SUBSEA MARINE SERVICES, INC., a Florida profit corporation, Plaintiff/Counter-Defendant, v. SINT MAARTEN INTERNATIONAL TELECOMMUNICATIONS SERVICES, INC. a/k/a SMITCOMS, INC., a Delaware corporation, Defendant/Counter-Plaintiff CASE NO. 24-14016-CIV-CANNON/MAYNARD United States District Court, S.D. Florida Entered on FLSD Docket October 30, 2024 Maynard, Shaniek M., United States Magistrate Judge ORDER ON DEFENDANT'S MOTION TO COMPEL DISCOVERY AND FOR COSTS [DE 49] *1 THIS CAUSE comes before me upon the above Motion, which has been referred to me for appropriate and expedited disposition. DE 50. Having considered the Motion, DE 49, Plaintiff's Response, DE 51, and having heard from counsel at a hearing, the Motion is GRANTED as follows. BACKGROUND On December 20, 2023, Plaintiff Subsea Marine Services, Inc. (“SMS”) initiated this lawsuit in Florida's Nineteenth Judicial Circuit against Defendant Sint Maarten International Telecommunications Services, Inc. a/k/a SMITCOMS, INC. (“SMITCOMS”). DE 1-1. SMITCOMS removed the case to this Court on January 19, 2024. DE 1. SMS is a Florida company that specializes in submarine cable installation and repair services. DE 25 at 2. SMITCOMS is a Delaware corporation that owns a submarine fiber optic telecommunications cable, known as the SMPR-1 (the “Cable”), which connects the islands of St. Maarten and Puerto Rico and provides a direct communications link between the two islands. Id. In late 2016, a breakage occurred in a section of the Cable. Id. This case involves a contractual dispute between SMS and SMITCOMS concerning the repair of the Cable following this breakage. Id. On October 26, 2022, the parties entered into a Subsea Cable Repair Agreement (“the Agreement”) for SMS to repair the Cable. See DE 25-1. SMS claims SMITCOMS breached the Agreement by failing to provide necessary permits and materials for the project, resulting in delays and additional costs, and terminating the Agreement without cause. SMS seeks compensation for work performed and costs incurred. SMITCOMS counterclaims that SMS breached the Agreement by failing to perform the agreed upon cable repair work despite receiving a $315,000 down payment. SMITCOMS contends that SMS unjustly retained the down payment and the replacement cable and thus seeks their return along with damages and legal costs. On April 15, 2024, SMS filed the operative two-count Amended Complaint alleging breach of contract (Count I) and unjust enrichment (Count II). DE 25. On April 29, 2024, SMITCOMS answered the Amended Complaint and alleged two counterclaims for breach of contract (Count I) and unjust enrichment (Count II). DE 26 at 9-11. Discovery in this case closed on September 25, 2024. SMITCOMS filed the instant Motion on September 30, 2024. Judge Cannon stayed the pretrial motions deadline pending resolution of this dispute. DE 43, DE 46. On October 17, 2024, I held a hearing on the motion. DE 57. DISCUSSION Federal Rule of Civil Procedure 26 provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). While the Federal Rules of Civil Procedure “strongly favor full discovery whenever possible,” trial courts have wide discretion in setting limits on the scope of discovery. Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). A party is not entitled to receive every piece of relevant information, but instead is subject to “reasonable limits on discovery” based on “the common-sense concept of proportionality.” In re: Takata Airbag Prod. Liab. Litig., 2016 WL 1460143, at *2 (S.D. Fla. Mar. 1, 2016). *2 An opposing party may object to a discovery request that is unreasonable or otherwise unduly burdensome. Alvar v. No Pressure Roof Cleaning, LLC, 2018 WL 1187777, at *2 (S.D. Fla. Mar. 7, 2018). The grounds for objecting to a discovery request must be stated with specificity. See Fed. R. Civ. P. 33(b)(4) and 34(b)(2)(B). Objections simply stating that a request is overbroad or unduly burdensome, without specifying the ground on which such objections are based, are meaningless and without merit. Rivera v. 2K Clevelander, LLC, 2017 WL 5496158, at *2 (S.D. Fla. Feb. 22, 2017). The objecting party bears the burden to establish a lack of relevancy or some other basis for resisting production. Glatter v. MSC Cruises S.A., 2019 WL 1300896, at *1 (S.D. Fla. Feb. 7, 2019). In the instant Motion, SMITCOMS seeks (1) documents supporting expenses SMS claims to have incurred under the Agreement and confirming delivery of equipment SMS ordered to complete the agreed upon work; (2) a dive survey SMS claims to have conducted as a prerequisite to repairing the Cable; and (3) fees associated with the unilateral termination of the deposition of SMS Owner Peter Theophanis. DE 49. SMS responds that (1) it has turned over all expense and delivery documentation in its possession, custody, or control and has no obligation to obtain further documentation from third-parties; (2) the dive survey SMITCOMS requests belongs to a third-party named ARCOS and is protected as confidential; and (3) it should not have to pay fees for the unilateral termination of Mr. Theophanis’ deposition because he was injured prior to the deposition, paused the deposition because he did not feel well, and later completed his deposition. I address each of these issues below. A. SMS Must Make a Good Faith Effort to Obtain and Produce Documents Supporting Claimed Expenses and Delivery of Equipment. SMITCOMS seeks to compel documents supporting SMS’ claimed expenses and records demonstrating delivery of equipment SMS ordered to repair the Cable. DE 49 at 2-3. SMS produced a list of expenses purportedly incurred in connection with the repair of the Cable (the “SMIT Expenses List”), DE 49-2, but failed to produce any documentation supporting twenty-one of the twenty-eight listed expenses. SMS also failed to produce records confirming delivery of equipment SMS claims it ordered from a company called Motion Industries to perform its obligations under the Agreement.