Miami-Dade County v. Johnson Controls, Inc.
Filing
92
ORDER granting in part and denying in part 61 Defendant Johnson Control, Inc.'s Amended Motion to Compel Non-Party Lea+Elliott, Inc. to Produce Documents Requested per Subpoena Duces Tecum. Signed by Magistrate Judge Andrea M. Simonton on 4/21/2011. (par)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-20881-CIV-ALTONAGA/SIMONTON
MIAMI-DADE COUNTY,
Plaintiff,
v.
JOHNSON CONTROLS, INC.,
Defendant.
/
ORDER GRANTING, IN PART, DEFENDANT’S MOTION TO COMPEL
This matter arose upon Defendant Johnson Controls, Inc.’s Amended Motion to
Compel Non-Party Lea+Elliott, Inc., to Produce Documents Requested Per Subpoena
Duces Tecum Served on September 30, 2010 (DE # 61). The Honorable Cecilia M.
Altonaga, United States District Judge, has referred this matter to the undersigned
United States Magistrate Judge (DE # 14). Non-Party Lea+Elliott, Inc. has filed an
Opposition to the Motion (DE # 74), and Defendant has filed a Reply (DE # 82). For the
following reasons, the undersigned Grants the Motion to Compel, in part.
I.
BACKGROUND
This matter was initiated when Plaintiff Miami-Dade County filed a Complaint in
the 11th Judicial Circuit in and for Miami-Dade County alleging breach of contract
against Johnson Controls, Inc., (“Johnson”) related to an accident involving an
Automated People Mover at Miami International Airport on November 28, 2008 (DE # 1).
The matter was removed to this Court by Defendant Johnson based upon diversity of
citizenship.
After removal, Defendant Johnson filed an Answer to the Complaint (DE # 8). On
November 16, 2010, the Court granted Plaintiff’s Motion for Extension of Discovery
Deadlines and re-set the discovery deadline date for January 10, 2011, the motion
deadline date for March 14, 2011, and set the matter for the trial period commencing on
July 18, 2011 (DE # 43). On March 15, 2011, Johnson filed the instant Motion to Compel.1
II.
MOTION TO COMPEL
In the Motion to Compel, Defendant Johnson seeks to have non-party Lea+Elliott,
Inc., (“Lea”) produce documents responsive to a subpoena duces tecum served by
Johnson on Lea on or about September 29, 2010. The subpoena, which was submitted
with the Motion, seeks thirty-seven different categories of documents and has an
October 20, 2010 return date (DE # 61-1). According to the Motion, Lea failed to comply
with the subpoena and instead entered an objection to the subpoena regarding the costs
associated with the production of the documents.2 Defendant Johnson states that
although it has no objection to reimbursing Lea for the “statutorily approved copying
charges”, it disputes that it should have to reimburse Lea for the service costs
associated with Lea’s retrieving and copying the requested documents. In addition,
Defendant Johnson contends that Lea has provided consulting services for the MiamiDade County Aviation Department since at least 2001, and has provided services for
issues pertaining to this case, and thus should be able to easily retrieve documents kept
in the ordinary course of business without undue burden or expense.
In Response, Non-Party Lea contends that the subpoena at issue is improperly
1
Defendant Johnson’s original Motion to Compel (DE # 58) filed on March 14,
2011 was denied without prejudice by Judge Altonaga due to Defendant’s failure to
attach a Certificate of Good Faith Conference to the Motion (DE # 62). Defendant filed
the instant Amended Motion the following day, which included the Certificate.
2
In the Objection, Lea also objected to the subpoena to the extent that it sought
proprietary and trade secret information and to the extent it sought plans and
schematics of County facilities (DE # 61-2).
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burdensome because it seeks documents that span almost two decades and Lea
estimates that it will cost $118,000 to produce the requested documents. In support of
this claim, Lea has submitted the Declaration of Daniel J. McFadden, an employee at Lea,
who has been tasked with estimating the costs associated with producing the
documents requested in Johnson’s subpoena (DE # 74-3). According to the Declaration,
proper production will require searching the electronic files of fifteen to twenty Lea staff
members, in addition to retrieving hard copies of files dating back to 1993 which are
likely warehoused in Texas, Miami and Washington, D.C. Further, Mr. McFadden
estimates that because, among other things, the documents to be produced must be
segregated to protect documents containing proprietary and trade secret information,
that the production will require approximately 800 man-hours to produce at a total cost
of $118,043.00.
