CENTENNIAL BANK

v.

SERVISFIRST BANK INC.

Before the Court are three motions filed by Plaintiff Centennial Bank (Centennial): (1) Centennial’s Motion to Compel Discovery from [Defendant Gregory] Bryant and for Sanctions (Doc. 532); (2) Centennial’s Motion to Compel Discovery from [Defendants Gwynn] Murrin and [Patrick] Davey [as well as] for Sanctions (Doc. 600); and (3) Centennial’s Motion for an Adverse Inference due to Davey and Murrin’s Spoliation of Evidence (Doc. 490). For the reasons discussed below, Centennial’s motions to compel are granted in part and denied in part, and Centennial’s motion for an adverse inference is denied without prejudice.

I.

Background For purposes of the instant motions, a lengthy recitation of the tumultuous history of this action is not required. In brief, Centennial avers in its operative complaint that it acquired Bay Cities Bank (Bay Cities) in 2015 and retained several of Bay Cities’ employees—namely, Defendants Gregory Bryant, Patrick Murrin, Gwynn Davey, and Jonathan Zunz¹—as part of that acquisition. (Doc. 199). Centennial alleges that, in connection with their positions, Bryant, Murrin, Davey, and Zunz were subject to employment agreements, which included provisions governing the maintenance of confidential information, non-competition, and non-solicitation of Centennial’s customers and employees. Id. Shortly after the acquisition of Bay Cities, however, Bryant, Murrin, Davey,

and Zunz simultaneously left Centennial and went to work at Defendant ServisFirst Bank, Inc. (ServisFirst), a competitor of Centennial. Id. Centennial asserted fortyeight state-law claims in its operative complaint that stemmed from Bryant, Murrin, Davey, and Zunz’s simultaneous resignation and relocation to ServisFirst, including for violations of their employment agreements.2

[Davey and Murrin’s] respective Gmail and iCloud accounts.” Id. at 2-3. The Order also directed that Davey and Murrin make all of their computer equipment available to Denny within ten days of the Order, as well provide Denny with access to their accounts. Id. at 3. In addition, the Order established a procedure by which Denny was to analyze the records and then turn over those records that were relevant to Davey and Murrin’s counsel for their review. Davey and Murrin’s counsel were then to produce a filtered set of relevant, non-privileged materials to Centennial along with a privilege log. Id. at 5. Independent of the ESI Protocol Order, all of the parties—including

ServisFirst, Bryant, and Zunz—stipulated to the entry of a protective order to safeguard confidential information disclosed during the discovery process. (Docs. 253, 254). That stipulated protective order was also adopted by the Court in September 2016 and included an “attorney eyes only” provision for “highly

Court hold Murrin in contempt for failure to comply with the ESI Protocol Order. (Doc. 397). That motion stemmed from Centennial’s deposition of Murrin, in which

this time seeking a Court order directing that E-Hounds’ images of Murrin’s devices be produced so that Centennial could show he had deleted “copious amounts of data.” (Doc. 402). The Court denied that motion in September 2019, finding that Centennial had not established that the E-Hounds images would reveal any new information. (Doc. 539). The Court noted in this regard that, according to Murrin, “any deletions—which [Murrin] generally denie[d]—were done either before the E- Hounds imaging or after [the] imaging” performed by the Court-appointed forensic expert, Denny. Id. at 3 (citing Doc. 402 at 74-75, 81-82, 118).6 By way of the instant motions, Centennial again seeks the imposition of spoliation sanctions against both Murrin and Davey (Doc. 490), as well as the production of documents and sanctions against Bryant, Murrin, and Davey (Docs. 532, 600). The Defendants have filed their respective responses to these motions

II.

