Douglas v. Kohl's Department Stores, Inc.

Filing 50

ORDER granting 39 Motion to Compel discovery. Signed by Magistrate Judge Thomas B. Smith on 4/20/2016. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PATRICIA DOUGLAS,
Plaintiff,
v.

Case No: 6:15-cv-1185-Orl-22TBS

KOHL’S DEPARTMENT STORES, INC.,
Defendant.
ORDER
Plaintiff Patricia Douglas alleges that Defendant Kohl’s Department Stores, Inc.,
violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., and the Florida
Consumer Collection Practices Act, FLA. STAT. § 559.55 et seq., by repeatedly phoning
her in an attempt to collect a debt (Doc. 1). Now, the case comes before the Court
without oral argument on Plaintiff’s Motion to Compel (Doc. 39); Defendant Kohl’s
Department Stores, Inc.’s Opposition to Plaintiff’s Motion to Compel (Doc. 42); and
Plaintiff’s Reply to Defendant, Kohl’s Department Stores, Inc.’s Opposition to Plaintiff’s
Motion to Compel (Doc. 47). For the reasons that follow, the motion is due to be
GRANTED.
Plaintiff propounded requests for the production of documents to Defendant (Doc.
39 at 3-7). When that occurred is unknown because Plaintiff neglected to include this
information in her motion. The motion to compel concerns the following requests and
responses:
Request No. 12: Documents evidencing your policy and
procedures for documenting “telephone calls” and/or
conversation with individuals called by Defendant on the
“Account(s)” during the “relevant time period.”

Response to Request No. 12: In response to Request
Number 12, Defendant incorporates by reference all General
Objections set forth above. Defendant further objects to this
Request on the grounds that: (a) it seeks information that is
neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence; and (b) it calls for
documents and/or communications protected by attorneyclient privilege or work product privilege.
Request No. 27: Copies of any and all power point
presentations or other presentation related software detailing
the use of and/or what equipment/software constitutes an
“automatic telephone dialing system,” “artificial voice,” and/or
“prerecorded voice.”
Response to Request No. 27: In response to Request
Number 27, Defendant incorporates by reference all General
Objections set forth above. Defendant further objects to this
Request on the grounds that: (a) it seeks information that is
neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence; (b) it seeks information that
is neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence; (c) it would require
Defendant to draw multiple legal conclusions in order to
respond; and (d) it calls for documents and/or communications
protected by attorney-client privilege or work product privilege.
Request No. 39: A copy of all policies and procedures in
effect during the “relevant period,” regarding Defendant’s use
of an “automatic telephone dialing system,” “artificial voice,”
and/or “prerecorded voice.”
Response to Request No. 39: In response to Request
Number 39, Defendant incorporates by reference all General
Objections set forth above. Defendant further objects to this
Request on the grounds that: (a) it seeks information that is
neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence; (b) it would require
Defendant to draw multiple legal conclusions in order to
respond; and (c) it calls for documents and/or communications
protected by attorney-client privilege or work product privilege.
Request No. 41: A copy of all policies and procedure which
concern or relate to practices to be followed by Defendant in
communicating with or attempting to collect a debt from the
Plaintiffs and specifically related to compliance with 15 U.S.C.
§§ 1692f, 1692(d), 1692(d)(5), F.S. §§ 559.72(7) and
559.72(9).

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Response to Request No. 41: In response to Request
Number 41, Defendant incorporates by reference all General
Objections set forth above. Defendant further objects to this
Request on the grounds that: (a) it seeks information that is
neither relevant nor reasonably calculated to lead to the
discovery of admissible evidence; (b) it would require
Defendant to draw multiple legal conclusions in order to
respond; and (c) it calls for documents and/or communications
protected by attorney-client privilege or work product privilege.
(Doc. 39 at 3-7).
Federal Rule of Civil Procedure 34(b)(2)(B) provides that objections to requests for
production shall “state with specificity the grounds for objection to the request, including
the reasons.” The Court does not consider frivolous, conclusory, general, or boilerplate
objections. Creative Touch Interiors, Inc. v. Nicholson, No. 6:14-cv-2043-Orl-40TBS,
2015 WL 5952986, at *2 (M.D. Fla. Oct. 13, 2015). Defendant’s objections do not
explain why the requests are irrelevant, overbroad, or otherwise objectionable.
Accordingly, they are OVERRULED. Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No.
6:14-cv-749-Orl-41TBS, 2015 WL 1470971, at *3 (M.D. Fla. Mar. 31, 2015) (citing
Arthrex, Inc. v. Parcus Med., LLC, No. 2:11-cv-694-FtM-29SPC, 2012 WL 5382050, at *3
(M.D. Fla. Nov. 1, 2012)).
In its response to the motion to compel, Defendant represents that it has
“produced all documents responsive to the Requests,” and that the issues raised in
Plaintiff’s motion “have already been resolved.” (Doc. 42 at 3). But in her reply, Plaintiff
asserts that whether this is true “remains unclear.” (Doc. 47, ¶ 1). Plaintiff represents
that a significant number of the documents were produced after the motion to compel was
filed (Id. at ¶¶ 2-4). She also notes that Defendant has not withdrawn its objections,
provided a description of what, if any documents are being withheld on the basis of
privilege, or otherwise amended its response to the request for production (Id. at ¶ 5).

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“When a party withholds information otherwise discoverable by claiming that the
information is privileged or subject to protection as trial-preparation material, the party
must: (i) expressly make the claim; and (ii) describe the nature of the documents,
communications, or tangible things not produced or disclosed--and do so in a manner
that, without revealing information itself privileged or protected, will enable other parties to
assess the claim.” FED. R. CIV. P. 26(b)(5)(A). When a party objects to a request for
production, its “objection must state whether any responsive materials are being withheld
on the basis of that objection.” FED. R. CIV. P. 34(b)(2)(C). Defendant shall comply in
full with Rules 26(b)(5)(A) and 34(b)(2)(C) within 7 days from the rendition of this Order.
Defendant has failed to make timely discovery, has failed to comply with Rule
26(b)(5)(A), and has failed to comply with Rule 34(b)(2)(C). In this circumstance, FED. R.
CIV. P. 37(d)(3) authorizes the court to “require the party failing to act, the attorney
advising that party, or both to pay the reasonable expenses, including attorney’s fees,
caused by the failure, unless the failure was substantially justified or other circumstances
make an award of expenses unjust.” Rule 37(a)(5)(A) provides that a Court must grant
“reasonable expenses incurred in making the motion, including attorney’s fees,” unless
the movant filed the motion before attempting in good faith to obtain the disclosure
without court action; the opposing party’s position was substantially justified; or other
circumstances make award of expenses unjust. FED. R. CIV. P. 37(a)(5)(A). None of
the exceptions apply. Accordingly, Plaintiff is AWARDED her reasonable legal
expenses, including attorney’s fees, to prosecute her motion to compel. If the parties do
not sooner agree, then Plaintiff shall file her application for legal expenses within 14 days
from the rendition of this Order, whereupon Defendant shall have 14 days to file its
response. The Court anticipates resolving the issue of legal expenses on the parties’

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papers, without a hearing.
DONE and ORDERED in Orlando, Florida on April 20, 2016.

Copies furnished to Counsel of Record

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