Feliciano et al v. City of Miami Beach et al

Filing 187

ORDER denying 119 Motion for Sanctions. Signed by Magistrate Judge John J. O'Sullivan on 2/23/2012. (mkr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 10-23139-CIV-LENARD/O'SULLIVAN
JANET FELICIANO,
Plaintiff,
vs.
CITY OF MIAMI BEACH, a
Municipal entity, et al.,
Defendants.
______________________________/
ORDER
THIS MATTER is before the Court on the Plaintiff’s Motion to Exclude
Defendants’ Police Practices Expert Report and Testimony and for Sanctions (DE#
119, 11/15/11). This motion was referred to the undersigned by the Honorable Joan A.
Lenard pursuant to 28 U.S.C. § 636(b). See Order of Reference (DE# 144, 12/29/11).
For the reasons stated herein, it is
ORDERED AND ADJUDGED that the Plaintiff’s Motion to Exclude Defendants’
Police Practices Expert Report and Testimony and for Sanctions (DE# 119, 11/15/11) is
DENIED.
BACKGROUND
On November 15, 2011, the plaintiff filed the instant motion. See Plaintiff’s
Motion to Exclude Defendants’ Police Practices Expert Report and Testimony and for
Sanctions (DE# 119, 11/15/11) (hereinafter “Motion”). The defendants filed their
response on December 2, 2011. See Defendants’ Response in Opposition to Plaintiff’s
Motion to Exclude Defendants’ Police Practices Expert Report and Testimony and for

Sanctions (DE# 133, 12/2/11) (hereinafter “Response”). The plaintiff filed her reply on
December 15, 2011. See Plaintiff’s Reply Memorandum of Law in Support of Her
Motion to Exclude Defendants’ Police Practices Expert Report and Testimony, and for
Sanctions (DE# 143, 12/15/11) (hereinafter “Reply”). This matter is ripe for
consideration.
STANDARD OF REVIEW
The plaintiff seeks sanctions against the defendants pursuant to Federal Rule of
Civil Procedure 37. Rule 37 grants a district court the authority to impose sanctions for
the failure to make disclosures or cooperate in discovery. FED .R.CIV.P. 37. The Court
has “ broad discretion over the management of pre-trial activities, including discovery
and scheduling.” Johnson v. Board of Regents of Univ. of Ga., 263 F.3d 1234, 1269
(11th Cir. 2001); see also In re Seroquel Products Liability Litigation, 244 F.R.D. 650,
656 (M.D. Fla. 2007) (noting that the district court may impose broad sanctions under
Rule 37 for discovery-related abuses). Rule 37 sanctions are intended to prevent unfair
prejudice to the litigants and insure the integrity of the discovery process.” Gratton v.
Great Am. Communications, 178 F.3d 1373, 1374 (11th Cir. 1999).
ANALYSIS
The plaintiff seeks sanctions against the defendants based on the defendants’
late production of documents. See Motion (DE# 119 at 5, 11/15/11). The plaintiff argues
that she “has been unfairly prejudiced by the untimely production of discoverable
documents, and by the ‘document dump’ of thousands of pages of documents to be
reviewed after the close of the discovery period.” Id. at 5-6 (emphasis in original).

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The plaintiff further argues that the defendants’ untimely production of documents
resulted in her inability “to depose Defendants’ Police Practices Expert, Individual
Defendants Dohler and Dozier, the Chief of Police or other persons with critical
knowledge” and that the depositions of defendants Acosta, Nash and the City of Miami
Beach were taken “without the benefit of evidence to elicit necessary testimony.” Id. at
5.
As a consequence for the defendants’ late production of documents, the plaintiff
seeks the following sanctions against the defendants:
the exclusion of their Police Practices Expert, Mr. John Timoney,1 the
exclusion of the use of any of the late-produced or non-produced
documents in Defendants’ defense at trial, and attorney’s fees and costs
for the depositions taken of Defendant City of Miami Beach, Defendant
Nash and Defendant Acosta, and the time spent traveling from Lee
County, Florida to Miami, Florida for (1) informal discovery hearing on Oct.
24; (2) the inspection of documents on Oct. 28; (3) the retrieval of
documents on Nov. 9; and (4) compensation for time spent on the instant
motion.
Motion (DE# 119 at 6, 11/15/11) (footnote added).
In the instant action, this Court entered an Order providing a mechanism through
which the parties could timely address any discovery issues. See Discovery Procedure
(DE# 52, 4/27/11). The Court’s Discovery Procedure provides that “[i]f a discovery
dispute arises, the moving party must seek relief within fifteen (15) days after the
occurrence of the grounds for relief.” Id. The purpose of adopting this procedure is to
ensure that discovery disputes are timely brought before the Court and to avoid the
costs to the Court and to the litigants associated with briefing a motion. The parties
1

