Balfour Beatty Infrastructure, Inc. v. PB&A, Inc.

Filing 26

ORDER -- Martin Hild, P.A.'s Limited Objection to the November 30, 2016 Order (Doc. No. 17), or Alternatively Request that the Court Deem Martin Hild's Production to Comply with the November 30, 2016 Order (Doc. 18) is OVERRULED. The Order of U.S. Magistrate Judge Gregory J. Kelly (Doc. 17) isAFFIRMED. Martin Hild, P.A. is directed to produce all responsive documents by January 23, 2017. Signed by Judge Roy B. Dalton, Jr. on 1/12/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BALFOUR BEATTY
INFRASTRUCTURE, INC.,
Plaintiff,
v.

Case No. 6:16-mc-52-Orl-37GJK

PB&A, INC.,
Defendant.
ORDER
This cause is before the Court on the following matters:
(1)

Defendant/Counterclaimant PB&A, Inc.’s Motion to Compel Non-Party
Martin Hild, P.A. to Produce Documents (Doc. 1), filed October 28, 2016;

(2)

Martin Hild, P.A.’s Response in Opposition to PB&A, Inc.’s Motion to
Compel Non-Party Martin Hild, P.A. to Produce Documents (Doc. 12), filed
November 14, 2016;

(3)

Order of U.S. Magistrate Judge Gregory J. Kelly (Doc. 17), filed
November 30, 2016;

(4)

Martin Hild, P.A.’s Limited Objection to the November 30, 2016 Order
(Doc. No. 17), or Alternatively Request that the Court Deem Martin Hild’s
Production to Comply with the November 30, 2016 Order (Doc. 18), filed
December 14, 2016; and

(5)

PB&A, Inc.’s Response Brief in Opposition to Martin Hild, P.A.’s Objection
to the Magistrate’s Order Granting PB&A’s Motion to Compel (Doc. 23), filed
January 6, 2016.

BACKGROUND
On November 30, 2016, U.S. Magistrate Judge Gregory J. Kelly (“Judge Kelly”)
entered an Order (see Doc. 17 (“Order”)), which resolved two motions filed by PB&A, Inc.
(“PB&A”) and opposed by Martin Hild, P.A. (“MHPA”))—a Motion to Transfer (Doc. 2
(“Transfer Motion”)) and a Motion to Compel MHPA to Produce Documents (Doc. 1
(“Motion to Compel”)) in compliance with an amended non-party subpoena issued by
this Court on July 26, 2016 (Doc. 1-19 (“Subpoena”)). In his Order, Judge Kelly:
(1) denied the Transfer Motion; (2) withheld ruling on attorney-client privilege and work
product objections pending MHPA’s production of a privilege log; (3) overruled MHPA’s
remaining objections; (4) directed MHPA to—on or before December 14, 2016—produce
all responsive, non-privileged documents and serve PB&A “with a privilege log” if it
“withholds any responsive documents on the basis of privilege”; and (5) denied PB&A’s
request for an award of attorney’s fees. (See Doc. 17.)
On December 14, 2016, MHPA produced documents and a privilege log to PB&A
and filed a “Limited” objections to the Order (Doc. 18 (“Objections”)). (See Doc. 18-1,
¶¶ 7, 8, 9, 11, 14, 15.) PB&A filed a timely response (Doc. 23 (“Response”)), and the
matter is now ripe for adjudication.
LEGAL STANDARDS
I.

Subpoenas
A subpoena may command “production of documents, electronically stored

information, or tangible things at a place within 100 miles of where the person resides” or
regularly

transacts

business.

See

Fed. R.

Civ.

P.

45(c)(2)(A);

see

also

Fed. R. Civ. P. 45(e)(1)(A). The recipient of a subpoena may serve “a written objection”

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to the production of requested documents. 1 See Fed. R. Civ. P. 45(d)(2)(B). The recipient
also may file a “timely motion” to “quash or modify a subpoena” that “requires disclosure
of privileged or other protected matter, if no exception or waiver applies” or that “subjects
a person to undue burden.”2 See Fed. R. Civ. P. 45(d)(3)(A). The serving party also “may
move the court for the district where compliance is required for an order compelling
production or inspection.” See Fed. R. Civ. P. 45(d)(2)(B)(i).
II.

