White v. DeLaoja et al

Filing 174

ORDER granting in part and denying in part 138 Defendant's Renewed Motion to Compel Document Production. Signed by Magistrate Judge Jonathan Goodman on 1/23/2012. (dkc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 07-23381-CIV-GOLD/GOODMAN
STEPHEN L. WHITE,
Plaintiff,
v.
DET. DE LA OSA,
Defendant.
_______________________________________
ORDER ON DEFENDANT DE LA OSA’S
RENEWED MOTION TO COMPEL DOCUMENT PRODUCTION
This cause is before me on Defendant Detective Rolando De La Osa’s Renewed Motion
to Compel Plaintiff to Fully Respond to Defendant’s Request for Production of Documents.
[ECF No. 138]. Plaintiff did not file a response and the time for doing so has now expired. For
the reasons discussed below, Defendant’s motion to compel is GRANTED IN PART and
DENIED IN PART. Plaintiff Stephen L. White shall have ten days to serve a supplemental set
of responses on Defendant as detailed below, but Defendant’s request for attorney’s fees and
other sanctions is DENIED.
I.

BACKGROUND AND INTRODUCTION

This is an action for false arrest and malicious prosecution brought pursuant to 42 U.S.C.
§ 1983 by Plaintiff against Defendant, a Miami-Dade County Police Department detective.
[ECF No. 91]. Defendant previously moved to compel better responses to the same requests for
production, but Plaintiff eventually served untimely responses to the requests for production on
October 3, 2011, which mooted the original motion to compel. [ECF Nos. 111; 130; 135].

Case No. 07-23381-CIV-GOLD/GOODMAN
Given the history of this case, however, the Undersigned provided Defendant ten days to
file another discovery motion regarding the responses to the requests for production, if he
believed such a motion were appropriate. [ECF No. 135]. Defendant thereafter filed this timely
renewed motion to compel full responses to his document requests. [ECF No. 138]. Plaintiff did
not respond and the time for filing a response has now expired. The Court’s rulings on the
motion to compel are provided below on a request-by-request basis or, where appropriate, by
groups of related requests.
As an initial matter, however, the Court will remind the Plaintiff that Plaintiff’s inability
to obtain copies of documents from the Department of Corrections is not necessarily relevant to
his responses. Defendant is seeking documents in Plaintiff’s possession from whatever source,
so long as those documents are responsive to the document production requests. Therefore,
Plaintiff must review his own records for responsive documents. Plaintiff must also consider all
available potential sources of responsive documents within his control.
For example, although Plaintiff is incarcerated, if any family members or friends are
storing documents for him until he is released from prison, then Plaintiff must attempt to obtain
copies of any responsive documents from the storage locations. It is insufficient to simply
request the documents from the Department of Corrections and to indicate the Department would
not produce the records if other possible sources exist. If after exhausting all of his resources the
Plaintiff cannot produce copies of any requested documents, then (and only then) may he
respond either that no such documents exist or the documents exist but he cannot obtain copies.
This is not to suggest that, if Plaintiff fails to produce any responsive records, then
Plaintiff’s case will not be negatively impacted. It is still Plaintiff’s responsibility to prove his
claims and, to the extent he fails to produce supporting evidence, such as the documents at issue

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here, his ability to prove his claims may be diminished. In addition, if Plaintiff’s case proceeds
to trial and he suddenly produces previously unproduced responsive records and states his
intention to use these documents at the trial, then, upon appropriate motion, the Undersigned will
recommend that the District Court exclude that evidence from the trial.
II.

ANALYSIS
a. REQUEST FOR PRODUCTION NUMBERS 2 AND 3
Any MRI, X-Ray, CAT Scan, or other diagnostic study relating to
any injuries that Plaintiff claims he incurred because of the
Incident.
Documents or communications, including medical, psychiatric, or
psychological records, relating to any mental pain or suffering,
shame, humiliation, embarrassment, or fear that Plaintiff claims he
experienced as a result of the Incident.

