MERAKI SOLAR, LLC, et al., Plaintiffs, v. MIKOL ROSENBALM, et al., Defendants Case No. 3:21-cv-405-MCR-HTC United States District Court, N.D. Florida Filed January 10, 2022 Counsel Erick M. Drlicka, Jennifer Shoaf Richardson, Emmanuel Sheppard & Condon, Pensacola, FL, for Plaintiff. Desreal Aaron Sandoval, Pro Se. Cannon, Hope T., United States Magistrate Judge ORDER *1 Before the Court is Charles Wiggins' motion for clarification, or in the alternative, objection to order,[1] requesting the Court clarify whether its November 30, 2021 Order, ECF Doc. 64, holding Defendants and their counsel jointly liable for payment of attorneys' fees and costs to Plaintiffs for Defendants' discovery violations applies to him. ECF Doc. 69. Upon consideration of the relevant case law, Federal Rules, and the parties' submissions, Wiggins' motion is GRANTED. As discussed below, the Court's November 30 Order awarding fees and costs (the “Awards Order”) is clarified to exclude Wiggins from liability. I. BACKGROUND Defendants were initially represented in this case by lead attorneys, Cameron S. Christensen (appearing pro hac vice) and Steven Sumsion of Sumsion Business Law (the “Sumsion Firm”), a firm located in Utah, and by local counsel Charles Wiggins of Beggs & Lane. Although all counsel have since withdrawn their representation of Defendant Desreal Aaron Sandoval, the Sumsion Firm continues to represent Defendants Stuart Kirkhamn and Mikol Rosenbalm. Wiggins, however, has withdrawn his representation of all Defendants. On October 29, 2021, before Wiggins withdrew as defense counsel, the Court granted Plaintiffs' motion to compel Rosenbalm's deposition and awarded attorneys' fees and costs to Plaintiffs under Fed. R. 30(d)(2)[2], for Defendant Rosenbalm and her counsel's unilateral and improper termination of the deposition. ECF Doc. 43. Subsequently, and also before Wiggins' withdrawal, on November 3, 2021, the Court granted Plaintiffs' motion to compel discovery responses and awarded attorneys' fees and costs to Plaintiffs under Fed. R. 37(a)(5). ECF Doc. 48. After allowing Plaintiffs an opportunity to submit evidence as to the amount of fees and costs incurred, the Court entered an order awarding Plaintiffs $32,423.40. ECF Doc. 64. The Court stated in the Award Order that “Defendants and their counsel are jointly liable” for the payment of the sanctions amount. Id. The instant motion followed. Wiggins seeks to have the Court clarify the Award Order to exclude him from liability. Wiggins argues he was not involved in the decision to terminate the deposition, the objections made at the deposition, drafting discovery responses, or requesting or gathering documents. ECF Docs. 69, 71 (reply). Plaintiffs filed a response in opposition, ECF Doc. 68, raising two arguments. First, Plaintiffs argue the motion is untimely. Second, Plaintiffs argue Wiggins was included in their communications with the Sumsion Firm regarding Rosenbalm's deposition and participated in meet and confers related to the written discovery. Id. Thus, Plaintiffs contend Wiggins was well aware of the conduct that resulted in sanctions. II. TIMELINESS *2 Plaintiffs argue the motion is untimely under Fed. R. Civ. P. 72, because it was filed more than fourteen (14) days after the Court issued the orders, ECF Docs. 43, 48, granting Plaintiffs' motions to compel and finding sanctions to be warranted. Fed. R. Civ. P. 72(a). The Court disagrees. First, the Court did not order Defendants or their counsel to pay a certain amount of fees and costs until it entered the Award Order. Second, although the Court stated, in its order granting Plaintiffs' motion to compel deposition, that an award of fees and costs against Rosenbalm and her counsel was warranted, Plaintiffs complained about only the conduct of attorney Christensen. ECF Doc. 43. Thus, there was no reason for Wiggins to believe Plaintiffs were seeking sanctions against him or that the Court had found Wiggins' liable for sanctions. The Court, therefore, finds the motion to be timely filed and will consider the motion on its merits. III. THE SCOPE OF WIGGINS' INVOLVEMENT Under Rules 37(a)(5), this Court may require “the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both” to pay reasonable expenses to the moving party for a discovery violation. Fed. R. Civ. P. 37(a)(5). Thus, under the Rule, the Court has broad discretion in determining whether counsel, the party, or both should have to pay reasonable expenses. Devaney v. Continental American Ins. Co., 989 F.2d 1154, 1161-62 (11th Cir. 1993) (“Rule 37 identifies attorneys advising, or overseeing, discovery as possible subjects of sanctions along with their clients and vests the trial court with broad discretion to apportion fault between them.”). “Rule 37 sanctions must be applied diligently both ‘to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.’ ” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 763-64 (1980) (discussing liability between a client and counsel). The dispositive question here, therefore, is whether it was Wiggins' conduct which warranted sanctions. As stated above, Plaintiffs do not complain about any conduct by Wiggins, and he is not mentioned in Plaintiffs' motion to compel Rosenbalm's deposition. ECF Doc. 29. Instead, the motion focused entirely on Christensen and Rosenbalm's conduct. It was Christensen who attended the deposition, it was Christensen who instructed Rosenbalm not to answer, it was Christensen who terminated the deposition, it was Christensen who took the position that Rosenbalm did not have to answer questions asking about her personal knowledge of matters related to Pur Energy, and it was Rosenbalm who followed the instructions of her counsel not to answer questions about Pur Energy and to leave the deposition. Nonetheless, Plaintiffs argue Wiggins should be held jointly liable for the improper conduct related to Rosenbalm's deposition because he was included in emails regarding Christensen's plans to defend the deposition without being admitted pro hac vice. See ECF Doc. 76-4, 76-5. This contention, however, does not move the needle. First, Plaintiffs did not move for sanctions or any relief based on Christensen's potential violation of the rules against the unauthorized practice of law. Second, the subject email chain started on September 28, 2021, and Wiggins was not copied on the emails until October 6, 2021, the morning of Rosenbalm's deposition. ECF Doc. 76-5. Tellingly, it was Plaintiffs' counsel not Wiggins' co-counsel who started including him on the email chain. ECF Docs. 76-4 at 1, 76-5 at 1. Point in fact, Wiggins was not included on the October 5, 2021, emails regarding setting up a call to discuss the deposition or discovery and was not included in emails regarding prior discovery conferences. ECF Doc. 76-4 at 1-2. Indeed, Wiggins disclaims having participated in any such calls. ECF Doc. 81 at 5. *3 The record is, therefore, completely bare of any evidence Wiggins was involved with Rosenbalm's deposition, much less the decision to terminate it. As Christensen succinctly stated in his October 19, 2021, email, “One of the primary issues is the scope of Ms. Rosenbalm's deposition, which is in dispute between Erick and I as to what the proper scope of that deposition would be.” ECF Doc. 76-8 at 3. Leaving no doubt, Wiggins filed a verified reply in which he unequivocally represents that he “was not solicited as to what objections might be asserted at any deposition of the Defendants”. ECF Doc. 81 at 4. Wiggins also represents that once he was advised of the objections asserted by Christensen, he “specifically advised Utah counsel against a course of action in which Utah counsel would attempt to justify or defend Mr. Christensen's objections.” Id. at 6 (emphasis included). Indeed, Wiggins' name is not on the signature line for the motion for protective order, ECF Doc. 30, or the memorandum filed in opposition to Plaintiffs' motion to compel deposition, ECF Doc. 37. Also, as Wiggins points out, while he did attend the hearing on the motion to compel, he made no argument, even when asked for one by the Court. ECF Doc. 81 at 6. Moreover, Wiggins claims he subsequently requested to withdraw from representing Defendants Rosenbalm and Kirkham's representation because of Utah counsel's decision to not accept his advice to refrain from justifying the objections. ECF Doc. 69 at 6. Thus, it is clear the responsibility for fees and costs being awarded for the canceling of Rosenbalm's deposition does not lie at Wiggins' feet. See Hillig v. Comm'r, 96 T.C. 548, 559 (1991) (finding that although two attorneys served as co-counsel of record for Plaintiffs, such sanctions are appropriate only against one of them in light of facts indicating his responsibility for the violation); see also Rawcar Grp., LLC v. Grace Med., Inc., 2014 WL 12199976, at *6 (S.D. Cal. Mar. 28, 2014) (finding that “[i]n light of Mr. Horne's lack of involvement in this case and limited role as local counsel at the time Plaintiff filed its discovery motions, the Court does not find that sanctions against Mr. Horne and/or his law firm, Knobbe Martens Olson & Bear, LLP, are warranted”). Likewise, the Court finds no evidence Wiggins was more than marginally involved, if at all, with Defendants' failure