Sheets et al v. Sorrento Villas, Section 5, Association, Inc. et al
Filing
76
ORDER denying 63 Plaintiffs' Motion to Compel Discovery; granting 66 Motion for Protective Order and/or to Quash Subpoenas. Signed by Magistrate Judge Julie S. Sneed on 5/26/2016. (LBL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KIRSTEN SHEETS, JASON KALAGHER
and JANSON MURPHY,
Plaintiffs,
v.
Case No: 8:15-cv-1674-T-30JSS
SORRENTO VILLAS, SECTION 5,
ASSOCIATION, INC., ARGUS
PROPERTY MANAGEMENT, INC.,
LINDA BENFORD, JAMES TOMPKINS,
BOB BRUNO, NANCY HUBBARD,
CLAUDIA DORNBACK, HARLAN BUD
FRIDDLE, JACK MCCOPPEN and
LOYOLA SIEP,
Defendants.
___________________________________/
ORDER ON PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER AND/OR TO
QUASH SUBPOENAS AND PLAINTIFFS’ MOTION TO COMPEL DISCOVERY
THIS MATTER is before the Court on (1) Plaintiffs’ Motion for Protective Order and/or
to Quash Subpoenas served by Defendants Argus Property Management, Inc. (“Argus”) and Linda
Benford (“Benford” and, together with Argus, “Defendants”) (“Motion for Protective Order”)
(Dkt. 66), and (2) Plaintiffs’ Motion to Compel Discovery from Argus (“Motion to Compel”) (Dkt.
63). Defendants opposed the Motions (Dkts. 67 and 69) and filed supplemental responses and
objections to the requests for production at issue in the Motion to Compel (Dkt. 67 Ex. A). On
May 24, 2016, the Court held a hearing on the Motions, at which Plaintiffs withdrew the Motion
to Compel except as to four requests for production. For the reasons stated below and at the
hearing, (1) the Motion for Protective Order is granted and (2) the Motion to Compel, as to
Plaintiffs’ four remaining requests for production, is denied.
BACKGROUND
Plaintiffs Kirsten Sheets (“Sheets”), Jason Kalagher (“Kalagher”), and Janson Murphy
(“Murphy”) allege that Defendants have violated the Fair Housing Act, 42 U.S.C. § 3601 et seq.
(“FHA”). (Dkt. 32 ¶ 2.) Sheets and Kalagher are married and Murphy is Sheets’s minor son.
(Dkt. 32 ¶¶ 5, 6.) Plaintiffs reside in a condominium unit, which Sheets owns. (Dkt. 32 ¶ 9.)
Defendants are the condominium association of which Plaintiffs are members
(“Association”), the Association’s directors, Argus, which is the Association’s property
management company, and Benford, Argus’s employee who was the Association’s property
manager. (Dkt. 32 ¶¶ 10–12.)
Sheets alleges that she suffers a handicap within the scope of the FHA and has an emotional
support animal to assist her. (Dkt. 32 ¶¶ 22, 23.) Sheets alleges that she is often physically unable
to walk and, therefore, installed an underground invisible fence within the common elements of
the condominium adjacent to her unit to dispense with the need to use a leash. (Dkt. 32 ¶¶ 25, 26.)
Plaintiffs allege that, after Plaintiffs installed the invisible fence, Defendants took actions
in violation of the FHA. Specifically, Sheets alleges that Defendants violated the FHA by (1)
failing to reasonably accommodate her need for an invisible fence to constrain her emotional
support dog (Dkt. 32 Counts I and V) and (2) failing to make modifications to the condominium
property to accommodate her need for an invisible fence. (Dkt. 32 Counts II and VI.) Plaintiffs
allege that Defendants violated the FHA by (1) retaliating against Plaintiffs’ exercising their rights
under the FHA (Dkt. 32 Counts III and VII), and (2) discriminating against Plaintiffs based on
their familial status. (Dkt. 32 Counts IV and VIII.)
