USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 23-13613 Non-Argument Calendar ____________________
MARK D. WEISSMAN, et al., Plaintiffs, DONALD ROSS ANDERSEN, Plaintiff-Appellant, versus MICHAEL CHEOKAS,
Defendant-Appellee. USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 2 of 9
2 Opinion of the Court 23-13613
Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 1:17-cv-00220-WLS ____________________
Before WILSON, LUCK, and ANDERSON, Circuit Judges. PER CURIAM: Plaintiff-Appellant Donald Andersen served as counsel for Plaintiffs Mark Weissman and Weatherly Aviation Company, Inc. (collectively, Plaintiffs) in a suit against Defendant-Appellee Mi- chael Cheokas seeking injunctive relief and damages for alleged fraud. During the litigation, Cheokas filed three motions related to Andersen’s actions and inactions during discovery: (1) a motion for sanctions; (2) a motion for a protective order as to Plaintiffs’ re- quest to depose a non-testifying expert for Cheokas; and (3) a mo- tion to strike expert reports for Plaintiffs. With each motion, the district court found for Cheokas. Andersen now appeals, asserting that the district court abused its discretion in doing so. Because Anderson only challenges the discovery rulings, our review is limited to those matters and proceedings and not the un- derlying resolution of the case. 1 After reviewing the briefs and
1 Specifically, the issues on appeal concern Rule 37 of the Federal Rules of Civil
Procedure, which “gives a trial court discretion to decide how best to respond to a litigant’s failure to make a required disclosure under Rule 26.” Taylor v. Mentor Worldwide LLC, 940 F.3d 582, 593 (11th Cir. 2019). Under Rule 37, USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 3 of 9
23-13613 Opinion of the Court 3
record, we affirm the district court’s rulings. We begin by summa- rizing the relevant facts before addressing each motion on appeal in turn. I. Background On October 9, 2019, the district court issued a scheduling and discovery order for the parties. Discovery was initially sched- uled to end on May 6, 2020, but was extended to September 28, 2020, following three separate extensions. During discovery, An- dersen submitted numerous expert reports by James Persinger, a forensic expert. Cheokas, believing that Andersen had altered Per- singer’s report prior to submission, filed a motion for sanctions on September 4, 2020. The district court then suspended all pending deadlines until Cheokas’s motion for sanctions could be addressed. The court held a hearing on the motion on July 7, 2021. Dur- ing the hearing, Andersen conceded that Persinger’s report had been modified and adapted from its original format. These modi- fications included converting the document from a PDF to Word, changing headings and other formatting, and omitting a page that was relevant to the dispute. Persinger also testified during the hear- ing, stating that while the overall substance of the report was the same, the formatting had been altered and attachments did appear to be missing. Cheokas responded to this testimony by introducing an expert witness Neil Broom, a computer forensic expert. While
district courts may sanction parties that fail to make disclosures or cooperate in discovery. USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 4 of 9
4 Opinion of the Court 23-13613
the district court did allow Broom to testify, the court limited his testimony to the harm, difficulty, and expense experienced due to the omissions or alterations in Persinger’s report. On September 30, 2021, the district court granted Cheokas’s motion for sanctions. Given the hearing, and a review of the evi- dence and record, the district court concluded that Andersen had altered the report without the expert’s knowledge or approval in violation of Rule 26(a)(2)(B) of the Federal Rules of Civil Proce- dure, which requires expert witnesses to provide “a written re- port—prepared and signed by the witness.” Because the district court found that Andersen’s actions had caused “additional and un- necessary time and effort from Defendant and Counsel,” the court ordered Plaintiffs to pay costs and attorney fees attributed to this effort, including costs associated with conducting an additional deposition of Persinger. On October 21, 2021, Cheokas submitted a fee application for $55,876.51. The district court granted the ap- plication in the amount of $27,338.95. Persinger’s deposition was subsequently rescheduled for November 23, 2021. During this second deposition, Persinger stated that the following reports would serve as his expert reports: (1) a report first disclosed on August 8, 2014; (2) a report dated Au- gust 9, 2014, referred to as Persinger’s Rule 26 report; and (3) a sup- plemental report dated August 28, 2020, referred to as the first sup- plemental report. However, as Persinger was being deposed, Cheokas presented Persinger with a declaration from April 2017— a declaration Cheokas had found during his own research and USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 5 of 9
