JOSE A. RODRIGUEZ and KARINA RODRIGUEZ, Plaintiffs, v. GEICO GENERAL INSURANCE COMPANY and GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendants Case No. 6:19-cv-1862-Orl-40GJK United States District Court, M.D. Florida Filed June 15, 2020 Counsel Daniel E. Smith, Ryan Kelly Young, Kenneth John McKenna, Dellecker, Wilson, King, McKenna, Ruffier & Sos, LLP, Orlando, FL, James Irwin Knudson, Knudson Brain Spine Injury Law Office, P.A., Rockledge, FL, for Plaintiffs. Scott A. Turner, Beachside Legal Services, P.L.L.C., Satellite Beach, FL, for Defendants. Kelly, Gregory J., United States Magistrate Judge Order *1 This cause came on for consideration without oral argument on the following motion: MOTION: PLAINTIFFS’ SECOND MOTION TO COMPEL PRODUCTION OF DOCUMENTS RESPONSIVE TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION, FOR ENTRY OF AN ORDER TO SHOW CAUSE AND FOR FEES AND COSTS (Doc. No. 37) FILED: April 15, 2020 THEREON it is ORDERED that the motion is GRANTED IN PART AND DENIED IN PART. On April 15, 2020, Plaintiffs filed their Second Motion to Compel Production of Documents Responsive to Plaintiffs’ First Request for Production, for Entry of an Order to Show Cause and for Fees and Costs (the “Motion”). Doc. No. 37. On May 5, 2020, the Court granted in part and deferred ruling in part on the Motion. Doc. No. 40. The Court deferred ruling on the issues regarding P-Logs, Plaintiffs’ request for an award of attorney's fees in bringing the Motion, and for issuance of an order to show case. Id. at 3-5. On May 14, 2020, the Court granted Plaintiffs’ motion to file a reply to address Defendants’ contention that they do not know what a P-Log is, Doc. No. 44, and on May 20, 2020, Plaintiffs filed their Reply to Defendants’ Response to Plaintiffs’ Second Motion to Compel (the “Reply”). Doc. No. 45. After reviewing the parties’ briefing regarding P-Logs, the Court is unpersuaded that Defendants do not know what P-Logs are. In Request No. 8, served on Defendants on November 27, 2019, Plaintiffs asked for “[t]he complete Policy Log (P-Log) for policies 4315532665 and P7094200.” Doc. No. 37 at 2, 7. Defendants’ first response to the request did not state that P-Logs do not exist for the policies at issue here, and stated, “it is unknown what Plaintiffs seek[ ] ....” Id. at 7. The second response to the request also did not state that P-Logs do not exist for the policies at issue here. Id. Instead, the second response specifically referenced P-Logs, stating, “attached as Exhibit ‘a’ are additional underwriting files, applications and the alleged ‘p log notes’ for the umbrella policy and underlying policy at issue.” Id. In Defendants’ response to the Motion, they state that they do not have P-Logs for the policies “nor do they know what a ‘P-Log’ is.” Doc. No. 38 at 7. They follow that statement with the following: “There are no such ‘P-Logs’ in existence for policies 4315532665 or P7094200 for the Defendants to produce and therefore, they are not required to create such documents to produce.” Id. Defendants attached their employee's affidavit to their response, stating that they “provided all other non privileged documents that have been requested that [are] in [their] possession, custody, and control. There are no other documents to provide in response to Plaintiff[s’] Requests for Production.” Doc. 38-1 at ¶ 5. Conspicuously absent from the affidavit is a statement disavowing knowledge of what P-Logs are. Id. Defendants acknowledged the existence of P-Logs in other cases in which they were sued. Doc. No. 45. As an example, in Cadle v. GEICO General Insurance Co., No. 6:13-CV-1591-ORL-31GJK, 2014 WL 12621190, at *7 (M.D. Fla. May 23, 2014), GEICO General Insurance Co. argued against producing a P-Log and asserted “that the PLOG is irrelevant to this case, because the materials therein ‘relate solely to the creation of the policy’ and bear no ‘relation to Plaintiff's claim for UM benefits.’ ” The Court ordered GEICO General Insurance Co. to produce the P-Log. Id. *2 Defendants’ bald assertion in the response that they do not know what a P-Log is is unsupported by evidence, including their employee's affidavit, which does not address the issue. Doc. Nos. 38, 38-1. The facts set forth above, coupled with the cases in which Defendants acknowledged the existence of P-Logs, lead the Court to doubt Defendants’ contentions that they do not know what a P-Log is. Defendants’ employee's affidavit states that Defendants produced all responsive documents in their possession, custody, and control. Doc. 38-1 at ¶ 5. In the response to the Motion, however, Defendants imply that P-Logs for the policies could be created, as they argue that they have no obligation to create them. Doc. No. 38 at 7. Although Defendants may not be obligated to create what does not exist, Federal Rule of Civil Procedure 34(a)(1)(A) permits a party to request the opposing party to produce “any designated documents or electronically stored information--including ... 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 ....” Systems available to the producing party must be searched for the information requested. Dig. Assurance Certification, LLC v. Pendolino, No. 6:17-CV-72-ORL-41TBS, 2019 WL 161981, at *2 (M.D. Fla. Jan. 10, 2019). Rule 26(b)(1)(B) provides that “[o]n [a] motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.” Defendants have not shown that P-Logs for the policies at issue are not reasonably accessible because of an undue burden or cost. Thus, the Motion is granted as to Request Number 8. Plaintiffs are also entitled to their attorney's fees and costs incurred in litigating the issue of the P-Logs. Fed. R. Civ. P. 37(a)(5)(C). Accordingly, it is ORDERED that that the Motion is GRANTED IN PART AND DENIED IN PART as follows: 1. On or before June 22, 2020, Defendants shall either produce documents responsive to Request Number 8 to Plaintiffs, including a privilege log if Defendants claim any information is privileged or protected from discovery, and file a notice with the Court that they have done so, or show cause as to the following: a. why Defendants are not capable of generating P-Logs for policies 4315532665 and P7094200; b. if they are capable of doing so, why Defendants should not be required to generate the P-Logs; and c. if the P-Logs are reasonably accessible, why sanctions should not be imposed for failing to produce the documents; 2. Plaintiffs are awarded their attorney's fees and costs incurred in litigating the issue of the P-Logs. On or before June 29, 2020, Plaintiffs’ counsel and Defendants’ counsel shall confer in a good faith effort to agree on the amount of attorney's fees and costs awarded pursuant to this Order; 3. If the parties are unable to agree on the amount of attorney's fees and costs, then, on or before July 6, 2020, Plaintiffs may file a motion to quantify the fees awarded in this Order; 4. In all other respects, the Motion is DENIED. 5. Defendants are cautioned that failure to timely comply with this Order will result in the imposition of sanctions. DONE and ORDERED in Orlando, Florida, on June 15, 2020.