2018.02.16 - Report and Recommendation

Case 6:17-cv-00273-RBD-KRS Document 177 Filed 02/16/18 Page 1 of 22 PageID 3465
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BERLENA SHEFFIELD, as Personal

Representative of the Estate of ANDRE
D. SHEFFIELD,
Plaintiff,
v. Case No: 6:17-cv-273-Orl-37KRS
RODRIGUEZ GREENE, KAREN

RAINFORD AKINPELU, VICKIE
DYANNE ALVES and CHRISTINA
DALY, in her Official Capacity as
Secretary of the Florida Department
of Juvenile Justice,
Defendants.
REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT:
This matter came before the Court for an evidentiary hearing on Plaintiff’s Renewed
Motion for Contempt and Sanctions Against Defendant Christina Daly, in her Official Capacity as
Secretary of the State of Florida Department of Juvenile Justice 1 (“Renewed Motion”) and the
responses and supplements to that motion. Doc. Nos. 75, 79, 81, 109, 134, 136, 139, 143, 158,
159, 160, 163. After the evidentiary hearing was concluded, District Judge Roy B. Dalton, Jr.
referred Defendant, Christina Daly’s Motion For Judgment On The Pleadings and Plaintiff’s
Counter-Motion for Partial Summary Judgment and response thereto to me for issuance of a Report
and Recommendation. Doc. Nos. 78, 83, 104, 115. The Motion For Judgment On The Pleadings
1
In this Report and Recommendation, I will refer to Defendant Daly, in her official capacity, as
either FDJJ or the State.
and the Counter-Motion for Partial Summary Judgment are fully briefed. Accordingly, all of
these motions are ripe for review.
I. STATEMENT OF FACTS. 2
Andre Sheffield’s Death.
Andre Sheffield, who was 14 years old, was in held in custody at the Brevard County
Regional Juvenile Detention Center (“Detention Center”) from February 12 through February 19,
2015. During the morning of February 19, 2015, Sheffield was found unresponsive in his room
at the Detention Center. He was transported by EMS to a local hospital where he died. The
parties’ expert witnesses appear to agree that Sheffield had a viral syndrome that developed into a
bacterial infection which rapidly progressed to bacterial meningitis or meningococcemia resulting
in Sheffield’s death. Defendant’s Ex. A2, Doc. No. 176-2 (excerpt of deposition of Raymond D.
Pitetti, M.D.); Defendant’s Ex. A1, Doc. No. 176-1 (excerpt of deposition of Lise Nigrovic, M.D.).
The Detention Center had a number of cameras that recorded video surveillance of the
facility on four DVRs identified as A, B, C and D (“DVRs”). Promptly after Sheffield’s death,
FDJJ removed the DVRs from the Detention Center and took them to the FDJJ regional office in
Tampa to ensure that the videos taken while Sheffield was in the facility would not be overwritten.
Inspector General Investigation.
On February 26, 2015, the Office of the Inspector General for FDJJ (“IG”) was assigned
to investigate the circumstances leading to Sheffield’s death. On March 3, 2015, IG investigators
went to the Detention Center. The investigators were given remote access to the videos on the
DVRs, which were then in the FDJJ office in Tampa. Richard Bodnar, one of the investigators,
2
The transcript of the evidentiary hearing had not been prepared when this Report and
Recommendation was written. Therefore, I do not include citations to the testimony presented during that
hearing.
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testified that he was able to view videos, which were indexed by time and date, taken while
Sheffield was in the Detention Center. The IG investigators recorded copies of video clips that
they deemed pertinent on their cellphones. They later emailed the video clips to themselves and
saved them in the IG investigative file, which was kept on the K: drive in FDJJ’s computer
network.
On April 1, 2015, Bodnar and another investigator went to the FDJJ offices in Tampa and
viewed the videos on the DVRs, which had been hooked up to a video display monitor. They
were still able to locate relevant videos because they were indexed by time and date.
On April 25, 2015, the IG investigative report was completed. Attached to the report were
some of the video clips the investigators had recorded on their cellphones. On May 29, 2015,
the final report of the investigation was published.
