AH Biscayne Investor, LLC v. 1st Sun Properties, LLC

Filing 211

ORDER granting in part and denying in part 206 Defendant's Motion to Compel. Signed by Magistrate Judge Edwin G. Torres on 3/7/2018. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-23573-Civ-COOKE/TORRES
AH BISCAYNE INVESTOR, LLC,
Plaintiff,
v.
1st SUN PROPERTIES, LLC,
Defendant.
_______________________________________/
ORDER ON DEFENDANT’S MOTION TO COMPEL
This matter is before the Court on 1st Sun Properties, LLC’s (“Defendant”)
motion to compel [D.E. 206] against AH Biscayne Investor, LLC (“Plaintiff”).
Plaintiff responded to Defendant’s motion on March 1, 2018 [D.E. 207] and
Defendant replied on March 2, 2018.
now ripe for disposition.

[D.E. 210].

Therefore, Defendant’s motion is

After careful consideration of the motion, response, reply,

and relevant authority, and for the reasons discussed below, Defendant’s motion is
GRANTED in part and DENIED in part.
I.

BACKGROUND

This action arises out of Plaintiff’s alleged breach of its obligations concerning
the parties’ development of a real estate project in Miami, Florida (the “Biscayne
Project”). The primary issue in this action is the parties’ interpretation of their
obligations under a Tenancy in Common Agreement (“TIC”), a First Side Letter
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Amendment (“First Amendment”), and a Second Side Letter Amendment (“Second
Amendment”) governing the relationship between the parties and the future
operations and management of the Biscayne Project.

These three integrated

documents collectively form the parties’ entire agreement (the “Agreement”).
Pursuant to the Agreement, Michael Belfonti or a Michael Belfonti affiliate1 were
entitled to exercise a call option that would allow Michael Belfonti or any Michael
Belfonti affiliate to purchase additional membership interests in the Biscayne
Project.

The call option provided a mechanism and a deadline for the

Belfonti-related entities (Defendant and Lambert Boston Associates, LLC) to acquire
up to a defined percentage ownership interest, which once achieved entitled the
Belfonti-related entities to share equally in all management decisions.

Per the

parties agreement, once Defendant or any other Michael Belfonti affiliate reached a
threshold ownership amount, as defined in the TIC and amended by the First and
Second Amendments, the date by which Michael Belfonti could exercise his all option
would be extended through October 22, 2016 (the “Outside Call Option Date”).
As of July 13, 2016, the Michael Belfonti affiliates (Defendant and Lambert
Boston Associates, LLC) had not satisfied the defined percentage ownership interest
for share management.

As a result, the provisions of the Second Amendment

executed by the parties on July 13, 2016 were aimed at defining the benchmarks
An affiliate is a defined term in the TIC. Specifically, it means a legal entity
that is controlled or is under the common control of Michael Belfonti. Defendant
and Lambert Boston Associates, LLC were the two Michael Belfonti affiliates that
acquired membership interests in the Biscayne Project.
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needed to be satisfied in order to achieve the threshold ownership amount as so as to
extend the Outside Call Option Date and allow Michael Belfonti and the Michael
Belfonti affiliates additional time to achieve the defined percentage ownership
interest for shared management. The Second Amendment provided that Defendant
shall “be deemed to have satisfied” the threshold ownership amount upon certain
“Required Conditions” being met and, thus, extend the Outside Call Option Date
until October 22, 2016 in order to allow Michael Belfonti and his designated Michael
Belfonti affiliates additional time to exercise the Call Option and achieve the defined
percentage ownership interest for shared management.
There is allegedly no dispute by Plaintiff that Defendant and its affiliates
“strictly satisfied” the “Required Conditions” in the Second Amendment.
Nevertheless, Plaintiff purportedly refused to allow Michael Belfonti to exercise the
Call Option and interfered with the ability of Michael Belfonti and his designated
Michael Belfonti affiliate – the Defendant – to achieve the defined percentage
ownership interest. Plaintiff’s alleged refusal to allow the exercise of the call option
by the extended Outside Call Option Date was purportedly an attempt to wrest
control of the Biscayne Project from the Michael Belfonti affiliates (Defendant and
Lambert Boston Associates, LLC). Accordingly, (1) the Second Amendment, (2) the
negotiations leading up to its execution, and (3) the parties’ intent in entering into it
are central issues in this action.

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II.

ANALYSIS

Defendant’s motion seeks to compel Plaintiff to (1) cooperate in the scheduling
of four depositions, (2) immediately produce documents in response to Defendant’s
fifth request for production, and (3) serve a proper privilege log by a certain date in
compliance with the Local and Federal Rules.

We will discuss the parties’

arguments in turn.
A. Whether Plaintiff failed to cooperate with depositions
Defendant’s first argument is that Plaintiff has failed to cooperate in
scheduling four depositions.