23-13613 Opinion of the Court 5
docket review. Persinger then confirmed that this April 2017 dec- laration was and continues to be part of his expert testimony in this case. Six days after Persinger’s deposition, Andersen disclosed yet another supplemental report, now referred to as the second sup- plemental report. Prior to Persinger’s deposition, Andersen expressed a desire to depose Broom. However, because Broom’s testimony was de- pendent on the content of Persinger’s second deposition, Cheokas did not want to formally designate Broom as a non-testifying or testifying expert until Persinger had been deposed anew. Follow- ing Persinger’s deposition, Cheokas confirmed his intent to re-des- ignate Broom as a non-testifying expert. Cheokas also notified Plaintiffs that he intended to object to any attempts to depose Broom and stated that he would seek attorney fees and costs pur- suant to Rule 26(b)(4)(A), (D). On November 29, 2021, Cheokas filed a motion for a protec- tive order to prevent Plaintiffs from seeking discovery from Broom. Cheokas claimed that, as a non-testifying expert, Broom’s testimony and work product were protected and privileged. In this motion, Cheokas stated that Andersen was on notice that any in- tent to seek discovery would be in violation of Rule 26. Cheokas further argued that Plaintiffs should be responsible for covering the fees and expenses attached to filing the motion pursuant to Rule 37(a)(5). On December 6, 2021, Cheokas filed a motion to strike ex- pert reports of Persinger and for sanctions, arguing that attempts USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 6 of 9
6 Opinion of the Court 23-13613
by Andersen to disclose and use the supplemental reports prepared by Persinger were untimely in violation of Rule 26(a) and (e). In reviewing each of Cheokas’s motions, the district court considered the merits of each without considering Andersen’s re- sponse filings because the responses were not filed within the dis- trict court’s previously set seven-day discovery deadline. II. Motion for Sanctions Sanctions orders are reviewed for an abuse of discretion. See Amlong v. Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1237 (11th Cir. 2007).
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USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 23-13613 Non-Argument Calendar ____________________
MARK D. WEISSMAN, et al., Plaintiffs, DONALD ROSS ANDERSEN, Plaintiff-Appellant, versus MICHAEL CHEOKAS,
Defendant-Appellee. USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 2 of 9
2 Opinion of the Court 23-13613
Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 1:17-cv-00220-WLS ____________________
Before WILSON, LUCK, and ANDERSON, Circuit Judges. PER CURIAM: Plaintiff-Appellant Donald Andersen served as counsel for Plaintiffs Mark Weissman and Weatherly Aviation Company, Inc. (collectively, Plaintiffs) in a suit against Defendant-Appellee Mi- chael Cheokas seeking injunctive relief and damages for alleged fraud. During the litigation, Cheokas filed three motions related to Andersen’s actions and inactions during discovery: (1) a motion for sanctions; (2) a motion for a protective order as to Plaintiffs’ re- quest to depose a non-testifying expert for Cheokas; and (3) a mo- tion to strike expert reports for Plaintiffs. With each motion, the district court found for Cheokas. Andersen now appeals, asserting that the district court abused its discretion in doing so. Because Anderson only challenges the discovery rulings, our review is limited to those matters and proceedings and not the un- derlying resolution of the case. 1 After reviewing the briefs and
1 Specifically, the issues on appeal concern Rule 37 of the Federal Rules of Civil
Procedure, which “gives a trial court discretion to decide how best to respond to a litigant’s failure to make a required disclosure under Rule 26.” Taylor v. Mentor Worldwide LLC, 940 F.3d 582, 593 (11th Cir. 2019). Under Rule 37, USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 3 of 9
23-13613 Opinion of the Court 3
