Lorenzano v. Systems, Inc.
Lorenzano v. Systems, Inc.
2018 WL 3827635 (M.D. Fla. 2018)
January 24, 2018

Irick, Daniel C.,  United States Magistrate Judge

Failure to Produce
Cost Recovery
General Objections
Cooperation of counsel
Proportionality
Third Party Subpoena
Sanctions
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Summary
The court granted a motion to compel the defendant to provide email correspondence and product literature available on their website as ESI, finding it relevant and proportional to the needs of the case. The court also cautioned the third-party defendant to comply with local rules in the future.
Jeffrey LORENZANO, Plaintiff,
v.
SYSTEMS, INC., Defendant
Case No: 6:17-cv-422-Orl-37DCI
United States District Court, M.D. Florida, Orlando Division
Signed January 24, 2018

Counsel

Andrew F. Knopf, John Blaise Fischbach, Paul Knopf Bigger, Winter Park, FL, for Plaintiff.
Brian William Franklin, Heidi J. Livingston, Law Offices of Lorraine Lester, Lake Mary, FL, for Defendant.
Irick, Daniel C., United States Magistrate Judge

ORDER

*1 This cause comes before the Court for consideration without oral argument on the following motion:
MOTION: MOTION TO COMPEL DISCOVERY (Doc. 29)
FILED: December 6, 2017
THEREON it is ORDERED that the motion is GRANTED in part.
I. BACKGROUND
On March 8, 2017, Plaintiff filed a products liability complaint against Defendant/Third-Party Plaintiff Systems, Inc. (Systems), alleging that a dock leveler sold by Systems was defective and unreasonably dangerous. Doc. 1. On April 3, 2017, Systems filed a complaint against Third-Party Defendant Advantage Sales & Supply Co., Inc. (Advantage), a corporation that supplied several of the component parts for the dock leveler. Doc. 6. Systems alleged claims against Advantage for common law indemnity and contribution. Id.
On August 28, 2017, Advantage served Systems with Advantage's first request for production (the RTP). Docs. 29 at 2; 29-1. Systems responded on October 13, 2017, raising various objections. Docs. 29 at 3; 29-2. Unsatisfied with Systems’ responses, on October 16, 2017, Advantage sent Systems a “good faith” letter demanding that Systems withdraw its unsupported objections and provide complete responses to the RTP, lest Advantage move to compel. Docs. 29 at 4; 29-4. Systems promptly refused to withdraw its objections. Docs. 29 at 4; 29-5.
On December 6, 2017, almost two months after sending the “good faith” letter to Systems, Advantage filed a motion to compel (the Motion), asking the Court to compel Systems to provide the requested records. Doc. 29. Advantage argued that Systems’ objections were unsupported boilerplate objections and, further, that Advantage's requests were relevant and proportional to the needs of the case. Id. Advantage also asked the Court to require Systems to pay the reasonable expenses Advantage incurred in filing the Motion. Id. at 5.
On December 19, 2017, Systems filed its response (the Response) to the Motion. Doc. 36. Systems argued that the Motion should be dismissed because Advantage failed to comply with Local Rule 3.01(g). Id. In addition, Systems provided some post hoc reasons for its objections. Id. But Systems’ primary argument with respect to the merits appears to be that it fully complied with the RTP by performing a diligent search and providing Advantage with the documents that were responsive to the RTP. See id. Systems also argued that the Court “should impose sanctions for [Advantage's] flagrant discovery abuse.” Id. at 7.
II. DISCUSSION
As an initial matter, the Court notes that Advantage failed to comply with Local Rule 3.01(g).[1] See Local Rule 3.01(g); Doc. 18 at 5-6. Nevertheless, the Court will consider the Motion and rule on the merits in this instance. But Advantage is cautioned that any future failure to comply with Local Rule 3.01(g) may result in the Court summarily denying Advantage's motion and the imposition of sanctions. See Doc. 18 at 5-6.
District courts have broad discretion in handling discovery matters. See Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1188 (11th Cir. 2013). “Unless otherwise limited by court order, ... [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case .... Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). “The Federal Rules of Civil Procedure strongly favor full discovery whenever possible.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985).
*2 Here, the issue before the Court concerns Systems’ responses to requests for production numbers three through seven and thirteen through seventeen, which state as follows:
Request for Production No. 3: All email correspondence sent or received by Sarah Loomis in the past three (3) years that reference the following part numbers:
2101-0216
2101-0217
2101-0239
7953-0131
5811-0002
Response: Defendant objects that the request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the stated objections, see attached series of emails from Kris Gardner discussing Quicklink failures and proposed Corrective Action, and the attached email exchange with Greg Johnson regarding replacement of small Quicklinks.
Request for Production No. 4: All email correspondence sent or received by John Schlintz in the past three (3) years that reference the following part numbers:
2101-0216
2101-0217
2101-0239
7953-0131
5811-0002
Response: Defendant objects that the request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the stated objections, see attached series of emails from Kris Gardner discussing Quicklink failures and proposed Corrective Action, and the attached email exchange with Greg Johnson regarding replacement of small Quicklinks.
Request for Production No. 5: All email correspondence sent or received by Steve Miller in the past three (3) years that reference the following part numbers:
