United States District Court, M.D. Florida, Jacksonville Division
Patricia D. Barksdale United States Magistrate Judge
the Court is the defendants' motion for relief from the
Court's order compelling them to produce documents and
response to the plaintiff's notice of their noncompliance
with that order. Doc. 42. The plaintiff opposes the
motion and requests an award of fees and expenses incurred in
preparing the motion to compel, attending the hearing on the
motion, preparing the notice of noncompliance with the
Court's order, and responding to the defendants'
motion. Doc. 43.
March 3, 2017, the plaintiff moved to compel the defendants
to produce financial documents and documents that must be
produced under Federal Rule of Civil Procedure 26.
Doc. 34. The defendants did not respond to the
motion. On March 30, 2017, the Court conducted a hearing on
the motion. Doc. 38. The defendants' counsel did
not attend. See Doc. 38. Before filing the
motion, the plaintiff's counsel tried to confer with the
defendants' counsel by telephone and email “on
multiple occasions” but received no response. Doc.
34 at 7. Presented with no reason to do otherwise, the
Court granted the motion to compel and directed the
defendants to produce the requested documents by April 10,
2017. Doc. 39. The Court stated, “Failure to
comply with [the] order will result in an order to show cause
why sanctions should not be entered against the defendants or
their counsel.” Doc. 39 at 3.
April 11, 2017, the plaintiff filed a notice informing the
Court the defendants had failed to provide the documents as
directed. Doc. 40. The plaintiff also filed a notice
informing the Court that the parties had been unable to
resolve the case at the March 14, 2017, mediation. Doc.
41. Later that day, the defendants filed the motion
before the Court. Doc. 42.
defendants argue they should be relieved from complying with
the Court's order compelling production of documents
because (1) they and their counsel believed the case either
had been resolved or was close to being resolved, and (2)
they have no responsive documents. Doc. 42 at 2-3.
They assert the plaintiff moved to compel after the parties
had attended mediation and without contacting their counsel
on the telephone number she had provided. Doc. 42 at
1. They point to their counsel's voluntary efforts
above what was required of her to attempt to settle the case,
including agreeing that the defendants “would
not move forward and seek a ruling on the Motions to
Dismiss the Amended Complaint (as pled).” Doc. 42
at 3 (emphasis in original). They assert the plaintiff
was and is aware they do not have “any of the
information specifically sought because the computer
systems/hardware and software[ ] have been removed or
otherwise disposed of since 2010.” Doc. 42 at
2. They assert their responses to the relevant discovery
requests were “none.” Doc. 42 at 3. They
state their counsel had informed the plaintiff's counsel
at mediation that the defendants would check to make sure
they had no other responsive documents or information.
Doc. 42 at 2.
plaintiff responds the defendants' reliance on
confidential settlement discussions is inappropriate; in any
event, the case remains unresolved; it filed the motion to
compel before-not after-mediation, and the defendants'
counsel was aware of the motion to compel; its counsel had
attempted on several occasions to confer both before filing
the motion and to schedule a hearing on the motion; the
responses to the discovery requests at issue did not indicate
the defendants had no responsive documents; and the
“belated argument” that they have nothing to
produce “is not credible.” Doc. 43 at
defendants' arguments do not warrant relief from the
previous order. Their counsel's belief that the case was
“mov[ing] toward resolution, ” see
Doc. 42 at 3, however sincere, is irrelevant. The
case did not resolve at mediation, and counsel offers no
justification for any belief that the motion to compel-filed
before mediation-was moot. Indeed, that the Court rescheduled
the hearing on the motion to compel after the parties had
participated in mediation, see Doc. 36, should have
indicated the issue remained.
representation that the defendants have no responsive
documents is insufficient. Contrary to their assertion, the
defendants' responses to the requests for production at
issue in the motion to compel-numbers 34 through 36-were not
“None” but instead were objections asserting the
requests sought irrelevant information. See Doc.
34-1 at 8. Likewise, the plaintiff's counsel
represented during the hearing on the motion and in the
motion itself that the defendants had identified but failed
to produce documents required to be disclosed under
Federal Rule of Civil Procedure
26(a)(1)(A)(iii)-(iv). The Court cannot compel the
defendants to produce nonexistent documents, but to the
extent they do not have responsive documents, they must
supplement their discovery responses and initial disclosures
to reflect that fact.
Court denies the defendants' motion for relief from the
Court's order compelling production of documents,
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
Cir. 1997). Additionally, if a party “fails to obey an
order to provide or permit discovery, … the court
where the action is pending may issue further just
orders.” Fed.R.Civ.P. 37(b)(2)(A).[*] “Instead of or in
addition to [one of the orders listed in Rule 37(b)(2)(A)],
the court must order the disobedient party, the attorney
advising that party, or both to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless
the failure was substantially justified or other
circumstances make an award of expenses unjust.”
Court directs the defendants, by June 9, 2017, to show cause,
if any, why the Court should not require them or their
counsel to pay the plaintiffs reasonable expenses incurred in
bringing the motion to compel or take other action against
them for failure to comply with the order.