Mizner Grand Condominium Ass'n v. Travelers Property Casualty Co. of America

270 F.R.D. 698, 77 Fed. R. Serv. 3d 1349, 2010 U.S. Dist. LEXIS 123656, 2010 WL 4683540
CourtDistrict Court, S.D. Florida
DecidedNovember 18, 2010
DocketNo. 09-82280
StatusPublished
Cited by7 cases

This text of 270 F.R.D. 698 (Mizner Grand Condominium Ass'n v. Travelers Property Casualty Co. of America) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mizner Grand Condominium Ass'n v. Travelers Property Casualty Co. of America, 270 F.R.D. 698, 77 Fed. R. Serv. 3d 1349, 2010 U.S. Dist. LEXIS 123656, 2010 WL 4683540 (S.D. Fla. 2010).

Opinion

ORDER ON MOTION TO COMPEL DISCOVERY

LINNEA R. JOHNSON, United States Magistrate Judge.

THIS CAUSE is before the Court on Defendants’ Motion to Compel Discovery [DE 49]. The matter is fully briefed and ripe for review. The Court has carefully considered the filings of the parties and is otherwise fully advised in the premises.

I. BACKGROUND

The instant action revolves around a breach of contract claim brought by Plaintiff Mizner Grand Condominium Association, Inc. (“Mizner”) against Defendant Travelers Property Casualty Company of America f/k/a The Travelers Indemnity Company of Illinois, and Defendant The Travelers Indemnity Company of America (collectively “Travelers”). Originally, on April 14, 2003, Mizner brought suit in Florida circuit court against Defendants Boca Marina, Ltd. (“Boca”) and Miller & Solomon Contractors, Inc. (“M & S”), alleging that Boca and M & S were to blame for numerous construction defects at the Mizner Grand Condominium. M & S was the general contractor for the condominium, and was insured under commercial general liability policies with Travelers. Boca was the developer of the condominium, and claimed that it was an additional insured under M & S’s policies. During the course of Mizner’s suit against Boca, Boca requested coverage from Travelers as an additional insured, but Travelers refused to defend or indemnify Boca.

Mizner, Boca, and M & S executed a Mediated Settlement Agreement which resolved Mizner’s construction defect claims. Travelers’s failure to defend and indemnify Boca, however, purportedly caused Boca to default on its obligations under the settlement agreement, particularly its obligation to pay for third-party contractor work to remedy the defects. In consideration of Mizner’s forbearance from suit against Boca, Boca assigned any claims it may have had under the insurance policy to Mizner.1 In turn, Mizner brought the instant action against Travelers for breach of contract and declaratory judgment.

In the instant motion, Travelers moves to compel responses to Request Nos. 4 and 10 of its First Request for Production and to Request Nos. 3, 4, 5, and 6 of its Second Request for Production.2 Travelers argues that Mizner has shirked its discovery obligations by offering for inspection approximately 100,000 unsegregated and uncategor[700]*700ized documents. According to Travelers, Mizner’s counsel “merely selected portions of its files that it deemed relevant, placed them in bankers boxes, and assembled the boxes in a conference room.” DE 49 at 7. Travelers argues that this overly generous production is an evasive tactic that does little to respond to its discovery requests.

In opposing Travelers’s motion, Mizner does not argue that Travelers’s requests are substantively inappropriate. Instead, Mizner asserts that, during the underlying construction defect litigation in Florida court, Mizner came to possess “75 banker boxes consisting of documents, depositions, photographs, diagrams, CDs, and floppy disks.” DE 57 at 2. In response to Travelers’s discovery requests, these records were recovered from storage and Mizner’s counsel separated out irrelevant documents. Mizner then allowed Travelers to examine and copy any documents from the thirty remaining boxes. Mizner claims that it has no duty to perform the work of Travelers’s counsel by combing through its files to find information that may be helpful to Travelers’s case, and argues that it has satisfied its discovery obligations by producing responsive documents as they were kept in the ordinary course of business.3 For the following reasons, the Court disagrees, and finds that Mizner’s production is improper.

II. STANDARD OF REVIEW

A party responding to a discovery request must either produce documents “as they are kept in the usual course of business,” or “must organize and label them to correspond to the categories in the request.” Fed. R.Civ.P. 34(b)(2)(E)(i). Rule 34(b)(2)(E)(i) is intended to prevent parties from hiding “a needle in a haystack by mingling responsive documents with large numbers of nonresponsive documents.” Hagemeyer North America, Inc. v. Gateway Data Sciences Corp., 222 F.R.D. 594, 598 (E.D.Wis.2004). Ideally, the burden and expense incurred to find responsive documents within a given set of records produced under Rule 34 should be substantially equal for both parties. See Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105, 1109 (D.Neb.2009); Rowlin v. Alabama Dept. of Public Safety, 200 F.R.D. 459, 462 (M.D.Ala.2001) (“The party complies with the rule if it affords opposing sides equal access to the information sought”).

“[A] responding party has no duty to organize and label the documents if it has produced them as they are kept in the usual course of business.” Hagemeyer, 222 F.R.D. at 598. If a party claims that documents were kept in the ordinary course of business, however, it bears the burden of demonstrating that fact. See Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., 262 F.R.D. 365, 370 (D.Vt.2009). Moreover, even when a party produces documents as they are kept in the ordinary course of business, if the business record-keeping system used by the producing party “is so deficient as to undermine the usefulness of production,” that party may not have met its obligations under Rule 34. Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 336 n. 2 (N.D.N.Y.2008).

III. DISCUSSION

In this case, Mizner has represented that the files it produced were accumulated during the course of the underlying construction defect litigation in state court, a litigation that Travelers actively participated in. According to Mizner, Mizner’s counsel undertook an extensive review of the litigation documents, and, opting to err on the side of caution, designated approximately 30 boxes of material as responsive to the First Request for Production. Mizner argues that since these litigation documents have always been maintained in this fashion, these documents were produced as they have been kept in the normal course of business.

[701]*701The Court finds, however, that Mizner has made no meaningful attempt to show that its production satisfies the business records option in Rule 34(b)(2)(E)(i). Unless Mizner habitually keeps all documents it receives in storage with its attorneys, the documents Mizner acquired during the underlying litigation were simply not maintained in the “usual course of business.” Instead, these documents were accumulated during a specific, non-routine occurrence, and by their very nature are not business records under Rule 34(b)(2)(E)(i). See SEC v. Collins & Aikman Corp., 256 F.R.D. 403, 412-413 (S.D.N.Y. 2009) (production of records procured during an SEC investigation did not satisfy Rule 34, as the SEC’s documents were collected haphazardly during the course of the investigation, and were maintained in large disorderly databases). Moreover, the fact that an organization regularly stores documents as part of its business operations does not mean that production of any documents in storage automatically satisfies Rule 34. See In re Sulfuric Acid Antitrust Litig., 231 F.R.D.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
270 F.R.D. 698, 77 Fed. R. Serv. 3d 1349, 2010 U.S. Dist. LEXIS 123656, 2010 WL 4683540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mizner-grand-condominium-assn-v-travelers-property-casualty-co-of-flsd-2010.