McLaughlin v. Select Rehab. LLC
McLaughlin v. Select Rehab. LLC
2023 WL 3009868 (M.D. Fla. 2023)
March 15, 2023
Richardson, Monte C., United States Magistrate Judge
Summary
The plaintiffs filed a motion to compel the defendant to respond to their first and second requests to produce and first set of interrogatories, but the court denied the motion without prejudice due to the parties not making a meaningful, good faith effort to confer before the motion was filed. The court encouraged the plaintiffs to revise their discovery requests and reminded them of the need for a proper privilege log.
Christine MCLAUGHLIN, individually and on behalf of all others similarly situated, et al., Plaintiffs,
v.
SELECT REHABILITATION LLC, Defendant
v.
SELECT REHABILITATION LLC, Defendant
Case No. 3:22-cv-59-HES-MCR
United States District Court, M.D. Florida, Jacksonville Division
Signed March 15, 2023
Counsel
Mitchell L. Feldman, Feldman Legal Group, Tampa, FL, Benjamin L. Williams, Williams Law PA, Atlantic Beach, FL, for Plaintiff, Christine McLaughlin.Mitchell L. Feldman, Feldman Legal Group, Tampa, FL, for Plaintiffs, Crystal Vanderveen, Justin Lembke.
Diane G. Walker, Pro Hac Vice, Walker Morton LLP, Chicago, IL, Leonard V. Feigel, Jr., John A. Tucker, Foley & Lardner, LLP, Jacksonville, FL, David B. Goroff, Pro Hac Vice, Foley & Lardner LLP, Chicago, IL, Kristen Wolfe Roberts, Pro Hac Vice, Megan Moran, Pro Hac Vice, Walker Morton LLP, Downers Grove, IL, for Defendant.
Richardson, Monte C., United States Magistrate Judge
ORDER
*1 THIS CAUSE is before the Court on Plaintiffs’ Motion to Compel Defendant to Respond to Plaintiffs’ First and Second Requests to Produce and First Set of Interrogatories to Defendant (“Motion to Compel”) (Doc. 138), Defendant's Amended Opposition to the Motion to Compel (“Opposition”) (Doc. 147), Plaintiffs’ Motion for Leave to File a Reply Brief (“Motion for Reply”) (Doc. 150), and Defendant's Response to Plaintiffs’ Motion for Reply (“Response”) (Doc. 151).
In the Motion to Compel, Plaintiffs seek an order compelling Defendant to “respond fully and completely, without objections other than privilege to Plaintiffs’ First and Second Requests to Produce and produce the responsive records within 10 days” and “to answer Plaintiffs’ First Set of Interrogatories to Defendant, fully and completely without objection other than privilege within 5 days,” and awarding attorneys’ fees to Plaintiffs incurred in connection with the Motion to Compel. (Doc. 138 at 16-17.) Plaintiffs add that any documents withheld on the basis of a privilege should “be delivered for an in camera inspection” and should be accompanied by a privilege log. (Id. at 17.)
Plaintiffs essentially argue that since Defendant has not responded to the subject discovery within the time period prescribed by the Local Rules and the Federal Rules of Civil Procedure, Defendant has waived any objections to the Requests to Produce and the Interrogatories. (See generally id.) Plaintiffs state, in relevant part:
There was no agreement between the Parties to stay or delay discovery responses. No such agreement exists in writing. There was some discussion about potentially delaying some discovery if the Parties agreed to a mediation – but no such mediation was agreed upon or scheduled and no agreement to alter the Parties’ discovery obligations exists.
(Id. at 6.) Plaintiffs’ attorney represents that pursuant to Local Rule 3.01(g), “he has conferred with counsel for Defendant by multiple emails and a phone call regarding the past due discovery at issue and has been unable to obtain the discovery responses and responsive records without an order of the [C]ourt.” (Id. at 17.) No such emails are attached to Plaintiffs’ Motion to Compel.
In its Opposition, Defendant addresses the untimeliness argument as follows:
Plaintiffs provide an utterly false narrative in stating that Select was late in responding to their discovery—not informing the Court that Select did not serve its responses on Plaintiffs because Plaintiffs’ counsel agreed that this discovery would be tabled while the parties considered whether mediation was possible. At the same time as Plaintiffs served their written discovery in November, they also asked Select to mediate the case. Plaintiffs’ counsel and Select's counsel agreed in November [of 2022] that discovery efforts would be stayed while the parties discussed potential mediation. Had Plaintiffs informed Defendant[’s] counsel that they were terminating their November agreement to stay discovery and now insisting on responses within 30 days, Defendant would have served its discovery responses and moved for a protective order within those 30 days, as controlling law supports. Select should not be prejudiced because it took Plaintiffs’ counsel at his word.