Litigation Begins.
In December 2016, Attorney Andrew Bonderud, counsel for Berlena Sheffield, in her
capacity as Personal Representative of the Estate of Andre D. Sheffield (“Plaintiff”), served a
presuit notice on the State of Florida. Thereafter, the Florida Department of Financial Services,
through its Division of Risk Management (sometimes referred to simply as “Risk”), selected
Attorney Lee “Pete” Muschott, a private contract attorney, to review the notice and related
documents. 3 Muschott received a copy of the IG investigative report, including the video
attachments.
3
Florida law provides for a state self-insurance fund, designated the “State Risk Management Trust
Fund,” administered by the Department of Financial Services. If the proper conditions precedent are
satisfied, the Florida Department of Financial Services participates with a State agency in the defense of a
lawsuit. Fla. Stat. § 284.30. The Florida Risk Management Program sometimes hires private contract
attorneys, who work under the supervision of Risk Management, to defend litigation against State agencies
and employees.
-3-
On January 10, 2017, Plaintiff filed a complaint in Brevard County Circuit Court against
Rodriguez Greene, a detention officer; Karen Rainford Akinpelu (“Rainford”), a registered nurse;
and, Vickie Alves, the supervisor of the Detention Center, in their individual capacities. Each of
these individuals was employed by FDJJ at the time of Sheffield’s death. The complaint alleged
that each Defendant violated Sheffield’s constitutional rights in violation of 42 U.S.C. § 1983.
Doc. No. 2.
On February 16, 2017, Muschott, appearing as counsel for the individual Defendants,
removed the Circuit Court case to this Court. He testified that he removed the case at the direction
of Florida Risk Management in accordance with the general practice of the State to remove claims
for federal constitutional rights to federal court. Doc. No. 1.
Thereafter, Muschott and Bonderud corresponded by email about Plaintiff’s request to file
an amended complaint (“FAC”) to add FDJJ as a defendant. Doc. No. 83-1, at 1. Bonderud
provided a copy of the proposed FAC to Muschott, who suggested many revisions to the claims to
be asserted against FDJJ. Id. at 2, 10, 18, 19, 20, 23, 24. Muschott stated that he needed to get
approval from Florida Risk Management to consent to adding FDJJ as a defendant. Id. at 10
(“Regarding your proposed FAC please note that I will have to get Risk permission to agree to the
amendment. That said they generally go along with my recommendation.”); 25 (“I should have
the okay from Risk by tomorrow and I will let you know as soon as it comes in.”). On April 12,
2017, Muschott wrote to Bonderud, “I have the okay from Risk to proceed on the latest version of
the FAC. Go ahead and proceed.” Id. at 27. The “latest version of the FAC” named FDJJ as a
Defendant.
Thereafter, Bonderud filed the FAC in which Christina Daly, in her official capacity as
Secretary of FDJJ, was added as a Defendant. The FAC alleges that FDJJ committed Wrongful
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Death, Medical/Nursing Negligence and General Negligence in violation of Florida law. Doc. No.
24. 4 Footnote one of the FAC states that Muschott provided written consent for the FAC to be
filed. Id. at 1 n.1. During the evidentiary hearing, Muschott testified that if the record shows
that he consented to the filing of the FAC, the record was accurate.
On April 27, 2015, before a summons to FDJJ was issued, Muschott appeared as counsel
for FDJJ and filed an answer to the FAC on behalf of all Defendants. FDJJ did not deny the
allegation that Muschott consented to filing the FAC, and it did not assert an affirmative defense
of Eleventh Amendment immunity. Doc. No. 27.
The Court issued a Case Management and Scheduling Order (“CMSO”). The CMSO
required Plaintiff to disclose her expert witness reports on October 27, 2017, and Defendants to
disclose their expert witness reports on November 24, 2017. Doc. No. 21, at 2. Discovery was
to be completed, and all discovery-related motions were to be filed, by December 29, 2017.
Summary judgment motions were due on January 26, 2018. Counsel were required to meet on
May 1, 2018 to prepare a Joint Final Pretrial Statement, which is due to be filed on May 10, 2018.
