LINCOLN MEMORIAL ACADEMY

v.

SCHOOL DISTRICT OF MANATEE COUNTY, FLORIDA

The School Board of Manatee County, Florida (the School Board) moves for an award of its reasonable attorney’s fees and expenses against Plaintiffs Lincoln Memorial Academy (LMA), Eddie Hundley, Juana Phillips, Katrina Ross, and Angella Enrisma (collectively, the plaintiffs)¹ under Federal Rule of Civil Procedure 37 as a sanction for their failure to comply with the court’s discovery orders (docs. 36, 68). (Doc. 81). The plaintiffs oppose the motion. (Doc. 105).

I. BACKGROUND

On June 10, 2020, the School Board served the plaintiffs with its First Requests for Production and First Set of Interrogatories. The plaintiffs’ responses

Board’s motion for sanctions. (Doc. 110). All parties were present at the hearing and Mr. Hundley, Christine Dawson,² Attorney Ford, Ms. Phillips, Ms. Ross, and Ms. Enrisma testified. (Id.).

II. LEGAL STANDARD

Rule 37(b) provides that a party who violates a discovery order may be sanctioned in various ways, including being found liable for reasonable expenses. Attorney’s fees may be awarded against “the disobedient party, the attorney advising the party, or both ... unless the failure was substantially justified or other circumstances make an award of expenses unjust.” See Fed. R. Civ. Pro. 37(b)(2)(C); Weaver v. Lexington Ins. Co., 2007 WL 1288759, *2 (M.D. Fla. May², 2007) (citation omitted) (stating that non-complying party has the burden of showing that noncompliance is substantially justified or harmless). “Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and

[ensure] the integrity of the discovery process.” Gratton v. Great Am. Commc’n, 178 F. 3d 1373, 1374 (11th Cir. 1999); see Phipps v. Blakeney, 8 F. 3d 788, 790 (11th Cir. 1993) (citing Rule 37(b)(2)(C) and explaining that the “district court has broad discretion to control discovery,” including “the ability to impose sanctions on uncooperative litigants”). Failing to comply with the court’s order need not be willful

III. ANALYSIS

The School Board requests an award of its reasonable expenses and attorney’s fees as a sanction for the failure to comply with the court’s orders to produce discovery responses (docs. 36, 68). (Doc. 83). The plaintiffs respond that their discovery violations were substantially justified, and an award of expenses would be unjust. (Doc. 105).

A. Lincoln Memorial Academy and Mr. Hundley

Mr. Hundley responded to the School Board’s discovery requests in his individual capacity and on behalf of LMA, as the LMA’s former Chief Executive Officer and Principal. (Doc. 81, Exs. 9, 14, 21). i. Lincoln Memorial Academy The court ordered LMA to provide a revised answer to the School Board’s Interrogatory No. 12, and to provide written responses and documents in response to the School Board’s Requests for Production. (Doc. 68). LMA provided a revised answer to interrogatory no. 12 and responses to the School Board’s Request for Production. However, LMA’s production was deficient. Request for Production No. 9 requests, “[a]ny statements or recordings of [LMA]’s current or former employees relating to the allegations in the Amended Complaint.” In response, LMA stated that “it does not have any documents in its possession.” (Doc. 81, Ex. 9, p. 2). Mr. Hundley testified that he had no statements or recordings but, if he did, he would have given them to Attorney Ford. Mr. Hundley testified he has limited access to his LMA email account because his LMA computer and documents were confiscated. Mr. Hundley also testified he searched the archived emails he could access but provided Attorney Ford only with the emails Mr. Hundley deemed relevant. Mr. Hundley testified he has only a personal cellular phone and did not use it to conduct LMA business. Although Mr. Hundley and other plaintiffs exchanged text messages during the relevant time,³ Mr. Hundley testified the text messages were not produced because Mr. Hundley determined they were not relevant. Request for Production No. 10 requests, “[a]ny documentation that shows the amount of damages for which you are seeking compensation from Defendant.” In response, LMA responded to this request with its Rule 26 Disclosures, which states “TBA” for any accounting/audit or economic damages. (Doc. 81, Ex. 11.). The School Board requested that LMA produce a detailed response and it has not. Request for Production No. 21 requests, “[a]ny and all contracts entered into between you and any of the named Plaintiffs.” In response, LMA stated that “it does not have any documents in its possession.” (Doc. 81, Ex. 9, p. 3). However, the School Board maintains that LMA contracted with the plaintiffs. The School Board requested that LMA produce the contracts and it has not.

