Dear v. Q Club Hotel, LLC

Filing 102

ORDER granting 86 Defendant's Motion to Quash. Please see Order for details. Signed by Magistrate Judge Barry S. Seltzer on 5/18/2017. (pb00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-60474-CIV-COHN/SELTZER
GARY DEAR, as Class Representative
of those similarly situated,
Plaintiff,
vs.
Q CLUB HOTEL, LLC, a Delaware
Limited Liability Company,
Defendant.
________________________________/
ORDER
THIS CAUSE has come before the Court upon [DE 86] Defendant’s Motion to
Quash. The motion is directed to the duces tecum portion of trial subpoenas served upon
Defendant’s employees, Sergio Pagliery, Jose E. Cabanas, and Michele Santoro, and
upon its expert witnesses, Roger S. Cline and Barry Mukamal [DE 86-1].
This case is a certified class action in which Plaintiff Gary Dear alleges that
Defendant Q Club Hotel, LLC, breached a declaration (“Declaration”), for a condominium
co-located with a hotel at the Hilton Fort Lauderdale Beach Resort [DE 83-1]. The dispute
involves the portion or “allocated share” of certain costs and expenses for the repair,
management, operation, and other items relating to the condominium that Plaintiff and
other class members were required to pay. The case is currently set for trial on Thursday,
May 25, 2017 [DE 93].

On June 4, 2015, Plaintiff served a Request for Production upon Defendant which
was responded to with both electronic and hard copy files [DE 86-2].1 On November 17,
2015, Plaintiff’s counsel reviewed 14 bankers boxes of documents produced by Defendant,
but determined the records produced did not include “the financial books and records
showing Defendant’s actual receipts and expenditures with respect to the maintenance,
operation, repair, replacement, alteration and insurance of the Shared Components.” As
such, Plaintiff’s counsel did not request copies of the records produced. [DE 95-1]. Plaintiff
also maintains that the electronic discovery produced by Defendant “did not segregate or
identify Shared Components costs from others,” which necessitated third-party discovery
from Hilton. [DE 95-1].

Plaintiff, however, did not move to compel better discovery

responses from Defendant. And, after several extensions, discovery in the case closed
on October 4, 2016 [DE 50].
The subpoenas duces tecum – issued in March and April 2017 -- were served
pursuant to Fed. R. Civ. P. 45; they direct the recipients to appear at trial to testify and to
bring with them certain financial documents that are at issue in the case. More specifically,
the subpoenas seek the production of 40 categories of documents, consisting of financial
books and records from 2010 through 2016 showing Defendant’s actual receipts and
expenditures with respect to 20 types of expenses. The duces tecum portions of each of
the subpoenas are identical.

1

Both Plaintiff and Defendant have submitted affidavits in support of their respective
positions on the Motion to Quash. See Affidavit of Matthew D. Weissing [DE 95-1] and
Affidavit of Michael J. Ambrose [DE 86-2].
2

Defendant argues that the subpoenas duces tecum are unreasonably duplicative
and burdensome in that they require the witnesses “to amass and bring to trial voluminous
documentation which is identical to the documentation produced or made available for
inspection and copying . . . in response to Plaintiff’s discovery requests.” Motion at 6 [DE
86]. Defendant further argues that the subpoenaed documents either were not requested
during discovery (i.e., records relating to 2016) or were requested but abandoned by
Plaintiff during the discovery period.

