Adelman et al v. Boy Scouts of America et al

Filing 300

MOTION to Quash Subpoenas Duces Tecum for Depositions by Verizon Wireless Personal Communications d/b/a Verizon Wireless, Alltel Communication LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Alwine, Robert)

Page 1

10 of 14 DOCUMENTS
MARK HART, Plaintiff, v. LINDGREN-PITMAN, INC., Defendant.
Case No. 06-60285-Civ-ZLOCH/SNOW
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA
2008 U.S. Dist. LEXIS 114426

July 17, 2008, Decided
July 17, 2008, Entered
SUBSEQUENT HISTORY: Magistrate's recommendation at, Costs and fees proceeding at Hart v.
Lindgren-Pitman, Inc., 2008 U.S. Dist. LEXIS 77998
(S.D. Fla., July 31, 2008)
PRIOR HISTORY: Hart v. Lindgren-Pitman, Inc., 576
F. Supp. 2d 1349, 2007 U.S. Dist. LEXIS 98653 (S.D.
Fla., 2007)
COUNSEL: [*1] For Mark Hart, Plaintiff: Richard
Bernard Celler, LEAD ATTORNEY, Morgan & Morgan, Davie, FL.
For Lindgren-Pitman, Inc., Defendant: Sergio R. Casiano, Jr., LEAD ATTORNEY, Miller Kagan Rodriguez &
Silver, Coral Gables, FL.
JUDGES: LURANA S. SNOW, UNITED STATES
MAGISTRATE JUDGE.

No. 06-80516-Civ-PAINE, Docket Entry 6. The defendant also requests every motion for attorney's fees, with
complete exhibits, filed by Richard Celler and Kelly
Amritt since March 7, 2006.
The plaintiff's response correctly states that the motion does not include the certificate that counsel has conferred with opposing counsel prior to filing the motion,
as required by S.D.Fla.R. 7.1.a.3. The record reveals that
the defendant's counsel [*2] failed to comply with this
rule throughout the litigation. 1
1 The plaintiff provided an e-mail exchange
which took place immediately after the discovery
request was served, which discussed the procedure for locating the requested documents. But
there is no evidence that the required pre-motion
conferral took place.

ORDER

The plaintiff also contends that the motion does not
contain any memorandum of law, as required by
S.D.Fla.R. 7.1.a.1. The Court notes that the motion does
contain one legal citation, related to the issue of attorney/client privilege and work product privilege. However, the plaintiff's response to the motion withdraws the
objections based on privilege.

THIS CAUSE is before the Court on the Defendant's
Motion to Compel Production of Documents (Docket
Entry 84), which was referred to United States Magistrate Judge Lurana S. Snow. The defendant seeks the
full daily time sheet for each attorney or other law office
employee who worked on this case, for each day the
person worked on this case, with the names of the other
cases worked on that day redacted, citing the Standard
Pretrial Order in Rich v. Cod and Capers Seafood, Case

The defendant has provided no legal authority for
the broad scope of the discovery sought. "A request for
attorney's fees should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.
Ct. 1933, 76 L. Ed. 2d 40 (1983). Broad discovery related to attorney's fees is not necessary or usual in federal
court. In re Thirteen Appeals Arising out of the San Juan
Dupont Plaza Hotel Fire Litigation, 56 F.3d 295, 303
(1st Cir. 1995).

OPINION BY: LURANA S. SNOW
OPINION

Page 2
2008 U.S. Dist. LEXIS 114426, *

Nor has the defendant provided any legal citation
regarding the burden of producing the requested documents. [*3] He asserts that the requested categories of
billing documents can be generated directly from the
billing software used by the plaintiff. However, the defendant makes an incorrect assumption about the type of
billing software used by plaintiff's counsel, which was
refuted by the response to the motion. The plaintiff states
that the material sought does not exist in the requested
form in plaintiff's counsel's records. Rule 34 does not
require a party "to create responsive materials, only to
produce those in its possession, custody or control."
Marchese v. Dep't of the Interior, 2004 U.S. Dist. LEXIS
20680, 2004 WL 2297465 at *4 (E.D.La. Oct 12, 2004).
Moreover, the plaintiff states that printing reams of billing records for a manual search for the requested information would be unduly burdensome. Fed.R.Civ.P.
26(b)(2)(C)(iii) permits the Court to limit the extent of

discovery if the burden or expense of the proposed discovery outweighs its likely benefit. The plaintiff has already produced the time records for the instant case, as
part of the motion for attorney's fees. The Court finds
that production of documents responsive to the defendant's requests is unduly burdensome. The Court being
advised, it is hereby
ORDERED [*4] AND ADJUDGED that the Defendant's Motion to Compel Production of Documents
(Docket Entry 84) is DENIED.
DONE AND ORDERED at Fort Lauderdale, Florida, this 17th day of July, 2008.
/s/ Lurana S. Snow
LURANA S. SNOW
UNITED STATES MAGISTRATE JUDGE

Page 1

8 of 12 DOCUMENTS
THE HARTFORD INSURANCE COMPANY, Plaintiff, vs. BELLSOUTH TELECOMMUNICATIONS, INC., Defendant/Third Party Plaintiff vs. HORIZON SECURITY SYSTEMS, Third Party Defendant
Case No. 04-20532-CIV
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA
2005 U.S. Dist. LEXIS 45884

November 12, 2005, Decided
November 14, 2005, Docket
SUBSEQUENT HISTORY: Later proceeding at Hartford Ins. Co. v. Bellsouth Telcoms., Inc., 206 Fed. Appx.
952, 2006 U.S. App. LEXIS 29120 (11th Cir. Fla., 2006)
PRIOR HISTORY: Hartford Ins. Co. v. Bellsouth Telcoms., Inc., 2005 U.S. Dist. LEXIS 46356 (S.D. Fla.,
Sept. 16, 2005)
COUNSEL: [*1] For Hartford Insurance Company,
Fragrance Mart, Inc., Plaintiff: Denise Marie Anderson,
LEAD ATTORNEY, Butler Pappas Weihmuller Katz
Craig, Tampa, FL; Kristina Lynn Marsh, LEAD ATTORNEY, Butler Pappas Weihmuller Katz Craig, Tampa, FL; Scott Jeffrey Frank, LEAD ATTORNEY, Butler
Pappas Weihmuller Katz Craig, Tampa, FL; Scott Steward Katz, LEAD ATTORNEY, Butler Pappas Weihmuller Katz Craig, Tampa, FL.

kowitz, LEAD ATTORNEY, Gordon Hargrove &
James, Fort Lauderdale, FL.
For Horizon Security Systems, Third Party Defendant:
Gregory Thomas Anderson, LEAD ATTORNEY, Billing
Cochran Heath Lyles & Mauro, West Palm Beach, FL;
Janis Brustares Keyser, LEAD ATTORNEY, Billing
[*2] Cochran Heath Lyles & Mauro, West Palm Beach,
FL; Krista Kay Mayfield, LEAD ATTORNEY, Billing
Cochran Heath Lyles & Mauro, West Palm Beach, FL.
For Bellsouth Telecommunications, Inc., Third Party
Plaintiff: Marlin Kareem Green, LEAD ATTORNEY,
Gordon Hargrove & James, Fort Lauderdale, FL; Richard G. Gordon, LEAD ATTORNEY, Gordon Hargrove & James, Fort Lauderdale, FL; Scott Allen Markowitz, LEAD ATTORNEY, Gordon Hargrove &
James, Fort Lauderdale, FL.

For Bellsouth Telecommunications, Inc, Defendant:
Marlin Kareem Green, LEAD ATTORNEY, Gordon
Hargrove & James, Fort Lauderdale, FL; Richard G.
Gordon, LEAD ATTORNEY, Gordon Hargrove &
James, Fort Lauderdale, FL; Scott Allen Markowitz,
LEAD ATTORNEY, Gordon Hargrove & James, Fort
Lauderdale, FL.

OPINION

For Bellsouth Telecommunications, Inc., Third Party
Plaintiff: Marlin Kareem Green, LEAD ATTORNEY,
Gordon Hargrove & James, Fort Lauderdale, FL; Richard G. Gordon, LEAD ATTORNEY, Gordon Hargrove & James, Fort Lauderdale, FL; Scott Allen Mar-

ORDER GRANTING IN PART HARTFORD'S
MOTION TO EXCLUDE TESTIMONY OF
BELLSOUTH'S EXPERT AND ORDER GRANTING HARTFORD'S MOTION TO QUASH SUBPOENA

JUDGES: URSULA UNGARO-BENAGES, UNITED
STATES DISTRICT JUDGE.
OPINION BY: URSULA UNGARO-BENAGES

Page 2
2005 U.S. Dist. LEXIS 45884, *

THIS CAUSE is before the Court upon Hartford's
Motion in Limine to Exclude or Limit the Testimony of
Bellsouth's Expert, John Donovan, filed September 2,
2005. Bellsouth filed its Response on September 9, 2005.
Also before the Court is Hartford's Amended Motion to
Quash Subpoena of Richard Sanford or, in the Alternative, Motion for Protective Order, filed September 9,
2005. The matters are ripe for disposition.