Centennial’s Motion to Compel Discovery from Bryant and for Sanctions The Court begins with Centennial’s motion directed to Bryant. (Doc. 532). To understand the dispute at issue in this motion, some background is necessary. In May 2016, Centennial filed a motion to compel relative to requests for production it had served on Bryant months earlier. (Doc. 124). Those production requests sought, among other materials, communications between ServisFirst and Bryant from January¹, 2015, through the present date; documents reflecting Bryant’s efforts to market to Centennial’s customers; and documents reflecting Bryant’s efforts to evaluate any credit relationship for purposes of actually or potentially documenting or funding loans to Centennial’s customers. (Doc. 532 at 6-8). In response to these discovery requests, Bryant provided a total of approximately three hundred pages of materials. Deeming Bryant’s production deficient, Centennial sought relief from the Court, arguing that Bryant had failed to provide a privilege log and that certain of his responses, including those relating to emails from his personal email account, were insufficient. (Doc. 124). At a July 2016 hearing on the matter, Bryant—through counsel—informed the Court that he had produced all non-privileged, responsive documents in his possession, custody, or control. (Doc. 532 at 8-11). The Court subsequently denied Centennial’s motion to compel. (Doc. 165). Nearly three years later, in April 2019, Centennial served Bryant with a separate set of production requests seeking communications between Bryant and certain Centennial customers with substantial commercial loans, including an individual named Kirk Eicholtz. Id. at 11; see also (Doc. 532-4). In response to these document requests, Bryant produced seven pages of text message communications in May 2019. (Doc. 532-5). In August 2019, several months after Bryant’s deposition, the close of discovery, and the filing of motions for summary judgment, Bryant produced “a sixty-six (66) page PDF of partially redacted, and substantially incomplete screenshots reflecting text message communications dating back to 2016 between him and [Eicholtz].” (Doc. 532 at 2); see also (Doc. 532-2). Centennial’s instant motion to compel is in response to this later disclosure by Bryant. In its motion, Centennial requests that the Court: (1) compel Bryant to produce a full, complete, and unredacted version of the August 2019 production; (2) compel Bryant to produce any and all other responsive documents; (3) deem any objections as untimely, improper, and waived; (4) compel Bryant to produce all of his personal devices for forensic analysis; and (5) sanction Bryant by requiring him to pay

Centennial’s attorney fees and costs associated with bringing this motion, and— depending on the results of the forensic analysis—either (a) deem the factual allegations in Centennial’s operative complaint regarding Bryant to be true; (b) refuse to permit Bryant to support or oppose the claims or defenses set forth in Centennial’s operative complaint; or (c) allow Centennial to conduct supplemental discovery from Bryant, including re-opening his deposition to address the issues raised by his untimely production; and (6) fashion any other appropriate remedy that the Court deems appropriate. (Doc. 532 at 23). In support of these requests for relief, Centennial relies on, among other things, the representation Bryant made at the July 2016 hearing that he had produced all non-privileged documents in his possession, custody, or control, which were responsive to the earlier document requests. (Doc. 532 at 8-11). After careful consideration of the matter, the Court finds that Centennial’s expansive requests for relief amount to an overreach that is, in substantial measure,

disproportionate and unsupported given the circumstances present in this case. Rules 26 and 37 of the Federal Rules of Civil Procedure establish the framework for resolving the instant dispute. Rule 26(e) provides, in pertinent part, that any party who has responded to discovery requests—including requests for production made under Rule 34—must supplement or correct their responses “in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(1).

A party that believes another party’s discovery responses are evasive or incomplete may move to compel disclosure. Fed. R. Civ. P. 37(a)(4). If such a motion to compel is granted or if disclosure is provided after the motion is filed, the Court “must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney’s fees” unless: “(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action; (ii) the opposing party’s nondisclosure, response, or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(a)(5). A violation of the duty to supplement incomplete responses to requests for production can independently trigger the imposition of sanctions. In particular, Rule 37(c)(1) states that, “[i]f a party fails to provide information . . . as required by [Rule

26(e) governing supplementation], the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).7 Rule 37(c)(1) also provides that, in addition to or in lieu of exclusion, courts may (1) “order payment of reasonable expenses, including attorney’s fees, caused by the failure;” (2) “inform the jury of the party’s failure;” or (3) “impose other appropriate sanctions,” including directing that “designated facts be taken as established for purposes of the action, as the prevailing party claims” or “prohibiting the disobedient party from supporting or opposing designated claims or defenses.” Fed. R. Civ. P. 37(c)(1) (incorporating the remedies set forth in Fed. R. Civ. P. 37(b)(2)(A)(i)-(vi)). Where, as here, a party seeks to enforce Rule 37’s sanctions, “[t]he burden of establishing that a failure to disclose was substantially justified or harmless rests on the nondisclosing party.” Mitchell v. Ford Motor Co., 318 F. App’x 821, 824 (11th Cir. 7 Centennial does not appear to seek exclusion of the text messages at issue. 2009) (quotation omitted). In addressing this issue, reviewing courts consider the nondisclosing party’s explanation for the failure, the importance of the information at issue, and whether the opposing party is prejudiced by the discovery violation. Lips v. City of Hollywood, 350 F. App’x 328, 340 (11th Cir. 2009) (citing Romero v. Drummond Co., 552 F. 3d 1303, 1321 (11th Cir. 2008)). In the end, the Court has substantial discretion in deciding whether and the extent to which sanctions should be imposed under Rule 37. Long v. E. Coast Waffles,

