RICARDO T. SANZ, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant CASE NO. 19-23122-CIV-COOKE/GOODMAN United States District Court, S.D. Florida Signed January 11, 2022 Counsel Ria Nikki Chattergoon, RC Law Group, Hollywood, FL, for Plaintiff. Carmen Maria Rodriguez, Law Offices of Carmen Rodriguez, P.A., Miami, FL, Derek H. Sparks, Juan Aedo Gonzalez, Liebler Gonzalez & Portuondo PA, Miami, FL, for Defendant. Goodman, Jonathan, United States Magistrate Judge ORDER GRANTING IN PART/DENYING IN PART PLAINTIFF'S MOTION FOR SANCTIONS *1 United States District Judge Marcia G. Cooke referred this civil rights case to the Undersigned “for appropriate resolution of all non-dispositive pretrial matters, as well as motions for attorney's fees and costs and motions for sanctions.” [ECF No. 4]. Plaintiff, Ricardo T. Sanz, filed a motion for sanctions against Defendant, Wells Fargo Bank, because of its alleged failure to appear at depositions scheduled for October 13, 2020, October 28, 2020, and October 29, 2020. [ECF No. 105]. Defendant filed a response [ECF No. 106] and Plaintiff filed a reply [ECF No. 107]. The Undersigned GRANTS in part and DENIES in part Plaintiff's request for sanctions. I. Factual Background[1] Plaintiff and Defendant attached to each of their legal memoranda numerous email exchanges between the attorneys for both sides. The first email exchange available to the Undersigned occurred on October 1, 2020 and the final email was sent on October 29, 2020. The email exchanges almost exclusively concern the deposition of Defendant's Rule 30(b)(6) Corporate Representative on four[2] topics designated by Plaintiff. The Undersigned summarizes the emails between counsel for the parties as follows: • 10/01/20: Plaintiff sends an email to Defendant scheduling the deposition of Defendant's 30(b)(6) corporate representative for 10/13/20 and says the deposition for all designated topics needs to occur that day. [ECF No. 106-1]. • 10/05/20: Plaintiff, realizing he did not attach the deposition notice to the October 3, 2020 email, sends an email to Defendant with the actual notice containing all five topics. [ECF No. 106-1]. • 10/12/20: Plaintiff sends an email asking Defendant to confirm the deposition for 10/13/20 at 10:00 AM. [ECF No. 106-1]. • 10/12/20 at 1:02 PM: Defendant sends an email to Plaintiff saying it is objecting to the topic categories in the notice, is adding the issue to the hearing set for October 16, 2020 and does not have a corporate representative who can address the topics. [ECF No. 106-1]. • 10/12/20 at 4:11 PM: Defendant emails to Plaintiff a formal notice containing objections to Plaintiff's deposition notice. [ECF No. 105-1]. • 10/12/20 at 4:18 PM: Plaintiff responds to Defendant about how these objections are less than 24 hours before the deposition and says Defendant needs to stop playing games, reminding Defendant that there is a 10/30/20 discovery deadline. [ECF No. 150-1]. • 10/16/20: The Undersigned held a discovery hearing and overruled Defendant's objections on Topics 3, 4, and 5, modified Topics 1-2, and ordered the deposition take place on or before the 10/30/20 discovery deadline. [ECF Nos. 39; 41]. • 10/19/20: Plaintiff offers 10/20, 10/21, 10/23, 10/26, 10/27, 10/28, 10/29, and 10/30 as available dates for the deposition and attaches a draft copy of the revised deposition notice. [ECF No. 105-2]. • 10/22/20 at 8:56 PM: Defendant sends an email to Plaintiff confirming that a Corporate Representative for designated Topic 4 is available 10/28 in the afternoon or 10/30, advising that a Corporate Representative for designated Topic 2 is available 10/29 in the afternoon, and that it would let Plaintiff know about the availability of a Corporate Representative for designated Topics 1 and 3 as soon as possible. [ECF No. 105-3]. *2 • 10/23/20 at 5:59 PM: Plaintiff sends an email attaching a deposition notice for the two days suggested [10/28 and 10/29] and informs Defendant that he will not agree to conduct discovery outside the window and all the depositions need to occur before 10/30/20. [ECF No. 105-4]. • 10/27/20 at 6:45 PM: Defendant emails Plaintiff saying it will be able to provide a Corporate Representative for designated Topics 1 and 3 by Friday [10/30] but they cannot occur on 10/28. Defendant says it will email tomorrow with the witness’ availability. Defendant informs Plaintiff that the deposition on designated Topic 1 can likely be Thursday [10/29] and