Hartford moves this Court to exclude Donovan on
three grounds. First, Hartford claims that Donovan is
unqualified to testify as an expert in this case. Next,
Hartford claims that, even if Donovan is qualified as an
expert, his methodology and opinions are unreliable as a
matter of law. Finally, Hartford claims that part of Donovan's testimony will take the form of a legal conclusion and therefore should be excluded.

non-exclusive list of factors for courts to use in evaluating the reliability of an expert's testimony. The factors
include whether the expert's method can be tested,
whether the method has been subjected to peer review,
the known or potential rate of error, the existence and
maintenance of standards and controls, and whether the
method is generally accepted in the scientific community. Id. at 593-94. It is recognized that not all the Daubert
factors can be applied to every type of expert testimony,
especially when the court is reviewing nonscientific expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 150, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). It is
also accepted that more specific factors may play a role
depending on the testimony at issue. Id. at 149-50; See
Maiz v. Virani, 253 F.3d 641. 665 (11th Cir. 2001).
[*5] The overarching consideration for the Court is to
determine whether the testimony has "a reliable basis in
the knowledge and experience of [the expert's] discipline." Daubert, 509 U.S. at 592. It need not be proven
that the expert's opinion is correct. only that it is reliable.
In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744
(3d Cir. 1994).

LEGAL STANDARD

ANALYSIS

THE COURT has considered the motions and the
pertinent portions of the record and is otherwise fully
advised in the premises.
Hartford's [*3] Motion to Exclude Bellsouth's Expert

Federal Rule of Evidence 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience,
training, or education, may testify thereto
in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient
facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the
facts of the case.

The party seeking to introduce the expert has the
burden of establishing that the requirements of Rule 702
are met by a preponderance of the evidence. Fed. R. Evid. 104(a): Bourjaily v. United States, 483 U.S. 171,
175-76, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). [*4]
Whether a witness is qualified to testify on a given subject is left to the discretion of the court. Toole v. Baxter
Healthcare Corp., 235 F.3d 1307, 1312-13 (11th Cir.
2000). If a witness is qualified as an expert, the court
must then determine if the expert's opinion is grounded
in a reliable methodology. In Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), the Supreme Court set out a

Donovan is the president of a telecommunications
consulting firm and is also an electrical engineer. (Dep.
of John Donovan at 8.) He appears to have knowledge
and experience in the area of general telecommunications
systems. However, by his own admission. Donovan is
not an expert in alarms, alarm science or Watch Alert. Id.
at 60, 66. Despite this, Bellsouth claims that Donovan is
qualified to testify because the central issue in this case
is whether Bellsouth maintained its telecommunications
network and whether it had the proper procedures in
place to maintain that network. (Resp. at 5.) The Court
disagrees. It is an incomplete statement to say that the
central issue in this case is the maintenance of Bellsouth's network. The central issue is the maintenance and
procedures relating to Watch Alert on Bellsouth's network. A knowledge [*6] of the procedures and maintenance on a telecommunications network does not qualify one as an expert on the procedures and maintenance
necessary to properly monitor a backup for alarm systems on that network. Maintenance and procedures considered reasonable for a general telecommunications
network may be completely inadequate when implemented over Watch Alert. Donovan appears to lack the
knowledge, training and experience to reliably make that
distinction to the jury. Therefore, the Court concludes
that Donovan is qualified to testify on the general concepts of a telecommunications network, however, he is
excluded from testifying in any way about Watch Alert
or alarm systems. 1

Page 3
2005 U.S. Dist. LEXIS 45884, *

1 The Court notes that Bellsouth, in its written
response, did not proffer Donovan's expert report
(which, in any event, is not in the Court file) nor
did Bellsouth proffer any additional testimony of
Donovan that might have cured the noted deficiencies. Therefore, the Court denies Bellsouth's
oral request made minutes prior to jury selection
for an opportunity to proffer Donovan's testimony
outside the presence of the jury or to reconsider
Donovan's exclusion based on this expert report.
Even if the Court found [*7] Donovan qualified as
an expert in alarm systems and Watch Alert, the Court
would exclude his opinion because it fails to assist the
trier of fact. During his deposition, Donovan stated:
Q. Do you believe that your qualified
to render opinions on the responsibilities
of alarms contractors?
A. I believe I'm qualified to render an
opinion on some of the responsibilities of
alarm contractors.
Q. Which ones are you qualified to
render an opinion on?
A. Any responsibilities that would be
in the category of just common logic and
anything that pertains to telecommunications and the connections of the circuits
involved-involving Bellsouth in this case.
Q. Common logic. Do you think that
expert testimony is warranted as to common logic?
A. IsQ. You said you were qualified to
give opinions as to common logic. Is that
not what you said?
A. Yes. If something makes sense,
then certainly I'm qualified to render-to
offer my opinion as to what makes common sense or not.
...
A. I think my point is that some
things just make sense, and I certainly can
offer my opinions on things that make
sense to the common and prudent man.
...
Q. Tell me what areas that you would
not be qualified to render opinions as to
the responsibilities [*8] of alarm contractors'?

A. It's an awfully open-ended question. I think I have explained what I am
qualified to do. I think along the lines of
common logic that would mean that everything else falls in the other category of
being not qualified.

Id. at 13-16. Additionally, Donovan seeks to render an
opinion on Bellsouth's responsibilities set out in the
Watch Alert Tariff. Donovan's opinion however, fails to
go beyond paraphrasing of the tariff. (Dep. of John Donovan at 56-59.)
Donovan's own testimony demonstrates that his opinion on the responsibilities of alarm contractors will not
assist the trier of fact to understand evidence or determine a fact in issue as required by Rule 702. Expert testimony "must be directed to matters within the witness'
scientific, technical or specialized knowledge and not to
lay matters which a jury is capable of understanding
without the expert's help." Andrews v. Metro North
Commuter R. Co., 882 F.2d 705, 708 (2d. Cir. 1989)
(citing McGowan v. Cooper Indus., Inc., 863 F.2d 1266.
1272 (6th Cir. 1988); Scott v. Sears, Roebuck & Co., 789
F.2d 1052, 1055-56 (4th Cir. 1986). Clearly. Donovan's
testimony is not based on a specialized knowledge. The
jury is more [*9] than capable of applying the same
common logic as Donovan proposes to testify. Therefore
even if the Court found him qualified as an expert in
Watch Alert and alarm systems, the Court would exclude
his opinion in this area because it fails to assist the jury
as required by Rule 702. 2
2 Because the Court excludes Donovan's testimony under Rule 702 it does not address Hartford's claim that his opinion takes the form of a
legal conclusion.
Hartford's Motion to Quash Bellsouth's Subpoena
Hartford claims that Bellsouth's subpoena of Richard
Sanford. Hartford's special investigator, should be
quashed under Federal Rule of Civil Procedure 45. Rule
45(c)(3)(A) states
On timely motion, the court by which a
subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow a reasonable time for
compliance;
(ii) requires a person who is not a
party or an officer of a party to travel to a
place more than 100 miles from the place

Page 4
2005 U.S. Dist. LEXIS 45884, *

where that person resides, is employed or
regularly transacts business in person.

Sanford lives in Washington state. Travel to Miami
would clearly exceed the 100 mile limit under Rule
45(c)(3)(A). Also, it appears that Blaine Miller, not Sanford, is Hartford's corporate [*10] representative and
therefore Sanford is not Hartford's officer rd for purposes
of Rule 45(c)(3)(A). Finally, the Court finds that because
Bellsouth has taken Sanford's deposition it will not be
under any "undue hardship" to present his testimony to
the jury. Therefore, the Court concludes that Bellsouth's

subpoena of Richard Sanford must be quashed. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Hartford's
Motion to Exclude the Testimony of Donovan is
GRANTED IN PART under the terms stated above. It is
further
ORDERED AND ADJUDGED that Hartford's Motion to Quash is GRANTED.
DONE AND ORDERED in Chambers at Miami,
Florida, this 12 day of September. 2005.
/s/ Ursula Ungaro-Benages
UNITED STATES DISTRICT JUDGE

Page 1

2 of 12 DOCUMENTS
ISOLA CONDOMINIUM ASSOCIATION, INC., a Nonprofit Corporation, Plaintiff, vs. QBE INSURANCE CORPORATION, a corporation authorized and doing
business in Florida, Defendant.
Case No. 08-21592-CIV-GRAHAM/TORRES
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA, MIAMI DIVISION
2009 U.S. Dist. LEXIS 130752

June 19, 2009, Decided
June 19, 2009, Entered
PRIOR HISTORY: Isola Condo. Ass'n v. QBE Ins.
Corp., 2008 U.S. Dist. LEXIS 101049 (S.D. Fla., Dec. 5,
2008)

JUDGES: DONALD L. GRAHAM, UNITED STATES
DISTRICT JUDGE.
OPINION BY: DONALD L. GRAHAM

COUNSEL: [*1] For Isola Condominium Association,
Inc., a Non-Profit Corporation, Plaintiff: Keith Jeffrey
Lambdin, LEAD ATTORNEY, Katzman Garfinkel Rosenbaum, Maitland, FL; Daniel S. Rosenbaum, John
Marcus Siracusa, Laurel Ruthanne Wiley, Tatiana B.
Yaques, Rosenbaum Mollengarden Janssen & Siracusa,
PLLC, West Palm Beach, FL; Richard Chambers Valuntas, Florida Attorney General's Office, West Palm Beach,
FL.
For QBE Insurance Corporation, a corporation authorized and doing business in Florida, Defendant: James
Joseph Wicker, II., LEAD ATTORNEY, Wicker Smith
O'Hara McCoy & Ford, West Palm Beach, FL; Patrick
Edward Betar, William S. Berk, LEAD ATTORNEYS,
Evelyn Maureen Merchant, Berk Merchant & Sims PLC,
Coral Gables, FL; Rachel Studley, LEAD ATTORNEY,
Michael Lawrence Schwebel, Jr., Wicker Smith Tutan
O'Hara McCoy Graham & Ford, West Palm Beach, FL;
Amy Millan DeMartino, Wicker Smith O'Hara McCoy
Graham & Ford, West Palm Beach, FL; Catherine Deborah Bain, North Palm Beach, FL; Melissa M. Sims,
Berk, Merchant & Sims, PLC, Coral Gables, FL.
For Hunter R Contracting, Defendant: Andrew T. Lavin,
Navon Kopelman & Lavin, Fort Lauderdale, FL.

