Stoll et al v. Musculoskeletal Institute, Chartered
ORDER denying 29 Motion to strike a portion of the plaintiffs' Amended Initial Disclosures. Florida Orthopaedic's construed motion to compel more complete responses to the plaintiffs' Amended Initial Disclosures is granted in part and denied in part. See order for further details. Signed by Magistrate Judge Amanda Arnold Sansone on 11/18/2020. (MLM)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RAY STOLL and HEIDI IMHOF,
individually and o/b/o all others
Case No.: 8:20-cv-1798-T-36AAS
FLORIDA ORTHOPAEDIC INSTITUTE,
Musculoskeletal Institute Chartered d/b/a Florida Orthopaedic Institute
(Florida Orthopaedic) moves to strike a portion of the plaintiffs’ Amended Initial
Disclosures. (Doc. 29). The plaintiffs oppose the motion. (Doc. 34).
The plaintiffs filed a state court putative class action arising from a data
breach due to a ransomware attack against Florida Orthopaedic. (Doc. 1, Ex. 1). The
plaintiffs allege common law and Florida state law claims against Florida
Orthopaedic. (Id. at ¶¶ 91–217). Florida Orthopaedic removed the case to federal
court. (Doc. 1).
On September 14, 2020, the plaintiffs served Florida Orthopaedic with their
Initial Disclosures. (Doc. 29, Ex. A). Florida Orthopaedic requested the plaintiffs
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amend their initial disclosures to specify damages suffered by the named plaintiffs
and not just the possible damages for the proposed class. (Doc. 29, ¶ 5). On October
1, 2020, the plaintiffs served their Amended Initial Disclosures. (Doc. 29, Ex. C).
In the plaintiffs’ Amended Initial Disclosures, the plaintiffs include these
fourteen damages categories:
actual identity theft;
unauthorized use and misuse of their PII;
the loss of opportunity to control how their PII is used;
the diminution in value of their PII;
the compromise, publication, and/or theft of their PII;
out-of-pocket costs associated with the prevention, detection,
recovery, and remediation from identity theft or fraud;
the lost opportunity costs and lost wages associated with effort
expended and the loss of productivity from addressing and
attempting to mitigate the actual and future consequences of the
costs associated with placing freezes on credit reports;
delay in receipt of tax refund monies;
the diminished value of Defendant’s goods and services Plaintiffs
and Class members received;
the lost opportunity and benefits of electronically filing of income
the imminent and certain impending injury flowing from
potential fraud and identity theft posed by their PII being placed
in the hands of criminals;
the continued risk to their PII, which remains in the possession
of Defendant and is subject to further breaches so long as
Defendant fails to undertake appropriate measures to protect the
PII in their possession; and
current and future costs in terms of time, effort, and money that
will be expended to prevent, detect, contest, remediate, and repair
the impact of the Data Breach for the remainder of Plaintiffs’ and
Class members’ lives.
(Doc. 29, Ex. C).
Florida Orthopaedic requests an order striking the plaintiffs’ damages section
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in their Amended Initial Disclosures. (Doc. 29, p. 6). Florida Orthopaedic also
requests the order require the plaintiffs to amend their damages disclosures, and to
provide all documents supporting those calculations. (Id.). Florida Orthopaedic also
requests a stay of its obligation to respond to the plaintiffs’ discovery requests until
the plaintiffs provide updated damages disclosures. (Id. at p. 7).
Florida Orthopaedic argues the plaintiffs’ amended disclosures are incomplete
because they provide no factual or evidentiary support for those damages and do not
attribute the damages to a cause of action. (Id. at p. 5). Florida Orthopaedic argues
the plaintiffs must provide the documents supporting their damages rather than
delay until a protective order is agreed to between the parties. (Id. at p. 6).
The plaintiffs argue they have complied with Rule 26 by providing the
categories of damages that are susceptible to computation. (Doc. 34, p. 4). The
plaintiffs argue they cannot at this time provide a complete computation of damages
for eight categories1 because those categories depend on the extent of the data breach.
(Id. at pp. 5–6). The plaintiffs argue four other categories 2 have no fixed standard for
their measurement and do not fall under the mandates of the Rule 26(a)(1)(iii). (Id.
at p. 6). The plaintiffs assert those categories are novel, developing theories of
Those eight categories from the list above are: (a), (b), (h), (i), (j), (l), (m), and (n).
Those four categories from the list above are: (c), (d), (e), and (k).
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Under Fed. R. Civ. P. 12(f), “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Florida Orthopaedic does not seek to strike a pleading but rather the
plaintiffs’ Amended Initial Disclosures. Because Rule 12(f) is inapplicable to
discovery, the court will construe Florida Orthopaedic’s motion as a motion to compel
more complete initial disclosures from the plaintiffs under Rule 37(b).
The parties must disclose, without requesting, “a computation of each category
of damages claimed by the disclosing party—who must also make available for
inspection and copying as under Rule 34 the documents or other evidentiary material,
unless privileged or protected from disclosure, on which each computation is based,
including materials bearing on the nature and extent of injuries suffered.” Fed. R.
Civ. P. 26(a)(1)(iii ). The requirements of Rule 26(a) are mandatory. Altheim v. GEICO
Gen. Ins. Co., No. 8:10-cv-156-T-24TBM, 2010 WL 11508155, at *1 (M.D. Fla. May
17, 2010). “The goal of the initial disclosure requirement is to accelerate the exchange
of basic information about the case.” King v. City of Waycross, Ga., No. 5:14-cv-32,
2015 WL 5468646, at *2 (S.D. Ga. Sept. 17, 2015) (citation omitted).
The “disclosure provision applies only with respect to materials available to
the party seeking monetary relief, and where the materials necessary for the
computation are not in this party’s possession,” the disclosure requirement does not
apply. 8A Wright & Miller Fed. Prac. & Proc. Civ. § 2053 (3d ed.). The disclosure
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obligation is also subject to a duty to supplement under Rule 26(e)(1).
