Center for Individual Rights v. Chevaldina

Filing 92

ORDER denying 73 Defendant's Motion to Compel; denying 73 Defendant's Motion for Sanctions. 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,
Plaintiff,
v.
IRINA CHEVALDINA,
Defendant.
______________________________________/
ORDER ON DEFENDANT’S MOTION TO COMPEL
This matter is before the Court on Irina Chevaldina’s (“Defendant” or
“Chevaldina”) motion to compel against the Center for Individual Rights
(“Plaintiff”). [D.E. 73]. Plaintiff responded to Chevaldina’s motion on November 10,
2017 [D.E. 80] to which Chevaldina replied on November 20, 2017.

[D.E. 86].

Therefore, Chevaldina’s motion is ripe for disposition. After careful consideration of
the motion, response, reply, relevant authority, and for the reasons discussed below,
Chevaldina’s motion is DENIED.
I.

BACKGROUND

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

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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
its attorneys.

If Defendant decided to settle the case, Plaintiff alleges that

Defendant was also obligated to provide Plaintiff with a reasonable amount in
attorney’s 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.

Shortly

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.

Because Plaintiff

Plaintiff is a public interest law firm organized under the laws of the District
of Columbia.
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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.
II.

ANALYSIS

Chevaldina’s motion seeks to compel Plaintiff to produce documents in
response to discovery request 4 and sanctions for mispresenting that no other
documents exist.

On August 10, 2017, Chevaldina emailed Plaintiff her first

request for production of documents. In request 4, Chevaldina seeks “[a]ny and all
records, ESI pertaining to the financial donations and financial contributions
received by CIR between February 1, 2015 and the present date relating to the
Agreement.”

[D.E. 73].

Plaintiff responded to Chevaldina’s request with

approximately four objections:
Plaintiff objects to this request on the grounds of vagueness. As it is
phrased, it is unclear whether ‘ESI’ is the only type of ‘records’ being
sought by this request. Plaintiff also objects to Request No. 4 on the
ground that the phrase ‘relating to the Agreement’ is vague in this
context. The Agreement was a contractual arrangement for the
provision of legal services, and contained various obligations on both
parties to it. It is unclear how ‘financial donations and financial
contributions received by CIR’ could ‘relate’ to the document creating
those legal obligations.
Plaintiff also objects on the ground that this request seeks documents
that are not relevant to any claim or defense in this action. Plaintiff’s
records regarding ‘financial donations and financial contributions’
relating to the Agreement, if any existed, would have nothing to do
with whether defendant breached the Agreement by failing to provide
for a reasonable sum for attorneys’ fees in the Katz appeal, as alleged
in the complaint, what damages CIR may have incurred as a
consequence of any breach, whether CIR violated the DPPA, or any
damages that defendant may have incurred as a consequence.
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Plaintiff further objects to the extent that the request calls for
documents disclosing the names of CIR’s donors, which is confidential
information protected by the First Amendment right of association.
Without waiving these objects, Plaintiff states that it has no additional
responsive documents.
[D.E. 73].
On September 25, 2017, Chevaldina claims that – contrary to Plaintiff’s
response that it had no additional documents relating to request 4 – Plaintiff
produced a communication with a donor in response to request 1. This document
allegedly demonstrates that Plaintiff received money from various sources to cover
all of the expenses in Chevaldina’s case at the Eleventh Circuit, negating any claim
that Plaintiff is entitled to attorneys’ fees in this case. Chevaldina claims that she
notified Plaintiff that its response to request 4 was a misrepresentation, but
Plaintiff allegedly refused to produce any additional documents.

As such,

Chevaldina suggests that Plaintiff has intentionally withheld items in response to
request 4, and that Plaintiff must be required to produce additional documents
relating to the following areas of inquiry:
[B]ank statements, statements of accounts, bank records, deposit slips,
accounting ledgers, statements, reports, billings, invoices, worksheets,
balance sheets, wires, transmissions, cancelled checks, electronically
stored information (ESI) and any other documents pertaining to the
financial donations and financial contributions CIR received’ as
requested.
[D.E. 73].

Accordingly, Chevaldina concludes that Plaintiff has willfully concealed

relevant evidence in this case and that Plaintiff’s actions have interfered with the
discovery process.

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In sum, Chevaldina argues that Plaintiff has (1) deprived her of an
opportunity to establish that Plaintiff has no damages in this case, (2) failed to
comply with the Federal Rules, (3) intentionally served misleading discovery
responses, and (4) failed to produce responsive documents as required. Because
Plaintiff’s conduct has been misleading, Chevaldina requests that Plaintiff produce
all of the information requested above as well as any other documents pertaining to
financial donations Plaintiff received. Chevaldina also requests that Plaintiff pay
the costs of filing her motion and any other relief that the Court deems appropriate.
In response, Plaintiff requests (1) that the Court issue a protective order with
respect to Plaintiff’s financial documents and (2) that Chevaldina pay for Plaintiff’s
reasonable expenses incurred in opposing her motion.

