Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Center for Individual Rights v. Chevaldina

United States District Court, S.D. Florida

May 30, 2018

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

          OMNIBUS ORDER ON DISCOVERY MOTIONS

          EDWIN G. TORRES UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on several discovery motions that are ripe for disposition. [D.E. 142, 152, 154, 155, 159, 164, 166, 172, 178, 182, 183]. Having reviewed the motions, responses, replies, relevant authority, and record evidence submitted in support of or in opposition to the same, the Court's ruling on each motion follows.

         I. BACKGROUND

         This is an action for breach of contract. The complaint - filed on March 11, 2016 [D.E. 1] - alleges that the Center for Individual Rights (“Plaintiff” or “CIR”) successfully represented Irina Chevaldina (“Defendant” or “Chevaldina”) 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. APPLICABLE LEGAL PRINCIPLES AND LAW

         Under the Federal Rules, a party may pose interrogatories related to any matter into which Rule 26(b) allows inquiry, Fed.R.Civ.P. 33(a)(2), request the production of any documents that fall within the scope of Rule 26(b), Fed.R.Civ.P. 34(a), and serve requests to admit certain matters within the scope of Rule 26(b)(1), Fed.R.Civ.P. 36(a)(1). Rule 26(b) also allows discovery “through increased reliance on the commonsense concept of proportionality.” In re: Takata Airbag Prod. Liab. Litig., 2016 WL 1460143, at *2 (S.D. Fla. Mar. 1, 2016) (quoting Chief Justice John Roberts, 2015 Year-End Report on the Federal Judiciary 6 (2015)). “Proportionality requires counsel and the court to consider whether relevant information is discoverable in view of the needs of the case.” Tiger v. Dynamic Sports Nutrition, LLC, 2016 WL 1408098, at *2 (M.D. Fla. Apr. 11, 2016). If the opposing party objects to interrogatories or requests, the requesting party may then file a motion to compel production pursuant to Fed.R.Civ.P. 37, but only after its counsel, in good faith, confers with opposing counsel to resolve discovery disputes without court intervention. See Fed. R. Civ. P. 37(a)(1).

         The Federal Rules afford the Court broad authority to control the scope of discovery, Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1307 (11th Cir. 2011), but ''strongly favor full discovery whenever possible.'' Farnsworth v. Procter & Gamble Co., 758 F.3d 1545, 1547 (11th Cir. 1985). Courts must consequently employ a liberal and broad scope of discovery in keeping with the spirit and purpose of these rules. See Rosenbaum v. Becker & Poliakoff, P.A., 708 F.Supp.2d 1304, 1306 (S.D. Fla. 2010) (collecting cases). The “overall purpose of discovery under the Federal Rules is to require the disclosure of all relevant information, so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts, and therefore embody a fair and just result.” State Nat'l Ins. Co. v. City of Destin, 2015 WL 11109379, at *1 (N.D. Fla. Sept. 1, 2015).

         However, while the scope of discovery is broad, it is not without limits. See Washington v. Brown & Williamson Tobacco, 959 F.2d 1566, 1570 (11th Cir. 1992); Rossbach v. Rundle, 128 F.Supp.2d 1348 (S.D. Fla. 2000) (citing Oppenheimer Fund v. Sanders, 437 U.S. 340 (1978)). To show that the requested discovery is otherwise objectionable, the onus is on the objecting party to demonstrate with specificity how the objected-to request is unreasonable or otherwise unduly burdensome. See Rossbach, 128 F.Supp.3d at 1354 (citing in part Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985)).

         Boilerplate objections and generalized responses are improper. See Alhassid v. Bank of America, 2015 WL 1120273, at *2 (S.D. Fla. March 12, 2015). This District has frequently held that objections which fail to sufficiently specify the grounds on which they are based are improper and without merit. See, e.g., Taylor v. Bradshaw, 2014 WL 6459978 (S.D. Fla. Nov. 14, 2014); Abdin v. Am. Sec. Ins. Co., 2010 WL 1257702 (S.D. Fla. March 29, 2010). More specifically, objections simply stating that a request is Aoverly broad, or unduly burdensome'' are meaningless and without merit. Abdin, 2010 WL 1257702 at *1 (quoting Guzman v. Irmadan, Inc., 249 F.R.D. 399, 400 (S.D. Fla. 2008)).