record, we affirm the district court’s rulings. We begin by summa- rizing the relevant facts before addressing each motion on appeal in turn. I. Background On October 9, 2019, the district court issued a scheduling and discovery order for the parties. Discovery was initially sched- uled to end on May 6, 2020, but was extended to September 28, 2020, following three separate extensions. During discovery, An- dersen submitted numerous expert reports by James Persinger, a forensic expert. Cheokas, believing that Andersen had altered Per- singer’s report prior to submission, filed a motion for sanctions on September 4, 2020. The district court then suspended all pending deadlines until Cheokas’s motion for sanctions could be addressed. The court held a hearing on the motion on July 7, 2021. Dur- ing the hearing, Andersen conceded that Persinger’s report had been modified and adapted from its original format. These modi- fications included converting the document from a PDF to Word, changing headings and other formatting, and omitting a page that was relevant to the dispute. Persinger also testified during the hear- ing, stating that while the overall substance of the report was the same, the formatting had been altered and attachments did appear to be missing. Cheokas responded to this testimony by introducing an expert witness Neil Broom, a computer forensic expert. While
district courts may sanction parties that fail to make disclosures or cooperate in discovery. USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 4 of 9
4 Opinion of the Court 23-13613
the district court did allow Broom to testify, the court limited his testimony to the harm, difficulty, and expense experienced due to the omissions or alterations in Persinger’s report. On September 30, 2021, the district court granted Cheokas’s motion for sanctions. Given the hearing, and a review of the evi- dence and record, the district court concluded that Andersen had altered the report without the expert’s knowledge or approval in violation of Rule 26(a)(2)(B) of the Federal Rules of Civil Proce- dure, which requires expert witnesses to provide “a written re- port—prepared and signed by the witness.” Because the district court found that Andersen’s actions had caused “additional and un- necessary time and effort from Defendant and Counsel,” the court ordered Plaintiffs to pay costs and attorney fees attributed to this effort, including costs associated with conducting an additional deposition of Persinger. On October 21, 2021, Cheokas submitted a fee application for $55,876.51. The district court granted the ap- plication in the amount of $27,338.95. Persinger’s deposition was subsequently rescheduled for November 23, 2021. During this second deposition, Persinger stated that the following reports would serve as his expert reports: (1) a report first disclosed on August 8, 2014; (2) a report dated Au- gust 9, 2014, referred to as Persinger’s Rule 26 report; and (3) a sup- plemental report dated August 28, 2020, referred to as the first sup- plemental report. However, as Persinger was being deposed, Cheokas presented Persinger with a declaration from April 2017— a declaration Cheokas had found during his own research and USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 5 of 9
23-13613 Opinion of the Court 5
docket review. Persinger then confirmed that this April 2017 dec- laration was and continues to be part of his expert testimony in this case. Six days after Persinger’s deposition, Andersen disclosed yet another supplemental report, now referred to as the second sup- plemental report. Prior to Persinger’s deposition, Andersen expressed a desire to depose Broom. However, because Broom’s testimony was de- pendent on the content of Persinger’s second deposition, Cheokas did not want to formally designate Broom as a non-testifying or testifying expert until Persinger had been deposed anew. Follow- ing Persinger’s deposition, Cheokas confirmed his intent to re-des- ignate Broom as a non-testifying expert. Cheokas also notified Plaintiffs that he intended to object to any attempts to depose Broom and stated that he would seek attorney fees and costs pur- suant to Rule 26(b)(4)(A), (D). On November 29, 2021, Cheokas filed a motion for a protec- tive order to prevent Plaintiffs from seeking discovery from Broom. Cheokas claimed that, as a non-testifying expert, Broom’s testimony and work product were protected and privileged. In this motion, Cheokas stated that Andersen was on notice that any in- tent to seek discovery would be in violation of Rule 26. Cheokas further argued that Plaintiffs should be responsible for covering the fees and expenses attached to filing the motion pursuant to Rule 37(a)(5). On December 6, 2021, Cheokas filed a motion to strike ex- pert reports of Persinger and for sanctions, arguing that attempts USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 6 of 9
6 Opinion of the Court 23-13613
