Mamani et al v. Lozada Sanchez Bustamante

Filing 289

ORDER denying 259 Motion to Compel. Please see Order for details. Signed by Magistrate Judge Barry S. Seltzer on 8/11/2017. (pb00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 07-22459-CIV-COHN/SELTZER
CASE NO. 08-21063-CIV-COHN/SELTZER
ELOY ROJAS MAMANI, et al,
Plaintiffs,
v.
GONZALO DANIEL SANCHEZ DE
LOZADA SANCHEZ BUSTAMANTE,
Defendant.
________________________________
ELOY ROJAS MAMANI, et al.,
Plaintiffs,
v.
JOSE CARLOS SANCHEZ BERZAIN,
Defendant.
__________________________________/
ORDER
THIS CAUSE is before the Court upon Defendants’ Motion to Compel Production
of Documents [DE 279].1 The Motion arises from Plaintiffs’ Response to Defendants’
Second Set of Requests for Production of Documents [DE 279-4], which was served on
April 13, 2017 [DE 279-3]. Three requests are at issue in this motion:
Request No. 28: All Documents relating to communications
between You and the “Asociación de Familiares de Fallecidos
y Caídos en Septiembre y Octubre de 2003 por la Defensa del
1

Defendants filed the identical motion in consolidated Case No. 08-21063-CIVCohn. The motion in that case bears docket entry number [DE 259]. This Order has been
filed in both cases. Docket entry citations refer to Case No. 07-22459-CIV-COHN.

Gas,” the “Asociación de Heridos y Afectados de Septiembre
y Octubre de 2003 por los Recursos Naturales,” or the “Comité
Impulsor del Juicio de Responsibilidades a Gonzalo Sánchez
de Lozada y sus Colaboradores.”
Response to Request No. 28: Plaintiffs object to this Request
to the extent it calls for communications shielded from
production by attorney-client privilege, the work product
privilege, Bolivian law, or any other applicable rule, privilege,
or law. Plaintiffs also object this Request because it seeks
documents that are not in Plaintiffs’ possession, custody or
control. Subject to, and without waiving the foregoing general
and specific objections, Plaintiffs will produce on a rolling basis
non-privileged documents in Plaintiffs’ possession and
responsive to this Request, if any are located.
Request No. 29: All Documents relating to communications
between the “Asociación de Familiares de Fallecidos y Caídos
en Septiembre y Octubre de 2003 por la Defensa del Gas” and
current or former members of the Bolivian government.
Response to Request No. 29: Plaintiffs object to this Request
on the grounds that it is overbroad because the Request has
no limitation as to subject matter and is therefore not
proportional to the needs of this case. Further it seeks
documents that are not in Plaintiffs’ possession, custody or
control. Subject to, and without waiving the foregoing general
and specific objections, Plaintiffs will produce on a rolling basis
non-privileged documents responsive to Defendants’ Request,
if any are located.
Request No. 30: All Documents relating to the “Asociación de
Familiares de Fallecidos y Caídos en Septiembre y Octubre de
2003 por la Defensa del Gas” in possession, control, or
custody of Plaintiff Eloy Rojas Mamani in his role as Vice
President thereof.
Response to Request No. 30: Plaintiffs object to this Request
on the grounds that it is overbroad in that it seeks information
about persons who are not party to this action. Moreover
Plaintiff Eloy Rojas Mamani has no documents in his
possession due to his role as Vice President. Subject to, and
without waiving the foregoing general and specific objections,
Plaintiffs will produce on a rolling basis non-privileged
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documents responsive to Defendants’ Request, if any are
located.
I.

BACKGROUND
This is an action for wrongful death and claims under the Torture Victim Protection

Act of 1991, 28 U.S.C. § 1350, arising from a period of unrest in the country of Bolivia
during September and October 2003. Defendants are the former President and the former
Defense Minister of Bolivia. Plaintiffs are family members of persons who died during the
unrest.
The Asociación de Familiares de Fallecidos y Caídos en Septiembre y Octubre de
2003 por la Defensa del Gas [the “Association of Relatives of the Deceased and Fallen in
September and October 2003 for the Defense of the Gas”] was formed by Bolivians who
lost family members in the unrest. The Association investigated the events of September
and October 2003 and lobbied the Bolivian government on behalf of its members. The
Association is a legal entity in Bolivia with a formal officer structure, including President or
Chairman, Vice-President or Deputy Chairman, Treasurer, and Secretary. Plaintiff Eloy
Rojas Mamani (“Mamani) served as the Association’s Vice-President from 2005 to 2009.
The discovery requests in question pertain to documents that belong to the Association.
In his deposition, Mamani testified that the Association’s documents and records are
maintained in a file in the Association’s office in Bolivia [DE 279-9, p. 171]. He further
stated that the leaders of the Association “are in charge of the documents. Nobody else
can have them. When we occupy a position of leadership we have those documents under
our care. Once we leave that position of leadership, we have to deliver the documents.”
[DE 279-9, pp. 172-73]. The parties dispute whether Mamani ever had the Association’s
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documents in his physical possession: Defendants argue that he did, while Plaintiffs
represent that he did not. In his deposition, Mamani testified that if he wanted to look at
the Association’s documents today, he could, by asking the president of the Association.2
II.

