Dang v. Sheriff of Seminole County et al

Filing 114

ORDER granting in part and denying in part 95 Motion to Compel Production of Documents. Signed by Magistrate Judge Thomas B. Smith on 2/19/2015. (SMW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NAM DANG,
Plaintiff,
v.

Case No: 6:14-cv-37-Orl-31TBS

SHERIFF OF SEMINOLE COUNTY,
FLORIDA, OLUGBENGA OGUNSANWO,
SANDRA WILT, BRENDA PRESTONMAYLE, ALECIA SCOTT, SHARYLE
ROBERTS and MARTHA DENSMORE,
Defendants.
ORDER
This matter comes before the Court on Plaintiff Nam Dang’s Motion to Compel
Response to Request to Produce (Doc. 95), which is due to be GRANTED in part and
DENIED in part.
Background1
On November 18 or 19, 2014,2 Plaintiff served a request for production of
documents on Defendant Donald F. Eslinger, sued here in his official capacity as Sheriff
of Seminole County. (Doc. 95, p. 1; Doc. 96, p. 2). On December 22, counsel for the
Sheriff emailed Plaintiff’s counsel asking for additional time to respond. (Id.). On
December 29, Plaintiff’s attorney rejected an open-ended extension of time. (Id.). Later

1
The facts of the underlying litigation are summarized in previous orders (see, e.g., Doc. 100), and
the Court will not repeat them here.
2
The parties differ by a day over the date the requests were served, but that disagreement is not
material to resolution of this motion; either way, the Sheriff failed to produce documents in a timely manner.

that day, the Sheriff informed Plaintiff that the responses would be provided no later than
January 9, 2015. (Id.).
On December 31, the Sheriff served a response to the request. (Doc. 95, p. 2;
Doc. 95-1). In the response, the Sheriff raised objections to Requests 2, 8, 10, 12, and
18. (Doc. 95-1). For most of the remaining requests, the Sheriff provided boilerplate
responses along the lines of “The requested documents will be produced or made
available for inspection and copying” (Requests 3–5, 7), “If any such recordings are
extant, they will be produced” (Requests 13–15, 17), or “Search will be made for all emails
dealing with Mr. Dang” (Requests 21–23). (Id.).
On January 7, 2015, counsel conferred regarding the time frame for producing
responsive documents and the Sheriff’s objections. (Doc. 95, p. 2). After the Sheriff
failed to produce responsive documents by the promised January 9 date, Plaintiff filed the
instant motion on January 13, seeking an order compelling the production of the
requested documents within five days. (Id.).
Later that day, the Sheriff filed his response. (Doc. 96). The Sheriff did not
seriously dispute the inadequacy of his production or the merits of the Plaintiff’s motion.
(See id., p. 2 (conceding that some of the Sheriff’s responses were “technically”
inadequate)). Instead, the Sheriff suggested that the motion was premature. (Id.).
Counsel for the Sheriff explained that, while the request for production was received by
email on November 19, it was not sent to the agency until December 3. (Id.). The
Sheriff insisted that the response “was meaningful” and not “knee jerk” and was indicative
of “cooperation” and “not obstruction.” (Id., p. 3). The Sheriff added that acquiring the
requested materials was “simply taking some time” and that production would “be taking
place over the next several days.” (Id.). The Sheriff insisted that an order compelling