On January 22, 2018, the Court issued a revised

Scheduling Order and extended the discovery period in this case until May 18, 2018.
[D.E. 183]. On the same date, Defendant requested from Plaintiff the dates for
deposing four fact witnesses. Since January 22, 2018, Defendant has engaged in
numerous emails and telephone conversations to obtain the deposition dates, but has
been unsuccessful due to Plaintiff’s alleged lack of cooperation.2 Defendant argues
that Plaintiff has failed to provide any dates for the requested deponents – except for
Mr. Thornton 3 – and that the Court must compel these depositions given the
upcoming discovery cutoff.

The four proposed deponents are Fred Weber, William O’Connor, William
Thornton, and Mal Serure.
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In its reply brief, Defendant explains that Plaintiff has now agreed to produce
three of the deponents in April, but that these dates are insufficient because
Defendant should not have to wait until April to commence discovery depositions.
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Defendant’s motion is unpersuasive because we have already addressed this
issue. On February 20, 2018, we explained that “Plaintiff is not obligated to produce
any individuals without subpoena,” and that “Defendant may subpoena any
necessary witness for deposition under Rule 45, so long as it confers 14 days’ notice to
the witness and Plaintiff.” [D.E. 199]. We also directed the parties to cooperate in
the scheduling of future depositions by agreement.

And, if no agreement was

reached, we stated that the Court would enforce a timely served subpoena that
complies with the Local Rules.

It appears that Defendant has overlooked the

contours of that Order as there is no indication in Defendant’s motion that a
subpoena was issued on any of the four deponents.

Because we have already

explained how Defendant can obtain the relief sought (and could not have been
clearer on that point), there is nothing more to consider with respect to Defendant’s
motion on this issue.4 Therefore, Defendant’s motion to compel the scheduling of
four depositions is DENIED.
B.

Whether Plaintiff failed to timely produce documents

Defendant’s second argument is that Plaintiff has failed to produce any
documents in response to Defendant’s fifth request for production that was served on
January 23, 2018 – the day after the entry of the Court’s revised Scheduling Order.
[D.E. 183].

On February 22, 2018, Plaintiff timely served its objections and

responses to Defendant’s fifth request for production of documents. While asserting
If Plaintiff does not agree to produce the witnesses at issue in a reasonable
time period, Defendant can and should subpoena them. The Court will not babysit
this process.
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both general and specific objections, Plaintiff agreed to produce responsive,
non-privileged documents during the week of March 11, 2018.

Upon receipt of

Plaintiff’s response on February 22, 2018, Defendant requested the immediate
production of the items requested. Defendant claims that the documents are needed
to continue with deposition discovery in this case and that Plaintiff must be
compelled to comply with its discovery obligations.
Defendant’s motion is not without merit.

During a February 23, 2018

conference between the parties, Plaintiff explained that it would produce
non-privileged responsive documents to all 39 requests on or before March 16, 2018.
However, Plaintiff has failed to persuasively explain why it takes approximately 7
weeks to produce any documents. At the very least, Plaintiff could have produced
documents on a rolling basis and agreed upon a date with Defendant for the
productions to be completed sometime in March. Because Plaintiff has failed to
produce any documents, Plaintiff is ordered to complete its production of documents
within seven (7) business days from the date of this Order. Accordingly, Defendant’s
motion is GRANTED.
C.

