Inman v. Richman Property Services, Inc.
Filing
40
ORDER denying 28 Motion to Compel. Signed by Magistrate Judge Monte C. Richardson on 9/16/2014. (ADM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BRENDA INMAN,
Plaintiff,
v.
CASE NO. 3:13-cv-941-J-32MCR
RICHMAN PROPERTY SERVICES, INC.,
Defendant.
________________________________/
ORDER
THIS CAUSE is before the Court on Plaintiff’s Motion to Compel (“Motion
to Compel”) (Doc. 28), Defendant’s Opposition thereto (“Opposition”) (Doc. 31),
and Plaintiff’s Response Regarding Timeliness and Incorporated Motion for
Leave to File Motion to Compel (“Response”) (Doc. 38). For the reasons stated
herein, the Motion to Compel is due to be DENIED as untimely in light of the
Court’s Case Management and Scheduling Order (“CMSO”) and the discovery
deadline of June 27, 2014.
On August 6, 2013, Plaintiff Brenda Inman (“Inman” or “Plaintiff”) filed a
Complaint against her former employer, Richman Property Services, Inc. (“RPS”
or “Defendant”), for alleged discrimination and retaliation under the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., disability discrimination
under the Americans with Disabilities Act of 1990 (“ADA”), as amended, 42
U.S.C. § 12101 et seq., and retaliation in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Doc. 1.) On September
13, 2013, Defendant filed an Answer and Affirmative Defenses. (Doc. 7.)
On October 24, 2013, the Court entered a CMSO, setting June 27, 2014 as
the discovery deadline in this case. (Doc. 11.) The CMSO provides in relevant
part:
With respect to discovery matters, the date set forth above is the
final date discovery shall be completed. All requests and motions
pertaining to discovery shall be filed promptly so that the discovery
desired will be due prior to the completion date. Specifically, motions
to compel brought pursuant to Rule 37 must be filed no later than the
close of discovery.
(Id. at 2).
On July 31, 2014, Plaintiff filed the Motion to Compel seeking disclosure of
communications made during a conference call that occurred on June 1, 2012
regarding Plaintiff’s employment and termination from RPS. (Doc. 28.) The
conference call involved Jessica Daugherty (Vice President of Florida Property
Operations for RPS at the time), Theresa Eastwood Davis (Regional Property
Manager for RPS), Doreen Kennedy (Director of Human Resources for RPS at
the time), Ida Lazar (Human Resources Generalist for RPS), Joanne Flanagan
(General Counsel for RPS), and Patrick E. Gonya, Jr. (outside legal counsel for
RPS). (Doc. 31 at 1-2.) Plaintiff also seeks disclosure of twelve emails
exchanged between RPS and Mr. Gonya on June 1, 2012 regarding the same
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subject matter, to the extent these documents do not contain defense counsel’s
mental impressions or legal advice. (Doc. 28 at 5-6; Doc. 31 at 2; Doc. 38 at 2.)
Plaintiff argues Defendant has effectively blocked her from discovering the
facts underlying her termination. (Doc. 28 at 4.) Plaintiff asserts Defendant “has
concealed the reasons for [her] termination under the cloak of attorney-client
privilege,” which allegedly became clear at the June 24, 2014 deposition of Ms.
Lazar. (Id. at 2-3.) Therefore, Plaintiff requests that discovery be reopened for
the purpose of reopening the depositions of Ms. Lazar and Ms. Eastwood Davis
regarding the June 1, 2012 telephone conversation concerning Plaintiff’s
termination, that Defendant be ordered to produce the documents in its privilege
log that relate to the facts of the June 1, 2012 telephone discussion concerning
Plaintiff’s termination, and that Plaintiff be awarded attorney’s fees and costs
incurred in making the Motion to Compel. (Id. at 7.)
