Case Information
*1 UN ITED STA TES DISTR ICT COU RT SOU THERN D ISTRICT O F FLOR ID A Case N o. 16-cv-80643-Sm ith/M atthew m an Stephen H olzm an, FILED BY D . C.
Plaintiff, 02T 1 5 2219 ANGELA :. NOBLE M alcom S. Gerald A ssociates, Inc., and CLERK U S DISI C'E s.n. oF /LA. -w.Ra. LV NV Funding, LLC, D efendants. /
. N ORDER GM NTING IN PW T AND DENYING IN PART PLAINTIFF'S AMENDED M OTION TO COM PEL DISCOVERY RESPONSES rDE 641
1. Introduction
TH IS CA USE is before the Court on Plaintiff Stephen H olzm an's A m ended M otion to Compel Discovery Responses (DE 64). Fact discoyery in this case closed on September 23, 2019 per DE 45, which is the same date that Plaintiff filed his Amended M otion to Compel gDE 64j . Defendants M alcolm S. Gerald Associates, Inc. (E&MGA'') and LVNV Funding, LLC ((tVNV'') have tiled a Response (DE 661, Plaintiff has tiled a Reply (DE 67j, Defendants filed a Joint Discovery Notice gDE 74j, and Plaintiff filed a Supplement to the Joint Notice (DE 751.
In light of the fast-approaching substantive motion deadline of October 21, 2419, the Court set a hearing on the pending m otion for October 15, 2019. H ow ever, w hen the parties requested a two-week continuance of that hearing, the Court entered an October 14, 2019 Order (DE 76) cancelling the scheduled discovery hearing and advising the parties that it w ould rule on the pending m otion w ithout a hearing. A ccordingly, the m otion is ripe for review .
1I. The Pending D iscovery M otion
The Court is very disappointed Plaintiff waited tmtil the yery last day of fact discovery to file his Amended M otion to' Compel gDE 642. This was obviously due to the lengthy discovery bickering between counsel. Parties and their counsel are expected to cooperate in the discovery P rocess and, in tlzis case, it appears that cooperatlon has been lacking- at least tmtil the very last m inute when sonie attem pted discovery cooperation occurred after the Court ordered the parties to personally meet and confer and file ajoint notice of their conferral efforts. Defendants did file a Joint Notice (DE 742 and Plaintiff did file 'a Supplement to the Joint Notice (DE 762, but both notices were poorly drafted, confusing, and inconsistent. It is' clear to the Court that the parties ' . . . ignored discovery tmtil the last m inute and then put the burden on the Court to resolve their last-
m inute dispute.
Plaintiff s Amended M otion to Compel gDE 64j seeks discovery from each Defendant in the form of better interrogatory answers, request for production responses, and answ ers to requests for adm issions. U pon careful review of the entire docket, Plaintiff's A m ended M otion to Com pel (DE 642, Defendants' Response (DE 661, Plaintiff's Reply (DE 67j, Defendants' Joint Notice (DE 74), and Plaintifps Supplement to the Joint Notice (DE 751, the Court disposes of tllis discovery dispute belöw as to each D efendant.
111. D iscovery Served on/D efendant M GA
Plaintiff propounded Requests for Admissions (E(ItFAs''), Requests for Production (&çRFPs''), and lnterrogatories to Defendapt M GA. The Court addresses each category of discovery requests below :
A . . R FA S served on D efendant M G A
The parties have been som ewhat successful in confusing the Court as to w hich of Plaintiff s RF'AS served on Defendant M GA remain at issue. Defendants' Joint Notice (DE 74j states that RFAS 2, 30, and 31 remain in dispute (DE 74, p. 2, ! 1 1j . However, Plaintiff s Supplement to Joint Notice (DE 751 states that he did not move to compel Defendant M GA to respond to IU7AS 2, 30, and 31 (DE 75, p. 2, ! 15j; rather he moved to compel Defendant M GA to respond only to R-FAS )
. 19 and 22 (DE 75, p. 1, ! 15j. Therefore, the Court will not address RFAS 2, 30, and 31. The Court w ill only rule on RFA S 19 and 22, as follow s:
As to RFA 19 (DE 64-1, p. 4, ! 19q, which requests that Defendant M GA respond that LV N V approved D efendant M GA 'S use of the Tem plate, Plaintiff s A m ended M otion to Com pel EDE 64j is GRANTED ând DefendantM GA is ordered to amend its response on orbefore October 18, 2019. RFA 19 seeks relevant and proportional infonnation under Fed. R. Civ. P. 26(b)(1).
