related to her June 1, 2019 Facebook post. The court also awarded the defendant $1,000 in attorney's fees and ordered the defendant to delete any non-responsive text messages from Susan Mayberry. The court declined to impose spoliation sanctions.
DEBBIE DELOTTA, Plaintiff,
v.
SOUTH BROWARD HOSPITAL DISTRICT, d/b/a Memorial Healthcare System, Defendant
CASE NO. 19-CV-62905-SINGHAL/VALLE
United States District Court, S.D. Florida
Signed January 22, 2021

Counsel

Brian Jay Militzok, Militzok Law, P.A., Hollywood, FL, for Plaintiff.
Jenna Rinehart Rassif, Jason Alexander Anon, Jackson Lewis P.C., Miami, FL, for Defendant South Broward Hospital District.
Valle, Alicia O., United States Magistrate Judge

ORDER ON DEFENDANT'S MOTION FOR SANCTIONS

*1 THIS CAUSE is before the Court upon Defendant South Broward Hospital District's (“Defendant”) Motion for Sanctions Against Plaintiff for Failing to Comply with the Court's September 15, 2020 Discovery Order and related relief (ECF No. 29) (the “Motion”). Having reviewed the Motion, Plaintiff's Response (ECF No. 31), the Joint and Amended Status Reports (ECF Nos. 33, 37), and being otherwise fully advised in the premises, it is further hereby ORDERED AND ADJUDGED that Defendant's Motion is GRANTED IN PART AND DENIED IN PART, for the reasons set forth below.
I. BACKGROUND
On November 22, 2019, Plaintiff filed a five-count Complaint alleging that Defendant, her former employer, violated the Americans with Disabilities Act of 1990, the Florida Civil Rights Act of 1992, and the Consolidated Omnibus Budget Reconciliation Act of 1985. See generally (ECF No. 1). Relevant here, on September 1, 2020, Defendant filed a Motion to Compel Amended Answers to its First Set of Interrogatories and Amended Responses to its First Request for Production of Documents (ECF No. 23) (the “First Motion to Compel”). On September 15, 2020, the undersigned denied the First Motion to Compel as moot, based on Plaintiff's representation in her response, (ECF No. 25), that she had produced or was producing the requested discovery. (ECF No. 26) (the “September 15th Order”). The September 15th Order further directed Plaintiff to “amend her responses and provide responsive documents within 7 days from the date of [the] Order.” Id.
In the current Motion, Defendant again seeks to compel production of certain discovery and asks the Court to sanction Plaintiff for failing to comply with the Court's September 15th Order and for other alleged discovery violations, including Plaintiff's failure to produce relevant documents and the purported deletion/destruction of electronic data. See generally (ECF No. 29). As ordered by the Court, the parties met and conferred several times on the issues raised in the Motion and successfully resolved a number of disputes. See, e.g., (ECF No. 37) (the “Amended Joint Status Report” or “AJSR”).[1] Accordingly, this Order addresses the unresolved issues identified in the Amended Joint Status Report.
II. DISCUSSION
1. Plaintiff's Timeline/Notes
Defendant seeks to compel production of a timeline/notes created by Plaintiff regarding the underlying events leading to this litigation. (ECF No. 37 at 13); see also (ECF No. 29 at 5, 7-8). Defendant claims that it first learned of the existence of the timeline/notes during Plaintiff's September 10, 2020 deposition. (ECF No. 29 at 7). During her deposition, Plaintiff testified that she had prepared the timeline/notes for herself beginning in June 2018, almost a year before she engaged counsel in May 2019.[2] (ECF No. 35-1) (“Pls. Dep.” at 9:22-10:10); see also (ECF Nos. 33 at 6-7, 37 at 2). Plaintiff also testified that she did not prepare these documents at her lawyer's request or in anticipation of litigation. Pls. Dep. 10:6-10; 10:25-11:2. Based on this testimony, Defendant requested at the deposition that Plaintiff produce her timeline/notes as responsive to previous discovery requests. Pls. Dep. 10:18-11:7. Contrary to her sworn deposition testimony, Plaintiff now claims that the timeline/notes are work-product protected and that she created them at her counsel's request in anticipation of litigation in May 2019, not June 2018. (ECF No. 37 at 3-4); see also (ECF Nos. 33 at 7-8, 31 at 2-3).