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APPLICABLE STANDARDS
Courts maintain great discretion to regulate discovery. Patterson v. U.S. Postal Serv., 901
F.2d 927, 929 (11th Cir. 1990). The court has broad discretion to compel or deny discovery.
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011).
Through discovery, parties may obtain materials that are within the scope of discovery,
meaning they are nonprivileged, relevant to any party’s claim or defense, and “proportional to the
needs of the case.” Fed. R. Civ. P. 26(b). Courts consider the following factors when evaluating
whether requested discovery is proportional to the needs of the case: (1) “the importance of the
issues at stake in the action,” (2) “the amount in controversy,” (3) the parties’ relative access to
relevant information,” (4) “the parties’ resources,” (5) “the importance of the discovery in
resolving the issues,” and (6) “whether the burden or expense of the proposed discovery outweighs
its likely benefit.” Fed. R. Civ. P. 26(b). Requests for production of documents must be within
the scope of discovery. Fed. R. Civ. P. 34(a).
A party has standing to move to quash a subpoena directed at a non-party if the party alleges
a “personal right or privilege” with respect to the subpoenas. Auto-Owners Ins. Co. v. Se. Floating
Docks, Inc., 231 F.R.D. 426, 429 (M.D. Fla. 2005) (quoting Brown v. Braddick, 595 F.2d 961, 967
(5th Cir. 1979)). Courts may issue protective orders for “good cause” to “protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense . . . .” Fed. R. Civ. P.
26(c)(1). To show “good cause” to justify the court issuing a protective order, a movant must
demonstrate “a sound basis or legitimate need to take judicial action.” In re Alexander Grant &
Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987). Further, a court must quash or modify a subpoena
that “requires disclosure of privileged or other protected matter” or “subjects a party to undue
burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii)–(iv).
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ANALYSIS
A.
Motion for Protective Order
In the Motion for Protective Order, Plaintiffs request (1) a protective order or an order
quashing subpoenas Defendants served on the non-party treating physicians and medical providers
Plaintiffs disclosed as expert witnesses (Dkt. 60-1) and (2) their fees and costs incurred in bringing
the Motion for Protective Order. (Dkt. 66.)
Plaintiffs do not object to Plaintiffs’ experts being deposed, but object to the breadth of
documents subpoenaed. (Dkt. 66.) The subpoenas request the production of “all documents
regarding Kirsten Sheets, including but not limited to” eleven categories of documents, which
include, inter alia, all of Sheets’s medical records, all “data pertaining to the diagnosis, treatment,
and care of [Sheets],” all patient information forms, any bills for services and statements indicating
the total amount of the bill, all x-rays, “every written piece of paper included within the patient’s
chart,” and any MRI reports. (Dkts. 66-1–66-8 at 7.) The subpoena further states that “[a]ll records
requested should be all inclusive and should in no way be limited to one incident.” (Dkts. 66-1–
66-8 at 7.)
At the hearing, Plaintiffs requested that Defendants’ requests for production from
Plaintiffs’ experts be restricted to the scope set forth in this Court’s prior ruling (Dkt. 68) on
Plaintiffs’ prior motions for protective orders and/or to quash subpoenas Defendants served on the
records custodians for Plaintiffs’ experts. (Dkts. 51 and 56.) Defendants agreed, but argued that
medical records pertaining to Sheets’s diagnoses as to emotional conditions prior to 2013 are
relevant to Defendants’ defense of Plaintiffs’ allegations of emotional distress due to Defendants’
actions.
For the reasons stated below, Plaintiffs’ Motion for Protective Order (Dkt. 66) is granted.
The documents subpoenaed from Plaintiffs’ experts are overly broad because they contain no limit
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in timeframe and encompass records unrelated to Sheets’s physical or mental impairments.
