*1 THIS CAUSE is before the Court on Plaintiff's Amended Motion to Compel. (ECF No. 139) All discovery has been referred to United States Magistrate Judge Lurana S. Snow by the Honorable William P. Dimitrouleas, United States District Judge. (ECF No. 132) The Motion, Response, and Reply have been filed and this Motion is ripe for review.

Plaintiff filed this action on August 4, 2015, alleging that the Defendants breached a contract between the parties when Defendants did not pay Plaintiff the amount due for the services Plaintiff provided. (ECF No. 1) Plaintiff, Functional Pathways of Tennessee, is in the business of “providing physical, occupational and speech therapy services to individuals residing in nursing homes owned or operated as licensed long-term care and skilled nursing facilities.” Id. at 3, ¶6. Plaintiff provided seven different nursing homes with therapy services. Id. at 3, ¶7. Six of the seven nursing homes were operated by several different legal entities. Id. at 3, ¶8.

Plaintiff sued the nursing homes, six legal entities, and Defendant Brock (managing member of several legal entities referred to above) and Defendant Cross (managing member of several legal entities referred to above) (the “Individual Defendants”) that are the known Defendants in this action. Id. at 14, ¶¶103, 104. Plaintiff and the Defendants entered into Therapy Services Agreements for the duration of their relationship. Id. at 16, ¶116. The original legal entities that signed the agreements were replaced with new legal entities and Plaintiff continued to provide therapy services. Id. at 16, ¶120. The new legal operating entities paid Plaintiff for a portion of the services but refused to pay for the amount Plaintiff still believed was due. Id. at 17, ¶124. Plaintiff alleged it is owed compensatory damages of $1,189,174.11 from the legal entities for failing to abide by the Therapy Services Agreements. Id. at 18, ¶131.

Plaintiff also claimed Defendants illegally converted Plaintiff's equipment and property. Id. at 19, ¶141. Plaintiff seeks to obtain its own equipment used for the therapy services at the nursing homes. Id. Plaintiff alleges Defendant Cross instructed employees to withhold equipment that Plaintiff requested to be returned. Id. at 19, ¶138.

Further, Plaintiff has alternatively claimed fraud or fraudulent inducement by the Individual Defendants. Id. at 37, ¶266. Plaintiff entered into a Tolling Agreement with the Individual Defendants to toll the right to sue rather than bringing suit immediately. Id. at 2, ¶2; 37, ¶266. Plaintiff claims that the Individual Defendants induced Plaintiff to enter into the Tolling Agreement by omitting information of invalidated entities. Id. at 37, ¶266. The Court found that the fraud/fraud by inducement claims failed because Plaintiff did not sufficiently allege a duty to disclose that the corporate registrations for the inactive entities had lapsed. (ECF No. 42 at 6)

On June 29, 2020, the Court entered a Scheduling Order, which provided a discovery cutoff of October 15, 2021, and set trial of this matter for the two-week period commencing on February 21, 2022. Order (ECF No. 131)

*2 Defendants have represented that they will produce all documents referred to in the Plaintiff's Amended Motion to Compel with the exception of those listed herein. Accordingly, the Court orders the supplemental discovery be produced no later than October 26, 2020, or on a date mutually agreed upon by the parties if such has not yet been produced. The only remaining issues to be resolved are Defendants’ claim that Plaintiff's motion was untimely, whether Defendants must produce ownership information from financial documents, whether there is a continuing duty to supplement certain documents, and Plaintiff's request for a confirmation from the Individual Defendants of the specific search performed of responsive documents. (ECF No. 142)

A. Defendants’ claim of untimeliness of Plaintiff's Motion to Compel

Defendants contend that Plaintiff's Amended Motion to Compel should be denied as untimely owing to Plaintiff filing said motion one day after its required deadline. (ECF No. 141 at 1, ¶2) Defendants use case law from this Court to support its position that absent good cause, an untimely motion should be dismissed. Id.; Sprint Communications v. Calabrese, No. 18-60788, 2019 WL 9598506, *1 (S.D. Fla. Aug. 20, 2019) (The propounding party failed to address the argument on timeliness or show facts demonstrating good cause, nonetheless, the court addressed the motion on the merits). In the instant case, Plaintiff submitted its original Motion to Compel (ECF No. 138) on September 16, 2020, and, of its own accord, amended its Motion to adhere to this Court's General Order on Discovery Objections and Procedures (ECF No. 132) regarding page limit, and filed this Amended Motion one day later on September 17, 2020. (ECF No. 142) No party was prejudiced by this one day delay in an effort to comply with this Court's mandated page limitation. This Court finds that the Plaintiff demonstrated good cause to file its Amended Motion one day after the deadline.

This Court has decided this Motion on the merits but cautions the parties that all future motions must be timely filed and must strictly comply with this Court's General Order on Discovery Procedures and the Local Rules of this Court. (ECF No. 132)

B. General principles governing discovery

According to Rule 26(b)(1) of the Federal Rules of Civil Procedure:

Relevance under Rule 26(b)(1) is construed broadly, but is not without limits. Discovery must not only be relevant to the claims and defenses in the case, but also must be proportional “to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The determination of what is relevant for discovery purposes depends on the parties’ claims and defenses. Further, the Rules of Civil Procedure shall be “construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.

Objections to requests for production of documents must be stated with specificity, including the reasons for the objection, and must state whether any responsive materials are being withheld on the basis of that objection and “[a]n objection to part of a request must specify the part and permit inspection of the rest.” Fed. R. Civ. P. 34(b)(2); S.D. Fla. L.R. 26.1(e)(2)(A).

