SHANA DOTY, Plaintiff, v. ADT, LLC d/b/a ADT SECURITY SERVICES, and TELESFORO AVILES, Defendants. RANDY DOTY, Plaintiff, v. ADT, LLC d/b/a ADT SECURITY SERVICES and TELESFORO AVILES, Defendants CASE NO. 20-60972-CIV-SINGHAL/VALLE, CASE NO. 21-80645-CIV-SINGHAL/VALLE United States District Court, S.D. Florida Entered on FLSD Docket March 24, 2022 Counsel Amy K. Carter, Pro Hac Vice, Heather V. Davis, Pro Hac Vice, Carter Law Group PC, Matthew Ryan McCarley, Pro Hac Vice, Christopher Michael Brown, John Warren Raggio, Fears Nachawati Law Firm, Dallas, TX, Benjamin H. Richman, Pro Hac Vice, J. Eli Wade-Scott, Pro Hac Vice, Jay Edelson, Pro Hac Vice, Nicholas H. Rosinia, Pro Hac Vice, Edelson PC, Chicago, IL, Natalia Maria Salas, The Ferraro Law Firm, P.A., Miami, FL, Karina de Oliveira Rodrigues, Kelley/Uustal, PLC, Fort Lauderdale, FL, for Plaintiff. Alfred John Saikali, Jennifer Ann McLoone, Shook, Hardy & Bacon L.L.P., Miami, FL, Charles C. Eblen, Pro Hac Vice, Jason R. Scott, Pro Hac Vice, Kerensa E.B. Cassis, Pro Hac Vice, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Defendant ADT, LLC. Singhal, Raag, United States District Judge ORDER *1 THIS CAUSE is before the Court upon Plaintiffs’ Expedited Motion to Compel and for Sanctions (DE [213]), filed March 4, 2022.[1] For the reasons set forth below, the Motion is denied. INTRODUCTION Plaintiffs are suing ADT, LLC (“ADT”) for damages after an ADT technician, co-Defendant Telesforo Aviles, made himself an authorized user to Plaintiffs’ ADT Pulse home security system without Plaintiffs’ permission; as an “authorized user”, Aviles had the ability to view and download videos taken by the system's in-home security camera. Aviles accessed Plaintiff's system for 12 days in 2019. Plaintiffs are suing for breach of contract, negligence, gross negligence, intentional infliction of emotional distress and violation of Texas’ consumer protection statute. Discovery in this case closed on November 5, 2021 (DE [90]). ADT filed its Motion for Summary Judgment (DE [151]) on December 3, 2021. Trial is scheduled for the two-week docket beginning March 28, 2022. Two weeks before the discovery deadline, Plaintiffs served a non-party subpoena on Alarm.com seeking production of documents on many topics, including those relating to the creation and development of the Pulse alarm system. Alarm.com sought an order to quash the subpoena from the district court in the District of Columbia. On December 20, 2021, this Court extended the discovery period to January 19, 2022, to allow the District of Columbia court to resolve the motion to quash. (DE [166]). Discovery on all other issues remained closed. When the subpoena dispute was not resolved by January 19, this Court further extended the deadline to February 28, 2022, solely to permit resolution of the Alarm.com discovery dispute. On February 7, 2022, the District of Columbia court granted and denied the motion in part; it ordered Alarm.com to produce some documents but instructed Plaintiffs to obtain the remaining documents from ADT. Plaintiffs and Alarm.com narrowed the discovery requests to three categories of documents: Category 1: Information regarding the security and/or privacy features for the ADT Pulse System from its creation (around 2009) through April 2020 (inclusive of features that were implemented and those considered but not implemented) (“Category 1 documents”). Category 2: Any records, data, or logs that may show (a) access, events on, or use of certain affected ADT customers’ Pulse systems; (b) any viewing, downloading, emailing, or sharing of content associated with affected ADT customers’ Pulse Systems; and/or (c) access to or use of any Pulse Systems by ADT's technician. (“Category 2 documents”); and Category 3: Information regarding [Telesforo Aviles’] actions and any response thereto by Alarm.com or ADT (from March 20, 2020 to the present) (“Category 3 documents”). *2 It is unclear precisely which documents Plaintiffs are seeking from ADT but ADT refused to provide the documents. On February 23, 2022, Plaintiffs petitioned this Court for leave to file the present motion, by which Plaintiffs appear to ask the Court to compel Defendant ADT, LLC (“ADT”), to produce documents it requested – but did not receive – from Alarm.com. Plaintiffs argue that their previous discovery requests to ADT addressed the information sought from Alarm.com, but ADT failed to search for and/or failed to provide those documents. Plaintiffs also ask the Court to extend the discovery period. ADT opposes the motion on the grounds that (1) Plaintiffs never requested those items from ADT in discovery; or, if they had (2) Plaintiffs failed to timely move to compel production; and (3) Plaintiff has filed to show the documents requested are relevant or proportional to the needs of the case as required by Fed. R. Civ. P. 26. II. APPLICABLE RULES Rule 26(a)(1), Federal Rules of Civil Procedure, requires parties to provide names and addresses of witnesses and copies or descriptions of documents “that the disclosing party may use to support its claims or defenses....” Fed. R. Civ. P. 26(a)(1)(i) and (ii). Local Rule 26.1(g) provides that a motion to compel must be