2. ii
Table of Contents
I. The December 2015 Changes in the Discovery Rules Imitate Arbitration, But Do Not Go
Far Enough.......................................................................................................................... 1
II. The Backdrop: Abusive and Disproportionate Discovery Still Occurs.............................. 1
III. Changes in Practices......................................................................................................... 2
IV. The Duke Conference Guidelines on Proportionality...................................................... 3
V. Whether the Amendments Are to Be Applied to Pending Cases as of December 1, 2015 3
VI. Failure to Produce All Documents Timely ...................................................................... 4
VII. Proportionality.................................................................................................................. 4
A. Overly Strong Reliance on Proportionality to Bar Discovery of What the Court
Thinks Obvious, Without Considering the Adequacy of the Resulting Record........... 4
B. Proportionality Used to Limit Discovery in False Claims Act Litigation.................... 5
C. Proportionality Used to Bar Class Discovery Where Defendant’s Stipulations Protect
the Interests of the Class............................................................................................... 6
D. Proportionality Used to Bar Cumulative Discovery..................................................... 6
E. Proportionality Does Not Expand Discovery by Excusing Irrelevance ....................... 7
F. Proportionality Bars Relatively Burden-Free Relevant Discovery That Would Not
Likely Make a Difference............................................................................................. 7
G. Proportionality Allows Broad Multi-Year Discovery of Possible Comparators at
Plaintiff’s Location, But Disallows a Broad Geographic Scope Without a
Particularized Showing of Need................................................................................... 8
H. Proportionality Bars Discovery of Excessively Marginal Relevance ........................ 10
I. Proportionality Bars Apparently Burdensome Third-Party Discovery of Defendant’s
Customers...................................................................................................................... 10
J. Proportionality Analysis Requires a Threshold Showing by the Discovering Party ..... 11
K. Presence of Proportionality as a Defense to a Discovery Sanction............................ 11
VIII. Effects on Discovery of the Amendment to Rule 1.................................................... 12
IX. Sanction for Failure to Provide a Rule 26(g) Certification............................................ 13
X. Sanctions for Spoliation of Electronic Data...................................................................... 13
A. Proving Bad Faith....................................................................................................... 13
B. Sanctions Awarded Where Bad Faith Shown or Implied........................................... 14
1. Default..................................................................................................................... 14
2. Mandatory Adverse Inference................................................................................. 15
3. Adverse Inferences in Bench Trial, But No Further Sanctions .............................. 16
C. Sanctions Denied Where There Was a Failure of Proof............................................. 17
3. iii
Table of Cases
Applebaum v. Target Corp.,
831 F.3d 740 (6th Cir. 2016) .................................................................................................... 17
Bingham v. Baycare Health System,
2016 WL 4467213 (M.D. Fla. Aug. 24, 2016) ........................................................................... 6
Blake v. Batmasian,
2016 WL 4618931 (S.D. Fla. Sept. 2, 2016) ........................................................................ 1, 12
Blue Cross Blue Shield, File No, 2:13-CV-20000-RDP,
2015 WL 9694792 .................................................................................................................... 10
Brown Jordan Int'l, Inc. v. Carmicle,
2016 WL 815827 (S.D. Fla. March 2, 2016)...................................................................... 14, 16
Chatman v. National R.R. Passenger Corp.,
246 F.R.D. 695 (M.D. Fla. 2007).............................................................................................. 10
Earley v. Champion Int'l. Corp.,
907 F.2d 1077 (11th Cir. 1990) .................................................................................................. 9
Edmondson v. Velvet Lifestyles, LLC,
2016 WL 5682591 (S.D. Fla. Oct. 3, 2016).............................................................................. 11
Flynn v. Square One Distribution, Inc.,
2016 WL 2997673 (M.D. Fla. May 25, 2016).......................................................................... 10
Gian Biologics, LLC v. Cellmedix Holdings, LLC,
2016 WL 6568014 (M.D. Fla. Nov. 4, 2016) ................................................................. 4, 10, 13
Hankinson v. Class Action R.T.G. Furniture Corp.,
2016 WL 1182768 (S.D. Fla. March 28, 2016)...................................................................... 6, 7
Haukereid v. Nat'l R.R. Passenger Corp.,
816 F.3d 527 (8th Cir. 2016) ...................................................................................................... 7
Herman v. Seaworld Parks & Entm't, Inc.,
2016 WL 3746421 (M.D. Fla. July 13, 2016) ............................................................................ 7
Hilt v. SFC Inc.,
170 F. R. D. 182 (D. Kan. 1997)............................................................................................... 12
Houston v. C.G. Sec. Servs., Inc.,
820 F.3d 855 (7th Cir. 2016) .................................................................................................... 13
Lester v. City of Lafayette,
639 F. App'x 538 (10th Cir. 2016)............................................................................................ 11
4. iv
Lombardi v. NCL (Bahamas) Ltd.,
2015 WL 12085849 (S.D. Fla. Dec. 11, 2015)........................................................................... 4
Marshall v. Dentfirst, P.C.,
313 F.R.D. 691 (N.D. Ga. 2016)............................................................................................... 17
Marshall v. Westinghouse Elec. Corp.,
576 F.2d 588 (11th Cir. 1978) .................................................................................................... 9
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)................................................................................................................ 8, 9
Megdal Associates, LLC v. La-Z-Boy, Inc.,
2016 WL 4503337 (S.D. Fla. Feb. 1, 2016) ............................................................................. 12
Mergler v. ABF Freight Sys., Inc.,
2016 WL 6125488 (M.D. Fla. Oct. 20, 2016) ............................................................................ 8
O'Berry v. Turner,
2016 WL 1700403 (M.D. Ga. April 27, 2016)......................................................................... 15
Roadrunner Transp. Servs., Inc. v. Tarwater,
642 F. App'x 759 (9th Cir. 2016).............................................................................................. 14
Simionescu v. Bd. of Trs. Of Univ. of Ala.,
482 Fed.Appx. 428 (11th Cir. 2012)........................................................................................... 9
Steel Erectors, Inc. v. AIM Steel Int'l, Inc.,
312 F.R.D. 673 (S.D. Ga. 2016) ................................................................................................. 7
Sweat v. Miller Brewing Co.,
708 F.2d 655 (11th Cir. 1983) .................................................................................................... 9
Trujillo v. PacifiCorp,
524 F.3d 1149 (10th Cir.2008) ................................................................................................. 12
United States ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co.,
--- F.3d ---, 2016 WL 5799660 (3d Cir. Oct. 5, 2016)................................................................ 5
Washington v. United Parcel Serv., Inc.,
567 Fed.Appx. 749 (11th Cir. 2014)....................................................................................... 8, 9
Wells v. Xpedx,
No. 8:05-cv-2193-T-EAJ, 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007) ................................. 9
5. 1
I. The December 2015 Changes in the Discovery Rules Imitate Arbitration, But Do
Not Go Far Enough
For the close to twenty years I have been arbitrating cases, the Case Management
Conference within a few weeks of the arbitrator’s appointment is the time and place in which
each party needs to justify the discovery it wants to take. Each party needs to be able to discuss
with the arbitrator the scope of the case, often involving the same types of factors as the new
proportionality analysis in Fed.R.Civ.P. 26(b)(1). The discussions in Federal court are now
supposed to involve live interactions with the judge and parties, as has long been the case in
arbitration.