Inc., 762 F. App’x 869, 870-71 (11th Cir. 2019) (citations omitted); Chudasama v. Mazda Motor Corp., 123 F. 3d 1353, 1366 (11th Cir. 1997) (citations omitted). On appeal, a court’s resolution of a discovery violation will be upheld absent an abuse of that broad discretion. Taylor v. Mentor Worldwide LLC, 940 F. 3d 582, 593 (11th Cir. 2019). In this case, it is uncontested that Bryant’s August 2019 supplemental production of additional text messages was made outside of the discovery period. There is also no substantial dispute that the text messages were responsive to Centennial’s discovery requests. Bryant, however, refutes Centennial’s efforts to impute a nefarious motive or conspiratorial intent to hide information, explaining that:

(1) the text messages involving him and Eicholtz between December 2016 and March 2018 were found on a rarely used family iPad after the discovery deadline passed;
(2) he alerted his counsel shortly after finding those text messages; and (3) Bryant’s counsel turned over those relevant communications to Centennial in a prompt manner and in a good-faith effort to supplement its prior production. (Doc. 549).

While the Court is somewhat troubled by Bryant and his counsel’s apparently less than fulsome effort to ensure that Bryant had searched all devices in his possession, custody, or control for responsive text messages, as was indicated at the July 2016 hearing, the Court finds Bryant’s explanation of the supplemental production to be reasonable and adequate. The Court accordingly determines that there is not a sufficient basis on the record before it to conclude that Bryant’s nondisclosure was intentional or that such nondisclosure necessarily means he has additional responsive documents, which he has yet to produce. The Court is also not persuaded that the information contained within the text message was of such importance to Centennial that it would have altered its approach to discovery. As Bryant points out (Doc. 549 at 11), Centennial was well aware of Bryant’s relationship with Eicholtz before the close of discovery and even sought the Court’s permission to depose Bryant for an extra five hours relying, in part, upon an affidavit from Eicholtz outlining their dealings (Docs. 400; Doc. 405 at 124-29).8 In addition, Centennial apparently subpoenaed records from Eichholtz himself, although it is not clear whether Eicholtz was asked for, or disclosed, text messages between him and Bryant. (Doc. 549 at 11). And, other than stating that it would have questioned Bryant more thoroughly at his deposition about his business entanglements with Eicholtz, Centennial fails to explain the significance of the belatedly disclosed text

17). While it recognizes that a text message chain is not a classic “document”—as Bryant maintains—the Court nonetheless finds that Bryant should have disclosed the entire text chain, in unredacted form, under the circumstances present here. These circumstances include the fact that the parties have an agreed-upon confidentiality protective order in place, which permits Bryant to designate undisclosed text messages as “confidential” or “highly confidential” if such designations are warranted.⁹ See (Docs. 253-1, 254).

III.

Centennial’s Motion to Compel Discovery from Murrin and Davey [as well as] for Sanctions Centennial’s next motion pertains to Murrin and Davey, with whom, as noted above, Centennial has been battling over discovery matters since the early stages of this litigation. In its motion, Centennial outlines Murrin and Davey’s alleged pattern of obfuscation, recalcitrance, and dilatoriness in providing ESI, and points out that, long after these two Defendants should have complied with their discovery obligations, they produced a large amount of data in 2019 that revealed even more missing information yet to be produced. (Doc. 600). In particular, Centennial asserts that, as evidenced in Denny’s supporting affidavit, the late production demonstrates the existence of: (1) several additional devices that had not been identified by either Murrin or Davey, nor provided to Denny for imaging; (2) a previously-undisclosed email address for Murrin (pmurrin¹@tampabay.rr.com); (3) two previously-undisclosed iCloud storage plans for Murrin and Davey pertaining to the email addresses pmurrin¹@tampabay.rr.com and [email protected], respectively; and (4) forensic analysis results that undermine Davey and Murrin’s prior representations to the Court regarding the sufficiency of their discovery responses. Id.

