Goines v. Lee Memorial Health System et al

Filing 76

ORDER granting 67 Plaintiff's Time-Sensitive Motion for Leave to Take Additional Depositions; granting in part and denying in part 70 Plaintiff's Motion to Compel and for Sanctions; denying 75 Plaintiff's Unopposed Time-Sensit ive Motion Seeking Leave to File a Memorandum in Reply to Defendant's Response in Opposition to Plaintiff's Motion to Compel and Certificate of Good Faith. See Order for details. Signed by Magistrate Judge Carol Mirando on 9/14/2018. (DRS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.

Case No: 2:17-cv-656-FtM-29CM

LEE MEMORIAL HEALTH
SYSTEM d/b/a CAPE CORAL
HOSPITAL and JEOVANNI
HECHAVARRIA,
Defendants.
ORDER
This matter comes before the Court upon review of Plaintiff’s Time-Sensitive
Motion for Leave to Take Additional Depositions (“Motion for Additional
Depositions”) and Plaintiff’s Motion to Compel and for Sanctions (“Motion to
Compel”), as well as Defendant Lee Memorial Hospital System’s (“Lee Memorial”)
responses in opposition.1 Docs. 67, 70, 73, 74. For the reasons stated herein, the
Motion for Additional Depositions will be granted, and the Motion to Compel will be
granted in part and denied in part.

On September 12, 2018, Plaintiff filed an Unopposed Time-Sensitive Motion Seeking
Leave to File a Memorandum in Reply to Defendant’s Response in Opposition to Plaintiff’s
Motion to Compel and Certificate of Good Faith. Doc. 75. As the Court finds the reply brief
would not benefit the Court’s resolution of the Motion to Compel, the motion will be denied.
See Schumann v. Collier Anesthesia, P.A., No. 2:12-cv-347-FtM-29CM, 2014 WL 1230644, at
*4 n.3 (M.D. Fla. Mar. 25, 2014) (denying leave to file a reply brief where such brief would
not aid the Court’s resolution of the underlying motion).
1

I.

Background

On November 30, 2017, this case was removed from the Circuit Court for the
Twentieth Judicial Circuit in and for Lee County, Florida. Doc. 1. On April 25,
2018, Plaintiff filed an Amended Complaint against Defendants Lee Memorial and
Jeovanni Hechavarria, alleging 42 U.S.C. § 1983 violations and claims for negligent
hiring, supervision and retention; negligence; and assault and battery.

Doc. 31.

Plaintiff alleges that Mr. Hechavarria, a nurse employed by Lee Memorial, sexually
assaulted her while she was a patient at Cape Coral Hospital in July 2016.2 Id. ¶¶
7-11, 17. Plaintiff claims another female patient at Cape Coral Hospital3 filed a
police report and informed Lee Memorial staff and management in March 2015 that
she had been sexually assaulted by Mr. Hechavarria, but Lee Memorial did not take
effective action or implement appropriate policies and procedures as Mr.
Hechavarria’s employer to oversee or restrain his conduct; namely, Lee Memorial did
not properly investigate him, discipline him, terminate him, require additional
training or supervision of him, or limit his access to female patients’ hospital rooms.

Id. ¶¶ 12-14, 16, 28-29. Plaintiff seeks monetary damages, interest and costs from
Lee Memorial and Mr. Hechavarria given Plaintiff’s mental pain and suffering, loss
of capacity, disability and physical impairment, and medical expenses. Id. ¶ 67.
The original Case Management and Scheduling Order set the discovery
deadline for August 31, 2018, the dispositive motions deadline for October 15, 2018,

2
3

1.

Lee Memorial operates Cape Coral Hospital. See Doc. 31 ¶ 6; Doc. 33 ¶ 6.
This individual has since been identified as Brianna Hammer. See, e.g., Doc. 67 at

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and the trial term for March 4, 2019. Doc. 25. On May 18, 2018, upon the parties’
joint motion, the Court entered an Order extending the deadline for the parties to
disclose expert witness reports, and on July 9, 2018, upon another joint motion, the
Court entered an Order and Amended Case Management and Scheduling Order
extending the discovery deadline to September 21, 2018, the dispositive motion
deadline to November 5, 2018, and the trial term to April 1, 2019. Docs. 38, 54, 55.
On August 30, 2018, the Court granted in part and denied in part Lee Memorial’s
motion to extend the discovery deadline and its expert disclosure deadline. Doc. 71.
The Court extended the expert disclosure deadline and kept the discovery deadline
as September 21, 2018, but gave the parties until October 12, 2018 to complete expert
depositions.

