GEORGE EVANGELOS, APPELLANT,
v.
H.H. DACHIEL, APPELLEE
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George Evangelos appeals from a final judgment entered after the trial court struck his pleadings as a sanction for discovery noncompliance. The Third District Court of Appeal reverses, holding that the discovery orders themselves were erroneous and that the severe sanction of striking pleadings was excessive under the circumstances.
The discovery orders were erroneous because Florida Rule 1.350(b) permits production of documents in their usual course of business condition, and the trial court exceeded its discretion by ordering reorganization and placing transportation costs on the producing party. The sanction of striking pleadings was excessive and unjustified because the defendant had substantially complied initially, the discovery orders were erroneous, and the defendant attempted in good faith to work with the court and requesting party.
[1] A party producing documents must either produce them as kept in the usual course of business or identify them to correspond with the categories in the request.
[2] The requesting party, not the producing party, should bear the expense of transporting documents to the requesting party's location, especially when the production is ord…
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Join FLexlaw to unlock all legal intelligence“When producing documents, the producing party shall either produce them as they are kept in the usual course of business or shall identify them to correspond with the categories in the request.”
Establishes the legal standard under Florida Rule 1.350(b) that permits production in business condition without reorganization by the producing party.
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Join FLexlaw to unlock all legal intelligenceH.H. Dachiel sued Evangelos and two defunct corporations for investment fraud. Evangelos, appearing pro se, filed a counterclaim. When Dachiel request…
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PER CURIAM.
George Evangelos, who was defendant below, appeals from a final judgment awarding damages to plaintiff following the striking of Evangelos’ pleadings as a sanction for failure to comply with discovery orders. We reverse.
H.H. Dachiel brought suit against Evangelos, and two defunct corporations, Bio-Med Corp. and Bio-Nu Laboratories, Inc., alleging in essence that he had been bilked of his investment in the corporations. Dachiel had been secretary of the two corporations and Evangelos was president. Evangelos appeared pro se to defend against the action and filed a pro se counterclaim. The defunct corporations in effect elected not to defend and have not appealed the judgment entered against them.1
Plaintiff Dachiel propounded a request for production of documents which asked for production of every book and record of the two corporations from 1980 onward. The request also asked for production of documents supporting the defendants’ affirmative defenses and the documents supporting the allegations in the counterclaim. In response Evangelos invited Dachiel’s counsel to Evangelos’ offices where counsel was shown thirty boxes of documents, which were in storage there.
Dachiel filed a motion to compel production of documents, in which he claimed that Evangelos had failed to produce the requested documents; that the documents were not properly organized; and that the working conditions in the storage room were unsuitable. The trial court granted the motion and ordered the defendants to “produce categorically” all records responsive to the request for production of documents, and to make production at the offices of plaintiff’s counsel. This was error. Rule 1.350(b), Florida Rules of Civil Procedure, provides in part, “When producing documents, the producing party shall either produce them as they are kept in the usual course of business or shall identify them to correspond with the categories in the request.” In the present case the two corporations were defunct and the entirety of their records were kept in storage boxes. That is the way they were then kept in the usual course of business within the meaning of the Rule. The plaintiff had requested production of literally every scrap of paper pertaining to the two corporations for the period 1980-88. Having requested a large volume of records, the plaintiff should not have been surprised when a large volume was produced. Since the records were produced as they were then kept, it was error to order the defendant to reorganize the documents so as to correspond to the categories employed by the plaintiff in his request.
It was also error for the trial court to order Evangelos to transport the thirty boxes of documents at his expense to the offices of plaintiff’s counsel. Evangelos had offered to allow plaintiff’s counsel to set up a work station in the storage room where the boxes were kept and suggested that plaintiff’s counsel bring in a copying machine if he so desired. The plaintiff was entitled to ask the trial court to order production at a location with better working conditions, and the trial court had the discretion to grant the motion, but the ex- penses of transporting the records should have been borne by the requesting party— the plaintiff — not the party producing the records. See Schering Corp. v. Thornton, 280 So. 2d 493, 494 (Fla. 4th DCA 1973); Cooper v. Fulton, 117 So. 2d 33, 36 (Fla. 3d DCA 1960).
Subsequent to the entry of the discovery order, Evangelos did make efforts to contact plaintiffs counsel to try to reduce the amount of documents to be produced, and also requested reconsideration by the trial court on at least one occasion. These efforts were unavailing. A further compliance deadline was set for December 22, 1988. The day before the deadline, Evangelos obtained counsel who appeared and requested an extension of the court-ordered deadline. While courtesy would have suggested agreement to some extension of time for new counsel, plaintiff instead filed a motion to strike the defendant’s pleadings, which was granted. A default was entered against Evangelos and his counterclaim was dismissed with prejudice. A bench trial was held on damages and judgment entered against Evangelos in the amount of $432,806.48. In the meantime interim sanctions of $500 had also been entered against Evangelos for failure to comply with earlier document production orders.
