Center for Individual Rights v. Chevaldina
ORDER granting in part and denying in part 75 Plaintiff's Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 11/29/2017. (js02)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-20905-Civ-KING/TORRES
CENTER FOR INDIVIDUAL RIGHTS,
ORDER ON PLAINTIFF’S MOTION TO COMPEL
This matter is before the Court on the Center for Individual Rights’
“Chevaldina”). [D.E. 75]. Chevaldina responded to Plaintiff’s motion on November
20, 2017 [D.E. 87] to which Plaintiff replied on November 21, 2017.
Therefore, Plaintiff’s motion is ripe for disposition. After careful consideration of
the motion, response, reply, relevant authority, and for the reasons discussed below,
Plaintiff’s motion is GRANTED in part and DENIED in part.
This is an action for breach of contract. The complaint – filed on March 11,
2016 [D.E. 1] – alleges that Plaintiff successfully represented Defendant pro bono in
an appeal before the 11th Circuit in Katz v. Google, Appeal No. 14-14525, in which
the Eleventh Circuit affirmed summary judgment in favor of Defendant in a copy
infringement action.1 See Katz v. Google, Inc., 802 F.3d 1178 (11th Cir. 2015), aff’g,
Katz v. Chevaldina, 12-cv-22211, 2014 WL 5385690 (S.D. Fla. Sept. 5, 2014).
Plaintiff alleges that Defendant had few financial obligations under the retainer
agreement in that case and that Plaintiff paid the out of pocket expenses of the suit.
Plaintiff contends that it only asked Defendant for (1) reasonable attorney fees and
expenses as permitted under law, and (2) that Defendant provide Plaintiff with any
fees or expenses that were attributable to Plaintiff’s expenditures and/or the work of
If Defendant decided to settle the case, Plaintiff alleges that
Defendant was also obligated to provide Plaintiff with a reasonable amount in
attorneys’ fees and expenses.
In December 2015 – while being represented by another attorney –
Defendant settled all the remaining claims in the Katz case. In the settlement,
Plaintiff claims that Defendant obtained only $10,000 in attorney fees for the work
of Plaintiff’s attorneys as well as both taxable and non-taxable costs.
thereafter, Plaintiff sought to challenge the fee award in the Eleventh Circuit, but
Defendant allegedly instructed Plaintiff to withdraw its motion and Plaintiff
reluctantly complied. Therefore, Plaintiff suggests that Defendant did not obtain a
reasonable amount in attorney fees for the work of Plaintiff’s attorneys and that
Defendant breached the retainer agreement.
In exchange for the low sum of
$10,000 in attorney fees, Plaintiff alleges that Defendant agreed with Katz to drop a
substantial claim against Defendant in excess of $100,000.
Plaintiff is a public interest law firm organized under the laws of the District
alleges that it has been deprived of a reasonable attorney fee award, Plaintiff seeks
judgment against Defendant in an amount of no less than $105,000 – including
reasonable costs and expenses in accordance with 28 U.S.C. § 1920.
Plaintiff’s motion seeks to compel Chevaldina to provide supplemental
responses to Plaintiff’s interrogatories 1 and 3, and require Chevaldina to pay
reasonable expenses, including attorneys’ fees, incurred in filing its motion.
Plaintiff’s motion relates to two paragraphs in Chevaldina’s counterclaim
concerning allegations that Plaintiff violated the Driver’s Privacy Protection Act
(“DPPA”). Specifically, paragraph 21 of the counterclaim alleges that “[a]s of the
filing of this pleading, and in spite of Defendant Counter-Plaintiff’s notification,
[Plaintiff] had not taken any steps to abate, address, or rectify the violations laid
forth herein and such violations continue day after day.”
[D.E. 35] (emphasis
Moreover, in paragraph 22 of Chevaldina’s counterclaim, Chevaldina
alleges that Plaintiff’s “intentional unlawful inclusion” of her personal information
“continues to present a serious risk of identity theft, as well as ongoing harm.”