The final pretrial conference is scheduled for May 17, 2018. The case is scheduled on the June
4, 2018 trial term. Id. at 3.
First Motion to Compel Production of Videos. 5
On May 7, 2017, Bonderud served Plaintiff’s First Request for Production to FDJJ.
Request 10 asked for “All video surveillance of Decedent [Andre Sheffield].” Doc. No. 48-1.
Muschott did not timely serve a written response to the requests for production. In early July
4
The § 1983 claim against Greene and Rainford (Count I) was alleged in the alternative to the
claims against FDJJ (Counts III and IV). In Sharbaugh v. Beaudry, 267 F. Supp. 3d 1326 (N.D. Fla. 2017),
the court discussed the interplay between § 1983 claims and claims under the Florida Wrongful Death Act.
5
Although there were many discovery disputes, for purposes of this Report and Recommendation,
I address only disputes regarding discovery of videos of Sheffield.
-5-
2017, he produced some documents, including a CD containing video files which were exhibits to
the IG’s report. Doc. No. 48, at 3.
On July 30, 2017, Bonderud file a motion to compel discovery from FDJJ. Doc. No. 48.
On August 1, 2017, Muschott served a belated written response to the request for production. 6 In
response to request 10, Muschott stated that to the extent responsive videos had not been produced
they were available for inspection and copying during regular business hours at the offices of FDJJ
in Tampa, Florida. Doc. No. 51-1, at 4. However, during the evidentiary hearing, Muschott
testified he did not know whether there were additional videos of Sheffield or where any such
videos could be found. Nevertheless, in the response to the motion to compel, Muschott asserted
that FDJJ was in “substantial compliance” with production of discovery and that “full compliance
will be accomplished shortly[.]” Doc. No. 49, at 1-2.
On August 7, 2017, I granted the motion to compel in part and ordered FDJJ to produce all
documents or tangible items responsive to the requests for production that had not yet been
disclosed on or before August 11, 2017. Doc. No. 50. Muschott did nothing to comply with this
Order. He testified that he was on vacation from August 3 through August 18, 2017 and that no
one notified him about the Court’s Order. When he returned from vacation, he did not file a
belated motion for an enlargement of time because he thought his time was better spent trying to
respond to the discovery requests.
6
Muschott testified that this response was not served on time because he had a number of things
to address and he was working as rapidly as he could.
-6-
Rule 30(b)(6) Deposition.
On August 28, 2017, Bonderud and Muschott went to the Detention Center to inspect the
facility. Bonderud noticed the cameras in the facility and asked Muschott to produce the videos
of Sheffield recorded by those cameras. Muschott asked Alves and other personnel at the
Detention Center where the videos were located. He was told that the DVRs had been removed
from the Detention Center by the IG’s office and that they did not know where the recordings were
or if they had been preserved. Muschott did not ask the IG’s office or anyone else at FDJJ to
locate the DVRs for him. Rather, he assumed that the videos no longer existed.
Later, Bonderud asked to take a Rule 30(b)(6) deposition of a representative of FDJJ.
FDJJ designated Bodnar as its representative. Bodnar received the notice of the Rule 30(b)(6)
deposition on September 26, 2017. Some of the topics for the deposition addressed the videos
taken at the Detention Center. Bodnar called the FDJJ regional office in Tampa and learned that
the DVRs were still in that office. He immediately notified Muschott about the existence of the
DVRs. Defendant’s Ex. A11, Doc. No. 176-8 (email from Bodnar to Muschott dated September
26, 2017 stating, “Pete, call me ASAP, I have some breaking news regarding the video
surveillance.”). Muschott did not ask Bodnar to review the videos to determine whether there
were videos of Sheffield recorded on the DVRs. Muschott did not tell Bonderud that the DVRs
had been located. On October 2, 2017, Bonderud first learned that the DVRs had been located
during the Rule 30(b)(6) deposition.
First Motion for Sanctions.
