Live Face on Web, LLC v. Ortega Chiropractic Corp. et al

Filing 44

ORDER denying 42 the defendants' motion for relief from the Court's order compelling production of documents and directing them, by June 9, 2017, to show cause, if any, why the Court should not require them or their counsel to pay the plaintiff's reasonable expenses incurred in bringing the motion to compel or take other action against them for failure to comply with the order. Signed by Magistrate Judge Patricia D. Barksdale on 5/22/2017. (BGK)

United States District Court
Middle District of Florida
Jacksonville Division
LIVE FACE ON WEB, LLC,
Plaintiff,
V.

NO. 3:16-CV-1068-J-34PDB

ORTEGA CHIROPRACTIC CORP.
& JAMES DIESEN,
Defendants.

Order
Before the Court is the defendants’ motion for relief from the Court’s order
compelling them to produce documents and response to the plaintiff’s notice of their
noncompliance with that order. Doc. 42. The plaintiff opposes the motion and
requests an award of fees and expenses incurred in preparing the motion to compel,
attending the hearing on the motion, preparing the notice of noncompliance with the
Court’s order, and responding to the defendants’ motion. Doc. 43.
On March 3, 2017, the plaintiff moved to compel the defendants to produce
financial documents and documents that must be produced under Federal Rule of
Civil Procedure 26. Doc. 34. The defendants did not respond to the motion. On March
30, 2017, the Court conducted a hearing on the motion. Doc. 38. The defendants’
counsel did not attend. See Doc. 38. Before filing the motion, the plaintiff’s counsel
tried to confer with the defendants’ counsel by telephone and email “on multiple
occasions” but received no response. Doc. 34 at 7. Presented with no reason to do
otherwise, the Court granted the motion to compel and directed the defendants to
produce the requested documents by April 10, 2017. Doc. 39. The Court stated,

“Failure to comply with [the] order will result in an order to show cause why sanctions
should not be entered against the defendants or their counsel.” Doc. 39 at 3.
On April 11, 2017, the plaintiff filed a notice informing the Court the
defendants had failed to provide the documents as directed. Doc. 40. The plaintiff also
filed a notice informing the Court that the parties had been unable to resolve the case
at the March 14, 2017, mediation. Doc. 41. Later that day, the defendants filed the
motion before the Court. Doc. 42.
The defendants argue they should be relieved from complying with the Court’s
order compelling production of documents because (1) they and their counsel believed
the case either had been resolved or was close to being resolved, and (2) they have no
responsive documents. Doc. 42 at 2–3. They assert the plaintiff moved to compel after
the parties had attended mediation and without contacting their counsel on the
telephone number she had provided. Doc. 42 at 1. They point to their counsel’s
voluntary efforts above what was required of her to attempt to settle the case,
including agreeing that the defendants “would not move forward and seek a ruling on
the Motions to Dismiss the Amended Complaint (as pled).” Doc. 42 at 3 (emphasis in
original). They assert the plaintiff was and is aware they do not have “any of the
information specifically sought because the computer systems/hardware and
software[ ] have been removed or otherwise disposed of since 2010.” Doc. 42 at 2. They
assert their responses to the relevant discovery requests were “none.” Doc. 42 at 3.
They state their counsel had informed the plaintiff’s counsel at mediation that the
defendants would check to make sure they had no other responsive documents or
information. Doc. 42 at 2.
The plaintiff responds the defendants’ reliance on confidential settlement
discussions is inappropriate; in any event, the case remains unresolved; it filed the
motion to compel before—not after—mediation, and the defendants’ counsel was
aware of the motion to compel; its counsel had attempted on several occasions to
confer both before filing the motion and to schedule a hearing on the motion; the
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responses to the discovery requests at issue did not indicate the defendants had no
responsive documents; and the “belated argument” that they have nothing to produce
“is not credible.” Doc. 43 at 2–3.
The defendants’ arguments do not warrant relief from the previous order.
Their counsel’s belief that the case was “mov[ing] toward resolution,” see Doc. 42 at
3, however sincere, is irrelevant. The case did not resolve at mediation, and counsel
offers no justification for any belief that the motion to compel—filed before
mediation—was moot. Indeed, that the Court rescheduled the hearing on the motion
to compel after the parties had participated in mediation, see Doc. 36, should have
indicated the issue remained.
The representation that the defendants have no responsive documents is
insufficient. Contrary to their assertion, the defendants’ responses to the requests for
production at issue in the motion to compel—numbers 34 through 36—were not
“None” but instead were objections asserting the requests sought irrelevant
information. See Doc. 34-1 at 8. Likewise, the plaintiff’s counsel represented during
the hearing on the motion and in the motion itself that the defendants had identified
but failed to produce documents required to be disclosed under Federal Rule of Civil
Procedure 26(a)(1)(A)(iii)–(iv). The Court cannot compel the defendants to produce
nonexistent documents, but to the extent they do not have responsive documents,
they must supplement their discovery responses and initial disclosures to reflect that
fact.
The Court denies the defendants’ motion for relief from the Court’s order
compelling production of documents, Doc. 42.
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.
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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).
Additionally, if a party “fails to obey an order to provide or permit discovery, … the
court where the action is pending may issue further just orders.” Fed. R. Civ. P.
37(b)(2)(A). * “Instead of or in addition to [one of the orders listed in Rule 37(b)(2)(A)],
the court must order the disobedient party, the attorney advising that party, or both
to pay the reasonable expenses, including attorney’s fees, caused by the failure,
unless the failure was substantially justified or other circumstances make an award
of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C).

*Specifically,

a court may enter an order: “(i) directing that the matters embraced in
the order or other designated facts be taken as established for purposes of the action, as the
prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in evidence; (iii)
striking pleadings in whole or in part; (iv) staying further proceedings until the order is
obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default
judgment against the disobedient party; or (vii) treating as contempt of court the failure to
obey any order except an order to submit to a physical or mental examination.” Fed. R. Civ.
P. 37(b)(2)(A)(i)–(vii).

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The Court directs the defendants, by June 9, 2017, to show cause, if any, why
the Court should not require them or their counsel to pay the plaintiff’s reasonable
expenses incurred in bringing the motion to compel or take other action against them
for failure to comply with the order.
Ordered in Jacksonville, Florida, on May 22, 2017.

c:

Counsel of record

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