2101-0216
2101-0217
2101-0239
7953-0131
5811-0002
Response: Defendant objects that the request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the stated objections, see attached series of emails from Kris Gardner discussing Quicklink failures and proposed Corrective Action.
Request for Production No. 6: All email correspondence sent or received by Miguel Gonzalez in the past three (3) years that reference the following part numbers:
2101-0216
2101-0217
2101-0239
7953-0131
5811-0002
Response: Defendant objects that the request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the stated objections, see attached series of emails from Kris Gardner discussing Quicklink failures and proposed Corrective Action.
Request for Production No. 7: All email correspondence sent or received by Mark Lobel in the past three (3) years that reference the following part numbers:
2101-0216
2101-0217
2101-0239
7953-0131
5811-0002
Response: Defendant objects that the request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the stated objections, see attached series of emails from Kris Gardner discussing Quicklink failures and proposed Corrective Action.
Request for Production No. 13: All documents relating to the original design of the CentraAir Dock Leveler.
Response: Defendant objects that this request is vague, ambiguous, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the stated objections, see the Owner's/User's Manual, the Specification Sheet, “Pit Style Levelers” information and “Pit Detail” which contains the responsive information. Also, see the “Lowe's Dock Leveler Maintenance and Inspection” Power-Point slides. Defendant/Third Party Plaintiff further refers Third Party Defendant to the product literature for the dock leveler available on its website.
*3 Request for Production No. 14: All documents relating to any design changes to the CentraAir Dock Loader that occurred before the subject incident.
Response: Defendant objects that this request is vague, ambiguous, overly broad, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving said objections, Defendant/Third Party Plaintiff refers Third Party Defendant to the product literature for earlier versions of the CentraAir Dock Leveler available on its website which will contain the responsive information.
Request for Production No. 15: All documents relating to any design changes to the CentraAir Dock Leveler after the subject incident.
Response: Defendant objects that this request is vague, ambiguous, overly broad, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. The request specifically calls for evidence of subsequent remedial measures which is not admissible. Subject to and without waiving said objections, Defendant/Third Party Plaintiff refers Third Party Defendant to the product literature for earlier versions of the CentraAir Dock Leveler available on its website which will contain the responsive information.
Request for Production No. 16: All documents relating to any customer complaints or occurrences of warranty for the following part numbers:
2101-0216
2101-0217
2101-0239
7953-0131
5811-0002
Response: Defendant objects that this request is vague, ambiguous, overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving the stated objections, see attached series of emails from Kris Gardner discussing Quicklink failures and proposed Corrective Action and Plaintiff's injury, and the attached email exchange with Greg Johnson regarding replacement of small Quicklinks. See also, the warranty Memorandum dated September 23, 2016, previously produced.
Request for Production No. 17: All documents relating to the following warranty claims, as referenced in the email from Tim Wolfe to Mike Pilgrim on September 23, 2016, which was produced by Third-Party Plaintiff in response to Plaintiff's First Request for Production:
WC8087
WC53582
WC54167
WC54056
WC53934
WC53295
WC7129
WC8671
WC8512
Response: Defendant objects that this request is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.
Docs. 29 at 5-13; 29-2 at 5-10.[2]
Systems’ objections are the type of general, non-specific objections that are without merit in this Court.[3] Federal Rule of Civil Procedure 34(b)(2)(B) provides that a response to a request for production must “state with specificity the grounds for objecting to the request, including the reasons.” See, e.g., Asphalt Paving Sys., Inc. v. General Combustion Corp., No. 6:15-cv-49-Orl-41TBS, 2016 WL 3167712, at *2 (M.D. Fla. June 7, 2016) (“The Court does not consider frivolous, conclusory, general, or boilerplate objections.”); Siddiq v. Saudi Arabian Airlines Corp., No. 6:11-cv-69-Orl-19GJK, 2011 WL 6936485, at *3 (M.D. Fla. Dec. 7, 2011) (“Objections which state that a discovery request is ‘vague, overly broad, or unduly burdensome’ are, by themselves, meaningless, and are deemed without merit by this Court.”) (citations omitted); Middle District Discovery (2015) at 12 (“Objections to requests for production should be specific, not generalized .... Boilerplate objections such as ‘the request is overly broad, unduly burdensome, and outside the scope of permissible discovery’ are insufficient without a full, fair explanation particular to the facts of the case.”). Systems failed to state with specificity the grounds for objecting to the requests. Further, Systems’ argument that despite its objections it provided Advantage with all responsive documents is without import. Providing responsive documents subject to boilerplate objections where, as here, the producing party fails to clearly describe the limitation in its response, does nothing but muddy the waters as to what has been produced and what has been withheld. See Gardner v. Ford Motor Co., No. 6:14-cv-508-Orl-18DAB, 2015 WL 12838996, at *2 (M.D. Fla. Feb. 