Arbitration goes further than the new changes, in that arbitrators routinely ask whom the
parties intend to depose, why the deposition is necessary, and whether time can be saved by
staging discovery.
One efficiency in discovery is available in arbitration, but not in Federal court. Because
arbitrators have not forgotten the importance of judging credibility in light of the demeanor of
the witnesses, summary-judgment practice tends to be focused on gateway issues such as
exhaustion, and on legal defenses. Few arbitrators will entertain summary-judgment motions as
to the sufficiency of the evidence. Nailing this down at the Case Management Conference means
that the parties are assured they will have the opportunity to cross-examine witnesses in person at
the merits hearing, so there is a greatly reduced need to take depositions. Similarly, parties know
they will not be blindsided by documents without a chance to discuss them, so document
requests can be much simpler. Because summary-judgment practice is the main driver of
discovery costs, arbitration is much less expensive than court, and determinations based on the
demeanor of witnesses are more accurate than those based on paper.
II. The Backdrop: Abusive and Disproportionate Discovery Still Occurs
Blake v. Batmasian, 2016 WL 4618931 (S.D. Fla. Sept. 2, 2016) (No. 15-CV-81222),
was a one-count FLSA overtime case. Plaintiffs’ counsel included in his Complaint a host of
allegations the Court struck as being “collateral, irrelevant, immaterial and scandalous.” That is
putting it mildly:
As to the pleadings, on June 13, 2016, the Court entered an Order on Motion to
Strike … in which the Court struck numerous allegations from the Corrected Second
Amended Complaint [DE 28], such as: (1) the allegation that Defendants defaulted on a
$105,000,000 loan; (2) hearsay commentary that Defendants are “extremely wealthy,
powerful and feared individual[s]”; (3) allegations that Defendant James Batmasian failed
to pay taxes, including withholding or federal payroll taxes, and previously went to
prison for failure to pay payroll taxes; and (4) the allegations of prurient and vulgar
behavior on the part of Mr. Batmasian contained in paragraphs 18 through 23 of the
Corrected Second Amended Complaint with the exception of the massage vouchers
(minus the happy ending allegations).
6. 2
The material stricken from paragraphs 18 through 23 included allegations that
James Batmasian discusses sexual desires with employees in and around the office, that
he routinely discusses his sexual desires regarding women and younger female
employees, that he gifts employees vouchers for happy ending massages, that he sends
pornographic text messages, that he views and forwards pornographic materials, that he
uses extremely vulgar language when referring to women as sex objects, and that he texts
obscene and profane material to his senior management, sometimes including his wife. …
The stricken material included a reference to a media article in which James Batmasian
allegedly falsely denied his “deviant sexual nature”; also stricken were allegations that
opt-in plaintiff Sotomayor filed a lawsuit against Defendant for sexual harassment and
that James Batmasian attempted to enlist Blake to assist in the defense of the Sotomayor
lawsuit, but Blake refused since James Batmasian uttered crude and vulgar comments
against women and harassed them. Id. at ¶¶ 21, 23. The Court struck all such allegations
as being immaterial, impertinent and scandalous [DE 137].
Id. at *1-*2 (footnotes omitted). Plaintiff then used his depositions to enquire into these topics
claiming they were relevant to show an official’s participation in running the business although
that had been stipulated, moved to compel answers, and moved for additional deposition time to
explore these topics. Defendants moved for a protective order. The court granted defendants’
motions, denied defendants’ motion, and reserved the issue of sanctions. The court mentioned
the importance of proportionality but placed heavier weight on the 2015 amendment to Rule 1
making counsel as well as the court responsible for the “just, speedy, and inexpensive
determination of every action and proceeding.” Nonetheless, the same decision would clearly
have resulted before the amendments; the court cited primarily pre-amendment authorities, and
there was no indication in its opinion that the amendments made a difference to the result,
instead of merely adding grace notes to the decision.
III. Changes in Practices
My personal experience is that some defense counsel seem unaware of the changes in the
Civil Rules that took effect on December 1, 2015, and are continuing in their former practices. I
am sure the same is occurring with some plaintiffs’ lawyers. Boilerplate objections to discovery
are continuing.
It seems to me well worth the effort to educate opposing counsel and bring them on
board, so that the Court is presented with a compliant Rule 26(f) report and the case can proceed
smoothly.
I am seeing more judicial involvement in discovery questions at the Rule 16 scheduling
conference, with judges making clear that proportionality in discovery is at the top of their
agendas. This can cause alarm for counsel and parties whose claims or defenses are based
primarily on information in the hands of their opponents, i.e., “asymmetric” discovery situations.
7. 3
Sometimes, judges are seduced by the assumption that everything that is wrong in the
civil litigation proceeds can be cured by clamping down on discovery. For example, one judge I
have been before has a standard presumption that depositions for each side should be limited to
25 hours. The presumption can be overcome, but this illustrates the reasons why plaintiffs’
counsel fear the worst whenever the discovery rules are changed.
More judges are holding at least telephonic Rule 16 scheduling conferences on discovery
reports, and are getting into discovery questions more deeply than before. This brings the courts
more into line with standard arbitration practice, which has been reducing costs in this manner
for years.
