United States District Court, M.D. Florida, Tampa Division
S. SNEED UNTIED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiff's Second Amended
Motion to Compel Against Five Bucks Drinkery
(“Motion”). (Dkt. 119.) Defendant filed a
response in opposition. (Dkt. 125.) For the reasons that
follow, the Motion is granted in part and denied in part.
Second Amended Complaint, Plaintiff brings claims against
Five Bucks Drinkery LLC (“Five Bucks”) for
aggravated battery and perpetuating a hate crime. (Dkt. 71.)
Plaintiff's claims stem from an alleged altercation
between Plaintiff and employees of Five Bucks. (Id.)
On July 19, 2017, the Court entered its Case Management and
Scheduling Order setting a discovery deadline of March 9,
2018, a dispositive motion deadline of April 6, 2018, and
trial in September 2018. (Dkt. 57.) On July 30, 2017,
Plaintiff sent Five Bucks a Request for Production. (Dkt.
119-1.) Five Bucks provided its Response to Plaintiff's
Request for Production on August 29, 2017, objecting to the
majority of the requests. (Dkt. 119-2.) Upon receiving
Defendant's responses, Plaintiff deemed the responses
insufficient and raised this issue with Defendant. (Dkt.
119-3.) However, the parties could not reach an agreement. As
a result, on March 2, 2018, Plaintiff filed his Motion. (Dkt.
maintain great discretion to regulate discovery.
Patterson v. U.S. Postal Serv., 901 F.2d 927, 929
(11th Cir. 1990). The court has broad discretion to compel or
deny discovery. Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011).
Through discovery, parties may obtain materials that are
within the scope of discovery, meaning they are
nonprivileged, relevant to any party's claim or defense,
and proportional to the needs of the case. Fed.R.Civ.P.
26(b)(1). The United States Supreme Court held that the term
“relevant” in Rule 26 should encompass “any
matter that bears on, or that reasonably could lead to other
matter that could bear on, any issue that is or may be in the
case.” Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351-52 (1978). Federal Rule of Civil Procedure 37
allows any party “on notice to other parties and all
affected persons . . . [to] move for an order compelling
disclosure or discovery.” Fed.R.Civ.P. 37.
moves to compel Defendant to produce documents in response to
Request Numbers 1, 2, 3, 4, 7, and 9. (Dkt. 119.) In Request
Number 1, Plaintiff seeks “[a] copy of all video
recordings from the security cameras in which Plaintiff
appears the night of the incident.” (Dkt. 119-2 at 1.)
In Request Number 9, Plaintiff seeks the “[e]mployment
history for Bradley Hegarty and Panagiotis Costandinos
Zazaliaris.” (Dkt. 119-2 at 3.) In response to both
requests, Defendant states that it “is not in
possession, custody or control” of the requested
materials. (Dkt. 119-2 at 1, 3.) Specifically, Defendant
maintains that it does not possess any video recordings from
the night of the incident and it did not employ Hegarty or
Zazaliaris and thus, does not possess their employment
records. (Id.) Plaintiff argues that Defendant is
attempting to conceal evidence. (Dkt. 119 at 2.) However,
Federal Rule of Civil Procedure 34 requires production only
of documents in a “party's possession, custody, or
control.” Fed.R.Civ.P. 34(a)(1). Therefore,
Plaintiff's Motion is denied as to Request Numbers 1 and
Number 2 seeks the “names and address of all witnesses
that Defendant wishes to depose.” (Dkt. 119-2 at 1.)
Similarly, Request Number 3 seeks the official list of all of
Defendant's employees “who were employed by the
company at the time of the incident.” (Id.)
Defendant objects to both requests stating, in part, that
they are improper under Rule 34. (Id. at 1-2.)
Defendant argues that Plaintiff cannot require Defendant to
create a document that identifies all witnesses it intends to
depose or that identifies all of its employees. (Dkt. 125 at
3.) The Court agrees. Rule 34 limits a request for production
to documents which are in the opposing “party's
possession, custody, or control” and does not require a
party to create new documents for production. Fed.R.Civ.P.
34(a)(1); Kaplan v. Kaplan, 2:10-CV-00237-CEH-SPC,
2010 WL 11474437, at *1 (M.D. Fla. Oct. 8, 2010) (“Rule
34 only requires production of documents already in
existence.”). Therefore, Request Numbers 2 and 3 are
improper under Rule 34 to the extent they require Defendant
to create new documents. Nevertheless, to the extent
Defendant has a list of employees who were employed during
the time of the incident at issue in the case, Defendant
shall supplement its production and produce the responsive
Number 4 seeks “[a] copy of the city, county and state
permits for selling alcoholic beverages in and outside the
bar, and all business permits.” (Dkt. 119-2 at 2.) In
response, Defendant objects as the request is not reasonably
calculated to lead to the discovery of admissible evidence.
(Id.) In his Second Amended Complaint, Plaintiff
alleges Defendant committed aggravated battery and
perpetuated a hate crime against Plaintiff. (Dkt. 71.)
Defendant's alcohol permits do not bear on any issue that
is or may be in this case. See Oppenheimer Fund,
Inc., 437 U.S. at 351-52. Thus, Request Number 4 seeks
information that is not relevant, and Plaintiff's Motion
is denied as to Request Number 4.
Request Number 7, Plaintiff seeks “[a] copy of any
written warnings or any disciplinary action taken regarding
the incident.” (Dkt. 119-2 at 2.) In response,
Defendant objects to the request as vague and ambiguous.
(Id.) Defendant argues that the request does not
specify who authored the warning or who received the warning.
(Dkt. 125 at 4.) In Plaintiff's Second Amended Complaint,
Plaintiff alleges that he was arrested as a result of the
incident. (Dkt. 71 ¶ 22.) Hence, it is unclear whether
Request Number 7 seeks written warnings or disciplinary
action regarding himself or Defendant's employees.
However, in his Motion, Plaintiff specifies that he
“requests proof of any managerial actions taken against
the perpetrators, or any actions taken to prevent further
abuse of other customers.” (Dkt. 119 at 3.)
Disciplinary action or written warnings given to
Defendant's employees as a result of the incident may be
relevant to Plaintiff's claims. Therefore, Defendant is
directed to supplement its response with any written warnings
or materials documenting disciplinary action taken against
Defendant's employees as a result of Plaintiff's
1. Plaintiff's Second Amended Motion to Compel Against
Five Bucks Drinkery (Dkt. 119) is GRANTED in part ...