In the Opposition, Defendant argues the Motion to Compel should be
denied on the basis of untimeliness and because it seeks information protected
by the attorney-client privilege, as Mr. Gonya provided legal advice and opinions
with respect to Plaintiff’s employment and proposed termination during the June
1, 2012 call. (Doc. 31.) Defendant avers it served written responses to Plaintiff’s
First Set of Interrogatories on January 13, 2014 (Doc. 28-1). (Doc. 31 at 4.) In
response to Interrogatory Nos. 2, 14 and 15, Defendant provided information
regarding the reasons for Plaintiff’s termination on June 1, 2012, and also
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objected to those interrogatories to the extent they sought disclosure of
information protected by the attorney-client privilege. (Id.) Plaintiff did not
challenge the sufficiency of Defendant’s answers or objections to these
interrogatories. (Id.)
Further, on March 12, 2014, Defendant served on Plaintiff a privilege log
identifying, among other things, the June 1, 2012 emails as protected from
disclosure by the attorney-client privilege. (Id.) Again, Plaintiff did not challenge
the sufficiency of the privilege log. (Id.) Additionally, on May 2, 2014, Plaintiff
requested the deposition of Ms. Eastwood Davis, which was taken on June 9,
2014. (Id.) When Plaintiff’s counsel asked Ms. Eastwood Davis questions
regarding the June 1, 2012 call, Defendant’s counsel objected and instructed her
not to answer based upon the attorney-client privilege. (Doc. 31 at 4-5.) Further,
on June 24, 2014, Plaintiff took the deposition of Ms. Lazar. (Doc. 31 at 5.)
Defendant’s counsel instructed Ms. Lazar not to answer questions regarding the
June 1, 2012 call based upon the attorney-client privilege. (Id.)
It was not until June 27, 2014, the discovery deadline, that Plaintiff raised
the issue of attorney-client privilege with Defendant. On that day, Plaintiff’s
counsel sent an e-mail to Mr. Gonya, stating in relevant part:
Based upon the testimony of both Teresa Eastwood-Davis and Ida
Lazar, we do not think any privilege attached to the June 1, 2012
termination discussion involving you, Eastwood, Lazar, Doreen
Kennedy and Jennifer Flannigan [sic]. Unless you are aware of and
provide convincing authority that allows for an attorney client
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privilege assertion where the key decision is at issue, i.e., the
termination, we will be moving to compel on the documents and for
testimony of Ms. Eastwood-Davis, Ms. Lazar and possibly others.
(Doc. 31 at 32.)
The same day, Mr. Gonya responded as follows:
. . . [W]e object to any attempt by you to discover my confidential
privileged communications with my client, including on June 1, 2012,
regarding my legal advice on your client’s termination. Nothing in the
depositions of Eastwood or Lazar adversely impacts this analysis.
The record evidence is very clear on my client’s reasons for your
client’s termination. You’re not entitled to my legal advice
concerning those reasons or the application of any law to those
reasons. . . .
(Id.)
On July 31, 2014, or over one month after the discovery deadline, six
months after receiving interrogatory responses containing Defendant’s objections
on attorney-client privilege grounds, four months after receiving the privilege log,
and over six weeks after the deposition of Ms. Eastwood Davis, Plaintiff filed the
Motion to Compel. On August 21, 2014, noting that “Plaintiff did not acknowledge
or provide any explanation for the untimely filing,” the Court entered an Order
giving Plaintiff an opportunity to respond to Defendant’s arguments regarding
timeliness by filing a supplemental brief no later than August 29, 2014. (Doc. 33
at 3.)
On August 29, 2014, Plaintiff filed her Response requesting leave to file,
nunc pro tunc, the Motion to Compel out of time. (Doc. 38.) Plaintiff asserts that
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during the June 9, 2014 deposition of Ms. Eastwood Davis, Plaintiff became
aware, for the first time, that “outside counsel, or in-house counsel, was on the
critical June 1st phone call in which the decision to terminate Plaintiff was made.”