IV. The Duke Conference Guidelines on Proportionality
There is a great resource I recommend to all practitioners, DUKE’S REVISED GUIDELINES
AND PRACTICES CHART SAFE PASSAGE TO PROPORTIONALITY (2016), to in the Autumn 2016 issue
of Judicature (Vol. 100, No. 4). The publication includes a thoughtful article by Hon. Lee
Rosenthal and Prof. Steven Gensler, A Report from the Proportionality Roadshow:
Recommendations from the Bench and Bar in 17 Cities on Implementing the 2015
Proportionality Amendments. It is well worth ordering a copy. You can do so at
https://storefront.law.duke.edu/index.php?main_page=index&cPath=67.
Prof. Rabiej reports that that the Guidelines “are annotated monthly with case law. So far
about 250 reported cases have cited the amendments and are described in the annotated
Guidelines.” The annotated Guidelines are posted at
https://law.duke.edu/sites/default/files/centers/judicialstudies/civil_rules_project_draft-sept.pdf.
V. Whether the Amendments Are to Be Applied to Pending Cases as of December 1,
2015
The cases are virtually unanimous in holding that the proportionality amendments and
amendments to Rule 37(e) are to be applied to pending cases.
The courts have generally held that the proportionality amendments clarify and increase
the importance of an existing obligation already in the rules, so applying them to pending cases
does not create a new burden or violate any equitable interests of any parties.
Similarly, the early cases on the amended Rule 37(e) principally involve jurisdictions in
which the existing controlling case law used the same standards as set forth in Rule 37(e), so the
courts there have seen no problem in applying the amendments.
In those Circuits and districts that previously used different standards or relied on
inherent authority or on State law, the amended Rule 37(e) may impose different standards not
predicted by the spoliating party at the time of spoliation. Whether the courts will have
sympathy for the spoliating party remains to be seen.
8. 4
VI. Failure to Produce All Documents Timely
Gian Biologics, LLC v. Cellmedix Holdings, LLC, 2016 WL 6568014 (M.D. Fla. Nov. 4,
2016) (No. 2:15-CV-645-FTM-99CM), was a patent infringement case in which only $8,750 was
at stake. Defendant produced three sets of discovery responses, and stated at the hearing on a
motion to compel discovery that it still had more searches to do. It did not provide the
certification required by Rule 26(g) with any of these responses, but provided one late. The
court held that sanctions were appropriate:
Here, the Court finds Plaintiff's argument persuasive that Defendants should bear
Plaintiff's attorney's costs. As Plaintiff points out, Defendants produced and
supplemented their responses three times in the span of five months after Plaintiff served
its discovery requests on February 10, 2016: first on March 15, 2016, second on May 3,
2016, and lastly on July 7, 2016. Doc. 30–3; Doc. 50 at 2–3; Doc. 50–1 at 8, 19. Even
then, Defendants were fully aware that their three productions were deficient,
demonstrated by the statement of Defendants' counsel during the hearing on August 18,
2016 that Defendants still had more searches to do, and by Defendants' late 26(g)
certification finally produced on July 6, 2016. Doc. 30–1 at 1–2; Doc. 43 at 49–50; Doc.
50 at 2. Had Defendants believed Plaintiff's discovery requests were overly burdensome
and broad given the scope of this case, Defendants had many venues to pursue: they
could have moved for a protective order or sought Plaintiff's clarification of what exactly
Plaintiff wanted them to supplement and negotiated to reduce the scope of discovery.
Doc. 52 at 5–6. Instead, Defendants untimely produced incomplete sets of documents
after the parties' agreed deadlines had passed. Id. at 2–3; Doc. 50–1 at 4, 8, 10, 18, 23.
Furthermore, Defendants' brief in opposition does not focus on explaining their conduct
during the discovery process, but rather on highlighting Plaintiff's faults. Doc. 52 at 2
(“Plaintiff was equally at fault for failing to negotiate ESI search terms in good faith at
the outset of this case.”).
Id. at *3. The court awarded plaintiff its attorneys’ fees in bringing the motion to compel,
awarding the full $ 18,925 requested. This is more than twice the amount at stake.
VII. Proportionality
A. Overly Strong Reliance on Proportionality to Bar Discovery of What the
Court Thinks Obvious, Without Considering the Adequacy of the Resulting
Record
Lombardi v. NCL (Bahamas) Ltd., 2015 WL 12085849 (S.D. Fla. Dec. 11, 2015) (No.
15-20966-CIV), a personal-injury case involving an older passenger’s fall on a threshold and the
contention there should have been a warning, stated at *1:
But under the 2015 Amendments to Rule 26(b), the traditionally liberal limits on
discovery must be juxtaposed against proportionality considerations in a given case and
9. 5
the Court's obligation to determine, on a case-specific basis, the appropriate scope of
discovery.
The court’s ruling on the discovery requests at issue, limiting them to ease the burden in
defendant, focusing on the most relevant information, and holding that little discovery is needed
because some facts were obvious, such as that the elderly like going on cruise ships, may have
been affected by this observation. If so, the court did not make its reliance explicit. The court
did not discuss whether a jury would be required to accept what it saw as obvious. Nor did the
court discuss plaintiffs need to show that the defendant knew older persons would be traveling
on its ships enough in advance of the voyage in question to make a warning necessary.
B. Proportionality Used to Limit Discovery in False Claims Act Litigation
United States ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co., --- F.3d ---,
2016 WL 5799660 (3d Cir. Oct. 5, 2016) (No. 15-2169), a reverse False Claims Act case in
which plaintiff alleged the defendant failed to pay proper customs duties for imported pipe, the
court suggested using the proportionality rule to limit discovery in False Claims Act litigation:
Although we hold that CFI has done just enough to allow this matter to proceed,
we are aware of the great expense and difficulty that may accompany False Claims Act
discovery and the burden on defendants and their shareholders and investors of having
unresolved allegations of fraudulent conduct in pending proceedings. Because of our
awareness, we have looked to the recent amendments to the Federal Rules of Civil
Procedure; those rules provide some guidance as to how excessive expense and difficulty
may be avoided and how discovery should proceed.
