MCC Management of Naples, Inc. et al v. Arnold & Porter, LLP et al, No. 2:2007cv00387 - Document 356 (M.D. Fla. 2010)

Court Description: OPINION AND ORDER granting in part and denying in part plaintiffs' Motion for sanctions (filed under seal, #S-21). See Opinion and Order for details. Signed by Judge John E. Steele on 7/20/2010. (RKR)

Download PDF

MCC Management of Naples, Inc. et al v. Arnold & Porter, LLP et al Doc. 356 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION MCC MANAGEMENT OF NAPLES, INC.; BGC II MANAGEMENT OF NAPLES, INC.; MILES C. COLLIER; BARRON G. COLLIER, II, Plaintiffs, vs. Case No. 2:07-cv-387-FtM-29SPC ARNOLD & PORTER LLP; KENT A. YALOWITZ; THOMAS R. DWYER; MELVIN C. GARBOW, Defendants. ___________________________________ MCC MANAGEMENT OF NAPLES, INC., BGC II MANAGEMENT OF NAPLES, INC., MILES C. COLLIER, BARRON G. COLLIER, II, Plaintiffs, Case No. 2:07-cv-420-FtM-29DNF ARNOLD & PORTER LLP, Defendant. ___________________________________ OPINION AND ORDER This matter comes before the Court on Plaintiffs Motion for Sanctions (Doc. #S-21) filed on June 7, 2010. Memorandum in Opposition (Doc. #S-25). against defendants for the late Defendants filed a Plaintiffs seek sanctions production of a deposition transcript of Mark Wood taken in November, 2002, as part of a prior civil case. Sanctions are sought pursuant to Fed. R. Civ. P. 37(c)(1) and the court s inherent power. I. Dockets.Justia.com Mark Wood gave a deposition in what the parties refer to as the FDIC Case on November 13, 2002. Most parties and counsel knew about this deposition when it was given. Certainly all parties and all counsel knew about this deposition from at least virtually the beginning of the instant action. This deposition contains testimony which is relevant and material to the allegations in the instant case. critical or The Court need not decide whether it contains new information, points the parties dispute. Plaintiffs allege that defendants purposefully and specifically concealed and withheld the transcript of this deposition from plaintiffs, contrary to the discovery obligations in this case. On April 18, 2008, plaintiffs propounded a request for production to defendant Arnold & Porter (A&P) in the instant case which included all documents related to the FDIC Case. The November, 2002 Wood deposition transcript was not produced by A&P. Mr. Wood was first deposed in the instant case on November 13, 2009. At that time defendants counsel stated that none of us seem to be able to locate the 2002 Wood deposition transcript. On November 19, 2009, defendants counsel found that a court reporter had a copy of the 2002 Wood deposition transcript. The court reporter refused to provide it to defendants counsel because it had been designated as confidential in the FDIC Case. The court the reporter would, however, agree to send a copy of transcript to one of the parties or attorneys who had participated -2- in that deposition. Kent Yalowitz, a defendant in the instant case, was an attorney who attended the 2002 Wood deposition. The court reporter agreed to send, and did send an electronic copy, of the 2002 Wood transcript to Mr. Yalowitz on November 19, 2009. This was the first time a defendant in the instant case had a copy of the 2002 Wood transcript in his actual possession. Sometime after that date, and as early as possibly November 24, 2009, transcript defendants to A&P s counsel tax gave expert, a copy David of the Grant. 2002 Mr. Wood Grant s deposition was scheduled for December 2, 2009, at which time the 2002 Wood deposition transcript would have been produced as a document reviewed by an expert. For various reasons Mr. Grant s deposition was rescheduled for March 30, 2010. The documents reviewed by Mr. Grant in forming his opinions, including the 2002 Wood deposition transcript, were sent to plaintiffs counsel on March 24, 2010, pursuant to the agreement of counsel. II. A federal district court has certain inherent powers, although such power must be exercised with restraint Chambers v. NASCO, Inc., 501 U.S. 32, (1991). and discretion. A court may impose sanctions pursuant to its inherent power, but only if the sanctions are preceded by a finding of bad faith. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 2009). The bad faith standard narrows the range of conduct that can -3- justify imposition of sanctions pursuant to the court s inherent power. Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010). Additionally, Rule 37(b) provides that a court may impose sanctions as are just on a party for disobedience of a discovery order. Fed.R.Civ.P. 37(b)(2). A district court also has the authority to impose sanctions for failure to disclose required information, and that authority must be exercised pursuant to sound discretion. Fed. R. Civ. P. 37(c)(1). Plaintiffs argue that defendant had possession, custody, or control of the 2002 Wood deposition transcript within the meaning of Fed. R. Civ. P. 34(a) while it was in the physical custody of the court reporter. Under Fed.R.Civ.P. 34, control is the test with regard to the production of documents. Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand. (11th Cir. 1984). control. Searock v. Stripling, 736 F.2d 650, 653 This remains the well-accepted definition of Gerling Int l Ins. Co. v. Comm r, 839 F.2d 131, 140 (3d Cir. 1988); In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995); Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142, 160 (2d Cir. 2004). In the context of the imposition of sanctions, the court also looks to the party s good faith effort to obtain the documents over which he had control. Searock, 736 F.2d at 654. The undisputed facts establish that defendants had control over the 2002 Wood deposition transcript while it was in the -4- possession of the court reporter. While this is not necessarily an intuitive finding, the undisputed facts remain that the court reporter provided a copy of the transcript to defendant Yalowitz upon the request of his attorney. This establishes the necessary legal right to obtain the documents requested upon demand. The Court need not resolve the dispute as to whether the transcript was subject to production pursuant to the April 18, 2008 request, or only once the expert considered it. Regardless, the evidence does not convince the Court that there was bad faith by defendants, or intentional concealment. Notwithstanding their control, defendants did not know where the transcript was located until November 19, 2009. Additionally, whatever prejudice may have resulted from the delayed discovery and disclosure can be easily remedied in this case. Accordingly, it is now ORDERED: Plaintiffs Motion for Sanctions (Doc. #S-21) is GRANTED IN PART AND DENIED IN PART as follows: 1. The request to re-depose Mark Wood is MOOT since another deposition has already taken place with the agreement of the parties. The request for costs and fees in connection with this re-deposition is DENIED. 2. Plaintiffs expert witness(es) may review the 2002 Wood deposition transcript. If their testimony is going to be affected -5- by that transcript, the expert witness(es) shall provide an amended expert report within thirty (30) days of the date of this Opinion and Order, or at such other time as the parties agree. Within ten (10) days thereafter defendants may file a motion seeking to redepose the expert(s) if defendants feel the changes are significant enough to warrant such relief. The request for costs and fees in connection with the review by the expert(s) is DENIED. 3. Defendants shall advise plaintiffs in writing within thirty (30) days of the date of this Opinion and Order whether the 2002 Wood deposition transcript affects the content of the prior testimony of defendants Thomas Dwyer and Kent Yalowitz, and if so, the specifics of any changes from prior testimony. Within ten (10) days thereafter plaintiffs may file a motion seeking to re-depose these two defendants if plaintiffs feel the changes are significant enough to warrant such relief. 4. The Court declines to prohibit any issue preclusion related to the REO claim and declines to preclude any testimony or evidence as a sanction. 5. The requests for other costs and fees (Doc. #S-21, pp. 14- 15) are DENIED. DONE AND ORDERED at Fort Myers, Florida, this July, 2010. Copies: Counsel of record -6- 20th day of

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.