Cherestal v. Sears Roebuck & Co.
ORDER granting 35 Motion to Compel. Signed by Magistrate Judge Thomas B. Smith on 9/20/2013. (KHH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No: 6:12-cv-1681-Orl-28TBS
SEARS ROEBUCK & CO.,
Pending before the Court is Defendant, Sears, Roebuck and Co.’s (“Sears”),
Motion to Compel Production of Documents in Response to its Second Request for
Production to Plaintiff. (Doc. 35). Plaintiff has filed a response in opposition. (Doc. 36).
The motion is due to be GRANTED.
Plaintiff previously worked for Sears as an optician at a Sears optical store, located
within the Sears store at the Florida Mall, 8001 South Orange Blossom Trail, Orlando,
Florida (the “Store”). (Doc. 2 ¶ 3). Luxottica Retail North America, Inc. (“Luxottica”)
operated the Sears optical store. (Id. ¶ 4).
Plaintiff alleges members of the Store security department targeted her because of
her race and national origin and accused her of stealing merchandise. (Id. ¶ 15). In
November of 2009, a member of the security department questioned Plaintiff about her
purchases from the Store. (Id. ¶ 16). On December 26, 2009, four members of the
security department detained Plaintiff at the end of her workday for approximately one
and one-half hours and interrogated her about purchases she had made. (Id. ¶¶ 18-20).
The security personnel accused Plaintiff of stealing merchandise, and informed her that
they would be speaking to her supervisors at the optical store. (Id. ¶¶ 27, 29). Two days
later, Plaintiff was terminated for being absent from her post on December 5 and
December 26 during times when she should have been present. (Id. ¶ 32).
On February 8, 2012, Plaintiff filed claims of employment discrimination; false
imprisonment; and negligent hiring, training, supervision and retention against Luxottica
and Sears. Cherestal v. Luxottica Retail North Am., Inc., et. al., Case No. 6:12-cv-209JA-DAB (Doc. 1). On August 20, 2012, the Court dismissed the tort claims and
compelled the parties to arbitration. Case No. 6:12-cv-209-JA-DAB (Doc. 34). In the
arbitration proceeding, Plaintiff and Luxottica made a settlement agreement which
resolved all of Plaintiff’s employment discrimination claims, including her employment
discrimination claim against Sears. (Doc. 35 ¶ 3).
Four days later, Plaintiff filed this lawsuit against Sears in the Circuit Court of the
Ninth Judicial Circuit in and for Orange County, Florida, alleging claims of false
imprisonment; negligent training, supervision, and retention of Sears’ loss prevention
personnel; tortious interference with advantageous employment/business relationship;
and defamation. (Doc. 2). Sears removed the case to this Court. (Doc. 1). On motion by
Sears, the Court dismissed Counts II (negligent training) and IV (defamation) of Plaintiff’s
complaint with prejudice. (Doc. 33).
On July 25, 2013, Sears served its Second Request for Production on Plaintiff, to
which she responded on August 27, 2013. (Doc. 35 at 3). Plaintiff objected to Request 2
on the ground that it seeks privileged information; information already in Sears’
possession; and the information sought is not reasonably calculated to lead to the
discovery of admissible evidence. She objected to Request 5 on the ground that it seeks
information already in Sears’ possession. Sears argues in its motion that Plaintiff’s
responses to Requests 2 and 5 are improper and asks for complete production of the
discovery it requested.
Standard of Law
Rule 26(b)(1) permits parties to “obtain discovery regarding any non-privileged
matter that is relevant to any party’s claim or defense-including the existence, description,
nature, custody, condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter.” Fed. R. Civ. P.
26(b)(1). There are, however, boundaries and the Court can limit discovery where “the
burden or expense of the proposed discovery outweighs its likely benefit, considering the
needs of the case, the amount in controversy, the parties’ resources, the importance of
the issues at stake in the action, and the importance of the discovery in resolving the
issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii).
Rule 34(a) authorizes parties to propound to one another requests for the
production of documents and other things within the scope of Fed. R. Civ. P. 26(b). A
request to produce must include a reasonably particular description of the items to be
inspected; specify a reasonable time and place for the inspection and related acts; and
specify the form(s) in which electronically stored information should be produced. Fed. R.
Civ. P. 34(b)(1). The recipient of the request has 30 days within to respond. Fed. R. Civ.
P. 34(b)(2)(A). In its response, the recipient must state that inspection and related
activities will be permitted or object and include the reasons for the objections. Fed. R.
Civ. P. 34(b)(2)(B).
Copies of any and all correspondence with Luxottica regarding
or relating to settlement of the employment discrimination
claims that were asserted by the Plaintiff against Luxottica and
Plaintiff does not have in her possession and therefore cannot
produce copies of any and all correspondence that her
attorney may have sent to or received from Luxottica's
attorney regarding or relating to the settlement of the
employment discrimination claims that were asserted by the
Plaintiff against Luxottica and Sears. Plaintiff objects to
producing copies of the requested correspondence on
grounds that it is privileged attorney work product and
privileged communication between the attorneys for the
parties in the context of settlement. In addition, Plaintiff
objects to this item of Defendant's request to produce on
grounds that it is propounded as an exercise to obtain some of
the same documents that Defendant's counsel already has in
her possession and on grounds that the request is
propounded to annoy and harass the Plaintiff and Plaintiff’s
counsel by creating work for them to identify, copy and
produce the requested documents.
While she generally asserts privilege, Plaintiff has not explained why the
requested materials are privileged. See Fed. R. Civ. P. 26(b)(5)(A) (stating that a party
who claims privilege must “describe the nature of the . . . communications . . . .”). She
has not submitted a privilege log nor cited any legal authority in support of her position.
Some of the documents Sears has requested were created by counsel for Luxottica.
