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Center for Individual Rights v. Chevaldina

United States District Court, S.D. Florida

November 29, 2017

CENTER FOR INDIVIDUAL RIGHTS, Plaintiff,
v.
IRINA CHEVALDINA, Defendant.

          ORDER ON PLAINTIFF'S MOTION TO COMPEL

          EDWIN G. TORRES UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Center for Individual Rights' (“Plaintiff”) motion to compel against non-party Gelber, Schacter, & Greenberg, P.A. (“GSG”) to produce documents in response to a subpoena served on August 18, 2017. [D.E. 76]. GSG responded to Plaintiff's motion on November 6, 2017 [D.E. 78] and Irina Chevaldina (“Defendant” or “Chevaldina”) responded on November 20, 2017. [D.E. 84]. Plaintiff timely replied to both responses on November 21, 2017. [D.E. 88]. Therefore, Plaintiff's motion is ripe for disposition. After careful consideration of the motion, response, reply, relevant authority, and for the reasons discussed below, Plaintiff's motion is GRANTED in part and DENIED in part.

         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 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 Chevaldina 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 Chevaldina for (1) reasonable attorney fees and expenses as permitted under law, and (2) that Chevaldina provide Plaintiff with any fees or expenses that were attributable to Plaintiff's expenditures and/or the work of its attorneys. If Chevaldina decided to settle the case, Plaintiff alleges that Chevaldina 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 attorneys' 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 Chevaldina agreed with Katz to drop a substantial claim against Chevaldina in excess of $100, 000. Because Plaintiff alleges that it has been deprived of a reasonable attorney fee award, Plaintiff seeks judgment against Chevaldina in an amount of no less than $105, 000 - including reasonable costs and expenses in accordance with 28 U.S.C. § 1920.

         II. ANALYSIS

         Plaintiff's motion seeks to compel GSG to produce documents in response to a subpoena served on August 18, 2017. The purpose of the subpoena relates to a state court lawsuit in which Katz and other related entities sued Chevaldina in a case entitled RK/FL Mgmt., Inc. v. Irina Chevaldina, et al. Case No. 11-17842.[2] Plaintiff alleges that Chevaldina agreed to resolve her motion for fees in her federal appeal (in which Plaintiff was representing her) in exchange for Katz dropping a claim against Chevaldina in a state court case. Plaintiff believes that GSG negotiated that agreement with Chevaldina's complete knowledge and approval and that the requested documents establish that Chevaldina breached her retainer agreement.

         The subpoena requested GSG to produce documents by no later than September 7, 2017. Specifically, the subpoena sought three categories of documents: (1) documents created on or after December 1, 2015 reflecting any communications with the plaintiffs in the state court litigation in relation to fees and costs, (2) documents created on or after December 1, 2015 reflecting any communications with the plaintiffs in the state court case concerning Chevaldina's motion for attorneys' fees in the federal appeal or any effort to resolve it, and (3) documents created on or after December 1, 2015 reflecting any communications between GSG and CIR concerning either of the two litigations.

         After receiving the subpoena, GSG conducted a search for relevant communications and responded with various objections on August 31, 2017. GSG and Plaintiff subsequently reached an agreement on the universe of relevant documents that would be subject to production. However, Chevaldina contacted GSG and directed her former law firm to not release any materials in response to the subpoena. On October 31, 2017, GSG informed Plaintiff that it would not produce any documents in accordance with Chevaldina's instructions. As such, GSG has produced no documents in response to the subpoena because it believes that it has a responsibility to safeguard the contents of any privileged materials on behalf of its former client.[3]

         In response[4], Chevaldina argues that Plaintiff's motion should be denied because Plaintiff waited too long to file its motion to compel. Chevaldina contends that GSG responded to Plaintiff's subpoena on August 31, 2017 and that Plaintiff's motion - which was filed on November 3, 2017 - was filed after thirty days of the date the discovery dispute arose. Because Plaintiff's motion violates Local Rule 26.1(g)(1), Chevaldina concludes that Plaintiff's motion should be summarily denied.

         Chevaldina also argues that Plaintiff's motion should be denied because the first two categories of documents requested can allegedly be obtained on state court dockets. For example, Chevaldina contends that all motions, responses, oppositions, and orders are freely available to the public. As for the third category of documents requested, Chevaldina argues that Plaintiff is already in possession of the communications that Plaintiff had with GSG and therefore the subpoena was pursued for an improper purpose. And finally, Chevaldina suggests that Plaintiff has failed to demonstrate how the requested documents are relevant to this litigation.

         The first issue presented is whether Plaintiff violated the Local Rules in filing its motion to compel thirty days after the date the discovery dispute arose. Local Rule 26.1 provides the following:

All motions related to discovery, including, but not limited to, motions to compel discovery and motions for protective order, shall be filed within thirty (30) days of the occurrence of grounds for the motion. Failure to file a discovery motion within thirty (30) days, absent a showing of reasonable cause for a later filing, may constitute a waiver of the relief sought. Neither this thirty (30) day period nor any other Court-ordered scheduling deadlines may be extended by stipulation.

S.D. Fla. L.R. 26.1(g)(1) (emphasis added). Courts in the Eleventh Circuit have interpreted an “occurrence” broadly despite any definition for the term in the local rules. See, e.g., Manno v. Healthcare Revenue Recovery Grp., LLC, 2012 WL 1409532, at *2 (S.D. Fla. Apr. 23, 2012) (‚ÄúRegardless of the specific triggering event, the key point is that once a party seeking discovery learns that the opposing party objects to providing the requested discovery, the ...


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