As to RFA 22 (DE 64-1, p.5, ! 22q, which requests that Defendant M GA respond that D efendant w ould not send a letter based on the Tem plate to a conslzm er in the State of Florida if D efendant had a record that the consum er m ade a paym ent tow ard the debt, to D efendant or to any previous creditor, in the past tive years, Plaintiff s Amended Motion to Compel (DE 64J is G R AN TED and D efendant M GA is ordered to am end its response on or before October 18, 2019. RFA 22 seeks'relevant and proportional intbrmation under Fed. R. Civ. P. 26(b)(1).
B. RFPS served on D efendant M GA
The parties have also been som ewhat successful in confllsing the Court as to w hich RFPS served on Defendant M GA remain in dispute. Defèndants' Joint Notice IIDE 74) states that RFP 14 remains in dispute (DE 74, p.2, ! 1 1q. However, Plaintiffs .rsupplement to Joint Notice (DE 754, *4 states that he moved to compel Defendant M GA to respond to RFPS 9, 10, 13, 14, and 15 (DE 75, p. 1, ! 15(ii)) and the balance of Plaintiffs Supplement to Joint Notice suggests that RFPS 9, 10, 13, 14, and 15 rem ain in dispute. Therefore, the Cotlrt w ill address those RFPS.
As to RFPS 9 and 10 (DE 64-3, p. 4, !! 9, 10j, wltich request docllments relating to Plaintiff s account and a copy of the form or Tem plate used to create the A pril 24, 2015 letter attached to Plaintiff s com plaint, Plaintiff s A m ended M otion to Com pel is G R ANT ED and D efendant M G A is ordered to produce responsive docum ents to Plaintiff on or before October 18, 2019. RFPS 9 and 10 seek relevant and proportional documents under Fed. R. Civ. P. 26(b)(1).
A s to ltFps 13 and 14, requesting net w orth docum ènts, Plaintiff s Am ended M otion to Compel (DE 64) is DENIED at this time as the requests are currently premature and are not relevant or proportional under Fed. R. Civ. P. 26(b)(1) since Plaintiff s Amended M otion for Class Certitication gDE 56) has not yet been granted. However, if Plaintiff s Amended M otion for Class Certification (DE 56) is granted, Defendant M GA shall produce its audited tinancial statements, including balance sheets, within seven (7) days of entry of the Order granting class certifcation.
As to RFP 15 (DE 64-3, p. 5, ! 15q, which seeks documents evidencing the terms of D efendant M G A 'S acquisition by another corporate entity, Plaintiff s A m ended M otion to' Com pel (DE 64) is GRANTED IN PART to the extent that Defendant M GA is ordered to produce docum ents reflecting the February, 2018 sale of control and shares of D efendant M G A to G lass M ountain Capital, LLC, on or before O ctober 18, 2019 and DEN IED in all other respects. The docum ents ordered produced by the Court are relevant and proportional under Fed. R . Civ. P. 26(b)(1).
C . Interrogatories to D efendant M G A
Again, the parties' repeated lack of clarity as to which interrogatories are in dispute has been extremely fnzstrating to the Cotu't. Defendants' Joint Notice (DE 74) states that interrogatories 3, 7, 10, 1 1, 12, 13, and 14 remain in dispute (DE 74, p. 2, ! 111. However, Plaintiff s Supplement to Joint Notice (DE 75j states that interrogatories 5, 6, 15, and 16 remain in dispute (DE 75, p.2, ! 18j and that Defendant M GA must be compelled to respond to intelw gatories 3, 7, 10, 1 1, 12, 13, and 14 because it waived its objections to those specific intenrgatories since it did not respond to them until Septem ber 26, 2019- after Plaintiff filed his Am ended M otion to Compel (DE 64j. Therefore, the Court will address interrogatories 3, 5, 6, 7, 10, 11, 12, 13, 14, 15, and 16.
First, the C . ourt will not deem thatDefendant M GA waived any objections to the intelw gatories due to its late response. D efendant M GA states that the failure to tim ely respond resulted from an error in cotm sel's oftk e and that the interrogatories were responded to on September 26, 2019 gDE 66, p. 2) . As Defendant M GA did not act in bad faith, the error was in counsel's oftice, and . there is no prejudice to Plaintiff, the Court will not penalize Defendant M GA and deem its objections waived as such result would be unfair.