designated Topic 4 can occur on Wednesday as scheduled and designated Topic 2 can occur on Thursday as scheduled. [ECF No. 105-5]. • 10/27/20 at 8:23 PM: Plaintiff responds and says that there is no issue with the deposition for designated Topics 1 and 3 occurring on Thursday but that Friday is no longer an available timeslot because other matters were scheduled after Defendant did not respond earlier regarding dates. [ECF No. 105-5]. • 10/27/20 at 9:43 PM: Plaintiff emails Defendant about some missing discovery and says that the missing document is necessary for the 10/28/20 deposition. [ECF No. 106-2]. • 10/28/20 at 10:31 AM: Plaintiff emails Defendant and says it is two and a half hours before the deposition and he is still missing the discovery. [ECF No. 107-1, p. 1]. • 10/28/20 at 11:05 AM: Defendant emails Plaintiff saying that the 10/27/20 9:43 PM email was the first time he had brought up this discovery issue and it is seeing what can be done this morning. [ECF No. 106-2]. • 10/28/20 at 11:12 AM: Plaintiff responds to this discovery issue and says the onus should not be on him to address Defendant's discovery failures. [ECF No. 107-1, p. 3]. • 10/28/20 at 12:07 PM: Plaintiff emails Defendant and says that he needs to take the deposition on designated Topic 1 before Topic 2 because of topic content. [ECF No. 107-1, p. 6]. • 10/28/20 at 1:06 PM: Plaintiff emails Defendant and says he and the court reporter are waiting on Zoom; he wants to know if Defendant would be appearing. [ECF No. 105-8]. • 10/28/20 at 1:12 PM: Defendant emails Plaintiff and says that it emailed Plaintiff earlier to advise that this deposition would need to be rescheduled. [ECF No. 105-8]. • 10/28/20 at 1:48 PM: Plaintiff emails Defendant and says that he told Defendant that this deposition was still going forward. Plaintiff says that Defendant cannot unilaterally cancel depositions like this. Plaintiff says that he is rescheduling all depositions for tomorrow at 10:00 AM and attaches a Notice of Taking Deposition. [ECF No. 105-8]. • 10/28/20 at 7:11 PM: Defendant emails Plaintiff and says that it has been able to arrange for all the depositions to occur on 10/29/20 at the following times: 1:00 PM for Topic 3, 2:00 PM for Topic 2, 4:30 PM for Topic 1, and 5:30 PM for Topic 4. [ECF No. 107-1, p. 14]. • 10/28/20 at 7:48 PM: Plaintiff responds to Defendant and says that he has stated multiple times that he needs to take the deposition on Topic 1 before Topic 2 and because Defendant emailed back so late, he has no way of rescheduling the court reporter. [ECF No. 107-1, p. 13]. • 10/28/20 at 9:02 PM: Plaintiff sends another email to Defendant informing it that he intends to file a sanctions motion if the witnesses are not there at 10:00 AM and reminds Defendant it cannot dictate the order or length of Plaintiff's 30(b)(6) deposition of Defendant's Corporate Representative. [ECF No. 107-1, p. 13]. *3 • 10/28/20 at 10:02 PM: Plaintiff emails Defendant again clarifying that the times he gave were in the deposition notices and he cannot complete the depositions in the times Defendant chose as appropriate. [ECF No. 106-3]. • 10/29/20 at 7:47 AM: Defendant emails Plaintiff and says that his method of renoticing depositions is a problem and, while it understands that topics may go beyond an hour, Plaintiff never provided an estimate on how much time was needed for each designated topic. Defendant says that it is no small task to schedule four people for the same day. [ECF No. 106-3]. • 10/29/20 at 9:34 AM: Plaintiff sends an email with unknown content. [ECF No. 106-3]. • 10/29/20 at 9:51 AM: Defendant sends an email saying the witnesses are available as follows: 1:00 PM for Topic 3, 2:00 PM for Topic 2, 4:30 PM for Topic 1, and 5:30 PM for Topic 4. Defendant informs Plaintiff that no witnesses will be present at 10:00 AM. [ECF No. 106-3]. II. Jurisdiction and Legal Standard Magistrate judges may issue orders on any “pretrial matter not dispositive of a party's claim or defense[.]” Fed. R. Civ. P. 72(a). Such an order may not be set aside unless it “is clearly erroneous or is contrary to law.” Id. Thus, magistrate judges have jurisdiction to enter sanctions orders for discovery failures which do not strike claims, completely preclude defenses, or generate litigation-ending consequences. Practice Before Federal Magistrates, § 16.06A (Mathew Bender 2010) (“[D]iscovery sanctions are generally viewed as non-dispositive matters committed to the discretion of the magistrate unless a party's entire claim is being dismissed.”). Rule 37 allows courts broad discretion to fashion appropriate sanctions for discovery violations. Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). This Rule allows for sanctions when a party fails to comply with a discovery order or fails to attend its own deposition. See Fed. R. Civ. P. 37(b)(2)(A), (d)(1)(A)(i). For both of these offenses, the Rule authorizes a variety of sanctions, such as, striking pleadings or holding the disobeying party in contempt of court. Fed. R. Civ. P. 37(b)(2)(A)(iii), (vii); 37(d)(3); see also United States v. Certain Real Prop. Located at Route 1, Bryant, 126 F.3d 1314, 1317 (11th Cir. 1997). Furthermore, Rule 37 provides that instead of, or in addition to, these sanctions, “the court must order the disobedient party, attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C), (d)(3); see also Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258 (1975). The intent behind Rule 37 sanctions is “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) (quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976)) (per curiam). This deterrence is necessary because “it is not the court's function to drag a party kicking and screaming through discovery.” Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 134 (S.D. Fla. 1987). III. Analysis *4 Plaintiff alleges that Defendant has willfully disregarded this Court's orders and “taken the position in this case that it [can] do whatever it wants.” In Defendant's view, Plaintiff's motion is an attempt to “rehash[ ] his version of old discovery disputes long resolved by ... this Court.” Defendant claims that Plaintiff's attempts to schedule the depositions at issue were made with the intent to “paper the file” rather than “actually conduct[ ] the depositions.” In his reply, Plaintiff accuses Defendant of mischaracterizing the facts and claims this sanctions motion is the only recourse available for Defendant's discovery conduct. [ECF No. 107].[3] Defendant believes that the Undersigned's earlier Report and Recommendations to extend the discovery deadline [ECF No. 58] should have been the end of this dispute because it post-dates the current dispute and the depositions eventually occurred in December 2020. [ECF No. 106]. Plaintiff argues that the Undersigned did not address the merits of the sanctions request during the hearing or in the Report and Recommendations and the subsequent developments in the case do not compensate for the expenses Plaintiff previously incurred. Plaintiff's position has merit -- the fact that the deposition eventually occurred does not negate the earlier money and effort spent trying to coordinate and conduct the deposition under the previous discovery time restrictions. Moreover, the time-gap between the discovery dispute and the motion is not due to Plaintiff's procrastination or lack of diligence; Plaintiff appropriately waited for the Court's permission to file the motion. [ECF No. 98]. Defendant does not dispute in its response that Plaintiff scheduled the three depositions and the witness did not appear. It instead argues that the depositions were properly cancelled or that Plaintiff's motive in scheduling the depositions was to “paper the file.” Because the parties agree that the depositions were scheduled and the witness(es) did not appear, the only question left for the Undersigned is who is at fault for the non-appearance. Just because a party is at fault for a deposition being cancelled or for the opposing side incurring an unnecessary expense does not mean that the party at fault acted in bad faith. Assume, for example, a plaintiff schedules an out-of-state deposition (in pre-pandemic times), defense counsel flies there on a commercial flight the night before and checks into a hotel room -- but, on the morning of the deposition, plaintiff's counsel unilaterally cancels the deposition because she is sick in the hospital. There is no bad faith in that scenario, but the plaintiff's counsel still caused the defense attorney to incur an unnecessary expense and could be required to reimburse the defense attorney for her costs. While the situation here is not as clear-cut as the one in the hypothetical, the circumstances surrounding the depositions provide the Undersigned with enough information to conclude that Defendant caused the expenses to be incurred for the October 28, 2020, and October 29, 2020 