6:19-cv-01908
M.D. Fla.Jan 18, 2022Background:
- Plaintiffs moved for sanctions (including default) against Pandora Marketing, Pandora Servicing, Intermarketing Media, and individuals Wilson and Folk for discovery violations involving call recordings, scripts, and emails.
- Magistrate Judge Kidd recommended striking the Marketing Defendants’ answers and entering clerk’s defaults; the Marketing Defendants objected, arguing inability to timely produce and that only Pandora Marketing was primarily at fault.
- Evidence showed Pandora Marketing recovered an additional ~1.9 million documents only after retaining an outside vendor; its employee failed to preserve Convoso call recordings and excluded certain recordings as non-sales calls.
- Wilson and Folk, as owners/decisionmakers, exercised control over discovery and failed to ensure production; Intermarketing relied on Pandora Marketing and did not independently retrieve responsive materials.
- Magistrate Judge Kidd imposed monetary sanctions earlier; the court found lesser sanctions inadequate, concluded willful noncompliance, adopted the R&R, struck answers, entered clerk’s defaults, and awarded plaintiffs attorneys’ fees subject to later assessment.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proper procedure preceded default sanction | Plaintiffs sought sanctions after motions to compel and evidentiary hearing; defendants had notice and chance to respond | Sanctions deprived defendants of due process / were procedurally improper | Court: Proper procedure followed; defendants had notice and opportunity to be heard |
| Whether defendants acted willfully or in bad faith | Marketing Defendants (esp. Pandora Marketing) willfully failed to preserve/produce ESI; others knowingly relied on Pandora | Defendants claimed inability to produce in time and that some complied or were distinct from Pandora Marketing | Court: Willful/bad-faith conduct found as to Pandora Marketing and those who relied on it (Wilson, Folk, Intermarketing) |
| Whether lesser sanctions would suffice | Plaintiffs: lesser measures would not cure prejudice or ensure compliance given history | Defendants: default is overly harsh; production difficulties could be remedied | Court: Lesser sanctions (stay, fines, extended discovery) inadequate; default warranted as last resort |
| Whether plaintiffs stated claims against marketing defendants | Plaintiffs: pleadings adequately allege claims supported by scripts/recordings | Defendants: (implicit) default should not be entered if claims are deficient | Court: Plaintiffs’ pleadings state valid claims; default entry is supported |
Key Cases Cited
- Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d 1314 (11th Cir. 1997) (Rule 37 default requires prior court order compelling discovery)
- Buchanan v. Bowman, 820 F.2d 359 (11th Cir. 1987) (strict adherence to Rule 37 prevents flouting discovery orders)
- In re Mroz, 65 F.3d 1567 (11th Cir. 1995) (courts may use inherent power to manage docket and sanction)
- Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298 (11th Cir. 2009) (bad faith may be shown by delaying or hampering litigation)
- ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 881 F.3d 1293 (11th Cir. 2018) (Rule 37(e) sanctions require intentional failure to preserve ESI causing prejudice)
- Surtain v. Hamlin Terrace Found., 789 F.3d 1239 (11th Cir. 2015) (default judgment requires sufficient basis in the pleadings)