*2 Federal Rule of Civil Procedure 26(b)(3) codifies the work-product doctrine as it pertains to “documents and tangible things” sought in discovery. See Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1421 (11th Cir. 1994); see also Fed. R. Civ. P. 26, Advisory Committee Notes to 1970 Adoption of Rule 26(b)(3). The proponent of a work-product privilege carries the burden of proving that the materials are privileged. See Place St. Michel, Inc. v. Travelers Prop. Cas. Co. of Am., No. 06-21817-CIV, 2007 WL 1059561, *3 (S.D. Fla. Apr. 4, 2007) (“[T]he burden is always on the party withholding discovery to show the documents should be afforded immunity.”); see also United States v. HCA Holdings Inc., No. 12-20638-CIV, 2015 WL 11198933, at *4 (S.D. Fla. July 21, 2015).
Here, Plaintiff has not met that burden. To the contrary, Plaintiff testified that she had not prepared the timeline/notes for counsel or at counsel's direction in anticipation of litigation, but had done so for herself, beginning as early as June 2018, almost one year before she retained counsel. Pls. Dep. 9:22-11:5; see also (ECF Nos. 33 at 6-7, 37 at 2). Moreover, to date, Plaintiff has not filed an errata sheet to correct any portion of her deposition testimony. (ECF No. 37 at 1-2). Lastly, even if the timeline/notes could be considered work-product, Plaintiff has waived that protection by reviewing the timeline/notes during her deposition, failing to object to the questioning, and failing to assert any protection during the deposition. (ECF No. 37 at 2); see Kallas v. Carnival Corp., No. 06-20115-CIV-Moreno, 2008 U.S. Dist. LEXIS 42299, at * 14 (S.D. Fla. May 27, 2008) (recognizing waiver of work product privilege where materials at issue are used in a manner that is inconsistent with the privilege). Accordingly, Defendant's request to compel Plaintiff's timeline/notes is GRANTED. By the date set forth below, Plaintiff must produce the timeline/notes at issue in the Motion and amend her Privilege Log accordingly.
2. Joint Request for Confidentiality Agreement
Although Plaintiff initially opposed Defendant's request for documents regarding Plaintiff's employment and separation from Pediatric Associates, Plaintiff has since agreed to produce these documents and to be deposed on this topic pursuant to a mutually agreeable Confidentiality Agreement. (ECF No. 37 at 4-5); see also (ECF Nos. 29 at 8-9, 33 at 9). The AJRS reflects that the parties have exchanged drafts and are finalizing the proposed Confidentiality Agreement. (ECF No. 37 at 4-5).
Accordingly, Defendant's Motion to compel documents and testimony regarding Pediatric Associates is DENIED AS MOOT. By January 29, 2021, the parties must submit a mutually agreeable Confidentiality Agreement to the Court. Once the Confidentiality Agreement is executed, Plaintiff may be deposed regarding her employment and separation from Pediatric Associates.[3] (ECF Nos. 31 at 3, 37 at 7).
3. Text messages and Audio Recordings
In Request for Production Nos. 1, 2, and 3, Defendant requests, among other things, text messages and audio recordings relevant to Plaintiff's claims. (ECF No. 37 at 5). Although Plaintiff initially agreed to produce responsive documents, she subsequently advised Defendant that she was unable to produce text or recorded audio messages because her cell phone had been corrupted, returned to Best Buy, and thus the texts and voice messages/recordings were no longer in her possession and could not be retrieved. (ECF No. 37 at 5-9). Thus, Plaintiff asserts that she is unable to produce any text messages with Barbara Bruce or Maggie Hansen, or any audio recordings of statements by Memorial employees.[4] Id. at 5. Plaintiff, however, did produce 114 text messages from Susan Mayberry, from 2017 through 2020.[5] Id. at 6.
