Johnston v. Borders et al

Filing 171

ORDER denying 161 Plaintiff's Motion for Sanctions. See Order for details. Signed by Judge Paul G. Byron on 9/14/2018. (SCM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JACQUELYN JOHNSTON,
Plaintiff,
v.

Case No: 6:15-cv-936-Orl-40DCI

GARY S. BORDERS and JENNIFER
FERGUSON,
Defendants.
/
ORDER
This cause is before the Court on Plaintiff Jacquelyn Johnston’s Motion for
Sanctions for Discovery Violations and For Violations of Fed. R. Civ. P. 11. (Doc. 161).
Defendants Borders and Ferguson have submitted their Response in Opposition, (Doc.
164), and Plaintiff has filed her Reply. (Doc. 169). Upon due consideration of the
pleadings, Plaintiff Johnston’s motion is denied.
I.

BACKGROUND
A.

Discovery Deadline

The pertinent procedural history is straightforward. Plaintiff filed her Complaint on
June 9, 2015, (Doc. 1), and her Amended Complaint on September 11, 2015. (Doc. 23).
In due course, the Court issued a Case Management and Scheduling Order. (Doc. 26).
Upon an unopposed motion of Defendants, the Court amended the scheduling order and,
in part, extended discovery through July 1, 2016. (Docs. 40, 46). The parties thereafter
submitted a joint motion to modify the scheduling order (Doc. 50), and the Court granted
that motion, moving the deadline for completion of discovery to September 2, 2016. (Doc.

52). The second motion for modification of the scheduling order was filed on June 16,
2016. (Doc. 50).
B.

The Euthanasia Form

On June 9, 2016, Major Wayne Longo was deposed by Plaintiff’s counsel. (Doc.
161, p. 3). The record is silent as to whether Plaintiff had attempted to schedule Major
Longo’s deposition prior to June 9, 2016. Simple math teaches that Major Longo’s
deposition was conducted nine (9) months after Plaintiff filed her Amended Complaint. At
his deposition, Major Longo produced a Euthanasia Form, which is at the heart of the
current dispute. (Id.). By all accounts, June 9, 2016 is the first time Plaintiff’s counsel laid
eyes on the Euthanasia Form. (Id.). 1 It was readily apparent to counsel for both parties
that the Euthanasia Form contained white out where the words “No Space” appeared five
(5) separate times. (Doc. 161, p. 3; Doc. 164, p. 4).
Major Longo testified at deposition that he received the Form from Diane Hagan.
(Doc. 161, p. 2, quoting Longo Depo. 17:18-19). Ms. Hagan’s deposition was set for June
30, 2016, and on June 24, 2016 Plaintiff’s counsel asked Defendants’ counsel to bring
the original Euthanasia Form to Ms. Hagan’s deposition. (Id. at 4). Plaintiff’s counsel
communicated this request to Defendants’ lawyer as follows:
Attached please find Notices and Subpoenas for Diane Hagan
and Cynthia Williams. For the purposes of inspection and
Diane’s deposition, we would like the original of the attached
10/9/14 Euth Reason Log.

1

Plaintiff argues that her counsel did not become aware of this form in connection with
Defendants’ Rule 26 disclosures. (Id.). Neither party has submitted Defendants’ Rule 26
disclosures; however, Defendants contend their disclosure identified “Documents
related to Plaintiff’s termination” as a category of documents pertinent to the reasons for
Plaintiff’s termination. (Doc. 164, p. 10). It is not clear whether Defendants produced
these documents to Plaintiff or made them available for inspection.

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On the copy produced there seems to be items that had been
whited out and written over top of in a different ink and
accordingly, we would like to inspect the original and ask Ms.
Hagan questions about it since testimony has been given that
she is the only one that wrote on the document.
(Doc. 161, p. 5). 2
Five days after Plaintiff’s email, counsel for the Defendants’ replied to the
request for production of the original Euthanasia Form:
We have already produced the document. If you think it’s been
altered, you can certainly inquire about it at Ms. Hagan’s
deposition. If you would still like to view the original after her
deposition, we will make the original available for you to view
at the Sheriff’s Office.
(Id.). According to counsel for the Defendants, Plaintiff’s counsel did not coordinate with
them to inspect the original form before the close of discovery on September 2, 2016.
(Doc. 164, p. 2). Plaintiff does not challenge the accuracy of this fact.
C.

