Casimir-Chery v. JTI (US) Holding Inc. et al
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-62568-BLOOM/VALLE
JTI (US) Holding Inc., a
foreign corporation, et al.,
OMNIBUS ORDER ON DISCOVERY MOTIONS
THIS CAUSE comes before the Court upon: (i) Defendant JTI (US) Holding Inc.’s
Expedited Motion for Protective Order (ECF No. 42); (ii) Plaintiff’s Expedited Motion for
Protective Order (ECF No. 44); and (iii) Defendant JTI’s Motion to Compel Discovery from
Plaintiff (ECF No. 46). Having reviewed the Motions, the Responses (ECF Nos. 45, 49, 50), and
Replies (ECF Nos. 51, 52), and being duly advised in the record, it is hereby ORDERED AND
ADJUDGED as set forth below.
On January 27, 2021, Plaintiff filed her Amended Complaint alleging claims against
Defendant JTI (US) Holding Inc (“Defendant” or “JTI”) for racial discrimination and retaliation
under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and
42 U.S.C. § 1981. See generally (ECF No. 32). The Amended Complaint also alleges an overtime
compensation claim under the Fair Labor Standards Act. Id. ¶¶ 54-61. In several counts, Plaintiff
seeks “economic losses, for mental and physical injuries, for lost wages and benefits,
compensatory damages, punitive damages, prejudgment interest, equitable relief, costs and
attorney’s fees, and such other relief as the Court deems appropriate.” Id. at 8, 9, 11.
DEFENDANT’S MOTION FOR PROTECTIVE ORDER (ECF NO. 42)
Under Rule 26, a court may, for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P.
26(c)(1). In addition to finding good cause, a court issuing a protective order must also be satisfied
that, on balance, the interests of the party seeking the protective order outweigh the interests of the
opposing party. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985).
Here, Defendant seeks a protective order to preclude the deposition of Daniela Argirova,
which is currently noticed for June 11, 2021 via Zoom. (ECF No. 42 at 1). According to
Defendant, Ms. Argirova is a “non-party” and “not employed by Defendant JTI.” Id. at 2 n.3.
Defendant asserts that Ms. Argirova resides and works in Switzerland, and that Swiss law makes
it “a crime to depose a Swiss resident on Swiss soil” under Article 271 of the Swiss Criminal Code.
Id. at 2. Nonetheless, Defendant acknowledges that it “has assumed out of an abundance of caution
that Ms. Argirova is a managing agent of Defendant JTI.” Id. Defendant also concedes that
Ms. Argirova has “discoverable knowledge relevant to Plaintiff’s allegations and defenses.” Id.
Having reviewed the facts and applicable law, the undersigned finds that Defendant’s
motion fails for several reasons. First, Defendant’s decision to treat Ms. Argirova as a “managing
agent” brings this case in line with other cases in this District in which courts have permitted the
deposition of a witness in Switzerland or elsewhere when, as here, the witness was found to be a
managing agent for the corporate defendant. See Calixto v. Watson Bowman Acme Corp., No. 0760077-CIV, 2008 WL 4487679, at *3-4 (S.D. Fla. Sept. 29, 2008); see also In re Takata Airbag
Prod. Liab. Litig., No. 15-02599, 2017 WL 8812735, at *3, *10 (S.D. Fla. July 19, 2017), report
and recommendation adopted, No. 14-24009-CV, 2018 WL 1859338 (S.D. Fla. Feb. 6, 2018)
(compelling the deposition of a “managing agent” after conducting five factor inquiry, including
the individual’s general power to exercise discretion and responsibility, whether the individual was
expected to testify at the employer’s request, whether there are others with greater authority
regarding the information sought, and whether the witness identifies with the interests of the
corporation). Second, Defendant states that Ms. Argirova is a Vice President at JT International
SA. (ECF No. 42 at 2). Defendant, however, fails to expand on whether JT International SA and
JTI are corporate affiliates, which affiliation may result in Ms. Argirova being subject to
Defendant’s “custody or control.” See, e.g., Costa v. Kerzner Int’l Resorts, Inc., 277 F.R.D. 468,
471 (S.D. Fla. 2011) (granting motion to compel discovery where corporate affiliates were
sufficiently related to meet the “custody and control” inquiry); Alcan Int’l Ltd. v. S.A. Day Mfg.
Co., 176 F.R.D. 75, 79 (W.D.N.Y. 1996) (granting motion to compel discovery and deposition of
employee based on the affiliation between the defendant and the corporation). Lastly, and
importantly, contrary to Defendant’s argument, Swiss law does not preclude voluntary discovery
where a party would be subject only to procedural consequences rather than criminal sanctions.
See EFG Bank AG v. AXA Equitable Life Ins. Co., No. 17-CV-4767 (JMF), 2018 WL 1918627, at
*2 (S.D.N.Y. Apr. 20, 2018).