Review of Magistrate Judge’s Order
Motions to enforce or quash a subpoena issued pursuant to Federal Rule of Civil

Procedure 45 are non-dispositive pretrial matters properly resolved by a magistrate judge
on referral by a district court judge. See 28 U.S.C. 636(b)(1)(A). After a magistrate judge
issues an order, either party may timely serve and file objections, which must be
considered by a district court judge who may “modify or set aside any part of the order
that is clearly erroneous or is contrary to law.” See Fed. R. Civ. P. 72(a).
A magistrate judge’s order “is contrary to law ‘when it fails to apply or misapplies
relevant statutes, case law, or rules of procedure.’” See TemPay, Inc. v. Biltres Staffing
of Tampa Bay, LLC, 929 F. Supp. 2d 1255, 1260 (M.D. Fla. 2013) (quoting S.E.C. v.
Kramer, 778 F. Supp. 2d 1320, 1326 (M.D. Fla. 2011)); see also Sergeeva v. Tripleton
Int’l. Ltd., 834 F.3d 1194, 1198 (11th Cir. 2016). Such orders are “clearly erroneous”
when, on review of “the entire evidence” presented to the magistrate judge, the district
1

If the recipient withholds documents under a claims of work product or privilege
must: “(i) expressly make the claim; and (ii) describe the nature of the withheld
documents, communications, or tangivle things in a manner that . . . will enable the parties
to assess the claim.” See Fed. R. Civ. P. 45(e)(2)(A).
2 Those who issue and serve subpoenas must “take reasonable steps to avoid
imposing undue burden or expense on a person subject to the subpoena,” and courts
must enforce this duty. See Fed. R. Civ. P. 45(d)(1).

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court “is left with the definite and firm conviction that a mistake has been committed.” See
United States v. U.S. Gypsum Co., 333 U.S. 365, 395 (1948); Howard v. Hartford Life &
Acc. Ins. Co., 769 F. Supp. 2d 1366, 1372 (M.D. Fla. 2011) (overruling objections which
merely restated arguments asserted in response to motion); see also Cincinnati Ins. Co.
v. Cochran, 198 F. App’x 831, 832–33 (11th Cir. 2006) (finding that the district court did
not abuse its discretion in refusing to consider evidence that was not before magistrate
judge).
DISCUSSION
On July 26, 2016, PB&A served MHPA with the Subpoena, which included six
requests for documents related to its judicial estoppel defense (“Defense”) in a lawsuit
filed by Balfour Beatty Infrastructure, Inc. (“BBII”) in the U.S. District Court for the Northern
District of California, San Francisco Division (“California Court”))—Balfour Beatty
Infrastructure, Inc. v. PB&A, Inc., Case No. 3:16-cv-01152-WHO (“Underlying Action”).
(See Docs. 1, 12, 17.) MHPA are the attorneys for BBII in the Underlying Action and other
proceedings related to a large construction project in San Francisco, California
(“Project”). The fourth request of the Subpoena sought all “non-privileged documents
prepared by [MHPA] in connection with” certain legal proceedings related to the Project
(“California Proceedings”), “which referred to, relied upon or discussed the design
prepared by PB&A in connection with” the Project. (Doc. 1-19, p. 6 (“Fourth Request”).)
In correspondence dated August 3, 2016, MHPA objected that the Subpoena “is
harassing in nature” and reflects PB&A’s improper attempt to “place an unnecessary and
costly burden” on MHPA “by conducting a ‘fishing expedition’ for information that has no
reasonable expectation of yielding any relevant documents, not already in PB&A’s

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possession, or which will not be produced through other means.” (Doc. 1-20 (“August
Correspondence”).) MHPA further objected that the Fourth Request “will be addressed
in the already pending request for production served on” BBII in the Underlying Action.
(See id.) MHPA did not produce a privilege log, and it did not file a motion to quash or
modify the Subpoena pursuant to Rule 45(d)(3)(A)(iv).
On October 28, 2016, PB&A filed its detailed Motion to Compel and evidentiary
materials in support. (See Doc. 1; Doc. 1-1—1-22.) PB&A explained that the Fourth
Request seeks documents necessary to “fully understand the context of [MHPA’s]
interactions with PB&A and whether PB&A and BBII were functioning as [MHPA’s] joint
clients for purposes of [the California Proceedings].” (See Doc. 1, p. 11.) PB&A also
argued that it was likely that MHPA “retained different documents than BBII” and must
produce its set of responsive documents “regardless of what BBII does or does not
provide.” (See id.)
In its timely Response, MHPA reiterated its objection that the Subpoena reflected
a “fishing expedition for information that has no reasonable expectation of yielding any
relevant documents, not already in PB&A’s possession, or which have not already been
produced by BBII directly.” (Doc. 12, p. 2 (asserting that the Subpoena “is harassing in
nature because it attempts to place an unnecessary and costly burden” on MHPA).) Citing
Rule 45(d)(3), MHPA further argued that the “burden of producing” the documents sought
in the Fourth Request “is undue because PB&A already has in its possession the
documents responsive to these requests.” (See id. at 7.) In the single declaration filed in
support of the Response, a principal of MHPA simply summarized the production made
to PB&A by BBII in the Underlying Action. (See Doc. 12-1.) MHPA did not provide any

