Wynmoor Community Council, Inc., et al., Plaintiffs, v. QBE Insurance Corporation, Defendant CASE NO. 10-62411-CIV-DIMITROULEAS/Snow Signed November 07, 2012 Counsel Christopher N. Mammel, Coleman J. Braun, Michael L. Childress, Childress Duffy, Ltd., Chicago, IL, Erwin Alexander Acle, Childress Duffy, Ltd., Miami, FL, Mark D. Bogen, Bogen Law Group, P.A., Boca Raton, FL, for Plaintiffs. Damian Dwight Daley, Wicker Smith O'Hara McCoy & Ford PA, Maria Josefa Beguiristain, Raoul G. Cantero, III, White & Case LLP, Miami, FL, Jordan Scott Cohen, Wicker Smith Tutan O'Hara McCoy Graham & Ford, Fort Lauderdale, FL, William S. Berk, Evelyn Maureen Merchant, John Robert Anderson, Patrick Edward Betar, Berk Merchant & Sims PLC, William Frederick Fink, Wicker Smith O'Hara McCoy et al., William Xanttopoulos, Coral Gables, FL, Ronaflor E. Smith, C. Deborah Bain PA, North Palm Beach, FL, Catherine Deborah Bain, Jupiter, FL, for Defendants. Snow, Lurana S., United States Magistrate Judge ORDER *1 THIS CAUSE is before the Court on the Plaintiffs' Motion to Compel Production of Documents (DE 165), which was referred to United States Magistrate Judge, Lurana S. Snow. The motion is fully briefed and ripe for consideration. The Plaintiffs, Wynmoor Community Council, Inc. et al., filed a Complaint alleging breach of an insurance contract against Defendant, QBE Insurance Corporation (QBE), in Broward County, Florida on October 22, 2010. (DE 1-4) On December 10, 2010, the matter was removed to this Court. (DE 1) The Plaintiffs' Corrected Fourth Amended Complaint claims that they are entitled to payment for losses sustained as a result of damage caused by Hurricane Wilma on October 24, 2005. (DE 67) QBE filed its Answer and Affirmative Defenses to the Fourth Amended Complaint on February 1, 2012. (DE 72) The Plaintiffs' motion was filed pursuant to Fed.R.Civ.P. 37 and S.D. Fla. L.R. 26.1 and seeks an order compelling QBE to produce copies of documents QBE copied during a document inspection at the Wynmoor property, and for which QBE is asserting attorney work product as grounds to resist production. The Plaintiffs also seek to compel QBE to produce an additional page from estimates that were previously provided by QBE's claims adjuster, Interloss, Inc. The Hand Copied Documents E-mails attached to the Plaintiffs motion reflect an agreement between the parties to split the bill for copies and scans of documents sent offsite to IKON, a copying service company. They also reflect QBE's assertion that the twelve boxes of documents hand copied by its attorneys on site, are attorney work product. (DE 165-1 and 165-2) The Plaintiffs suspect that the hand copied documents consist of work orders reflecting the various maintenance issues reported by unit owners at Wynmoor. The Plaintiffs are willing to pay the cost of copying the documents and contend that QBE's reliance on work product privilege is misplaced. QBE distinguishes between the documents copied in bulk by IKON, which it has no objection to producing[1], and documents hand reviewed and selected by its attorneys, law clerks and paralegals on site during the document inspection, which was extensive and lengthy.[2] Throughout the inspection, QBE's attorneys made determinations as to which documents would aid in the defense of the case, and which supported or refuted the parties' respective positions or were otherwise relevant. QBE has produced many of the hand selected documents during the course of depositions, and others that it has identified as potential trial exhibits. It contends that the remaining hand selected documents are attorney work product. QBE further argues that none of the Plaintiffs' production requests encompassed the documents that QBE copied during the on-site inspection, and the Plaintiffs have not attached any discovery requests to their motion in contravention of this District's Local Rules. *2 The Plaintiffs' reply (DE 175) that QBE's reliance on work product privilege is misplaced because the documents were merely gathered by QBE's attorneys. Noting that QBE admits many of the hand selected documents have already been provided, the Plaintiffs contend that the free use of these documents for various reasons during the litigation would have already revealed any potential work product. The Plaintiffs' reply does not address QBE's argument that the documents are not responsive to any of the Plaintiffs prior requests for production, nor does it address their failure to comply with Southern District Local Rule 26.1(c) which requires discovery materials to be filed with motions when