As to intenogatories 3, 5, 6, 7, 10, and 1 1 (DE 64-2, p. 5J, Plaintiff s Amended M otion to Compel (DE 64q is GRANTED as those interrogatories seek relevant and proportional infonnation under Fed. R. Civ. P. 26(b)(1). Defendant M GA is ordered to provide better and complete responses to those interrogatories on or before October 18, 2019.
As to intenogatories 12 and 13 gDE 64-2, p. 5), Plaintiff s Amended M otion to Compel (DE 64J is DENIED as the information sought in those interrogatories is neither relevant nor *6 proportional tmder Fed. R. Civ. P. 26(b)(1). The amotmt of money collected from potential class m em bers is not relevant to liability or dam ages. Further, the intenogatories are overbroad and vague in part. D efendant M GA shall not have to respond further to interrogatories 12 and 13.
As to intenogatories 14 and 15 gDE 64-2, pp. 5-6q, Plaintiff s Amended M otion to Compel (DE 64) is DENIED at this time as premature and not relevant or proportional tmder Fed. R. Civ. P. 26(b)(1) as Plaintiff s Amended Motion for Class Certification gDE 56j has not yet been granted. However, if Plaintiffs Amended Motion for Class Celification (DE 56j is granted, Defendant M GA shall respond to interrogatories 14 and 15 within seven (7) days of entry of the Order granting class certification.
As to intenogatory 16 (DE 64-2, p. 6j, Plaintiff s Amended M otion to Compel (DE 64q is G R ANTED IN PA R T to the extent that D efendant M GA is ordered to better respond so as to . M detail the Febnzary, 20 18 sale of control and shares of D efendant M GA to Glass M ountain Capital,
LLC, on or before October 18, 2019 and DENIED in a11 other respects.
Iv. o iscovery served on o erendant t-v x v
plaintiff propotmded Requesks for Admissions, Requests for production, and Intelw gatories to D efendant LVN V. The Court addresses each below ;
A . RFA S Served on D efendant LV NV
The parties continue to provide confusing and contlicting inform ation to the Court as to w hich requests for adm issions sent by Plaintiff to D efendant LVN V rem ain in dispute. D efendants' Joint Notice (DE 741, states that IU7AS 2, 14, 15, and 23 are in dispute (DE 74, p. 4j. However, Plaintiff s Supplement to Joint Notice (DE 751, states thaf Plaintiff did not move to compel Defendant L'VNV to respond to R#AS 2, 14, and 15 (DE 75, pp. 2, 162. And, Plaintiff says it moved *7 to compel Defendant LVNV to respond to RFAS 23, 25, 30, and 36 (DE 75, p. 1, ! 16(iX. Therefore, the C ourt w ill address RFAS 23, 25, 30 and 36.
As to RFA 23 to LVNV (DE 64-4, p. 5, ! 231, which requests that Defendant LVNV respond as to whether, at the tim e the ''Letter'' was sent, it had the contractual right to review forms or tem plates that D efendant M GA used to send collection notices to consum ers on its behalf, and RFA 25 (DE 64-4, p. 5, ! 254, which requests that Defendant LVNV respond as to whether it approved Defendant M GA'S use of the Template, and RFA 30 (DE 64-4, p. 5, ! 30q, which requests that D efendant LVN V respond as to its authorization procedure, Plaintiff s A m ended M otion to Compel (DE 641 is GRANTED and Defendant LVNV is ordered to amend its responses to R#AS 23, 25, and 30 on or before October 18, 2019. Those IU 7AS seek relevant and proportional information lmder Fed. R. Civ. P. 26(b)(1).
As to RFA 36 to LVNV (DE 64-4, p. 5, ! 6), which requests net worth information, Plaintiff s Am ended M otion to Com pel is D ENIED as the request is prem attlre and not relevant or proportional under Fed. R. Civ. P. 26(b)(1) at this time since Plaintiffs Amended M otion for Class Certification gDE 56j has not yet been granted. However, if Plaintiff s Amended M otion for Class Certification (DE 56q is granted, Defendant LVNV shall respond to RFA 36 within seven (7) days of entry of the Order granting class certifcation.
B . ItFPS Served on Defendant L VN V
The confusion am ong the parties continues tm abated when the Court review s D efendants' Joint Notice, which states that only RFP 10 is in disptlte (DE 74, p. 4), while Plaintiff's Supplement to Joint Notice (DE 75q seems to state that RFPS 4, 6, and 10 are in dispute (DE 75, p.1, ! 16(ii), and DE 75, p. 2, ! 9q. So, the Court must spend more time addressing IU7PS 4, 6, and 10.