OPINION
OMNIBUS [*2] ORDER
THIS CAUSE comes before the Court upon the
following pending motions: (i) Plaintiff's Motion in Limine to Preclude Evidence of Gerald Zadikoff's Prior
Bankruptcy Filing and His Personal and/or Business
Finances [D.E. 65]; (ii) Defendant's Motion in Limine to
Preclude Certain Testimony of Expert Lee M. Branscome or, alternatively, a Motion for a Daubert Hearing
[D.E. 67, 72]; (iii) Plaintiff's Motion in Limine to Preclude Evidence at Trial Regarding Business Dealings
Between Hunter R. Contracting and /or Certain individuals [D.E. 123]; (iv) Defendant's Motion in Limine or
Motion to Strike, in the alternative, and/or Motion for
Daubert Hearing Regarding Gerald Zadikoff, P.E. [D.E.
124]; (v) Defendant's Motion in Limine to Preclude Evidence of, or Reference to, Isola's Historical Payment of
Premiums to QBE [D.E. 125]; (vi) Defendant's Motion in
Limine
to
Preclude
Evidence
of
Alleged
Non-Compliance with Fla. Stat. § 627.701 or, in the alternative, to Preclude Proposed Deposition Testimony of
Timothy Butler [D.E. 126]; (vii) Defendant's Motion in
Limine to Preclude Evidence and References to Other
Claims Against QBE, Including Affirmative Defenses
Used by QBE in Other Lawsuits [D.E. [*3] 128]; (viii)
Defendant's Motion in Limine to Preclude Testimony of

Page 2
2009 U.S. Dist. LEXIS 130752, *

Craig Kugler or, in the alternative, Motion for Daubert
Hearing [D.E. 129]; (ix) Defendant's Motion to Compel
Testimony From Kenneth Romain, Motion for Appointment of Special Master and for Sanctions [D.E. 148,
153]; (x) Defendant's Motion to Compel Plaintiff and/or
Plaintiff's Counsel to Produce Records of TSSA Storm
Safe, Inc., Relating to Its Inspection of Isola Condominium [D.E. 155]; (xi) Defendant's Motion for Continuance of Trial, To Reopen Discovery for Limited Purpose and Motion to Amend Witness List [D.E. 157]; (xii)
Non-party, Needham Roofing, Inc.'s Motion to Quash
Subpoena [D.E. 163] and (xiii) Defendant's Unopposed
Motion to Bring Electronic Equipment Into Courthouse
[D.E. 156].
I. BACKGROUND
This case is one of several actions in this District related to damages resulting from Hurricane Wilma, which
occurred in October 2005. The instant action was filed
by Isola Condominium Association against QBE Insurance Corporation for property damage to Plaintiff's condominium complex located at Brickell Key in Miami,
Florida. This Omnibus Order addresses certain pending
matters. The case is scheduled for the two-week [*4]
trial period starting on August 3, 2009. A separate
amended scheduling order will follow.
II. LAW AND DISCUSSION
For ease of discussion, this Order will first address
the motions concerning the challenges to party's respective experts. The Order will then address the pending
motions in relative chronological order.
A. Defendant's Motion in Limine to Preclude Certain
Testimony of Expert Lee Branscome or, alternatively,
a Motion for a Daubert Hearing [D.E. 67]
Defendant filed a motion in limine to preclude certain testimony of Lee M. Branscome, one of Plaintiff's
proposed experts. Dr. Branscome is expected to testify
about the wind speeds and gusts and the duration of
storm force winds at the Isola property, among other
things. [See D.E. 76.] Defendant specifically wants to
preclude testimony by Mr. Branscome regarding damages to the building resulting from Hurricane Wilma. [See
D.E. 67 at 3.] Plaintiff submits that "it does not intend to
question Dr. Branscome about expected damages to
structures and has already offered to stipulate to this provided QBE agrees that it will also not question Dr.
Branscome on these same matters." [See D.E. 76 at 2.] In
its reply, Defendant maintains that "[it] [*5] agrees that
it will not question Dr. Branscome on cross-examination
concerning the Enhanced Fujita Scale and its application
to any damages at Isola Condominium, provided that
Plaintiff not raise these issues [at trial]." [See D.E. 82 at

1-2.] In a prior Order [D.E. 87], the Court initially reserved ruling on this issue. Since that time, the Court has
held hearings and further considered the matter and advised the parties of its preliminary ruling.
Consistent with the Court's ore tenus ruling at the
hearing held on June 8, 2009, this motion is denied as
moot. The parties have mutually agreed to the general
parameters of the evidence. To the extent that any party
opens the door to testimony by Mr. Branscome concerning damage to the building, the Court may revisit the
issue at trial upon an appropriate motion.
B. Plaintiff's Motion in Limine to Preclude Evidence
of Gerald Zadikoff's Prior Bankruptcy Filing [D.E.
65]
Gerald Zadikoff is one of Plaintiff's experts who is
expected to testify at trial concerning damages to the
Isola property. Plaintiff, in the instant motion, seeks to
preclude Defendant from presenting evidence at trial
concerning Mr. Zadikoff's prior bankruptcy proceeding
as [*6] well as his personal and/or business finances.
[See D.E. 65] Plaintiff argues that Mr. Zadikoff's bankruptcy filing is irrelevant and, in support of the motion,
alludes to a ruling by the Magistrate Judge in the case of
Buckley Towers Condo. Association, Inc. v. QBE Insurance, Case No. 07-22988-CIV-GOLDBERG, which
granted a similar motion concerning Mr. Zadikoff. Id.
In opposition, Defendant argues that the bankruptcy
is highly-relevant because, inter alia, Mr. Zadikoff's financial hardship provides motivation for him to testify in
a certain manner. Defendant also maintains that Mr. Zadikoff's bankruptcy resulted from his alleged use of personal loans to fund the firm of G.M. Shelby & Associates, his engineering firm with corporate finances apparently closely intertwined to his personal finances.
[See D.E. 104.] Essentially, Defendant argues that the
undersigned should rule differently than the Magistrate
Judge in Buckley Towers because, according to Defendant, there is evidence of a link between Mr. Zadikoff's
prior bankruptcy filing and his current financial situation.
Id.
At the pretrial conference held on May 6, 2009, the
Court inquired as to the underlying facts and chronology
of [*7] events concerning Mr. Zadikoff's bankruptcy
filing. The parties advised that the bankruptcy filing occurred in approximately 2006 and Plaintiff first engaged
Mr. Zadikoff in 2007 as an expert in a separate matter.
However, the issue of Mr. Zadikoff's bankruptcy was
apparently not raised until 2008.
Generally, a bankruptcy
strates that the defendant had
and may have the purpose
which might compel him to

filing in no way demonparticular need for money
of relieving the pressure
a certain act. See United

Page 3
2009 U.S. Dist. LEXIS 130752, *

States v. Reed, 700 F.2d 638, 642 (11th Cir. 1983). That
said, the undersigned concurs with the Magistrate Judge
in Buckley Towers and finds that a bankruptcy filing is
not per se irrelevant for impeachment purposes insofar as
a financial hardships may create a possible motive for a
witness to testify in a certain fashion. In this case, however, based on the totality of the evidence in the record,
the Court finds that Mr. Zadikoff's prior bankruptcy filing should be excluded at trial. To the extent that Plaintiff opens the door to the issue on direct examination, the
Court may revisit the matter. Based thereon, Plaintiff's
motion to exclude evidence of Mr. Zadikoff's prior
bankrupcy proceeding [*8] and personal finances is
granted.
C. Defendant's Motion in Limine or Motion to Strike,
in the alternative, and/or Motion for Daubert Hearing Regarding Gerald Zadikoff [D.E. 124]
As noted above, Mr. Zadikoff is a professional engineer who is expected to testify about the various areas
of damage to the Isola property sustained as a result of
Hurricane Wilma. [See D.E. 52.] Defendant seeks to
preclude the expert testimony challenging, inter alia, Mr.
Zadikoff's competence and the methodology he used in
assessing property damage. Defendant also specifically
challenges Mr. Zadikoff's use of extrapolation to determine an overall damage assessment without a full and
complete inspection of the entire building. Plaintiff
counters that Mr. Zadikoff is qualified in the field of
coastal structural engineer and points to Mr. Zadikoff's
numerous visits and use of various tests during inspection.
Admission of expert testimony is governed by Federal Rule of Evidence 702, which provides, in pertinent
part,
[i]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, [*9]
experience, training, or education may
testify thereto in the form of an opinion or
otherwise, if (1) the testimony is based on
sufficient facts or data, (2) the testimony
is the product of reliable principles and
methods and (3) the witness has applied
the principles and methods reliably to the
facts of the case.