brought within 30 days of “(a) original due date (or later date if extended by the Court or the parties) of the response or objection to the discovery request that is the subject of the dispute; (b) date of the deposition in which the dispute arose; or (c) date on which a party first learned of or should have learned of a purported deficiency concerning the production of discovery materials.” S.D. Fla. L.R. 26.1(g)(1). Failure to file a motion to compel within the 30-day period may constitute a waiver of the relief sought at the Court's discretion. Id.; Subair Systems, LLC v. PrecisionAire Systems, Inc., 2008 WL 11470828, at *1 (S.D. Fla. Dec. 12, 2008 (motion to compel brought outside the 30-day period provided by local rules properly denied). “When a party fails to complete discovery in time, it may move to reopen discovery and the court may, ‘for good cause,’ grant the motion if the party shows that it failed ‘because of excusable neglect.’ ” EarthCam, Inc. v. OxBlue Corp., 703 Fed. Appx. 803, 813 (11th Cir. 2017) (quoting Fed. R. Civ. P. 6(b)(1)(2)). III. DISCUSSION A. The Discovery 1. Initial Disclosures Plaintiffs argue that ADT violated its obligations under Rule 26(a) to disclose documents. In its Rule 26(a) initial disclosures (served July 31, 2020), ADT disclosed “[e]mployees, representatives, and/or agents of Alarm.com may have knowledge regarding the storage and collection of Alarm.com data.” Plaintiffs argue this disclosure was insufficient because it did not disclose that Alarm.com has an ongoing role in developing, programming, and maintaining the Pulse system that was not disclosed and that ADT did not disclose. The Court disagrees that this disclosure was insufficient. Rule 26(a) requires parties to provide names and addresses of witnesses and copies or descriptions of documents “that the disclosing party may use to support its claims or defenses....” Fed. R. Civ. P. 26(a). ADT disclosed Alarm.com. ADT was not under an obligation to produce documents that Plaintiffs might find relevant. 2. Document production and interrogatories *3 Plaintiffs next argue that ADT failed to adequately respond to its interrogatories and document requests and failed to update its discovery responses. Plaintiffs seek to compel better responses to Request for Production Numbers 23, 25, and 60 and Interrogatory Number 13. ADT served its objections and responses to Plaintiffs’ Interrogatories and Plaintiffs’ Request for Production on February 28, 2021. Plaintiffs now complain that “ADT lodged various boilerplate objections... and substantially limited its resulting responses.” 3. Corporate depositions Plaintiffs argue that the witnesses produced for 30(b)(6) depositions were not adequately prepared in their areas of testimony. Plaintiffs state that Alan Edmonds was produced to testify on “[t]he creation, production, and engineering of the ADT Pulse Application system” but only reviewed three spreadsheets showing the extent of Aviles’ intrusion. Plaintiffs complain that Edmonds was not prepared to testify with any of the historical Pulse documents nor did he disclose their existence. Edmonds was deposed on June 15, 2021. Plaintiffs also take issue with the testimony provided by Ryan Fritts and Jason Vandiver. Fritts was deposed on June 16, 2021, and Vandiver on June 2, 2021. ADT's chief technology officer was deposed in September 2021. 4. The Alarm.com documents Plaintiffs argue that, notwithstanding ADT's initial disclosure, they first learned of the extent of Alarm.com's involvement in the development and programming of the Pulse system in the depositions of Sevilla and Edmond in June and September 2021. But Plaintiffs did not seek relief from the Court, did not serve another discovery request on ADT, and did not promptly seek discovery from Alarm.com. Instead, Plaintiffs waited until two weeks before the discovery deadline to serve a Rule 45 subpoena on Alarm.com. B. Analysis There are four factors the court should consider in determining whether a discovery period should be reopened: “(1) the danger of prejudice to the nonmovant; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith.” EarthCam, Inc., 703 Fed. Appx. at 813 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). Upon review of the discovery record in this case, the Court concludes that discovery should not be reopened. Plaintiffs now seek an order compelling ADT to produce historical documents relating to the security practices and procedures of the Pulse system. The discovery requests served by Plaintiffs do not clearly specify this topic. Request for Production number 23 asks for “all documents relating to any audit or security review you performed of the ADT Pulse Application.” ADT filed objections but stated that it would provide “its enterprise-wide penetration summaries for the past three years, which would necessarily include the servers, systems, and databases that house and service Pulse.” Plaintiffs did not move to compel a better response[2] and did not express, at least to the Court, dissatisfaction with the scope of ADT's response. Request to Produce number 25 asks for “all documents sufficient to identify your security policies, procedures, or practices