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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 Irina Chevaldina (“Defendant” or “Chevaldina”). [D.E. 75]. Chevaldina responded to Plaintiff's motion on November 20, 2017 [D.E. 87] to which Plaintiff replied on November 21, 2017. [D.E. 89]. 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 Defendant 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 Defendant for (1) reasonable attorney fees and expenses as permitted under law, and (2) that Defendant provide Plaintiff with any fees or expenses that were attributable to Plaintiff's expenditures and/or the work of its attorneys. If Defendant decided to settle the case, Plaintiff alleges that Defendant was also obligated to provide Plaintiff with a reasonable amount in attorneys' 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 attorney 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 Defendant agreed with Katz to drop a substantial claim against Defendant in excess of $100, 000. Because Plaintiff alleges that it has been deprived of a reasonable attorney fee award, Plaintiff seeks judgment against Defendant 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 Chevaldina to provide supplemental responses to Plaintiff's interrogatories 1 and 3, and require Chevaldina to pay reasonable expenses, including attorneys' fees, incurred in filing its motion. Plaintiff's motion relates to two paragraphs in Chevaldina's counterclaim concerning allegations that Plaintiff violated the Driver's Privacy Protection Act (“DPPA”). Specifically, paragraph 21 of the counterclaim alleges that “[a]s of the filing of this pleading, and in spite of Defendant Counter-Plaintiff's notification, [Plaintiff] had not taken any steps to abate, address, or rectify the violations laid forth herein and such violations continue day after day.” [D.E. 35] (emphasis added).[2] Moreover, in paragraph 22 of Chevaldina's counterclaim, Chevaldina alleges that Plaintiff's “intentional unlawful inclusion” of her personal information “continues to present a serious risk of identity theft, as well as ongoing harm.” [D.E. 35]. As a result of these allegations, the counterclaim alleges that Plaintiff is liable for actual and punitive damages.

         Plaintiff's first interrogatory requests additional information concerning the allegation in paragraph 21 because Chevaldina purportedly notified Plaintiff of its violations of the DPPA prior to the date of Chevaldina filing her counterclaim. Interrogatory 1 states the following:

With respect to the allegations in Paragraph 21 of the counterclaim, identify each communication in which you notified CIR of the alleged violation of the DPPA. For each such communication, (1) state whether it was oral or in writing or both, (2) set forth the date of the communication, (3) identify any document concerning the communication, and (4) identify all persons sending the communication and all persons receiving the communication.

         In response to interrogatory 1, Chevaldina responded with the following paragraph:

Defendant objects to the first interrogatories as unduly and unnecessarily burdensome to the extent that it seeks information that is matter public record, already in Plaintiff's possession, or otherwise readily available to Plaintiff, and, therefore, may be accessed and obtained by Plaintiffs with less burden than plaintiff can identify and provide requested information. CIR has in its possession and control all communications between CIR and Defendant. CIR is well aware of each facts, date, persons receiving communications between Plaintiff and Defendant. Defendant believes this Plaintiff's unreasonable request was made for improper purposes such as harassment, delay, unduly burdensome, and expensive. Without waiving these objections, Defendant states that CIR received communication from Defendant notifying of CIR's violation of DPPA on: December 23, 2016 (Defendant's Motion to Quash), Defendant's Reply in Opposition to CIR's Motion to Quash, March 2, 2017 Defendant's Objections to report and recommendation, Multiple meet and confer email communication between Defendant and CIR (CIR has all these emails in its possession and control).

         Chevaldina relies on three filings in her response to interrogatory 1 - her motion to quash, her reply in opposition to Plaintiff's motion to quash, and her objections to the Court's Report and Recommendation - as well as unspecified email communications between the parties. Plaintiff argues that Chevaldina's response is inadequate because she only included boilerplate objections along with three documents on the docket that never mention the DPPA. As for Chevaldina's contention that Plaintiff was notified in meet and confer emails, Plaintiff claims that it is unaware of any communications where Chevaldina mentioned the DPPA. As such, Plaintiff requests that Chevaldina be compelled to specify which communications she is relying upon for the allegation that Plaintiff was notified of its violations of the DPPA.[3]

         Plaintiff's third interrogatory requests that Chevaldina “[d]escribe any other injury . . . incurred as a consequence of CIR's alleged violation of the DPPA.” [D.E. 75]. Chevaldina responded to interrogatory 3 and argued that the term “other injury” was vague and that the question was outside the scope of her counterclaim:

Defendant objects to these interrogatories to the extent that they are over-broad, unduly burdensome, vague, ambiguous, confusing, require speculation to determine their meaning or use imprecise specifications of the information sought. Plaintiff did not define the term “other injury”, therefore, Defendant is not able to understand this question. Moreover, this ...

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