Kimberly Regenesis, LLC, et al v. Lee County, a Florida political subdivision

Filing 86

ORDER granting in part and denying in part 56 Motion to Compel Documents; granting in part and denying in part 57 Motion to Compel Interrogatory Responses; denying 57 Motion for Attorney Fees; granting in part and denying in part 70 Mo tion for Protective Order from 30(b)(6) topics; and granting 75 Motion to Compel Documents. The parties will serve responses and produce documents by June 8, 2021; depose fact witnesses by June 23, 2021; conduct all Rule 30(b)(6) depositions by Ju ly 18, 2021; file any Rule 30(b)(6) deposition notices with the Court; and may file supplemental authority relevant to the motion to preclude commissioner depositions (Doc. 66) by May 7, 2021. See Order for details. Signed by Magistrate Judge Nicholas P. Mizell on 4/28/2021. (SM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KIMBERLY REGENESIS, LLC
and DAMASCUS TRADING
COMPANY, LLC,
Plaintiffs,
v.

Case No. 2:19-cv-538-SPC-NPM

LEE COUNTY,
Defendant.
ORDER
The parties in this American with Disabilities Act (“ADA”) action filed
multiple papers related to discovery disputes. The Court held a hearing on April 9,
2021, to resolve these matters and to set new case-management deadlines. For the
reasons stated in more detail on the record during the April 9 hearing, the Court
grants and denies certain motions to compel, or for protection from, discovery as set
forth in this Order. And under the circumstances, the Court does not award expenses
for any of these motions to either side. See Fed. R. Civ. P. 37(a)(5)(A)(iii).
Plaintiffs’ motion to compel responses and documents responsive to their
First Request to Produce (Doc. 56)
This motion is GRANTED in part and DENIED in part. As to each Request
for Production (“RFP”) the Court grants or denies relief as follows:

1.

Denied.

2.

Granted. But Defendant need only produce maps from 2015 and 2016 in
a format reasonably accessible to Plaintiffs.

3.

Denied.

4.

Denied.

5.

Granted. But this request is limited to documents from 2004 through
2016, and it is further narrowed to applications for use permits, zoning
approvals, or re-zonings, involving “special exceptions” in the “Central
Urban” or any AG zoned area of unincorporated Lee County, or
involving any request to rezone from AG-2 to CFPD, for group homes
for the disabled, assisted living facilities, or substance use disorder
treatment facilities. Given the publicly available nature of these records,
the burden of identifying any other potentially comparable matter will be
borne by Plaintiffs.

6.

Denied as moot.

7.

Denied.

8.

Denied as moot.

9.

Denied.

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10. Granted. But Defendant need only produce applications for rezoning to
CFPD concerning group residential facilities (including treatment
facilities) from 2004 through 2016.
11. Granted to the same extent as RFP 10.
12. Denied.
13. Denied.
14. Denied without prejudice. The Court will address the request for resumes
or CVs of the commissioners in 2015 and 2016 when it addresses
whether any commissioners will be deposed.
15. Denied as moot.
16. Denied as moot.
17. Denied as moot.
18. Denied as moot.
19. Denied as moot.
20. Denied as moot.
21. Denied as moot.
22. Denied as moot.
23. Denied as moot.
24. Denied.

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25. Granted. But this request is narrowed to any photographs or videos (in
any medium) of the Property from November 8, 2014, through August
25, 2016.
26. Granted. But this request is narrowed to ADA-related reasonable
accommodation requests in the re-zoning context from 2010 through
2016.
Plaintiffs’ motion to compel answers to their First Set of Interrogatories
(Doc. 57)
This motion is GRANTED in part and DENIED in part. As to each
interrogatory, the Court grants or denies relief as follows:
1.

Denied.

2.

Denied as moot.

3.

Denied.

4.

Denied.

5.

Denied.

6.

Denied.

7.

Granted. But this interrogatory is narrowed to the same scope as RFP 5,
as discussed above, and Defendant’s answer need only discuss
information not made available in its document production.

8.

Denied.

9.