The plaintiff seeks to preclude the defendants from using Mr. Timoney in
connection with any pretrial motions and at trial. See Motion (DE# 119 at 8, 11/15/11).
3

have availed themselves of the Court’s Discovery Procedure in the past. See Motion
(DE# 119 at 4, 11/15/11) (stating that the parties participated in an informal discovery
hearing before the undersigned on October 24, 2011). In fact, the same issue – the
production of documents – that is the subject of the instant motion was discussed at the
October 24, 2011 informal discovery hearing. Id. Thus, if the plaintiff believed that the
defendants violated the Court’s October 24, 2011 discovery Order (DE# 103), the
plaintiff should have re-set this matter for an informal discovery hearing after it became
apparent to the plaintiff that the defendants were not going to produce the requested
documents by the deadline provided in the Court’s Order of October 25, 20112 or before
the discovery cutoff date of October 28, 2011. If the plaintiff had re-set the matter for
hearing, the issue would have been addressed by the Court in a timely manner.
Instead, the plaintiff attempts to circumvent the Court’s Discovery Procedure by raising
this discovery issue in a motion for sanctions. Because any request for sanctions
arising from a discovery violation should have been timely raised at an informal
discovery conference, the plaintiff’s request for sanctions stemming from the
defendants’ late production of documents is DENIED.
Moreover, even considering the merits of the plaintiff’s motion for sanctions, the
Court finds no prejudice to the plaintiff stemming from the defendants’ actions. As the
defendants point out, the plaintiff took the depositions of defendants Nash and Acosta
on September 7, 2011, before the defendants’ responses to the request for production

2

The defendants represent that “[e]ach and every document that was the subject
of [the Court]’s Order . . . was available for Plaintiff’s counsel to inspect on October 25,
2011.” Response (DE# 133 at 12, 12/2/11) (footnote omitted).
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were due. See Response (DE# 133 at 6, 12/2/11).“[The p]laintiff [also] willingly went
forward with the 30(b)(6) deposition [of defendant City of Miami Beach] knowing [she]
would not have any documents responsive to discovery at the time of the deposition”
since those responses were not yet due. Id. Of note, “[b]ecause IA [Internal Affairs] files
are public record, Plaintiff . . . could have requested virtually all these files during the
five and a half year period after the incident at issue and the close of discovery in this
case.” Id. at 12 n. 8. The Court is further unpersuaded by the plaintiff’s claim that she
“was unable to depose Defendants’ Police Practices Expert, Individual Defendants
Dohler and Dozier, the Chief of Police or other persons with critical knowledge”3 due to
the defendants’ failure to timely produce the requested documents. It is unclear why the
plaintiff saw fit to schedule and proceed with the depositions of some witnesses before
the defendants’ responses to the request for production were even due, yet failed to
schedule the depositions of other witnesses on the ground that those same documents
were unavailable to the plaintiff at the time.
The Court also finds no prejudice to the plaintiff with respect to the alleged
“document dump.” The Federal Rules of Civil Procedure allow a party responding to a
request for production to “either state that inspection and related activities will be
permitted as requested or state an objection to the request, including the reasons.”
FED .R.CIV.P. 34(b)(2)(B). The defendants did just that in the instant case. In their
responses to the plaintiff’s request for production, the defendants indicated that some
of the documents would be made available to the plaintiff for inspection at the

3

Motion (DE# 119 at 5, 11/15/11).
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defendants’ office and objected to the production of other documents. See Response
(DE# 133 at 16, 12/2/11) (stating that “[t]he City remained willing and able to produce
the documents that it had agreed to produce with reasonable notice necessary to
compile all the documents in one place and to redact statutorily protected information
such as the home addresses and social security numbers of police officers. Plaintiff
refused, however, to make arrangements to review and copy the proffered documents
until and unless the City provided documents that it had objected to producing.”).
Instead of making arrangements to inspect the unobjected-to documents, the plaintiff
waited over to month to set an informal discovery hearing on the defendants’ objections
to some of the requests for production.4 Because the plaintiff did not agree to inspect
the unobjected-to items prior to the hearing date, the result was the production of
thousands of pages of documents all at once and a few days prior to the close of the
discovery period.5
The plaintiff argues that “[i]f the Defendants in the instant case believed that the
interrogatories6 or requests for production of documents served upon them by the

4

The defendants’ objections to the plaintiff’s requests for production had some
merit since this Court limited the scope of the requests to “records for all seven (7)
cases identified by the plaintiff's expert and any other records reviewed by the
defendant's expert.” Order (DE# 103, 10/24/11).
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As the defendants state: “[e]ach and every document that was the subject of
[the Court]’s Order (as well as all the other documents that the City had agreed to
provide but that Plaintiff had never bothered to review) was available for Plaintiff’s
counsel to inspect on October 25, 2011.” Response (DE# 133 at 12, 12/2/11) (footnote
omitted).
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In her reply the plaintiff makes reference to the defendants “woefully
inadequate Interrogatory Responses.” Reply (DE# 143 at 4 n.6, 12/15/11). The
defendants’ responses to the plaintiffs’ interrogatories are outside the scope of the
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[p]laintiff were overly broad or unduly burdensome, they had the option at any point in
this litigation of seeking protection from that discovery from the [Court].” Reply (DE#
143 at 3-4, 12/15/11) (footnote added). As noted above, Rule 34, which governs
requests for production, allows a responding party to assert objections and to include
the reasons for those objections. See FED .R.CIV.P. 34(b)(2)(B). Thus, it was incumbent
upon the plaintiff, as the party seeking the discovery, to timely set the defendants’
objections for hearing before the Court. As the defendants note, the plaintiff waited over
a month to do so in the instant case.
CONCLUSION
For the foregoing reasons, the Plaintiff’s Motion to Exclude Defendants’ Police
Practices Expert Report and Testimony and for Sanctions (DE# 119, 11/15/11) is
DENIED.
DONE AND ORDERED in Chambers at Miami, Florida this 23rd day of
February, 2012.

________________________________
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies provided to:
United States District Judge Lenard
All counsel of record

plaintiff’s initial brief. See generally Motion (DE# 119, 11/15/11) (a word search reveals
that the word “interrogatory” or “interrogatories” was not used in this document).
7