related to the ADT Pulse application.” ADT objected on the grounds that the request was vague and not limited in scope but offered to produce certain responsive documents. Plaintiffs did not move to compel a better response. *4 Interrogatory number 13 asks ADT to “[d]escribe the security measures you have and had in place to ensure ADT customers’ privacy and security are maintained and protected, including specifically those in place to detect or prevent unauthorized access to ADT Pulse Services. Include in your response the ADT employees who developed these security measures and the ADT employees tasked with ensuring these security measures are followed.” Request to Produce number 60 asked for “any documents related to your response to interrogatory number 13.” ADT provided the following answer: ADT objects to this interrogatory because it seeks information that is not relevant to any party's claim or defense and is not proportional to the needs of the case at this procedural posture of this case. As written, the phrase “ADT customers’ privacy and security” is inclusive of and broader than the security measures in place specific to “ADT Pulse Services.” It therefore seeks information that is not relevant to any claim or defense as Plaintiff's class is specifically limited to Pulse customers. ADT also objects to the portion of this Interrogatory requesting the identities as ADT's policies and procedures were not developed by any single person. The identities of certain individuals is therefore not relevant to any claim or defense in this case, is not proportional to the needs of the case, and is overbroad without any temporal limitation. Answering the non-objectionable portion of the request ADT states that in addition to the policies and procedures identified and produced in conjunction with ADT's responses to requests for production at Nos. 10, 11, 19 and 20, ADT adopted technical, administrative, and physical safeguards designed to limit unauthorized access to ADT's systems on an enterprise level. Nevertheless, Plaintiffs did not seek to compel a better response to this interrogatory. Plaintiffs served a 30(b)(6) deposition notice that contained 29 topics of inquiry. ADT produced at least 10 high-level executives, who appeared for deposition between June and September 2021. Until filing the present motion, Plaintiffs never brought to the Court's attention any dissatisfaction with the witness’ preparation or testimony. Both parties have capably and vigorously prepared this case for trial and have acted in good faith. The discovery issues in this motion were clearly knowable by June 2021 but were not addressed at that time. The focus of Plaintiffs’ inquiry, however, appears to have shifted in October 2021 toward the development of the Pulse system and its security features. But this change of focus occurred near the end of the discovery period and yet Plaintiffs did not seek relief from the Court until February 2022, after Defendant filed its Motion for Summary Judgment and just weeks before trial. The 30-day deadline for filing discovery motions imposed by the Local Rules is designed to prevent situations such as this. And even though the Court has discretion to override the 30-day limit, it would be an abuse of discretion to do so at this late date. See SubAir Systems, 2008 WL 11470828, at *2 (Dimitrouleas, J.) (denying motion to reopen discovery made 5 months after close of discovery). Furthermore, the Court's scheduling order cannot be altered at this late date. “As scheduling orders set the expectations of the parties and the Court during the pretrial process, such orders ‘should not be ignored blithely nor trifled with, without some peril or consequence.’ ” United States v. Marder, 318 F.R.D. 186, 189–90 (S.D. Fla. 2016) (citing Fed. R. Civ. P. 16(d)) (quoting Hudson v. I.R.S., 2007 WL 2295048, at *10 (N.D.N.Y. Mar. 27, 2007)). “Veritably, ‘a scheduling order is the critical path chosen by the trial judge and the parties to fulfill the mandate of Rule 1.’ ” Id. at 190 (quoting Executive Risk Indem., Inc. v. Charleston Area Med. Ctr., Inc., 2010 WL 4117050, at *1 (S.D.W. Va. Oct. 19, 2010) (internal citation and quotation omitted). The prejudice to ADT would be great and would amount to a do-over of discovery and, indeed, of the case that has been litigated for the past two years. The Court cannot grant Plaintiffs the relief they request. IV. CONCLUSION *5 For the reasons discussed above, it is hereby ORDERED AND ADJUDGED that Plaintiffs’ Expedited Motion to Compel and for Sanctions (DE [213]) is DENIED. DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 23rd day of March 2022. Copies furnished counsel via CM/ECF Footnotes [1] Plaintiffs first raised the Motion to Compel and for Sanctions on February 23, 2022, as an exhibit to a Motion for Leave to File Excess Pages (DE [198]). The Court granted leave to exceed the page limit (DE [211]) on March 4, 2022, and Plaintiffs filed the present motion on that date. [2] Plaintiffs did file a motion to compel the results of ADT's internal investigation (DE [103]) which was withdrawn. (DE [124]). The subject of that motion to compel is unrelated to the subject of the present motion.