relief is sought pursuant to the Federal Rules of Civil Procedure, or with Southern District Local Rule 26.1(h)(2) which sets forth the requirements for motions to compel. The Court is reluctant to order QBE to produce documents which were evidently never formally requested by the Plaintiffs in a request for production of documents during discovery, particularly when the documents at issue are already in the Plaintiffs' possession. Accordingly, the Plaintiffs' motion is denied with respect to the documents QBE's attorneys hand-selected and copied during the on site document inspection. The Recap by Category Page[3] The Plaintiffs also seek an additional page from the Interloss estimate known as a “Trade Recap by Category.” Employees of Interloss prepared damage estimates on QBE's behalf during the investigation and adjustment of the damage to the Wynmoor property caused by Hurricane Wilma. The estimates were created using industry standard software known as “Xactimate.” The estimates contain a summary of damages arranged by unit. Plaintiffs request the breakdown of damages recorded by trade known as the “recap by trade summary.” The summary page can be generated by the Xactimate program with minimal effort on behalf of the user. QBE asserts that the “Trade Recap by Category” page the Plaintiffs request it to produce was never generated by QBE's independent adjuster, Robert Sansone of Interloss, Inc. The Plaintiffs are requesting that QBE's independent adjuster create and produce a document which he never previously created and which does not presently exist. Although it acknowledges that the Xactimate program is capable of being formatted to create such a recap, QBE contends that it has no duty to produce a document that is not already in existence. The Plaintiffs reply that QBE is in full possession and control over the electronic data which would permit it to generate the recap by trade summary with minimal effort. Alternatively, the Plaintiffs request the Court to order QBE to produce the .esx data/file for each of the estimates it produced. A party seeking discovery may move for an order compelling discovery responses. Fed.R.Civ.P. 37(a). Motions to compel are committed to the sound discretion of the court. Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). “The party resisting production of information bears the burden of establishing lack of relevancy or undue burden in supplying the requested information.” Gober v. City of Leesburg, 197 F.R.D. 519, 521 (M.D. Fla. 2000). *3 Rule 34 governs the production of documents, including electronically stored information. It permits a party to serve upon any other party a request within the scope of Rule 26(b) to produce the following items within the responding party's possession, custody or control: any designated documents or electronically stored information – including writing, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations – stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form... Fed.R.Civ.P. 34(a)(1)(A). The Request may specify the form or forms in which electronically stored information is to be produced. Rule 34(b)(1)(C). Attached to the Plaintiffs' reply brief is a copy of a Notice of Taking Subpoena Duces Tecum directed towards, Robert Sansone of Interloss, Inc. (DE 175-1) “Schedule A” of the notice requested certain documents, including the following: 1) A complete copy of Your filed relating to the Claim including all documents, whether electronic, printed, or handwritten, generated by You and received by You from any person, concern or entity. 10) Any and all estimates, proposals, bids or quotes prepared by You or at the direction of QBE of Florida Intracoastal Underwriters, Ltd. in connection with the Claim. 12) If you prepared an estimate(s) in connection with the Claim utilizing Xactimate, You should provide a CD with the .pdf version and .esx data for all such estimates you prepared along with identifying the version of Xactimate used to create the estimate(s). Please identify on each the version of Xactimate used to create the individual estimates along with the price list used; if estimates were prepared using Excel, Simsol, or any other computer program, You should provide a CD with a copy of the original computer file/data, not simply a copy in .pdf version or printed version. According to the Plaintiffs, QBE asserted no objection or privilege with regard to the duces tecum requests. QBE does not dispute this assertion, but instead relies on case law which it contends supports its argument that it need not generate a document not