Fed. R. Civ. P. 37(b)(2)(A). Regardless of whether the Court imposes any such sanctions, once it finds that a party has failed to comply with its discovery order, it “must order the disobedient party . . . to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). Strict adherence to Rule 37 serves to thwart parties from “flouting discovery orders.” Reed v. Fulton Cty. Gov’t, 170 F. App’x 674, 675 (11th Cir. 2006) (per curiam) (quotation omitted). As such, sanctions “are imposed not only to prevent unfair prejudice to the litigants but also to insure the integrity of the discovery process.” Aztec Steel Co. v. Fla. Steel Corp., 691 F. 2d 480, 482 (11th Cir. 1982) (per curiam). As above, the Court has substantial discretion in deciding whether and the extent to which it imposes sanctions under Rule 37. Chudasama, 123 F. 3d at 1366.

That discretion, however, is not unbridled. It is axiomatic that the magnitude of the sanctions must be “reasonable in light of the circumstances.” Carlucci v. Piper Aircraft Corp., Inc., 775 F. 2d 1440, 1453 (11th Cir. 1985) (noting that permissible purposes of sanctions are to compensate the court or parties for added expenses, compel discovery, deter misconduct, or punish the guilty party) (quotation marks and footnote omitted). Upon thorough consideration of the matter, the Court finds Centennial’s requests for relief on this motion are generally warranted. Murrin and Davey do not dispute in their response to Centennial’s motion that the sought-after devices and information—if they existed—fall within the ambit of the Court’s prior Orders,

including the ESI Protocol Order. Yet, Murrin and Davey in their response mostly evade a number of the issues presented by Centennial,¹¹ fail to proffer persuasive argument or sufficiently support their claims (for example, with a sworn affidavit), and attempt to shift the blame for their own apparent efforts to fog the discovery of

On the other hand, the Court finds that Centennial again overreaches in seeking a complete waiver of all objections. Such a remedy is unwarranted at this point. Rather, as has been the process to date in this case, counsel for Murrin and Davey shall

occurred, even though a 3.01(g) certification had been appended to its motion (Docs. 600 at 15; 633 at 126-129). In light of these circumstances, Centennial’s request for attorney’s fees and costs fails. The Court cautions both sides, however, that it will not hesitate to revisit the matter of fee-shifting under Rule 37 if the parties and counsel engage in any gamesmanship in contravention of, inter alia, the Federal Rules of Civil Procedure, the Middle District of Florida’s Discovery Handbook, and the Local Rules.

IV.

Centennial’s Motion for an Adverse Inference due to Davey and Murrin’s Spoliation of Evidence

Given the Court’s ruling in section III, supra, the Court denies without prejudice Centennial’s motion for an adverse inference based on alleged spoliation. (Doc. 490). While the Court understands that the parties have expended time and effort to brief this issue, it appears that the production of additional information, reports, and access to accounts (addressed above) may substantially alter the facts surrounding Murrin and Davey’s alleged spoliation. Centennial may renew its motion following Murrin and Davey’s compliance with this Order. V. In light of the above, the Court ORDERS as follows: 1. Centennial’s Motion to Compel Discovery from Bryant and for Sanctions (Doc. 532) is granted in part and denied in part. 2. Within seven (7) days of the date of this Order, Bryant shall provide an unredacted version of the text message chain that was produced in redacted form in August 2019.

3. Centennial’s Motion to Compel Discovery from Murrin and Davey [as well as] for Sanctions (Doc. 600) is granted in part and denied in part. 4. Within ten (10) days hereof: a. Murrin shall provide Denny access to the iCloud account associated with the email address pmurrin¹@tampabay.rr.com and any other undisclosed backup account that Murrin used in connection with his mobile Apple devices and his MacBook Pro, including, but not limited to, the iPhone with the IMEI number 353256070407979 (i.e., the 7979 iPhone);¹³

b. Davey shall provide Denny with access to the iCloud account associated with the email address [email protected] and any other

HONORABLE CHRISTOPHER P. TUITE

United States Magistrate Judge Copies to: Counsel of record