(Id. at 3.) In addition, Plaintiff points out that at the June 24, 2014 deposition of
Ms. Lazar, “Ms. Lazar specifically stated that she was not seeking legal advice
during the June 1st call and was unaware if anyone else was seeking legal advice
during the call,” yet Defendant continued “to assert the attorney client privilege
objection concerning the June 1st call.” (Id. at 4.) Plaintiff then states:
[I]t was not until counsel was able to study the Ida Lazar deposition
transcript [which was emailed to him on July 15, 2014] and carefully
consider all of the facts gathered as well as the context of the
discussion as one leading to the ultimate employment decision in the
case, i.e., Plaintiff’s termination, that it appeared even more likely
that the privilege assertion regarding the June 1st conversation was
improperly made. Additionally, the Lazar testimony revealing that
apparently no one was seeking legal advice also made clear that the
“facts” in the June 1, 2012, documents set forth on Defendant’s
privilege log would not be privileged. Thereafter, on July 23, 2014,
Defendant filed a motion for leave to exceed the page number length
for its motion for summary judgment. (Doc. 26). The nature of the
factual/legal issues set out in paragraph 2 of Defendant’s motion was
also noted by Plaintiff in considering the attorney client privilege
assertion by Defendant with regard to the June 1st teleconference.
(Id. at 4-5.) After reiterating the sequence of events, Plaintiff states: “All of these
facts regarding Plaintiff’s consideration of the issue taken together, demonstrate
excusable neglect in Plaintiff’s delayed filing of the Motion to Compel.
Accordingly, good cause exists to accept Plaintiff’s Motion to Compel out of time.”
(Id. at 6.)
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The Motion to Compel is due to be denied as untimely in light of the CMSO
and the discovery deadline of June 27, 2014. As an initial matter, Plaintiff did not
even address the timeliness issue until prompted to do so by the Court on August
21, 2014. Upon consideration of the parties’ arguments and the circumstances in
this case, the Court finds that Plaintiff has not demonstrated good cause and
excusable neglect for filing the Motion to Compel over a month after the discovery
deadline and for modifying the Case Management and Scheduling Order.
Plaintiff must demonstrate good cause for modifying the CMSO under Rule
16(b)(4), Fed.R.Civ.P. “This good cause standard precludes modification unless
the schedule cannot be met despite the diligence of the party seeking the
extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (per
curiam) (internal quotation marks omitted); see also Middle District Discovery
(2001) at I.F.2. In addition, because the Motion to Compel was filed after the
discovery deadline, Plaintiff must also demonstrate excusable neglect under Rule
6(b)(1), Fed.R.Civ.P. “[R]elevant factors in evaluating excusable neglect include
the length of the delay and whether the delay was within control of the movant.”
Sosa, 133 F.3d at 1418 n.2 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 395 (1993)).
In the present case, it is undisputed that Defendant raised objections to
Plaintiff’s discovery on attorney-client privilege grounds as early as January 13,
2014 (in response to Plaintiff’s First Set of Interrogatories), and again on March
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12, 2014 (as part of Defendant’s privilege log), on June 9, 2014 (at Ms. Eastwood
Davis’s deposition), and on June 24, 2014 (at Ms. Lazar’s deposition). Plaintiff
did not challenge Defendant’s asserted privilege until the last day of the discovery
period when her counsel sent an e-mail to defense counsel stating, in part, that
based on the deposition testimony of Ms. Eastwood-Davis and Ms. Lazar, Plaintiff
did not think that “any privilege attached to the June 1, 2012 termination
discussion” and that Plaintiff would be filing a motion to compel unless Defendant
provided “convincing authority” to support its privilege assertion.
Plaintiff has not provided a reasonable explanation for waiting until the last
day of the discovery period to try to resolve the issue with Defendant’s counsel,
and for her failure to seek an extension of the discovery deadline and/or to file a
motion to compel either before or promptly after receiving Mr. Gonya’s June 27,
2014 response. See, e.g., Chevola v. Cellco Partnership, 2007 WL 3379779, *1
(M.D. Fla. Nov. 14, 2007) (“[T]he Court expects the parties to address discovery
disputes promptly-before the discovery deadline passes or soon thereafter.”).
