Graham v. Barrier Technologies, LLC et al

Filing 68

OMNIBUS ORDER ON DISCOVERY MOTIONS. Signed by Magistrate Judge Alicia O. Valle on 6/3/2021. See attached document for full details. (sd01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 20-CV-61080-SINGHAL/VALLE
TRACEY GRAHAM,
Plaintiff,
v.
BARRIER TECHNOLOGIES, LLC, et al.,
Defendants.
_____________________________________
OMNIBUS ORDER ON DISCOVERY MOTIONS
THIS CAUSE is before the Court upon: (i) Plaintiff’s Motion to Compel Discovery
(ECF No. 35); (ii) Plaintiff’s Motion for Leave to File Reply in Support of Motion to Compel
Discovery (ECF No. 37); (iii) Defendant’s Motion for Leave to Use Documents Received After
Discovery Deadline (ECF No. 39); and (iv) Defendant’s Motion to Compel (ECF No. 40)
(together, the “Motions”). Having reviewed the record, the Motions, Responses (ECF Nos. 36,
38, 42, 43), and Replies (ECF Nos. 41, 44), and being duly advised in the matter, it is hereby
ORDERED AND ADJUDGED as set forth below.
I.

BACKGROUND AND LEGAL STANDARD

Plaintiff allegedly worked for Defendant as an “embroiderer” from February 24, 2020 to
April 16, 2020. See generally (ECF No. 19). On July 20, 2020, Plaintiff filed a three-count
Amended Complaint alleging that she was “unlawfully terminated after she developed viral
symptoms and self-isolated as [advised] by her health care provider because of COVID-19
concerns.” Id. ¶ 4. Of the three original counts, only Count II remains, alleging retaliation or

interference in violation of Families First Corona Virus Response Act (“FFCRA”). 1 See generally
(ECF No. 19).
Pursuant to Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional
to the needs of the case.” 2 Fed. R. Civ. P. 26(b)(1).
II.

PLAINTIFF’S MOTION TO COMPEL DISCOVERY (ECF NO. 35);
PLAINTIFF’S MOTION FOR LEAVE TO FILE REPLY (ECF NO. 37)

Plaintiff seeks to compel production of Defendant’s “embroidery logs for the period April
10, 2020 to May 29, 2020.” See (ECF No. 35 at 3, 4). Although Defendant initially challenges
the proportionality of Plaintiff’s request, it asserts that it has “gathered and produced documents
covered by Plaintiff’s Motion to Compel,” thus making this motion moot. (ECF No. 36 at 3). In
Reply, Plaintiff does not dispute receipt of some embroidery logs, but argues instead that some
logs are “undated” and that Defendant did not produce “daily” logs. See generally (ECF No. 41).
Consequently, Plaintiff attempts to resurrect an earlier discovery request for invoices, to which
Defendant previously objected as unduly burdensome. 3
Based on a review of the record, the undersigned finds that Defendant’s production of
embroidery logs, even if undated, is sufficient to comply with the discovery requested in this
motion. Plaintiff’s resulting inquiry as to why there are only five embroidery logs is best addressed

1

Plaintiff’s claim for unpaid leave (Count I) was resolved through an offer of judgment.
(ECF No. 23). As well, Plaintiff stipulated to dismissal with prejudice of her disability
discrimination claim (Count III). (ECF No. 46).
2

The Court considers the importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
3

To be clear, the instant motion is limited to “embroidery logs.” Plaintiff did not file a motion to
compel the production of invoices, and the time to do so has lapsed.
2

through other discovery means (e.g., depositions) or, if necessary, at trial. Accordingly, Plaintiff’s
Motion to Compel Discovery (ECF No. 35) is DENIED.
Lastly, the Court has also considered the parties’ arguments related to Plaintiff’s Motion
for Leave to File a Reply in Support of Motion to Compel (ECF No. 37). No further reply is
necessary. Accordingly, Plaintiff’s Motion for Leave to File a Reply is also DENIED.
III.

DEFENDANT’S MOTION FOR LEAVE TO USE DOCUMENTS
RECEIVED AFTER DISCOVERY DEADLINE (ECF NO. 39)