In December 2015, a series of amendments to the Federal Rules were enacted to
improve a system of civil litigation that “in many cases ... has become too expensive,
time-consuming, and contentious, inhibiting effective access to the courts.” To counter
these problems, the 2015 amendments placed a greater emphasis on judicial involvement
in discovery and case management and cooperation among litigants' counsel.
* * *
As Chief Justice Roberts wrote of these amendments, “[t]he key here is careful
and realistic assessment of actual need” that may “require the active involvement of a
neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery.”
The instant matter is a prime example of the need for such controlled discovery.
CFI alleges a massive, systematic effort by Victaulic to avoid paying marking
duties on any of its imports. Since Victaulic's motion to dismiss was granted, there has
been no answer from the defendant as to whether any of CFI's allegations are true. An
answer could shed some light on these allegations. Similarly, while CFI has identified
millions of pounds of imported pipe fittings that it alleges were mismarked, proportional
10. 6
discovery would counsel in favor of limiting the scope of early discovery. It will be up to
the District Court and counsel to determine an appropriately limited discovery plan,
perhaps reviewing the documents and duties paid on a representative sample of the
shipments identified by CFI.
In any event, Chief Justice Roberts noted that “[j]udges must be willing to take on
a stewardship role, managing their cases from the outset rather than allowing parties
alone to dictate the scope of discovery and the pace of litigation.” The instant matter will
require the active involvement of the District Court, in conjunction with counsel and their
clients, to limit the expense and burden of discovery while still providing enough
information to allow CFI to test its claims on the merits.
Id. at *12-*13. Judge Fuentes concurred in part, dissented in part, and dissented from the
judgment.
C. Proportionality Used to Bar Class Discovery Where Defendant’s Stipulations
Protect the Interests of the Class
Hankinson v. Class Action R.T.G. Furniture Corp., 2016 WL 1182768 (S.D. Fla. March
28, 2016) (No. 15-81139-CIV), a consumer class action, denied discovery of customer lists
because they were unnecessary:
Although Plaintiffs must establish numerosity and ascertainability of the class for
it to be certified, the Court finds that the names and contact information of RTG's
customers are not relevant or proportional to the needs of the case. RTG has provided
sales information and totals, which would be used to establish numerosity, and it has
stipulated that it maintains records of its customers, so that class members can be
ascertained. Plaintiffs have not articulated a legitimate need for customer identities at this
stage of the litigation; indeed, the names and addresses of the customers would add
nothing to the argument for class certification. Therefore, RTG's objection to
interrogatory number 2 is sustained, and Plaintiffs' Motion to Compel an answer to
interrogatory number 2 is denied.
Id. at *2.
D. Proportionality Used to Bar Cumulative Discovery
Bingham v. Baycare Health System, 2016 WL 4467213 (M.D. Fla. Aug. 24, 2016) (No.
8:14-CV-73-T-23JSS), denied plaintiff’s motion to compel discovery of documents from a
nonparty, where the plaintiff had already obtained documents showing the same information
from another nonparty. The court stated at *4 that discovery should be barred “if the discovery
sought is unreasonably cumulative, duplicative, or can be obtained from some other source that
is more convenient, less burdensome, or less expensive.”
11. 7
E. Proportionality Does Not Expand Discovery by Excusing Irrelevance
Hankinson v. Class Action R.T.G. Furniture Corp., 2016 WL 1182768 (S.D. Fla. March
28, 2016) (No. 15-81139-CIV), a consumer class action, denied discovery of sales by an online
affiliate and out-of-state affiliates as not proportional because it was irrelevant:
… At this stage of the proceedings, the three named Plaintiffs are Florida residents who
purchased upholstery protection from a Florida corporation. Only the Florida corporation
is named as a defendant. The cause of action is based upon Florida law. Nothing in the
current posture of this action makes discovery from the out-of-state or online affiliates
relevant to this case; furthermore, the information sought from the affiliates is not
proportional to the needs of this Florida action.
Id. at *2.
Herman v. Seaworld Parks & Entm't, Inc., 2016 WL 3746421 (M.D. Fla. July 13, 2016)
(No. 8:14-CV-3028-T-35JSS), held that discovery as to the plaintiff’s contracts with third
parties, which assertedly would show his familiarity with contract terms similar to those in the
contract at issue, was irrelevant and burdensome. The court held that defendant’s narrowing of
the discovery request to make it less burdensome did not save the discovery requests under the
proportionality standard, because the discovery was still irrelevant. Id. at *3.
Steel Erectors, Inc. v. AIM Steel Int'l, Inc., 312 F.R.D. 673, 676–77 (S.D. Ga. 2016), a
breach of contract case by a subcontractor against a general contractor, held that while the
identity of the parent of the defendant contractor was proportional to the needs of the case, the
identity of that parent’s parent was not proportional. The court relied on the fact that foreign
entities and treaty rights might be implicated, that the case was simple, and that the defendant
contractor had stated in discovery responses that the ultimate parent had no involvement in the
contract dispute.
F. Proportionality Bars Relatively Burden-Free Relevant Discovery That
Would Not Likely Make a Difference
Haukereid v. Nat'l R.R. Passenger Corp., 816 F.3d 527, 534 (8th Cir. 2016), was a
personal-injury case involving an elderly passenger who may or may not have had dementia
falling to his death from an exit door of a moving train. The court affirmed the grant of summary
judgment, holding that the lower court properly concluded there was not adequate evidence that
any act or omission of defendant was the proximate cause of the passenger’s death. The court
used a “gross abuse of discretion” test:
Haukereid claims that the district court violated Federal Rule of Evidence 26 by
denying his motions which would have compelled Amtrak to produce 11 investigation
reports about passengers who had allegedly exited trains through windows of exit doors
and to produce a Rule 30(b)(6) witness to testify about “prior incidents involving
12. 8
passengers exiting moving trains operated by Amtrak.” Haukereid contends that these
reports and the testimony he sought are relevant to prove that Andrew did not fall out of a
window. Under Fed.R.Civ.P. 26(b)(1), a party “may obtain discovery regarding
nonprivileged matter that is relevant to [its] claim or defense and proportional to the
needs of the case.” Here, the district court did not grossly abuse its discretion by denying
Haukereid's discovery requests because the record already contained evidence about the
unlikelihood of a window exit. See Fed.R.Evid. 403. Moreover, Haukereid has not shown
that if his discovery requests had been granted, the evidence would have affected the
issue of proximate cause. …
(Citation omitted.) Judge Kelly dissented.