to adequately respond to written discovery requests. In the reply, Wiggins states he “was not solicited in formulating Defendants' responses to Plaintiffs' document request,” and “did not have a role in gathering and producing any documents responsive to Plaintiffs' requests.” ECF Doc. 81 at 7. In a footnote, Wiggins further claims the Sumsion attorneys did not serve him with a copy of their Defendants' discovery responses. Id. Wiggins explains he deferred to the Sumsion attorneys because they were lead counsel, and the Court finds Wiggins' position to be consistent with his silence in the email communications. Id. at 8. Plaintiffs do not dispute Wiggins' representations (nor do the Sumsion attorneys). Instead, Plaintiffs once again rely on the fact that Wiggins was included in email communications and further argue he participated in telephone communications. As stated above, however, the Court is unconvinced that counsel's decision to include Wiggins on emails elevates Wiggins' role in any discovery decisions, and Wiggins denies such a role. While Wiggins may have been copied on some emails regarding discovery, no email was directed to him and he made no response (nor was he asked to do so).[3] Instead, the emails Plaintiffs' counsel sent were directed only to the Sumsion attorneys and responses came only from the Sumsion attorneys. ECF Doc. 76-3 at 76-8. Moreover, there were many emails between Plaintiffs and the Sumsion attorneys that did not include Wiggins and, once again, when Wiggins was included, it was because Plaintiffs' counsel added him to the distribution list. ECF Docs. 76-7. Also, while Wiggins acknowledges he participated in the meet confer calls, he contends the discussions were “predominantly (if not exclusively) between Plaintiffs' counsel and Utah counsel”. ECF Doc. 81 at 10. *4 Moreover, according to Wiggins' reply, Wiggins worked to get Defendant Sandoval to comply with his discovery obligations. According to Wiggins, he requested that both Utah counsel and Plaintiff's counsel provide him the documents actually produced in an attempt to become familiar with the pending production obligations. ECF Doc. 81 at 10. Thus, the Court finds that Wiggins is also not responsible for the payment of sanctions for the Defendants' failure to respond to written discovery. See J. M. Cleminshaw Co. v. City of Norwich, 93 F.R.D. 338, 349 (D. Conn. 1981) (concluding, pursuant to Rules 37 Fed.R.Civ.P., that of defendant's two counsel of record, only one of the attorneys, Attorney S, was “primarily at fault for defendant's repeated failures of compliance” because “court records indicate that Attorney S was defendant's primary representative both before and throughout the period in which plaintiff's discovery requests were pending”). IV. CONCLUSION While the Court finds the facts and circumstances of this case do not show that Wiggins either participated in, or turned a blind eye to, the conduct that resulted in sanctions, this case presents a cautionary tale of the pitfalls of serving as local counsel. As the Eleventh Circuit has stated, “[t]he phrase ‘attorney advising such conduct’ does not ...exclude ... an attorney's willful blindness.” Devaney v. Continental American Ins. Co., 989 F.2d 1154, 1161-62 (11th Cir. 1993). While that case dealt with the apportionment of liability for sanctions between a client and counsel, the Eleventh Circuit's words of caution equally apply to an apportionment of liability between co-counsel. Counsel of record owes a due to his client to fully represent his client and a duty to the Court to comply with the Court's orders; this duty is no less just because counsel is local rather than lead counsel. Accordingly, IT IS ORDERED: 1. Plaintiffs' motion for clarification, or in the alternative, objection order (ECF Doc. 69) is GRANTED to the extent set forth herein. 2. The Court's Order at ECF Doc. 64 is CLARIFIED to make clear that attorney Charles Wiggins is not jointly liable for the fees and costs awarded to the Plaintiffs. DONE AND ORDERED this 10th day of January 2022. Footnotes [1] Wiggins appears to ask the Court to treat the motion as an objection to a magistrate's order under Federal Rule 72 should the undersigned find Wiggins jointly liable for fees and costs. [2] The award of fees and costs as a sanction for a deposition violation is governed by Rule 37(a)(5), the same rule which applies to other discovery violations. Fed. R. Civ. P. 30(d)(2). [3] The Court notes that several other people were copied on the emails, including paralegals and legal assistants, and Wiggins was the only copied recipient who did not respond or send an email.