Lozada v. Hobby Lobby Stores, Inc.

Filing 28

ORDER denying 20 Motion to Compel ; denying 21 Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge Thomas B. Smith on 3/1/2016. (JMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ISMAEL LOZADA,
Plaintiff,
v.

Case No: 6:15-cv-711-Orl-41TBS

HOBBY LOBBY STORES, INC.,
Defendant.
____________________________
ORDER
This case comes before the Court without oral argument on Plaintiff’s Renewed
Motion to Compel Production of Documents (Doc. 20) and Plaintiff’s Opposed Motion to
Extend Discovery Deadline (Doc. 21). Defendant has filed responses in opposition to
both motions (Docs. 25-26). For the reasons that follow, the motions are due to be
denied.
I. Background
Defendant employed Plaintiff on a part-time basis at its store in Kissimmee, Florida
(Doc. 2, ¶ 7; Doc. 25 at 1). In February, 2015, Defendant’s employees reported
disturbing conduct by Plaintiff to the store manager and co-manager. They related that
Plaintiff had said he was angry because there was no full-time position for him (Doc. 25 at
1). Plaintiff had told one employee to “watch your back” because Plaintiff was going to
“shoot up the place.” (Id.). Plaintiff had told another employee he was going to start a
fight with his managers who “would not like what they will see.” (Id. at 2). Plaintiff had
displayed pictures of guns, told co-workers he kept a gun in his car, and said he was
going to “shoot everyone” if he did not obtain a full-time position (Id.). The employees

who reported hearing these statements and seeing the pictures gave written statements,
all of which have been produced to Plaintiff (Id. at 2-3, 15-19). Defendant reported
Plaintiff’s behavior to law enforcement, and Osceola County Deputy Sheriff Tate Wilson
responded to the store (Id. at 3). The store manager briefed Deputy Wilson who went
directly to Plaintiff’s home to interview him (Id. at 4). Plaintiff told Deputy Wilson he
wanted a full-time position, would be upset if he was not given one, and said he owned a
gun (Id. at 22). Deputy Wilson determined to take Plaintiff into custody pursuant to
Florida’s Baker Act.1 In his report the deputy wrote:
Based on the above information, I have reason to believe
[Plaintiff] is unable to determine for himself whether an
examination is necessary and there is a substantial likelihood
that without care or treatment he would cause serious bodily
harm to himself or others as evidenced by the above
described statements. I transported [Plaintiff] to the Park
Place Behavioral Health Care Facility for treatment and
evaluation. A report was taken to document the incident.
(Id.). Plaintiff was held against his will at Park Place for approximately 36 hours (Doc. 2,
¶¶ 10-11). After he was released, Defendant informed Plaintiff that his employment had
been terminated (Doc. 20 at 2). Plaintiff brings this lawsuit for false arrest, wrongful
confinement, libel, slander, and malicious prosecution (Doc. 2). Defendant removed the
case from state court to this Court based upon the existence of diversity jurisdiction (Doc.
1).
On August 4, 2015, Plaintiff propounded his first request for production to
Defendant (Doc. 20 at 2). Defendant served a timely response which included
objections to eight of the requests (Id. at 3). Plaintiff filed a motion to compel production

1 Among other things the Baker Act, also known as “The Florida Mental Health Act” provides for the
involuntary examination of persons believed to have a mental illness when “[t]here is a substantial
likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or
others in the near future, as evidenced by recent behavior.” FLA. STAT. § 394.463(1)(b)(2).

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(Id.). After the motion was filed counsel agreed that Plaintiff would withdraw the motion
to compel, and Defendant would amend and supplement its responses to the requests for
production (Doc. 25 at 24-25). The motion to compel was withdrawn, and Defendant
served its amended response in which it withdrew its objections to two requests while
maintaining and expanding upon its objections to the remaining six requests (Doc. 20 at
3). The requests to which Defendant objects seek its personnel files for the three
employees who reported Plaintiff’s statements, the store manager, co-manager, and
district manager (Id. at 3-5). Pending before the Court is Plaintiff’s motion to compel
documents in response to these requests. Request number 5 and Defendant’s initial
and supplemental responses are representative of all six requests and responses:
REQUEST: Michael Licari’s entire employee file, including
both positive and negative comments concerning Michal Licari
from any co-workers, supervisors, or staff of Defendant.
INITIAL RESPONSE: Objection. This request is overbroad
and unduly burdensome, harassing and calls for confidential
information. Further, this request seeks documents that are
confidential, irrelevant and not reasonably calculated to lead
to the discovery of admissible evidence.
SUPPLEMENTAL RESPONSE: Hobby Lobby objects to this
request on the basis that Michael Licari’s entire employment
file is not relevant to the issues or defenses in this case, and
this request is not reasonably calculated to lead to the
discovery of admissible evidence at trial. Specifically, in this
case, Plaintiff has alleged claims against Hobby Lobby for
libel, false arrest and malicious prosecution. Plaintiff has not
asserted any employment claims or any claims where the
information contained in his supervisor’s employment file
could be relevant. Moreover, this employment file contains
confidential and personal information. Hobby Lobby has
produced all information regarding Michael Licari as it relates
to the incident surrounding Plaintiff’s claims.
(Doc. 20 at 3-4).