         In addition to the Federal Rules, Southern District Local Rule 26.1 controls the necessary procedure a party must follow when objecting to a request for production or asserting a claim of privilege. It requires that:

All motions related to discovery, including . . . motions to compel discovery . . . 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.

S.D. Fla. L.R. 26.1(i)(1) (emphasis added). On its face, Rule 26.1(i) is therefore plainly discretionary. While the “occurrence” of grounds for a motion tends to be the moment at which responses are filed, this is not always necessarily the case. See, e.g., Socas v. Northwestern Mut. Life Ins., 2008 WL 619322 (S.D. Fla. March 4, 2008) (finding that the “occurrence” triggering the motion to compel was when the requesting party examined certain documents months after their initial requests had been answered); United States v. Polo Pointe Way, Delray Beach, Fl., 444 F.Supp.2d 1258, 1261 (S.D. Fla. 2006) (finding that the “occurrence” at issue was a deposition that took place after responses were filed).

         In pertinent part, the Local Rules also provide that where a claim of privilege is asserted, the objecting party must prepare “a privilege log with respect to all documents, electronically stored information, things and oral communications withheld on the basis of a claim of privilege or work product protection” except for “written and oral communications between a party and its counsel after commencement of the action and work product material created after commencement of the action.” S.D. Fla. L.R. 26.1(g)(3)(C) (emphasis added). Furthermore, “[w]here a claim of privilege is asserted in objecting to any . . . production demand . . . and an answer is not provided on the basis of such assertion . . . [t]he attorney asserting the privilege shall . . . identify the nature of the privilege . . . being claimed.” S.D. Fla. L.R. 26.1(g)(3)(B)(I).

         III. ANALYSIS

         A. Plaintiff's Motion to Compel GSG to Produce Documents [D.E. 142]

         Plaintiff's first motion seeks to compel non-party Gelber, Schacter, & Greenberg, P.A. (“GSG”) to produce documents in response to a subpoena served on August 18, 2017. [D.E. 142]. Plaintiff seeks (1) an Order requiring the production of certain documents without any restriction and/or confidentiality designation and (2) an Order requiring the production of all documents on GSG's privilege log. GSG responded to Plaintiff's motion on April 6, 2018 [D.E. 148] to which Plaintiff replied on April 13, 2018. [D.E. 153].[2]

         Plaintiff's 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. No. 11-17842.[3] 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 took the position that it should not produce any documents in response to the subpoena because it has a responsibility to safeguard the contents of privileged materials on behalf of its former client.

         On November 29, 2017, we granted in part and denied in part Plaintiff's motion to compel. [D.E. 93]. We found that GSG's objections to the subpoena were non-specific and that GSG had to supplement its response with more precise objections. We also held that the GSG should have produced a timely privileged log, but that the failure to do so - given the minimal amount of time that had passed - did not constitute a waiver of privilege. Therefore, we concluded that GSG must (1) adequately respond to Plaintiff's requests for production with specific objections where appropriate, (2) produce a proper privilege log detailing any documents withheld from production or otherwise represent that no responsive documents were in fact withheld, and otherwise (3) produce all responsive non-privileged documents within GSG's possession, custody, or control.

         GSG produced a privilege log on December 28, 2017. [D.E. 142-2]. That same day, GSG sent a letter to Plaintiff's attorneys stating that there were 74 documents potentially responsive to the subpoena and that GSG would claim that privilege applied to 56 of them.[4] All of these communications were allegedly between Chevaldina and her former lawyers (i.e. GSG, CIR, and Benjamin Kuehne) or contained some form of attorney work product. GSG and Plaintiff then entered into a confidentiality agreement and GSG produced 18 communications pursuant to that agreement.

         GSG's response advances two arguments in opposition to Plaintiff's renewed motion to compel. First, GSG contends that there is no basis for the Court to remove its confidentiality designations for 18 of the 74 documents because Plaintiff is fully able to use those documents pursuant to an agreed confidentiality agreement. In other words, GSG believes that there is no prejudice to Plaintiff if the confidentiality designations remain in place so long as Plaintiff takes certain minimal precautions in this case - i.e. filing the documents under seal. GSG also argues that the parties in the state court case continue to have an expectation of confidentiality surrounding these communications and that none of them have consented to the removal of the designation.

