BALES

v.

BRIGHT SOLAR MARKETING LLC

individually and on behalf of all others similarly situated,

Plaintiff,

v. Case No. 5:21-cv-00496-MMH-PRL

BRIGHT SOLAR MARKETING

LLC,

Defendant.

O R D E R

THIS CAUSE is before the Court on Defendant Bright Solar Marketing LLC’s Objections to and Appeal of Magistrate’s Order Granting Plaintiff’s Motion to Compel (Doc. 37; Objections), filed on December¹³, 2022.1 Pursuant to Rule 72, Federal Rules of Civil Procedure (Rule(s)), Defendant objects to the

Judge Lammens granted Plaintiff’s Motion to Compel Documents (Doc. 16; Motion to Compel), and directed Defendant to produce to Plaintiff records of calls to putative class members (“call records”) and their consent to these calls (“consent records”). See Order at 2, 10. Defendant contends that the Magistrate

Judge’s Order is clearly erroneous and contrary to law and requests that this Court reverse the Order concerning production of the consent records. See Objections at 3-4, 21. Plaintiff responded to the Objections on January³, 2023. See Plaintiff’s Response to Defendant’s Objection to Magistrate Judge

Lammens’s Discovery Order (Doc. 43; Response).

I. Standard of Review

Inasmuch as the Magistrate Judge’s November 29, 2022 Order on Plaintiff’s Motion to Compel does not dispose of a claim or defense of any party,

it is a nondispositive order. See Smith v. Sch. Bd. of Orange Cnty., 487 F. 3d 1361, 1365 (11th Cir. 2007) (per curiam). As such, to prevail in its Objections, Defendant must establish that the conclusions to which it objects in the Order are clearly erroneous or contrary to law. See Rule 72(a); 28 U.S.C. § 636(b)(1)(A); see also Traylor v. Howard, 433 F. App’x 835, 836 (11th Cir. 2011);2 Merritt v. Int’l Bhd. of Boilermakers, 649 F. 2d 1013, 1016-17 (5th Cir. Unit A June 1981);3 Nat'l Ass’n for the Advancement of Colored People v. Fla. Dep’t of Corrs., 122 F. Supp. 2d 1335, 1337 (M.D. Fla. 2000) (“The standard for overturning a Magistrate Judge’s Order is a very difficult one to meet.”). “Clear error is a highly deferential standard of review.” Holton v. City of Thomasville Sch. Dist., 425 F. 3d 1325, 1350 (11th Cir. 2005) (citation omitted). “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. (citations and quotations omitted); see also Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F. 3d 926, 943 (7th Cir. 1997) (“The clear error standard [under Rule 72(a) and 28 U.S.C. § 636(b)(1)(A)] means that the district court can overturn the magistrate judge’s ruling only if the district court is left with the definite and firm conviction that a mistake has been made.”). A magistrate judge’s order “is contrary to law ‘when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.’” Botta v. Barnhart, 475 F. Supp. 2d 174, 185 (E.D.N.Y. 2007) (quoting Catskill

2937804, at *5 (S.D. Ala. July 23, 2008) (similar) (citation omitted); Schaaf v. SmithKline Beecham Corp., Civil Action No. 1:04-cv-2346-GET, 2008 WL 489010, at *3 (N.D. Ga. Feb. 20, 2008) (similar) (citation omitted).⁴ Moreover, a magistrate judge is afforded broad discretion in issuing nondispositive pretrial orders related to discovery such as the November 29, 2022 Order. See Tracy P. v. Sarasota Cnty., No. 8:05-CV-927-T-26EAJ, 2007 WL 1364381, at *2 (M.D. Fla. May⁹, 2007); see also In re Authority of United States Magistrate Judges in the Middle District of Florida, No. 8:20-mc-00100-SDM, Doc. 3 at 4 (M.D. Fla. Oct. 29, 2020) (“In civil proceedings where the parties do not unanimously consent,