Fed. R. Evid. 702; United States v. Frazier, 387 F.3d
1244, 1259 (11th Cir. 2004). Moreover, a trial judge has
considerable leeway in deciding how to determine when

a particular expert's testimony is reliable and how to establish reliability. Id. at 1262 (internal quotations and
citations omitted).
In this case, the Court considers the evidence submitted in the pleadings together with the matters presented at the hearing held on June 10, 2009. Based on a
review of all of the evidence, the Court finds that Mr.
Zadikoff should be allowed to testify at trial. In concluding that his testimony should be allowed, the Court considers, for instance, the evidence that Mr. Zadikoff visited the property on at least five occasions, performed
testing with ground penetrating radar and took and reviewed thermal imaging photographs of exterior areas of
the property demonstrating water retention [*10] in the
walls that corresponded to the exterior cracks observed
by Mr. Zadikoff and his team. Also in inspecting the
exterior of the building, Mr. Zadikoff testified to using a
mobile scaffold that allowed the inspection team to move
up and down the building exterior to photograph cracks
and visible damage. Interior inspection involved testing
window and slider frames with laser testing to confirm
window and frame alignment as well as a visual inspection of numerous units.
Mr. Zadikoff also testified to using the approach set
forth in the American Society of Testing Materials guide
("ASTM 21-28"), which includes a seven-factor analysis.
Specifically, according to the testimony, Mr. Zadikoff
reached his conclusions after considering, without limitation, the following factors: (i) reviewing the property's
project documents; (ii) evaluating the property's design
concept; (iii) reviewing maintenance records and, in this
case, interviewing maintenance staff; (iv) inspecting the
property; (v) conducting investigative testing; (vi) analyzing the various data, and (vii) preparing a written report.
Mr. Zadikoff did concede that, within the seven-factor analysis, he extrapolated from data obtained
[*11] from an inspection of certain parts of the property
to what the estimated damage assessment would be for
the entire property. Nevertheless, he credibly explained
that the method of extrapolation is used to allow flexibility when analyzing various projects.
Defendant attempted to undermine Mr. Zadikoff's
testimony with its own expert, Mr. Adam Locke. Mr.
Locke testified that he does not use extrapolation, but
conceded that he also failed to inspect every unit in the
building.1 Indeed, both experts testified that they would
have preferred to have more time to conduct the property
inspections and, it appears, may have been limited in
terms of the scope of what they could accomplish in the
time permitted.2 Based on the totality of the circumstances, the undersigned cannot find that the use of extrapolation per se warrants exclusion of Mr. Zadikoff's tes-

Page 4
2009 U.S. Dist. LEXIS 130752, *

timony. Ultimately, Mr. Zadikoff's opinion is sufficient
to survive a Daubert3 challenge. This may be best described as a battle of the experts whose opinion should
be considered by a trier of fact.4 Accordingly, Defendant's motion to preclude the testimony of Mr. Zadikoff
is denied.
1 He also testified that he could not extrapolate
based on [*12] the number of units he and his
team inspected.
2 It is also evident that while Hurricane Wilma
occurred in 2005, the property inspections at issue did not occur until several years later. The
parties did not explain why the passage of time
between the Hurricane and the inspections, but
that fact is inconsequential to the issue before the
Court concerning admissibility of expert testimony.
3 Daubert v. Merrell Dow Pharms. Inc., 509
U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993).
4 Other Courts in this District appear to have
reached similar conclusions when they permitted
Mr. Zadikoff to testify as an expert at trial. See,
e.g., Chalfonte Condo. Apt. Ass'n v. QBE Ins.
Corp.,
06-81046-CIV-MIDDLEBROOKS/JOHNSON.
D. Defendant's Motion in Limine to Preclude Testimony of Craig Kugler or, in the alternative, Motion
for Daubert Hearing [D.E. 129]
Similar to the challenges discussed above concerning Mr. Zadikoff, Defendant has filed a motion to preclude the testimony of Plaintiff's expert Craig Kugler.5
[See D.E. 129.] Mr. Kugler is a licensed independent
adjuster who is expected to testify on behalf of Plaintiff
on the amount of damages to the Isola property including, providing an opinion on the actual cash value versus
replacement [*13] cash value of certain items. [See
D.E. 145-4.]
5 Mr. Kugler appeared for the hearing scheduled on June 10, 2009, but the parties expended
the totality of their time examining Messrs. Zadikoff and Locke. Consequently, the Court did
not hear live testimony from Mr. Kugler. That
said, the matter can be disposed of on the pleadings as set forth herein.
Defendant maintains that Mr. Kugler is not qualified
to testify as an expert and that his methodology is unreliable. [See D.E. 129.]. Defendant also submits that any
testimony of Mr. Kugler would be cumulative to that of
other professionals in the case. Plaintiff opposes the motion emphasizing Mr. Kugler's experience and attaching,

among other things, an affidavit in support of its opposition to the motion. [See D.E. 145-4.] The relevant case
law governing expert testimony is referenced above in
the discussion concerning Mr. Zadikoff.
Based on a review of the pleadings and the relevant
standards, the Court finds that there is sufficient evidence
in the record to permit Mr. Kugler to testify at trial. Specifically, the Court notes that Mr. Kugler affirms he personally inspected 95 units in the Isola property, his team
inspected 225 units and [*14] took approximately 1190
photographs of the interiors and cracking exterior. [See
D.E. 145-4.] He also admits to relying on several sources
of information, including his own personal observations,
observations of his team members and reports prepared
by other professionals, including Mr. Zadikoff's firm. Id.
Based on his analysis, Mr. Kugler concludes that the
replacement cost value of the hurricane damaged items is
approximately $7.1 million and the actual cash value is
approximately $5.6 million. Id. at 5.
Given such a record, the Court is not persuaded that
Mr. Kugler's testimony should be excluded under Daubert. While it appears that Mr. Kugler may have relied on
the opinion and observations of others to reach his damage assessment, such reliance is an insufficient basis to
exclude his testimony. Additionally, while there appears
to be some potential for overlap in the areas inspected by
Mr. Kugler and Mr. Zadikoff, the Court finds significant
that their anticipated testimony is different in scope and
relates to different areas of damage such that, although
related, the testimony is not so cumulative as to warrant
exclusion. To the extent that Mr. Kugler has relied on
other professionals, [*15] Defendant is free to examine
the witness on those matters and present such evidence to
the jury. At this juncture, however, Mr. Kugler will be
permitted to testify at trial. Accordingly, Defendant's
motion to preclude the testimony of Mr. Kugler is denied.
E. Plaintiff's Motion in Limine to Preclude Evidence
at Trial Regarding Business Dealings Between Hunter R. Contracting and Certain Individuals [D.E. 123]
By its motion in limine [D.E. 123], Plaintiff seeks to
exclude evidence of business dealings between, on the
one hand, Hunter R. Contracting ("Hunter") and certain
of Hunter's representatives and, on the other hand, the
Garfunkel Trial Group, and Affiliates, ("GTG"). [See
D.E. 123] According to the pleadings, GTG has filed a
separate suit against Hunter and its representatives asserting, inter alia, claims for fraudulent representation
and RICO violations. [See D.E. 146-9]. Plaintiff does not
dispute the existence of the litigation. Rather, Plaintiff
argues that the business relationships between Hunter
and GTG have little probative value and would "turn
[this] trial into a sideshow about the truth or falsity of the

Page 5
2009 U.S. Dist. LEXIS 130752, *

allegations made by the Hunter representatives." [*16]
[D.E. 123 at 3.]
Defendant opposes the motion asserting inter alia,
that Hunter prepared a report upon which Plaintiff relied
in filing an insurance claim and, as such, Defendant is
entitled to present evidence that Plaintiff's claim for
damages has been misrepresented, inflated or fraudulently presented. [See D.E. 146 at 3, 6.]
The Court finds that, to the extent that Plaintiff intends to rely on any report prepared by Hunter and its
professionals, Defendant is entitled to challenge the basis
of any such report, including its accuracy and reliability.
Furthermore, Defendant will be allowed to present witnesses who have direct knowledge concerning Plaintiff's
claim for damages. That said, Defendant shall not be
allowed to raise the existence of a separate litigation or
contract dispute which is not relevant to the claims at
hand. With these parameters in mind, the Court will
carefully consider the evidence at trial and may reconsider the matter as necessary and appropriate. Accordingly, Plaintiff's motion in limine to preclude evidence
concerning Hunter and its professionals is granted, in
part, and denied, in part, as noted herein.
F. Defendant's Motion in Limine to Preclude Reference [*17] to Isola's Historical Payment of Premiums [D.E. 125]
Defendant seeks to preclude reference to Plaintiff's
history of premium payments for years that are not at
issue. [See D.E. 125.] Plaintiff opposes the motion asserting, among other things, that any history of premium
payments before 2005 is moot because the insurance
policy issued in 2005 and that was the same year Hurricane Wilma occurred. Plaintiff further argues that, to the
extent Defendant wants to preclude evidence of premium
payments after Hurricane Wilma, the motion should be
denied. The Court agrees.
Plaintiff may present evidence of premium payments
for the relevant years, including the year the policy was
issued (i.e., 2005) and any subsequent years as are relevant to defend against allegations of potential fraud.
Based thereon, Defendant's motion is denied.
G. Defendant's Motion in Limine to Preclude Evidence of Alleged Non-Compliance with Fla. Stat. §
627.701, or in the alternative, to Preclude Proposed
Deposition Testimony of Timothy Butler [D.E. 126]
In pertinent part, Count I of the Amended Complaint
[D.E. 37-2], seeks, inter alia, "a declaration that the Insurance Contract fails to comply with Section 627.701(1)
(a-b), Florida Statutes [*18] and 627.701(4) (a), Florida Statutes; therefore, the provisions concerning coinsurance and a separate hurricane deductible are void and