         Second, GSG contends that the 56 documents on its privilege log should not be produced because they contain attorney-client communications, or attorney work product. GSG also suggests that Plaintiff is already in possession of 36 of the 56 privileged communications (because Plaintiff was Chevaldina's prior counsel) and that there are very few documents left to compel.[5] Because Plaintiff is in possession of nearly all of the documents sought and there is no basis to disturb the associated privilege, GSG concludes that Plaintiff's motion should be denied.

         “The attorney-client privilege applies to confidential communications made in the rendition of legal services to the client.” Southern Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1380 (Fla. 1994) (citing Fla. Stat. § 90.502). The burden of establishing the privilege is on the proponent of the privilege, who must establish the existence of the privilege by a preponderance of the evidence. See Daubert v. Merrell Dow Pharms., 509 U.S. 579 (1993) (matters of preliminary questions, identified in Fed.R.Evid. 104(a), are to be established by a “preponderance of proof, ” citing Bourjaily v. United States, 483 U.S. 171, 175-76, (1987)). While not absolute, the privilege has long been understood to encourage clients to completely disclose information to their attorneys to allow for the rendition of competent legal advice and “thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). “Because application of the attorney-client privilege obstructs the truth-seeking process, it must be narrowly construed.” Maple Wood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 583 (S.D. Fla. 2013) (footnote omitted).

         “The work product doctrine is distinct from and broader than the attorney-client privilege, and it protects materials prepared by the attorney, whether or not disclosed to the client, as well as materials prepared by agents for the attorney.” Fojtasek v. NCL (Bahamas) Ltd., 262 F.R.D. 650, 653 (S.D. Fla. 2009) (citing In re Grand Jury Proceedings, 601 F.2d 162, 171 (5th Cir. 1979)). Moreover, “because the work product privilege looks to the vitality of the adversary system rather than simply seeking to preserve confidentiality, it is not automatically waived by the disclosure to a third party.” In re Grand Jury Subpoena, 220 F.3d 406, 409 (5th Cir. 2000). Yet, this still requires the party asserting protection under the work product doctrine to demonstrate that the drafting entity anticipated litigation at the time the documents were drafted. See CSX Transp., Inc. v. Admiral Ins. Co., 1995 WL 855421, at *2 (M.D. Fla. July 20, 1995). This means that materials drafted in the ordinary course of business are not protected under the work product doctrine.

         In determining whether materials are protected, a court must determine when and why a contested document was created. See, e.g. In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (“The ‘testing question' for the work-product privilege . . . is ‘whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'”). And similar to the attorney-client privilege, “the burden is on the party withholding discovery to show that the documents should be afforded work-product [protection].” Fojtasek, 262 F.R.D. at 654 (citing United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir. 1991) (applying rule for attorney-client issue); Essex Builders Group, Inc. v. Amerisure Insurance Company, 2006 WL 1733857 at *2 (M.D. Fla. June 20, 2006) (“[T]he party asserting work product privilege has the burden of showing the applicability of the doctrine”) (citing Grand Jury Proceedings v. United States, 156 F.3d 1038, 1042 (10th Cir. 1998)).

         We begin with the question of whether the 56 documents on GSG's privilege log should be produced. GSG claims that the documents are privileged because they constitute attorney-client communications or work product, and that Plaintiff is in possession of many of these documents already. On November 29, 2017, we found that GSG needed to serve a proper privilege log with the following information for each withheld document: “(1) the name and job title or capacity of the author of the document; (2) the name and job title or capacity of each recipient of the document; (3) the date the document was prepared and, if different, the date(s) on which it was sent to or shared with persons other than the author(s); (4) the title and description of the document; (5) the subject matter addressed in the document; (6) the purpose(s) for which it was prepared or communicated; and (7) the specific basis for the claim that it is privileged.” Anderson v. Branch Banking & Tr. Co., 2015 WL 2339470, at *2 (citing NIACCF, Inc. v. Cold Stone Creamery, Inc., 2014 WL 4545918, at *5 (S.D. Fla. Sept. 12, 2014)).

         After reviewing GSG's revised privilege log, it does not include all of the required information. [D.E. 142-2]. First, it does not include the job title or capacity of the author/recipient of any document - making it more difficult for the Court to determine if a communication was sent to and from an attorney. Second, the privilege log is unclear on when a communication was prepared and if this date differs from the date it was sent or shared with another person. Third, there is no description of the documents. And fourth, there is no purpose that explains why the document was prepared.