*2 Although Plaintiffs’ Motion to Compel omits this, the parties continued discussing potential mediation until Plaintiffs[ ] filed their Motion to Compel. For instance, Select's lead counsel met in person with Plaintiffs’ counsel on January 4, 2023, in Sarasota to discuss mediation. After that, Plaintiffs’ counsel continued these discussions .... Plaintiffs then filed their Motion to Compel on a National Holiday—Martin Luther King Day—when they knew Select would be unavailable, without conferring with defense counsel, as [the] Local Rules require.
(Doc. 147 at 2-3 (emphasis in original); see also id. at 6 n.8 (“Plaintiffs falsely claim that Select never asked for any enlargement of time to respond to discovery .... To the contrary, the parties specifically discussed this and counsel for Plaintiffs, Mitchell Feldman, agreed to this at the end of November, 2022 and reconfirmed agreement to this on December 22, 2022.”); id. at 15; id. at 17 (“Plaintiffs’ delay in filing the Motion to Compel [ ]belies any argument there was no agreement to table discovery while mediation was discussed[ ].”).)
In support, Defendant attaches several emails between counsel for the parties, which are dated January 9, 2023, January 13, 2023, January 20, 2023, and January 25, 2023. (Doc. 147-1 (“There's nothing to confer over other than the date you will be providing all this information, records, answers and responses.... Unless you have something to propose as to ... agreeing to mediate for the entire class or classes with an agreed-upon minimum floor, bracket to start at[,] we expect to receive all the responsive records and answers to the discovery before the time reasonably necessary ....”); Doc. 147-2 (“If you do not agree on these options, then to avoid motions to compel, I expect to receive full and complete responses and answers to our [three] discovery requests.... At no time, did we agree on any enlargement of time nor any stay of discovery.”); Doc. 147-3 (“We advised you that for any mediation to be efficient, productive and cost effective, both parties should defer discovery and other matters while we went through the mediation process .... We had your agreement on this .... At no time during that call did you ask that Select respond to Plaintiff's [sic] pending discovery.... We understood this withdrawal, together with your prior statements to us, meant we had an indefinite extension and no deadline to complete our initial disclosures, or the pending discovery.... We understood this was agreeable to you, and certainly you did not inform Diane that you needed the initial disclosures or Select's responses to Plaintiff's [sic] pending discovery then or by any specific future date.... In these motions, you claimed that you had met and conferred with us before filing these. You know that is absolutely false. You had not consulted us before filing these.”); Doc. 147-4 (“Because this is our position, I don't believe further discussions of your discovery at this time are otherwise productive.”).)
Defendant also argues that Plaintiffs have not shown that the discovery they seek “is relevant and neither overbroad nor disproportionate to the needs of the case.” (Doc. 147 at 2, 8-10.) Defendant explains:
There are three named [P]laintiffs in this case ... from two states. Nonetheless, Plaintiffs seek discovery of nearly every document concerning the work of more than 17,000 employees performing eight distinct positions at more than 2300 facilities in 42 states. They seek information protected by the attorney-client and work product privilege. They seek patient-related information protected by HIPAA. They seek private employment information concerning third parties.
*3 (Id. at 1-2; see also id. at 10-14; Doc. 147-4.)
In their Motion for Reply, Plaintiffs argue that “Defendant attached selective emails and provide[d] an inaccurate factual record in [an] attempt to justify its bad conduct.” (Doc. 150 at 1.) While contending that “Plaintiffs’ counsel had no reason to attach all the numerous emails between counsel” to the Motion to Compel, Plaintiffs now ask for “the opportunity to reply to Defendant's misrepresentations and provide a more complete record of emails.” (Id. at 2.) In turn, Defendant responds that “Plaintiffs’ Motion for Reply misstates purported facts, makes improper argument that should be reserved for the Reply to the extent leave may be granted, and misrepresents the Parties’ conferral on [this] issue.” (Doc. 151 at 1.) Defendant adds that it “would not oppose the[ ] Motion for Reply in exchange for Plaintiffs extending the same benefit if Select chose to seek leave to file a sur[-]reply.” (Id. at 2-3.)
