United States District Court, M.D. Florida, Jacksonville Division
Patricia D. Barksdale United States Magistrate Judge.
putative collective action under the Fair Labor Standards
Act, 29 U.S.C. §§ 201-19, the plaintiff alleges the
defendant failed to pay her overtime wages as required. Doc.
1. Before the Court is the defendant's motion to compel
her to produce her calendars and coordinate with the
defendant's counsel to schedule her continued deposition
and award expenses incurred in preparing and filing the
motion. Doc. 16. She has not responded to the motion, and the
time for doing so has passed.
Rule of Civil Procedure 1 provides that the rules
“should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and
inexpensive determination of every action and
proceeding.” The addition of “and the
parties” places shared “responsibility to employ
the rules in the same way.” Fed.R.Civ.P. 1, Advisory
Comm. Notes (2015 Amend.). “Effective advocacy is
consistent with-and indeed depends upon-cooperative and
proportional use of procedure.” Id.
Rule of Civil Procedure 26 provides that a party “may
obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional
to the needs of the case, considering the importance of the
issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.”
Fed.R.Civ.P. 26(b)(1). It further provides that a party who
has responded to a request for production “must
supplement or correct its disclosure or response … in
a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or
incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during
the discovery process or in writing.” Fed.R.Civ.P.
Rule of Civil Procedure 37 provides that a party
“seeking discovery may move for an order compelling an
answer, designation, production, or inspection … [if]
a party fails to answer an interrogatory submitted under Rule
33 … [or] fails to produce documents … as
requested under Rule 34.” Fed.R.Civ.P.
37(a)(3)(B)(iii), (iv). It further provides that if a court
grants a motion to compel discovery, “the court must,
after giving an opportunity to be heard, require the party
… whose conduct necessitated the motion, the party or
attorney advising that conduct, or both to pay the
movant's reasonable expenses incurred in making the
motion, including attorney's fees.” Fed.R.Civ.P.
37(a)(5)(A). “But the court must not order this payment
if: (i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court
action; (ii) the opposing party's nondisclosure,
response, or objection was substantially justified; or (iii)
other circumstances make an award of expenses unjust.”
Fed.R.Civ.P. 37(a)(5)(A)(i-iii). Nondisclosure, a response,
or an objection is substantially justified if reasonable
people could differ on its appropriateness. Maddow v.
Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th
26, 2016, the defendant served the plaintiff with requests
for production. Doc. 16 at 2; Doc. 16-1 ¶ 10; Doc. 16-3.
Among them were requests for “[a]ny and all documents
that evidence the time Plaintiff claims to have actually
worked but was not paid all remuneration” (request 13)
and “any and all documents that relate to, bear upon[,
] or provide evidence relating to Plaintiff's response to
the Court's Interrogatory No. 6(c) that Plaintiff worked
five (5) hours of over-time per week” (request 17).
Doc. 16 at 2; Doc. 16-3 at 6-7. For the former request, she
responded she had no such documents other than what she had
already produced. Doc. 16-4 at 4. For the latter request, she
directed the defendant to a log of hours worked. Doc. 16-4 at
5. She produced 402 pages of documents, which included two
versions of a document purporting to show the amount of
overtime she worked each week (to the minute) and whether she
received regular or overtime pay for that time. Doc. 16 at 2.
November 4, 2016, the defendant deposed the plaintiff. Doc.
16 at 3. She testified she had kept a “contemporaneous
record” of the hours she worked on calendars she had
not produced in response to the requests for production, and
she had relied on those calendars to create the log she had
referenced in her response to the requests for production.
Doc. 16 at 3. The defendant's counsel asserted the
calendars were responsive to the requests for production, and
the plaintiff agreed to produce them by November 25, 2016.
Doc. 16 at 3. The parties agreed to continue her deposition.
Doc. 16 at 3.
November 22, 2016, the defendant's counsel sent an e-mail
requesting assurances that the plaintiff's counsel would
produce the calendars and dates to continue the deposition,
but the plaintiff's counsel did not respond. Doc. 16 at
3. On November 29, the defendant's counsel sent a letter
renewing those requests, stating, “Please provide the
calendars to me by close of business on November 30, 2016, or
I will file a motion to compel.” Doc. 16 at 3; Doc.
16-7. The plaintiff's counsel again did not respond. Doc.
16 at 3.
calendars respond to the defendant's requests for
production; they relate to the plaintiff's claim; and she
knew she had not produced them at least as early as when the
defendant's counsel informed her counsel of that fact.
Because she was required to supplement her responses to the
defendant's requests for production with the calendars,
compelling her to produce them is warranted. Her counsel also
must work with the defendant's counsel to coordinate
dates for the continuation of her deposition.
Court grants the defendants' motion to
compel, Doc. 16; directs the plaintiff, by
January 13, 2017, to produce the calendars
she referenced in her November 4, 2016, deposition that she
has not already produced; and directs her
counsel, by January 13, 2017, to provide the
defendant's counsel with three dates from now until
February 3, 2017, on which she and her
counsel are available to continue the deposition.
the Court grants the defendant's motion to compel, it
must, after giving the plaintiff an opportunity to be heard,
require her or her counsel to pay the defendant's
“reasonable expenses” incurred in bringing the
motion. SeeFed. R. Civ. P. 37(a)(5)(A). The Court
orders the plaintiff, by January 20,
2017, to show cause, if any, why the Court should
not require her or her counsel to pay the defendant's
reasonable expenses incurred in bringing the motion to
compel. Alternatively, her counsel may confer with opposing
counsel to resolve the issue of expenses and inform the Court
by that date whether they have resolved it.