In addition, Lea states that on the return date for the subpoena, Lea emailed its
objections regarding the scope of the subpoena to Johnson and further argues that the
Motion to Compel is untimely due to the Court’s January 10, 2011 discovery deadline.
Further, Lea argues that the subpoena seeks documents that Lea is prohibited by law
from producing and asserts that the documents should instead be obtained directly from
Miami-Dade County, the Plaintiff in this matter. Finally, Lea requests that the Court
award it attorney’s fees and costs associated with responding to the Motion to Compel.
In its Reply, Johnson counters that the Motion to Compel is timely because the
deadline for filing motions in this matter was April 14, 2011, the date Johnson filed its
first Motion to Compel (DE # 82). In addition, Johnson contends that Lea waived any
objections to the Subpoena by failing to raise those objections within fourteen days of
service of the subpoena as required under Rule 45. Also, Johnson contends that the
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bulk of the documents that it seeks relate to Lea’s post-incident investigation of the
accident on November 28, 2009, and, thus in reality, Johnson only seeks limited
documents from many years ago. Further, Johnson takes issue with how much Lea
estimates that it will cost to comply with the subpoena, and also disputes that Lea is not
involved in this lawsuit other than as a non-expert witness. Finally, Johnson asserts
that it should be awarded attorney’s fees as a sanction for Lea’s misconduct in failing to
respond to the subpoena and in asserting that Lea has not performed significant work in
this matter.
III.
LAW & ANALYSIS
Federal Rule of Civil Procedure 45 sets forth the procedures related to issuing
and complying with Subpoenas. The Rule provides, in relevant part,
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena
must take reasonable steps to avoid imposing undue burden
or expense on a person subject to the subpoena. The issuing
court must enforce this duty and impose an appropriate
sanction--which may include lost earnings and reasonable
attorney's fees--on a party or attorney who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to
produce documents, electronically stored information, or
tangible things, or to permit the inspection of premises, need
not appear in person at the place of production or inspection
unless also commanded to appear for a deposition, hearing,
or trial.
(B) Objections. A person commanded to produce documents
or tangible things or to permit inspection may serve on the
party or attorney designated in the subpoena a written
objection to inspecting, copying, testing or sampling any or
all of the materials or to inspecting the premises--or to
producing electronically stored information in the form or
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forms requested. The objection must be served before the
earlier of the time specified for compliance or 14 days after
the subpoena is served. If an objection is made, the following
rules apply:
(i) At any time, on notice to the commanded person,
the serving party may move the issuing court for an order
compelling production or inspection.
(ii) These acts may be required only as directed in the
order, and the order must protect a person who is neither a
party nor a party's officer from significant expense resulting
from compliance.
Fed.R.Civ.Pro. 45. Thus, the Rule directs, inter alia, that after an objection is made, the
Court must protect a non-party entity from significant expense when complying with a
subpoena.
At the outset, the undersigned notes, notwithstanding the multiple arguments
raised by counsel for Defendant Johnson and Non-Party Lea, it is undisputed that in this
matter, a Subpoena Duces Tecum was properly served on Non-Party Lea+Elliott, Inc.,
seeking the production of documents which arguably are relevant to the resolution of
this case. Although Non-Party Lea has asserted that Johnson’s Motion To Compel is
untimely under the Court’s discovery schedule, there has been no objection or response
to the Motion to Compel filed by Plaintiff Miami-Dade County regarding the substance of
the Motion, or the timeliness of the filing of that Motion. If Plaintiff Miami-Dade County
believed that Johnson’s Motion to Compel was untimely, it certainly had ample time to
file a Response to the Motion to Compel, yet, did not do so. Thus, there is no basis for
Non-Party Lea to raise an objection on timeliness grounds where there is no indication
that the production of the subpoenaed documents will interfere with the trial date or any
other deadlines in this case, or otherwise affect Lea in any manner other than having to
respond to the subpoena.
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Further, although Lea asserts that certain documents are restricted from
production under the law, Lea has not identified which documents are subject to such
laws, and/or has not even identified which laws are at issue, save a reference to “post9/11 mandates” relating to plans and schematics of government buildings (DE # 74 at 5).