Upon consideration of the parties’ arguments and filings to date, it does not appear that a meaningful, good faith effort was made to confer before the Motion to Compel was filed. Local Rule 3.01(g) requires a movant to “confer with the opposing party in a good faith effort to resolve the motion.” M.D. Fla. R. 3.01(g). “The purpose of the rule is to require the parties to communicate and resolve certain types of disputes without court intervention.” Desai v. Tire Kingdom, Inc., 944 F. Supp. 876, 878 (M.D. Fla. 1996); see also Walker v. Corizon Health, Inc., No. 6:22-cv-1761-PGB-DAB, 2023 WL 422937, *1 (M.D. Fla. Jan. 26, 2023) (“The underlying spirit animating the Court's requirement that the parties confer in good faith prior to filing certain motions is the hope that the parties’ counsel will work amicably to resolve their clients differences and thereby, from time to time, obviate the unnecessary taxing of the Court's time and judicial resources.”). The rule has been construed to mean to “speak to each other in person or by telephone, in a good faith attempt to resolve disputed issues.” Davis v. Apfel, No. 6:98-cv-651-Orl-22A, 2000 WL 1658575, *2 n.1 (M.D. Fla. Aug. 14, 2000) (report and recommendation adopted Sept. 7, 2000).
For this reason alone, the Court can deny the Motion to Compel with prejudice. See Walker, 2023 WL 422937, at *1 (“While the Court agrees the Motion to Dismiss did not meaningfully comply with Local Rule 3.01(g) and that the Court could therefore deny the Motion to Dismiss with prejudice on such grounds, the Court believes such a drastic remedy would be too hasty at this juncture.”). While the Court will not deny the Motion to Compel with prejudice at this time, “[m]oving forward, the Court expects more cooperative behavior from all counsel involved in this dispute; counsel's duty to zealously advocate for one's client need not conflict with counsel's concomitant duties as officers of the Court.” Id.[1]
*4 Another reason to deny the Motion to Compel without prejudice at this juncture is the updated procedural posture of the case. While some of the parties’ arguments are premised on the fact that there were two pending motions before the Court at the time of filing—Plaintiffs’ Motion for Conditional Certification and Plaintiffs’ Motion for Leave of Court to File an Amended Complaint or in the Alternative Join a Nonparty—the Court has since granted, in part, Plaintiffs’ Motion for Conditional Certification and has terminated Plaintiffs’ Motion for Leave of Court to File an Amended Complaint or in the Alternative Join a Nonparty in light of Plaintiffs’ voluntary withdrawal of the same. (See Docs. 156, 159, 163.) As such, in light of the Court's recent rulings, some of the parties’ arguments are now moot.
Also, the Court will take this opportunity to encourage Plaintiffs to scrutinize both the wording and the scope of their First and Second Requests to Produce and First Set of Interrogatories, and make any necessary revisions thereto. (See, e.g., Doc. 147 at 11 n.16 (“The RTPs seem at least in part to be copied from a different case, as Plaintiffs refer to ‘you,’ ‘your’ and ‘yourself,’ to include ‘Verizon,’ which, of course, has nothing to do with this matter.”); id. at 14 (stating that 26 of the 28 categories of documents in Plaintiffs’ Second Request to Produce relate to a non-party).) Further, to the extent Plaintiffs’ revised discovery requests implicate private information concerning non-parties and/or HIPAA-protected documents, the parties may seek an agreed protective order regarding the disclosure of such information. Plaintiffs are also reminded that it is their burden to show that the requested information is within the scope of discovery as set forth in Rule 26(b), Fed.R.Civ.P.
Finally, any objections to production based on a privilege must be accompanied by a proper privilege log, which should not disclose the contents of any privileged matter, but must contain all necessary information to allow the Court to determine whether any expressly-stated, valid privilege(s) apply, such as the name, job title, and employer of the author of the document(s), or the person recording or transcribing the statement; the purpose for which the document was created and transmitted; the person(s) to whom the document is addressed; the name, job title, and employer of the person(s) who have received or seen a copy of the document; the relationship among the author, addressee, and any other recipient; the degree or confidentiality with which the document was treated at the time of its creation and transmission, and since; and any other facts relevant to the Court's determination.
Accordingly, it is ORDERED:
1. The Motion to Compel (Doc. 138) is DENIED without prejudice.
2. The Motion for Reply (Doc. 150) is DENIED.
3. An award of attorney's fees to either side is not appropriate at this time pursuant to Rule 37, Fed.R.Civ.P.
DONE AND ORDERED at Jacksonville, Florida, on March 15, 2023.
Footnotes
Considering the parties’ dealings to date, counsel may want to consider memorializing all important oral discussions in a follow-up email to prevent any unnecessary factual disputes regarding counsel's communications in the future. Counsel is cautioned, however, that the Court will not supervise their dealings and will hold both sides to the highest standard of professional conduct. Many disputes, including the present one, could be resolved or narrowed down without Court intervention.