Production. (Doc. 68). Rather than providing written responses, Mr. Hundley provided a ZIP file folder containing various documents. (Doc. 81, Ex. 13). In reviewing Mr. Hundley’s production, the School Board identified deficiencies with his response to the Request for Production Nos. 9, 13, and 32. Request for Production No. 9 requests, “[a]ny notes or documents that record, summarize, show, or reflect conversations between you and any other person concerning your employment with Defendant or the allegedly discriminatory treatment that you believe you suffered while employed by Defendant.” In response, Mr. Hundley produced a document stating that he cannot access his LMA email account. (Doc. 81, Ex. 14). However, Mr. Hundley produced emails he sent from the email “[email protected]” to the email “[email protected]” in October 2020. The School Board also argues that Mr. Hundley text messaged about LMA and is withholding those messages. The School Board requested that Mr. Hundley produce these communications and he has not. Request for Production No. 13 requests, “[a]ny documents or records that show your receipt of income from any source other than the Defendant from February 2018 to the present.” In response, Mr. Hundley produced a folder with two documents. The document entitled “~RFP18.docx” could not be opened. (Doc. 81, Ex. 21). The School Board requested that Mr. Hundley produce an accessible version of this document and he has not. Similarly, Request for Production No. 32 requests, “[a]ny and all contracts entered into between you and Lincoln Memorial Academy.” Mr. Hundley has not produced responsive documents.

iii. Sanctions against LMA and Mr. Hundley The testimony presented at the evidentiary hearing establishes Mr. Hundley did not comply with his discovery obligations as required by the Federal Rules of Civil Procedure, on behalf on himself or LMA. It is improper for Mr. Hundley to withhold responsive documents on the basis that he personally considers those documents irrelevant. In addition, Mr. Hundley has an obligation to make a meaningful search for the documents requested from LMA and himself. However, it was clear from Mr. Hundley’s testimony at the evidentiary hearing and his statements during the easier discovery videoconferences that Attorney Ford did not advise him of the extent of documents he needed to locate and produce. Consequently, based on Mr. Hundley’s credible testimony, it did not appear he intentionally withheld information. The School Board requests sanctions against LMA and Mr. Hundley for the incomplete discovery responses. Given the testimony at the evidentiary hearing and

Mr. Hundley’s other representations to the court at the earlier discovery conferences, the court finds that LMA and Mr. Hundley’s omissions were negligent at most and not an intentional, strategic decision. See Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *6 (S.D. Fla. Mar. 22, 2016). Thus, an award of sanctions against LMA and Mr. Hundley would be unjust.

B. Juana Phillips

The court ordered Ms. Phillips to produce legible versions of previously produced but illegible documents. (Doc. 68). Ms. Phillips produced a Google drive folder, but it did not have the documents ordered. The School Board’s counsel followed-up and the legible versions were belatedly provided by Ms. Phillips to Attorney Ford and produced. Thus, an award of sanctions against Ms. Phillips would be unjust.

C. Katrina Ross

The court ordered Ms. Ross to produce documents in response to the School Board’s Requests for Production No. 34 requesting “[a]ny and all messages and/or posts posted by you on any social media platform, including but not limited to all such platforms and accounts identified by you in response to Interrogatories No. 10 and 11, regarding your employment with Defendant.” Ms. Ross’s response was incomplete. (Doc. 81, Ex. 26). Ms. Ross has since provided the School Board with an adequate response. Thus, an award of sanctions against Ms. Ross would be unjust.

D. Angella Enrisma

The court ordered Ms. Enrisma to produce documents responsive to the School Board’s Request for Production Nos. 3, 13, and 14. (Doc. 68). Ms. Enrisma produced a responsive document for request number three. (Doc. 83, Ex. 27). However, Ms. Enrisma produced one page of her 2019 tax return and failed to produce her 2018 tax return in response to the remaining requests. Ms. Enrisma testified she did not have the requested tax returns but ordered them from the Internal Revenue Service as soon as she learned it was free and possible. Ms. Enrisma sent the tax returns to Attorney Ford on November 16, 2020.

