In re Air Crash near Rio Grande Puerto Rico
In re Air Crash near Rio Grande Puerto Rico
2016 WL 11783406 (S.D. Fla. 2016)
October 27, 2016
Marra, Kenneth A., United States District Judge
Summary
The court found that the Defendant had a duty to produce ESI related to the Westwind jets, and that their failure to do so was not justified or harmless. The court granted the Plaintiffs' motion for sanctions and ruled that the newly-produced documents shall not be presented at trial. This ruling serves as a reminder that parties must comply with their obligations to produce ESI in a timely manner, or risk facing sanctions.
IN RE: AIR CRASH NEAR RIO GRANDE PUERTO RICO ON DECEMBER 3, 2008
CASE NO. 11-md-02246-KAM, 10-cv-81551-KAM, 11-cv-80059-KAM
United States District Court, S.D. Florida
Entered on FLSD Docket October 27, 2016
Counsel
David Buckner, Buckner+Miles, Miami, FL, Samuel William Wardle, Stuart Z. Grossman, Grossman Roth PA, Coral Gables, FL, Thomas David Hoyle, Motley Rice LLC, Mount Pleasant, SC, for Danelle Clapp Bennington 1149 Aurora Hill Drive Aurora, OH 44202-8494, Nathaniel Joseph Clapp 30505 Lake Road Bay Village, OH 44140, William Cameron Clapp 30505 Lake Road Bay Village, OH 44140, Theresa Clapp 30505 Lake Road Bay Village, OH 44140.Thomas David Hoyle, Motley Rice LLC, Mount Pleasant, SC, David Buckner, Buckner+Miles, Miami, FL, for Joanna Turner, Robert Truskowski, Diane Truskowski, Lyn Griffith, Margo Simmons, Stephanie Simmons, Christopher Ryan Turner.
Mary F. Schiavo, James R. Brauchle, Motley Rice, Mount Pleasant, SC, David Buckner, Buckner+Miles, Miami, FL, Mary Schiavo, Thomas David Hoyle, Motley Rice LLC, Mount Pleasant, SC, Mitchell James Cook, Ramrod Key, FL, for Chris Turner.
Brenda M. Johnson, Ellen M. McCarthy, Jamie R. Lebovitz, Nurenberg, Paris, Heller & McCarthy, L.P.A., Cleveland, OH, Brett Elliott von Borke, David Buckner, Buckner+Miles, Miami, FL, Rachel Wagner Furst, Samuel William Wardle, Stuart Z. Grossman, Grossman Roth, P.A., Coral Gables, FL, Thomas David Hoyle, Motley Rice LLC, Mount Pleasant, SC, for Alexander Kent Clapp, Jason Clapp.
David Buckner, Buckner+Miles, Miami, FL, Martial A. Webster, Sr., St. Croix, VI, for Yvonne Webster-Pryce.
Alan Kopit, Arthur M. Kaufman, Hahn, Loeser & Parks, Cleveland, OH, James R. Brauchle, Mary F. Schiavo, Motley Rice, Mount Pleasant, SC, Mitchell James Cook, Ramrod Key, FL, Thomas David Hoyle, Motley Rice LLC, Mount Pleasant, SC, David Buckner, Buckner+Miles, Miami, FL, for J. Donald Cairns.
Ryan W. Greene, St. Thomas, VI, Christopher Dean Glover, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, AL, David Buckner, Buckner+Miles, Miami, FL, for Shermaine Seales P.O. Box 2333 Frederiksted, VI 00841.
Christopher Dean Glover, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, AL, David Buckner, Buckner+Miles, Miami, FL, for Onahji Webster.
Brenda M. Johnson, Pro Hac Vice, Ellen M. McCarthy, Pro Hac Vice, Jamie R. Lebovitz, Nurenberg, Paris, Heller & McCarthy, L.P.A., Cleveland, OH, David Buckner, Buckner+Miles, Miami, FL, for Air Crash Near Rio Grande, Puerto Rico, on December 3, 2008.
William Chester Brewer, Jr., West Palm Beach, FL, for Rainbow International Airlines, Inc.
Andrew Eschen, Debra D. Fowler, Eric S. Johnson, David Fautsch, United States Department of Justice, Torts Branch, Civil Division, Washington, DC, Angela Tyson-Floyd, U.S. Attorney's Office, St. Croix, VI, James F. Bennett, Bryan Cave, St. Louis, MO, James R. Bennett, II, Office of the US Attorney, Cleveland, OH, for United States of America.