unenforceable." [See D.E. 37-2 ¶ 20.] Defendant argues
that, as found by two other Courts in this District, there is
no remedy for an alleged violation of § 627.701. See
Chalfonte Condo. Apt. Ass'n v. QBE Ins. Corp., Case
No. 06-81046 and Buckley Towers Condo. Inc., v. QBE
Ins. Corp., Case No. 07-22988. Plaintiff maintains that
the issue has been previously addressed by this Court in
the ruling on the motion to dismiss [D.E. 87]. Significantly, however, while Count I remained for trial, the
issue concerning § 627.701 is only part of the relief requested in Count I. Therefore, contrary to Plaintiff's argument, the preclusion of evidence regarding § 627.701
was not specifically before the Court prior to the instant
motion.
Having reviewed the record and the relevant case
law, this Court concurs with the Courts in Chalfonte and
Buckley Towers who concluded that § 627.701 does not
provide a private right of action to Plaintiff. The undersigned recognizes that the issue is currently on appeal to
the Eleventh Circuit and has been certified to the Florida
[*19] Supreme Court, see Chalfonte Condo. Ap't Ass'n v.
QBE Ins. Corp., 561 F.3d 1267 (11th Cir. March 9,
2009). In the absence of controlling precedent requiring a
different conclusion, however, Defendant's motion in
limine on this issue is granted.
H. Defendant's Motion in Limine to Preclude Evidence and References to Other Claims Against QBE
[D.E. 128]
Defendant seeks to preclude evidence or references
to other claims or lawsuits filed against it arguing that
such evidence would have a prejudicial effect. [See D.E.
128.] Plaintiff counters that this evidence is relevant
when, for example, it demonstrates a financial link between an expert witness and the Defendant. [See D.E.
141.] The Court finds that Plaintiff may be permitted to
present evidence concerning when Defendant and witnesses have previously worked together on other matters,
including examining witnesses on (i) the number of cases
worked on together with Defendant and (ii) the percentage of the witness' income derived from working with
Defendant. That said, Plaintiff will not be allowed to
reference a specific case by name, caption or case number.6 The parties are hereby on notice to closely adhere to
the Court's parameters on [*20] this issue and, to the
extent necessary, the Court may revisit the issue at trial.
Accordingly, Defendant's motion is granted, in part and
denied, in part.
6 For example, the questions may be generally
framed as "Do you recall testifying in another
matter?" without reference to the case name.

Page 6
2009 U.S. Dist. LEXIS 130752, *

I. Defendant's Motion to Compel Testimony From
Kenneth Romain, Motion for Appointment of Special
Master and for Sanctions [D.E. 148]
After a motion to compel, Defendant commenced
the deposition of Kenneth Romain on May 22, 2009.
According to the motion, "Mr. Romain unilaterally terminated the deposition prior to answering any questions
regarding his company's involvement with Isola's claim
without invoking any privilege or grounds for termination." [D.E. 148.] Therefore, Defendant seeks to compel
the testimony of Mr. Romain and the appointment of a
special master to preside over the deposition at a cost to
Mr. Romain. Id. Defendant submits that Plaintiff does
not oppose the motion and the record reflects no opposition brief.
During the hearing held on June 3, 2009, the Court
granted this motion ore tenus directing that the parties
select a mutually agreed upon special master and conduct
the deposition [*21] in accordance with the Federal
Rules of Civil Procedure. To the extent that the parties
have not yet conducted the continued deposition of Mr.
Romain, the deposition shall be conducted by no later
than June 29, 2009. There will be no extensions. This
order also clarifies that each party shall bear their own
fees and costs related to deposing Mr. Romain. Accordingly, this motion is granted, in part, and denied, in part,
as set forth herein.
J. Defendant's Motion to Compel Plaintiff and/or
Plaintiff's Counsel to Produce Records of TSSA
Storm Safe, Inc, Relating to Its Inspection of Isola
[D.E. 155]
According to the motion, Defendant deposed Jeff
Dobbins, president of TSSA Storm Safe, Inc. ("TSSA"),
concerning a separate proceeding. During the examination, Defendant discovered that TSSA, as a subvendor of
Hunter R. Contracting, also performed an inspection of
windows and sliding glass doors on the Isola property.
[D.E. 155]. Apparently, TSSA provided documents concerning the inspection to Plaintiff's attorneys. Defendant
claims that those TSSA documents were never produced
to Defendant in this case.
During the hearing held on June 3, 2009, the undersigned permitted Defendant to depose Mr. [*22] Dobbins and expressly gave the parties until June 10, 2009. It
is unclear from the record if the deposition of Mr. Dobbins actually went forward. Nevertheless, having granted
Defendant the right to depose Mr. Dobbins on this matter, Defendant should also obtain documents related to
TSSA's inspection of Isola. Therefore, to the extent that
Plaintiff possesses documents related to TSSA's inspection of Isola, Defendant's motion is granted. Accordingly, within ten (10) days from the date of the entry of this

Order, Plaintiff shall produce any and all relevant documents related to TSSA's inspection of the Isola property.
Such production shall be in accordance with the Federal
Rules of Civil Procedure.
K. Defendant's Motion for Continuance of Trial, To
Reopen Discovery for Limited Purpose and Motion to
Amend Witness List [D.E. 157]7
7
Although Defendant certifies that Plaintiff
opposes this motion, Plaintiff did not file a brief
in opposition.
Defendant argues that it has recently discovered
evidence that supports its affirmative defense of potential
fraudulent concealment by Plaintiff. This case was initially scheduled for the trial period to commence on
June 8, 2009. As the parties were previously [*23] advised, the case is specially set to proceed to trial on August 3, 2009. Therefore, the motion is granted to the extent of a continuance of the trial date. The motion is denied in all other respects.8
8 As a related matter, unless expressly stated
herein, discovery is not re-opened. The parties
are, of course, free to mutually agree to discovery. In the absence of an agreement, however, the
Court is not inclined to entertain discovery disputes or further burden the Magistrate Judge with
discovery matters in this case. The case is effectively trial ready and the parties should proceed
accordingly.
L. Non-party, Needham Roofing, Inc.'s Motion to
Quash Subpoena [D.E. 163]
Pursuant to Federal Rule of Civil Procedure 45,
Needham Roofing, Inc. ("Needham") filed a motion
quash a trial subpoena arguing, inter alia, that it is a foreign corporation located in Colorado and it would be
unduly burdened by the cost of appearing on short notice
for a trial date that was initially scheduled for the
two-week trial period starting on June 8, 2009.9
9 Although the pleading states that a copy of
the subpoena is attached as Exhibit A, no such
exhibit is contained within the record. Nevertheless, the Court [*24] rules on the motion based
on the pleading and considering the posture of the
case.
Rule 45 provides that "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 subpoena." Fed. R. Civ. P. 45(c)(1).
Moreover, a court may quash a subpoena that requires a
person who is neither a party nor a party's officer to tra-

Page 7
2009 U.S. Dist. LEXIS 130752, *

vel more than 100 miles from where that person resides,
is employed, or regularly transacts business in person."
Fed. R. Civ. P. 45(c)(3)(A)(ii).

DENIED, IN PART. The motion is granted to the extent
that the Court held a Daubert hearing on June 10, 2009.
The motion is denied in all other respects. It is further

In this case, based on the pleadings [D.E. 163], the
Court finds that the subpoena should be quashed. The
Court's ruling is without prejudice and rests largely on
the issue of timing as the trial date has been continued.
Significantly, however, in seeking any trial subpoena, all
parties are reminded to closely adhere to the Federal
Rules of Civil Procedure. Here, it may be that Needham
is outside the subpoena parameters of Rule 45. The
Court, however, need not now decide that issue and
grants the motion without prejudice.

ORDERED AND ADJUDGED that Defendant's
Motion in Limine to Preclude Reference to Isola's Historical Payment of Premiums [D.E. 125] is DENIED. It
is further

M. Defendant's Unopposed Motion to Bring Electronic Equipment Into Courthouse [D.E. 156]
Defendant seeks to bring six [*25] laptop computers as well as a cellular telephone for use by the Defendant's legal assistant. The parties are directed to raise the
issue at the calendar call of the case, including advising
the Court why the need for so many laptops and why the
use of a cellular phone by a non-attorney. In this regard,
the Court recognizes that a prior order permitting Plaintiff the use of similar electronic devices was entered
[D.E. 152]. Upon reconsideration, however, the Court
may limit the electronic devices and would like to address the matter further at the calendar call. The Local
Rules of this District and any relevant administrative
Orders will be used as guidance. Therefore, the Court
reserves ruling on this issue.
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that Plaintiff's Motion in Limine to Preclude Evidence of Gerald Zadikoff's
Prior Bankruptcy Filing and his Personal and/or Business
Finances [D.E. 65] is GRANTED. It is further
ORDERED AND ADJUDGED that Defendant's
Motion in Limine to Preclude Certain Testimony of Expert Lee Branscome or, alternatively, a Motion for a
Daubert Hearing [D.E. 67, 72] is DENIED AS MOOT.
It is further
ORDERED AND ADJUDGED that Plaintiff's
[*26] Motion in Limine to Preclude Evidence at Trial
Regarding Business Dealings Between Hunter R. Contracting and Certain Individuals [D.E. 123] is
GRANTED, IN PART AND DENIED, IN PART. It is
further
ORDERED AND ADJUDGED that Defendants
Motion in Limine or Motion to Strike, in the alternative,
and/or motion for Daubert Hearing Regarding Gerald
Zadikoff [D.E. 124] is GRANTED, IN PART AND

ORDERED AND ADJUDGED that Defendant's
Motion in Limine to Preclude Evidence of Alleged
Non-Compliance with Fla. Stat. § 627.701 [D.E. 126] is
GRANTED. It is further
ORDERED AND ADJUDGED that Defendant's
Motion in Limine to Preclude Evidence and References
to Other Claims Against QBE [D.E. 128] is GRANTED,
IN PART AND DENIED, IN PART as set forth herein.
It is further
ORDERED AND ADJUDGED that Defendant's
Motion in Limine to Preclude Testimony of Craig Kugler
or, in the alternative, Motion for [*27] Daubert Hearing
[D.E. 129] is DENIED. It is further
ORDERED AND ADJUDGED that Defendant's
Motion to Compel Testimony From Kenneth Romain,
Motion for Appointment of Special Master and for Sanctions [D.E. 148] is GRANTED as set forth herein. It is
further
ORDERED AND ADJUDGED that Defendant's
Motion to Compel Plaintiff and/or Plaintiff's Counsel to
Produce Records of TSSA Storm Safe, Inc, Relating to
Its Inspection of Isola [D.E. 155] is GRANTED as set
forth herein. It is further
ORDERED AND ADJUDGED that Defendant's
Motion for Continuance of Trial, To Reopen Discovery
for Limited Purpose and Motion to Amend Witness List
[D.E. 157] is GRANTED, IN PART AND DENIED,
IN PART. It is further
ORDERED AND ADJUDGED that Non-party,
Needham Roofing, Inc.'s Motion to Quash Subpoena
[D.E. 163] is GRANTED WITHOUT PREJUDICE. It
is further
ORDERED AND ADJUDGED that the Court reserves ruling on Defendant's Unopposed Motion to Bring
Electronic Equipment Into Courthouse [D.E. 156]. It is
further
ORDERED AND ADJUDGED that Defendant's
Corrected Motion for Extension of Time to Rile Rebuttal
Expert Witness Reports [D.E. 54] is DENIED AS
MOOT.
DONE AND ORDERED [*28] in Chambers at
Miami, Florida, this 19th day June, 2009.