As of the December¹ evidentiary hearing, Attorney Ford had not provided those tax returns to the School Board. Because Ms. Enrisma provided the tax returns to Attorney Ford, an award of sanctions against Ms. Enrisma would be unjust.

E. Attorney Ford

Although Federal Rule of Civil Procedure 37 does not list the circumstances in which is it proper to sanction the attorney rather than the party, Rule 37 sanctions should “penalize those whose conduct may be deemed to warrant such a sanctions

[and] to deter those who might be tempted to such conduct in the absence of such a deterrent.” See Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976); see also Devaney v. Conti Am. Ins. Co., 989 F. 2d 1154, 1160 (11th Cir. 1993) (“Rule 37 subsections (a) and (b) permit the court to impose sanctions upon a party or its attorneys or both and establish no preference between these options.”). A sanction against an attorney is justified when unnecessary litigation has resulted from the undue neglect of the plaintiffs’ counsel. See Nukote Int’l, Inc. v. Office Depot, Inc., No. 09-CV-82363-DTKH, 2015 WL 71566, at *9 (S.D. Fla. Jan.⁶, 2015) (citation omitted). The School Board served its discovery requests on the plaintiffs on June 10, 2020. The School Board allowed Attorney Ford and his clients several extensions of time to respond. On August², 2020, the School Board’s’ counsel emailed Attorney Ford requiring the discovery responses by August 7, 2020. (Doc. 81, Ex. 1). In the letter, the School Board thoroughly detailed the outstanding discovery. (Id.). Attorney Ford did not respond.

On August 28, 2020, the School Board moved to compel the plaintiffs to provide their outstanding discovery responses. (Doc. 31). Although Attorney Ford’s response stated that the School Board did not properly confer before filing the motion, the correspondence proves contrary to Attorney Ford’s assertion. (See Def. Exs. 9, 31, 32). After a hearing on September 8, 2020, the court granted the School Board’s motion to compel in part and directed the plaintiffs to produce the outstanding discovery responses by September 23, 2020.4 (Doc. 36). The plaintiffs did not produce the discovery responses as ordered. On October⁵, 2020, the court held a follow-up discovery videoconference and ordered that the plaintiffs produce outstanding discovery by October 23, 2020. (Doc. 68). The School Board sent a letter to Attorney Ford again thoroughly outlining the discovery deficiencies and expressing concerns about the plaintiffs’ continued failures to comply with their discovery obligations. (Doc. 81, Ex. 8).

On October 30, 2020, the court held another follow-up videoconference and directed the parties’ counsel to speak about the outstanding discovery on November

See AMF Holdings, LLC v. Elie, No. 1:15-CV-3916-MHC-CMS, 2017 WL 5241244, at *4 (N.D. Ga. Oct. 11, 2017) (awarding Rule 37 sanctions against counsel who acted in a manner that impeded, delayed, and frustrated court ordered discovery); see also

Attorney Ford failed to demonstrate that his continued failure to properly participate in discovery and comply with court orders was substantially justified or other circumstances make an award of expenses unjust. See BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F. 3d 1045 (11th Cir. 1994) (upholding an award of sanctions under Rule 37 against law firm and client for failing to produce court ordered evidence); Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F. 2d 1510 (11th Cir. 1986) (upholding sanctions award against law firm and corporate client under

Rule 37); Lineworks Eng’g, LLC v. Aerial Surveying, Inc., No. 2:14-CV-02018-HGD, 2016 WL 11622151, at *4 (N.D. Ala. Oct. 21, 2016) (awarding attorney’s fees against the plaintiff and its counsel for the defendant’s preparation of a motion to compel and a motion for sanction). Thus, the court will award the School Board its reasonable attorney’s fees and costs related to its motions to compel and for sanctions.

IV. CONCLUSION

The School Board’s Motion for Sanctions (Doc. 83) is GRANTED.⁶ The School Board is awarded its reasonable attorney’s fees and costs against Attorney Ford for

AMANDA ARNOLD SANSONE

United States Magistrate Judge