The sanctions entered by the trial court were excessive. Evangelos had, in the first instance, complied with the request for production of documents. Had plaintiff not insisted on relief to which he was in no way entitled — reorganization of the documents by defendant and transportation of the records to plaintiff’s office at defendant’s expense — the inspection would have been promptly accomplished. Although the defendant did not comply to the letter with the interim discovery orders, the record does reflect that he attempted to work with both the plaintiff and the court in an effort to reduce the burden to manageable proportions. Defendant’s noncompliance with the interim discovery orders simply does not rise to that level of willfulness which would justify the severe sanction of striking his pleadings, particularly in view of the fact that he had already produced the documents at the outset, that the interim discovery orders were erroneous, and that the plaintiff failed to extend the elementary courtesy of a short extension of time for counsel who had newly entered the case. See Velazquez v. Gaitan, 499 So. 2d 66, 67 (Fla. 3d DCA 1986); Summit Chase Condominium Ass’n, Inc. v. Protean Investors, Inc., 421 So. 2d 562, 564-65 (Fla. 3d DCA 1982) (majority and concurring opinions); Beaver Crane Service, Inc. v. National Surety Corp., 373 So. 2d 88, 89 (Fla. 3d DCA 1979); see also Mercer v. Raine, 443 So,2d 944, 946 (Fla.1983) (“the striking of pleadings or entering a default for noncompliance with an order compelling discovery is the most severe of all sanctions which should be employed only in extreme circumstances.”)
We therefore reverse the final judgment against Evangelos, vacate the default and reinstate Evangelos’ answer, affirmative defenses, and counterclaim. As Evangelos did fail, in part, to comply with the terms of the interim discovery orders (even though entered on an erroneous basis), the trial court’s authority is more than amply vindicated by allowing the $500 monetary sanction to stand.2
Reversed and remanded.
. The trial court informed Evangelos, who is not an attorney, that the corporations would need to engage counsel to defend them. The corporations elected not to do so.
. Evangelos has not contested the imposition of the monetary sanction.
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Krypton Broad. OF Jacksonville, Inc. v. Mgm-Pathe Commc'ns Co., 629 So. 2d 852 (Fla. 1st DCA 1993)…certainly entitled to request production of the documents at a location with better working conditions. The cost of accommodating this request should, absent unusual circumstances, be borne by MGM, the party making the request. Evangelos v. Dachiel, 553 So. 2d 245, 246-247 (Fla. 3d DCA 1989), citing Schering Corp. v. Thornton, 280 So. 2d 493, 494 (Fla. 4th DCA 1973); and Cooper v. Fulton, 117 So. 2d 33, 36 (Fla.3d DCA 1960). Certiorari is granted. The order below is quashed, and this cause is remanded for pr…
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State v. Williams, 678 So. 2d 1356 (Fla. 3d DCA 1996)…” (emphasis added). Although the rule is silent regarding who may bear the cost of the document inspection or copying, any reasonable construction of the rule would place the burden of any copying costs upon the defendant. See Evangelos v. Dachiel, 553 So. 2d 245 (Fla. 3d DCA 1989); Schering Corp. v. Thornton, 280 So. 2d 493 (Fla. 4th DCA 1973). According to the language of the rule 3.220(b)(1), the State’s only obligation to a non-indigent [*1358] defendant is to allow the defense counsel access to the reco…
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Winn Dixie & Crawford & Co. v. Teneyck, 656 So. 2d 1348 (Fla. 1st DCA 1995)…not justify what amounted to the striking of appellants’ defense, particularly in view of the fact that the servicing agent explicitly agreed to produce the application, although at a different, mutually agreeable location. Cf. Evangelos v. Dachiel, 553 So. 2d 245 (Fla. 3d DCA 1989) (finding that striking the defendant’s answer and entering a default judgment was not justified in light of the plaintiffs unreasonable request for production). Ms. Teneyck never took the necessary procedural steps to secure prod…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Mercer v. J.D. Raine, Sr., 443 So. 2d 944 (Fla. 1983)
- Summit Chase Condo. Ass'n, Inc. v. Protean Invs., Inc., 421 So. 2d 562 (Fla. 3d DCA 1982)
- Cummings v. S.C. Ins. Co., 373 So. 2d 88 (Fla. 3d DCA 1979)
- Schering Corp. v. Offa Dean Thornton, 280 So. 2d 493 (Fla. 4th DCA 1973)
- Rachelle Enters., Inc. v. City OF Miami Beach, 117 So. 2d 33 (Fla. 3d DCA 1960)
- LEE v. State, 499 So. 2d 66 (Fla. 3d DCA 1986)
- Velazquez v. Alavar Gaitan, M.D., 499 So. 2d 66 (Fla. 3d DCA 1986)