[D.E. 35]. As a result of these allegations, the counterclaim alleges that Plaintiff is
liable for actual and punitive damages.
Plaintiff’s first interrogatory requests additional information concerning the
allegation in paragraph 21 because Chevaldina purportedly notified Plaintiff of its
Plaintiff denies the allegations in its answer to Chevaldina’s counterclaim.
violations of the DPPA prior to the date of Chevaldina filing her counterclaim.
Interrogatory 1 states the following:
With respect to the allegations in Paragraph 21 of the counterclaim,
identify each communication in which you notified CIR of the alleged
violation of the DPPA. For each such communication, (1) state
whether it was oral or in writing or both, (2) set forth the date of the
communication, (3) identify any document concerning the
communication, and (4) identify all persons sending the
communication and all persons receiving the communication.
In response to interrogatory 1, Chevaldina responded with the following paragraph:
Defendant objects to the first interrogatories as unduly and
unnecessarily burdensome to the extent that it seeks information that
is matter public record, already in Plaintiff’s possession, or otherwise
readily available to Plaintiff, and, therefore, may be accessed and
obtained by Plaintiffs with less burden than plaintiff can identify and
provide requested information. CIR has in its possession and control
all communications between CIR and Defendant. CIR is well aware of
each facts, date, persons receiving communications between Plaintiff
and Defendant. Defendant believes this Plaintiff’s unreasonable
request was made for improper purposes such as harassment, delay,
unduly burdensome, and expensive. Without waiving these objections,
Defendant states that CIR received communication from Defendant
notifying of CIR’s violation of DPPA on: December 23, 2016
(Defendant’s Motion to Quash), Defendant’s Reply in Opposition to
CIR’s Motion to Quash, March 2, 2017 Defendant’s Objections to report
and recommendation, Multiple meet and confer email communication
between Defendant and CIR (CIR has all these emails in its possession
Chevaldina relies on three filings in her response to interrogatory 1 – her
motion to quash, her reply in opposition to Plaintiff’s motion to quash, and her
objections to the Court’s Report and Recommendation – as well as unspecified email
communications between the parties. Plaintiff argues that Chevaldina’s response is
inadequate because she only included boilerplate objections along with three
documents on the docket that never mention the DPPA.
As for Chevaldina’s
contention that Plaintiff was notified in meet and confer emails, Plaintiff claims
that it is unaware of any communications where Chevaldina mentioned the DPPA.
As such, Plaintiff requests that Chevaldina be compelled to specify which
communications she is relying upon for the allegation that Plaintiff was notified of
its violations of the DPPA.3
Plaintiff’s third interrogatory requests that Chevaldina “[d]escribe any other
injury . . . incurred as a consequence of CIR’s alleged violation of the DPPA.” [D.E.
Chevaldina responded to interrogatory 3 and argued that the term “other
injury” was vague and that the question was outside the scope of her counterclaim:
Defendant objects to these interrogatories to the extent that they are
over-broad, unduly burdensome, vague, ambiguous, confusing, require
speculation to determine their meaning or use imprecise specifications
of the information sought. Plaintiff did not define the term “other
injury”, therefore, Defendant is not able to understand this question.
Moreover, this question is out of scope of Defendant’s counter-claim,
therefore, is not related to DPPA claim.
Plaintiff disputes that the interrogatory is vague and explains that
Michael Rosman (“Mr. Rosman”), the General Counsel of the Center for Individual
Rights, spoke with Chevaldina to discuss the information requested. Specifically,
Mr. Rosman claims that he spoke with Chevaldina via telephone on September 15,
2017 and explained that the term “other injury” means any other harm for which
Defendant is claiming damages in this case.
As such, Plaintiff argues that
Plaintiff contends that the information requested is relevant because
Chevaldina alleges that Plaintiff willfully violated the DPPA and that punitive
damages are warranted.
Chevaldina has no basis to contend that the information requested is vague and
that a supplemental response to the interrogatory is required.