*3 Based on this unusual set of facts, Defendant argues that Plaintiff has spoliated evidence, and asks the Court to impose sanctions (such as an adverse jury instruction) or to be allowed to depose Plaintiff regarding the details of the alleged spoliation of evidence. At this stage of the proceedings, the latter seems most appropriate. Although Plaintiff cannot produce that which she does not have, fairness requires that Defendant be given an opportunity to test Plaintiff's testimony and learn the facts and circumstances surrounding the alleged corruption of her phone and the missing text messages and audio recordings. Accordingly, Defendant's Motion to depose Plaintiff about these issues is GRANTED. If Defendant can establish spoliation through deposition testimony or through forensic analysis, Defendant may file a sanctions motion in the future, as necessary.[6]
4. Plaintiff's June 1, 2019 Facebook post
In her October 2020 response to Defendant's Motion, Plaintiff states that she produced all Facebook documents. (ECF No. 31 at 2). In December 2020, however, Plaintiff produced additional Facebook documents, again representing that this constituted the “complete” June 1, 2019 Facebook post. (ECF No. 37 at 9). Notwithstanding Plaintiff's representation, Defendant claims to have learned during one of the parties’ court-ordered meet and confer that Plaintiff's Facebook production was not complete because Plaintiff had “unfriended” certain individuals, resulting in the deletion of significant portions and comments from her Facebook. Defendant argues that by “unfriending” certain persons, Plaintiff has destroyed evidence, and asks the Court to impose sanctions (such as an adverse jury instruction) or to be allowed to depose Plaintiff regarding the details of the alleged Facebook spoliation.
Although Plaintiff cannot produce that which she does not have, fairness requires that Defendant be given an opportunity to test Plaintiff's testimony and learn the facts and circumstances surrounding Plaintiff's June 1, 2019 Facebook post. Accordingly, Defendant's Motion to depose Plaintiff about these issues is GRANTED. If Defendant can establish spoliation through deposition testimony or forensic analysis, Defendant may file a sanctions motion in the future, as necessary.
5. Bates Stamped Documents
Defendant requests that Plaintiff amend her responses to its First Request for Production to identify/correlate the bates stamp pages on responsive documents to the corresponding request for production. (ECF Nos. 33 at 4-5, 37 at 11). Pursuant to Rule 34 of the Federal Rules of Civil Procedure, “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Fed. R. Civ. P. 34(b)(2)(E)(i).
Plaintiff opposes Defendant's request as overly burdensome. This argument is unpersuasive for several reasons. First, Plaintiff concedes that “the document production is not at all voluminous.” (ECF Nos. 33 at 5, 37 at 11). In fact, the production is between 255 to 267 pages. (ECF Nos. 31 at 2, 33 at 5, 37 at 11). Second, the purpose of Rule 34 is to “facilitate discovery of relevant information by preventing ‘attempt[s] to hide a needle in a haystack by mingling responsive documents with large numbers of nonresponsive documents.” Armor Screen Corp. v. Storm Catcher, Inc., No. 07-81091-CIV, 2009 WL 291160, at *2 (S.D. Fla. Feb. 5, 2009) (citation omitted). Here, it is Plaintiff's – not Defendant's – obligation to arrange and organize the documents into a reasonably usable format. See, e.g., Select Exp. Corp. v. Richeson, No. 10-80526-CIV, 2010 WL 11561203, at *2 (S.D. Fla. Dec. 22, 2010) (“Rule 34 assumes that the documents will be arranged in some way that is reasonably useable by the opposing party.”). Accordingly, Defendant's request that Plaintiff be compelled to correlate the bates stamped documents to the corresponding requests is GRANTED. By the date set forth below, Plaintiff must identify/correlate the bates stamp pages on responsive documents to their corresponding request for production.
6. Request for Other Sanctions
*4 Although not addressed in the AJSR, the Motion requests that the Court find that Plaintiff has failed to mitigate damages and should thus be prohibited from seeking back and front pay damages. (ECF No. 29 at 9). In support of its argument that Plaintiff failed to mitigate damages, Defendant points to Plaintiff's: (i) failure to produce documents relating to a failed pre-employment drug test with Cleveland Clinic in September 2019; and (ii) testimony confirming that emails relating to her employment search were deleted from her personal email account and therefore not produced to Defendant. At this juncture, however, the Court declines Defendant's invitation as premature and unsupported by the record. Rather, Defendant's argument involves a question more appropriately decided by the trier of fact later in these proceedings. Accordingly, Defendant's request to preclude Plaintiff from seeking back and front pay damages is DENIED.