Even assuming that until the June 9, 2014 deposition of Ms. Eastwood Davis,
Plaintiff was not aware that Defendant’s counsel was on the June 1, 2012 phone
call, Plaintiff had over two weeks, from June 9, 2014 until the close of discovery,
to raise this issue with Defendant and/or the Court.
Plaintiff asserts that she needed “to study the Ida Lazar deposition
transcript” before drafting the Motion to Compel. However, Plaintiff does not
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explain why she did not seek an extension of the discovery deadline prior to its
expiration when Plaintiff was apparently contemplating raising the privilege issue
with the Court. Plaintiff further attempts to justify her belated filing by pointing to
a paragraph in Defendant’s Motion for Leave to Exceed Page Limit on Motion for
Summary Judgment, which was filed on July 23, 2014, and which allegedly
influenced Plaintiff’s decision to file the Motion to Compel. However, upon review
of the subject paragraph, the Court finds Plaintiff’s justification unconvincing.
The circumstances in this case demonstrate that the delayed filing of the
Motion to Compel was largely due to Plaintiff’s lack of diligence. Plaintiff does not
argue that anything beyond her control prevented her from seeking a timely
extension of the discovery deadline or filing the Motion to Compel prior to the
close of discovery.1 In fact, Plaintiff admits that she “should have sought an
extension of the discovery motion deadline prior to or on the discovery close
date.” (Doc. 35 at 5.) Therefore, the record indicates that the delay was within
Plaintiff’s control.
Moreover, Plaintiff’s counsel was fully aware of the provisions of the Case
Management and Scheduling Order, as indicated by his May 16, 2014 e-mail to
opposing counsel, which read in part: “We have a June 27 close of discovery
date.” (Doc. 31 at 22.) The CMSO provides, in relevant part, that all motions
1
The unavailability of the transcript of Ms. Lazar’s deposition did not prevent
Plaintiff from timely seeking an extension of the discovery deadline or filing the Motion
to Compel.
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pertaining to discovery must “be filed promptly so that the discovery desired will
be due prior to the completion date” (Doc. 11 at 2). See also Chevola, 2007 WL
3379779, at *1 (“This district follows the rule that the completion date for
discovery means just that-all discovery must be completed by that date.”) (citing
Middle District Discovery (2001) at I.F.1. (emphasis in original)). As stated
earlier, Plaintiff’s Motion to Compel was not filed promptly.
Further, it does not clearly appear that the requested relief will not
necessitate the continuance of the trial. See Middle District Discovery (2001) at
I.F.2. (“Motions for extension of discovery time are treated with special disfavor if
filed after the discovery completion date and will normally be granted only if it
clearly appears that an extension will not necessitate the continuance of a
scheduled trial.”). By asking the Court to reopen discovery for an unspecified
period of time, Plaintiff essentially expects the Court to create an open-ended
extension of the discovery period, which will most likely affect not only the pre-trial
schedule of the case, but also the trial date, which is currently set for the term
commencing December 1, 2014. Therefore, based on the foregoing, the Motion
to Compel and the Incorporated Motion for Leave to File the Motion to Compel
out of time are due to be denied.2 Plaintiff’s request for attorney’s fees and costs
2
Although the parties may stipulate to the continuance of discovery, the Court
“will not hear discovery disputes arising during the stipulated continuance.” (Doc. 11 at
2.)
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incurred in making the Motion to Compel is also due to be denied. See
Fed.R.Civ.P. 37(a)(5)(B).
Accordingly, it is ORDERED:
The Motion to Compel (Doc. 28) is DENIED.
DONE AND ORDERED at Jacksonville, Florida, on September 16, 2014.
Copies to:
Counsel of Record
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