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Cruz v. Bank of America, N.A.

United States District Court, M.D. Florida, Tampa Division

August 30, 2019

PEDRO PABLO COLLAZO CRUZ and ODALYS RODRIGUEZ, Plaintiffs,
v.
BANK OF AMERICA, N.A., Defendant.

          ORDER

          WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE

         Upon due consideration of Plaintiffs' Motion to Compel Better Discovery Responses (Dkt. 100) and Defendant's Opposition (Dkt. 104), the Court concludes the motion should be granted in part and denied in part.

         BACKGROUND

         Defendant responded in late December 2018 to Plaintiffs' requests for production, requests for admission, and interrogatories. Dkt. 100-1 at 38-56 (requests for production), at 20-37 (privilege log), at 12-19 (requests for admission), at 73-96 (interrogatories). Plaintiffs now seek more precise responses to the discovery. Dkt. 100. For the following reasons, many of Plaintiffs' discovery objections are not properly before this Court.

         Plaintiffs' counsel on July 12, 2019, set forth in great detail the asserted shortcomings of Defendant's responses to the requests for production. Dkt. 100-1 at 1-9. The particular responses were identified by number. Id. Defendant agreed to amend its objections and supplement the responses by August 2, 2019. Dkt. 100-1 at 10-11 (email dated 7/26/2019), at 57-72 (supplemented objections and responses). Although the July 12 correspondence referenced generally the responses to the requests for admission and interrogatories, none were specifically described or identified.

         On July 26, 2019, in an email, Plaintiffs' counsel for the first time identified the interrogatory responses with which he took issue. Dkt. 100-1 at 10-11. In the same email, he requested that Defendant's counsel respond to the issues regarding the interrogatories by August 2 or “they will be included in our Motion to Compel.” Id. at 10. He was apparently referring to his motion to compel responses to the requests for production, which he would file if Defendant failed to supplement as promised by August 2, 2019.

         On August 2, 2019, Defendant supplemented the responses to the requests for production. Dkt. 100-1 at 57-72. That same day, a Friday, counsel for Defendant emailed Plaintiffs' counsel in response to the July 26 email. Dkt. 104-4. He confirmed that he would be “making similar amendments to our responses to interrogatories” and having his client execute them. Id. He noted that he would be out of the office the following week, which ended August 9, 2019. Id. Plaintiffs nevertheless filed the instant motion to compel on August 8, 2019. Dkt. 100.

         ISSUES BEFORE THIS COURT

         In the motion, Plaintiffs' counsel explains why the responses to all three discovery tools are deficient. Each type of discovery will be addressed in turn.

         Requests for Admission/Privilege Log

         Other than Plaintiffs' argument in the instant motion, Plaintiffs never conveyed anything to Defendant regarding the responses to the requests for admission or Defendant's privilege log. In this regard, Plaintiffs have failed to comply with the good-faith conferral required by Federal Rule of Civil Procedure 37 and Local Rule 3.01(g). See Progressive Emu, Inc. v. Nutrition & Fitness Inc., 2019 WL 3798494, at *5 n.10 (11th Cir. 2019) (noting that Rule 37 “expressly requires an attempt to confer in good faith before filing a motion to compel” and local rule may impose a duty to confer); MacKay v. Creative Hairdressers, Inc., No. 3:17-cv-421-J-32MCR, 2019 WL 937734, at *1 (M.D. Fla. Jan. 7, 2019) (noting that Rule 3.01(g) means to “speak to each other in person or by telephone, in a good faith attempt” to resolve issues).[1] The responses to the requests for admission and the privilege log will therefore not be finally determined, and the motion is denied without prejudice due to failure to confer appropriately.[2]

         Interrogatories

         With respect to the interrogatory answers, Plaintiffs likewise failed to confer sufficiently in good faith. The first time Defendant was aware of any infirmities was the July 26 email. On August 2, Defendant communicated that amended responses would be forthcoming, although implying that his absence the following week may cause delay. By filing the motion the following week, before speaking again with Defendant's counsel, Plaintiffs did not confer in good faith. Correspondence alone does not satisfy the meet-and-confer requirement of Rule 37 or Rule 3.01(g). Id. The answers to the interrogatories will therefore not be examined, and the motion is denied without prejudice due to failure to confer appropriately.

         Requests ...


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