Post-Remand Informal Discovery

On January 11, 2017, this Court granted Defendants’ Motion for Summary
Judgment. (Doc. 98). The Eleventh Circuit Court of Appeals reversed this Court on April
14, 2018. Following remand, Plaintiff picked up her pursuit of the original Euthanasia
Form and sent an e-mail on July 5, 2018 to Defendants’ counsel to schedule inspection
of the form. (Doc. 161, p. 6). The following day, Defendants’ counsel agreed to produce
the original form for inspection. (Id.).
On July 13, 2018, Defendants’ counsel informed Plaintiff that the Euthanasia Form
may have been sent to the County and offered to stipulate that the form contained white
out in certain places consistent with Ms. Hagan’s deposition. (Doc. 164, p. 8). On July 19,

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Plaintiff apparently did not issue a subpoena duces tecum, because insufficient time
remained between the deposition of Major Longo and the upcoming Hagan deposition.

3

2018, following the pretrial conference, Plaintiff’s counsel was advised that the original
form had been located. (Doc. 161, p. 7). The original form was inspected by the Plaintiff
on August 2, 2018, and the parties agree that beneath the white out the word “Behavior”
is written. (Id.). A hotly contested issue is whether dogs held in the shelter had been
euthanized to make more space or for behavioral issues.
II.

THE ISSUES
Plaintiff claims Defendants’ counsel intentionally failed to produce the original form

at an earlier stage in the litigation to prevent Ms. Johnston from learning that the form had
been altered to reflect dogs were euthanized to make space—as opposed to euthanized
for behavioral issues—which justified her termination and resulted in her nearly universal
public condemnation. (Doc. 161, pp. 7-10). Plaintiff further argues that Defendants’
Answer and Affirmative Defense in which they contend the statements made to the media
were true amounts to a Rule 11 violation, as the Euthanasia Form negates the truth of
the public statements made by the Sheriff. (Id. at pp. 13-14).
III.

DISCUSSION
Fed. R. Civ. P. 26(a)(1)(A) imposes the duty upon a party to disclose the following

to opposing counsel:
(ii) a copy—of a description by category and location—of all
documents, electronically stored information, and tangible
things that the disclosing party has in its possession, custody,
or control and may use to support its claims or defenses …
Defendants claim they disclosed “documents related to Plaintiff’s termination” as a
category of documents pertinent to the reasons for Plaintiff’s termination. (Doc. 164, p.
10). Clearly, the Euthanasia Form was not present in this document compilation.
Defendants acknowledge in their response that Major Longo brought the Euthanasia

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Form to the deposition, and defense counsel reviewed it on a break and realized “it was
not the same as the animal disposition reports or animal intake reports that were
previously produced” as part of the 10,000-page discovery production. (Doc. 164, pp. 34).
Plaintiff takes issue with Defendants’ claim of ignorance regarding the existence
of the Form at the time of their Initial Disclosures 3; yet, there is no record evidence to
support the premise that Defendant is being less than candid in this regard. Plaintiff
argues that Defendant was required to supplement their Rule 26 disclosure upon learning
of the existence of the original Euthanasia Form. (Doc. 161, p. 9). The duty to supplement
one’s Initial Disclosures is triggered by the disclosing party having learned “that in some
material respect the disclosure . . . is incomplete or incorrect, and if the . . . corrective
information has not otherwise been made known to the other parties during the discovery
process or in writing.” See Rule 26(e).
The parties agree that it was clear from the Euthanasia Form produced during
Major Longo’s deposition that portions had been whited out. In fact, on June 24, 2016,
Plaintiff asked the defense to bring the original form to the deposition of Ms. Hagan
because data fields showing “No Space” appear to have been altered. Thus, Plaintiff was
aware that the copy was “incomplete” or possibly “incorrect,” and she could have required
Defendants to produce the original Euthanasia Form for inspection. Defendant correctly
argues they were under no obligation to supplement their Initial Disclosure to identify the
original form which Plaintiff already knew existed and was in possession of the defense.

3

See Doc. 161, p. 9.

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In response to Plaintiff’s e-mail on June 24, 2016, the defense advised Plaintiff that
she could question Ms. Hagan about the form during her deposition and could inspect the
original Euthanasia Form following her deposition. The Defendants’ response is dated
five (5) days after Plaintiff’s request and was sent at 5:04 p.m. (Doc. 161-5). Ms. Hagan’s
deposition was scheduled to commence the following morning. Clearly, defense counsel
waited until the last moment to advise Plaintiff that the original would not be available for
use at Ms. Hagan’s deposition. While such sharp practice is frowned upon, Plaintiff could
have canceled the deposition, served a notice of deposition duces tecum, and reset Ms.
Hagan’s deposition to allow Plaintiff’s counsel to explore the original Euthanasia Form.
Alternatively, Plaintiff could have postponed the deposition, inspected the original, and
reset the deposition. Either alternative was possible between June 29, 2016 and the close
of discovery on September 2, 2016. However, Plaintiff elected to go forward with Ms.
Hagan’s deposition absent the original form. It is undisputed that the original form was
available for inspection following Ms. Hagan’s deposition, and Plaintiff does not challenge
Defendants’ contention that she failed to inspect the original form prior to the close of
discovery.
Plaintiff further argues that while she failed to inspect the original form between
June 9, 2016—the date of Major Longo’s deposition—and September 2, 2016—the close
of discovery, Defendants were under an affirmative duty to examine the original form and
alert Plaintiff that one could see the word “Behavior” under the data fields where “No
Space” is written over the white out. The Court finds this takes the intent of Rule 26 too
far. The Plaintiff and Defendants both learned of the existence of the Euthanasia Form
on June 9, 2016. Both parties knew at that time the form appeared to have been altered

