Diamond Resorts U.S. Collection Dev., LLC v. US Consumer Attorneys, P.A.
Diamond Resorts U.S. Collection Dev., LLC v. US Consumer Attorneys, P.A.
2021 WL 4482837 (S.D. Fla. 2021)
February 24, 2021
Reinhart, Bruce E., United States Magistrate Judge
Summary
The Court granted a one-week extension of the production deadline for documents, including ESI, compelled by the Privilege Order. The Court also noted that any objections to the production of ESI must be raised in a timely manner, and that the ESI may contain evidence relevant to the case.
Additional Decisions
DIAMOND RESORTS U.S. COLLECTION DEVELOPMENT, LLC, a Delaware limited liability company; and Diamond Resorts Hawaii Collection Development, LLC, a Delaware limited liability company, Plaintiffs,
v.
US CONSUMER ATTORNEYS, P.A., et al., Defendants
v.
US CONSUMER ATTORNEYS, P.A., et al., Defendants
CASE NO. 9:18-cv-80311-REINHART
United States District Court, S.D. Florida
Signed February 24, 2021
Counsel
Brandon Thomas Crossland, Lindy Kathryn Keown, Julie Singer Brady, James Vincent Etscorn, Christian Tiblier, Baker & Hostetler LLP, Orlando, FL, Catherine E. Woltering, Pro Hac Vice, Baker & Hostetler LLP, Columbus, OH, Ryan Benjamin Witte, Boies, Schiller & Flexner, LLP, Miami, FL, for Plaintiff Diamond Resorts International, Inc.Brandon Thomas Crossland, Lindy Kathryn Keown, Julie Singer Brady, James Vincent Etscorn, Christian Tiblier, Baker & Hostetler LLP, Orlando, FL, Catherine E. Woltering, Pro Hac Vice, Baker & Hostetler LLP, Columbus, OH, for Plaintiffs Diamond Resorts Corporation, Diamond Resorts Management, Inc.
Brandon Thomas Crossland, Lindy Kathryn Keown, Julie Singer Brady, James Vincent Etscorn, Christian Tiblier, Joshua Robert Jacobson, Kristen Hawes Luck, Baker & Hostetler LLP, Orlando, FL, Catherine E. Woltering, Pro Hac Vice, Baker & Hostetler LLP, Columbus, OH, for Plaintiff Diamond Resorts U.S. Collection Development, LLC.
Henry Neil Portner, Lake Worth, FL, Brian Thomas Giles, The Law Offices of Brian T. Giles, LLC, Cincinnati, OH, Javier Asis Lopez, Kozyak Tropin & Throckmorton PA, Coral Gables, FL, for Defendant US Consumers Attorneys, P.A.
Brian Thomas Giles, The Law Offices of Brian T. Giles, LLC, Cincinnati, OH, Henry Neil Portner, Lake Worth, FL, for Defendant Henry Neil Portner.
Dwayne Antonio Robinson, Kozyak Tropin & Throckmorton LLP, Miami, FL, Javier Asis Lopez, Kozyak Tropin & Throckmorton PA, Coral Gables, FL, S. Jonathan Vine, Lizza Carola Constantine, Sheena Danielle Smith, Jeremy Franklin Goldstein, Cole Scott & Kissane, West Palm Beach, FL, Jeffrey Wittenberg, Pro Hac Vice, Wittenberg Law APC, Santa Monica, CA, for Defendants Newton Group Transfers, LLC, The Newton Group, ESA LLC, Interval Broker Direct, LLC, Newton Group Exit, LLC.
S. Jonathan Vine, Lizza Carola Constantine, Sheena Danielle Smith, Cole Scott & Kissane, West Palm Beach, FL, for Defendant DC Capital Law Firm, LLP.
John Joseph Bennett, Michael Anthony Nardella, Nardella & Nardella PLLC, Richard Rathbun Phelps, Dutton Law Group, Orlando, FL, Mitchell Reed Sussman, Pro Hac Vice, Mitchell Reed Sussman & Associates, Palm Springs, CA, for Defendant Conrad Sussman 135 W. Central Blvd. Suite 300 Orlando Orlando, FL 32801 United Sta 4079662680.
John Joseph Bennett, Nardella & Nardella PLLC, Orlando, FL, for Defendant Conrad Sussman.
Pluto Marketing Inc., Las Vegas, NV, Pro Se.
Reinhart, Bruce E., United States Magistrate Judge
ORDER ON MOTION TO RECONSIDER ORDER REGARDING ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGE [ECF No. 544]
*1 Defendant DC Capital Law Firm, LLP (“DC Capital”) moves for reconsideration of this Court's Order on DC Capital's assertion of attorney-client and work product privileges. ECF No. 535 (“the Privilege Order”). In the alternative, DC Capital seeks clarification and/or an extension of time to produce documents compelled by the Privilege Order.