II. Background

Plaintiff’s Motion to Compel concerns production of the call records and consent records for the putative class. See Motion to Compel at 1. In response to Plaintiff’s discovery request for call records, Defendant objected to the request stating that it was “overly broad and unduly burdensome.” See Motion to Compel at 4-5, Ex. 1 at 16. Regarding Plaintiff’s discovery request for consent records, Defendant agreed to produce any non-privileged documents responsive to the request. See id. at 5, Ex. 1 at 16. Plaintiff then filed the Motion to Compel seeking production of the call records and consent records of the putative class. Id. at 15. The Magistrate Judge determined that the Motion to Compel was timely filed, the discovery sought was relevant to the propriety of class certification, and there would be “little burden” on Defendant in producing the responsive documents. See Order at 4-7. As such, Judge Lammens ordered Defendant to produce the call records and consent records for the putative class. See id. at 10. Defendant complied with the portion of the Order compelling production of the call records but moved the Court to stay the portion of the Order compelling Defendant to produce consent records for all putative class members. See Defendant Bright Solar Marketing LLC’s Motion for Partial Stay of Magistrate Judge’s November 29, 2022 Order Granting Plaintiff’s Motion to Compel (Doc. 30; Motion for Partial Stay). The Magistrate Judge granted

Defendant’s Motion for Partial Stay (Doc. 38; Order for Partial Stay) relieving Defendant of the obligation to produce the consent records pending the Court’s ruling on Defendant’s Objections. See Order for Partial Stay at 4. Because the Magistrate Judge’s Order sets forth the background of this litigation, the facts underlying the Motion to Compel, and the relevant evidence, the Court will not repeat that information here.

III. Discussion

Defendant devotes a substantial majority of its Objections to arguing that the Magistrate Judge erred in finding the Motion to Compel was not untimely, and regardless of timeliness, addressing and ruling on an unbriefed issue of Article III standing. See Objections at 4-19. Regarding timeliness, Defendant argues that Plaintiff’s Motion to Compel, filed “212 days” after Defendant served its discovery responses was untimely, and would require an extension of discovery to re-depose Plaintiff’s expert.⁵ See Objections at 4-10. Defendant cites to instances where judges in this District found motions to compel to be untimely, see id. (citations omitted). The Court finds each of these cases to be

Defendant next contends that it complied with Plaintiff’s consent records request as written because Plaintiff used the disjunctive phrase, “Plaintiff or putative class members[.]” See Objections at 11. Thus, Defendant argues that given the choice of producing consent records as to Plaintiff or the putative class,

Defendant chose Plaintiff as the less burdensome option. See id. at 12. Plaintiff argues that Defendant did not object to this request as vague; instead, Defendant presented a boilerplate objection in stating the following: ‘[Defendant] will produce non-privileged documents, if any, responsive to this

Request.’ See Response at 10. Plaintiff contends that the request used “or” instead of “and” to clarify that the documents did not require the consent of both Plaintiff and a putative class member to be responsive.¹⁰ See Plaintiff’s Reply in Support of His Motion to Compel (Doc. 25; Reply). Upon review of the request,

the Court rejects Defendant’s strained interpretation, and finds that the

Further, Defendant argues that the Magistrate Judge erred in compelling Defendant to obtain and produce the consent records because they are exclusively in the possession of a non-party, High Roller Marketing, whom Plaintiff previously subpoenaed.¹¹ See Objections at 12 n.8 & 13-14 n.9. In support, Defendant cites cases holding that a Court cannot compel a party to produce documents outside of its “possession, custody, or control.” See Objections at 13-14 n. 9 (citing, e.g., Tibbetts Lumber Co., LLC v. Amerisure Mut. Ins. Co., No. 8:19-CV-1275-KKM-AAS, 2021 WL 1966492, at *1 (M.D. Fla. May 17, 2021)). However, Plaintiff contends that the responsive documents are within Defendant’s control because High Roller Marketing is Defendant’s subsidiary.¹² See Response at 13-15. Defendant does not dispute this contention. Further, Plaintiff argues that the consent records are not unduly burdensome to produce because Defendant maintains all records of leads from

15,000 hours. Nece, 2018 WL 1072052 at *3. No such circumstances are present here. Thus, this Court finds that the Magistrate Judge did not err in concluding that the requested consent records are relevant and not burdensome to produce. After a careful and complete review of the Magistrate Judge’s Order,

Defendant’s Objections and Plaintiff’s Response, and the parties’ respective arguments and supporting submissions, the Court finds no clear error in the Order, and also determines that the Order is not contrary to law. In light of the foregoing, it is ORDERED: Defendant Bright Solar Marketing’s LLC’s Objections to and Appeal of Magistrate’s Order Granting Plaintiff's Motion to Compel (Doc. 37) is

OVERRULED.

DONE AND ORDERED in Chambers this 17th day of March, 2023.

MARCIA MORALES HOWARD

United States District Judge

Copies to: Counsel of Record