Denied.
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10. Granted. But the phrases “fair housing or” and “or housing” are stricken,
as is all language after the phrase “complaint or case number.”
11. Granted. But the time period is limited to 2014 through 2016, Defendant
need only make inquiry with the same 25 custodians it consulted to
respond to RFP 17, and its answer need only discuss information not
made available in its document production.
12. Granted. But this interrogatory is subject to the same limitations that
narrow interrogatory 11.
13. Denied.
14. Granted. But this interrogatory is limited to 2014 through 2016, and
Defendant’s answer need only discuss information not made available in
its document production.
15. Granted. But this interrogatory is subject to the same limitations that
narrow RFP 26, and Defendant’s answer need only discuss information
not made available in its document production.
16. Granted. Defendant will produce verified answers to all interrogatories
subject to the rulings in this Order.
Plaintiffs’ motion for protection from some of Defendant’s designated 30(b)(6)
topics (Doc. 70)
This motion is GRANTED in part and DENIED in part. For topics 13, 14,
and 21, protection is granted. And for topic 20, protection is granted in part.
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Defendants may only explore this information in the aggregate to get a sense of the
number of residents and the types of diagnoses and conditions among the residents
as a group.
For topics 15, 25, and 27, protection is denied. For topic 29, protection is
denied as moot because Plaintiffs will answer Defendant’s Interrogatory 22. As for
topic 6, which the Court took under advisement during the hearing, protection is also
denied.
Topic 6 requires the Plaintiffs’ 30(b)(6) designees to be prepared to testify
about the Plaintiffs’ request for a special magistrate to potentially facilitate a
resolution of the zoning dispute under Florida’s Land Use and Environmental Dispute
Resolution Act, codified as Florida Statute § 70.51. Specifically, the 30(b)(6)
designation includes the Plaintiffs’ request made under the act, the proceeding held,
and the recommendation of the special magistrate.
By analogy to private mediation, Plaintiffs assert that such matters should be
shielded from discovery as privileged. But by statute, they are by no means private
and so the comparison does not hold up. In fact, the request made under the act must
be served on all contiguous landowners and any “substantially affected” parties who
supported or opposed Plaintiffs’ intended use for the land. See Fla. Stat. § 70.51(5).
And these individuals or entities may participate in the special master proceeding.
See Fla. Stat. § 70.51(12). Further, and in “all respects,” the special master hearing is
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“open to the public.” Fla. Stat. § 70.51(17); see also Fla. Stat. § 70.51(15)(b)
(requiring the special master to provide notice of the hearing to any person who
requests it). Moreover, the special master’s recommendation is a matter of “public
record.” Fla. Stat. § 70.51(20). While the Court may nevertheless determine at a later
time that some such evidence may not be admissible at trial or for summary-judgment
purposes, and this ruling does not prevent Plaintiffs from invoking attorney-client
privilege or work-product protection when appropriate, there is no basis to
completely shield this area of inquiry from discovery as privileged.
Defendant’s motion to compel the production of documents (Doc. 75)
This motion is GRANTED and each Plaintiff will produce: (1) any
spreadsheets, statements, reports or credit applications from August 2015 to the
present that show revenues; profits and losses; a balance of assets, liabilities and
equity; and other similar financial information; and (2) any financial information
disclosed in the prior litigation between Damascus Trading Company, LLC and Tom
and Nina Burt, if any.
Other discovery issues
No party will serve any further written discovery requests in this matter. In
accordance with the rulings above, the parties will serve responses and produce
documents by June 8, 2021. The parties will depose any fact witnesses by June 23,

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2021. And the parties will conduct all Rule 30(b)(6) depositions by July 18, 2021.
The parties will also file any Rule 30(b)(6) deposition notices with the Court.
Following the completion of the Rule 30(b)(6) depositions, the Court will set
for hearing Defendant’s motion to preclude any depositions of the current or former
commissions (Doc. 66). The parties may file supplemental authority relevant to this
motion by May 7, 2021.
DONE and ORDERED in Fort Myers, Florida on April 28, 2021.

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