Davis v. U.S.
Davis v. U.S.
2022 WL 4552431 (M.D. Fla. 2022)
July 11, 2022

Wilson, Thomas G.,  United States Magistrate Judge

Dismissal
Manner of Production
Sanctions
Video
Bad Faith
Social Media
Facebook
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Summary
The plaintiff produced approximately 110MB of ESI, including business records and court records from his divorce and criminal proceedings. The defendant obtained evidence of the plaintiff's social media posts, including a video of the plaintiff allegedly assaulting his estranged wife, which was placed on Facebook. The court noted that the admissibility of the entire video is questionable under Rule 403, F.R.E.
TYRONE DAVIS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant
CASE NO. 6:21-cv-534-WFJ-TGW
United States District Court, M.D. Florida
Signed July 11, 2022
Filed July 11, 2022

Counsel

Jeffrey S. Kaufman, Jr., Christopher H. Hunt, Craig Ronald Lynd, Kaufman & Lynd, Orlando, FL, for Plaintiff.
Phillip Ryan Seltzer Ragler, Adam R. Smart, Robert Sowell, United States Attorney's Office, Orlando, FL, for Defendant.
Wilson, Thomas G., United States Magistrate Judge

ORDER

*1 THIS CAUSE came on for consideration upon the United States’ Motion for Sanctions (Doc. 30) and the plaintiff's opposition thereto (Doc. 31). The motion is appropriately denied.
At the outset, it is noted that neither party has done much to make a concrete presentation on this dispute, as their arguments are rife with vagueness and speculation.
The United States argues that the sanction of dismissal is warranted because the plaintiff failed to produce court-ordered financial statements regarding his business, Ty's Fitness, LLC, and documentation from the plaintiff's divorce and criminal proceedings. The defendant alternatively proposes that the Court “strik[e ...] claims, prohibit[ ] Plaintiff from supporting his claims, and treating relevant facts as established” (Doc. 30, p. 2). The United States has failed to establish that any of these extreme sanctions is warranted in this case.
The court has broad discretion to fashion appropriate sanctions for violations of discovery orders. In re Chase & Sanborn Corp., 872 F.2d 397, 400 (11th Cir. 1989). Dismissal of a claim, however, should only be used as a last resort. Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993). The sanction of dismissal may be imposed when the failure to comply was willful, intentional or in flagrant bad faith. See NHL v. Metro Hockey Club, Inc., 427 U.S. 639, 641 (1976); see also United States v. One 32’ Scorpion Go-Fast Vessel, 339 Fed. Appx. 903, 095 (11th Cir. 2009) (Courts impose sanctions to prevent unfair prejudice to litigants and insure the integrity of the discovery process.).
The defendant argues that sanctions are warranted because the plaintiff ignored in bad faith his obligations to produce documents pursuant to the April 26 Order (Doc. 30, p. 14). Notably, that Order was a perfunctory ruling because the motion was unopposed. See Local Rule 3.01(c). Thus, this is not a circumstance where the court made substantive findings regarding the discovery requests at issue.
Regardless, the plaintiff did not ignore the April 26 Order. He produced business records and court records from his divorce and criminal proceedings (Doc. 31, pp. 2, 6). Specifically, the plaintiff produced documentation “to the tune of approximately 110MB,” albeit the defendant complains this production was too voluminous (Doc. 30, p. 10). Additionally, the defendant obtained evidence of the plaintiff's social media posts, so that discovery is no longer at issue. Specifically, “the parties were able to reach an agreement whereby Plaintiff admitted to the authenticity of the screenshots, images, and videos of certain websites and social media accounts” possessed by the defendant (id., p. 9).
The defendant argues, particularly, that dismissal of the plaintiff's lost profits claim is warranted because the plaintiff failed to produce profit and loss statements for Ty's Fitness (id., pp. 19-20; see Doc. 29). The plaintiff testified that he is unable to obtain those statements because his estranged wife took the records from the marital home (Doc. 30-7, pp. 4-5), and that she purportedly has a restraining order against him (Doc. 31, p. 2). Furthermore, defense counsel spoke with the estranged wife, who told him that she fears the plaintiff and does not have that information (Doc. 30, p. 9, n.5). Thus, it is uncertain whether the plaintiff can obtain those documents.
*2 The defendant also contends that dismissal of the case is warranted because the “manner of Plaintiff's [document] production bespeaks bad faith” (Doc. 30, p. 10). Specifically, the defendant argues (id., p. 14):
... Plaintiff attempted to conceal his discovery violations by producing voluminous, non-responsive documents. This was an effort to deceive the Court into believing that Plaintiff had, in fact, complied with the Court's April 26th Order. But he had not. He ignored it.
The defendant's accusation of bad faith—an extreme allegation—is baseless. It is, furthermore, highly inappropriate to accuse the plaintiff (and his counsel) of attempting to “deceive” the court simply because the document production was voluminous. The plaintiff, reasonably enough, responded that he “gathered again what he had in his possession, or what was reasonably available to him on-line and produced it again in an abundance of caution” (Doc. 31, p. 6). Thus, from all that appears, the voluminous production was simply the plaintiff's effort to ensure that he had turned over all documents in order to avoid dismissal of the case, as I cautioned was a possibility in the April 26 Order (Doc. 29).
Moreover, the defendant's contention that it requires more information from the plaintiff to refute his claims is unavailing. Although the defendant argues emphatically that the profit-loss statements are critical to refute the plaintiff's lost profit claim (Doc. 30, p. 19), that is mere supposition because the contents of the profit-loss statements are unknown. On the other hand, the United States possesses Ty's Fitness tax returns which, according to the defendant itself, show that “even without [the profit-loss sheets] this claim fails as a matter of law” (see Doc. 30, p. 19, n.8). Specifically, the tax returns reflect that Ty's Fitness lost money in the two years preceding the accident (see Doc. 30-7, pp. 24-25).
The defendant also argues that it lacks adequate information concerning the plaintiff's divorce and criminal proceedings, which it allegedly needs to refute the plaintiff's allegations of physical injury due to the accident, and show that the plaintiff's alleged pain and suffering are attributable to other adverse life events (Doc. 30, pp. 20-21).
In this regard, however, the only information the defendant specifically identifies is a videotape of the plaintiff allegedly assaulting his estranged wife, which was placed on Facebook (see id., & Ex. 6). The United States has the criminal complaint and part of that Facebook video which the plaintiff has confirmed is authentic. The defendant does not meaningfully show it needs the entirety of that video to challenge the plaintiff's damages claims.*
In sum, the defendant's claims of bad faith against the plaintiff are not unsubstantiated, and the defendant clearly possesses ample substantial evidence to challenge the plaintiff's damages claims. Furthermore, to the extent that there was some discovery failure on the plaintiff's part, the requested extreme sanctions are unwarranted.
*3 It is, therefore, upon consideration,
ORDERED:
That the United States’ Motion for Sanctions (Doc. 30) is DENIED.
DONE and ORDERED at Tampa, Florida, this 8th day of July, 2022.

Footnotes

Notably, the admissibility of that entire video is questionable under Rule 403, F.R.E., as its relevance may be outweighed by a danger of unfair prejudice.