17, 2015) (overruling the plaintiff's general objections and stating that “to the extent [p]laintiff purports to object and then answer the Interrogatory/Request anyway ..., the objections serve only to obfuscate whether there is an actual document or answer being withheld”); Martin v. Zale Del., Inc., No. 8:08-cv-47-T-27EAJ, 2008 WL 5255555, at *2 (M.D. Fla. Dec. 15, 2008) (“Such an objection and answer preserves nothing and wastes the time and resources of the parties and the court. Further, this practice leaves the requesting party uncertain as to whether the opposing party has fully answered its request.”) (citations omitted); see also Siddiq, 2016 WL 6936485, at *3 (“[I]f a party objects to a discovery request, but then responds to the request without complying with the aforementioned rules allowing a clearly defined partial response, the party is deemed to have waived its objection.”). Finally, the Court will not rely on Systems’ post hoc justifications for it boilerplate objections. To the extent that Systems tried to raise specific objections in its Response, the Court finds that Systems waived these objections. See Moss v. GEICO Indem. Co., No. 5:10-cv-104-Oc-10TBS, 2012 WL 682450, at *3 (M.D. Fla. Mar. 2, 2012) (finding that the defendant waived its specific objection by raising the objection for the first time in its memorandum in opposition to the motion to compel). Accordingly, the Court finds that Systems’ objections are due to be overruled.[4]
*4 Regardless of the propriety of a responding party's objections, when the relevancy of a discovery request is not readily apparent, the propounding party bears the burden of demonstrating that its discovery request is relevant. See Moss, 2012 WL 682450, at *4 (“[W]hen relevancy is not apparent, the burden is on the party seeking discovery to show the relevancy of the discovery request.”) (citation omitted) (emphasis in original); Siddiq, 2016 WL 6936485, at *3 (“Even when a party fails to object with specificity and the court compels a response to a discovery request, the court's order should compel only what is reasonable under the circumstances); Suncast v. Techs., L.L.C. v. Patrician Prods., Inc., No. 07-80414-CIV, 2008 WL 179648, at *5 (S.D. Fla. Jan. 17, 2008) (“because the relevancy of the discovery request was not readily apparent, the party seeking the discovery ... had the burden to show the relevancy of the request.”) (citations omitted). Here, the Court finds that the discovery requests at issue are not irrelevant or overly broad on their face.
Lastly, Advantage asked the Court to award to Advantage, pursuant to Federal Rule of Civil Procedure 37(a)(5), “the reasonable expenses incurred in making the [M]otion.”[5] Doc. 29 at 5. The Court declines to do so. Rule 37(a)(5) provides that if a motion to compel is granted, then the court must require the party whose conduct necessitated the motion to pay the movant's reasonable expenses incurred in making the motion. See Fed. R. Civ. P. 37(a)(5)(A). However, the court must not order this payment if “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; ... or (iii) other circumstances make an award of expenses unjust.” See id.
Here, Advantage failed to attempt in good faith to obtain the discovery without court action. Local Rule 3.01(g) provides, in part, that before filing a motion to compel in a civil case, the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion. See L.R. 3.01(g). As the Court explained in its Case Management and Scheduling Order, the moving party must confer in person or by telephone. Doc. 18 at 5. But Advantage failed to do so; instead relying on an ultimatum in a letter sent almost two months before Advantage filed the Motion. Thus, the Court finds that Advantage did not attempt in good faith to obtain the discovery without court action. See id. (“The duty to confer is not satisfied by mere correspondence – particularly an exchange of ultimatums through e-mails, letters, or facsimiles.”). Regardless, even to the extent that Advantage could arguably be said to have attempted in good faith to obtain the discovery through its letter, the Court finds that Advantage's failure to attempt to obtain the discovery without court action during the approximately two month delay between sending the letter and filing the Motion renders the award of expenses unjust.
Accordingly, for the reasons stated above, it is ORDERED that:
1. The Motion (Doc. 29) is GRANTED to the extent it seeks to compel Systems to provide responses to Advantage's requests for production numbers three through seven and thirteen through seventeen;
*5 2. Systems’ objections to Advantage's requests for production numbers three through seven and thirteen through seventeen are OVERRULED and WAIVED except to the extent that Systems needs to assert privilege;
3. On or before February 2, 2018, Systems shall provide to Advantage complete responses to Advantage's requests for production numbers three through seven and thirteen through seventeen. Systems’ responses shall not be subject to any objections except to the extent that Systems needs to assert privilege;
4. Should Systems assert privilege with respect to any of its responses, Systems shall comply with the undersigned's standing order regarding privilege and provide a privilege log to Advantage on or before February 2, 2018. See Standing Order, No. 6:16-mc-48-Orl-DCI;[6]
5. The failure to completely respond to the foregoing discovery in the time provided may result in the imposition of sanctions, including, but not limited to, dismissal;
6. Advantage's Motion is DENIED in all other respects; and
7. Systems’ Response (Doc. 36) is DENIED to the extent it seeks reasonable expenses or sanctions.
DONE and ORDERED in Orlando, Florida on January 24, 2018.