[1] SMS contends that it does not have the requested documents in its custody, possession, or control, and should not be required to obtain these documents from third parties who may have them. DE 51 at 2. The fact that responsive documents are currently within a third-party's possession does not necessarily exclude them from routine party discovery. Federal Rule of Civil Procedure 34 requires a party to produce documents that are within the party's “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). In the context of Rule 34, “control” encompasses not only physical possession, but also “the legal right to obtain the documents requested upon demand.” Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984). Applying Rule 34, SMS has a duty to make a good faith effort to obtain responsive documents from its vendors and contractors, and to produce any such documents obtained. Id. at 654 (“the primary dispositive issue is whether [the defendant] made a good faith effort to obtain the documents” over which he had control); see also Sciele Pharma, Inc. v. Brookstone Pharms., LLC, 2011 WL 3844891, at *4 (N.D. Ga. Aug. 30, 2011) (finding that a pharmaceutical company had a duty to make a good-faith effort to obtain responsive documents from its manufacturers, and to produce any documents that are discovered as a result of that effort); Puccio v. Sclafani, 2013 WL 4068782, at *2 (S.D. Fla. Aug. 12, 2013) (requiring incarcerated plaintiff to make a good-faith effort to obtain responsive documents being held by third parties); Waste Pro USA, Inc. v. Adams Sanitation Holding Co., LLC, 2022 WL 19842682 (M.D. Fla. June 13, 2022) (granting motion to compel because defendant failed to take steps necessary to even determine if it could obtain the documents and requiring defendant to contact third party and make a good-faith effort to obtain documents). *3 Here, Mr. Theophanis acknowledges the invoices exist and SMS could probably acquire the delivery records. DE 49-4 at 82; 49-5 at 4. SMS is obligated to attempt to acquire these documents even if they must reach out to third parties to do so. SMS is therefore ordered to make a good faith effort to obtain and produce any previously undisclosed documents constituting proof of expenses listed on the SMIT Expenses List and proof of delivery of relevant Motion Industries equipment. B. SMS Must Produce the ARCOS Dive Survey Report. SMITCOMS also seeks a report regarding a pre-dive survey SMS was contractually obligated to perform before beginning the work outlined in the Agreement. DE 49 at 3. SMS objects to this request based on a “non-disclosure/confidentiality agreement.” DE 49-7. At his deposition, Mr. Theophanis explained that SMS conducted the pre-dive survey of the Cable when SMS surveyed another cable owned by another client, known as the ARCOS cable. DE 49-3 at 58. He further explained that the Cable exists between two ARCOS cables, so when SMS surveyed the ARCOS cables it was able to survey the Cable at the same time. SMS did not prepare a report relating to its survey of the Cable, but – according to Mr. Theophanis – SMS did document its survey of the ARCOS cables. DE 49-3 at 56-59. At the hearing before me, counsel for SMITCOMS explained the relevance of the ARCOS report and the pre-dive survey's function as a specific contractual obligation between the parties. SMS objected based on privacy concerns because the ARCOS Report belongs to another client.[2] To assist in resolving the issue, I ordered the parties to submit a joint proposed confidentiality order to govern the handling of this and other confidential and proprietary information in this case. The parties complied and, on October 23, 2023, I granted their joint request to approve of a Stipulated Confidentiality and Protective Order (“Protective Order”). DE 56. The terms of the parties’ agreed-upon Protective Order provides for the handling and use of material designated as confidential. DE 55-1. Therefore, with a proper Protective Order in place to govern the exchange of confidential information and in accordance with what SMITCOMS is entitled to under the law, I will require SMS to produce the ARCOS report under the terms of the Protective Order. C. SMS Must Pay Fees and Costs Relating to the Terminated Deposition. Lastly, SMITCOMS seeks attorney's fees and costs under Federal Rule of Civil Procedure 37(d), which states that a court may order sanctions if “a party ... fails, after being served with proper notice, to appear for that person's deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). However, 37(d) is not the best fit for this situation. Courts typically impose sanctions under Rule 37(d) when a party fails to appear for a deposition. The sanction designed for a party that disrupts an in-progress deposition is set