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August 28, 2015 by admin

Civil procedure — Discovery — Trial exhibits

Online Reference: FLWSUPP 2301BURR

Civil procedure — Discovery — Trial exhibits — Plaintiff is not allowed to require defense counsel to travel to plaintiff’s attorney’s office to obtain discovery documents — Plaintiff is not allowed to reset discovery deadline established by court order by offering on last day of discovery period to make discovery documents available at “mutually convenient time” — Motion to compel is granted and sanctions are awarded
 
THE BANK OF NEW YORK MELLON, Plaintiff, v. JOHNNY C. BURROWS A/K/A JOHNNY BURROWS, SHIRLEN BURROWS, ET AL., Defendants. Circuit Court, 18th Judicial Circuit in and for Brevard County. Case No. 05-2012-CA-025077. May 6, 2015. Charlie Crawford, Judge. Counsel: Fran Zion, Heller & Zion, LLP, Miami, for Plaintiff. Richard Shuster, Shuster & Saben, LLC, Satellite Beach, for Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO

COMPEL BETTER RESPONSE TO REQUEST

TO PRODUCE AND FOR ATTORNEY’S

FEES PURSUANT TO RULE 1.380

 
THIS CAUSE came to be heard upon Defendant’s Motion to Compel Better Responses to Defendant’s Request To Produce Re: Trial Exhibits. The Court having reviewed the pertinent pleadings and heard argument of counsel does hereby ORDER and ADJUDGE as follows:

I. PROCEDURAL HISTORY.

1. On June 26, 2014, the Defendant served a request to produce for the exhibits Plaintiff would use at trial. The request set forth that the place for production of the documents was Defendant’s counsel’s office in Satellite Beach, Florida, but that the documents could be sent by E-mail, U.S. Mail, or on a C.D. At the time the Defendant served its trial discovery this case was scheduled for non-jury trial to take place on September 19, 2014.

2. The Plaintiff moved for extension of time and on August 5, 2014, the Court granted extension of time and Ordered, Plaintiff to respond prior to August 29, 2014.

3. The Plaintiff did not respond to the discovery until the last day available under the order. The Plaintiff’s August 29, 2014 response did not include documents the Defendant requested. In derogation of the Rules of Civil Procedure, the Plaintiff’s August 29, 2014 response set forth that

“Without waiving the objection, Plaintiff will make available for inspection and copying at Defendant’s expense at Plaintiff’s counsel’s office at mutually convent time the pre-suit demand letter with tracking number related to the loan.”

II. RULING

4. The plaintiff’s counsel, the law firm of Heller & Zion, whose office is in Miami-Dade, is not allowed to impose upon the Defendant’s counsel the burden of driving 400 miles round trip, to obtain discovery documents.

5. The Plaintiff’s counsel is not permitted to re-set the time for production to an illusory “mutually convenient time” when the Court order set the time for August 29, 2014. The Plaintiff’s act violates the spirit, purpose and probably the letter of the Court’s August 5, 2014 order and was a deliberate, bad faith attempt to deprive the Defendant of meaningful discovery.

6. The Defendant’s Motion to Compel Better is Granted.

7. The Plaintiff shall produce all documents in its possession that are responsive to Defendant’s requests within 20 days of this order.

8. The Plaintiff shall not be permitted to use at trial any documents responsive to Defendant’s request that are not furnished pursuant to this order.

9. The Court finds that the plaintiffs counsel’s attempt to condition obtaining of trial exhibits upon Defendant’s counsel traveling from Brevard County to Plaintiff’s Counsel’s office in Miami-Dade County was a bad faith attempt to deprive Defendant of discovery.

10. The Court awards sanctions in the amount of $1900.00 to be paid within 20 days of this Order.

* * *

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