United States District Court, S.D. Florida
OMNIBUS ORDER ON DISCOVERY MOTIONS
G. TORRES UNITED STATES MAGISTRATE JUDGE.
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.
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. 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.
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.
APPLICABLE LEGAL PRINCIPLES AND LAW
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).
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).
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)).
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)).
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
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).
Plaintiff's Motion to Compel GSG to Produce Documents
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.
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. 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
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.
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.
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.
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. 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.
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.
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. 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.
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).
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.
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)).
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)).
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
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
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)).
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.
“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.
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. 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
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.
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).
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)).
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
Chevaldina's Motion for Protective Order [D.E.
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.
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: “‘
the severity and the likelihood of the perceived harm; 
the precision with which the order is drawn;  the
availability of a less onerous alternative; and  the
duration of the order.”' Kleiner v. First
National Bank of Atlanta, 751 F.2d 1193, 1205 (11th Cir.
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).
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
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
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), (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.
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.
Plaintiff's Motion to Preclude Evidence [D.E.
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.
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 ...