G. Proportionality Allows Broad Multi-Year Discovery of Possible Comparators
at Plaintiff’s Location, But Disallows a Broad Geographic Scope Without a
Particularized Showing of Need
Mergler v. ABF Freight Sys., Inc., 2016 WL 6125488 (M.D. Fla. Oct. 20, 2016) (No.
2:16-CV-165-FTM-38CM), an ADEA case, granted in part, and denied in part, defendant’s
proportionality objections to plaintiff’s requested discovery:
Here, the Court finds persuasive Plaintiff's argument that Defendant should be
compelled to produce responsive documents to Request No. 12. First, Plaintiff is correct
that in ADEA cases, the courts employ the framework from McDonnell Douglas, which
allows a plaintiff shift the burden of proof to a defendant. Washington v. United Parcel
Serv., Inc., 567 Fed.Appx. 749, 751-52 (11th Cir. 2014). Under the McDonnell Douglas
framework, the plaintiff may establish a prima facie case by showing four factors: he was
(1) a member of the protected age group, (2) subject to adverse employment action, (3)
qualified to do the job, and (4) replaced by a younger individual, or that his employer
treated employees who were not members of his protected class more favorably under
similar circumstances. Id. at 751.
To show a valid comparison, the plaintiff must show that he and “the comparators are
similarly situated in all relevant aspects.” Id. at 751. The burden of finding a proper
comparator is relatively high because “the quantity and quality of a comparator's
misconduct must be nearly identical to the plaintiff's misconduct.” Id. at 751-52. Once
the plaintiff establishes a prima facie case, the burden shifts to the defendant to proffer a
“legitimate, nondiscriminatory reason for taking the challenged employment action.” Id.
at 752. The plaintiff then must “demonstrate that the proffered reason was a pretext for
discrimination.” Id. Relevant to showing a pretext would be evidence that other
employees who engaged in acts against the defendant of comparable seriousness were
nevertheless retained or rehired, or statistics as to the defendant's employment policies
and practices. McDonnell Douglas, 411 U.S. at 805. Defendant does not dispute this.
Doc. 20 at 6-7.
13. 9
Under the above burden-shifting framework, the information Plaintiff seeks to
discover through Request No. 12 is relevant to making a valid comparison with other
comparators and to demonstrating Defendant's nondiscriminatory reason was a pretext
for discrimination. See Washington, 567 Fed.Appx. at 751-52; McDonnell Douglas, 411
U.S. at 805; Doc. 19 at 6. As Plaintiff points out, in the context of employment
discrimination, the courts have applied more liberal discovery rules. Wells v. Xpedx, No.
8:05-cv-2193-T-EAJ, 2007 WL 1200955, *6 (M.D. Fla. Apr. 23, 2007) (citing Sweat v.
Miller Brewing Co., 708 F.2d 655, 658 (11th Cir. 1983)). A plaintiff who bears the
burden to prove the defendant's proffered reasons are pretextual “should not normally be
denied the information necessary to establish that claim.” Marshall v. Westinghouse Elec.
Corp., 576 F.2d 588, 592 (11th Cir. 1978). To make a valid comparison with proper
comparators and to show pretext under the McDonnell Douglas framework, Plaintiff
needs to discover if other Operations Supervisors have engaged in similar or same
conduct as Plaintiff's and if Defendant has disciplined any of them at all. See McDonnell
Douglas, 411 U.S. at 805; Sweat, 708 F.2d at 658 (holding that statistical information
regarding the sex and age of persons employed by the defendant for a period of seven (7)
years is discoverable because the information may be relevant to a showing of pretext
even in a case alleging an individual instance of discrimination). Therefore, the scope of
the request cannot be limited to formal disciplinary records of other Operations
Supervisors whom Defendant actually had disciplined. See McDonnell Douglas, 411 U.S.
at 805; Doc. 20 at 8-9.
In addition, unlike the cases Defendant cites to, Plaintiff is seeking to discover the
disciplinary records of other Operations Supervisors for insubordination. Cf. Simionescu,
482 Fed.Appx. at 431 (finding that the documents pertaining to other employees are not
relevant because other employees occupied a different position from the plaintiff or had
not received comparable negative reviews of their job performance). Furthermore, as
Defendant admits, Request No. 12 asks Defendant to search through a file of ninety-two
(92) Operations Managers. Doc. 20 at 9; cf. Marshall, 576 F.2d at 592 (finding that the
discovery request is overly broad because the request encompassed about 7,500
employees).
The scope of the request, however, should be limited to Plaintiff's formal
employing unit, the Miami terminal, as Defendant argues. Doc. 20 at 8. In a case of an
individual complaint, “the most natural focus is upon the source of the complained of
discrimination – the employing unit or work unit.” Earley v. Champion Int'l. Corp., 907
F.2d 1077, 1084 (11th Cir. 1990). To expand discovery beyond the local employing unit,
the plaintiff must demonstrate “particularized need and likely relevancy.” Wells, 2007
WL 1200955, at *6. Relevant factors to the decision allowing broader discovery are “the
number and geographic dispersion of the employer's facilities, similarities or differences
in the work performed at different facilities, and whether or not a common decision
maker is involved in employment decisions.” Id. Here, the only factor Plaintiff argues in
favor of expanding the discovery scope is that the Regional Vice President and the
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Human Resources Director were involved in the decision by approving the
recommendation of the Branch Manager to terminate Plaintiff. Doc. 19 at 10. That alone
is not sufficient to expand the scope of discovery to include the entire Region 4. Chatman
v. National R.R. Passenger Corp., 246 F.R.D. 695, 698 (M.D. Fla. 2007) (holding that in
the employment discrimination case, the higher-level management's approval of the
recommendation to terminate the plaintiff alone is not sufficient to expand the discovery
scope to include the entire division).
Id. at *3–*4.