[ECF No. 130, p. 4].
In his response to both requests, Plaintiff states simply “Not Obtain [sic] Against D.O.C.”
[Id.]. Defendant argues that this response is insufficient because Plaintiff provided some medical
records in response to document request numbers ten and eleven. More specifically, Defendant
contends that the mere fact Plaintiff provided some medical records in response to a different
request “belies Plaintiff’s argument that he was somehow precluded from providing medical
records responsive to” request numbers 2 and 3. Defendant notes that if Plaintiff does not
possess these documents, then he has had (as of the time of the filing of the renewed motion)
roughly 114 days to obtain copies.
The Court agrees that this response is insufficient, although not for the reason Defendant
urges. The Court disagrees that, simply because Plaintiff was able to produce other medical
records, it follows logically that he could, but simply choose not to, produce the requested
records. Plaintiff is a pro se, incarcerated individual. It is possible that Plaintiff may not possess
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all responsive documents and that he has no ability to obtain the documents. His limited, written
response to these requests is somewhat ambiguous. It appears he intends to convey that he does
not possess the records and attempted to procure them from the Department of Corrections but
could not do so. At a minimum, Defendant is entitled to more definitive responses to these
requests.
The motion is therefore granted to the extent that Plaintiff must serve a supplemental
response to request numbers 2 and 3 within 10 days, indicating whether he possesses any of the
requested documents and, if he does possess any or all of the documents, he must attach copies
of the documents to his supplemental response. If Plaintiff does not possess any responsive
documents, but Plaintiff believes the documents exist and after reasonable effort cannot obtain
the documents, then he shall clearly and plainly state that he does not possess these documents
and is unable to obtain copies of the documents.
Defendant is nonetheless reminded again that, in response to interrogatory number 11
[See ECF No. 153, p. 7], Plaintiff indicated that he did try to obtain his prison psychological
records and the prison’s response suggested production of the records may be possible with a
court order. To the extent that it may alleviate Defendant’s concerns regarding these requests for
production, the Court again encourages Defendants to seek a court order compelling the
Department of Corrections to turn Plaintiff’s records over to Defendant.
b. REQUESTS FOR PRODUCTION NUMBERS 21 AND 23
Copies of any and all tax returns filed with the Internal Revenue
Service (“IRS”) by Plaintiff from 2000 to present.
Copy of the alibi defense hearing transcript described in Plaintiff’s
response to Request Number Twenty from Defendant’s First
Request for Requests.
[ECF No. 130, pp. 6-7].

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Case No. 07-23381-CIV-GOLD/GOODMAN
In his original response to both requests, Plaintiff stated only “”Not Obtain Aginst [sic]
D.O.C.” and “Not Obtain.”