“Ordinarily, the work product doctrine does not shield from discovery documents created
by third parties.” Hunter’s Ridge Golf Co., Inc. v. Georgia-Pacific Corp., 233 F.R.D. 678,
681 (M.D. Fla. 2006). And, Plaintiff does not claim that any of the documents created by
her attorney were prepared in anticipation of litigation or for trial.
To the extent Plaintiff argues that the sought information is privileged settlement
communications protected by Federal Rule of Evidence 408,1 this Court has previously
noted that Rule 408 does not bar discovery of information concerning a settlement. See
U.S. ex. rel. RMP Capital Corp. v. Turner Const. Co., 6:11-cv-1983-Orl-19TBS, 2012 WL
6552063 (M.D. Fla. Dec. 14, 2012) (citing In re Denture Cream Prods. Liab. Litig., No. 092051, 2011 WL 1979666 (S.D. Fla. May 20, 2011); Griffin v. Mashariki, No. 96 CIV.
Plaintiff never directly mentions Rule 408, but she responds to Sears’ argument
discussing the Rule. (Doc. 36 at 4).
6400(DC), 1997 WL 756914 (S.D.N.Y. Dec. 8, 1997); Tribune Co. v. Purcigliotti, No. 93
Civ. 72222 (LAP)(THK), 1996 WL 337277 (S.D.N.Y. June 19, 1996)). Rule 408 governs
the admissibility of evidence and does not speak to discovery matters. See Fed. R. Evid.
408; Jeld-Wen, Inc. v. Nebula Glass Int’l, Inc., No. 05-60860-CIV, 2007 WL 1526649 *3
(S.D. Fla. May 22, 2007) (“But again, admissibility issues should not drive the discovery
issue.”). Lastly, Plaintiff argues that Sears already has the requested documents in its
possession. In support of this argument, she has attached some of the documents to her
response, in direct conflict with her assertion that the sought discovery is privileged. For
these reasons, the Court finds the requested discovery is not privileged work product or
protected communications under Rule 408.
Next, Plaintiff states that the documents sought in Request 2 are not in her
possession, but are instead in the possession of her attorney. Rule 34 provides that a
party may serve a request to produce documents in the responding party’s “possession,
custody, or control.” Control is a “party’s legal right, authority, or practical ability to
obtains the materials sought on demand.” Desoto Health & Rehab, L.L.C. v. Philadelphia
Indem. Ins. Co., No. 2:09-cv-599-FtM-99SPC, 2010 WL 4853891 *3 (M.D. Fla. Nov. 22,
2010) (quoting In re Wright, 2005 WL 6488101 *3 (N.D. Ga. Aug. 9, 2005)). Because
Plaintiff can easily acquire the documents from her attorney, who has represented her in
both cases, the Court finds that the materials are within her control.
Plaintiff also argues that Sears is not entitled to the sought discovery because the
information is likely already in its possession. She has not cited any legal authority to
support her argument that she is relieved of her duty of production because the opposing
party might already possess the sought information. And, she has not identified with
particularity the documents she thinks both parties possess, so there is no way for Sears
or the Court to know if both parties already have the same information.
Finally,2 Plaintiff contends that Request 2 is not reasonably calculated to lead to
the discovery of admissible evidence. In this lawsuit, Plaintiff seeks damages based
upon Sears’ alleged interference with her employment by Luxottica. Sears maintains that
Luxottica terminated Plaintiff because she failed to follow Luxottica’s policies. Thus,
information relating to Plaintiff’s settlement with Luxottica is relevant to the factual issues
in this case. Now, Plaintiff’s objections are OVERRULED and Sears’ motion to compel
Request 2 is GRANTED.
Copies of any documents obtained from Luxottica since
December 28, 2009, relating to the Plaintiffs employment or
her claims against Luxottica and/or Sears.
Plaintiff does not have in her possession and therefore cannot
produce copies of the documents requested in this item of
Defendant's request to produce as said documents are in the
possession of her attorney. Based upon Plaintiffs attorney's
information and belief, Defendant's counsel already has in her
possession copies of the documents that are being requested
in this item of Defendant's request to produce. Therefore
Plaintiff objects to this item of Defendant's request to produce
on grounds that it is propounded as an exercise to obtain the
same documents that Defendant's counsel already has in her
possession and on grounds that the request is propounded to
annoy and harass the Plaintiff and Plaintiff’s counsel by
creating work for them to identify, copy and produce the
For the reasons stated above, Plaintiff’s objections are OVERRULED and Sears’
motion to compel Request 5 is GRANTED.
Within 14 days of the issuance of this order Plaintiff shall produce all documents
In her response, Plaintiff notes that she too, has propounded a Second Request for
Production on Sears, in which she seeks similar information. She states that Sears has
objected to her requests and has not produced the desired materials. Because Plaintiff
does not assert that these facts relieve her of her duty to produce, the Court will not
address these statements in greater detail.
responsive to Sears’ Second Requests for Production Numbers 2 and 5.
If the Court grants a motion to compel, it must require the party whose conduct
necessitated the motion to pay the movant’s reasonable expenses incurred in making the
motion. Fed. R. Civ. P. 37(a)(5)(A). Exceptions exist if (1) the movant filed the motion
before attempting in good faith to obtain the discovery without court action; (2) the
opposing party’s nondisclosure was substantially justified; or (3) other circumstances
make an award of expenses unjust. Id. None of the exceptions are present here.
Therefore, within 14 days from the issuance of this Order, the parties shall agree upon
the amount of attorney’s fees and costs to be awarded to Sears or, Sears shall file a
motion for fees and costs and then Plaintiff shall have 14 days to respond.
DONE and ORDERED in Orlando, Florida on September 20, 2013.
Copies furnished to Counsel of Record
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