*3 The discovery respondent bears the burden of establishing a lack of relevancy or some other basis for resisting production. See, e.g., Adelman v. Boy Scouts of Am., 276 F.R.D. 681 (S.D. Fla. 2011) (noting that court could grant motion to compel “solely based on [discovery respondent's] procedurally inadequate objections”). After a properly stated objection is presented, the proponent of a motion to compel seeking to overrule the objection must prove relevance of the requested discovery. See, e.g., Diamond State Ins. Co. v. His House, Inc., No. 10-20029-CV, 2011 WL 146837 (S.D. Fla. Jan. 18, 2011).

C. Plaintiff's Amended Motion to Compel

1. Redaction of Financial Information

Plaintiff's Amended Motion to Compel seeks documents relating to ownership and investment in the Defendant entities by Defendant Cross and Defendant Brock. (ECF No. 139) More specifically, Plaintiff sought tax returns, bank records, and K-1's spanning a period of 9 to 11 years. (ECF No. 141 at 3, ¶8) Plaintiff states that it offered a compromise to Defendants, which was rejected, of redacting all of the responsive documents to protect any financial information. Id. at 4. Defendants objected that the request was not proportional to the needs of the case and that it would be overly burdensome to redact the volume of documents requested. (ECF No. 141 at 3, ¶10) First, Defendants note that Plaintiff “has access to the basic membership information via a free online database.” Id. Second, Defendants already have agreed to produce responsive documents in their possession, custody, control that are “not subsumed in the financial documents.” Id. Defendants state that other forms of less invasive discovery exist and the “added benefit that Plaintiff would receive from mere ownership/membership information from redacted taxes, K-1, and bank records is outweighed by the burden of having to produce such documents in a redacted form.” Id.

Plaintiff contends that the ownership information is found in the documents it requests. (ECF No. 142) Fed. R. Civ. Proc. 26(b)(1) “crystalizes the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.” In re: Takata Airbag Products Liability Litigation, 2016 WL 1460143, *2 (S.D. Fla. March 1, 2016).

Here, Plaintiff has not shown how its request is proportional to the needs of this case. The Court may limit discovery if it determines that the information requested is cumulative, duplicative or can be obtained from a more convenient source. Mortgage Payment Prot., Inc. v. Cynosure Fin., Inc., Case No. 6:08-cv-1212-Orl-22GJK, 2010 WL 11507437, *3 (M.D. Fla. Nov. 5, 2010). There are far less intrusive means to obtain the ownership information Plaintiff seeks, such as an interrogatory to the Individual Defendants on their ownership interest and investment information in the Defendant entities. Therefore, this Court finds that the request is not proportional to the needs of this case and that the information Plaintiff seeks can be obtained through less intrusive methods of discovery.

2. Communications with Other Therapy Providers

Plaintiff requested “from the entities all documents relating to communications between the entity and any other therapy service provider regarding the therapy services provided by Plaintiff.” (ECF No. 139) Plaintiff further requested that Defendants confirm that they have a continuing duty to supplement the documents relating to its request. (ECF No. 142 at 3) Defendants contend they do not maintain any documents of communications with other service providers and therefore have nothing to produce. (ECF No. 141 at 4, ¶12) Defendants objected to the “continuing duty to supplement” as having no relevancy to the claims or defenses in this action. Id. at 4, ¶13. If Defendants’ answer changes in the future, they must determine whether they have a duty to supplement their answers at that time. Accordingly, Plaintiff's request is denied, but Plaintiff may file an appropriate motion, after a proper conferral, should it become necessary.

3. Confirmation of Defendant Brock and Defendant Cross Regarding Discovery Efforts

*4 Plaintiff submitted “thirty-nine (39) requests for production propounded on both of the Individual Defendants, [Defendant Cross] and [Defendant Brock].” (ECF No. 139 at 5) Defendant Brock and Defendant Cross responded that they have no responsive documents within their possession, custody, or control. (ECF 141 at 5, ¶17) After receiving this response, Plaintiff sought confirmation that a reasonable search was conducted by the Individual Defendants. (ECF No. 139 at 5) Defendants contend that Plaintiff provided no basis for their request for confirmation to be granted and therefore waive any such right to do so in its Reply. (ECF No. 141 at 5, ¶¶16, 17)

A party may not raise new arguments in its Reply, as it would violate Local Rule 7.1(c). Commodity Futures Trading Commission v. Gibraltar Monetary Corp., Inc., 2004 WL 7334347, *1 (S.D. Fla. Oct. 22, 2004) (Dimitrouleas, J.). Plaintiff and Defendants rely on the same set of cases, where in certain circumstances, the court has required a confirmation that the search for documents was done reasonably. (ECF Nos. 141 at 5, ¶16, 142 at 4) However, having reviewed the applicable case law, this Court finds the facts presented in those cases are different from the facts before it. This Court can find no basis at this time for requiring the Individual Defendants to confirm they made a reasonable search for the documents. Without further evidence, Plaintiff has failed to establish that the Court should order Defendants to do so. Therefore, the Court denies Plaintiff's request for confirmation of the search Defendants performed.

Consistent with the findings above, it is hereby,

ORDERED AND ADJUDGED that Plaintiff's Amended Motion to Compel (ECF No. 139) is DENIED, except for those portions of the Motion and Response identifying supplemental discovery that would be produced by Defendants, to which the parties mutually agreed. Defendants shall produce all documents represented in its Response and agreement with Plaintiff no later than October 26, 2020, or a date mutually agreed upon, if such has not already been produced.

DONE AND ORDERED at Fort Lauderdale, Florida this 22nd day of October, 2020.