Page 8
2009 U.S. Dist. LEXIS 130752, *

/s/ Donald L. Graham
DONALD L. GRAHAM

UNITED STATES DISTRICT JUDGE

Page 1

SHERRI LYNN JOHNSON, Plaintiff, -vs- PETSMART, INC., Defendant.
Case No. 6:06-cv-1716-Orl-31UAM
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF
FLORIDA, ORLANDO DIVISION
2007 U.S. Dist. LEXIS 73567

October 2, 2007, Decided
October 2, 2007, Filed
SUBSEQUENT HISTORY: Motion to strike denied by
Johnson v. Petsmart, 2007 U.S. Dist. LEXIS 77033 (M.D.
Fla., Oct. 15, 2007)
COUNSEL: [*1] For Sherri Lynn Johnson, Plaintiff:
James N. Nance, LEAD ATTORNEY, Nance Cacciatore, Melbourne, FL.
For Petsmart, Inc., a foreign corporation, Defendant:
Edward F. Gagain, LEAD ATTORNEY, Marshall, Dennehey, Warner, Coleman & Goggin, Tampa, FL; Laurie
D. Beechner, LEAD ATTORNEY, Marshall, Dennehey,
Warner, Coleman & Goggin, Orlando, FL.

MOTION: AMENDED MOTION
TO COMPEL DISCOVERY (Doc. No.
43)
FILED: September 26, 2007
THEREON it is ORDERED that the
motion is DENIED.

JUDGES: Donald P. Dietrich, UNITED STATES MAGISTRATE JUDGE.

Plaintiff moves to compel two non-parties to comply
with subpoenas for production of documents. Plaintiff
has failed to establish that the subpoenas were issued or
served in compliance with Fed. R. Civ. P. 45. Therefore,
there is no basis to issue an order compelling compliance.

OPINION BY: Donald P. Dietrich

I. FACTS

OPINION

Plaintiff states that it "dispatched" a subpoena duces
tecum without deposition to "Diversified Maintenance
Systems, Inc." on March 15, 2007. Doc. 42 at P 1. In
[*2] response to an inquiry by Plaintiff's counsel's office
on May 28, 2007, a person named "Teresa" (whom
Plaintiff believes was the records custodian for Diversified Maintenance) informed counsel's office that she did
not have a copy of the subpoena in her possession. Doc.
42 at P 2. On June 1, 2007, Plaintiff's counsel sent a copy
of the subpoena by facsimile to Teresa's attention. Doc.
42 at P 3. On June 20, 2007, Plaintiff's counsel received
a facsimile from Diversified Maintenance with certain
documents and a cover letter stating, "Here is all the information I can provide." Doc. 42 at P 5. The motion
does not state who, if anyone, signed the cover letter.
Plaintiff contends that Diversified Maintenance's produc-

ORDER
This cause came on for consideration without oral
argument on the following motions:
MOTION: AMENDED MOTION
TO COMPEL DISCOVERY (Doc. No.
42)
FILED: September 26, 2007
THEREON it is ORDERED that the
motion is DENIED.

Page 2
2007 U.S. Dist. LEXIS 73567, *

tion failed to respond completely to the subpoena. Doc.
42 at P 6.
Similarly with respect to Sunkey Janitorial, Plaintiff
states that a subpoena duces tecum without deposition
was "dispatched" on or about July 11, 2007. Doc. 43 at P
1. Plaintiff's counsel alleges that on July 25, 2007, his
investigator spoke by telephone to the owner of Sunkey
and the owner purportedly said that he would "send
whatever records he had." Doc. 43 at P 2. No records
were produced, and subsequent [*3] efforts to contact
Sunkey were unsuccessful. Doc. 43 at PP 3-6. Plaintiff's
counsel learned that at some point that Sunkey was "no
longer in service." Doc. 43 at P 5.
Plaintiff's motions failed to attach copies of the
subpoenas at issue and fail to provide any evidence that
service upon the two non-parties was effected. Plaintiff
also failed to serve the motions to compel on the
non-parties.
II. ANALYSIS
Contempt is the only sanction available against a
non-party witness for failure to comply with a subpoena.
Fed. R. Civ. P. 45(e). Before the Court will order enforcement of a subpoena, the party seeking the order
must show that it has complied with Rule 45. "A party
may only be compelled to comply with a properly issued
and served subpoena." Smith v. Midland Brake, Inc., 162
F.R.D. 683, 686 (D. Kan. 1995). See also, Holloman v.
Mail-Well Corp., 443 F.3d 832, 843-44 (11th Cir. 2006)
(finding no basis to reverse district court for denying
motion to compel compliance with deposition subpoena
when moving party failed to prove subpoena ever issued); Cincinnati Ins. Co. v. Cochran, 2004 U.S. Dist.
LEXIS 30367, 2004 WL 5246993 *2 (N.D. Fla. December 9, 2004) (failure of moving party to show service of
the subpoena alone [*4] supports denial of a motion to
compel). Only after the moving party establishes prima
facie compliance with Rule 45 does the burden shift to
the subpoenaed party if it raises any objections. Cf. Wiwa
v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th
Cir. 2004) ("moving party has the burden of proof to

demonstrate that compliance with the subpoena would be
unreasonable and oppressive") (internal quotation marks
omitted); U.S. v. Armada Petroleum Corp., 562 F.Supp.
43, 50 (S.D. Tex. 1982) ("Once the government has made
out a prima facie case for enforcement of an administrative subpoena, the burden is upon the respondents to
prove that judicial enforcement of the administrative
subpoena would be an abuse of the court's process.").
Plaintiff fails to establish prima facie compliance
with Rule 45. Initially, Rule 45 requires that the subpoena be in a specific form, including, inter alia, text advising the subpoenaed person of his or her rights and responsibilities. Fed. R. Civ. P. 45(a). As Plaintiff fails to
attach the subpoenas in question, the Court cannot verify
the form or content of the subpoenas. 1
1 The Court notes that deposition subpoenas
issued to other non-parties failed to [*5] comply
with the form required by Fed. R. Civ. P. 45(a).
Doc. 36-2.
Plaintiff also fails to establish that the subpoenas
were properly served. A statement that the subpoenas
"were dispatched" falls far short of establishing effective
service. To the extent that Plaintiff states that the subpoena to Diversified Maintenance was sent by facsimile
to the purported records custodian, there is no showing
that the subpoena was directed to the "records custodian"
as opposed to "Diversified Maintenance Systems, Inc."
Doc. 42 at P 1. Further, service of a subpoena by facsimile does not satisfy Rule 45's requirement that the subpoena be "delivered" to the subpoenaed person. See,
Firefighters' Inst. for Racial Equal. v. City of St. Louis,
220 F.3d 898, 903 (8th Cir. 2000) (service of subpoena
to non-party by facsimile and regular mail was ineffective).
DONE and ORDERED in Orlando, Florida on October 2, 2007.
Donald P. Dietrich
UNITED STATES MAGISTRATE JUDGE

Page 1

11 of 12 DOCUMENTS
RIFKIN/MIAMI MANAGEMENT CORP., et al., Plaintiffs, v. METROPOLITAN
DADE COUNTY, and BELLSOUTH INTERACTIVE MEDIA SERVICES, INC.,
Defendants.
CASE NO. 4:98mc24
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
FLORIDA, TALLAHASSEE DIVISION
1998 U.S. Dist. LEXIS 8949; 11 Fla. L. Weekly Fed. D 739

April 24, 1998, Decided
April 27, 1998, Filed; April 28, 1998, Entered on Docket
DISPOSITION:
[*1] Motion to quash (document
1) GRANTED. Subpoenas served in this district under
this court's case style QUASHED. Remaining motions
DENIED AS MOOT.

COUNSEL: For plaintiff: TERRY S. BIENSTOCK,
Terry S. Bienstock, P.A., Bienstock & Clark, Miami,
Florida.
For defendant Dade County: THOMAS W. LOGUE,
Assistant County Attorney, Office of the Dade County
Attorney, Miami, Florida. For Attorneys for BellSouth
Telecommunications, Inc., defendant: Elizabeth Bevington, Tallahassee, Florida.
JUDGES: Robert L. Hinkle, United States District
Judge.
OPINION BY: Robert L. Hinkle
OPINION
ORDER QUASHING SUBPOENAS
This proceeding arises from an action pending in the
Southern District of Florida. Plaintiffs are cable operators licensed to provide cable television service to residents of Dade County, Florida. Plaintiffs assert in their
Southern District action that Dade County has unlawfully
granted a cable license to defendant BellSouth Interactive Media Services, Inc. on terms more favorable than
the terms of plaintiffs' licenses.