         Plaintiff claims that the documents should be produced because GSG has failed to meet its burden in showing that the items on its privilege log are privileged. Plaintiff's argument is not without merit as GSG failed to follow the Court's directives in providing all the requested information on its privilege log. But, after an independent review of the senders, recipients, and subject matter of the documents in question, we are persuaded that the items on GSG's privilege log are in fact privileged. And although GSG could have crafted a better privilege log as we directed, that does not mean that the documents should be produced because GSG has done enough to meet its burden given the facts presented. Accordingly, Plaintiff's motion to compel the production of documents on GSG's privilege log is DENIED.

         Next, Plaintiff argues that a party may waive the attorney-client privilege if he or she “injects into the case an issue that in fairness requires an examination of otherwise protected communications.” Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1419 (11th Cir. 1994). This argument is based on the predicate that “when a party's conduct reaches a certain point of disclosure, fairness requires that the privilege cease.” Id., citing Goldman, Sachs & Co. v. Blondis, 412 F.Supp. 286, 288 (N.D. Ill. 1976) (emphasis in original); see also United States v. Bilzerian, 926 F.2d 1285 (2d Cir. 1991). Therefore, the law on waiver prevents a party from placing some privileged information into evidence for his or her own benefit, then arguing against disclosure of the remainder of privileged information, when the failure to disclose would prove manifestly unfair to the opposing party. Cox, 17 F.3d at 1418 (citing Pitney-Bowes, Inc. v. Mestre, 86 F.R.D. 444, 447 (S.D. Fla. 1980)).

         As a general rule, a party does not waive a privilege by simply bringing or defending a lawsuit. See Home Insurance Co. v. Advance Machine Co., 443 So.2d 165, 168 (Fla. 1st DCA 1983) (finding that plaintiff, by bringing suit for contribution and injecting the requisite element of reasonableness of settlement as an issue does not waive the attorney-client privilege); compare GAB Business Services, Inc. v. Syndicate 627, 809 F.2d 755 (11th Cir. 1987) (holding that issue of reasonableness of settlement in indemnity cause of action is at the very heart of litigation, thus requires disclosure of attorney-client privileged information). Additionally, “a Court cannot justify finding a waiver of privileged information merely to provide the opposing party information helpful to its cross-examination or because information is relevant.” Cox, 17 F.3d at 1418 (quoting Remington Arms Co. v. Liberty Mutual Ins. Co., 142 F.R.D. 408, 415 (D.Del. 1992)).

         Instead, “the doctrine of waiver by issue injection . . . forbids one party from placing blame or intent on another, i.e., brandishing a sword, while at the same time allowing that party to hide behind the shield of attorney-client protection in justification of not having to divulge the very information that may prove harmful to its position.” Wachovia Fin. Servs., Inc. v. Birdman, 2010 WL 11506044, at *3 (S.D. Fla. Sept. 27, 2010) (citing GAB Business Services, Inc., v. Syndicate, 809 F.2d 755, 762 (11th Cir. 1987) (noting that the attorney-client privilege “‘was intended as a shield, not a sword.'”) (quoting Pitney-Bowes, Inc., v. Mestre, 86 F.R.D. 444, 446 (S.D. Fla. 1980)).[6]

         This means that a party must affirmatively raise an issue involving privileged communications in order for a waiver to be effectuated. See Bilzerian, 926 F.2d at 1285. As an example, in In re Barinco Corp. Securities Litigation, 148 F.R.D. 91 (S.D.N.Y. 1993), the court addressed the waiver of privilege in the context of a securities fraud case in which plaintiffs sought discovery of a defendant's communications with counsel.[7] The plaintiffs in that case alleged that the defendant made a fraudulent representation in a portion of its public disclosure statement. The portion of the disclosure statement indicated that the representation made therein was based upon advice of counsel. The court found that - due to the statement's representation regarding a reliance on counsel - defendant would necessarily have to offer counsel's conclusions to prove its lack of scienter in making the statement. The Barinco court therefore found that unfairness would result if the plaintiffs were denied access to the privileged information and the court held that the privilege had been waived.