In response, Chevaldina argues that Plaintiff waited too long to file its
motion to compel.
On August 10, 2017 Plaintiff sent via email its first set of
interrogatories and Chevaldina claims that she responded on September 13, 2017.
The parties then spoke via telephone on September 15, 2017, but Plaintiff did not
file its motion to compel until November 3, 2017. Because Plaintiff filed its motion
to compel after thirty days from the date the discovery dispute arose, Chevaldina
suggests that Plaintiff’s motion did not comply with Local Rule 26.1(g)(1), which
requires parties to promptly bring motions to compel thirty days after the
Before addressing the merits of Plaintiff’s motion, we will first consider
Chevaldina’s argument that Plaintiff’s motion is untimely and should be summarily
denied. Local Rule 26.1 provides the following:
All motions related to discovery, including, but not limited to, motions
to compel discovery and motions for protective order, shall be filed
within thirty (30) days of the occurrence of grounds for the motion.
Failure to file a discovery motion within thirty (30) days, absent a
showing of reasonable cause for a later filing, may constitute a waiver
of the relief sought. Neither this thirty (30) day period nor any other
Court-ordered scheduling deadlines may be extended by stipulation.
S.D. Fla. L.R. 26.1(g)(1) (emphasis added). Courts in the Eleventh Circuit have
interpreted an “occurrence” broadly despite any definition for the term in the local
rules. See, e.g., Manno v. Healthcare Revenue Recovery Grp., LLC, 2012 WL
1409532, at *2 (S.D. Fla. Apr. 23, 2012) (“Regardless of the specific triggering event,
the key point is that once a party seeking discovery learns that the opposing party
objects to providing the requested discovery, the first party must seek relief from
the court within thirty days or else be deemed to have waived such relief.”).
To determine whether Plaintiff’s motion is untimely, we must review the
sequence of events that led to its filing. Plaintiff served Chevaldina with its first set
of interrogatories on August 10, 2017 and Chevaldina requested an extension of
time to respond until September 13, 2017. On September 15, 2017, Mr. Rosman
spoke with Chevaldina on the telephone to speak about Chevaldina’s discovery
responses. During that conversation, Mr. Rosman claims that he told Chevaldina
that – with respect to interrogatory 1 – Plaintiff was unaware of any
communications or papers where Chevaldina notified Plaintiff that it was violating
the DPPA. Mr. Rosman also claims that he clarified for Chevaldina that the terms
“other injury” in interrogatory 3 means any harm – other than the identity theft
covered by interrogatory 2 – for which Chevaldina is claiming damages. Chevaldina
then purportedly asked that she be given additional time to consider Mr. Rosman’s
objections to her discovery responses.
Mr. Rosman contends that he followed up on his phone call with an email on
September 25, 2017 asking whether Chevaldina would supplement her discovery
responses. In a subsequent phone call, Chevaldina allegedly told Mr. Rosman that
she would supplement her responses and asked if she could have until October 2,
2017 to which Mr. Rosman agreed.4 On October 2, 2017, Mr. Rosman claims that he
spoke with Chevaldina again and that she requested another week to respond to
which Mr. Rosman again agreed. On October 10, 2017, Mr. Rosman explains that
he spoke with Chevaldina via telephone and explained that Plaintiff had still not
received a supplemental response to interrogatories 1 and 3 as promised.
Chevaldina allegedly told Mr. Rosman that October 9, 2017 was Columbus Day and
that she would respond by the end of day on October 10th. Because Chevaldina
never served any supplemental responses on October 10th, Plaintiff filed its motion
to compel on November 3, 2017. [D.E. 75].
After full consideration of the arguments presented, we are persuaded that
Plaintiff’s motion is timely.
While Chevaldina claims that she never agreed to
supplement any of her discovery responses in her discussions with Mr. Rosman,
both parties, at the very least, agree that the parties spoke on September 15, 2017
to discuss Chevaldina’s discovery objections. Moreover, throughout her opposition
to Plaintiff’s motion, Chevaldina never disputes that Plaintiff sent her an email on
September 25, 2017 asking whether she would supplement her interrogatory
responses and points to no communication to suggest that Mr. Rosman is lying.
