*1 This Court has considered, without hearing, Defendant's Motion to Compel Full and Complete Discovery Responses from Plaintiffs, ECF No. 63, and the Plaintiff and Plaintiff-Intervenors' (“Plaintiffs”) expedited responses, ECF Nos. 68 and 69.

This is a First Amendment case involving a facial challenge to a state statute that limits commercial speech—namely, written or electronic communications that encourage, instruct, or induce a consumer to contact a contractor or public adjuster for the purpose of making an insurance claim for roof damage. This Court previously entered a preliminary injunction enjoining Defendant from enforcing the statute at issue because Plaintiff demonstrated that the law does not directly advance the Defendant's asserted substantial state interests. ECF No. 28. In so doing, this Court credited Defendant's asserted state interests justifying the speech restriction at issue. Id. at 25-27.

Following the preliminary-injunction hearing, Defendant filed her answer and affirmative defenses, raising a single defense—“unclean hands.” ECF Nos. 52, 53, and 54. Specifically, Defendant asserts that “Plaintiff[s] (or Plaintiff[s'] employees or agents) represented to Florida homeowners or induced Florida homeowners into believing that the Plaintiff[s] served as a ‘public adjuster,’ as defined in section 626.854(1) of the Florida Statutes.” ECF No. 52 at 8-9.

Defendant served her first Requests for Production on September 10, 2021, asking Plaintiffs to provide over three-years' worth of (1) written and electronic advertisements, (2) “all communications” between Plaintiffs and insurance carriers involving disputed roof repair claims, (3) “all communications” between Plaintiffs and customers involving disputed roof repair claims, (4) “all communications” between Plaintiffs and homeowners referencing Plaintiffs' advertising and the word “insurance,” (5) “all communications” between Plaintiffs and homeowners involving disputes as to whether a roof needs repairing or replacement, (6) “all communications” between Plaintiffs and homeowners involving disputed estimates for roof repairs or replacement, and (7) “all documents” in which Plaintiffs “describe, identify, or discuss the types of insurance claims assistance and support that [they] provide to residential property owners.”

Plaintiffs object to the requests, asserting that further factual development—particularly with respect to the topics on which Defendant seeks discovery—is unnecessary, irrelevant, and exceedingly burdensome. ECF Nos. 68 and 69. Defendant asserts, on the other hand, that it needs the requested discovery to prepare its defense of the law at issue, including to prepare for depositions of Plaintiffs' corporate representatives. ECF No. 63. Defendant claims these requests for production are to assist Defendant in “fully and completely respond[ing] to the questions raised by the Court in the July 11, 2021 order granting a preliminary injunction.” Id. at 6. Defendant cites to about ten pages of this Court's Order granting preliminary injunction, ECF No. 28, where this Court considered whether the record demonstrated that the challenged law directly advances the state's asserted interests or whether the state's interests were served as well by a more limited restriction on commercial speech. Defendant asserts, in effect, that this Court's rhetorical questions posed as part of its critical analysis of the evidence before it at the preliminary injunction hearing affords Defendant free rein to dig through Plaintiffs' business records to show Plaintiffs have been violating some other law not at issue before this Court.[1]

*2 Here, Defendant's requests for production seek information in the same universe of concerns that Defendant asserted supports the challenged law. Indeed, this Court credited Defendant's substantial state interests asserted in support of the advertising restriction. ECF No. 28 at 25-27. But this Court finds the likely benefits of permitting Defendant to comb through Plaintiffs' communications with insurance companies, customers, and homeowners to potentially create new evidence to justify the law Defendant is tasked with defending are outweighed by the burden and expense that responding to such requests imposes on Plaintiffs. See Fed. R. Civ. P. 26(b)(1); ECF No. 69-2. This is especially true given that such information is of marginal importance because Plaintiffs' facial challenge raises purely legal issues, and this Court has already credited Defendant's asserted substantial interest in support of the law. Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1380 (11th Cir. 2019) (“Further factual development cannot assist in resolution of ... facial challenges, which raise purely legal issues.”); see also Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 674 n.4 (11th Cir. 1984) (“In a facial challenge such as this, the facts of the challenging party's case are irrelevant.”).

In addition, to the extent Defendant argues this discovery is necessary to develop the affirmative defense of “unclean hands,” it is not readily apparent that such a defense is appropriate in this case, nor does Defendant argue as much in her motion. See Shondel v. McDermott, 775 F.2d 859, 869 (7th Cir. 1985) (noting that cases that “allow a person whose own conduct could be punished without violating the First Amendment to challenge the statute under which he was punished on the ground that it might in another case be interpreted to reach privileged conduct, suggest a definite hostility to inquiring into a plaintiff's misconduct when he is seeking to vindicate freedom of speech”); Toomer v. Witsell, 334 U.S. 385, 392 (1948) (“The District Court held that this previous misconduct, not having any relation to the constitutionality of the challenged statutes, did not call for application of the unclean hands maxim. We agree.”); B&G Opa Holdings, Inc. v. City of Opa Locka, Fla., Case No.: 1:18-cv-23269-Gayles/McAliley, 2020 WL 5817235, at *1 (S.D. Fla. Sep. 30, 2020) (“[I]t is unclear whether an unclean hands defense is applicable to this [facial challenge to the constitutionality of the City of Opa-Locka's sign code] in the Eleventh Circuit.”).

This Court is not saying that an “unclean hands” defense is never available in a case posing a facial challenge on First Amendment grounds. Other facial challenges could call for discovery to develop the defense. But here, Defendant's supposition that Plaintiffs have misrepresented themselves to consumers as “public adjusters” and violated some other law is not directly related to Plaintiffs' claim that the “prohibited advertising” provision violates the First Amendment. Accordingly, Defendant's requests for production of information and communications to develop their defense is of little, if any, importance in resolving the issues before this Court. Given these considerations, this Court finds the burden and expense of the proposed discovery outweighs any likely benefits.

“Collateral misdeeds, no matter how indicative of general unworthiness, are not presently material.” Restatement (Second) of Torts § 940 cmt. c (Am. Law Inst. 1979). Plaintiffs have challenged only the “prohibited advertising” statute—not any other statute regulating public adjusters. Whether Plaintiffs have misrepresented to homeowners that they are “public adjusters” as defined by Florida law is beyond the scope of Plaintiffs' facial challenge of the “prohibited advertisement” statute.[2] In other words, any communications that follow a “prohibited advertisement” are not directly related to the merits of the controversy between the parties and this Court will not compel the Plaintiffs to provide those communications to Defendant. Accordingly, because Defendant's requests for production are unduly burdensome and outside the permissible scope of discovery, Defendant's motion to compel, ECF No. 63, is DENIED.

*3 SO ORDERED on November 23, 2021.