Also, to the extent that Lea believes that certain documents are privileged or should
otherwise be protected, Lea should seek appropriate relief on that issue, rather than
refusing to respond to the subpoena at all. Simply put, Lea has not offered any reason
that would warrant the wholesale denial of Defendant Johnson’s request for Lea to
respond to the Subpoena Duces Tecum.
Similarly, although Defendant Johnson argues that Lea has waived any objections
to the Subpoena Duces Tecum, the undersigned concludes that Lea’s objection to the
subpoena should not be deemed waived. In particular, Lea’s written objection was
forwarded to Johnson within twenty-days from the date of service of the subpoena and
on the return date listed on the subpoena. It is for this reason that the instant case is
distinguishable from Bailey Industries, Inc. v. CLJP, Inc., 270 F.R.D. 662 (N.D. Fla. 2010),
where the non-party did not submit a written objection at all, let alone on or before the
compliance date for the subpoena. Thus, although Rule 45 states that objections should
be lodged the earlier of 14 days or the return date of compliance of the subpoena, under
the facts of this case, a finding that Lea’s objection to costs associated with complying
with the subpoena is waived is not warranted. This conclusion is particularly
appropriate where Defendant Johnson waited nearly five months after Lea’s objection
was lodged before filing its Motion to Compel, which pursuant to the Local Rules should
have been filed within thirty (30) days from the occurrence that serves as the basis for
the motion. See S.D. Fla. L.R. 26.1(h) (1). In addition, Johnson filed the Motion to Compel
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two months after the discovery period closed pursuant to the Court’s Order. Thus, it is
hard to fathom how Lea’s six-day delay in objecting to the subpoena was in any way
detrimental to Johnson.
Moreover, Lea has sufficiently demonstrated that substantial costs will be
incurred in responding to the subpoena. The undersigned has reviewed the subpoena at
issue and the Declaration provided by Lea and finds that given the scope of the
subpoena, the estimated man-hours and costs associated with producing the requested
documents are sufficient to establish the burdensomeness of the subpoena and to
warrant and order requiring Johnson to reimburse the costs. Accordingly, because Rule
45 requires the Court to “protect a person who is neither a party nor a party’s officer
from significant expense resulting from compliance,” Johnson shall bear the reasonable
costs associated with Lea’s compliance with the Subpoena. See R.J. Reynolds Tobacco
v. Philip Morris, Inc., 29 Fed. Appx. 880, * 2 (3rd Cir. 2002) (finding that district court
abused its discretion in denying non-party’s request for compensation in responding to
subpoena duces tecum without determining existence and magnitude of non-party’s
expenses). Johnson shall be required to reimburse Lea at the regular hourly salary rate
for each employee who is reasonably and necessarily involved in the production of the
requested documents. However, due to the sparse description of those services, the
undersigned makes no finding regarding the reasonableness of the estimate. Prior to
incurring the expense, Lea shall advise Johnson of the particular tasks and the persons
who will perform those tasks to enable Johnson to determine whether to narrow the
scope of its request. If the parties are unable to agree on the reasonableness of the
expense incurred after production has been made, Johnson shall pay the amount it
deems reasonable and Lea may file a motion with the Court to award an additional
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amount. If such a motion is filed, the Court may award attorney’s fees in favor of the
prevailing party. At the present time, based upon the record in this case, the
undersigned finds an award of fees is not justified.
IV.
CONCLUSION
Therefore, based upon a review of the record as a whole, it is hereby
ORDERED AND ADJUDGED that Defendant’s Amended Motion to Compel NonParty Lea+Elliott, Inc. to Produce Documents Requested Per Subpoena Duces Tecum
Served on September 30, 2010 is GRANTED, in part. Non-Party Lea+Elliott, Inc., shall
produce documents responsive to the Subpoena Duces Tecum served by Defendant
Johnson Controls, Inc., on or before May 20, 2011. However, Defendant Johnson
Controls, Inc., shall bear the reasonable costs associated with such production. Nothing
in this order shall serve as a basis for altering any existing deadlines in the Scheduling
Order; nor does it constitute a ruling on the admissibility of any documents.
It is further
ORDERED AND ADJUDGED that Defendant Johnson’s Request for Sanctions
and Non-Party Lea+Elliott, Inc.’s Request for Attorney’s Fees and Costs are DENIED.
DONE AND ORDERED in chambers in Miami, Florida, on April 21, 2011.
ANDREA M. SIMONTON
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
The Honorable Cecilia M. Altonaga,
United States District Judge
All counsel of record via CM/ECF
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