*1 This cause came on for consideration without oral argument on the following motion:

I. BACKGROUND

The procedural history of this case has been well-documented and need not be restated here, rather, the Court's order dismissing portions of Plaintiffs Classic Soft Trim, Inc. (“CST”) and Roadwire, LLC's Second Amended Complaint is incorporated herein by reference. Doc. No. 347. Currently, the claims against Defendant Ross Albert include a federal statutory claim for violation of the Computer Fraud & Abuse Act, 18 U.S.C. § 1030(g) and tort claims arising under state law. Doc. No. 104 at 20, 33, and 69.

On July 6, 2020, Albert filed a motion to dismiss the remaining claims against him, revoke Plaintiffs’ counsel Douglas Mahaffey's pro hac vice admission, and to strike Albert's recent deposition and certain “illegal” evidence (the “Motion”). Doc. No. 316. Albert argues Plaintiffs and their counsel violated Florida Statute § 934.03, the Florida Security of Communications Act (“FSCA”) when Aaron Forrister, CST's Chief Executive Officer, recorded the phone call Albert accidentally made to Dave Edmondson, a CST employee, instead of Dave Sheffler, an employee of Defendant Katzkin Leather, Inc. (“Katzkin”), on March 18, 2016, which Mahaffey then used to impeach Albert at his deposition. Id. Up to that point, Albert claims he was unaware his phone call to Edmonson had been recorded. Id. Albert argues that the recording was not disclosed during discovery in state court except for a reference to materials that could not be disclosed without a court order. Id. at 3-4. Albert claims that Plaintiffs then agreed to produce any recordings related to Albert to Katzkin pursuant to a Rule 34 request in this Court but failed to turn over this recording.[1] Id. at 4. Albert requests that the claims against him be dismissed for violation of Florida Statute § 934.03 and that Mahaffey's pro hac vice admission be revoked. Id. at 13, 18. Albert also wants the evidence barred from use. Id. at 19.

On July 20, 2020, Plaintiffs filed a response to the Motion (the “Response”). Doc. No. 329. Plaintiffs first argue that the admissibility of this evidence is controlled by federal law and federal law did not preclude the recording of Albert's call to Edmondson. Id. Plaintiffs also argue that the Florida statute does not protect Albert's claimed expectation of privacy when he called a victim from a public place. Id. at 3.

*2 Plaintiffs argue that the discovery abuse claims are without merit because Albert's state discovery requests are inapplicable and Plaintiffs were entitled to withhold the recording and use it for impeachment purposes under Rule 26(a)(1)(A)(ii).[2] Id. Plaintiffs also make the point that if Albert had not lied in his deposition, the use of the recording for impeachment purposes would not have been necessary. Id. Plaintiffs note that the content of the call is quoted verbatim in the Second Amended Complaint, and that Forrister testified at length about the contents of the call in his depositions. Id. Finally, Plaintiffs note that Albert and his counsel have failed to retract numerous false responses to interrogatories, Rule 34 responses, and deposition testimony based upon the recording. Id.

II. ANALYSIS.

The course of discovery in this case has been long and tortuous and need not be recounted here as it has been discussed in detail by this Court on several occasions. See, e.g., Doc. Nos. 366; 391 at 7-8. In this Motion, Albert asks this Court to impose the extreme sanction of dismissal upon Plaintiffs for both Forrister's initial recording of the phone call Albert placed to Edmondson and Mahaffey's use of the recording at Albert's deposition for impeachment purposes because the recording violated the FSCA. Doc. No. 316. Albert similarly requests this Court sanction Mahaffey with disqualification for both using the recording to impeach Albert's deposition testimony and not disclosing the recording earlier. Albert does not claim that Forrister or Mahaffey violated federal law, nor does he claim that the recording has been used for anything other than impeaching Albert at his deposition.

The Court must first determine the governing law applicable to the Motion.[3] Determining whether a violation of state law occurred is only necessary if state law applies to the admissibility of the recording in this federal proceeding. “It is well established that if evidence is admissible under federal law, a more restrictive state law will not affect the admissibility of such evidence in federal court.” Frank v. Bloomcraft, Inc., No. 89 civ 5349, 1990 U.S. Dist. LEXIS 4695, at *4 (S.D.N.Y. Apr. 19, 1990) (internal citations omitted) (discussing applicability of Fla. Stat. 934.04). The admissibility of evidence is governed by federal law, even in diversity cases. Garcia v. GEICO Gen. Ins. Co., 807 F.3d 1228, 1232 (11th Cir. 2015) (in diversity cases the admissibility of evidence in federal courts is governed by federal law); Borden, Inc. v. Florida E. C.R. Co., 772 F.2d 750, 754 (11th Cir. 1985) (while Florida provides substantive law, the admissibility of evidence in federal court is governed by federal law).[4] Plaintiffs invoked federal question jurisdiction in their Second Amended Complaint and a federal claim remains pending against Albert. As such, the Court need not determine whether a violation of state law occurred.

