UNITED STATES FOR THE USE AND BENEFIT OF HAMILTON ROOFING, INC., Plaintiff, v. THE CINCINNATI INSURANCE COMPANY, Defendant Case No. 6:20-cv-2360-CEM-GJK United States District Court, M.D. Florida Filed January 10, 2022 Counsel Carly Marie Newman, Paula Marie Bird, Rosemary Hanna Hayes, Hayes & Newman, PL, Orlando, FL, for Plaintiff. Callie Elizabeth Waers, Cole, Scott & Kissane, PA, Orlando, FL, Kristina Lynn Marsh, Ryan J. Weeks, Justine Elias, Tampa, FL, Jonathan W. Gonzalez, Pro Hac Vice, Susan Childers North, Pro Hac Vice, Gordon Rees Scully Mansukhani, LLP, Williamsburg, VA, Christina M. Flores, Gordon Rees Scully Mansukhani, LLP, Chicago, IL, Katrina Marino, Martin Hild, P.A., Maitland, FL, Patrick Kevin Burns, Pro Hac Vice, Alexandria, VA, for Defendant. Baker, David A., United States Magistrate Judge Order *1 This cause came on for consideration without oral argument on the following motion: MOTION: PLAINTIFF'S MOTION TO COMPEL DISCOVERY (Doc. No. 45) FILED: September 23, 2021 THEREON it is ORDERED that the motion is GRANTED IN PART AND DENIED IN PART. On December 23, 2020, Plaintiff sued for the benefit of a roofing contractor that performed work as a subcontractor to the prime contractor, Leebcor Services, LLC. Doc. No. 1. The prime contractor contracted with the Plaintiff for construction of a Fire Crash Rescue Station at Patrick Air Force Base. Id. at ¶¶ 3, 4. Pursuant to 40 U.S.C. § 3131, Defendant provided a payment bond guaranteeing payment to the subcontractors supplying labor or materials for the project. Id. at ¶ 6. Plaintiff approved the payment bond. Id. at ¶ 7. Plaintiff alleges the prime contractor failed to pay the roofing contractor $451,925.81 and sues for that amount under the payment bond. Id. at ¶ 11. On September 23, 2021, Plaintiff filed a Motion to Compel Discovery (the “Motion”). Doc. No. 45. The Motion is based on the Plaintiff's Request to Produce (the “Requests”) and raises the following issues: 1) Defendant produced 1,648 Tagged Image File Format images (“TIFFs”), but did not comply with Federal Rule of Civil Procedure 34(b)(2)(E)(i) by designating them as being produced in the ordinary course of business or organizing and labeling them as responsive to specific document requests; and 2) Defendant asserted certain protections against discovery but has not provided a log of the items withheld. Id. The discovery requests at issue were served in May 2021, and Defendant responded to them in June 2021. Id. at 1. Nevertheless, these issues remain unresolved in part due to extensive discussions with defense counsel and because Defendant is on its fourth counsel. Id. at 2, 4. Accordingly, Plaintiff asks the Court to order Defendant to amend its responses to the Requests to comply with Rule 34, order Defendant to produce a privilege log for documents withheld from discovery, and award Plaintiff its attorney's fees for filing the Motion pursuant to Federal Rule of Civil Procedure 37(a)(5)(A). Id. at 4. On September 30, 2021, Defendant filed its response to the Motion (the “Response”). Doc. No. 47. Defendant states that it did not elect to produce the documents in the ordinary course of business and that it met its burden by producing them in a reasonably usable manner. Id. at 2. Rule 34(b)(2)(E) states the following: Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. *2 (Emphasis added.) Thus, “documents” must be produced as they are kept in the usual course of business or be organized and labeled to correspond to the request, and “electronically stored information” must be produced in the form in which it is ordinarily maintained or in a reasonably usable form if the requests do not specify a form for production. The Requests ask for “records” and that they “be provided in their native format with metadata intact ....” Doc. No. 45-1 at 1. Thus, the request for “records” and the phrase “native format with metadata intact” demonstrate that the Requests fall under subsection ii of Rule 34(b)(2)(E). Under Rule 34(b)(2)(E)(ii), the producing party is only permitted to produce the electronically stored information in a reasonably usable form if the request does not specify a form for production. Here, the Requests specify the form: “native format with metadata intact.” Doc. No. 45-1 at 1. Defendant does not contend that it produced the records in such a manner, however, and therefore its argument that it met its burden is unavailing. Regarding its failure to provide a privilege log, Defendant admits it did not do so and requests another thirty days to provide one. Doc. No. 47 at 2. On November 1, 2021, Defendant filed a notice stating that it served a privilege log on all counsel of record. Doc. No. 49. Because Defendant complied with Plaintiff's request, the Motion will be denied as to the request that the Court compel Defendant to serve a privilege log. Finally, although Defendant offers no basis for doing so, it requests that the Court deny Plaintiff's request for attorney's fees. Doc. No. 47 at 2. Federal Rule of Civil Procedure 37(a)(5) provides that if a motion to compel discovery is granted or the disclosure is provided after the motion is filed, then “the court must, after giving an opportunity to be heard, require the party ... whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” The court will not order this payment if: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party's nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5)(A). A party's objection to discovery is substantially justified if “reasonable people could differ as to the appropriateness of the contested action.” Maddow v. Procter & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997) (citation omitted). Defendant was given an opportunity to respond to Plaintiff's request for attorney's fees and costs in its Response. None of the exceptions in Rule 37(a)(5)(A) apply. Plaintiff is therefore awarded its attorney's fees and costs incurred in bringing the Motion. Accordingly, it is ORDERED that the Motion (Doc. No. 45) is GRANTED IN PART AND DENIED IN PART as follows: 1. On or before January 24, 2022, Defendant must serve amended responses to the Requests in native format with metadata intact; 2. Plaintiff is awarded its attorney's fees and costs incurred in bringing the Motion. On or before January 18, 2022, Plaintiff's counsel and Defendant's counsel must confer in a good faith effort to agree on the amount of attorney's fees and costs awarded pursuant to this Order; *3 3. If the parties are unable to agree on the amount of attorney's fees and costs, then, on or before January 25, 2022, Plaintiff may file a motion to quantify the fees and costs awarded in this Order that complies with Local Rule 7.01(c); and 4. In all other respects, the Motion is DENIED. DONE and ORDERED in Orlando, Florida, on January 10, 2022.