Id.

In the present motions, Plaintiff seeks leave to depose two

additional fact witnesses and seeks to compel discovery responsive to three requests
for production. Docs. 67, 70. The motions will be addressed in turn.
II.

Discussion

a. Plaintiff’s Motion for Additional Depositions
Plaintiff has taken ten depositions in this case and seeks to depose two
additional fact witnesses: Mr. Hechavarria’s supervisor, Maggie Lightner, and the
head of security at the time of Ms. Hammer’s alleged sexual assault, Steve Lucas.
Doc. 67 at 1-2. Plaintiff sought to obtain Lee Memorial’s consent to exceed the tendeposition limit imposed by Rule 30 of the Federal Rules of Civil Procedure, but Lee
Memorial “has refused to stipulate to even one single deposition beyond Rule 30’s
default limit of ten.” Id. at 2-3. Therefore, Plaintiff filed the present Motion for

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Additional Depositions on August 22, 2018, seeking leave to depose Ms. Lightner and
Mr. Lucas. See generally id. Lee Memorial responded in opposition on September
5, 2018. Doc. 73. Although Mr. Hechavarria indicated he opposes Plaintiff’s Motion
for Additional Depositions, he did not file a response in opposition, and the time to do
so has expired.

See Doc. 67 at 6.

The matter is ripe for review, and upon

consideration of the parties’ briefs and the law, the Motion for Additional Depositions
will be granted.4
Rule 30 requires a party to obtain leave of court to take more than ten (10)
depositions, and the Court must grant such leave to the extent consistent with Rule
26(b)(1) and (2). Fed. R. Civ. P. 30(a)(2). Rule 26(b)(1) defines the scope of discovery
as follows:
Parties 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, considering the importance of the issues at stake in the
action, the amount in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1). Rule 26(b)(2) notes the court may alter the limit on the
number of depositions and requires the court limit the frequency or extent of
discovery where:

The Court notes Plaintiff’s Motion for Additional Depositions also requested
extension of the discovery deadline solely so Plaintiff could depose Lee Memorial’s expert
witnesses. Doc. 67 at 6. Since the filing of the present motion, however, the Court entered
an Order giving the parties up to and including October 12, 2018 to complete expert
depositions. Doc. 71. Therefore, that request is moot. The Court also notes Lee Memorial
has no objection to Plaintiff deposing its experts. Doc. 73 at 7.
4

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(i) the discovery sought is unreasonably cumulative or duplicative, or
can be obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule
26(b)(1).
Fed. R. Civ. P. 26(b)(2)(A), (C). Courts in this district generally require the moving
party to “justify the necessity of the depositions already taken in the case” and make
a particularized showing of why the additional depositions are necessary. See Jones-

Walton v. Villas at Lake Eve Condominium Assoc., Inc., No. 6:15-cv-995-Orl-22TBS,
2017 WL 1653735, at *2 (M.D. Fla. May 2, 2017) (internal quotation marks omitted)
(citing F.D.I.C. v. Nason Yeager Gerson White & Lioce, P.A., No. 2:13-cv-208-FtM38CM, 2014 WL 1047245, at *2 (M.D. Fla. Mar. 17, 2014)); Tardif v. People for the

Ethical Treatment of Animals, No. 2:09-cv-537-FtM-29SPC, 2011 WL 2413630, at *1
(M.D. Fla. June 13, 2011); Safeco Ins. Co. of Am. v. City of Jacksonville, No. 3:08-cv338-J-25JRK, 2011 WL 13176635, at *2 (M.D. Fla. Apr. 20, 2011).
Here, Plaintiff asserts the ten (10) depositions taken so far in this case were
necessary because this case deals with the sexual assaults of three different patients
at Cape Coral Hospital over a period of more than a year, and Plaintiff has raised
multiple claims, including constitutional violations and various torts, that required
multiple corporate representatives and fact witnesses to address.

Doc. 67 at 2.