Plaintiffs’ Motion for Protective Order is granted, however, without prejudice to Defendants to
serve new subpoenas on Plaintiffs’ experts related to (1) the scope of the experts’ testimony, (2)
whether Sheets has the physical impairments alleged in the Second Amended Complaint (Dkt. 32
¶ 22), and (3) emotional distress Sheets reported from 2013 to the present.
All medical records produced in response to these subpoenas should not be disclosed to
third parties who are not involved in this litigation, unless good cause is shown. If the parties seek
to file a document with the court under seal, they must first file a motion requesting such relief, in
accordance with Middle District of Florida Local Rule 1.09. The parties are, of course, also free
to enter into a confidentiality agreement regulating the use and disclosure of all documents
produced in this case.
1.
Documents related to the scope of the experts’ testimony
Because Plaintiffs have identified the subpoenaed treating physicians and medical
providers as expert witnesses, Defendants are entitled to conduct discovery related to the scope of
their expert testimony. For each expert witness, Defendants may request medical records, notes,
and reports related to the medical conditions about which the expert witness is expected to testify,
given Plaintiffs’ Amended Rule 26(a)(2)(C) Disclosure of Experts (Dkt. 60-1). Defendants may
also request a copy of the expert’s curriculum vitae.
2.
Documents related to Sheets’s physical impairments
To prevail on her reasonable accommodation claim under the FHA, Sheets must establish
that (1) she is disabled or handicapped within the meaning of the FHA, (2) she requested a
reasonable accommodation, (3) such accommodation was necessary to afford her an opportunity
to use and enjoy her dwelling, and (4) the Defendants refused to make the requested
accommodation. Hawn v. Shoreline Towers Phase 1 Condo. Ass’n, Inc., 347 F. App’x 464, 467
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(11th Cir. 2009). A person is considered handicapped under the FHA if she has “a physical or
mental impairment which substantially limits one or more of such person’s major life activities,
[has] a record of having such an impairment, or [is] regarded as having such an impairment.” 42
U.S.C. § 3602(h).
The document requests in the subpoenas are overbroad and seek information not relevant
to the parties’ claims and defenses because they are not limited in timeframe and encompass
records unrelated to the physical or mental impairments that substantially limit one or more of
Sheets’s major life activities. As such, Plaintiffs have established good cause for a protective order
relating to the production of any documents unrelated to whether Sheets has the physical
impairments specifically alleged in the Second Amended Complaint (Dkt. 32 ¶ 22) or to Sheets’s
use of an emotional support animal.
3.
Documents related to Plaintiffs’ allegations of emotional distress
Under the FHA, a plaintiff may recover damages for emotional distress and
embarrassment. Banai v. Sec’y, U.S. Dep’t of Hous. & Urban Dev. on Behalf of Times, 102 F.3d
1203, 1207 (11th Cir. 1997). Given that Plaintiffs have alleged that they suffered emotional
distress and embarrassment, Defendants are entitled to conduct discovery relevant to those claims,
but Defendants are “not automatically entitled to full disclosure [of] all [of] [Sheets’s] medical
records and unrestricted as to time or circumstance simply because some level of emotional
distress is claimed.”
Cameron v. Supermedia, LLC, No. 4:15CV315-MW/CAS, 2016 WL
1572952, at *3 (N.D. Fla. Apr. 19, 2016) (internal quotations omitted). The subpoenas, as
currently drafted, are overly broad because they are not limited in timeframe. The Court rejects
Defendants’ argument that medical records pertaining to Plaintiffs’ diagnoses as to emotional
conditions prior to 2013 are relevant to Defendants’ defense of Plaintiffs’ allegations of emotional
distress and embarrassment due to Defendants’ actions. Defendants may narrow their request to
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seek records relating to any emotional distress that Sheets reported from 2013, when Sheets first
requested permission to maintain the invisible fence (see Dkt. 32 ¶ 68), to the present. Plaintiffs
have otherwise established good cause for a protective order.
B.
