Southern Atlantic Companies, LLC et al v. School Board of Orange County, Florida

Filing 36

ORDER granting in part and denying in part 32 Motion to Compel discovery. Signed by Magistrate Judge Thomas B. Smith on 12/28/2015. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SOUTHERN ATLANTIC COMPANIES,
LLC, EDWARD HUTCHINS and
RAYMOND MCINTOSH,
Plaintiffs,
v.

Case No: 6:15-cv-254-Orl-31TBS

SCHOOL BOARD OF ORANGE
COUNTY, FLORIDA,
Defendant.
ORDER
Plaintiffs bring this action pursuant to the Civil Rights Act of 1871, 42 U.S.C. §
1983. They complain that Defendant violated their rights under the First and Fourteenth
Amendments to the Constitution by retaliating against them for exercising their rights of
free speech (Doc. 30). The current discovery deadline is March 1, 2016, and the case is
on the Court’s trial term commencing August 29, 2016 (Doc. 19).
On May 26, 2015 I held a preliminary pretrial conference to discuss Plaintiffs’
discovery of Defendant’s electronically stored information (ESI). At the conference,
Defendant advised that one of the three servers it utilized in 2010 and until recently had
been corrupted and that the corruption may have spread to one or both of Defendant’s
other servers. Defendant said it had engaged a contractor to move all of its ESI from the
three servers to one or more new servers, and that the work should be completed by
August 2015 (Doc. 27). Until then, Defendant said it was unable to search its servers.
I ordered Defendant to search its servers (when possible) and the computers of
the fifteen employees referenced by Plaintiffs at the preliminary pretrial conference for

documents containing: (1) the names of the Plaintiffs; (2) communications concerning the
decision to pursue attorney’s fees and costs against Plaintiffs; (3) communications
concerning the assignment of the claim for attorney’s fees and costs to Wharton-Smith,
Inc.; (4) communications concerning the decision whether to return the bid protest bond
posted by Plaintiffs in connection with the Oak Ridge High School renovation project; and
(5) communications concerning the decision to not award work on projects upon which
Plaintiff submits bids (Id.).
On November 25, 2015, Plaintiffs filed their Motion to Compel Production of
Documents, Amended Answers to Interrogatories, and Good Faith Cooperation in
Scheduling Depositions (Doc. 32). Defendant responded and at the Court’s direction,
Plaintiffs filed a reply (Docs. 33, 35). In their motion, Plaintiffs complained, inter alia,
about Defendant’s responses to their first requests for production and first set of
interrogatories. Numerous conferences between counsel followed, and the Court
understands that all issues with the exception of Defendant’s failure to produce
documents on its servers have been resolved. Accordingly, the Court DENIES as moot,
the motion to compel all discovery except documents on Defendant’s servers.
Defendant states that it still does not have server recoverability and that
documents are being produced as they are located. Still, Defendant states its belief that
most responsive documents have already been produced and “that we are talking about a
trickle at most.” (Doc. 33 at 3). Despite Defendant’s assurances, this is troubling.
Defendant previously represented that the server issue would be resolved by August.
Now, it is the end of December and the problem continues. Under the circumstances,
Plaintiffs have asked the Court to revisit the scheduling order which Defendant opposes.

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After due consideration Plaintiffs’ motion, in-so-far as it pertains to the servers is
GRANTED as follows. Defendant shall, within the next 14 days, file a written report
explaining what the server problem is, why it still has not been corrected, and when it will
be fixed. Since Defendant appears confidant that very few responsive documents have
not been produced, it should also explain the basis for this belief. Once the Court has
this information it will decide what, if any, additional relief to order.
DONE and ORDERED in Orlando, Florida on December 28, 2015.

Copies furnished to Counsel of Record

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