H. Proportionality Bars Discovery of Excessively Marginal Relevance
Flynn v. Square One Distribution, Inc., 2016 WL 2997673 (M.D. Fla. May 25, 2016)
(No. 6:16-MC-25-ORL-37TBS), was a personal-injury case in which the issue was whether the
warning on the water-sports product was adequate. Plaintiff sought discovery from a nonparty as
to the development of the warning label. The court held that the development of the label was
not particularly relevant, but noted the very broad standard of relevance under Rule 26. It then
held that the proportionality requirement limited the effect of that broad definition of relevance:
But to be discoverable, the requested information must also satisfy the
proportionality requirement meaning it must be more than tangentially related to the
issues that are actually at stake in the litigation. See Fed. R. Civ. P. 26(b)(1) (2015)5
; In
re: Blue Cross Blue Shield, File No, 2:13-CV-20000-RDP, 2015 WL 9694792, at * (N.D.
Ala. Dec. 9, 2015). The Court finds that the process that lead to the creation of the
warning label on the ski Flynn was using when he was injured is not proportionally
related to the issues at stake in the litigation, one of which is whether the warning – in its
final version – was sufficient. Therefore, the testimony Plaintiffs seek from Meddock is
not proportional to the needs of Plaintiffs' lawsuit against Defendant.
Id. at *4.
I. Proportionality Bars Apparently Burdensome Third-Party Discovery of
Defendant’s Customers
Gian Biologics, LLC v. Cellmedix Holdings, LLC, 2016 WL 6568014 (M.D. Fla. Nov. 4,
2016) (No. 2:15-CV-645-FTM-99CM), was a patent infringement case in which only $8,750 was
at stake. Plaintiff served 21 third-party subpoenas on defendant’s customers, each with 22
requests for production. Defendants objected that the discovery was not proportional to the
needs of the small-dollar case, and imposed too heavy a burden on its customers when defendant
itself might turn out to have the documents in question. The court agreed. Id. at *6.
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J. Proportionality Analysis Requires a Threshold Showing by the Discovering
Party
Edmondson v. Velvet Lifestyles, LLC, 2016 WL 5682591, at *6 (S.D. Fla. Oct. 3, 2016)
(No. 15-24442-CIV), was a Lanham Act trademark case in which the plaintiff models sought the
membership list of a swingers’ club that had allegedly misappropriated their likenesses in its
marketing. The Magistrate Judge deferred ruling until after the district court had decided a
pending motion to dismiss, and in the interim required additional information from both sides.
The court stated:
Because relevance is evaluated as part of a proportionality analysis of the
requested discovery, the merits of the claim are considered. … Therefore, the threshold
questions are whether the requested lists would be important in assisting the Parties to
determine the amount of damages available here for the alleged Lanham Act violation
and whether the requests meet the other factors listed for the proportionality assessment.
To demonstrate that the lists are within the permissible scope of discovery, Plaintiffs here
must make a “threshold showing” and confront the reality that “[m]ere speculation that
the information might be useful will not suffice” because litigants seeking to compel
discovery must “describe with a reasonable degree of specificity, the information they
hope to obtain and its importance to their case.” … Pursuant to this framework, the
Undersigned notes that Judge Lenard initially dismissed the sole Lanham Act sua sponte
with language which places the post-Order Amended Complaint in doubt. In the
dismissal Order, Judge Lenard unequivocally held that Plaintiffs “have not –– and likely
cannot –– state a claim for false advertising under the Lanham Act.” … Combined with
the earlier language that Plaintiffs “likely cannot” state a claim, the language permitting
an amended complaint implicitly cautioned Plaintiffs that they might not be able to state a
Lanham Act claim. … That dismissal motion is not yet ripe, but it generates an additional
factor for me to consider in the proportionality analysis: whether the requested discovery
would be relevant if the sole claim is subject to significant challenge.
(Citations omitted.)
K. Presence of Proportionality as a Defense to a Discovery Sanction
Lester v. City of Lafayette, 639 F. App'x 538, 543 (10th Cir. 2016), an ADA and
Rehabilitation Act wrongful-discharge case, reversed the award of attorneys’ fees to defendant,
running against plaintiff’s counsel, for seeking discovery of “from the City seeking admissions
and information from City supervisory personnel concerning their knowledge of the supervisor's
arrest and whether he was disciplined.” The court held that the discovery was clearly relevant
and proportional to the needs of the disparate-treatment case, and therefore was not sanctionable:
But as noted, one of the reasons included in Ms. Lester's termination letter was
the written reprimand for her improper conduct during the police call-out to her home.
Whether the supervisor received a reprimand for improper conduct regarding the police
16. 12
department during his DUI arrest therefore may have been relevant to the issue of
disparate treatment. See Fed.R.Civ.P. 26(b)(1) (providing for discovery of any relevant
nonprivileged matter that is proportional to the needs of the case); see also Trujillo v.
PacifiCorp, 524 F.3d 1149, 1159 (10th Cir.2008) (noting that “disparate treatment of
similarly situated employees contributes to a reasonable inference of pretext” which
would defeat the employer's claimed legitimate reason for discharging the employee).
Neither the magistrate judge nor the district court addressed Ms. Lester's disparate-
treatment-relevancy argument either in denying her motion to compel or in awarding
attorney fees to the City. More to the point, the inquiry as to the propriety of attorney-fee
sanctions is not whether the evidence sought was relevant, but whether reasonable people
could differ as to the appropriateness of Mr. Lamar's request for the evidence. Under
these circumstances, we think reasonable people could differ. Therefore, because the
attorney-fee award was based on a clearly erroneous assessment of the evidence, it was
improper.
VIII. Effects on Discovery of the Amendment to Rule 1
On December 1, 2015, Rule 1 was amended to impose on the parties—and implicitly on
their counsel—the duty “to secure the just, speedy, and inexpensive determination of every
action and proceeding.”
Megdal Associates, LLC v. La-Z-Boy, Inc., 2016 WL 4503337 (S.D. Fla. Feb. 1, 2016)
(No. 14-81476-CIV), relied on the amendment to Rule 1 to quash a defense interrogatory asking
for the factual and legal basis for all allegations in the Complaint.
The courts that have rejected these sorts of interrogatories have reasoned that
“requir[ing] answers for them would likely cause delay and unreasonable expense of time
energy, and perhaps money.” Hilt, 170 F. R. D. at 187. The Court agrees with the
reasoning and conclusion of Hilt, and notes that such broad interrogatories are not
consistent with Rule 1 of the Federal Rules of Civil Procedure. For, “if the Rules' drafters
intended to authorize interrogatories with an impact as wide as the entire case, they could
more realistically and easily have adopted a simple rule to require every pleading to be
accompanied by a statement of all facts supporting every allegation and the identification
of every knowledgeable person and supporting document. They did not do so.”