Whether Plaintiff failed to serve a timely privilege log

The final dispute between the parties is whether Plaintiff failed to serve a
timely privilege log as required under the Local and Federal Rules. Plaintiff claims
that it cannot commit to a specific date to serve a privilege log until after Plaintiff’s
counsel reviews the documents that its client intends to produce on March 16, 2018.
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Defendant finds this response unacceptable because it prejudices Defendant with an
inexcusable delay caused by Plaintiff’s refusal to cooperate with the Court’s
Scheduling Order.
Plaintiff argues that the reason for the delay in the production of a privilege
log is because the parties dispute its appropriate scope. Plaintiff also contends that
there is an unknown universe of responsive documents – which Plaintiff’s counsel
anticipates to receive from its client next week – and that Plaintiff cannot estimate at
this time how long it will take to compile, review, and produce the privilege log.
Therefore, Plaintiff concludes that it will provide a privilege log within a reasonable
period of time after Plaintiff completes its production of documents.
Local Rule 26.1(g)(3)(c) requires that a party who withholds documents on the
basis of privilege to identify “‘each document and the individuals who were parties to
the communications with sufficient detail to permit the compelling party or court to
determine if the privilege is properly claimed.”’ Anderson v. Branch Banking & Tr.
Co., 2015 WL 2339470, at *2 (S.D. Fla. May 14, 2015) (quoting NIACCF, Inc. v. Cold
Stone Creamery, Inc., 2014 WL 4545918, at *5 (S.D. Fla. Sept. 12, 2014)). A proper
privilege log should therefore contain the following information for each redacted or
withheld document: “(1) the name and job title or capacity of the author of the
document; (2) the name and job title or capacity of each recipient of the document; (3)
the date the document was prepared and, if different, the date(s) on which it was sent
to or shared with persons other than the author(s); (4) the title and description of the
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document; (5) the subject matter addressed in the document; (6) the purpose(s) for
which it was prepared or communicated; and (7) the specific basis for the claim that
it is privileged.” Anderson, 2015 WL 2339470, at *2 (citing NIACCF, Inc., 2014 WL
4545918, at *5).
“The Eleventh Circuit has never determined what constitutes a timely
production of a privilege log in response to a request for production of documents.”
Universal City Dev. Partners, Ltd. v. Ride & Show Eng’g, Inc., 230 F.R.D. 688, 695
(M.D. Fla. 2005). And “[a] survey of district court discovery rulings reveals wide
divergence on whether the privilege log must be produced at the time that the
written response is due pursuant to Rule 34 to preserve the privilege.” Id. But, the
Ninth Circuit has provided a thoughtful analysis of the issue and held that a failure
to produce a privilege log within Rule 34’s 30-day time limit does not result in a per se
waiver of a privilege:
[U]sing the 30–day period as a default guideline, a district court should
make a case-by-case determination, taking into account the following
factors: the degree to which the objection or assertion of privilege
enables the litigant seeking discovery and the court to evaluate whether
each of the withheld documents is privileged (where providing
particulars typically contained in a privilege log is presumptively
sufficient and boilerplate objections are presumptively insufficient); the
timeliness of the objection and accompanying information about the
withheld documents (where service within 30 days, as a default
guideline, is sufficient); the magnitude of the document production; and
other particular circumstances of the litigation that make responding to
discovery unusually easy (such as, here, the fact that many of the same
documents were the subject of discovery in an earlier action) or
unusually hard.
Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Court for Dist. of Mont., 408 F.3d 1142,
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1149 (9th Cir. 2005). District courts have widely adopted this approach in the
Eleventh Circuit. So, considering that a claim for privilege has been asserted in
many of the discovery responses, Defendant’s position is well taken.

See, e.g.,

Universal City, 230 F.R.D. at 695; Mauro v. Alldredge, 2013 WL 3866531, at *4 (M.D.
Fla. July 25, 2013) (“Plaintiffs have failed to support their objections with evidence or
analysis and while they generally assert privilege, they have failed to submit a
privilege log.”).
Given the circumstances presented, there is reason to compel a compliant
privilege log within fourteen (14) business days from the date of this Order. That is
a sufficient period of time to review this final batch of documents and prepare the
privilege log. To this extent, the motion is GRANTED in part.
We also note that – after Plaintiff has completed its document productions –
an amended discovery response should make clear whether Plaintiff relied upon a
privilege and actually withheld any documents. To the extent Plaintiff did not do so
then an amended response should so clarify, in which case no privilege log is
required. But if documents are in fact withheld a privilege log must be served, at
least for those responsive documents withheld from the production. See Benfatto v.
Wachovia Bank, N.A., 2008 WL 4938418, at *2 (S.D. Fla. Nov. 19, 2008) (finding that
defendants “may not claim that all of Plaintiff’s discovery requests are privileged and
non-discoverable without providing a privilege log in accordance with the Federal
and Local Rules.”); see also Pepperwood of Naples Condo. Ass’n, Inc. v. Nationwide
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Mut. Fire Ins. Co., 2011 WL 3841557, at *8 (M.D. Fla. Aug. 29, 2011) (“[Defendant]
also notes that some of the information sought by [plaintiff] invades the
attorney-client privilege. If this is the case, [defendant] is obligated to provide
[plaintiff] with a privilege log setting forth this information. The party invoking the
privilege bears the burden of proof.”) (emphasis in original).5
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that:
A. Defendant’s motion to compel the scheduling of four depositions is
DENIED.
B. Defendant’s motion to compel the production of documents is GRANTED
in part. Plaintiff is compelled to complete its production of documents
within seven (7) business days from the date of this Order. To this extent,
Defendant’s motion is GRANTED.
C. Defendant’s motion to compel a privilege log is GRANTED in part.
Plaintiff shall produce a compliant privilege log within fourteen (14)
business days from the date of this Order.

In many of Plaintiff’s discovery responses, Plaintiff objects on the basis of the
attorney-client privilege or the work product doctrine. Plaintiff needs to clarify
which privilege is at issue in its amended response and be specific. See In re
Pimenta, 942 F. Supp. 2d 1282, 1290 (S.D. Fla. 2013) (“Blanket assertions of privilege
before a district court are usually unacceptable.”); Maryland Cas. Co. v. Shreejee Ni
Pedhi’s, Inc., 2013 WL 3353319, at *4 (M.D. Fla. July 2, 2013) (finding that the
objecting party “has the burden to demonstrate the work product doctrine applies
and failed to make its work product objection with any specificity.”).
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DONE AND ORDERED in Chambers at Miami, Florida, this 7th day of
March, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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