For the same reasons, the Court will also refrain from recommending any adverse jury inference or instruction regarding Plaintiff's alleged failure to produce documents relating to her failed pre-employment drug test with Cleveland Clinic and her failure to produce emails about her employment search. (ECF No. 37 at 7, 10). Prior to granting a request for such an adverse jury inference, the court must first find that the offending party “acted with the intent to deprive another party of the information's use in the litigation.” Fed. R. Civ. P. 37(e)(2). Negligence or gross negligence is not enough. Fed. R. Civ. P. 37(e) Advisory Committee's notes to 2015 amendment.
At this juncture and on the facts before the Court, the undersigned is unable to find that Plaintiff acted with the requisite intent to deprive Defendant of the ability to use the information in litigation or acted in bad faith. Rather, Plaintiff's actions could more readily be described as negligent.[7] Negligence, however, is not enough for the severe sanctions requested by Defendant. Simply put, a court cannot give an adverse inference jury instruction—the relief sought by Defendant—as a sanction for spoliation of documents or other discovery information, including emails, unless there is evidence of bad faith. Because Defendant has not established that bad faith is the cause of the allegedly deleted emails and other electronically stored information, the Court cannot order an adverse inference jury instruction at trial. See Point Blank Sols., Inc. v. Toyobo Am., Inc., No. 09-61166-CIV, 2011 WL 1456029, at *1 (S.D. Fla. Apr. 5, 2011). Accordingly, Defendant's request for an adverse jury instruction in this context is DENIED.
7. Deadline for Discovery at issue in the Motion
Because the discovery deadline expired on January 15, 2021, Plaintiff's continued deposition and all discovery ordered herein must be completed by no later than February 8, 2021.
8. Attorneys’ Fees
Although the Court has denied Defendant's request for more severe sanctions, Defendant's request for fees pursuant to Rule 37 is GRANTED. Fed. R. Civ. P. 37(a)(5)(A). More specifically, Rule 37 requires a court to award attorney's fees to the movant where the “requested discovery is provided after the motion [to compel] was filed.” Such was the case here, where Plaintiff provided piecemeal discovery, necessitating the filing of two motions to compel, without any substantial justification for her position.
*5 Accordingly, Defendant is awarded $1,000 in attorney's fees, which is to be paid by February 28, 2021. See Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (court is deemed an expert in determining reasonableness of fees and may use its own knowledge and experience to determine a reasonable fee award); Fiedler v. Anglin's Beach Café, LLC, No. 15-60989, 2017 WL 1278632, at *1 (S.D. Fla. April 3, 2017) (same).
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida on January 22, 2021.

Footnotes

In addition to this most recent Amended Joint Status Report, the parties filed two previous versions. See (ECF Nos. 33, 35).
When asked whether anyone asked her to prepare the timeline or whether it was “just something [she] started doing, Plaintiff responded that “It's something I started doing. That was what I did as a job”. Pls. Dep. 10:9-10; see also id. at 11:1-2 (“It was just things for me.”).
Plaintiff does not oppose the continued deposition. (ECF No. 31 at 3).
Plaintiff suggests, not without merit, that these “lost” messages might be recoverable through Barbara Bruce and Maggie Hansen. (ECF No. 37 at 9).
Plaintiff now wants Defendant to delete all but one of those 114 messages as personal and irrelevant. (ECF No. 37 at 6, 8). In response, Defendant agrees to delete any non-responsive text messages “upon order from the Court as Plaintiff has not asserted any privilege in her request for the deletion of such messages.” (ECF No. 37 at 6 n.2). Although it should not take a court order to accomplish something so insignificant, Defendant is hereby ordered to destroy the irrelevant text messages from Susan Mayberry.
Notably, Plaintiff has offered to submit her phone to a forensic examination at the convenience of the parties. (ECF No. 37 at 8).
For example, Plaintiff claims not to have any documents regarding the failed drug test. (ECF No. 31 at 3-4). In addition, there is no evidence that Plaintiff intentionally deleted emails to deprive Defendant of the use of such information. See also Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *6 (S.D. Fla. Mar. 22, 2016) (declining to impose spoliation sanctions under Rule 37(e)(2) where defendant had activated a setting on his phone that automatically deleted text messages after 30 days).