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production in five days was “not necessary or useful to the [discovery] process” and
requested instead that the Court grant an extension of time for the Sheriff’s production.3
(Id., p. 4).
On January 15, the Court held a hearing on this and two other discovery motions.
At the hearing, the Sheriff reiterated his position that production was ongoing and would
be completed in the near future. (Doc. 100, p. 2). Plaintiff agreed to allow the Sheriff
two additional weeks to complete the production. (Id.). Based on the parties’
agreement, the Court entered an order carrying the motion until January 29.
On January 28, Plaintiff filed a status report stating that the Sheriff had not yet
provided full production and requesting the Court enter an order compelling production.
(Doc. 102). The Sheriff filed a response to the status report on February 5, stating that
production was “almost complete.” (Doc. 107). After reviewing these filings, the Court
entered an order instructing the parties to file status reports on February 10 if all issues
raised in the motion to compel were not resolved by the close of business on February 9.
(Doc. 108). On February 10, the parties filed a joint status report indicating that
production was not yet complete, but that Plaintiff agreed to give the Sheriff until 4:00
p.m. on February 16, 2015 to complete production. (Doc. 109).
On February 16, the parties filed their final status reports. The Sheriff states that
all responsive documents have been produced except for Requests 12 and 24, to which
the Sheriff objected. (Doc. 111). The Sheriff objects to Request 12, which seeks “all
nurse sick call forms submitted” at the jail in 2011 and 2012, on the grounds that it is
unduly burdensome (there are approximately 24,000 such forms). (Id., p. 2). The

3

The Sheriff did not say how long he thought this extension should be.

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objection to Request 12 is materially identical to the objection asserted in the Sheriff’s
original response. The Sheriff also objects to Request 24, which seeks “all agendas,
minutes, and reports generated for or provided to the Quality Assurance meetings for ...
2010 through 2013,” asserting alternatively that the materials requested are privileged or
that “maintaining confidentiality of the subject materials is critical to the continued integrity
and purpose of the quality assurance process.” (Id., pp. 2–3). Plaintiff’s status report
confirms that the Sheriff has objected to Requests 12 and 24 and that these objections
“will be addressed separately.” (Doc. 112). However, Plaintiff also raises concerns
regarding the Sheriff’s responses to Requests 3, 9, 11, 17, and 19. (Id.). Plaintiff
complains further that the Sheriff has still not provided a formal amended response. (Id.,
p. 3). On February 18, over 90 days after Plaintiff served the production request and 49
days after the Sheriff served his original response to the request, the Sheriff served an
amended response including the objections to requests 12 and 24. (Doc. 113)
Discussion
Rule 34(a)(1) allows parties to serve requests “to produce and permit the
requesting party or its representative to inspect, copy, test, or sample” documents,
electronically stored information, or other “tangible things” that are “in the responding
party’s possession, custody, or control.” Such requests “(A) must describe with
reasonable particularity each item or category of items to be inspected; (B) must specify a
reasonable time, place, and manner for the inspection...; and (C) may specify the form or
forms in which the electronically stored information is to be produced.” FED. R. CIV. P.
34(b)(1).
A party that receives a request for production of documents has 30 days to
respond. FED. R. CIV. P. 34(b)(2)(A). For each request, the response must either state

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that inspection ... will be permitted as requested or state an objection to the request,
including the reasons.” FED. R. CIV. P. 34(b)(2)(B). Documents must be produced as
they are kept in the ordinary course of business or must be “organize[d] and label[ed] to
correspond to the categories in the request.” FED. R. CIV. P. 34(b)(2)(E)(i).
When a party “fails to respond that inspection will be permitted—or fails to permit
inspection—as requested under Rule 34,” the requesting party can move for an order
compelling production. FED. R. CIV. P. 37(a)(3)(B)(iv). “[A]n evasive or incomplete
disclosure, answer, or response” to a discovery request is “treated as a failure to disclose,
answer, or respond.” FED. R. CIV. P. 37(a)(4).
It is undisputed that the Sheriff original responses failed to comply with the
requirements of Rule 34. Although the language of Rule 34 suggests that a response
stating that inspection “will be permitted as requested” is adequate, this presupposes that
(1) the response complies with the other provisions of Rule 34 (for example, the usualcourse-of-business requirement for production of documents and the format requirements
for production of ESI), and (2) the inspection is in fact permitted or the documents are in
fact produced as requested. As the Middle District Discovery Handbook explains,
“A party and counsel ordinarily have complied with the duty to
respond to a document request if they have:
(a) Responded to the requests within the time set by [Rule 34];
(b) Objected with specificity to objectionable requests;
(c) Produced the documents themselves (or copies),
specifically identified those documents that are being or will be
produced, or specified precisely where the documents can be
found and when they can be reviewed;
(d) Stated specifically that no responsive documents have
been found; and

