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The Hurry Family Revocable Trust v. Frankel

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

January 14, 2020

THE HURRY FAMILY REVOCABLE TRUST, et al., Plaintiffs,
v.
CHRISTOPHER FRANKEL, Defendant.

          ORDER

          HONORABLE CHRISTOPHER P. TUTTE, UNITED STATES MAGISTRATE JUDGE.

         Before the Court are the Plaintiffs' Motion to Compel Production of Documents and Request for Sanctions (Doc. 140) and the Defendant's response in opposition (Doc. 149). The Court held a hearing on the matter on January 8, 2020. For the reasons discussed below, the Plaintiffs' motion is denied.

         I.

         Plaintiff the Hurry Family Revocable Trust and others (collectively, Hurry) initiated this action in November 2018, alleging that Defendant Christopher Frankel, a former employee, unlawfully misappropriated and used Hurry's confidential information and trade secrets. (Doc. 1). In January 2019, the Court entered a Case Management and Scheduling Order (CMSO) establishing various deadlines, including a discovery deadline of July 26, 2019, and a trial date of February 3, 2020. (Doc. 29). The CMSO warned the parties that “[t]he Court may deny as untimely all motions to compel filed after the discovery deadline.” Id. at 4.

         In May 2019, Hurry filed a motion to modify the CMSO (Doc. 62) and, as a result, the Court extended the discovery deadline to August 9, 2019 (Doc. 65). The Court cautioned the parties, however, that it would “be disinclined to extend . . . the [discovery] deadline[] further.” Id.

         Hurry nonetheless sought to modify the CMSO again in late June 2019. (Doc. 83). The Court denied that request, noting, among other things, that it had “previously warned [the parties] that it would be disinclined to extend the deadlines again.” (Doc. 84).

         Undeterred, Hurry filed yet another motion to modify the CMSO on August 12, 2019, arguing, inter alia, that it had become “apparent” that Frankel's response to Hurry's earlier production request was incomplete. (Doc. 107). Hurry asserted, in particular, that although Frankel “produced emails . . . he received from Plaintiffs' clients, ” he “failed to produce emails . . . he sent to those same clients.” Id.

         The Court denied Hurry's motion on August 20, 2019, stating, in pertinent part:

The Court has already extended the discovery deadline in this case to August 9, 2019, at the Plaintiffs' request. The Court has also repeatedly warned Plaintiffs that it would be disinclined to extend deadlines further. Yet Plaintiffs filed this third motion to modify the Case Management and Scheduling Order on August 12, 2019, after the extended discovery deadline had passed. What's more, the Court's Case Management and Scheduling Order provides that, pursuant to [FRCP] 16(b) and [LR] 3.09(a), deadlines will be not be extended absent a showing of good cause. The Court cannot discern good cause here for reopening and extending discovery. . . . As for the documents that Plaintiffs claim Defendant has failed to produce, Plaintiffs were aware of those missing documents since August 6 and/or 7, 2019, and failed to file a motion to compel prior to the discovery deadline. As the Court advised in its Case Management and Scheduling Order, “[f]ailure to complete discovery within the time established by this Order shall not constitute cause for a continuance.”

(Doc. 111) (emphasis added).

         Roughly four months after the Court's August 20 Order, Hurry filed the instant motion to compel. (Doc. 140). This motion stems from five emails Hurry received in response to third-party subpoenas served on two entities, Koonce Securities, LLC (Koonce) and the Financial Industry Regulatory Authority (FINRA). Id. Hurry maintains that Frankel failed to produce these emails in response to an earlier document request it propounded on Frankel.[1] Id. Based on this alleged discovery violation, Hurry principally seeks an order directing that: (1) Frankel's “email accounts, cloud storage, and digital devices” be subjected to a “third party search” for responsive documents at Frankel's expense; (2) “[Frankel] be precluded from testifying or offering evidence on issues related to categories of discovery withheld by [Frankel];” and (3) “adverse inferences be made against [Frankel] related to categories of discovery withheld by [Frankel].” Id.

         In his opposition to Hurry's motion, Frankel argues, among other things, that the motion is untimely and that the Koonce and FINRA emails are not responsive to Hurry's earlier document request in any event. (Doc. 149).

         II.

         Rule 16(b) of the Federal Rules of Civil Procedure “gives the district court the authority to set a scheduling order limiting the time to complete discovery.” Simpson v. State of Ala. Dept. of Human Resources, 501 Fed.Appx. 951, 956 (11th Cir. 2012) (citing Fed R. Civ. P. 16(b)).[2] Once entered, “[s]uch orders ‘control the subsequent course of the action, ” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998), and “may be ...


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