As to RFPS 4 and 6 (DE 64-6, p. 4, !! 4, 6), wllich request certain' documents relating to Plaintiff s account, Plaintiffs Amended M otion to Compel (DE 641 is GRANTED and Defendant LV N V is ordered to produce responsive docllm ents to lkFPS 4 and 6 to Plaintiff on or before O ctober 18, 2019. RFPS 4 and 6 seek relevant and proportional inform ation under Fed. R . Civ. P. 26(b)(1).
As to RFP 10 (DE 64-6, p. 4, ! 10J, which requests audited financial statements, Plaintiffs A m ended M otion to Com pel is D EN IED as the request is prem am re and not relevant or proportional under Fed. R. Civ. P. 26(b)(1) at this time since Plaintiff s Amended M otion for Class X . Certification (DE 56q has not yet been granted. However, if Plaintiff s Amended M otion for Class Certification (DE 56) is granted, Defendant LVNV shall respond to RFP 16 within seven (7) days of entry of the Order granting class certification.
C. Interrogatories Served on D efendant LV NV
And finally, true to form, Defendants' Joint Notice (DE 741 states that only interrogatories 1 1 and 12 to Defendant LVNV remain in dispute (DE 74, p. 4j, while Plaintiff s Supplement to Joint Notice (DE 75q states that interrogatories 4 and 16 remain in dispute (DE 75, p.1, ! 16(iii), and DE 15, p-. 2, ! 191. Therefore, the Court must address interrogatories 4, 1 1, 12, and 16.
As to interrogatory 4 (DE 64-5, p. 5, ! 4j, which requests the identity of the personts) who created the template, Plaintiff s Amended M otion to Compel (DE 64j ip GRANTED. The request seeks relevant and p/oportional infonnation under Fed. R. Civ. P. 26(b)(1). Defendant LVNV shall respond to interrogatory 4 on or before October 18, 2019.
As to intenogatory 1 1(DE 64-5, p. 5, ! 11), the interrogatory is vague and confusing. Plaintiff s Amended M otion to Compel (DE 64q as to interrogatory 1 1 is therefore DENIED and D efendant LV .NV shall not have to further respond to interrogatory 11.
As to interrogatory 12 (DE 64-5, p. 5, ! 12j, which requests Defendant's net worth, Plaintiff s Amended M otion to Compel (DE 64j is DENIED as the request is 'premamre and not relevant or proportional under Fed. R. Civ. P. 26(b)(1) at tllis time since Plaintiffs Amended M otion for Class Certitication gDE 56q has not yet been granted. However, if Plaintifps Amended M otion for Class Certificatiop (DE 561 is granted, Defendant LVNV shall respond to intenogatory 12 within seven (7) days of entry of the Order granting class certification.
As tp intenogatory 16 (DE 64-5, p. 6, ! 164, Plaintiff s Amended M otion to Compel (DE 64J is DENIED as the information sought in interrogatory 16 is neither relevant nor proportional ' r
under Fed. R. Civ. P. 26(b)(1). The amotmt of money collected 9om consumers is not relevant to liability or damages. Further, the interrogatory is overbroad and vague in part. Defendant LVNV shall not have to respond further to interrogatory 16.
V . Conclusion
The parties failed to cooperate dtlring the discovery process in this case and brought this lengthy discovery dispute to the Court at the very last minute--on the cut-off date for fact discovery. W hen the Court attem pted to set this m atter dow n for a prom pt discovery hearing to dispose of these discovery issues from the bench before the October 21, 2019 substantive m otion deadline, not a11 the parties' counsel w ere available in a prom pt m anner. Therefore, this Court w as forced to cancel the discovery hearing and rule on the parties' papers. However, the parties' papers are poorly drafted, confusing,and evidence a total lack of cooperation dllring the discovery *10 process. The Court has considered sanctioning counsel for both parties in this case, but will not do so at this tim e. H ow ever, counsel are advised that any recurrence shall be dealt w ith m ore stem ly.
Finally, the Court has set a very quick due date, O ctober 18, 2019, for the additional discovery that D efendants have been ordered to produce. This is for tw o reasons. First, the substantive m otion deadline is O ctober 21, 2019 and Plaintiff should prom ptly receive the discovery. Second, the parties' dilatory discovery conduct m ust end now .
D O N E and O RD ERED in cham bers at W est Palm Beach, Palm B each C ounty, Florida, t his VV ay of October, 2019.
W ILLIAM M ATTH EW M AN U rlited States M agistrate Judge