At this point, the plaintiffs do not know the full extent of the data breach of
Florida Orthopaedic’s system. Because the plaintiffs have not received discovery
about the extent of the data breach of Florida Orthopaedic’s system, they do not yet
know the extent of all of their alleged damages. However, as discovery progresses,
the plaintiffs must supplement their initial disclosures to address the eight categories
it states depends on the extent of the data breach. See LeBlanc v. Unifund CCR
Partners, G.P., No. 8:06-cv-1216-T-TBM, 2007 WL 2446900, at *1 (M.D. Fla. Aug. 23,
2007) (The disclosing party must make “a good faith estimate of damages and
methods of calculations based on the information available at this stage of the
litigation while reserving the right to amend his calculation.”).
Although the plaintiffs have not provided damage calculations for the
remaining categories,3 the plaintiffs presented their developing theories of damages
to Florida Orthopaedic. Because these theories are developing, the plaintiffs will
conduct discovery to determine whether those theories create a remedy and possible
fixed standard for damages. But see Mee Indus. v. Dow Chem. Co., 608 F.3d 1202,
1221 (11th Cir. 2010) (finding that the district court did not abuse discretion to
exclude undisclosed theories of damages and evidence not disclosed during discovery).
Even though there are no specific damage calculations, Florida Orthopaedic knows
what theories the plaintiffs are seeking damages for, thus eliminating the likelihood
The plaintiffs provided damage calculations for categories (f) and (g) for their named
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of surprise later in the litigation which the Rules aim to prevent. See Shelak v. White
Motor Co.,581 F.2d 1155, 1159 (5th Cir. 1978)4 (The Federal Rules of Civil Procedure
are designed to “narrow and clarify the issues,” “give the parties mutual knowledge
of all relevant facts,” and “prevent[ ] surprise.”). As the plaintiffs conduct discovery
and develop their models for their damages, if any, the plaintiffs must supplement
their disclosures to reflect the damages, if any, they are seeking under each theory.
Florida Orthopaedic requests documentation to support the calculation of
damages provided by the plaintiffs. (Doc. 29, p. 6). Apparently, because of the
ransomware attack on Florida Orthopaedic, the plaintiffs worry the information they
provide through their counsel to opposing counsel will somehow not be protected.
(Doc. 34, p. 4 n.2). “A party claiming damages or other monetary relief must, in
addition to disclosing the calculation of such damages, make available the supporting
documents for inspection and copying as if a request for such material had been made
under Rule 34.” Fed. R. Civ. P. 26 (Advisory Committee Notes to 1993 Amendment).
The plaintiffs and their counsel have commonplace litigation tools available to mollify
any confidentiality concerns and must work with Florida Orthopaedic to address how
to protect the confidential documents the plaintiffs must produce. The plaintiffs chose
to bring this action and must provide documentation to support their request for
damages. See Am. Enters. Collison Ctr., Inc. v. Travelers Prop. & Cas. Co., No. 2:09cv-443-FtM-29SPC, 2010 WL 11507335, at *3–4 (M.D. Fla Sept. 17, 2010) (requiring
The former Fifth Circuit’s decisions are binding precedent. Bonner v. City of
Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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compliance with the rule to provide documentation to support the damages
Florida Orthopaedic would like an order preventing the plaintiffs from
asserting damages at a mediation, a hearing, or trial if the damages have not been
disclosed in compliance with Rule 26(a). (Doc. 29, p. 7). Although Fed. R. Civ. P.
37(c)(1) prevents a party from using information the party did not properly disclose,
Florida Orthopaedic’s request is premature. The court entered the case management
and scheduling order on October 26, 2020, and discovery does not conclude until
November 2021. (Doc. 35). Thus, the parties have just started the discovery process
and are under the continuing obligation to supplement their initial disclosures,
including claims for damages. See Fed. R. Civ. P. 26(e)(1).
Finally, Florida Orthopaedic asks for a stay of its deadline to respond to the
plaintiffs’ discovery requests until Florida Orthopaedic receives second amended
initial disclosures from the plaintiffs. (Doc. 29, p. 7). Florida Orthopaedic’s
responsibility to respond to already served discovery requests does not stop while
seeking more complete responses and documentation supporting initial disclosures.
See Rivers v. Asplundh Tree Expert Co., No. 5:08cv61/RS/EMT, 2008 WL 5111300, at
*4 (N.D. Fla. Dec. 3, 2008) (“[T]he fact that Plaintiff believed he could not fully answer
Defendant’s discovery requests until he received Defendant’s responses to his
reciprocal requests does not excuse his failure to respond.”).
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Thus, the following is ORDERED:
Florida Orthopaedic’s motion to strike a portion of the plaintiffs’
Amended Initial Disclosures (Doc. 29) is DENIED.
Florida Orthopaedic’s construed motion to compel more complete
responses to the plaintiffs’ Amended Initial Disclosures is GRANTED
in part and DENIED in part.
The plaintiffs do not have to amend their Amended Initial
Disclosures, but they must continually supplement their
disclosure to accurately reflect the damages they will seek at trial.
documentation for their damages. Before that deadline, the
parties are directed to confer further about entering into a
confidentiality agreement or protective order.
Florida Orthopaedic’s request for a stay to respond to the plaintiffs’
discovery requests (Doc. 29) is DENIED.
ENTERED in Tampa, Florida on November 18, 2020.
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