         Based on these legal principles, we cannot find that the 56 documents on GSG's privilege log should be produced - despite Chevaldina's arguments in this case - because she has not affirmatively raised a claim on the question of whether GSG entered into a settlement agreement or a negotiation in relation to the underlying fee motion. And as we stated in our prior Order on Plaintiff's motion to compel [D.E. 93], Chevaldina's mere denials of Plaintiff's allegations cannot waive either the attorney-client privilege or the work product doctrine. See Lorenz v. Valley Forge Ins. Co., 815 F.2d 1095, 1098 (7th Cir. 1987) (“To waive the attorney-client privilege . . . a defendant must do more than merely deny a plaintiff's allegations.”); see also Contogouris v. Westpac Res., 2012 WL 13001036, at *1 (E.D. La. Apr. 11, 2012) (“Waiver of the attorney client privilege occurs only in those instances where a party has put a specific fact or argument at issue; not where, as here, the defendant had simply made general denials.”) (citing Lorenz, 815 F.2d at 1098). Therefore, Plaintiff's motion to compel the documents on GSG's privilege log is DENIED.

         The final issue is whether the documents that GSG produced to Plaintiff should retain their confidentiality designations. The agreement between GSG and Plaintiff states that Plaintiff may dispute the designation of any document marked as confidential. It also states that - if the parties cannot resolve a dispute - the issue may be presented to the Court. “The operations of the courts and the judicial conduct of judges are matters of utmost public concern, ” Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 839 (1978), and “[t]he common-law right of access to judicial proceedings, an essential component of our system of justice, is instrumental in securing the integrity of the process.” Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311 (11th Cir. 2001). This right “includes the right to inspect and copy public records and documents.” Id. (citation omitted). However, this right of access is not absolute because it ordinarily “does not apply to discovery and, where it does apply, may be overcome by a showing of good cause.” Romero v. Drummond Co., 480 F.3d 1234, 1245 (11th Cir. 2007).

         A finding of good cause requires “balanc[ing] the asserted right of access against the other party's interest in keeping the information confidential.” Chicago Tribune, 263 F.3d at 1309. “[W]hether good cause exists . . . is . . . decided by the nature and character of the information in question.” Id. at 1315. “In balancing the public interest in accessing court documents against a party's interest in keeping the information confidential, courts consider, among other factors, whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents.” Romero, 480 F.3d at 1246. Ultimately, the decision to allow public access is a matter of the Court's supervisory and discretionary power. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-99 (1978)).

         Here, GSG presents two arguments in opposition to Plaintiff's motion: (1) that the confidential designations impose a minimal burden, and (2) that the parties in the state court case expected the documents to remain confidential. GSG's arguments are well taken because Plaintiff has failed to show why it would be a burden to simply file the documents in question under seal. Moreover, the parties in the state court action have agreed that the documents should be kept as confidential and we will not imperil that agreement in this case. In other words, there is no need to change the designation of these documents when they are already considered confidential in a separate litigation and where there is no prejudice to Plaintiff in filing them under seal. Accordingly, Plaintiff's motion to compel the re-designation of confidential documents is DENIED.

         B. Chevaldina's Motion for Protective Order [D.E. 152]

         On April 9, 2018, Chevaldina filed a motion for protective order [D.E. 152] in opposition to Plaintiff's motion to compel GSG to produce documents because (1) the Court lacks subject matter jurisdiction over this case, and (2) all responsive documents have been either produced or listed on a privilege log for Plaintiff's review. Because jurisdiction is lacking and there is nothing left to produce, Chevaldina concludes that Plaintiff's motion to compel [D.E. 142] must be denied.

         “Rule 26(c) allows the issuance of a protective order if ‘good cause' is shown. Good cause “generally signifies a sound basis or legitimate need to take judicial action.” In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987). The Eleventh Circuit has identified four factors to consider in determining the existence of good cause: “‘[1] the severity and the likelihood of the perceived harm; [2] the precision with which the order is drawn; [3] the availability of a less onerous alternative; and [4] the duration of the order.”' Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1205 (11th Cir. 1985).