Motion to Compel
In the Motion to Compel, Plaintiffs seek an order (1) compelling Argus to serve proper
responses and produce responsive documents to over 100 requests for production and (2) awarding
Plaintiffs the fees and costs incurred in bringing the Motion to Compel. (Dkt. 63.) In Argus’s
response to the Motion to Compel, Argus informed the Court that, after Plaintiffs filed the Motion
to Compel, Plaintiffs inspected and copied Argus’s documents at Argus’s corporate facility and
therefore Plaintiffs were given access to the documents requested. (Dkt. 67.) Argus attached a
supplemental response to the production requests, which updated its responses and objections,
including identifying the production requests to which responsive documents have been produced
or to which there are no responsive documents. (Dkt. 67 Ex. A.) At the hearing, Plaintiffs
withdrew the Motion to Compel with the exception of four requests for production (“Requests”)
numbers 3, 10, 13, 52, and 53. (See Dkt. 63 Ex. A.)
Pursuant to Request 3, Plaintiffs seek production of the minutes of the Association’s
directors’ meetings. At the hearing, Plaintiffs argued that Benford testified during her deposition
that she maintained a binder containing the Association’s directors’ meeting minutes, but that
Argus has not produced the binder. Argus responded that it had produced all of the Association’s
directors’ meeting minutes. The Motion to Compel as to Request 3 is denied because Argus has
stated that it has produced all unprivileged, responsive documents as to Request 3. Plaintiffs,
however, may serve a specific request seeking production of Benford’s binder.
Pursuant to Request 10, Plaintiffs seek emails and text messages between Argus, one of
the Association’s directors, and an Association member who lives next to Plaintiffs who Plaintiffs
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alleged, at the hearing, is the “eyes and ears” of the Association. Argus argued that the Request
was overbroad, unduly burdensome, not relevant to any claims or defenses, and not proportional
to the needs of the case. The Motion to Compel as to Request 10 is denied because the timeframe
of emails and text messages in the request is overbroad and seeks production of documents that
are not relevant to any party’s claim or defenses.
Pursuant to Requests 13, 52, and 53, Plaintiffs seek the following emails: between Sheets,
the Association, its directors, and/or Argus (Request 13); between the Association and Argus
concerning Sheets’s condominium unit or her family members (Request 52); between the
Association and Argus concerning Sheets’s brother, his condominium unit, and his tenants
(Request 53). At the hearing, Plaintiffs argued that although Argus had produced emails, Plaintiffs
have not yet been able to compare these produced emails against the emails in Plaintiffs’
possession to determine whether any emails were not produced. Argus responded that it produced
all responsive emails. Because Argus stated that it has produced all unprivileged, responsive
documents to Requests 13, 52, and 53, the Motion to Compel as to Requests 13, 52, and 53 is
denied without prejudice.
Argus shall supplement its production should it determine any
unprivileged, responsive emails were not produced.
Accordingly, it is
ORDERED:
1.
Plaintiffs’ Motion for Protective Order (Dkt. 66) is GRANTED without prejudice
to Defendants to serve new subpoenas on Plaintiffs’ experts related to (1) the scope of the experts’
testimony, (2) whether Sheets has the physical impairments alleged in the Second Amended
Complaint, and (3) Plaintiffs’ allegations of emotional distress from 2013 to the present.
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2.
Plaintiffs’ Motion to Compel as to Request 3 (Dkt. 63) is DENIED without
prejudice. Plaintiffs may specifically request production of the binder of Defendant Linda
Benford’s Association director meeting minutes.
3.
Plaintiffs’ Motion to Compel as to Request 10 (Dkt. 63) is DENIED.
4.
Plaintiffs’ Motion to Compel as to Requests 13, 52, and 53 (Dkt. 63) are DENIED
without prejudice.
5.
Plaintiffs’ request for fees and costs incurred in bringing the Motions (Dkts. 63 and
66) is DENIED.
DONE and ORDERED in Tampa, Florida on May 26, 2016.
Copies furnished to:
Counsel of Record
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