FUNCTIONAL PATHWAYS OF TENNESEE, LLC, Plaintiff, v. K.C. CROSS, etc., et. al., Defendants CASE NO. 15-61600-CIV-DIMITROULEAS/SNOW United States District Court, S.D. Florida Entered on FLSD Docket March 22, 2021 Counsel Erika Clarke Birg, Nelson Mullin Riley & Scarborough, LLP, Atlanta, GA, John E. Winters, Pro Hac Vice, Kraymer Rayson, LLP, Knoxville, TN, Bryce E. Fitzgerald, Pro Hac Vice, Kramer Rayson LLP, Knoxville, TN, for Plaintiff. Christopher Mark David, Joshua Michael Salmon, Jeffrey James Molinaro, Michael Brett Kornhauser, Fuerst Ittleman David & Joseph, PL, Miami, FL, for Defendants K.C. Cross, Robert A. Brock, Quality Nursing Home Management, LLC, 1351 Management, LLC, Cross Terrace Rehab, Inc., Monticello HLTH Management, LLC, 1780 Management, LLC, Greenville HLTH Management, LLC, 13455 Management, LLC, Quality Consulting, LLC, Cross Point Care, Inc., Cross Pointe Care, Inc., LLC, 440 Management, LLC, Quality Total Care, LLC, Crossings Retirement Home, Inc., Crossings Retirement Home, Inc., LLC, 4445 Management, LLC, BGI Retirement, LLC, Quality Life Management, LLC, 206 Management, LLC, Crossroads Retirement Home, Inc. Snow, Lurana S., United States Magistrate Judge ORDER ON DEFENDANTS’ RENEWED MOTION TO COMPEL *1 THIS CAUSE is before the Court on Defendants’ Renewed Motion to Compel Better Responses to First Set of Requests for Production and Motion for Sanctions (ECF No. 150), which was referred to United States Magistrate Judge Lurana S. Snow by the Honorable William P. Dimitrouleas. (ECF No. 131) I. BACKGROUND Plaintiff filed this action on August 4, 2015 against Defendants K.C. Cross, Robert A. Brock, and various entities allegedly owned or controlled by Defendants Cross and/or Brock. (ECF No. 1) In its Amended Complaint, Plaintiff alleges claims for breach of contract, conversion, and unjust enrichment. (ECF No. 64 at 20–36) Plaintiff is in the business of “providing physical, occupational and speech therapy services to individuals residing in nursing homes owned or operated as licensed long-term care and skilled nursing facilities.” (ECF No. 64 at 3) Plaintiff entered into therapy services agreements with Defendants. (ECF No. 64 at 16) Generally, Plaintiff alleges that Defendants failed to pay for the therapy services rendered by Plaintiff and that Defendants wrongfully converted Plaintiff's equipment and property. (ECF No. 64 at 17–19) Defendants served their Requests for Production on July 27, 2020. (ECF No. 150 at 1). Plaintiff responded on September 2, 2020, and began a rolling production of documents on January 22, 2021. (ECF No. 150 at 2) Defendants now seek to compel better responses to certain Requests for Production. Specifically, Defendants seek to compel Plaintiff to comply with Federal Rule of Civil Procedure 34(b)(2)(E) and to produce all remaining outstanding responsive documents by a date certain. (ECF No. 150 at 1) Further, Defendants seek an award of sanctions in the form of attorneys’ fees and a reprimand of Plaintiff and Plaintiff's counsel.[1] (ECF No. 150 at 1) II. DISCUSSION The scope of discovery is broad; parties may generally obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and that is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Further, a responding party must either 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.” Fed. R. Civ. P. 34(b)(2)(E). A. Production Defendants complain in their Motion that Plaintiff has produced “randomly culled and grouped records without regard to the requests or Defendants,” and therefore, Plaintiff is not in compliance with Rule 34(b)(2)(E). (ECF 150 at 4) Plaintiff asserted in a letter dated January 29, 2021, that the documents were being produced as they were “kept in the ordinary course of business.” (ECF No. 150-7 at 9) As previously noted, documents have been produced on a rolling basis and continue to be produced in that manner. *2 A party choosing to produce documents as they were kept in the usual course of business “should organize the documents in such a manner that the requesting party may obtain, with reasonable effort, the document responsive to their requests.” Armor Screen Corp v. Storm Catcher Inc., No. 07-81091, 2009 WL 291160, at *2 (S.D. Fla. Feb. 5, 2009). Further, the producing party “must either direct the responding party to the location or locations within its files where documents responsive to each specific request may be found, or provide a key or index to assist the responding party in locating the responsive documents.” Boldstar Technical, LLC v. Home Depot, U.S.A., Inc., No. 07-80435, 2008 WL 11320007, at *4 (S.D. Fla. June 5, 2008). Subsequent to the filing of the instant Motion, Plaintiff created a production log/index which was produced to Defendants on March 4, 2021. (ECF No. 153 at 2) The production log/index gives a description of the documents and the categories to which the documents respond to, and the log/index further identifies by bates number which documents are responsive to each particular Defendants’ request. (ECF No. 153-1) The Court finds that Plaintiff's production log/index