         In addition to requiring good cause, this circuit has also required the district court to balance the interests of those requesting the order. Farnsworth, 758 F.2d at 1547 (“While Rule 26(c) articulates a single standard for ruling on a protective order motion, that of ‘good cause, ' the federal courts have superimposed a somewhat more demanding balancing of interests approach under the Rule.”) (citations omitted). While a court has broad discretion to fashion a protective order, a ‘“court must articulate its reasons for granting a protective order sufficient for appellate review.”' McCarthy v. Barnett Bank of Polk Cty., 876 F.2d 89, 91 (11th Cir. 1989) (citations omitted); see also Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., 231 F.R.D. 426, 429-30 (M.D. Fla. 2005) (“Rule 26(c) provides that upon a showing of good cause, a court ‘may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.' The party seeking a protective order has the burden to demonstrate good cause, and must make ‘a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements' supporting the need for a protective order.”) (citations omitted).

         Chevaldina claims that the lack of accounting and financial documents evidencing $75, 000 means that this case must be dismissed because there is no subject matter jurisdiction. But, this argument lacks merit for the same reasons espoused in the Court's Report and Recommendation that was entered on April 19, 2018. [D.E. 158]. “Federal courts may exercise diversity jurisdiction over all civil actions where the amount in controversy exceeds $75, 000, exclusive of interest and costs, and the action is between citizens of different states.” QBE Ins. Corp. v. Dolphin Line, Inc., 2009 WL 3248016, 4 (S.D. Ala. Oct. 06, 2009). In challenging a court's subject matter jurisdiction and whether a party has alleged in good faith its amount in controversy, it must generally “appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003) (quoting St. Paul Mercury Indent. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).[8]

         Here, Chevaldina's motion presents a factual attack by challenging jurisdiction on the grounds that Plaintiff has failed to establish that the amount in controversy exceeds $75, 000. But, Chevaldina's motion is again unpersuasive. First, the absence of a particular kind of evidence does not establish that the amount in controversy cannot be met. We cannot find a single case - and Chevaldina failed to cite any - where the lack of accounting documents, by itself, met the standard of a legal certainty that a case was dismissed for failure to establish the amount in controversy requirement.

         Second, Plaintiff has provided sufficient evidence in its initial disclosures that the amount in controversy exceeds $75, 000. For example, Plaintiff's initial disclosures includes (1) Chevaldina's motion for fees in the Eleventh Circuit ($114, 865 in fees and $93.95 in expenses)[9], (2) Chevaldina's bill of costs in the Eleventh Circuit ($133.99), (3) time records for Plaintiff's work on Chevaldina's motion for fees after October 13, 2015 ($14, 672.50), and (4) Mr. Katz's letter reflecting a payment of $10, 000. When considered as a whole, Plaintiff's initial disclosures provide a good faith basis that the amount in controversy for Chevaldina's alleged breach of contract equals at least $129, 765.44.

         As for Chevaldina's second argument - that all responsive documents have been either produced or listed on GSG's privilege log - Chevaldina's contention is well founded for the same reasons identified above. GSG provided a privilege log of all the communications that were withheld from production and has provided an applicable privilege. And while GSG could have prepared a better privilege log that complied with the Court's directives, GSG has done just enough to meet its burden that the documents requested are protected by either the attorney-client privilege or the work product doctrine. Therefore, Chevaldina's motion for a protective order is GRANTED.[10]

         C. Plaintiff's Motion to Preclude Evidence [D.E. 154]

         On April 13, 2018, Plaintiff filed a renewed motion under Rule 37 (1) to preclude Chevaldina from submitting any evidence of harm suffered as a result of Plaintiff's allegation violation of the Driver's Privacy Protection Act (“DPPA”), (2) to preclude Chevaldina from submitting any evidence of damages that she incurred any of her claims or calling any witnesses not previously identified, (3) to order Chevaldina to pay Plaintiff's reasonable expenses, including attorneys' fees, and (4) to impose any other sanctions as authorized under Rule 37. [D.E. 154].

         As background, Plaintiff previously filed a motion to preclude evidence against Chevaldina on January 3, 2018 because Chevaldina did not timely supplement her initial disclosures. [D.E. 101]. We denied Plaintiff's motion on the basis that it was premature. Chevaldina's first amended complaint was just filed on November 28, 2017 [D.E. 90] and Plaintiff's motion to preclude evidence was filed approximately four weeks later. Chevaldina admitted that she had not supplemented her initial disclosures, but it was not clear that she refused to do so. Instead, Chevaldina suggested that she had little time to supplement her initial disclosures because of the holiday season and the need to respond to Plaintiff's other related filings in this case. As such, Plaintiff's prior motion was denied because (1) there had not been a substantial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.