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details or estimations concerning the efforts necessary to actually comply with the
Subpoena. (See id.)
In the Order, Judge Kelly overruled MHPA’s objection that it faced an undue
burden in responding to the Subpoena, and he directed MHPA to produce all
non-privileged documents that are responsive to the Subpoena—including the Fourth
Request. (See Doc. 17, p. 6 (noting that PB&A’s “alleged possession of the documents
is not a legitimate basis for refusing to produce the documents); see also Doc. 18, p. 2.)
MHPA asserts a “limited objection” to Judge Kelly’s Order overruling MHPA’s objection
to the Subpoena on the basis of undue burden (but only as it pertains to [Fourth
Request]).” 3 (See Doc. 18, p. 2.) PB&A argues that the Court should overrule this limited
objection because the Order “was not clearly erroneous or contrary to law.” (Doc. 23, p.
2.)
Upon review, the Court agrees with PB&A. In its Objections, MHPA does not even
acknowledge the appropriate standard of review. (See Doc. 17.) Further, the Objections
advance arguments and facts that were not raised in the Response or otherwise provided
to Judge Kelly. (See Doc. 18-1.) MHPA does not contend that such facts were unavailable

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MHPA further argues that the Court “must quash or modify” the Fourth Request
because: (1) MHPA produced four categories of documents that it identified as responsive
to the Fourth Request, including documents submitted in the California Proceedings and
one letter drafted by MHPA; (2) any additional responsive documents—which MHPA does
not believe exists—would not advance PB&A’s Defense; (3) confirming that additional
responsive documents do not exist “would require a page by page review of more than
300,000 documents in the project file . . . [and] more than 111,000 emails” (“Review”);
and (4) such an “immense” Review is “unnecessary” and “undue.” (See Doc. 18 (citing
Fed. R. Civ. P. 45(d)(3)(A)).) In support of its assertions concerning anticipated
compliance efforts, MHPA filed a new declaration from attorney Ricky L. Johnson, Jr.
(Doc. 18-1 (“Johnson Declaration”)). This declaration identified the affiant as Gregory
S. Martin, Esq., a likely scrivener’s error.

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to it when it filed the Response. (See Doc. 18.) Thus, the Court declines to consider such
materials. See Cincinnati Ins. Co., 198 F. App’x at 832–33; Hope for Families & Comty.
Serv., Inc. v. Warren, No. 3:06-cv-1113-WKW, 2009 WL 1066524, at *3 (M.D. Ala. April
29, 2009); see also Papapanos v. Lufthansa German Airlines, No. 94-2667CIVMARCUS,
1996 WL 33155438, at *11–*12 (S.D. Fla. Apr. 16, 1996); Mitchell v. Consol. Freightways
Corp. of Del., 747 F. Supp. 1446, 1447 (M.D. Fla. 1990). MHPA’s Objections are due to
be overruled and the Order is due to be affirmed.
CONCLUSIONS
Accordingly, it is hereby ORDERED AND ADJUDGED that:
(1)

Martin Hild, P.A.’s Limited Objection to the November 30, 2016 Order
(Doc. No. 17), or Alternatively Request that the Court Deem Martin Hild’s
Production to Comply with the November 30, 2016 Order (Doc. 18) is
OVERRULED.

(2)

The Order of U.S. Magistrate Judge Gregory J. Kelly (Doc. 17) is
AFFIRMED.

(3)

Martin Hild, P.A. is directed to produce all responsive documents by
January 23, 2017.

DONE AND ORDERED in Chambers in Orlando, Florida, on January 12, 2017.

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Copies:
Counsel of Record

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