Plaintiff argues that

Chevaldina’s motion lacks merit primarily because it’s based on the misconception
that, if Plaintiff received money from one or more charitable contributors to fund its
ongoing activities, then Plaintiff did not suffer any damages from Chevaldina’s
breach of contract. Plaintiff contends that this line of reasoning is wrong because
contributions from donors and awards of attorneys’ fees and expenses are two
completely different sources of revenue.

Plaintiff suggests that even if it had

received a million dollars in contributions that were earmarked for the sole purpose
of funding Chevaldina’s case (which it allegedly did not), Plaintiff’s damages for
Chevaldina’s breach of contract would not change.

Therefore, Chevaldina’s

contention that Plaintiff received funds to cover the expenses of representing her is

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allegedly irrelevant as well as her discovery requests for items relating to any
financial donations and contributions that Plaintiff received.2
Without rehashing all of the arguments presented, we agree with Plaintiff
that Chevaldina’s motion lacks merit because request 4 has no relationship to the
claims presented in this case. Stated differently, it is not clear that any of the items
requested have any relevance to the allegations or defenses in this action. For
example, in request 4, Chevaldina seeks “[a]ny and all records, ESI pertaining to
the financial donations and financial contributions received by CIR between
February 1, 2015 and the present date relating to the Agreement.”

[D.E. 73].

Chevaldina appears to believe that documents showing donations to Plaintiff –
which is a public interest law firm – establishes that Plaintiff did not suffer any
damages as a result of a breach of contract and are therefore relevant to a defense
of this action. [D.E. 73] (“[D]isclosure of this information will prove [CIR’s] case to
be frivolous, as CIR could not have any damages . . .”); id. (“CIR willfully deprived
Chevaldina of the ability to prove that CIR had no damages . . .”).
Yet, Chevaldina cites no authority for her argument and we can find no case
where charitable donations have undermined a breach of contract claim. To be
clear, charitable contributions and attorney fee awards are completely different

Plaintiff argues that no document produced supports the theory that
Chevaldina’s expenses would have been covered by a donor. Plaintiff also claims
that the document produced in response to request 1 is not a misrepresentation
because Plaintiff stated that it had no additional documents outside of the ones
produced in response to other discovery requests.
Because the document
Chevaldina focuses on was produced in response to request 1, Plaintiff suggests that
Chevaldina’s allegations of misconduct ring hollow.
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sources of revenue for a public interest law firm.

If Chevaldina’s position was

correct, it would allow any party to willingly breach a contract with a public interest
law firm – without any consequences – as long as the law firm receives other
sources of revenue during its representation of a client. That cannot be the law
because it would lead to unforeseen consequences and allow charitable donations to
eviscerate breach of contract claims. Therefore, Chevaldina’s request for documents
in relation to financial donations is irrelevant because – even if Chevaldina
establishes that Plaintiff received contributions specifically earmarked to cover the
costs of her case (which Plaintiff suggests does not exist) – it would not change
Chevaldina’s contract with Plaintiff to pay a reasonable attorneys’ fee at the
conclusion of her case.3
Chevaldina’s motion is also unpersuasive because Plaintiff has already stated
that it has no additional documents in response to request 4 outside of the
documents produced in response to Chevaldina’s other discovery requests. And we
accept this averment at face value. See Tequila Centinela, S.A. de C.V. v. Bacardi &
Co., 242 F.R.D. 1, 12 (D.D.C. 2007) (declining to compel production where party
objected “on the basis that it believes no [responsive] document to exist [and] . . . [i]f
a document is not in the possession, custody or control of a party, then it clearly

Other sources of revenue for a public interest law firm do not alleviate the
damages that a firm suffers if a client breaches a retainer agreement. While
Chevaldina appears to believe that charitable donations adequately covered the
costs of her case, she ignores the fact that she agreed to a contract to pay Plaintiff a
reasonable attorneys’ fee. As such, if Plaintiff’s allegations are true, it has still been
damaged despite charitable donations because Chevaldina agreed to pay Plaintiff at
the conclusion of a successful case.
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cannot be turned over.”); Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd., 171
F.R.D. 135, 152 (S.D.N.Y. 1997) (“Under ordinary circumstances, a . . . good faith
averment that the items sought simply do not exist, or are not in his possession,
custody or control, should resolve the issue of failure of production . . . .”) (citation
omitted); 4 Wright & Miller, Federal Practice & Procedure: Civ. 2d § 2213 (2d ed.
1994) (noting that nothing more is required in responding to discovery request than
response “saying that a particular document is not in existence or that it is not in
the responding party's possession, custody, or control”). Therefore, Chevaldina’s
motion to compel is DENIED because the items requested are irrelevant and there
is no evidence that Plaintiff is misrepresenting the documents that it has in its
possession.4
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Chevaldina’s motion to compel is DENIED. [D.E. 73].
DONE AND ORDERED in Chambers at Miami, Florida, this 29th day of
November, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

As for Plaintiff’s motion for attorneys’ fees and expenses, Plaintiff’s motion is
DENIED.
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