This showing is sufficient to justify the previous depositions taken. For the reasons

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stated below, Plaintiff has also sufficiently shown why the additional depositions of
Ms. Lightner and Mr. Lucas are necessary.
i. Maggie Lightner
Plaintiff seeks to depose Ms. Lightner, the former Nurse Director and
supervisor of Mr. Hechavarria. Doc. 67 at 1; see also Doc. 73 at 2. Plaintiff argues
Ms. Lightner was aware of the alleged sexual assault against Ms. Hammer but failed
to discipline Mr. Hechavarria. Doc. 67 at 1. Plaintiff avers Ms. Lightner had a
meeting with Kelly Lange, a Lee Memorial Employee Relations Consultant,
regarding the alleged sexual assault against Ms. Hammer, and Ms. Lange suggested
moving Mr. Hechavarria to the day shift for monitoring and documenting the assault
in Mr. Hechavarria’s personnel record. Id. at 5 (citing Doc. 67-1 at 1). Plaintiff
asserts Mr. Hechavarria was not moved to the day shift, however, and the sexual
assault allegation was not documented on his personnel file; he allegedly sexually
assaulted two additional patients after that. Id. Therefore, Plaintiff argues she
needs to depose Ms. Lightner to determine why she decided to take no corrective
action and why she did not note the sexual assault allegation on Mr. Hechavarria’s
personnel file. Id.
The Court finds Plaintiff has made a sufficient showing to justify the need to
take Ms. Lightner’s deposition. Lee Memorial’s arguments against permitting the
deposition are unavailing. Lee Memorial claims multiple deponents testified that
Plaintiff was not disciplined because the police and risk management investigations
concluded Ms. Hammer fabricated her allegations, and thus there was no basis to

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discipline him or take any other action.

Id. at 2 (citing Doc. 73-1 at 2).

Lee

Memorial also asserts that during Ms. Lange’s deposition, she “explained in great
detail that she spoke to Maggie Lightner regarding Ms. Hammer’s unsubstantiated
allegations” and “detailed the conversation [Ms. Lange and Ms. Lightner] had
regarding Ms. Lightner’s decision” not to change Mr. Hechavarria’s shift or take any
other disciplinary actions. Id. at 2-3. Therefore, Lee Memorial argues that Ms.
Lightner’s testimony addressing why Mr. Hechavarria was not disciplined following
the allegation made by Ms. Hammer would be cumulative and duplicative of prior
testimony. See Doc. 73 at 2-3, 5.
A review of the cited deposition transcripts demonstrate, however, that
decisions to implement a corrective action plan or fire an employee are “the leader’s
decision at all times”—in other words, the leader “is the ultimate decision-maker
regarding their employees,” while human resources employees merely provide
guidance. Doc. 73-2 at 2-3; Doc. 73-3 at 2-5. Accordingly, Ms. Lange indicated Ms.
Lightner, as Mr. Hechavarria’s leader, was responsible for determining whether to
move Mr. Hechavarria to day shifts following Ms. Lange’s suggestion, and Ms. Lange
was unable to answer questions integral to that decision. Doc. 73-2 at 7; see Doc. 73
at 5. When asked if there is less supervision at night in the nursing department,
Ms. Lange was unable to answer because she did not recall the nursing department’s
situation at that time. Id. at 9. When asked about the concerns addressed during
Ms. Lange’s discussion with Ms. Lightner about Ms. Hammer’s allegations against
Mr. Hechavarria, Ms. Lange said she did not recall the conversation aside from what

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she had in her notes. Id. at 14-16. She also indicated she never spoke to the night
supervisor, and she was not aware of whether Ms. Lightner felt Mr. Hechavarria was
not being sufficiently supervised during night shifts. Id. at 16-17.
Therefore, as Mr. Hechavarria’s leader and the ultimate decision-maker in
determining how to handle the sexual assault allegation against him, Ms. Lightner
would certainly have independent knowledge and perspectives as to why she chose
not to move him to the day shift, document the allegation in Mr. Hechavarria’s
personnel file, or otherwise act with regard to the allegation. Indeed, Lee Memorial
suggested in its Motion to Compel that Ms. Lightner, as Mr. Hechavarria’s leader, is
the sole “individual who ‘caused’ the alleged negligent supervision” of Mr.
Hechavarria. Doc. 74 at 7. The Court finds Plaintiff made a particularized showing
that the additional deposition of Ms. Lightner is necessary, and permitting such
deposition is consistent with Rule 26(b).

