United States District Court, M.D. Florida, Tampa Division
HONORABLE CHRISTOPHER P. TUTTE, UNITED STATES MAGISTRATE
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.
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.
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.
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).
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.
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
(Doc. 111) (emphasis added).
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. 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].”
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).
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)). 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 ...