forth in Rule 30(d), which provides for an appropriate sanction: “on a person who impedes, delays, or frustrates the fair examination of the deponent.” Fed. R. Civ. P. 30(d)(2); see Bettis v. Toys “R” Us, 2009 WL 1015444, at *2 (S.D. Fla. Apr. 14, 2009) (reasonable expenses awarded under Rule 30(d)(2) when a party refused to answer questions at her deposition and her counsel prematurely terminated the deposition); see also Paramount Disaster Recovery LLC v. Amica Mut. Ins. Co., 2017 WL 5705996, at *3 (S.D. Fla. Aug. 22, 2017) (reasonable attorney's fees and costs awarded under Rule 30(d) when plaintiff's counsel unilaterally terminated his expert's deposition). *4 Here, Mr. Theophanis’ deposition occurred over the course of three different days. SMITCOMS argues that costs should be imposed on SMS because Mr. Theophanis refused to proceed with the second day of his deposition. DE 49 at 4. SMS responds that Mr. Theophanis was justified in unilaterally terminating the deposition due to a significant leg injury which he allegedly suffered the day before. DE 51 at 5. I disagree. SMS fails to explain why SMITCOMS should have to bear extra costs in the form of additional time on a third day of deposition due to Mr. Theophanis’ injury. Moreover, a review of the deposition transcript raises reasonable doubts regarding whether Mr. Theophanis ended the deposition because of his injury or because he no longer wanted to answer the pointed questions of SMITCOMS’ counsel during the deposition.[3] In fact, his increasing level of frustration with the questions before ultimately terminating it was palpable. For example, defense counsel was questioning Mr. Theophanis about the expenses listed on the SMIT Expenses List, when Mr. Theophanis asked “[a]re we going to go through every one of these?” Defense counsel responded “no,” and Mr. Theophanis replied, “[y]ou're going to get a lot of ‘I have no idea.’ ‘I don't knows.’ But go ahead.” DE 49-4 at 88. Curiously, not too long after questioning of the expenses began, Mr. Theophanis began to feel unwell and terminated the deposition. Id. at 90. Then the parties went off the record to discuss. When they came back on the record, defense counsel noted that the deposition was being terminated “not so much that [Mr. Theophanis is] not feeling well, but rather that he just doesn't want, to continue since we would be going through item by item on these expenses...” Id. at 90. Mr. Theophanis objected to this interpretation and claimed his words were being twisted. Id. at 91. SMS argues that the unilateral termination of the deposition was substantially justified and provides an undated photo of what is allegedly Mr. Theophanis’ leg injury. However, there is no confirmation that the photo actually depicts Mr. Theophanis given that his face is not in the picture, nor have any medical records been provided to substantiate the injury. DE 49-4 at 90, DE 51-10. Ultimately, the circumstances surrounding the deposition provide me with enough information to conclude that Mr. Theophanis caused the deposition to be unnecessarily delayed and impeded such that expenses should be awarded under Rule 30(d). As a reasonable sanction, I find that SMS shall be required to pay SMITCOMS $1,000 for its time and resources associated with having to continue Mr. Theophanis’ deposition to a third day and having to bring this Motion. CONCLUSION For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendant's Motion to Compel, DE 49, is GRANTED as follows. Consistent with the terms of this Order: (1) BY TUESDAY, NOVEMBER 5, 2024, SMS shall produce to SMITCOMS the ARCOS dive survey report in accordance with the terms of the governing Protective Order. (2) BY FRIDAY, NOVEMBER 8, 2024, SMS shall provide supplemental responses to SMITCOMS’ at-issue discovery requests by making a good faith effort to locate and produce (1) documents supporting the SMIT Expenses list and (2) documents confirming delivery of equipment SMS ordered to complete the agreed upon work. For any documents SMS cannot obtain, SMS shall identify who has possession of each document and where SMITCOMS may obtain them. (3) BY FRIDAY, NOVEMBER 8, 2024, SMS shall pay SMITCOMS $1,000 as a sanction associated with the unjustified delay in completing Mr. Theophanis’ deposition. DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 29th day of October, 2024. Footnotes [1] Mr. Theophanis confirmed in his deposition that the cable could not be loaded onto the repair vessel without delivery of certain equipment ordered from Motion Industries. DE 49 at 3. SMITCOMS seeks proof of delivery because the date on the delivery records may demonstrate that the equipment was delivered after the relevant mobilization period. Id. Mr. Theophanis denied having documentation reflecting the shipment, or a confirmation number for it. DE 49-5 at 43. When asked if he would be able to retrieve the information from Motion Industries, Mr. Theophanis replied “I'm sure if we wanted to assign somebody for this project that you're asking me to do now.” Id. [2] It remains unclear whether the ARCOS report is protected by a formal non-disclosure agreement between SMS and the other client. [3] It cannot go unsaid that Mr. Theophanis first deposition was mutually postponed after he expressed his wish to “get this done as soon as possible” and that he had two other meetings to attend. DE 49-3 at 60.