already in existence in response to a production request. Alexander v. Federal Bureau of Investigation, 194 F.R.D. 305, 310 (D.C. Cir. 2000) (plaintiffs not entitled to production of lists of persons whose FBI reports were requested by the White House during tenure of particular White House employee, without evidence that Executive Office of the President possessed such a list, despite the fact that it may have had information from which such a list could have been compiled) (citing Rockwell International Corp. v. H. Wolfe Iron and Metal Co., 576 F.Supp. 511, 512 (W.D. Pa. 1983)) (adverse party cannot be required to “prepare, or cause to be prepared,” new documents solely for their production); Soetaert v. Kansas Cit Coca Cola Bottling Co., 16 F.R.D. 1 at *2 (W.D. Mo. 1954) (“Rule 34 cannot be used to require adverse party to prepare, or cause to be prepared, a writing to be produced for inspection, but can be used only to require the production of things in existence”); Sherman Smallwood v. Terry Collins, 2010 U.S. Dist. Lexis 58294 at *8 (S.D. Ohio 2010) (defendants have no duty to create a report or to produce documents that do not exist). *4 In response to QBE's argument that it cannot be compelled to produce a report it has not already generated, the Plaintiffs assert that if the Court agrees with QBE, it can nevertheless compel QBE to produce the electronic information from which the Interloss, Inc. estimates are compiled as originally requested in the notice of deposition duces tecum. The Plaintiffs cite Bray & Gillespie Management, LLC v. Lexington Insurance Co., in support of their argument. 259 F.R.D. 568 (M.D. Fla. 2009) quashed in part on other grounds by 2009 WL 5606058 (M.D. Fla. 2009). In Bray & Gillespie, the Plaintiff produced the ESI in response to a production request as TIFF images without metadata. The Plaintiff altered files that were normally kept as fully text searchable with associated metadata, and by doing so, eliminated the search capabilities that would have been available if the Plaintiff produced the ESI in native format. The Court noted that the Defendant specified the form in which the ESI should be produced, and the Plaintiff did not object. It held that the form of production removed or significantly degraded the Defendant's capability to search the ESI and was therefore not in a reasonably usable form as required by Rule 34. 259 F.R.D. at 585-586. The Plaintiffs' Notice of Taking Subpoena Duces Tecum clearly requests the . pdf version of any Xactimate estimate, as well as the .esx data for all such estimates. QBE did not object to the request for the .esx data, but nevertheless failed to produce it, opting instead to provide its Xactimate estimate in hard copy format only. Although the Court will not compel QBE to generate a recap by trade summary to produce to the Plaintiffs if it has not already done so, it will compel QBE to produce the .esx data for the estimates it prepared. Being fully advised, it is hereby ORDERED AND ADJUDGED that the Plaintiffs' Motion to Compel Production of Documents (DE 165) is GRANTED IN PART and DENIED IN PART as follows: 1. QBE need not produce copies of the documents its attorneys hand selected during the on site document inspection at Wynmoor. 2. QBE shall produce the .esx data for the estimates it prepared using the Xactimate program on or before November 15, 2012. DONE AND ORDERED at Fort Lauderdale, Florida, this 7th day of November, 2012. Footnotes [1] According to QBE these have been produced. [2] The document inspection commenced on October 27, 2011, and continued until December 14, 2011. According to QBE, its attorneys reviewed an estimated 300 boxes of documents, most of which were large bankers boxes, and out of which approximately 145 contained documents deemed relevant to the claims and defenses in this case. Additionally, several boxes and filing cabinets in the security building, three large storage cabinets and five or six large storage shelves in the administration building, and several drawers and boxes in the maintenance building were reviewed. [3] The Plaintiffs also did not attach to their motion the discovery request to which they assert this document is responsive. However, QBE appears to acknowledge that the document would be responsive to at least one of Plaintiffs' discovery requests. The Plaintiffs attached the Notice of Taking Subpoena Duces Tecum of Robert Sansone of Interloss, Inc., to its reply brief, which it asserts required Mr. Sansone to produce documents, including the .esx data for all of the estimates Mr. Sansone prepared.