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via white out. Defendant made the original form available for inspection within six (6) days
of Plaintiff’s request. Arroyo Process Equipment, Inc. v. SPX Corporation, No. 8:12-cv1862, 2013 WL 12157584, at *1 (M.D. Fla. Jan. 16, 2013) (defendant complies with Rule
26 by making the document available for inspection). If the Plaintiff fails to take advantage
of the offer to inspect the documents in Defendants’ possession, she cannot be heard to
complain that Defendant did not examine the document to discern its favorability to
opposing counsel.
Plaintiff suggests that is strains credulity that defense counsel did not examine the
original form following Major Longo’s deposition and instead first saw the original on July
18, 2018. (Doc. 169, p. 1). Likewise, Plaintiff characterizes Defendants’ July 13, 2018
offer to stipulate to the presence of white out on the original form in lieu of inspecting the
document as evidence the defense knew the form was unfavorable to their theory of the
case and attempted to conceal that from Plaintiff. (Doc. 161, pp. 6-7). Defendants’
counsel asserts they did not immediately pursue viewing the original form but did question
several witnesses about the form and possible alteration. (Doc. 164, p. 4). To be sure,
one would expect experienced and even minimally curious counsel to promptly obtain
and examine the original document when its veracity has been called into question,
particularly where, as here, the document is helpful, if not critical, to the defense’s case.
One would also expect experience counsel to examine the original document before one’s
adversary inspects the document. Hence, the Court shares Plaintiff’s astonishment that
defense counsel first examined the original on July 18, 2018. There is no evidence,
however, to suggest that defense counsel were not candid in their representation that

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July 18, 2018 is the first time they laid eyes on the original Euthanasia Form, and the
Court accepts their representation on this point.
As previously discussed, even if Defendants’ attorneys were well aware on June
9, 2016 or in the days following that the original form revealed the word “Behavior” under
the white out, Plaintiff knew the original existed and knew it had been modified with white
out. All Plaintiff had to do was examine the document which could easily have been
accomplished prior to September 2, 2016. The defense must make documents available
to opposing counsel, but they are not tasked with separating the wheat from the chaff.
Because the Defendants had not seen the original Euthanasia Form at the time
the Answer and Affirmative Defenses was filed, they cannot be held to that knowledge in
hindsight and, accordingly, Rule 11(b) is inapplicable. To the extent Plaintiff contends
Defendants were duty-bound to withdraw their Second and Third Defenses upon
examination of the original Euthanasia Form (Doc. 161, pp. 14-16), the Court disagrees.
The parties dispute whether the true reason for the euthanasia of the five (5) dogs was
for behavioral issues or lack of space—both explanations appearing on the Euthanasia
Form—defense counsel had no duty to withdraw the relevant defenses.
IV.

CONCLUSION
The existence of the Euthanasia Form, and the presence of white out masking

some alteration, was well known to the parties by June 9, 2016. The Defendants promptly
made the original form available to the Plaintiff, but the invitation to inspect the original
was not acted upon prior to the close of discovery. Neither did Plaintiff bring the newlydiscovered evidence to the attention of this Court when seeking the second amendment
to the scheduling order, which motion was filed on June 16, 2016 (Doc. 50), seven (7)

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days after Major Longo’s deposition. While there is little doubt the Plaintiff would have
preferred to question Ms. Hagan with the original Euthanasia Form, Plaintiff elected to go
forward with the deposition absent the original form. Perhaps a motion to conduct a followup deposition utilizing the original form would have been favorably entertained by the
Court, but no such request was made prior to the close of discovery or since.
Sanctions for discovery violations are serious matters and should not be lightly
imposed. The record here is inadequate to support the relief requested by Plaintiff.
Accordingly, Plaintiff’s Motion for Sanctions (Doc. 161) is DENIED.
DONE AND ORDERED in Orlando, Florida on September 14, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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