Plaintiffs have served subpoenas on non-party BellSouth Telecommunications, Inc., seeking to require production of voluminous documents and, apparently, seeking testimony of the corporation under Federal Rule of
Civil Procedure 30(b)(6). Plaintiffs served the subpoenas
in this district under this court's case style. Plaintiffs
designated Tallahassee as the location of the deposition
and document production.
BellSouth Telecommunications moved to quash the
subpoena on various grounds including the proposed
location [*2] of the deposition and document production and absence of authority to compel the company to
respond to such a subpoena in this district. In response,
plaintiffs redesignated the location of the deposition and
document production as Atlanta, but plaintiffs apparently
did not issue or serve a subpoena styled in the Northern
District of Georgia.
Tallahassee is approximately 500 miles from Dade
County, Florida. Tallahassee is approximately 275 miles
from Atlanta, Georgia. None of the documents at issue
are maintained in the Northern District of Florida or
within 100 miles of Tallahassee; none of the corporate
representatives who would be designated to testify on the
company's behalf reside or regularly do business in Tallahassee or within 100 miles hereof; none of the activities at issue in the case occurred in Tallahassee or within
100 miles hereof; and, for all that appears in this record,
the Southern District case and the information plaintiffs
seek from BellSouth Telecommunications have absolutely no connection to this district.

Page 2
1998 U.S. Dist. LEXIS 8949, *; 11 Fla. L. Weekly Fed. D 739

The sole basis on which plaintiffs claim an ability to
require BellSouth Telecommunications to respond to a
Northern District of Florida subpoena is that [*3] the
company's registered agent, Prentice-Hall Corporation
System, Inc., maintains its address in Tallahassee, thus
allowing plaintiffs to effect service of the subpoena here.
This will not do.
First, Federal Rule of Civil Procedure 45(c)(3)(A)
provides:
On timely motion, the court by which a
subpoena was issued shall quash or modify the subpoena if it . . . requires a person
who is not a party or an officer of a party
to travel to a place more than 100 miles
from the place where that person resides,
is employed or regularly transacts business in person, except that . . . such a person may in order to attend trial be commanded to travel from any such place
within the state in which the trial is held.

Here the "persons" whom plaintiffs would require to
testify are BellSouth Telecommunications' designated
representatives, none of whom reside, are employed or
regularly transact business in this district or within 100
miles of Tallahassee.
More generally, Federal Rule of Civil Procedure
45(c)(1) provides:
A party or an attorney responsible for
the issuance and service of a subpoena
shall take reasonable steps to avoid imposing undue burden or expense on a
person subject [*4] to that subpoena.

If plaintiffs' tactics here are not a violation of this provision, they are surely close.
There may be circumstances in which a non-party
corporation can be required to transport voluminous
documents more than 100 miles into a district where it
does not maintain them in the ordinary course of its
business or may be required to present corporate representatives in a district more than 100 miles from where
the representatives reside or do business. There may even

be circumstances in which a non-party corporation can
be required to transport documents more than 100 miles
to a district other than the district where the action is
pending or the events at issue occurred or may be required to present corporate representatives in such a district. Here, however, plaintiffs are attempting to require a
non-party corporation to transport voluminous documents and present corporate representatives in a district
having no connection with the lawsuit or events at issue,
in which the corporation does little if any business, and
which is some 500 miles removed from the site of the
lawsuit and events at issue. If the simple fact of physical
service of a subpoena in the district [*5] allowed this, a
party's capacity to inflict undue burden on non-party
corporations would be considerable. 1 This is precisely
what Rule 45 was designed to avoid.
1 Most national corporations have registered
agents in every state. Thus, for example, if (as
plaintiffs apparently contend) service of a subpoena on a registered agent were sufficient to require a non-party corporation to transport documents or present witnesses wherever service was
effected, any national corporation would be subject to subpoena in California or New York or
Alaska or even Hawaii in connection with any
Florida lawsuit, for no reason other than the
whim of the party serving the subpoena. This is
nonsense.
It is no answer that plaintiffs now have relented and
agreed to the production of documents and presentation
of designated witnesses in Atlanta. Under Rule 45, this
court's subpoena does not reach Atlanta. Plaintiffs will
have to issue a proper subpoena in a proper district.
Accordingly,
IT IS ORDERED:
The motion to quash (document [*6]
1) is
GRANTED. The subpoenas served in this district under
this court's case style are QUASHED. The remaining
motions are DENIED AS MOOT. The clerk shall close
the file.
SO ORDERED this 24th day of April, 1998.
Robert L. Hinkle
United States District Judge

Page 1

1 of 1 DOCUMENT
UNITED STATES OF AMERICA, Plaintiff, vs. CRISTOBAL SANDOVAL, Defendant.
CASE NO. 10-20243-CR-ALTONAGA/Brown
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA, MIAMI DIVISION
2010 U.S. Dist. LEXIS 78726

July 13, 2010, Decided
July 13, 2010, Filed
COUNSEL: [*1] For Cristobal Sandoval, Defendant
(2): Kashyap Pramod Patel, LEAD ATTORNEY, Federal Public Defender's Office, Miami, FL.

23]; Change of Plea Hr'g [ECF No. 51]). Sandoval's sentence for this violation will be based, in part, on the value
of the stolen property. (See [*2] Resp. 6 [ECF No. 56]).

For USA, Plaintiff: Aurora Fagan, United States Attorney's Office, Miami, FL.

1 Amazon's inventory indicates 6,098 Kindles
were stolen. (See Decl. of Lonnie Anderson
("Anderson") P 4 [ECF No. 48-1]).

JUDGES: CECILIA M. ALTONAGA,
STATES DISTRICT JUDGE.

UNITED

OPINION BY: CECILIA M. ALTONAGA
OPINION
ORDER
THIS CAUSE came before the Court on Third Party, Amazon.com, Inc.'s ("Amazon['s]") Motion to Quash
Subpoena Duces Tecum ("Motion") [ECF No. 49], filed
on June 4, 2010. The Court has carefully considered the
Motion, the file, and applicable law.
I. BACKGROUND
On or about November 28, 2009, a tractor trailer
loaded with 12,000 Amazon Kindle 2 ("Kindle") electronic reading devices was stolen from a truck stop in
Troy, Illinois. (See Compl. 3 [ECF No. 1]). On March
22, 2010, Defendant, Cristobal Sandoval ("Sandoval"),
and another defendant were found in Miami-Dade
County with approximately 6,000 Kindles. 1 (See id. 2).
Subsequently, Sandoval was indicted and pleaded guilty
to possessing stolen cargo in interstate commerce, a violation of 18 U.S.C. § 659. (See Indictment 1 [ECF No.

In anticipation of his sentencing hearing, Sandoval
subpoenaed certain records from Amazon, the owner of
the stolen Kindles. (See Subpoena Duces Tecum ("Subpoena") [ECF No. 48-3]). The Subpoena read in pertinent part:
Amazon must provide [1] the unit cost
of production per Amazon Kindle . . . . [2]
Provide any and all insurance claims
made based upon this incident, including
all payments received by Amazon from
said insurer and all settlement agreements.
[3] Also, provide details for any pending
Civil Litigation regarding this matter, that
is any disputed amount between Amazon
and the insurance provider that has not
been settled. [4] The Bill of Lading for
this shipment must also be provided. [5]
An exact quantity of Kindles being
shipped and whether they were refurbished or brand new Kindles. [6] Lastly,
whether these Kindles were intended for
wholesale in bulk or individual retail sale
by Amazon.

Page 2
2010 U.S. Dist. LEXIS 78726, *

(Id. 2) (numeration added).
Amazon now seeks to quash the Subpoena.
II. LEGAL STANDARD
Rule 17(c) of the Federal Rules of Criminal Procedure governs the [*3] use of subpoenas duces tecum in
federal criminal proceedings. See United States v. Silverman, 745 F.2d 1386, 1397 (11th Cir. 1984). "The
court on motion made promptly may quash or modify the
subpoena if compliance would be unreasonable or oppressive." FED. R. CRIM. P. 17(c). A party seeking
production of documents under Federal Rule of Criminal
Procedure 17(c) "must clear three hurdles: (1) relevancy;
(2) admissibility; and (3) specificity." United States v.
Nixon, 418 U.S. 683, 700, 94 S. Ct. 3090, 41 L. Ed. 2d
1039 (1974); see also United States v. Marshall, No.
07-20569-CR, 2008 U.S. Dist. LEXIS 48806, 2008 WL
2474662, at *1 (S.D. Fla. Jun. 17, 2008) (acknowledging
Nixon as the legal standard). "Relevant evidence means
evidence having any tendency to make the existence of
any fact that is of consequence to the determination of an
action more . . . or less probable than it would be without
the evidence." FED. R. EVID. 401. The application for
such a subpoena must be made in good faith and "not
[be] intended as a general 'fishing expedition'." Nixon,
418 U.S. at 700 (quoting United States v. Iozia, 13
F.R.D. 335, 338 (S.D.N.Y. 1952)).
III. ANALYSIS
Amazon asserts the subpoena should be quashed in
its entirety because Sandoval failed to comply with [*4]
Rules 17(c)(3) and 17(d) of the Federal Rules of Criminal Procedure as he did not obtain a court order prior to
issuing the subpoena and he served the subpoena by facsimile. (See Mot. 5 n.5). Alternatively, Amazon maintains portions of the subpoena should be quashed because the subpoena "seeks confidential and irrelevant
information, . . . [and] is overbroad and procedurally
improper." 2 (Id. 2). Finally, Amazon discloses some of
the subpoenaed information. (See id. 7; Decl. of Anderson; Pinkerton Investigative Rep. [ECF No. 48-2]; Bill of
Lading [ECF No. 53-1]). Sandoval does not address the
Rule 17 violations in his Response but maintains the
subpoenaed documents are relevant as "necessary information for sentencing" because his "sentence [will be]
based almost entirely on the value of the [stolen] property." (Resp. 3, 6).
2 Amazon also maintains the first three categories of documents (production costs, insurance
claims, and pending disputes) should be protected
from disclosure because the information is commercially sensitive and highly proprietary. (See
Mot. 4). The Court does not address this issue