DEFENDANTS’ MOTION
Defendants argue that Mamani is obligated to produce documents belonging to the

Association because he had “possession, custody, and control of the Association
documents” when this action was filed in 2007 by virtue of his position as the Association’s
vice-president. They contend that Mamani had an obligation to preserve documents in
light of the litigation and that he currently has the obligation to produce them. Defendants
further argue that the Association’s documents are under the possession, custody, and
control of Mamani because he testified that if he wants to look at the documents he simply
needs to ask the Association’s current president. Finally, Defendants argue that Mamani
waived his objection to producing Association documents because he never raised lack of
possession, custody, or control of the documents in a personal capacity in his response
to Defendants’ Request for Production.

2

Q.
A.
Q.
A.
Q.
A.
Q.
A.

While you were a leader of the organization, did you have access to
the documents?
I had.
If you wanted to look at one of those documents now, could you go
look at one of the documents now?
To look?
Yeah. Could you go look at them now?
Yes, I could.
Who would you ask to see them?
To the president of the association. [DE 279-9, pp. 173-74].
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III.

ANALYSIS
The crux of this dispute is the definition of “possession, custody, or control” under

Fed. R. Civ. P. 34(a)(1). The problem lies in the fact that Defendants are requesting
Mamani, an individual, to produce documents that belong to the Association, a separate
legal entity. As the requesting party, Defendants bear the burden of establishing that the
documents are under Mamani’s possession, custody, or control. See, Siegmund v. Xuelian,
2016 WL 1359595, at *2 (S.D. Fl. Apr. 5, 2016) (Gayles, D.J.).
“The Eleventh Circuit defines control ‘not only as possession, but as the legal right
to obtain the documents requested upon demand.’” Id. (quoting Searock v. Stripling, 736
F.2d 650, 653 (11th Cir. 1984)). For example, “under this principle, discovery can be
sought from one corporation regarding materials that are in the physical possession of
another, affiliated corporation.” Costa v. Kerzner Internat’l Resorts, Inc., 277 F.R.D. 468,
471 n.1 (S.D. Fla. 2011) (citations omitted). Thus, a corporation that shares financial and
operational interactions with an affiliate can be required to produce responsive documents
that are in the possession, custody, or control of the affiliate. Id. at 472. Likewise, a bank
customer is considered to have control over the bank’s records relating to his account.
Luellen v. Hodge, 2014 Wl 1315317, at * 6 (W.D.N.Y. Mar. 28, 2014).
Defendants contend that Mamani had actual physical possession of the
Association’s documents during his tenure as Vice-President and, in light of the fact that
this lawsuit had been filed during his tenure, had an obligation to maintain those
documents for production in this action.

Plaintiffs dispute the physical possession

argument. From his testimony it appears that during his tenure as Vice-President, Mamani
had custodial rights and responsibilities over the Association’s documents. But nothing in
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the record establishes that Mamani had actual physical possession of the Association’s
documents.
Even assuming that Mamani did have custodial rights and responsibilities (or even
physical possession) over the Association’s documents from 2005 to 2009 while he served
as Vice-President, it does not follow that Mamani personally has an obligation to produce
those documents in 2017, especially when he has testified that he does not possess any
responsive documents. Defendants cite a number of spoliation cases, but make no
allegations that the Association’s documents have been destroyed.3 Rather, Defendants
argue that Mamani had a duty to keep documents that were not his so that they could be
produced by him in this litigation. This argument presupposes that Mamani has maintained
control over the Association’s documents. Judge Gayles rejected an identical argument
in Siegmund, 2016 WL 1359595, at *2-3, n.1 (former corporate directors could not be
compelled to produce documents “from a corporation over which they no longer have
control”). Indeed, Mamani testified that the Association’s leaders “are in charge of the
documents. Nobody else can have them. When we occupy a position of leadership we
have those documents under our care. Once we leave that position of leadership, we have
to deliver the documents.” [DE 279-9, pp. 172-73].

Clearly, once Mamani left his

leadership position with the Association, he no longer had custodial responsibility for the
documents. Mamani cannot be compelled to produce the Association’s documents when
he no longer has control over them.

3

Defendants seek the Association’s documents from Mamani in lieu of seeking the
documents directly from the Association in Bolivia.
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Defendants argue that Mamani’s ability to ask the Association’s President for
permission to look at the Association’s documents is tantamount to “control” over the
documents. The Eleventh Circuit has defined “control” as possession, as well as “the legal
right to obtain the documents requested upon demand.” Searock, 736 F.2d at 653. “But
‘even under the most expansive interpretation of “control,” the “practical ability” to demand
production must be accompanied by a similar ability to enforce compliance with that
demand.’” Siegmund, 2016 WL 1359595, at *3 (quoting Klesch & Co. v. Liberty Media
Corp., 217 F.R.D. 517, 520 (D. Colo. 2003). “A former director’s apparent ability to request
documents from his former corporation (or from the appropriate custodian at the
corporation) is not the same as the right to obtain those documents upon demand or the
ability to enforce compliance with that demand.” Siegmund, 2016 WL 1359595, at *3
(emphasis in original). Thus, Mamani can be compelled to produce only documents that
he has the “legal right” to obtain “upon demand” with the “ability to enforce compliance with
that demand.” Id. Defendants have not established that Mamani has those rights.
Finally, Defendants have not established any “waiver” by Mamani in failing to object
to production of the Association’s documents. Mamani responded that he did not have
responsive documents. This is a clear and appropriate response. No waiver occurred.
Accordingly, in light of the foregoing discussion, it is hereby

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ORDERED AND ADJUDGED that Defendant’s Motion to Compel Production of
Documents [DE 279] [DE 259, 08-21063-CIV-COHN] is DENIED.
DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 11th day of
August 2017.

Copies furnished counsel via CM/ECF

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