The Privilege Order made clear that the only issues before the Court were whether to sustain DC Capital's privilege objections to (1) Plaintiffs’ First Request for Production insofar as that Request for Production sought the “complete customer file” for five specified Diamond Owners;[1] and (2) Plaintiffs’ Second Request for Production seeking “[a]ll communications between DC [Capital] and any Newton Defendant regarding Plaintiffs, Diamond, Diamond Owners, or this lawsuit.” The documents at issue were identified in privilege logs produced by DC Capital. Plaintiffs identified the log entries for which they challenged the privilege assertion. The Privilege Order identified, by log entry number, the specific documents that the Court found to be privileged. All other contested entries in the privilege log were found to be not privileged. The Court ordered the non-privileged documents to be produced by February 25, 2021, at 5:00 p.m. Eastern time (U.S.).
DC Capital now argues that it is unclear whether the Privilege Order “is limited to the issues presented to the Court for its consideration or whether it applies to all communications/documents responsive to Plaintiffs’ First Request for Production at issue generated by DC Capital and its clients, as well as additional communications responsive to Plaintiffs’ Second Request for Production No. 2 between DC Capital and Newton Group, LLC ESA.” ECF No. 544 at 2–3. Although the Privilege Order is clear, the Court further clarifies it as follows: the Court ruled only on the issues that were framed by DC Capital's objections and privilege logs, and by the Plaintiffs’ corresponding request to compel specific entries in the privilege logs. Put differently, if DC Capital did not object to producing a particular document, the Court did not rule on the non-objection; if Plaintiffs did not specifically ask to compel production over DC Capital's objection, the Court did not rule on the issue.
DC Capital next asks the Court to reconsider its holding that the presence of non-attorneys prevented a privilege from existing. Reconsideration is “an extraordinary remedy which must be used sparingly.” Guevara v. NCL (Bahamas) Ltd., No. 15-24294-CIV, 2017 WL 6597980, at *1 (S.D. Fla. May 26, 2017) (J. Williams) (citation omitted). “Moreover, a motion for reconsideration should not be used as a ‘vehicle to present authorities available at the time of the first decision or to reiterate arguments previously made.’ ” Compagnoni v. United States, No. 94-0813-CIV, 1997 WL 416482, at *1 (S.D. Fla. May 13, 1997) (J. Marcus) (citation omitted), aff'd, 173 F.3d 1369 (11th Cir. 1999). There are only three bases for granting a motion for reconsideration: “1) an intervening change in controlling law; 2) the availability of new evidence; and 3) the need to correct clear error or prevent manifest injustice.” Williams v. Cruise Ships Catering & Serv. Int'l, N.V., 320 F. Supp. 2d 1347, 1357 (S.D. Fla. 2004) (J. Gold).
*2 DC Capital merely restates previous arguments that the Court rejected. It argues that the Court failed to directly distinguish two cases – one from the Southern District of Indiana and one from the District of Delaware – which did not adopt the “reasonably necessary” standard for a third party participant in the attorney-client relationship. ECF No. 544 at 10. Instead, the Court followed a ruling from the Middle District of Florida in a factually similar timeshare case and a ruling from the Southern District of Florida bankruptcy court. That two out-of-district, non-binding, non-precedential decisions may have reached a different conclusion does not make this Court ruling clearly erroneous or manifestly unjust.
Next, DC Capital raises a relevance objection. ECF No. 544 at 10–11. DC Capital does not cite an intervening change in the law or the availability of new evidence. Hence, this relevance argument was available previously, but was not asserted. Having not been presented with the argument, the Court did not commit clear error by not considering it. Moreover, even accepting arguendo DC Capital's argument that the Court has ordered it to produce irrelevant evidence, there is no manifest injustice.
Finally, DC Capital moves for a 14 day extension of time to produce the documents covered by the Privilege Order. ECF No. 544 at 12. DC Capital asserts there is good cause for an extension because (1) it is evaluating whether to seek appellate review and/or a stay of the Privilege Order and (2) it cannot logistically remove all redactions from the documents. In light of the logistical issues, the Court will grant a one-week extension of the production deadline, until March 5, 2021, at 5:00 p.m.
This Order is without prejudice to DC Capital filing a motion for a stay pending appellate review. Any such motion shall be filed by March 1, 2021, at 5:00 p.m. Any response shall be filed by March 3, 2021, at 5:00 p.m.
DONE and ORDERED in Chambers this 24th day of February, 2021, at West Palm Beach in the Southern District of Florida.
Footnotes
The term “Diamond Owners” will be used throughout this Order to collectively refer to all owners of Diamond timeshares who were clients of DC Capital, with the exception of the Five Diamond Owners.