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(e) Ensured a reasonable inquiry with those persons and a
reasonable search of those places likely to result in the
discovery of responsive documents.
Middle District Discovery 9–10 (2001), available at
https://www.flmd.uscourts.gov/forms/Civil/Discovery_Practice_Manual.pdf. The Sheriff,
in his original response simply said that he would produce the requested documents in
the future, without producing the documents or specifying how, where, or when the
documents would be produced. A “vague, open-ended response [that] merely ‘state[s]
an intention to make some production at an unspecified date of [the responding party’s]
own choosing[,] ... is not a complete answer as required by Rule 34(b), and therefore,
pursuant to Rule 37(a)(3) is treated as a failure to answer or respond.’” Silicon Knights,
Inc. v. Epic Games, Inc., 917 F. Supp. 2d 503, 533–34 (E.D.N.C. 2012) (quoting Kinetic
Concepts, Inc. v. ConvaTec Inc., 268 F.R.D. 226, 247 (M.D.N.C. 2010)).
As for specific document requests, the Court finds based on the parties’ status
reports that the Sheriff has completed production of documents responsive to requests
numbered 1, 2, 4–8, 10, and 13–23.4 (See Docs. 111–13). Accordingly, as to those
requests, Plaintiff’s motion is DENIED as moot. The Court will address the remaining
requests in turn.
Request 3: “A complete copy of all agendas, minutes, and reports generated for or
provided to MAC for MAC meetings during calendar years 2010 through 2013.”
Plaintiff’s status report states that the Sheriff has provided the minutes but has not
produced documents attached to the minutes. According to Plaintiff, the Sheriff’s

4
The parties disagree over what documents are responsive to Requests 10 and 17, but the Sheriff
already produced the documents that Plaintiff thinks are responsive. There is no reason to believe that the
disagreement over which documents are responsive to which requests caused the Sheriff to fail to produce
relevant documents, so the disagreements over these requests are merely academic.

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attorney said on February 13 that counsel was reviewing the documents prior to
producing them, but as of February 18, Plaintiff had not received any further response.
(Doc. 112, pp. 1–2). The Sheriff’s amended response to the production request states
that these documents have been provided. (Doc. 113, p. 2) On the understanding that
the Sheriff has produced all responsive documents, including the attachments, the Court
DENIES Plaintiff’s motion as moot as to this request.
Request 11: “A copy of any and all complaints and/or grievances received regarding
provision for or access to healthcare and John E. Polk Correctional Institute from January
1, 2011 through December 31, 2012.”
According to Plaintiff, Defendant has provided “some grievances from 2011” and
stated that they do not believe there are any grievances from 2012 “but are working to
confirm that.” As of February 18, Plaintiff had not received any further response.
(Doc. 112, p. 2). Defendant’s amended response to the production request states that
all inmate grievances have been provided, but adds that “[w]ith respect to formal legal
complaints, claims or lawsuits, that issue has been discussed with counsel.” On the
understanding that the Sheriff has produced all inmate grievances from 2011 and 2012,
the Court DENIES Plaintiff’s motion as moot as to this request.
Request 12: “A copy of any and all nurse sick call forms submitted for the period of
January 1, 2011 through December 31, 2012.”
In his original response, the Sheriff objected to this request on the grounds that it
was unduly burdensome and unlikely to lead to the discovery of relevant information, and
he has since repeated this objection. (Doc. 95-1, p. 4). Plaintiff did not make any
argument regarding this objection in his motion, and as a result the parties have not
briefed the issue. The Court concludes that the propriety of the Sheriff’s objection is
beyond the scope of Plaintiff’s motion, and infers from the absence of any request from