*3 Next, the Court must determine whether the recording violated federal law. On March 18, 2016, Albert attempted to call Sheffler but mistakenly called Edmondson. Doc. No. 316-1. Edmondson handed his phone to Forrister, who was with him at the time. Id. at 4-6. During the call, Albert provided detailed information in a monologue fashion referencing and recounting Katzkin and Albert's plans to allegedly steal employees and business from CST. Id.; Doc. No. 329. Forrister began recording Albert's statements after Edmondson handed his phone to Forrister. Id. at 11; Doc. No. 316-1 at 1. The Court finds that the recording, which was made with consent from one party to the conversation, and was not recorded for a criminal purpose, did not violate the applicable federal statute. 18 U.S.C. § 2511. Therefore, the recording does not violate federal law.

The Court must then consider if sanctions are appropriate based on Plaintiffs’ alleged discovery violations. The contents of the recording were detailed in the factual allegations of the Second Amended Complaint and Forrister testified about the contents of the call during his depositions. Doc. Nos. 104; 316-1 at 4-6; 329. However, the recording itself was not disclosed in this proceeding until Mahaffey used the recording to impeach Albert's deposition testimony on June 23, 2020. Doc. Nos. 316-1; 329. Albert claims that Plaintiffs’ failure to disclose the recording in response to discovery propounded in state court, Plaintiffs’ failure to disclose the recording under Rule 26 in their initial disclosures, and Plaintiffs’ failure to disclose the recording to Katzkin pursuant to its Rule 34 requests for production should subject Plaintiffs and Mahaffey to sanctions.

Discovery requests filed in state court become unenforceable upon removal. Dririte USA, Inc. v. Liberty Mut. Ins. Co., No. 6:19-cv-1390, 2019 U.S. Dist. LEXIS 128777, at *2 (M.D. Fla. July 30, 2019); see Wilson v. Gen. Tavern Corp., No. 05-81128, 2006 U.S. Dist. LEXIS 7742, at *3 (S.D. Fla. Feb. 2, 2006) (“Discovery served in state court becomes null and ineffective upon removal.”) Rule 26(a)(1)(A) exempts evidence used solely for impeachment from the initial disclosure obligation, and Rule 26(a)(3)(A) makes the same exemption for pretrial disclosures.” Clingman & Hanger Mgmt. Assocs., LLC, No. 16-62028-civ, 2018 U.S. Dist. LEXIS 67030, at *3-4 (S.D. Fla. Apr. 19, 2018) (citing Fed. R. Civ. P. 26(a)(1)(A), (3)(A)); Bearint ex rel. Bearint v. Dorell Juvenile, 389 F.3d 1339, 1353 (11th Cir. 2004) (“Rule 26(a)(3) exempts evidence used solely for impeachment because pretrial disclosure would significantly diminish its impeachment value.”) (internal citation omitted)).

Plaintiffs maintain that the recording was to be used as impeachment evidence only and therefore they were not required to disclose it under Rule 26. Doc. No. 329 at 3, 17. Plaintiffs did not disclose the recording until it became necessary to use it for impeachment purposes. Id. at 3-4, 17. Plaintiffs responded to Katzkin's Rule 34 request to produce and objected to the subject request highlighted by Albert. Id. at 17.

The Court declines to sanction Plaintiffs for failing to disclose the recording before counsel used it to impeach Albert's testimony. The state discovery ceased to be enforceable upon removal, and the recording did not have to be disclosed under Rule 26 when it was only being used for impeachment purposes. Additionally, the Rule 34 request was not made by Albert, and Plaintiffs had no obligation to produce the recording to Albert based on Katzkin's request. As a practical matter, Albert lacks standing to challenge any deficiencies in Plaintiffs’ objections and responses provided to Katzkin. Finally, the Court fails to see how Plaintiffs’ failure to disclose Albert's own statements to him is in any way prejudicial. Thus, the Court finds that sanctions are inappropriate both as to Plaintiffs and to Mahaffey.

*4 Accordingly, it is ORDERED that the Motion (Doc. No. 316) is DENIED.

DONE and ORDERED in Orlando, Florida on December 2, 2020.