See Safeco Ins. Co. of Am., 2011 WL

13176635, at *3-4.
ii. Steve Lucas
Plaintiff also seeks to depose Mr. Lucas, who served as Director of Security at
the time of Ms. Hammer’s alleged sexual assault. Doc. 67 at 1-2. Plaintiff argues
Mr. Lucas was aware of Ms. Hammer’s allegation against Mr. Hechavarria. Id. at
5. Plaintiff asserts she needs to depose Mr. Lucas to determine why the security
department took no action with respect to Mr. Hechavarria.

Id. at 6. Plaintiff

indicates she has only deposed one security officer for Cape Coral Hospital. Id. at 5.
Given Mr. Lucas’ role as the leader and decision-maker for the security department,

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the Court finds Plaintiff has made a sufficient showing to justify the need to take Mr.
Lucas’ deposition.
Lee Memorial focuses its opposition on the facts that Plaintiff already deposed
Robert Sherwood, the Lead Security Officer who responded to Ms. Hammer’s call and
prepared the Security Incident Report regarding Ms. Hammer’s allegations; Plaintiff
deposed multiple people who explained why Mr. Hechavarria was not disciplined; and
Mr. Lucas or the security department could not have disciplined Mr. Hechavarria.
Doc. 73 at 3, 5-6. None of these points directly address Plaintiff’s purpose for seeking
to depose Mr. Lucas. Plaintiff does not suggest she wants to depose Mr. Lucas for
his account of Ms. Hammer’s allegations or his explanation of why Mr. Hechavarria
was not disciplined—Plaintiff indicates she wants to depose the head of the security
department as to why no action was taken with respect to Mr. Hechavarria,
presumably from a security standpoint as opposed to a human resources standpoint.

See Doc. 67 at 6. Therefore, the Court finds Plaintiff made a particularized showing
that the additional deposition of Mr. Lucas is necessary, and permitting such
deposition is consistent with Rule 26(b).

See Safeco Ins. Co. of Am., 2011 WL

13176635, at *3-4; Sears v. Carrier Corp., No. 3:07-cv-5-J-25JRK, 2008 WL 11334916,
at *5 (M.D. Fla. July 15, 2008).
As the discovery deadline is a mere week away, the Court finds good cause to
permit the depositions of Ms. Lightner and Mr. Lucas outside the discovery deadline.
The parties shall have up to and including October 12, 2018 to complete the
depositions of Ms. Lightner and Mr. Lucas.

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b. Plaintiff’s Motion to Compel
On July 16, 2018, Plaintiff served its Second Request for Production on Lee
Memorial, which included three requests seeking risk management, human resources
and disciplinary action records regarding all allegations of sexual assault against Lee
Memorial employees from 2006 to 2016. Doc. 70 at 3; Doc. 70-1. On August 15,
2018, Lee Memorial responded to the Second Request for Production, objecting to the
three requests. Doc. 70 at 3; Doc. 70-2. On August 29, 2018, Plaintiff filed the
present motion seeking to compel Lee Memorial’s production of documents in
response to the specified three requests. See generally Doc. 70. The matter is ripe
for review, and upon consideration of the parties’ briefs and the law, the Motion to
Compel will be granted in part and denied in part.
Rule 34 of the Federal Rules of Civil Procedure sets forth the procedures for
obtaining access to documents and things within the control of the opposing party.
Fed. R. Civ. P. 34. Rule 34(a) allows a party to serve on any other party a request
within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). Rule 26(b) permits discovery:
regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in
controversy, the parties’ relative access to relevant information, the
parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this scope of discovery
need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1).

A request for production must state “with reasonable

particularity each item or category of items to be inspected.”

Fed. R. Civ. P.