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Plaintiff to overrule the objection or the Sheriff to issue a protective order that any
disagreement regarding this request has been resolved. To the extent Plaintiff’s motion
included an unstated request that the Court overrule the Sheriff’s objections to Request
12, the request is DENIED, since the objection is reasonable on its fact and Plaintiff has
offered no reason to overrule it.
Request 24: “A complete copy of all agendas, minutes and reports generated for or
provided to the Quality Assurance meetings for calendar years 2010 through 2012.”
In his initial response to this request the Sheriff said that “the requested documents
will be produced.” (Doc. 95-1, p. 7). Now, however, the Sheriff has raised an objection
to the request, asserting (1) that the materials “are either privileged by virtue of Florida
statutory and common law; or by federal statute or federal case law”; and (2) that keeping
the materials confidential “is critical to the continued integrity and purpose of the quality
assurance process.” (Doc. 111, pp. 2–3; Doc. 113, pp. 9–10). The Sheriff waived these
objections when he failed to assert them in his initial response. The Court overrules all
of the Sheriff’s out-of-time objections, GRANTS the motion as to this request, and
ORDERS the Sheriff to produce all responsive documents by the close of business on
Tuesday, February 24, 2015. If the Sheriff requests measures be taken to protect the
interests of nonparties (e.g., the privacy interests of other prisoners), the Court anticipates
that Plaintiff will be reasonable in accommodating those interests; however, Plaintiff need
not agree to measures that will further delay the Sheriff’s already late production.
When a court grants a motion to compel, or the requested discovery is provided
after the motion is filed, the requesting party is entitled to its costs, including reasonable
attorney’s fees, unless (i) the requesting party failed to make a good faith attempt to
obtain the discovery without a court order; (ii) the responding party’s position was

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substantially justified; or (iii) other circumstances make an award of expenses unjust.
FED. R. CIV. P. 37(a)(5)(A). If a motion to compel is denied, the party opposing the
motion is entitled to recover its expenses, unless the motion was substantially justified or
other circumstances make an award of expenses unjust. FED. R. CIV. P. 37(a)(5)(B). If
a motion is granted in part and denied in part, the court may make a reasonable
apportionment of expenses for the motion. FED. R. CIV. P. 37(a)(5)(C).
The Court has mostly denied Plaintiff’s motion as moot, due to Defendant’s
subsequent production of the documents. In addition, the Court has overruled the
Sheriff’s untimely objections to Request 24, which were made after the Sheriff promised
to produce responsive documents. The only request for which the Court has not granted
Plaintiff relief or denied as moot is Request 12, an objection that Plaintiff has spent no
time or effort (and, importantly, incurred no fees or expenses) disputing before the Court.
The Sheriff offered no substantial justification for his lethargic production, and no other
circumstances make an award of expenses unjust. Finally, while some attorneys might
not have filed the motion to compel as soon as Plaintiff’s did, there is no basis for finding
that counsel failed to confer in good faith in attempt to obtain the requested documents
before filing the motion. Rule 37(a)(1) and Local Rule 3.01(g) require counsel to make a
good faith effort—not a heroic one—to resolve a discovery dispute before filing a motion.
Accordingly, the Court finds that the Sheriff should bear the expenses of litigating the
motion.
Plaintiff’s Motion to Compel is GRANTED in part and DENIED in part as set forth
above. The Sheriff is ORDERED to produce documents responsive to Request 24 by
the close of business on Tuesday, February 24, 2015. Within 14 days of this order, the
parties shall agree upon the amount of attorney’s fees and costs to award Plaintiff, or

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Plaintiff shall file a motion for fees and costs with the Court, following which the Sheriff
shall have 14 days to respond.5
DONE and ORDERED in Orlando, Florida on February 19, 2015.

Copies furnished to Counsel of Record

Should he prevail in this case, Plaintiff should omit fees incurred in litigating this motion from any
petition for attorney’s fees under 42 U.S.C. § 1988.
5

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