Defendant claims that, because Plaintiff was able to include

corporate documents and hearing transcripts in his original response to other requests for
production, it “once again undermines Plaintiff’s contentions that he was precluded from
obtaining the IRS tax returns and alibi defense hearing transcript requested in” these requests.
For the same reasons discussed above, the court again disagrees that, merely because
Plaintiff was able to produce other documents, it demonstrates he could have also produced
documents responsive to these requests. It is simply not clear on the available record what, if
anything else, Plaintiff could have produced. The motion is therefore granted to the extent that
Plaintiff must serve a supplemental response to requests numbers 21 and 23 within 10 days,
indicating whether he possesses any of the requested documents and, if he does possess any or
all of the documents, he must attach copies of the documents to his supplemental response. If
Plaintiff does not possess any responsive documents, but Plaintiff believes the documents exist
and after reasonable effort cannot obtain the documents, then he shall clearly and plainly state
that he does not possess these documents and is unable to obtain copies of the documents.
c. REQUESTS FOR PRODUCTION NUMBERS FOUR AND FIVE
Any insurance policies or agreements (including, but not limited
to, medical insurance and disability insurance) pursuant to which
Plaintiff has been paid benefits or pursuant to which benefits are
payable for expenses or damages that Plaintiff allegedly suffered
as a result of the Incident.
Receipts or other documents from insurance companies or any
medical provider indicating any amounts paid by insurance
companies for medical expenses relating to the Incident.
[ECF No. 130, p. 5].
In his original response to both requests, Plaintiff simply wrote “N/A.” Defendant argues
this response is ambiguous because it is not clear if it means “not available” or “not applicable.”
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Defendant also states that, to the extent the latter meaning is intended, Plaintiff waived any
objection by serving untimely responses.
The Court agrees that this response is ambiguous and therefore insufficient. The motion
is granted to the extent that Plaintiff must serve a supplemental response to requests numbers 4
and 5 within 10 days, indicating whether he possesses any of the requested documents and, if he
does possess any or all of the documents, he must attach copies of the documents to his
supplemental response. If Plaintiff does not possess any responsive documents, but Plaintiff
believes the documents exist and after reasonable effort cannot obtain the documents, then he
shall clearly and plainly state that he does not possess these documents and is unable to obtain
copies of the documents. The Court also agrees that the Plaintiff waived his right to object by
failing to file a timely response to this request (and by failing to respond to the motion to
compel). As a result, if Plaintiff possesses responsive documents, then he must produce copies
of the documents. See Romacorp, Inc. v. Prescient, Inc., No. 10–22872–Civ, 2011 WL 2312563,
at *2 (S.D. Fla. June 8, 2011).
d. REQUEST FOR PRODUCTION NUMBER 6
Documents or communications, such as correspondence, notes, or
diary entries, whether created or maintained by Plaintiff in which
the Incident is described.
[ECF No. 130, p. 5].
Plaintiff’s only response to this request was “Exhibit 3.” In Defendant’s motion, he
describes the contents of Exhibit 3 and argues that these documents do not appear to be
responsive to the request. The Court reviewed these documents and agrees the documents do not
appear to be responsive to the request. Plaintiff is instructed that this request does not simply
seek any documents or communications that Plaintiff believes in some way relate to his case or

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the topic of criminal prosecutions, but only those documents or communications which
specifically refer to the incident at issue in this lawsuit.
Consequently, within 10 days, Plaintiff must serve a supplemental response to request
number 6. In the supplemental response, Plaintiff must indicate whether he possesses any of the
requested documents and, if he does possess any or all of the documents, he must attach copies
of the documents to his supplemental response. If Plaintiff does not possess any responsive
documents, but Plaintiff believes the documents exist and after reasonable effort cannot obtain
the documents, then he shall clearly and plainly state that he does not possess these documents
and is unable to obtain copies of the documents.
e. REQUEST FOR PRODUCTION NUMBER 7
Any written statements made by Plaintiff relating to the Incident.
[ECF No. 130].
Plaintiff did not respond at all to this request for production. Plaintiff shall therefore
serve a supplemental response to request number 7 within 10 days.

In the supplemental

response, Plaintiff must indicate whether he possesses any of the requested documents and, if he
does possess any or all of the documents, he must attach copies of the documents to his
supplemental response. If Plaintiff does not possess any responsive documents, but Plaintiff
believes the documents exist and after reasonable effort cannot obtain the documents, then he
shall clearly and plainly state that he does not possess these documents and is unable to obtain
copies of the documents.

