Valentine v. Physicians Group Services, P.A.

Filing 17

ORDER granting 16 the defendant's motion to compel; directing the plaintiff, by January 13, 2017, to produce the calendars; and directing her counsel, by January 13, 2017, to provide the defendant's counsel with three dates from now u ntil February 3, 2017, on which she and her counsel are available to continue her deposition. The Court orders the plaintiff, by January 20, 2017, to show cause, if any, why the Court should not require her or her counsel to pay the defendant's reasonable expenses incurred in bringing the motion to compel. Signed by Magistrate Judge Patricia D. Barksdale on 1/9/2017. (BGK)

United States District Court
Middle District of Florida
Jacksonville Division
HEATHER VALENTINE,
Plaintiff,
V.

NO. 3:16-CV-414-J-32PDB

PHYSICIANS GROUP SERVICES, P.A.,
Defendant.

Order
In this putative collective action under the Fair Labor Standards Act, 29 U.S.C.
§§ 201–19, the plaintiff alleges the defendant failed to pay her overtime wages as
required. Doc. 1. Before the Court is the defendant’s motion to compel her to produce
her calendars and coordinate with the defendant’s counsel to schedule her continued
deposition and award expenses incurred in preparing and filing the motion. Doc. 16.
She has not responded to the motion, and the time for doing so has passed.
Federal Rule of Civil Procedure 1 provides that the rules “should be construed,
administered, and employed by the court and the parties to secure the just, speedy,
and inexpensive determination of every action and proceeding.” The addition of “and
the parties” places shared “responsibility to employ the rules in the same way.” Fed.
R. Civ. P. 1, Advisory Comm. Notes (2015 Amend.). “Effective advocacy is consistent
with—and indeed depends upon—cooperative and proportional use of procedure.” Id.
Federal Rule of Civil Procedure 26 provides that a party “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.” Fed. R. Civ. P. 26(b)(1). It further provides that a party who has
responded to a request for production “must supplement or correct its disclosure or
response … in a timely manner if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other parties during the
discovery process or in writing.” Fed. R. Civ. P. 26(e)(1)(A).
Federal Rule of Civil Procedure 37 provides that a party “seeking discovery
may move for an order compelling an answer, designation, production, or inspection
… [if] a party fails to answer an interrogatory submitted under Rule 33 … [or] fails
to produce documents … as requested under Rule 34.” Fed. R. Civ. P. 37(a)(3)(B)(iii),
(iv). It further provides that if a court grants a motion to compel discovery, “the court
must, after giving an opportunity to be heard, require the party … whose conduct
necessitated the motion, the party or attorney advising that conduct, or both to pay
the movant’s reasonable expenses incurred in making the motion, including
attorney’s fees.” Fed. R. Civ. P. 37(a)(5)(A). “But 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; (ii) the opposing party’s
nondisclosure, response, or objection was substantially justified; or (iii) other
circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A)(i−iii).
Nondisclosure, a response, or an objection is substantially justified if reasonable
people could differ on its appropriateness. Maddow v. Procter & Gamble Co., Inc., 107
F.3d 846, 853 (11th Cir. 1997).
On July 26, 2016, the defendant served the plaintiff with requests for
production. Doc. 16 at 2; Doc. 16-1 ¶ 10; Doc. 16-3. Among them were requests for
“[a]ny and all documents that evidence the time Plaintiff claims to have actually
worked but was not paid all remuneration” (request 13) and “any and all documents
that relate to, bear upon[,] or provide evidence relating to Plaintiff’s response to the
Court’s Interrogatory No. 6(c) that Plaintiff worked five (5) hours of over-time per
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week” (request 17). Doc. 16 at 2; Doc. 16-3 at 6–7. For the former request, she
responded she had no such documents other than what she had already produced.
Doc. 16-4 at 4. For the latter request, she directed the defendant to a log of hours
worked. Doc. 16-4 at 5. She produced 402 pages of documents, which included two
versions of a document purporting to show the amount of overtime she worked each
week (to the minute) and whether she received regular or overtime pay for that time.
Doc. 16 at 2.
On November 4, 2016, the defendant deposed the plaintiff. Doc. 16 at 3. She
testified she had kept a “contemporaneous record” of the hours she worked on
calendars she had not produced in response to the requests for production, and she
had relied on those calendars to create the log she had referenced in her response to
the requests for production. Doc. 16 at 3. The defendant’s counsel asserted the
calendars were responsive to the requests for production, and the plaintiff agreed to
produce them by November 25, 2016. Doc. 16 at 3. The parties agreed to continue her
deposition. Doc. 16 at 3.
On November 22, 2016, the defendant’s counsel sent an e-mail requesting
assurances that the plaintiff’s counsel would produce the calendars and dates to
continue the deposition, but the plaintiff’s counsel did not respond. Doc. 16 at 3. On
November 29, the defendant’s counsel sent a letter renewing those requests, stating,
“Please provide the calendars to me by close of business on November 30, 2016, or I
will file a motion to compel.” Doc. 16 at 3; Doc. 16-7. The plaintiff’s counsel again did
not respond. Doc. 16 at 3.
The calendars respond to the defendant’s requests for production; they relate
to the plaintiff’s claim; and she knew she had not produced them at least as early as
when the defendant’s counsel informed her counsel of that fact. Because she was
required to supplement her responses to the defendant’s requests for production with
the calendars, compelling her to produce them is warranted. Her counsel also must

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work with the defendant’s counsel to coordinate dates for the continuation of her
deposition. 1
The Court grants the defendants’ motion to compel, Doc. 16; directs the
plaintiff, by January 13, 2017, to produce the calendars she referenced in her
November 4, 2016, deposition that she has not already produced; and directs her
counsel, by January 13, 2017, to provide the defendant’s counsel with three dates
from now until February 3, 2017, on which she and her counsel are available to
continue the deposition.
Because the Court grants the defendant’s motion to compel, it must, after
giving the plaintiff an opportunity to be heard, require her or her counsel to pay the
defendant’s “reasonable expenses” incurred in bringing the motion. See Fed. R. Civ.
P. 37(a)(5)(A). The Court orders the plaintiff, by January 20, 2017, to show cause,
if any, why the Court should not require her or her counsel to pay the defendant’s
reasonable expenses incurred in bringing the motion to compel. Alternatively, her
counsel may confer with opposing counsel to resolve the issue of expenses and inform
the Court by that date whether they have resolved it.
Ordered in Jacksonville, Florida, on January 9, 2017.

c:

Counsel of Record

1“An

attorney is expected to accommodate the schedules of opposing counsel.
In doing so, the attorney should normally pre-arrange a deposition with opposing
counsel before serving the notice. If this is not possible, counsel may unilaterally
notice the deposition while at the same time indicating a willingness to be reasonable
about any necessary rescheduling.” Middle District of Florida Discovery Handbook,
§ II.A.1.
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