In sum, Defendant has failed to meet its burden to show good cause for a protective order
to preclude the deposition of Ms. Argirova. Accordingly, Defendant’s motion for a protective
order is DENIED. 1 Nonetheless, the undersigned is mindful of the logistical challenges involved
in any deposition, which are exacerbated when the deponent resides abroad during the COVID-19
Defendant’s request for “costs, expenses, and legal fees incurred in preparing and presenting the
Motion” is also DENIED. (ECF No. 51 at 6).
pandemic. Accordingly, absent agreement of the parties, the deposition scheduled for June 11,
2021, is cancelled. 2 Rather, within seven (7) days from the date of this Order, the parties must
telephonically meet and confer to select a mutually agreeable date and procedure to depose
Ms. Argirova (whether in Switzerland or elsewhere). The deposition should proceed within 60
days from the date of this Order, but in no event beyond the current discovery deadline in the
Court’s Scheduling Order. See (ECF No. 29). Lastly, after considering the parties’ financial
resources, Defendant’s potential use of Ms. Argirova as a witness at trial, (ECF No. 42 at 5),
“willing[ness] to arrange for Ms. Argirova[‘s] [deposition] prior to trial,” (Id.), and the equities in
the case, the undersigned concludes that the deposition and travel-related costs for deposing
Ms. Argirova should be split between the parties. 3
DEFENDANT’S MOTION TO COMPEL DISCOVERY (ECF NO. 46)
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.” Fed. R. Civ. P. 26(b)(1). While the scope of discovery under the Federal
Rules is broad, parties may not engage in a fishing expedition to obtain evidence to support their
claims or defenses. Porter v. Ray, 461 F.3d 1315, 1324 (11th Cir. 2006).
Here, Defendant seeks to compel Plaintiff’s response to Request for Production No. 27,
Any and all Documents [Plaintiff has] received from any potential employer,
headhunter or employment agency [from December 1, 2017 to the present]
Rescheduling the deposition is consistent with counsel’s correspondence suggesting that Plaintiff
had previously agreed to withdraw the notice of deposition for Ms. Argirova based on Defendant’s
representation that she would be deposed before the October 19th discovery deadline. See (ECF
No. 51 at 8).
Plaintiff’s “cross-motion” within her Response (ECF No. 45 at 1, 5-6) to exclude the testimony
of Ms. Argirova is premature. Accordingly, Plaintiff’s request is DENIED.
including, but not limited to, all employment application forms, business cards,
postcards, letters, e-mail, faxes, rejection letters, letters responding to applications,
offers of employment or other documents.
(ECF No. 46 at 2) (emphasis added).
Plaintiff argues that the employment records are irrelevant and not related to the claims at
issue, but are meant to harass Plaintiff. 4 (ECF No. 49 at 1, ) Plaintiff’s arguments, however, are
unsupported by the allegations in the Amended Complaint in which Plaintiff seeks “economic
losses, . . . lost wages and benefits, compensatory damages, punitive damages, prejudgment
interest, equitable relief, costs and attorney’s fees, and such other relief as the Court deems
appropriate.” (ECF No. 32 at 8, 9, 11). Indeed, faced with similar allegations, the undersigned
and other courts have found that employment records may be relevant to a plaintiff’s claim for
economic damages, including lost wages, loss of earning capacity, and mental anguish. See, e.g.,
Feise v. N. Broward Hosp. Dist., No. 14-CV-61556, 2015 WL 13309321, at *3 (S.D. Fla. Apr. 27,
2015) (granting motion to compel personnel and employment records); see also Stevenson v.
Johnson Bros Corp., No. 2:18-CV-1702-RDP, 2019 WL 1083781, at *4 (N.D. Ala. Mar. 7, 2019)
(concluding that employment applications may provide relevant information regarding the reasons
for plaintiff’s departure); Montes v. M & M Mgmt. Co., No. 15-80142-CIV, 2015 WL 4040507,
at *4 (S.D. Fla. June 30, 2015) (ordering that current and prior employers produce numerous
employee records, including application and performance evaluations).
Plaintiff complains that Defendant is seeking “to take discovery about and from her current
employer” simply to harass Plaintiff. (ECF No. 49 at 2). Plaintiff argues that “Defendants are
intending to send a subpoena to Plaintiff’s current employer to disclose the existence of this lawsuit
under the pretense of discovery,” and that there is “no good reason [for this] other than pure
harassment.” Id. at 5. Plaintiff’s arguments, however, miss the mark as unresponsive to
Defendant’s motion to compel Plaintiff’s response to Request for Production No. 27.
Despite the potential relevance of the requested documents, Defendant’s Request No. 27 is
overbroad as written. Thus, Defendant’s Motion to Compel production of documents responsive
to Request for Production No. 27 is GRANTED IN PART, as limited below. Accordingly, within
seven (7) days from the date of this Order, Plaintiff must produce all employment applications,
letters, e-mails, faxes, rejection letters, letters responding to applications, or offers of employment
from any potential employer between December 1, 2017 to the present. The remainder of Request
for Production No. 27 is DENIED.
PLAINTIFF’S MOTION FOR PROTECTIVE ORDER (ECF NO. 44)
Initially, the parties disagreed on a date for Plaintiff’s deposition. See generally (ECF
No. 44). However, the Joint Status Report reflects that “the parties have agreed to reschedule
Plaintiff’s deposition for June 18th via Zoom.” (ECF No. 53 at 2). Accordingly, Plaintiff’s motion
is DENIED as moot.
DONE AND ORDERED in Chambers at Fort Lauderdale, Florida on June 3, 2021.
ALICIA O. VALLE
UNITED STATES MAGISTRATE JUDGE
U.S. District Judge Beth Bloom
All Counsel of Record
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