because the subpoenaed information is quashed
on other grounds. (See infra pp. 6-7).
In [*5] seeking to quash the subpoena in its entirety Amazon first relies on Rule 17(c)(3) of the Federal
Rules of Criminal Procedure, a provision designed to
implement the Crime Victims' Rights Act, 18 U.S.C. §
3771(a)(8). (See Mot. 5). Amazon asserts Sandoval
failed to comply with Rule 17(c)(3) because he did not
obtain a court order prior to serving his subpoena on
Amazon. (See id.). "[A] subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order . .
. ." FED. R. CRIM. P. 17(c). "The rule provides a protective mechanism when the defense subpoenas a third
party to provide personal or confidential information
about a victim." Id. at advisory committee's note 1, 2008
Amendments (emphasis added). The purpose of the court
order is to put the victim on notice because "a third party
may not assert the victim's interests, and the victim may
be unaware of the subpoena." Id.
Amazon misunderstands the requirements of Rule
17(c), as it interprets "third party" to mean a third party
to the litigation rather than a party other than the victim
and the defendant. Amazon is not a "third party" as comprehended by Rule 17(c)(3) [*6] because it is the victim
in this matter. It was served with the subpoena directly;
therefore, Amazon has notice of the proceedings and can
protect its own interests as evidenced by the present Motion. Sandoval was not required to obtain a court order
prior to service on Amazon.
In a footnote, Amazon also asserts the subpoena
should be quashed because it was served by facsimile.
(See Mot. 5 n.1). Rule 17(d) of the Federal Rules of
Criminal Procedure provides "[a] subpoena may be
served by the marshal, by a deputy marshal or by any
other person who is not a party" and "[t]he server must
deliver a copy of the subpoena to the witness . . . ." FED.
R. CRIM. P. 17(d). The Advisory Committee Notes indicate Rule 17(d) is "substantially the same as rule 45(c)
of the Federal Rules of Civil Procedure, 28 U.S.C., Appendix." Id. at advisory committee's note. "This means
that '[p]ersonal service of subpoenas is required.'" MAC
Funding Corp. v. ASAP Graphics, Inc., No.
08-61785-MC, 2009 U.S. Dist. LEXIS 51685, 2009 WL
1564236, at *1 (S.D. Fla. Jun. 3, 2009) (quoting 9A
Charles A. Wright & Arthur R. Miller, FED. PRAC. &
PROC.: CIVIL 3D § 2454 (2008)). See also United
States v. Grooms, 6 F. App'x 377, 381 (7th Cir. 2001)
(noting [*7] Rule 17(d) requires personal service of
subpoenas); United States v. Sabhnani, No. 07-cr-429
(ADS)(WDW), 2008 U.S. Dist. LEXIS 56204, 2008 WL
7842013, at *2 (E.D.N.Y. July 19, 2008) (granting motion to quash where subpoenas were not personally
served). One court has clearly stated Rule 17(d) does not

Page 3
2010 U.S. Dist. LEXIS 78726, *

authorize service by facsimile. See United States v. Venecia, 172 F.R.D. 438 (D. Or. 1997). Cf. Johnson v.
Petsmart, Inc., No. 6:06-cv-1716-Orl-31UAM, 2007 U.S.
Dist. LEXIS 73567, 2007 WL 2852363, at *2 (M.D. Fla.
Oct. 2, 2007) (finding service by facsimile does not satisfy Rule 45 of the Federal Rules of Civil Procedure).
Sandoval's service of the subpoena duces tecum by
facsimile was defective and the subpoena must be
quashed in its entirety on this ground. However, the
Court assumes Sandoval will likely cure the improper
service by effecting proper service of the same subpoena.
Therefore, in the interests of justice and judicial economy, the substantive matters regarding the scope of the
subpoena raised by Amazon in its Motion are addressed
so as to forestall any further delay.
Amazon asserts the first three categories of subpoenaed information (production costs, insurance claims,
and pending disputes) are irrelevant to Sandoval's sentencing [*8] as Amazon has revealed the retail market
value of each Kindle to be $259.00. (See Mot. 2, 5; Decl.
of Anderson [ECF No. 48-1] P 6). Amazon maintains the
definition of "value" stated in 18 U.S.C. § 641, which
governs embezzlement and theft of public money, property or records, applies to violations of 18 U.S.C. § 659.
(See Mot. 5). Section 641 defines value as "face, par, or
market value, or cost price, either wholesale or retail,
whichever is greater." 18 U.S.C. § 641. Sandoval disagrees and asserts the definition of "value" in section 641
applies only when government property is stolen. (See
Resp. 6).
Sentencing guidelines require a determination of the
amount of the loss of stolen property in calculating a
defendant's base offense level. See United States v. Machado, 333 F.3d 1225, 1227 (11th Cir. 2003) (citing U.S.
SENTENCING GUIDELINES MANUAL § 2B1.1(b)(1)
(2000)). In determining the value of stolen property for
sentencing purposes, the United States Court of Appeals
for the Eleventh Circuit has adopted an "approach measuring loss within the factual circumstances presented,
rather than a universal retail market value." Id. at 1228.
Rejecting the definition of "value" in section 641, [*9]
the Eleventh Circuit has determined "[t]he fair market
value . . . does not refer to one uniform measure, . . . but
rather the market in which the property was in at the time
of the offense." Id.; see also United States v. Galvez, 108
F. Supp. 2d 1369, 1372 (S.D. Fla. 2000) (applying
wholesale value because stolen goods were "packaged in
wholesale lots and owned by a wholesale dealer at the
time of the offense"). Identifying the market the property
is in at the time of the offense is the equivalent of "looking at what a willing buyer would pay a willing seller."
United States v. Salvia, 164 F. App'x 829, 834-35 (11th
Cir. 2006) (finding invoices provided evidence of fair
market value of stolen goods).

The first three categories of subpoenaed information
are not relevant in determining the market value of the
stolen Kindles. The unit cost of production of a Kindle
will not aid Sandoval in establishing the value of the
stolen cargo in either the retail or the wholesale markets.
3
Similarly, Sandoval's demand for information about
"any and all insurance claims" and "any and all pending
litigation" related to insurance is irrelevant in determining market value. (Subpoena 2). Sandoval asserts [*10]
the insurance proceeds "paid out go[] directly to value . .
. marking an agreed upon value per Kindle," but he fails
to explain the nexus between an agreement between
Amazon and its insurer, and the market value of the Kindles. (Resp. 7). Assuming, arguendo, an insurance settlement included an agreed upon value per Kindle between Amazon and its insurer, that measure only indicates the result of a negotiated agreement between
Amazon and its insurer -- not the actual value of the
Kindles in the marketplace. While a "court may measure
loss in some other way," it does so only where "the market value is difficult to ascertain or inadequate to measure harm to the victim." Machado, 333 F.3d at 1228.
3
While most products are sold above their
production costs, that is not always the case with
newly-developed electronic devices like the Kindle. See Janusz A. Ordover, Competition Policy
for High-Tech Industries, 24 Int'l Bus. Law 479,
480 (1996). Manufacturers of cutting-edge devices often employ penetration pricing, which
involves pricing products below early production
costs either to quickly establish market-share or
with the expectation production costs will be significantly reduced once economies [*11] of
scale are attained. See generally Joel Dean, Pricing Pioneering Products, J. of Indust. Econ., July
1969, at 175-76. Therefore, production cost may
not serve as a "floor" for the wholesale market
value.
Amazon has complied with Sandoval's fourth and
fifth demands by providing the bill of lading, specifying
exactly how many Kindles were shipped (see Bill of
Lading), and indicating the devices were "brand new."
(Decl. of Anderson P 4). However, Amazon's response to
Sandoval's final demand is incomplete because Amazon
failed to indicate whether the stolen Kindles were intended for wholesale or retail sale by Amazon. (See Subpoena 2) (emphasis added). Amazon indicates the stolen
devices were "intended for retail sale to consumers," but
it is unclear whether the devices were being shipped as
products in wholesale commerce (sold to a retailer prior
to their sale to consumers) or in retail commerce (Amazon, itself, intended to sell the Kindles directly to the
consumer). (See Decl. of Anderson P 5).

Page 4
2010 U.S. Dist. LEXIS 78726, *

Whether the Kindles were in the wholesale or retail
market at the time of the theft is relevant to Sandoval's
sentencing. See Machado, 333 F.3d at 1227-28; Galvez,
108 F. Supp. 2d at 1372. Therefore, [*12] in a properly-served subpoena, Sandoval may seek information regarding whether the stolen Kindles were intended for the
wholesale market or for individual retail sale by Amazon. If intended for the wholesale market, Sandoval may
also inquire of Amazon as to the wholesale value of the
stolen goods.

2. Should Sandoval properly serve a
subsequent subpoena duces tecum on
Amazon.com, the scope of the subpoena
shall be governed by this Order and it
shall be served no later than July 30,
2010.
3. Amazon shall file its response to a
properly-served subpoena no later than
seven days following receipt of the subpoena.

IV. CONCLUSION
Consistent with the foregoing analysis, it is hereby
ORDERED AND ADJUDGED as follows:
1. Third Party, Amazon.com, Inc.'s
Motion to Quash [ECF No. 49] is
GRANTED.

DONE AND ORDERED in Chambers at Miami,
Florida, this 13th day of July, 2010.
/s/ Cecilia M. Altonaga
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE