In Penrod Bros., Inc. v. City of Miami Beach, NO. 1:23-CV-23362-LEIBOWITZ/AUGUSTIN-BIRCH (S.D. Fla. May 1, 2025), Florida Magistrate Judge Panayotta Augustin-Birch by denying all three Plaintiff requests for relief, denied Plaintiff’s Motion to Compel Certification of Production and for Discovery Expenses.

Case Discussion and Judge’s Ruling

In this case involving a dispute over the process for renewal of a lease by the City of Miami, Defendant made several errors in production, attributed to its ESI vendor. As Defendant acknowledged, Defendant produced around 57,000 documents in March 2024 in response to discovery requests. Upon reviewing the production, Plaintiff discovered that the ESI vendor had failed to include documents from certain custodians, although Defendant had agreed to produce those custodians’ documents. As a second error, Defendant then produced around 1.6 million documents in October 2024 in response to discovery requests. Upon reviewing the production, Plaintiff discovered that most of the documents were not responsive to any discovery requests and that Defendant’s ESI vendor had failed to apply agreed-upon search terms.

As a result of these errors and more minor errors, Plaintiff moved for three forms of relief, as follows:

1. Plaintiff asked that Defendant be ordered to provide “intake documentation of its forensic document collection, namely, the acquisition logs (which detail the keywords, databases searched, forensic tool used, SHA256 hash, etc.), to demonstrate and verify the processes used by the vendor to collect the documents in the first place.” During the hearing, Plaintiff acknowledged that Defendant provided the acquisition logs Plaintiff sought after it filed the Motion, so Plaintiff’s first request for relief was denied as moot.
2. Plaintiff also asked that Defendant be ordered to provide “output data showing the hit count from the collection and identifying the Bates number and production volume for each hit document, which would show that every document with a search term was actually produced.” During the hearing, the Court learned that the data Plaintiff sought would be in the form of a spreadsheet that would list around 66,000 documents. The parties disagreed about how onerous and time consuming it might be to produce this spreadsheet. Judge Augustin-Birch stated: “in any event, the Court declines to order Defendant to produce the spreadsheet. Defendant acknowledged the errors that its ESI vendor made, terminated the employment of its initial project manager, and hired a new project manager who has made or is in the process of making Defendant’s productions complete. Defendant has an obligation to serve a notice of completion of production when a production is complete…Defendant also has an obligation to supplement or correct its productions if it learns they are incomplete or incorrect…Based on the representations that Defendant’s counsel made in the briefing and during the hearing, the Court is assured that the ESI vendor’s errors will be corrected.” So, she denied Plaintiff’s second request for relief.
3. Finally, Plaintiff asked that Defendant be ordered to compensate Plaintiff for the time and resources it expended on productions that were incomplete or non-responsive due to the ESI vendor’s errors. Plaintiff relied on Federal Rule of Civil Procedure 37(a)(5)(A) as the basis for such an award. Judge Augustin-Birch stated: “An award of expenses would be unjust in this circumstance. Plaintiff provides no evidence that the ESI vendor’s errors were intentional. Based on the information before it, the Court believes the errors to have been mistakes—mistakes that Defendant is working to correct.” So, she denied Plaintiff’s third request for relief.

Having denied all three requests for relief, Judge Augustin-Birch denied the Motion to Compel Certification of Production and for Discovery Expenses.

Judge Augustin-Birch also granted and denied in part Plaintiff’s motion to hold the Defendant in contempt for failing to produce documents from certain individuals’ personal devices, finding that the Defendant had not waived a broader burdensomeness objection beyond the initially raised apex doctrine objection. However, she evaluated that burdensomeness objection on its merits and overruled it for both a former employee, Ricky Arriola, and four current employees – Mayor Meiner and Commissioners Dominguez, Fernandez, and Rosen Gonzalez – ordering Defendant to produce all responsive, non-privileged materials from those individuals’ personal devices. Judge Augustin-Birch declined to require Plaintiff to cover any travel expenses related to collecting the data and reminded both parties of their ongoing obligations to supplement productions under federal and local rules.

So, what do you think? Are you surprised the Court denied the Motion to Compel Certification of Production and for Discovery Expenses, given the errors were Defendant’s fault?  Please share any comments you might have or if you’d like to know more about a particular topic.

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