Id. at *6.
Similarly, Blake v. Batmasian, 2016 WL 4618931 (S.D. Fla. Sept. 2, 2016) (No. 15-CV-
81222), discussed the interplay of the proportionality requirement and the amendment to Rule 1:
“This Rule makes crystal clear the obligation of judges—and lawyers—to cooperate and control
the expense of litigation. This Court takes the amendments to the Federal Rules of Civil
Procedure seriously and demands that counsel also take them seriously.” Id. at *3.
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IX. Sanction for Failure to Provide a Rule 26(g) Certification
Gian Biologics, LLC v. Cellmedix Holdings, LLC, 2016 WL 6568014 (M.D. Fla. Nov. 4,
2016) (No. 2:15-CV-645-FTM-99CM), was a patent infringement case in which only $8,750 was
at stake. Defendant produced three sets of discovery responses, and stated at the hearing on a
motion to compel discovery that it still had more searches to do. It did not provide the
certification required by Rule 26(g) with any of these responses, but provided one late. The
court awarded plaintiffs the amount of their attorneys’ fees in bringing the motion to compel
because of the failure to produce documents timely—in an amount more than twice the amount
at stake—but declined to award additional sanctions under Rule 26(g) for failure to provide a
timely certification. The court explained that plaintiff’s failure to negotiate over search terms, in
a situation in which only $8,750 was at stake and the defendant was asserting that the discovery
requests were too burdensome, justified the late certification. Id. at *4.
X. Sanctions for Spoliation of Electronic Data
A. Proving Bad Faith
Houston v. C.G. Sec. Servs., Inc., 820 F.3d 855, 858–59 (7th Cir. 2016), found bad faith
from a party’s failure to respond to a third-party subpoena before it was added as a party, its
four-month delay after being added as a party before it began its search for documents, its delay
in providing information, its failure to inform plaintiff that the information it had was not
definitive, its repeated changes to the information, and one of its’ officials false or evasive
t4estinony. The court stated:
C.G. further argues that it did not conduct discovery in bad faith and that any
mistake or inadvertence on its part was nothing more than “bad record-keeping”
unworthy of sanction. To be sure, we have declined to impose sanctions where there is no
showing of bad faith or improper purpose. … Nonetheless, upon review, there is
sufficient evidence to support the district court's finding that C.G. acted in bad faith. For
instance, before C.G. was joined as a defendant, Houston served on C.G. a non-party
documents subpoena. C.G. never responded to this subpoena. Although Houston did not
seek relief for C.G.'s failure to comply with the subpoena, service of the subpoena alerted
C.G. to the need to search for and secure documents related to its work for Hyatt at the
New Year's Eve party. Nevertheless, C.G.'s initial search as part of its discovery
obligations did not take place until at least April 2013, roughly four months after C.G.
was added as a party. Furthermore, C.G. did not provide information sought by Houston
regarding the security personnel working for C.G. at the party in a timely manner, failed
to alert Houston that it could not provide reasonably definitive information about the
personnel, and then proceeded to continually change its answers about the personnel.
There is also evidence of false or, at best, reckless and evasive testimony offered by at
least one of C.G.'s witnesses, namely Charles Guynn, C.G.'s owner and president. Such
18. 14
conduct does not comport with C.G.'s claim that it did the best it could to provide
Houston with accurate, timely information in discovery.
(Citation omitted.)
Brown Jordan Int'l, Inc. v. Carmicle, 2016 WL 815827 (S.D. Fla. March 2, 2016) (No.
0:14-CV-60629), appeal pending, stated at *35:
If direct evidence of bad faith is unavailable, the moving party may establish bad
faith through circumstantial evidence.” … To establish bad faith through circumstantial
evidence, the moving party must establish:(1) evidence once existed that could fairly be
supposed to have been material to the proof or defense of a claim at issue in the case; (2)
the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the
spoliating party did so while it knew or should have known of its duty to preserve the
evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not
involving bad faith by the reason proffered by the spoliator. … “The party seeking the
sanctions must establish all four of these factors where there is no direct evidence of bad
faith.” …
B. Sanctions Awarded Where Bad Faith Shown or Implied
1. Default
Roadrunner Transp. Servs., Inc. v. Tarwater, 642 F. App'x 759, 759-60 (9th Cir. 2016)
(per curiam), was a misappropriation case brought by Roadrunner against its former employee,
John Tarwater. The court affirmed the entry of default against Tarwater for spoliation of
electronic information:
The district court did not abuse its discretion by entering default judgment as a
sanction for Tarwater's deletion of data from his laptop computers. … There was ample
evidence that Tarwater deleted emails and files on his laptops after receiving multiple
preservation demands from Roadrunner, and even after the court explicitly ordered
Tarwater to preserve “all data” on his electronic devices. In addition to Tarwater's own
admissions, a third-party computer expert concluded that files on one of Tarwater's
devices had been deleted and overwritten during the litigation, and that the deletions
likely “bypasse[d] the [computer's] Recycle Bin” through a user-initiated process. In light
of the evidence of spoliation, and the nature of Roadrunner's claims, the district court did
not clearly err in finding that Tarwater willfully destroyed the data, that Roadrunner had
been deprived of its “primary evidence of Tarwater's alleged misappropriation and related
misconduct,” and that a less drastic sanction could not have adequately redressed the
prejudice to Roadrunner. …
(Citations omitted.) The court stated that, even if amended Rule 37(e) were held applicable, the
court would have reached the same decision. Id. at 760 n.1. Finally, the court affirmed the
19. 15
award of $350,000 in attorneys’ fees to Roadrunner, and the entry of compensatory damages to
it.