depositions. It is possible Defendant also caused the expenses incurred for the October 13, 2020, deposition, but Plaintiff has not provided enough information to determine that this expense was unavoidable. The following timeline serves as the basis for the Undersigned's ruling. *5 On October 1, 2020, Plaintiff scheduled a 30(b)(6) Corporate Representative deposition to occur on October 13, 2020. Defendant indicated on October 12, 2020, that it was objecting to Plaintiff's deposition designations and would be adding the objections to an upcoming discovery hearing in front of the Undersigned. Plaintiff's failure to provide the specifics of his arrangement with the court reporter makes it impossible for the Undersigned to determine whether Plaintiff could have avoided the expenditure when he realized Defendant would not be attending. In this circumstance, because Defendant informed Plaintiff it was objecting to the designations, the objections were, in fact, placed before the Undersigned for resolution, and Plaintiff has provided insufficient information to show the expense was unavoidable, the Undersigned denies Plaintiff's request to shift this cost to Defendant. Defendant, however, is responsible for Plaintiff's expenses for the two other deposition attempts. On October 16, 2020, the Court overruled most of Defendant's objections to the deposition designations and modified and combined two of the designations. [ECF No. 39; 41]. The Undersigned also informed the parties that this deposition needed to occur before October 30, 2020. Id. Defendant, on October 16, 2020, now aware of Plaintiff's designations, the rapidly approaching deadline, and the Undersigned's ruling, should have begun arranging for a Corporate Representative and dates for all of Plaintiff's designations. The attached emails reveal that Plaintiff emailed Defendant three days later on October 19, 2020 and gave Defendant no less than eight deposition dates and times. [ECF No. 105-2]. The first email from Defendant regarding dates and times was sent on October 22, 2020 and proposed dates and times for two of the topics and said that Defendant would let Plaintiff know about the other two designations as soon as possible. [ECF No. 105-3]. There were fourteen days between the Undersigned's ruling and the discovery deadlines for the parties to conduct these depositions. Yet, six days into this two-week window, Defendant was still unable to provide Plaintiff with dates for two of the four designated topics and suggested the two other designations occur during the final three days of discovery. On October 27, 2020 at 6:45 PM (eleven days after the Undersigned's ruling), Defendant still had not provided concrete dates and times to Plaintiff for two of Plaintiff's four designations, and instead said only that the depositions could not occur the following day but would occur before the October 30, 2020 deadline and it would let Plaintiff know the following day. [ECF No. 105-5]. Then, on October 28, 2020, Defendant did not appear for the deposition scheduled for 1:00 PM and emailed Plaintiff (with no more than two hours’ notice) saying it needed to be rescheduled. [ECF No 105-8]. Consequently, with two days left in this fourteen-day window in which the Undersigned ordered the depositions to occur (and nine days since Plaintiff first contacted Defendant about scheduling), no depositions had occurred, Defendant unilaterally decided to reschedule one of the two depositions it had been able to agree upon with Plaintiff, and it still had not given Plaintiff deposition dates for the two other topics. Plaintiff, presumably fearing the impending discovery deadline, immediately rescheduled all unscheduled depositions (three of the four designations) to begin on October 29, 2020, the following day, at 10:00 AM and arranged for a court reporter to be present. [ECF No. 105-8]. Defendant responded to this notice on October 28, 2020, at 7:11 PM, saying that it had selected new times for the depositions and that neither counsel nor witnesses would be present at 10:00 AM. [ECF No. 107-1, p.14]. Plaintiff responded that it was too late for him to reschedule the court reporter and the topic order proposed by Defendant was unacceptable. [ECF No. 107-1, p. 13]. Defendant did not appear for the 10:00 AM deposition and another expense was incurred by Plaintiff for the court reporter. *6 Defendant caused the expenses incurred by Plaintiff for these two depositions. Defendant