Chevaldina also does not mention any of the later communications between
the parties to rebut Plaintiff’s argument that there were several agreed extensions
of time to allow Chevaldina to supplement her discovery responses. As such, we
have no reason to find that Mr. Rosman is lying and that the parties did not agree
Chevaldina argues that Mr. Rosman is lying about their conversations and
that she never agreed to supplement her responses to interrogatories 1 and 3.
to a supplemental discovery response on or before October 10, 2017. In any event,
even if Plaintiff’s motion was untimely, we find that Plaintiff has shown good cause
for the Court to exercise its discretion to consider Plaintiff’s motion on the merits.
See Sandalwood Estates Homeowner’s Ass’n, Inc. v. Empire Indem. Ins. Co., 2010
WL 411088, at *2 (S.D. Fla. Jan. 29, 2010) (“Local Rule 26.1(H)(1) is permissive and
affords the Court discretion in whether to consider a late-filed motion.”); Kabula v.
S. Homes of Homestead VIII, Inc., 2008 WL 4691983, at *1 (S.D. Fla. Oct. 22, 2008)
(“[B]ecause S.D. Fla. L.R. 26.1(H) is permissive, this Court has discretion to grant
the Motion to Compel, even if it was filed late.”); S.D. Fla. L.R. 26.1(h)(1) (“Failure
to file a discovery motion within thirty (30) days, absent a showing of reasonable
cause for a later filing, may constitute a waiver of the relief sought .”) (emphasis
added). Therefore, Chevaldina’s argument that Plaintiff’s motion is untimely lacks
As for Plaintiff’s motion on the merits, we agree that Chevaldina’s responses
Chevaldina claims that – in response to interrogatory 1 – she
notified Plaintiff of its violations of the DPPA in three filings and in several email
communications. Yet, Plaintiff cannot find any references as to where Chevaldina
ever mentioned the DPPA and the information requested is relevant as to whether
punitive damages are warranted. See 18 U.S.C. § 2724 (explaining that under the
DPPA, punitive damages are appropriate “upon proof of willful or reckless disregard
of the law”); see also Ela v. Destefano, 869 F.3d 1198, 1201 (11th Cir. 2017). And
communications, we agree that Chevaldina’s response is vague with respect to
where the relevant information is actually located. See Miccosukee Tribe of Indians
of Florida v. Cypress, 2013 WL 10740706, at *2 (S.D. Fla. June 28, 2013)
(“Specificity is required in objections because without it both the requesting party
and the Court lacks sufficient information to understand the scope of the objection,
and to fairly consider whether the objection has merit.”) (citation omitted).
Accordingly, Plaintiff’s motion is GRANTED in so far as Chevaldina is compelled to
provide a supplemental response to interrogatory 1. Chevaldina should specify all
instances where she notified Plaintiff of its violations of the DPPA with specific
references to any relevant documents and/or communications (by page number).
In relation to interrogatory 3, we find that Chevaldina must supplement her
response because there is no longer any ambiguity with respect to the terms “other
injury” after she and Mr. Rosman conferred via telephone and email. Based on
Chevaldina’s opposition, it appears that the answer to the interrogatory may be
none, but Chevaldina should make it clear in her supplemental response.
Therefore, Plaintiff’s motion to compel a supplemental response to interrogatory 3 is
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion to compel is GRANTED in part and DENIED in part. [D.E.
75]. Chevaldina is compelled to amend her responses to Plaintiff’s interrogatories 1
As for Plaintiff’s motion for attorneys’ fees and expenses for filing its motion,
Plaintiff’s request is DENIED.
and 3 within fourteen (14) days from the date of this Order.
To this extent,
Plaintiff’s Motion is GRANTED. As for Plaintiff’s request for Chevaldina to pay
reasonable expenses and attorneys’ fees, Plaintiff’s motion is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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