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II. Standard
“Parties 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). As the rule makes clear,
there are limits to what a party may discover.
Parties may 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.” FED. R. CIV. P. 34(a)(1). 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). The recipient of a request for production has 30 days to respond. FED. R. CIV.
P. 34(b)(2)(A). For each request, the responding party “must either state that inspection
... will be permitted as requested or state with specificity the grounds for objecting 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).
“[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).

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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). The motion must include a
certification that the movant has in good faith conferred or attempted to confer with the
person or party failing to make disclosure or discovery in an effort to obtain it without
court action.” FED. R. CIV. P. 37(a)(1). See also M.D. FLA. R. 3.01(g). Plaintiff has
satisfied this prerequisite. “The proponent of a motion to compel discovery … bears the
initial burden of proving that the information sought is relevant.” Moore v. Lender
Processing Servs. Inc., No. 3:12-CV-205-J, 2013 WL 2447948, at *2 (M.D. Fla. June 5,
2013) (internal quotations omitted) (quoting Diamond State Ins. Co. v. His House, Inc.,
No. 10-20039-CIV, 2011 WL 146837, at *5 (S.D. Fla. Jan. 18, 2011)).
III. Discussion
Defendant does not have standing to assert its employees’ privacy rights in their
personnel files. Aidone v. Nationwide Auto Guard, LLC, No. 13-60893-civ, 985 F. Supp.
2d 1346, 1350 (S.D. Fla. 2013) (citing Adelman v. Boy Scouts of Am., No. 10-22236-civ,
276 F.R.D. 681, 694 (S.D. Fla. Aug. 19, 2011)). But, Defendant does have standing to
oppose the production of employee personnel files on the ground that the information is
not relevant to the litigation. The Court has also decided to consider the employees’
privacy interests despite Defendant’s lack of standing on account of the nature of the files
and the Court’s understanding that the employees are unaware that the files are being
sought and have not had an opportunity to object to the requests.
Defendant’s original objections are of the improper boilerplate variety. “‘Parties
are not permitted to assert these types of conclusory, boilerplate objections that fail to
explain the precise grounds that make the request objectionable.’” Arthrex, Inc. v.

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Parcus Med., LLC, No. 2:11-cv-694-FtM-29SPC, 2012 WL 5382050, at *3 (M.D. Fla. Nov.
1, 2012) (quoting Martin v. Zale Delaware, Inc., No. 8:08-CV-47-T-27EAJ, 2008 WL
5255555 (M.D. Fla. Dec. 15, 2008)); Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No. 6:14cv-749-Orl-41TBS, 2015 WL 1470971, at *3 (M.D. Fla. Mar. 31, 2015); Martin, 2008 WL
5255555 at * 1 (“Objections stating that a request is ‘vague,’ ‘overly broad,’ or ‘unduly
burdensome’ are meaningless standing alone.”).
Plaintiff argues that Defendant’s incorporation of more specific objections into its
supplemental responses is not allowed and the Court should rule based upon
Defendant’s original objections. Defendant asserts that its supplemental objections are
proper based upon the agreement of counsel that the original motion to compel would be
withdrawn, and that Defendant would supplement its response. Defendant characterizes
this as an agreement pursuant to FED. R. CIV. P. 29(b) which provides that without a court
order, the parties may stipulate that the procedures governing or limiting discovery be
modified, so long as the modification does not interfere with the discovery deadline, the
time for hearing a motion, or trial. The Court’s local rules provide that an agreement
between parties concerning a pending case, the existence of which is not conceded, must
be made before the Court and noted in the record or reduced to writing and subscribed by
the party or attorney against whom it is asserted. M.D. FLA. R. 4.15(a). Defendant relies
on an email string of messages between the parties’ attorneys (Doc. 25 at 24-25). The
emails do not unambiguously support Defendant’s claim.2 Therefore, and because
Defendant’s initial email states: “I will await your withdrawal of your motion and I will amend my
responses in the next few days to clarify which objections Hobby Lobby continues to assert and which ones
it has withdrawn.” (Doc. 25 at 25). In a follow-up email, Defendant’s counsel stated “I will get you my
amended discovery responses in the next few days unless you need them today.” (Id. at 24). Plaintiff’s
lawyer responded: “I do not need the supplemental responses today.” (Id.). Defense counsel’s original
email suggests that the parties did not agree to let Defendant add to its objections; Defendant was to clarify
what objections it would abandon and what objections it would “continue[] to assert.” (Id. at 25). At the
same time, Plaintiff’s email refers to “supplement responses,” which could be construed to mean Defendant
2