In either case, Defendant argues that these

documents cannot be subpoenaed for trial pursuant to Rule 45.
Plaintiff offers the following responses: its subpoenas do not duplicate what had
already been produced; Defendant has an obligation under the condominium Declaration
to maintain financial books and records showing its actual receipts and expenditures with
respect to certain categories of expenses; Defendant never produced in discovery any
records differentiating and substantiating its actual receipts and expenditures; and even
if the trial subpoenas overlap previous discovery requests, the subpoenas are proper in
order to secure original documents for use at trial.
“Parties are permitted to issue trial subpoena duces tecum to another party but only
for the purposes of securing materials for memory refreshment, trial preparation, or to
ensure the availability at trial of original records previously disclosed in discovery.” Hatcher
v. Precoat Metals, 271 F.R.D. 674, 675 (N.D. Ala. 2010). Rule 45 subpoenas, however,
may not be used to circumvent the Court’s discovery deadline. Rice v. United States, 164
F.R.D. 556, 558 (N.D. Okla. 1995). When a party serves a Rule 45 subpoena duces tecum
for trial seeking discovery that should have been secured during the discovery period, the
subpoena is properly quashed. Id.; Ghandi v. Police Dept. of City of Detroit, 747 F.2d 338,
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354-55 (6th Cir. 1984). A Rule 45 trial subpoena, therefore, cannot be substituted for an
untimely Rule 34 document request. Mortgage Info. Services, Inc. v. Kitchens, 210 F.R.D.
562, 566-67 (W.D.N.C. 2002) (quashing a Rule 45 trial subpoena duces tecum served
outside the discovery period).
Having carefully reviewed the items requested in Plaintiff’s Rule 45 trial subpoenas,
the Court concludes that the duces tecum portions of the subpoenas should be quashed.
As another district court observed in similar circumstances: “Even a cursory reading of the
subpoena[s] clearly establishes that the documents sought are, without question, the basic
bare bones requests that would have been appropriate under Rule 34 [prior to the
discovery deadline].”

Hatcher, 271 F.R.D. at 676.

Indeed, the actual costs and

expenditures for shared components that Plaintiff now seeks has been one of the central
issues in this litigation. If Plaintiff were not satisfied with the financial records previously
produced by Defendant during discovery, his remedy was to move (timely) to compel
production; yet, he never did so. Hernandez v. City of Corpus Christi, 2011 WL 2194254,
at *1 (S.D. Tex. 2011) (quashing trial subpoena duces tecum where “Plaintiff never sought
Court resolution of any prior alleged failure to produce documents”). Discovery now having
been closed for several months (since October 2016), Plaintiff cannot circumvent that
deadline by seeking to obtain those records through trial subpoenas.
The Court cannot accept Plaintiff’s argument that the subpoenas are merely
requesting “original” documents for use at trial. First, the subpoenas make no mention of
producing “original” documents. Second, Rule 45 can be used to subpoena “original
records previously disclosed in discovery.” Id. (Emphasis added). According to Plaintiff,
however, the records under subpoena were not produced in discovery. Rule 45 cannot
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properly be substituted for Rule 34 to obtain materials that should have been obtained in
discovery.
Finally, Plaintiff argues that Defendant failed to conduct a conduct a pre-filing
conference between counsel2 prior to filing its Motion to Quash as required by Local Rule
7.1(a)(3) and for that reason alone, Defendant’s motion should be denied. Although the
Court generally agrees with Plaintiff that the failure to confer is grounds for denying a
motion without prejudice, given the time constraints and approaching trial date, the merits
of the motion require resolution without further delay.3 Accordingly, for the reasons set
forth herein, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion to Quash [DE 86] is
GRANTED and that the duces tecum portions of the subpoenas served upon Sergio
Pagliery, Jose E. Cabanas, Michele Santoro, Roger S. Cline, and Barry Mukamal are
QUASHED. These witnesses remain under subpoena for attendance at trial.
DONE AND ORDERED at Chambers, Fort Lauderdale, Florida, this 18th day of
May 2017.

Copies furnished counsel via CM/ECF

2

Although it was the obligation of Defendant’s counsel to initiate a conference, the
Court notes that Plaintiff’s counsel does not reference any effort made on their part to
confer and narrow the issues raised in Defendant’s motion.
3

Plaintiff notes that the subpoenas were served in March and April, but Defendant
did not file its Motion to Quash until more than a month had elapsed. Although the Court
does not condone the delay in filing the Motion to Quash, the Court notes that the Motion
to Quash is not a discovery motion subject to the 30-day time limitation contained in Local
Rule 26.1(g).
5