Footnotes

See discussion infra 9-10.
The Court notes that Advantage duplicated the text from request number thirteen for request numbers fourteen and fifteen. Doc. 29 at 10-11. The Court used the correct text from Systems’ response to the RTP. Doc. 29-2 at 8-9.
The Court notes that Systems’ boilerplate objection that Advantage's requests were “not reasonably calculated to lead to the discovery of admissible evidence” appears to have been based upon an old version of Federal Rule of Civil Procedure 26. Rule 26 no longer requires that a discovery request be reasonably calculated to lead to the discovery of admissible evidence so long as the request otherwise falls within the scope of discovery. Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence to be discoverable.”).
To the extent that Systems’ objection that Advantage's “request specifically calls for evidence of subsequent remedial measures which is not admissible” could be considered a specific objection, the Court finds that this objection is without merit and due to be overruled regardless. The fact that a request for production calls for inadmissible evidence is not, in and of itself, a valid reason to deny discovery. See Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need not be admissible in evidence to be discoverable.”).
In its Response, Systems asked the Court to sanction Advantage for “flagrant discovery abuse.” Doc. 36 at 7. To the extent that Systems is requesting reasonable expenses pursuant to Rule 37(a)(5), Systems’ request is denied. As previously discussed, Advantage's Motion was substantially justified given Systems’ use of boilerplate objections. To the extent that Systems is seeking some other sanction against Advantage, the Court will not entertain a request for such a sanction buried within a response to a motion to compel. Should Systems feel that sanctions are justified, Systems may move for sanctions before the Court so that the issues can be properly briefed.
Available at http://www.flmd.uscourts.gov/judicialinfo/Orlando/JgIrick.htm