gave Plaintiff less than two hours’ notice that it needed to reschedule the October 28, 2020, deposition and did not provide any new dates or times. Plaintiff, understandably, did not agree to reschedule the noticed deposition. Although there was a short turn around between the issuance of the notice for the October 29, 2020, deposition and the actual date and time of the deposition, it was necessary, given the approaching discovery deadline. Moreover, Defendant's attempt to set its own proposed schedule came late in the evening and improperly attempted to impose its preferred order of topics[4] and time limitations on Plaintiff's deposition. Because Defendant has also not made any argument that the depositions for which it failed to appear were not properly noticed and the Undersigned does not view Plaintiff's attempts as spurious and meant to “paper the file,” financial responsibility is appropriately allocated to Defendant for this missed deposition as well. The Undersigned's allocation of financial responsibility to Defendant is not predicated on bad faith. There are myriad possible reasons why Defendant did not appear for the deposition. Perhaps a witness fell ill, perhaps there was a scheduling conflict, or there could have been a family emergency. None of these possibilities indicate bad faith or dishonest tactics by Defendant. But, regardless of intent, Plaintiff should not be required to shoulder the costs associated with the depositions Defendant did not attend. For those reasons, the Undersigned grants Plaintiff's request for costs associated with the October 28, 2020, and October 29, 2020, depositions. Plaintiff's motion seeks a total amount of $551.00 for the three depositions. Plaintiff does not indicate how much of that number is attributed to each deposition. Therefore, the Undersigned will reduce the number by approximately one third and award Plaintiff $367.33. Because Plaintiff has prevailed on this discovery dispute and Defendant has not presented any mitigating factors, the Undersigned also awards Plaintiff $1,125.00 in attorney's fees incurred preparing the motion. Accordingly, Defendant and its counsel shall collectively[5] pay to Plaintiff $1,492.33 by January 17, 2022.[6] On the day the payment is made, Defendant shall submit to the Undersigned's e-file inbox (goodman@flsd.uscourts.gov) -- but not on CM/ECF -- an affidavit or declaration confirming the payment was made. *7 DONE AND ORDERED in Chambers, in Miami, Florida, January 11, 2022. Footnotes [1] The facts relevant to this Order are derived from the emails between the attorneys attached as exhibits to the parties’ filings and the docket. [2] Although the deposition notice initially included five topics, in an October 16, 2020 Order, the Undersigned modified and merged Plaintiff's first and second designation into a single topic. [ECF Nos. 39; 41]. [3] Each side's attacks on the opposing counsel's motivation and veracity have been a theme during this litigation. [ECF No. 58]. This theme has substantially increased the litigation in this case. It has also been unhelpful to the Court and detracts from the legal arguments of the attorneys. [4] Notably, the proposed order of deposition designation was in a sequence that Plaintiff had previously indicated was unacceptable. [ECF No. 107-1, p. 6]. [5] The rule permits a costs-shifting award to be entered against a party, its counsel or both. Because the Undersigned does not know whether it was Defendant, its attorney, or both who are responsible for the circumstances leading to the need for the motion for sanctions, the Undersigned is leaving it to Defendant and its counsel to determine who should pay the award. It is possible, of course, that they will split the responsibility in some way. The affidavit or declaration confirming payment shall indicate who is paying what. [6] The Undersigned does not deem this expense-shifting award to be a sanction or the imposition of discipline. Instead, it is simply a cost-shifting or fee-shifting mechanism used, as required, under Federal Rule of Civil Procedure 37, against a party or attorney who loses a discovery dispute. Thus, this Order would not require defense counsel to answer yes if ever asked (e.g., by a prospective employer, by an insurance carrier, by a judicial nominating commission, by a client, or by a prospective client) if a judge had ever sanctioned or disciplined him. The same scenario applies to the Defendant itself.