by Andersen to disclose and use the supplemental reports prepared by Persinger were untimely in violation of Rule 26(a) and (e). In reviewing each of Cheokas’s motions, the district court considered the merits of each without considering Andersen’s re- sponse filings because the responses were not filed within the dis- trict court’s previously set seven-day discovery deadline. II. Motion for Sanctions Sanctions orders are reviewed for an abuse of discretion. See Amlong v. Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1237 (11th Cir. 2007). We will find an abuse of discretion where the district court “applie[d] an incorrect legal standard, follow[ed] improper proce- dures in making the determination, ma[de] findings of fact that are clearly erroneous, or commit[ed] a clear error of judgment.” Cal- lahan v. United Network for Organ Sharing, 17 F.4th 1356, 1360 (11th Cir. 2021) (quotation omitted). Here, the order for sanctions may be overturned if we find that Andersen provided sufficient evidence demonstrating that his failure to comply with the district court’s “discovery orders was due to misunderstanding or inability to com- ply.” Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1539 (11th Cir. 1993). Cheokas’s motion for sanctions was based on the alterations and modifications Andersen made to Persinger’s report. The dis- trict court clearly stated that the evidence and record did not sup- port finding that these changes were made with Persinger’s knowledge or approval—in direct contradiction to Rule 26(a). The district court further found that Andersen did not provide sufficient USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 7 of 9
23-13613 Opinion of the Court 7
justification to support the contention that the alterations made to Persinger’s report were insignificant nor unsubstantial. This lack of justification satisfied an award of sanctions under Rule 37. In light of the thorough reasoning provided in its order, we cannot find that the district court abused its discretion in sanction- ing Andersen pursuant to Rule 37(b)(2)(A). III. Motion for a Protective Order Under Rule 26(c)(1), “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrass- ment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). In filing the motion for a protective order, Cheokas sought to prevent Broom from being deposed. According to Cheokas, because Broom was designated as a non-testifying wit- ness, Andersen was not allowed to depose him pursuant to Rule 26(b)(4)(D). This rule ordinarily prevents non-testifying witnesses from being subjected to interrogatories or depositions, absent some “exceptional” circumstance. See Fed. R. Civ. P. 26(b)(4)(D)(ii). The district court found that Andersen had not pointed to any exceptional circumstances justifying the need to depose Broom, who had been identified as a non-testifying expert to re- view and rebut Persinger’s testimony. While Andersen tried to ar- gue that because Broom testified at the sanctions hearing he should be required to testify generally, the district court found this una- vailing as sanctions hearings exist apart from discovery. Given these findings, the district court subsequently granted Cheokas’s USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 8 of 9
8 Opinion of the Court 23-13613
petition for attorney fees resulting from preparing the motion for a protective order. After reviewing the district court’s order and briefs, we find the district court’s reasoning sound and affirm as to this issue as well. IV. Motion to Strike Motions to strike are also reviewed for an abuse of discre- tion, which includes ensuring that the district court’s decision was based on factual findings and the “nondisclosure at issue was harm- less.” Taylor, 940 F.3d at 593 (quotation omitted). In reviewing questions related to timeliness, we afford “wide latitude” to district courts in managing its docket and excluding untimely submissions. Bearint ex rel. Bearint v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1349 (11th Cir. 2004). In reviewing Persinger’s disclosures, the district court found that they were not “true” supplementations. The district court in- stead determined that the timing of the disclosures reflected strate- gic decisions on the part of Andersen, seeing that both the April 2017 declaration and second supplemental report could have been disclosed prior to Persinger’s second deposition. Because these dis- closures could have, and should have, been disclosed earlier, the district court found them untimely—and we agree. The district court thoroughly reviewed the record and determined that these disclosures were more likely to prejudice Cheokas than strengthen Plaintiffs’ case. Based on this finding, the court granted Cheokas’s USCA11 Case: 23-13613 Document: 25-1 Date Filed: 08/23/2024 Page: 9 of 9
23-13613 Opinion of the Court 9
corresponding petition for attorney fees, which was filed following the grant of the motion to strike. Upon review, we cannot say that the district court abused its discretion in granting Cheokas’s motion to strike these disclo- sures, nor in awarding reasonable attorney fees for the time spent researching and drafting the motion to strike. V. Conclusion For these reasons, we affirm the district court’s well-rea- soned orders. AFFIRMED.