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Plaintiff denies agreeing that Defendant could amend its objections, the Court finds that
Defendant has not met its burden of proof. It follows from this finding that Defendant’s
supplemental objections were untimely.
Nevertheless, Plaintiff is not entitled to discover the personnel files. Federal
courts sitting in diversity apply state substantive law and federal procedural law.
Douglas v. Zachry Indus., Inc., No. 6:13-cv-1943-Orl-40GJK, 2015 WL 6750803, at *3
(M.D. Fla. Nov. 5, 2015) (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).
Federal courts recognize that personnel files contain private information, and that courts
should exercise caution in permitting the discovery of information which may embarrass
non-party employees. Sanchez v. Cardon Healthcare Network, LLC, No. 3:12-CV-902-J34JBT, 2013 WL 2352142, at *2 (M.D. Fla. May 29, 2013); Saldi v. Paul Revere Life Ins.
Co., 224 F.R.D. 169, 184 (E.D. Pa. 2004) (“Federal courts have recognized a “heightened
standard of relevance” for discovery of information contained in personnel files.”); Coker
v. Duke & Co., Inc., 177 F.R.D. 682, 685 (M.D. Ala. 1998).3 Federal courts recognize “a
strong public policy against the discovery of personnel files” and permit “the discovery of
such files … only if (1) the material sought is clearly relevant and (2) the need for
discovery is compelling because the information sought is not otherwise readily
obtainable.” Coker, 177 F.R.D. at 685 (internal quotations omitted).
Plaintiff argues that the contents of the personnel files are relevant because they
may contain information concerning disciplinary actions, achievements, promotions, and
other records that may be relevant to this action. Plaintiff speculates that the employees’

would be permitted to amend its objections.
3 Florida courts are in agreement. Walker v. Ruot, 111 So. 3d 294, 295 (Fla. Dist. Ct. App. 2013)
(“Personnel files undoubtedly contain private information.”).

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“disciplinary history … may support the allegations that particular employees engaged in
bad actions,” and the employees’ “achievement and promotion records may shed light …
on potential motives for promulgating rumors that ultimately resulted in the alleged false
arrest or detention of Plaintiff, their then coworker, and the termination of Plaintiff’s
employment.” (Doc. 20 at 9-10). Plaintiff also argues that the personnel files are
relevant to the employees’ credibility and partiality.
Plaintiff’s arguments fall well short of what is required to show relevancy or a
compelling need for the information. What is missing are facts to support his hopes.
See Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. High Point of Delray Beach
Condo. Ass'n, Section 1, Inc., No. 05-81040-CIV, 2006 WL 8066685, at *3 (S.D. Fla. Oct.
23, 2006) (a party seeking disclosure of a personnel file for credibility purposes must
show that it has a foundation or factual basis for its inquiry) (citing Davidson Pipe Co. v.
Laventhol & Horwath, 120 F.R.D. 455, 462–464 (S.D.N.Y. 1988)). Plaintiff has not only
failed to satisfy his burden to show the relevancy of the files, but he has also not
explained why most, if not all of the information he seeks cannot be obtained from the
employees at their depositions. Accordingly, the motion to compel is DENIED.
Plaintiff has also requested an extension of the discovery deadline to pursue
further discovery based upon facts learned from the personnel files. (Doc. 21 at 2).
Because the motion to compel is denied there is no need for the extension and that
motion is also DENIED.
DONE and ORDERED in Orlando, Florida on March 1, 2016.

Copies furnished to Counsel of Record

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