34(b)(1)(A). The party to whom the request is directed must respond within thirty

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days after being served, and “[f]or each item or category, the response must . . . state
with specificity the grounds for objecting to the request, including the reasons.” Fed.
R. Civ. P. 34(b)(2). The decision to compel discovery is within the discretion of the
trial court. See Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir.
1984).
Plaintiff seeks to compel Lee Memorial’s responses to its Requests Nos. 1, 2
and 3:
1. Any and all Risk Management reports and/or records, including
investigative materials, for all allegations of sexual assault
perpetrated by an employee of [Lee Memorial] from 2006 - 2016. . . .
RESPONSE: OBJECTION. [Lee Memorial] objects to this request as
it is overly broad and seeks information that is not reasonably related
to the claims or defenses of any party to this lawsuit. In this regard,
allegations of sexual assault against other employees, if any, and/or that
were unfounded are not relevant or likely to lead to any relevant
evidence. The request is overly broad in that it requests documents for
a ten year time period at all facilities owned by [Lee Memorial]. In
order to obtain this information, [Lee Memorial] would have to search
its current data bases, and archived materials, and then locate all
reports and records regarding any allegations against other employees.
To do so would take dozens of hours and involve reviewing thousands of
files to determine whether there are any responsive documents. As
such, the burden to obtain this information substantially outweighs any
potential benefit. Additionally, [Lee Memorial] objects to this request
as overly broad in scope as it requests records from 2006 to 2016, which
far exceeds the time period relevant to this lawsuit; is not limited to
Cape Coral Hospital, which is the facility at issue in this case; and is not
limited to the position of RN, which is the position held by Mr.
Hechavarria.
2. Any and all Human Resources reports and/or records, including
investigative materials, for all allegations of sexual assault
perpetrated by an employee of [Lee Memorial] from 2006 - 2016. . . .
RESPONSE: OBJECTION. [Lee Memorial] objects to this request as
it is overly broad and seeks information that is not reasonably related

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to the claims or defenses of any party to this lawsuit. In this regard,
allegations of sexual assault against other employees, if any, and/or that
were unfounded are not relevant or likely to lead to any relevant
evidence. The request is overly broad in that it requests documents for
a ten year time period at all facilities owned by [Lee Memorial]. In
order to obtain this information, [Lee Memorial] would have to search
its current data bases, and archived materials, to identified [sic] any
allegations of sexual assault by an employee, and then search the
human resources files and databases to locate all reports and records
regarding these allegations. To do so would take dozens of hours and
involve reviewing thousands of files to determine whether there are any
responsive documents. As such, the burden to obtain this information
substantially outweighs any potential benefit. Additionally, [Lee
Memorial] objects to this request as overly broad in scope as it requests
records from 2006 to 2016, which far exceeds the time period relevant to
this lawsuit; is not limited to Cape Coral Hospital, which is the facility
at issue in this case; and is not limited to employees who were RNs,
which is the position held by Mr. Hechavarria.
3. Any and all records relating to the disciplinary action taken, if any,
against employees alleged to have committed a sexual assault at [Lee
Memorial] from 2006 - 2016. This request includes all corrective
action plans and termination letters. . . .
RESPONSE: OBJECTION. [Lee Memorial] objects to this request as
it is overly broad and seeks information that is not reasonably related
to the claims or defenses of any party to this lawsuit. In this regard,
allegations of sexual assault against other employees, if any, and/or that
were unfounded are not relevant or likely to lead to any relevant
evidence. The request is overly broad in that it requests documents for
a ten year time period at all facilities owned by [Lee Memorial]. In
order to obtain this information, [Lee Memorial] would have to search
its current data bases, and archived materials, to identified [sic] any
allegations of sexual assault by an employee, and then search the
human resources files and databases to locate all reports and records
regarding these allegations. To do so would take dozens of hours and
involve reviewing thousands of files to determine whether there are any
responsive documents. As such, the burden to obtain this information
substantially outweighs any potential benefit. Additionally, [Lee
Memorial] objects to this request as overly broad in scope as it requests
records from 2006 to 2016, which far exceeds the time period relevant to
this lawsuit; is not limited to Cape Coral Hospital, which is the facility
at issue in this case; and is not limited to employees who were RNs,
which is the position held by Mr. Hechavarria.

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Doc. 70-1 at 1-2; Doc. 70-2 at 1-4.
Plaintiff argues Lee Memorial’s relevance objections are conclusory and
inappropriate given that the requests are related to Plaintiff’s claims for negligent
supervision and the violation of constitutional rights. See Doc. 70 at 5-6. Plaintiff
claims “the evidence in the case clearly establishes that oversight, policies,
procedures, rules, and regulations are system-wide” at Lee Memorial, and thus
Plaintiff contends she needs the requested documents to establish whether Lee
Memorial had a pattern, custom or practice of improperly investigating and
responding to sexual assault allegations against employees on a system-wide basis.