2. Mandatory Adverse Inference
O'Berry v. Turner, 2016 WL 1700403 (M.D. Ga. April 27, 2016) (No. 7:15-CV-00064-
HL), involved a car-truck collision in which plaintiff had repeatedly asked for the driver’s log
and PeopleNet truck information maintained by defendant for the truck in question. Defendants
had no electronic document-preservation policy, and their practice was to have one employee
print out a paper copy of information specified in a litigation-hold letter, put it in a manila
envelope, and hold it until the information was requested. During the litigation, defendants
moved the computer server containing the information and the manila envelope to another
location, and many people with access to the information would not have known of its
importance. The court held that under the 2015 amendment to Rule 37, a mandatory adverse
inference was proper:
Based on the facts presented, the Court concludes that ADM and Archer Daniels
Midland Company acted with the intent to deprive Plaintiffs of using the driver's log and
additional PeopleNet information in litigation. As a practical matter, it is simply
irresponsible to print a single paper copy of information which one has a duty to preserve
under Fed. R. Civ. P. 26. At the very least, Mr. Causey should have made additional
efforts to ensure the preservation of these materials once the spoliation letter was
received on August 18, 2013. However, ADM had no written policy on the proper
procedure for preserving information that may be relevant in foreseeable litigation, at
least not that Mr. Causey was aware. In addition to lacking a document preservation
policy, ADM failed to ensure that these documents were maintained while in their sole
possession. The documents were moved from one building to another, during which
individuals unaware of their importance had access to and control over the information.
Further, no one from ADM or the law firm representing Defendants contacted Mr.
Causey about these documents or requested copies of these documents until January
2016, despite numerous requests for the documents by Plaintiffs' attorneys. All of these
facts, when considered together, lead the Court to conclude that the loss of the at-issue
ESI was beyond the result of mere negligence. Such irresponsible and shiftless behavior
can only lead to one conclusion—that ADM and Archer Daniels Midland Company acted
with the intent to deprive Plaintiff of the use of this information at trial.
Accordingly, the Court believes severe measures, such as those discussed in
subdivision (e)(2), are most appropriate to remedy the wrong that has occurred in this
case. Specifically, the Court considers the adverse inference jury instruction, outlined in
Rule 37(e)(2)(B), to be the proper sanction. The Court will instruct the jury that it must
presume that the lost information, including the driver's log and all other data that was
collected through PeopleNet, was unfavorable to ADM and Archer Daniels Midland
20. 16
Company. This presumption applies only to Defendants ADM and Archer Daniels
Midland Company, and not to the other Defendants involved in this lawsuit.
Id. at *4 (emphasis in original).
3. Adverse Inferences in Bench Trial, But No Further Sanctions
Brown Jordan Int'l, Inc. v. Carmicle, 2016 WL 815827 (S.D. Fla. March 2, 2016) (No.
0:14-CV-60629), appeal pending, is a pair of consolidated cases. Carmicle was a high-level
executive of Brown Jordan. Brown Jordan said it fired him for cause, and sued him for
violations of the Computer Fraud and Abuse Act and the Stored Communications Act, breach of
fiduciary duty and the duty of loyalty, conversion, unjust enrichment, and breach of contract.
Carmicle sued it for breach of contract and fraudulent misrepresentation. When it was already
clear that there was a dispute, Carmicle remotely locked his company-issued laptop, and then
claimed that he forgot the PIN he had used and was actually trying to lock a laptop he claimed to
have bought from the company, and which he had left with the company while ownership was
being discussed. Carmicle also remotely wiped his company-issued iPad, which he had
allegedly used to take pictures of other employees’ e-mails. The court held that the amended
Rue 37(e) should be used, and that it made no difference. It applied adverse inferences in
deciding the bulk of the suit for Brown Jordan. The court denied Brown Jordan’s request for
stronger sanctions:
The Court declines to impose the additional sanctions requested by the Brown
Jordan Parties, including dismissal of Carmicle's claims, entry of default against him, and
attorneys' fees. The Court's inherent powers are potent and “must be exercised with
restraint and discretion.” … Dismissal and default are the most severe sanctions available
to the Court, and are therefore appropriate only when less drastic measures are
insufficient. … That is not the case here, particularly in light of the Court's ultimate
conclusion that Carmicle's employment was properly terminated for cause and that
Carmicle is not entitled to any profits interests or severance pay. With respect to
attorneys' fees, the Court notes that Magistrate Judge Brannon has awarded attorneys'
fees and costs to the Brown Jordan Parties in connection with certain discovery violations
by Carmicle and has ordered additional briefing on other issues, which remain
outstanding. … While the fees requested in the Brown Jordan Parties' motion for
spoliation sanctions are not exactly the same as those awarded by Magistrate Judge
Brannon for discovery violations, the Court concludes that an award of additional
attorneys' fees for Carmicle's spoliation of evidence is unnecessary. The Court's explicit
finding of bad faith and consequent decision to draw adverse inferences against Carmicle
are sufficient.
Id. at *37 (citations omitted).
21. 17
C. Sanctions Denied Where There Was a Failure of Proof
Applebaum v. Target Corp., 831 F.3d 740 (6th Cir. 2016), was a products-liability case
involving an alleged brake defect in a bike the plaintiff purchased, which she claimed caused her
to fall and injure herself. A jury disagreed and handed down a defense verdict. Plaintiff
appealed, arguing that it was error to deny an adverse-inference instruction for spoliation of
electronic data that she thought would have been entered into defendant’s computer systems.
The court disagreed, and affirmed the defense verdict. The court explained:
It bears adding that to the extent Applebaum sought an adverse inference
instruction for spoliation of electronic information, a 2015 amendment to Civil Rule
37(e)(2) required her to show that Target had “intent” to deprive her of the information's
use. A showing of negligence or even gross negligence will not do the trick. Fed. R. Civ.
P. 37, 2015 Advisory Comm. Note. Applebaum would not have been able to show any
degree of fault for Target's alleged destruction of records, because she cannot show that
Target destroyed the records—if they even existed in the first place—after it was put on
notice of litigation.
(F.3d page information not available.)
Marshall v. Dentfirst, P.C., 313 F.R.D. 691, 695 (N.D. Ga. 2016), applied the amended
Rule 37(e) to the ADEA plaintiff’s request for sanctions for the defendant’s reformatting and
recycling of the computer she had used at work, instead of preserving it. However, the court
held that the result would have been the same under pre-amendment Eleventh Circuit precedent.
The court denied the sanction because plaintiff could not show there was any relevant
information on the computer, or that the defendant would have been on notice of her claim in
time to preserve whatever was there.