Marra, Kenneth A., United States District Judge
ORDER1
*1 This cause is before the Court upon Plaintiffs’ Motion for Sanctions (DE 498) and Defendant's Motion to Strike Arguments (DE 560). The Court has carefully considered the Motions and is otherwise fully advised in the premises.
Plaintiffs move for sanctions on the basis that, back in 2011, it served discovery requests on Defendant for documents relating to the transferred Westwind jets. On December 8, 2015, Defendant produced documents regarding the Westwind jets, which Plaintiffs contend is late and requests that Defendant be precluded from presenting these documents at trial pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure.[2]
According to Defendant, after it was served with discovery requests in 2011, it filed a protective order and filed objections and supplemental responses to Plaintiffs’ request number 23[3] which related to the expenses for the Westwind jets. Plaintiffs did not file a motion to compel documents related to request number 23. On November 13, 2013, Plaintiffs served amended pleadings, which alleged that Ramo transferred the Westwinds jets to third parties for less than their market value. Defendant states that Plaintiffs did not propound any discovery relating to expenses of the Westwind jets after filing the amended pleadings.
Defendant argues that there was no requirement under Rule 26 to disclose any information regarding the Westwind jets when Plaintiffs propounded the requests for production. Pursuant to Local Rule 16(a)(d)(4), Defendant disclosed the at-issue documents within 30 days of trial. Plaintiffs contend that Defendant ought to have supplemented its disclosures pursuant to Rule 26(e).[4] Defendant disagrees, stating that Rule 26(e) does not apply here. Defendant claims the voluntary disclosure was complete and Plaintiffs otherwise knew during the discovery process that expenses were incurred by Ramo to insure, store and maintain the Westwind jets and, in any event, the production of these documents in 2015 was substantially justified and harmless.
*2 The Court will grant Plaintiffs’ motion for sanctions and the newly-produced documents shall not be presented at trial. Although Defendant claims Plaintiffs should have known documents existed regarding incurred expenses to store the Westwind jets, once Plaintiffs filed the amended pleadings, it was Defendant's duty to produce these documents pursuant to Rule 26(e), and not Plaintiffs’ duty to propound discovery again. Based on Defendant's initial response to the discovery request, Plaintiffs would have had no reason to challenge Defendant's initial response to the discovery request.
Furthermore, Defendant waived any objection to the discovery request when it lodged its objections, but then also responded to the requests by producing documents. By doing so, Defendant waived any objection to the production of these documents. See Tardif v. People for the Ethical Treatment of Animals, No. 2:09–cv–537, 2011 WL 1627165, at *2 (M.D. Fla. Apr. 29, 2011); See Mann v. Island Resorts Development, Inc., No. 3:08cv297, 2009 WL 6409113, at *2-3 (N.D. Fla. Feb. 27, 2009); Meese v. Eaton Manufacturing, Co., 35 F.R.D. 162, 166 (N.D. Ohio 1964) (holding that a party who objects and then answers an interrogatory waives that objection); Wright, Miller & Marcus, Federal Practice and Procedure: Civil § 2173 (stating “[a] voluntary answer to an interrogatory is also a waiver of the objection.”)
Finally, the Court concludes and finds that the late production was not justified and not harmless. The discovery deadline has long passed and many of the documents have been produced by third parties.
With respect to Defendant's motion to strike any arguments raised by Plaintiffs that Defendant failed to raise a setoff defense, the Court denies the motion as moot. Defendant has stated that it will not pursue a setoff defense.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1) Plaintiffs’ Motion for Sanctions (DE 498) is GRANTED.
2) Defendant's Motion to Strike Arguments (DE 560) is DENIED AS MOOT.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 27th day of October, 2016.
Footnotes
The Court presumes familiarity with prior Orders.
This rule provides in part as follows:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless...
Fed. R. Civ. P. 37(c)(1).
23. Objection. Compound. With respect to Warren Mosler, RAMO is not in possession of any evidence/documents relating to any of his expenditure(s) in connection with the transferred aircraft and upon information and belief Warren Mosler has never made any expenditure (s) relating to the accident aircraft. With respect to RAMO, objection, vague, overbroad, unduly burdensome, not reasonably limited in time or scope and not reasonably calculated to lead to the discovery of admissible evidence. Moreover, RAMO has never made any expenditure(s) relating to the accident aircraft. Notwithstanding the foregoing objections, and with respect to RAMO and the transferred aircraft only, see attached documents.
(Ex. A, DE 521.)
Rule 26(e) states in pertinent part:
(1)A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.
Fed. R. Civ. P. 26(e)(1).