Id. at 6-9. Lee Memorial responds that discovery involving system-wide policy issues
or allegations of sexual assault against other employees is irrelevant to Plaintiff’s
claims because Plaintiff only pled negligent supervision of, and application of policies
to, Mr. Hechavarria. Doc. 74 at 3-7.
Lee Memorial’s relevance objections are overruled.

To establish liability

against an entity under 42 U.S.C. § 1983, a plaintiff must establish her constitutional
rights were violated through the execution of the governmental entity’s policy or
custom, even if such policy or custom “has not received formal approval through the
body’s official decisionmaking channels.” Monell v. Dep’t of Soc. Srvs. of City of N.Y.,
436 U.S. 658, 690, 694 (1978); see also Schele v. Porter Mem’l Hosp., 198 F. Supp. 2d
979, 991-93 (N.D. Ind. 2001) (applying § 1983 to county-owned hospital).

The

Supreme Court has held that a governmental entity’s failure to train its employees is

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actionable under § 1983 only where it evidences a “deliberate indifference” to
individuals’ rights. See City of Canton v. Harris, 489 U.S. 378, 389 (1989).
Here, Plaintiff’s Amended Complaint includes a § 1983 claim alleging Lee
Memorial “evidenced deliberate indifference to Plaintiff by its policy of failing to
supervise [Mr. Hechavarria] and through its policy of not making reasonable
investigations into complaints reported by other patients regarding sexual abuse and
sexual assault committed by [Mr. Hechavarria].”

Doc. 31 ¶ 26.

The claim

repeatedly references Lee Memorial’s policies, customs or practices of inadequate
supervision and improper investigation of sexual assault complaints that resulted in
the deprivation of Plaintiff’s constitutional rights. See Doc. 31 ¶¶ 24-36. Thus,
discovery related to risk management reports, human resources reports and records
of disciplinary actions for any employees alleged to have committed sexual assault at
Lee Memorial are relevant to determining whether Lee Memorial has a policy or
custom of failing to properly supervise or investigate employees accused of
committing sexual assault.

Therefore, the subjects of the discovery requests are

relevant and necessary for Plaintiff to establish her § 1983 claims.
The scope of Plaintiff’s request, however, is overbroad. Plaintiff asserts Lee
Memorial’s objections regarding the scope of the requests are insufficient under Rule
34(b)(2)(B) because they provide no factual support for the claim that obtaining the
requested documents would take “dozens of hours.” Doc. 70 at 6-9. In response,
Lee Memorial explains the labor-intensive process for searching its human resources
and risk management databases in light of the ten-year period of time the requests

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cover, including having to search an archival database for risk management records
prior to 2010. Doc. 74 at 8-9. Lee Memorial suggests various limitations, including
setting the temporal limitation for the duration of Mr. Hechavarria’s employment,5
limiting the request to Cape Coral Hospital and limiting the inquiry to sexual assault
allegations made against individuals who reported to Plaintiff’s supervisor, Ms.
Lightner. Id. at 6-7. The Court finds limitation of the temporal scope appropriate,
but not to the extent suggested by Lee Memorial. Weighing the relevance of the
discovery against the burden imposed on Lee Memorial, the requests will be limited
to the time period of 2012 to 2016. Five years of records should be sufficient for
Plaintiff to establish the alleged policies or customs, and the limitation will reduce
the burden on Lee Memorial, especially given that Lee Memorial will not need to
access or search its pre-2010 risk management database. See id. at 9. Given the
centralized nature of Lee Memorial’s administrative departments and the allegations
of Lee Memorial’s system-wide policies and customs, however, it is not necessary or
appropriate to limit the discovery responses to Cape Coral Hospital or to individuals
who report to Ms. Lightner.6

Lee Memorial indicates Mr. Hechavarria worked at Cape Coral Hospital from 2014
to 2016. Doc. 74 at 6.
5

Although the Motion to Compel is granted in part, the Court finds Lee Memorial’s
position substantially justified such that Plaintiff’s request for attorney’s fees will be denied.
See Fed. R. Civ. P. 37(a)(5)(A)(ii).
6