To test the veracity of Plaintiff’s Job Search Log, Defendant seeks to use documents
produced by third-parties (listed on Plaintiff’s Job Search Log) in response to subpoenas that
Defendant served on March 29, 2021, one day before the discovery deadline of March 30, 2021. See
generally (ECF No. 39); see also (ECF No. 33). In relevant part, Local Rule 26.1(d) provides that
“subpoenas seeking the production of documents must be served in sufficient time that the response
is due on or before the discovery cutoff date.” S.D. Fla. L.R. 26.1(d). The Rule also provides that
“[f]ailure by the party seeking discovery to comply with this paragraph obviates the need to respond
or object to the discovery, appear at the deposition, or move for a protective order.” Id.
Here, Defendant served the subpoenas one day before the expiration of the discovery
deadline. (ECF No. 39 at 3). The third-parties, however, did not object to the subpoenas. In fact,
one company (Select Source International) responded to Defendant’s subpoena on March 30, 2021,
within the discovery period. Id. at 4. A second entity (Monogram Ashville) responded on April 1,
2021. Id.
Plaintiff cannot show that she will be prejudiced by Defendant’s use of documents received
within the discovery deadline. Accordingly, Defendant’s Motion for Leave to Use Documents
Received After Discovery Deadline (ECF No. 39) is GRANTED IN PART. More specifically,
Defendant may use those responsive documents it received by March 30, 2021. Any responsive
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documents received after March 30, 2021 (e.g., those documents from Monogram Ashville) may not
to be used in this case, as they were received beyond the discovery period. Lastly, Plaintiff’s request
in its response to “depose a corporate representative at the subpoenaed companies,” see (ECF No.
42 at 3), is DENIED.
IV.

DEFENDANT’S MOTION TO COMPEL (ECF NO. 40)

Defendant seeks to compel Plaintiff to produce: (i) all documents showing any and all nonFlorida related travel from April 10, 2020 through the present; and (ii) her 2020 tax returns. See
generally (ECF No. 40). Defendant also requests that Plaintiff “sit for a continued deposition [to]
answer questions about alleged damages and life events that could have an effect on Plaintiff’s
compensatory damages.” Id. at 5.
A. Non-Florida Travel
The undersigned finds that Defendant has failed to demonstrate how all documents showing
non-Florida travel are relevant to Plaintiff’s claim for retaliation or interference in violation the
FFCRA. Rather, Defendant’s expressed purpose for obtaining these documents is to “demonstrate
that Plaintiff has misrepresented her mitigation efforts or otherwise failed to properly mitigate her
purported damages.” (ECF No. 40 at 4). Moreover, Plaintiff asserts that she has already produced
documents evidencing her travel to North Carolina and Washington after her termination. (ECF No.
43 at 1). Therefore, Defendant’s request for “all documents” related to non-Florida travel is
DENIED as overbroad and irrelevant.
B. Tax Returns
In the Amended Complaint, Plaintiff alleges that she “suffered lost wages . . . because of her
termination.” (ECF No. 19 ¶ 56). Thus, Plaintiff’s tax returns may be relevant to her claim of “lost
wages.” See, e.g., Powers v. Target Corp., No. 19-CV-60922, 2020 WL 409534, at *2-3 (S.D. Fla.

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Jan. 24, 2020) (concluding that tax returns were arguably relevant to the claims in a slip and fall
case). Nonetheless, Defendant’s motion to compel is untimely. Pursuant to Local Rule 26.1(g), all
discovery disputes must be presented to the Court within 30 days from the date on which a party
first learns of or should have learned of a purported deficiency concerning the production of
discovery materials. Furthermore, absent a showing of good cause for the delay, failure to timely
present the dispute to the Court may constitute a waiver of the relief sought. S.D. Fla. L.R. 26.1(g).
Here, Plaintiff argues that Defendant requested financial documents (including tax returns)
as part of its first request for production, to which Plaintiff objected on November 12, 2020.
(ECF No. 43 at 2). Rather than moving to compel the production of the financial documents at that
time, Defendant included the same request for tax returns in its second request for production. The
Court finds that Defendant’s belated motion to compel documents to which Plaintiff objected months
earlier is untimely under Local Rule 26.1’s 30-day limit. Accordingly, Defendant’s request for
Plaintiff’s 2020 tax returns is DENIED.
C. Continued Deposition
Based upon a review of the record, the undersigned finds that a further deposition of Plaintiff
is unwarranted. Plaintiff’s Amended Complaint alleges that Plaintiff “suffered lost wages . . .
because of her termination.” (ECF No. 19 ¶ 56). On March 8, 2021, Defendant deposed Plaintiff
and had sufficient opportunity to focus its questions on the claims at issue, including damages. See
generally (ECF No. 40-4). Instead, Defendant inquired about general “run-ins with the law” and
sought to question Plaintiff about details of domestic violence long predating her alleged
termination. Id.

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Under these circumstances, Defendant has failed to show good cause for a Plaintiff’s
continued deposition on these topics. Accordingly, Defendant’s request to continue Plaintiff’s
deposition is DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida on June 3, 2021.

_____________________________________
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
cc: U.S. District Judge Raag Singhal
All Counsel of Record

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