is sufficient to assist the Defendants in locating the documents responsive to their requests, and thus, Plaintiff's production complies with Rule 34(b)(2)(E). However, courts typically require a party producing documents as they are kept in the usual course to provide information regarding how the documents were ordinarily kept, which should include the identity of the custodian or person from whom the documents were obtained, an assurance that the documents have been produced in the order in which they were maintained, and a general description of the filing system from which they were recovered. Mizner Grand Condo Ass'n, Inc. v. Travelers Prop. Cas. Co. of America, 270 F.R.D. 698, 701 (S.D. Fla. 2010). Plaintiff shall provide information regarding how the documents were ordinarily kept; particularly, Plaintiff shall provide the names of any records custodian and an assurance that the documents have been produced as they were maintained. Defendants also seek a date certain for the completion of Plaintiff's production. Plaintiff stated in its response that over 120,000 pages of documents have been produced thus far, and that the only outstanding production are documents from January 1, 2009 to December 31, 2010 for Defendants Crossings Retirement Home, Inc. and Crossings Retirement, Inc., LLC. (ECF No. 153 at 4) To the extent that Plaintiff has not already done so, Plaintiff shall produce the remaining documents no later than April 9, 2021. B. Sanctions Defendants seek sanctions based on two arguments. First, Defendants claim that Plaintiff has not complied with Rule 34 and has been dilatory in producing its responses. (ECF No. 150 at 5) Second, Defendants allege that Plaintiff was disingenuous in objecting to the request for timekeeping records when ultimately it was determined that the timekeeping records had been destroyed. (ECF No. 150 at 5) Sanctions must be awarded if a motion to compel is granted or if the discovery is provided after the motion was filed. Fed. R. Civ. P. 37(a)(5)(A). However, the court must not order sanctions if “the opposing party's nondisclosure, response, or objection was substantially justified.” Fed. R. Civ. 37(a)(5)(A)(ii). The Court declines to award sanctions because Plaintiff's actions are substantially justified. As to Defendants’ first argument, Plaintiff has stated that due to COVID-19, counsel's office has been effectively closed with many employees working from home. (ECF No. 153 at 5) Surely, the impact of counsel's office closure combined with the fact that the documents sought are ten or more years old provides substantial justification for the timing of Plaintiff's response. Regarding Defendants’ second argument, Plaintiff states that at the time of objecting to the timekeeping records, Plaintiff was unaware of what documents might be reasonably located and was unsure of whether Plaintiff possessed any responsive documents.[2] (ECF No. 153 at 5) Further, Plaintiff produced documents that are ultimately responsive to the information Defendants sought in the timekeeping records. (ECF No. 150-7 at 31) The Court finds that Plaintiff's basis for objecting even though Plaintiff was unsure of what documents existed or would be located is substantially justified. III. CONCLUSION *3 Having carefully reviewed the Motion, the Response, the Reply, the court file, and applicable law, it is hereby: ORDERED AND ADJUDGED that Defendants’ Renewed Motion to Compel and Motion for Sanctions is GRANTED IN PART and DENIED IN PART. Defendants’ Motion is GRANTED to the extent that: (1) Plaintiff shall provide information regarding how the documents were ordinarily kept; particularly, Plaintiff shall provide the names of any records custodian and an assurance that the documents have been produced as they were maintained. (2) Plaintiff shall update its production log/index with the remainder of its outstanding discovery. (3) Plaintiff shall provide the information regarding how the documents were ordinarily kept, along with the remainder of its outstanding production and an updated production log/index, no later than April 9, 2021. Defendants’ Motion for Sanctions and Request for Hearing are DENIED. DONE AND ORDERED at Fort Lauderdale, Broward County, Florida, this 22nd day of March, 2021. Footnotes [1] Plaintiff also requested that the Court conduct a hearing on this Motion but the Court finds that the straightforward issues presented do not necessitate a hearing for prompt and cost-efficient resolution. [2] Defendants, in their reply (ECF No. 154 at 1), cite to a footnote from Miccosukee Tribe of Indians of Fla. v. Cypress for the proposition that objecting to the production of records without confirming whether such records exist is per se not allowed. No. 12-22439, 2013 WL 10740706, at *2 n.3 (S.D. Fla. June 28, 2013). However, the footnote from that case implies that it would be improper to object for the purposes of preserving an objection when the attorney knows that their client has no responsive documents. Id. Here, Plaintiff was unsure of the existence and location of any responsive documents.