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f. REQUEST FOR PRODUCTION NUMBER 12 1
Any and all documents or communications relating to other
instances in which Plaintiff has been arrested.
[ECF No. 130].
Plaintiff objected to this request as irrelevant. Defendant contends Plaintiff waived his
objection because his response was untimely. The Court agrees that, in general, Plaintiff waived
his right to object by serving an untimely response and failing to respond to this motion. But,
given Plaintiff’s status, the Court finds that his objection was sufficient to preserve the attorneyclient privilege as to any of the requested documents.
Plaintiff shall therefore serve a supplemental response to this request within 10 days. In
the supplemental response, Plaintiff must indicate whether he possesses any of the requested
documents and, if he does possess any or all of the documents, he must attach copies of the
documents to his supplemental response. If Plaintiff does not possess any responsive documents,
but Plaintiff believes the documents exist and after reasonable effort cannot obtain the
documents, then he shall clearly and plainly state that he does not possess these documents and is
unable to obtain copies of the documents.
Plaintiff is instructed, however, that if he believes any documents are protected by the
attorney-client privilege, then he may withhold those documents and prepare a privilege log
listing the documents. Any privilege log must indicate the general nature of the document (e.g.,
letter from attorney to Plaintiff about criminal trial strategy), the date the document was created
or received, and the number of pages in the document. Plaintiff is cautioned that if he withholds
any documents on this basis but does not file a privilege log, then the Court will determine he
voluntarily waived the attorney-client privilege.
1

This request for production is mis-numbered. It is actually the fifteenth request for
production.
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g. REQUEST FOR PRODUCTION NUMBERS 13 THROUGH 18
These six requests for production seek “Any and all documents or communications
between Plaintiff and” Dwight Mizzell, Ms. Walker, personnel of any law enforcement office
related to the Incident, Sharon Pritchett relating to the Incident, Richard Bravo relating to the
Incident, Warren Riley relating to the Incident, Candida Margarita relating to the Incident, and
Zaire Baptiste relating to the incident. In response to these requests, Plaintiff simply listed
(depending on the request) exhibits 4, 5, or 6. Defendant contends that the documents in these
exhibits are not responsive and, at best, contain references to various individuals in the requests
but do not contain any communications or documents between these individuals and Plaintiff.
The court reviewed the listed exhibits and agrees that the exhibits are not responsive to
the request. Plaintiff is instructed that these requests specifically seek any communications or
documents between these individuals and Plaintiff. The request does not seek any document that
merely mentions these individuals. For example, a responsive document might be a letter
between Plaintiff and one of these individuals, but a document responsive to these requests
would not be a police report mentioning one of these individuals (but nothing more).
Consequently, Plaintiff shall, within 10 days, serve a supplemental response to this
request. In the supplemental response, Plaintiff must indicate whether he possesses any of the
requested documents and, if he does possess any or all of the documents, he must attach copies
of the documents to his supplemental response. If Plaintiff does not possess any responsive
documents, but Plaintiff believes the documents exist and after reasonable effort cannot obtain
the documents, then he shall clearly and plainly state that he does not possess these documents
and is unable to obtain copies of the documents.

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III.

CONCLUSIONS

Defendant’s renewed motion to compel complete responses [ECF No. 138] is
GRANTED IN PART and DENIED IN PART. Plaintiff must serve supplemental responses to
the requests for production described above on Defendant within 10 days of this order. To the
extent Plaintiff does not possess and cannot obtain any of the documents requested, Plaintiff
must clearly indicate that fact in his supplemental responses. However, Plaintiff is cautioned
that, should he represent that he does not possess responsive documents, Plaintiff may be barred
from relying on those documents as evidence on summary judgment or at trial unless Plaintiff
promptly supplements his response and mails a copy of the supplemental documents to
Defendant in advance.
Defendant’s request for attorney’s fees and sanctions is DENIED. Plaintiff’s responses
were not completely unresponsive and he appears to have tried to comply with the discovery
requests. Moreover, Plaintiff is incarcerated and is proceeding pro se, and Defendant candidly
acknowledges he was unable to, and therefore did not, confer with Plaintiff before filing the
motion to compel.
DONE AND ORDERED, in Chambers, in Miami, Florida, this 23rd day of January,
2012.

Copies furnished to:
The Honorable Alan S. Gold
Stephen L. White, pro se
All counsel of record
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