LAWANNA TYNES, Plaintiff, v. FLORIDA DEPARTMENT OF JUVENILE JUSTICE, Defendant CASE NO. 18-62891-CIV-DIMITROULEAS United States District Court, S.D. Florida Entered on FLSD Docket July 20, 2021 Counsel Glenn Ricardo Miller, North Miami Beach, FL, for Plaintiff. James Orrin Williams, Jr., Philip Benjamin Wiseberg, Williams, Leininger & Cosby, P.A., North Palm Beach, FL, for Defendant. Dimitrouleas, William P., United States District Judge ORDER ON MOTION FOR SANCTIONS *1 This matter come before the Court on Plaintiff's Motion for Leave to File Motion for Continuance of Trial and for Sanctions [DE 101] (the “Motion”), which the Court construes as a Motion for Continuance and for Sanctions. I. BACKGROUND During the course of litigation, Magistrate Judge Snow addressed multiple discovery disputes between the parties. Most relevant to the present dispute, Judge Snow addressed a motion for a protective order, filed by Defendant, which sought protection from three production requests from Plaintiff. See Order [DE 35]. These requests for production sought documents for the Superintendents for each of Defendant's detention facilities from January 1, 2011 through December 31, 2015. Specifically, the three relevant requests sought: 3. All Action Plans for Superintendents from each and every detention facility beginning January 1, 2011 through December 31, 2015. 4. All Inspector General (IG) Reports for Superintendents from each and every detention facility beginning January 1, 2011 through December 31, 2015. 5. All Disciplinary Actions/Reports, Evaluations, Promotions, Demotions, Reprimands (ie. Oral and Written), Counseling Memos, Transfers, Suspensions and Terminations for Superintendents from each and every detention facility beginning January 1, 2011 through December 31, 2015. See Pl.’s Supp. Req. Produc. Pursuant Rule 34 6, [DE 30-2]. Magistrate Judge Snow ordered that Defendant “need only produce responsive documents to Request Nos. 3, 4 and 5 as to those six Superintendents identified by the Plaintiff as alleged comparators....” Order 4, [DE 35]. Nearly a year and a half later, Plaintiff filed a Motion for Leave to File Motion to Compel Discovery and for Sanctions on April 9, 2021. [DE 92]. In this motion to compel, Plaintiff contended that she had obtained certain documents through a FOIA request which should have been produced during discovery and sought sanctions and compulsion of discovery. [DE 92]. This Court referred the motion to Magistrate Judge Snow who denied the motion and required the Parties to engage in a more thorough conferral and granted Plaintiff leave to file a second motion if the Parties could not come to an agreement and Plaintiff could demonstrate Defendant's behavior was willful and sanctionable as opposed to inadvertent. [DE 94]. Plaintiff attempted to file such a motion on April 16, 2021. Magistrate Judge Snow denied Plaintiff's April 16, 2021 Motion, stating that Plaintiff “failed to meet the standard required for the imposition of sanctions in light of, among other reasons, the argument raised by Defendant regarding the lack of specificity of Plaintiff's request for production.” [DE 99]. Magistrate Judge Snow also found no evidence that Defendant had willfully failed to disclose the documents that had been produced in response to Plaintiff's FOIA request. [DE 99]. Defendant agreed, though, to voluntarily attempt to produce documents Plaintiff believed existed but had not yet been produced. [DE 99]. *2 On July 9, 2021, a Calendar Call was held in this matter. [DE 100]. At this Calendar Call, both Parties announced ready to go to trial on Monday, July 12, 2021. As the Southern District of Florida was in the process of transitioning back to holding regular jury trials, no jury trials were being held on the week of July 12, 2021. Accordingly, this Court set this matter for a Calendar Call on July 16, 2021 and placed this matter on the two-week trial calendar commencing July 19, 2021. [DE 100]. Two days before the most recent Calendar Call, less than a week before this matter was to proceed to trial, and over a year after this case was originally set for trial, [DE 13], Defendant produced over 1,200 documents which Defendant stated were responsive to Magistrate Judge Snow's December 2019 Order. [DE 101-2]. In response, Plaintiff filed the present motion, seeking a continuance of this matter and sanctions. The Court denied Plaintiff's request for a continuance at the Calendar Call in this matter on July 16, 2021 and set this matter for trial on July 19, 2021. The Court then heard further argument from the Parties on whether the Court should sanction Defendant's conduct on July 19, 2021 prior to commencing voir dire. II. STANDARD OF LAW Under Federal Rule of Civil Procedure 37, the Court has the power to sanction a party that “fails to obey an order to provide or permit discovery.” See Rule 37(b)(2)(A). This power includes the authority to provide a jury with adverse instructions, instruct the jury that certain facts be taken as established, or prohibit the disobedient party from supporting or opposing certain claims or defenses. Id. See also Higgs v. Costa Crociere S.P.A. Co., 969 F.3d 1295, 1307 (11th Cir. 2020). In order to sanction a party under Rule 37, excluding dismissal, the Court need not find that the disobedient party proceeded in bad faith. Id. at 1304. Additionally, the Court retains the inherent power to sanction a party who proceeds in front of the court in bad faith. Higgs, 969 F.3d at 1306-07. Unlike sanctions under Rule 37, the key to using the Court's inherent power to sanction is a finding of bad faith. Id. at 1304. III. DISCUSSION The Court finds Defendant failed to comply with Magistrate Judge Snow's December 2019 Order. Defendant itself noted that this most recent production of over 1,200 documents was done in compliance with Magistrate Judge Snow's 2019 Order. [DE 101-2]. Further, the Court notes that Defendant was frustratingly non-forthcoming with the existence of these documents, including not stating such at the July 9, 2021 Calendar Call when Defendant announced ready to proceed to trial. Accordingly, if Plaintiff finds a document in the Defendant's most recent production which this Court agrees is relevant to this proceeding, the Court finds that a permissive adverse jury instruction is warranted. As the Eleventh Circuit has previously found, such a permissive adverse-inference instruction is “among the most restrained in [the Court's] arsenal.” Such an instruction will inform the jury that it may infer that earlier production of the reports most recently produced would have been unfavorable to Defendant. Accordingly, it is ORDERED AND ADJUDGED that the Motion [DE 101] is GRANTED in part. DONE AND ORDERED in Chambers at Fort Laduerdale, Broward County, Florida this 19th day of July, 2021.