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c. Compliance with the Local Rules
Lee Memorial argues Plaintiff’s Motion to Compel should be denied for failure
to comply with Local Rules 3.04(a) and 3.01(g). First, Local Rule 3.04(a) requires a
motion to compel to:
include quotation in full of each . . . request for production to which the
motion is addressed; each of which shall be followed immediately by
quotation in full of the objection and grounds therefor as stated by the
opposing party; or the answer or response which is asserted to be
insufficient, immediately followed by a statement of the reason the
motion should be granted.
M.D. Fla. R. 3.04(a). Lee Memorial argues Plaintiff’s Motion to Compel does not
comply with Local Rule 3.04(a) because although Plaintiff quotes the requests and
responses in succession, she fails to provide a statement as to why the motion should
be granted immediately following each individual request for production; “[r]ather,
Plaintiff’s statements regarding the requests at issue are lumped together, leaving it
to [Lee Memorial] and this Court to ascertain the bases of her [Motion to Compel].”
Doc. 74 at 2-3. The Court disagrees. Because the same arguments—and, as Lee
Memorial’s responses demonstrate, the same objections—apply to all three requests,
the Court finds Plaintiff’s Motion to Compel substantially complies with Local Rule
3.04(a).
Second, Local Rule 3.01(g) requires that each motion filed in a civil case, with
certain enumerated exceptions not at issue here, “stat[e] whether counsel agree on
the resolution of the motion,” and further provides that a statement to the effect that
counsel for the moving party attempted to confer with counsel for the opposing party
but counsel was unavailable is “insufficient to satisfy the parties’ obligation to

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confer.”

M.D. Fla. R. 3.01(g).

Local Rule 3.01(g) expects parties to confer with

unrepresented parties as they would counsel. See Rigley v. Livingston Fin. LLC, No.
6:12-cv-617, 2012 WL 12915480, at *1 (M.D. Fla. Dec. 4, 2012). As Lee Memorial
points out, the original Case Management and Scheduling Order defines the term
“confer” to require “a substantive conversation in person or by telephone in a good
faith effort to resolve the motion without court action, and does not envision an
exchange of ultimatums by fax or letter.” Doc. 74 at 2; Doc. 25 at 3 (emphasis in
original). Further, the Court previously denied motions Plaintiff filed for failure to
comply with Local Rule 3.01(g). See Doc. 35.
The parties’ counsel dispute the extent to which they conferred prior to
Plaintiff filing the Motion to Compel. See Doc. 74 at 1-2; Doc. 75 at 1-2. In the
interests of judicial efficiency and deciding the present motions on the merits, the
Court does not find it necessary to resolve counsel’s he-said-she-said discrepancy.
The Court cannot overstate, however, the importance of Local Rule 3.01(g) in
preserving judicial economy, as it fosters communication between the parties and
helps resolve disputes without court intervention.

Therefore, from this point

forward, all parties are advised they must certify in any future motions that they
conferred through engaging in clear, substantive discussions involving all issues
raised in the motion in person or by telephone in a good faith effort to resolve any
issues raised prior to motion practice. Failure to comply with the Local Rules and
this Order could result in sanctions.

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ACCORDINGLY, it is
ORDERED:
1.

Plaintiff's Time-Sensitive Motion for Leave to Take Additional

Depositions (Doc. 67) is GRANTED.

The parties shall have up to and including

October 12, 2018 to complete the depositions of Maggie Lightner and Steve Lucas.
2.

Plaintiff’s Motion to Compel and for Sanctions (Doc. 70) is GRANTED

in part and DENIED in part.

Lee Memorial shall have up to and including

September 28, 2018 to produce the following:
a. Any and all Risk Management reports and/or records, including
investigative materials, for all allegations of sexual assault
perpetrated by an employee of Lee Memorial from 2012 to 2016;
b. Any and all Human Resources reports and/or records, including
investigative materials, for all allegations of sexual assault
perpetrated by an employee of Lee Memorial from 2012 to 2016;
c. Any and all records relating to the disciplinary action taken, if any,
against employees alleged to have committed a sexual assault at Lee
Memorial from 2012 to 2016.
3.

Plaintiff’s Unopposed Time-Sensitive Motion Seeking Leave to File a

Memorandum in Reply to Defendant’s Response in Opposition to Plaintiff’s Motion to
Compel and Certificate of Good Faith (Doc. 75) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 14th day of September,
2018.

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Copies:
Counsel of record
Pro se parties

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