On October 5, 2017, Bonderud filed Plaintiff’s Motion for Contempt and Sanctions based,
in part, on FDJJ’s failure to produce all of the videos of Sheffield. Doc. No. 51. In the response
to the motion, Muschott offered to make all of the videos taken at the Detention Center available
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for Bonderud’s review at FDJJ’s Tampa office. Doc. No. 57, at 3-4. On October 17, 2017, Judge
Dalton scheduled the motion for sanctions and other motions for a hearing to be held on November
14, 2017.
On November 1, 2017, Muschott and Bodnar went to the FDJJ Tampa office where, for
the first time, Muschott viewed some of the videos on DVR A and DVR B. Muschott also
obtained an index of the cameras in the Detention Center and their locations (the “Index”).
Defendant’s Ex. A5, Doc. No 176-5.
On November 2, 2017, Muschott wrote a letter to Bonderud in which he enclosed the Index.
Doc. No. 73-3. Muschott and Bonderud later spoke about the videos. In an attempt to narrow
the scope of the videos sought in discovery, Muschott identified from the Index cameras and
locations of areas that Sheffield would not have been permitted to enter. Muschott did not,
however, take any steps to have videos from the locations where Sheffield might have been
recorded identified or exported for production in discovery.
On November 14, 2017, Muschott appeared before the Court at a hearing on the motion
for sanctions. Judge Dalton asked Muschott what he had done to produce videos in response to
my August 7, 2017 Order and Muschott responded as follows:
THE COURT: Well, Judge Spaulding issued an order requiring you to

produce information on or before August the 11th. . . . What did you do to comply
with that order?
MR. MUSCHOTT: I contacted Margie McKinney, who’s the

superintendent at the center, and I asked her if the video surveillance was still
available. In other words, was it there? Had it been recorded over? She didn’t
know, but she thought that the IG team had removed all the equipment. So I
contacted Mr. Bodnar 7 and he went in search of the equipment and found it four
days before he was deposed by Mr. Bonderud in a closet at their office in Tampa.
7
Bodnar’s testimony and his “breaking news” email undermine Muschott’s representation to the
Court that he asked Bodnar to locate the DVRs. Rather, the evidence shows that the only inquiry Muschott
made was to ask personnel at the Detention Center about the location of the DVRs.
-8-
And that’s what he testified to in his deposition. And then he stated that it’s
available. And so it is preserved. And I have looked at some of it. It’s very
searchable. . . .
THE COURT: Well, here’s the problem, Mr. Muschott. We’re now in
November. You were ordered to produce this information back in August or to
request an enlargement of time. You did not request an enlargement of time. It’s
your responsibility to make sure that you know that your client understands what
they’re obligated to produce. That wasn’t done. Judge Spaulding’s order was not
complied with. It doesn’t sound to me like there was much of an effort to comply
with it.
Now, if your client wanted to be here in the United States District Court –
you removed this case from state court – it’s your clients’ responsibility and your
responsibility as their counsel to make sure that they comply with the rules of
discovery. Now, here’s what we’re going to do. I want all the documents that
are responsive to the plaintiff’s request produced to them no later than . . .
Wednesday, November the 22nd. I want your client to produce at their own
expense using their own people from every location, Tampa, Tallahassee, and
Cocoa Beach. Mr. Bonderud is not going to be required to go to any of these
places. I want all of these documents produced and . . . all of the video footage.
All of it. I want all of the documents that are responsive to the request. That
includes all iterations of the Office of Inspector General’s reports. Any other
documents that are responsive to the request must be produced to the plaintiff in
electronic form or physical form no later than Wednesday the 22nd of November.
If that does not happen – Mr. Muschott, I want to make sure your client
hears this – if that does not happen, I’m going to enter a default judgment against
the State.
Doc. No. 85, at 12-15. In an effort to alleviate some of the prejudice to Plaintiff arising from
FDJJ’s failure to produce discovery, Judge Dalton extended the deadline for Plaintiff to serve
amended expert witness disclosures to December 22, 2017. Id. at 19.
Failed Attempt to Export Videos to DVDs.
Bonderud’s assistant downloaded from the internet manuals for the DVRs, which
explained how to export stored videos. On November 2, 2017, Bonderud sent these manuals to
Muschott. Doc. No. 109-4. Muschott forwarded the manuals to Bodnar with instructions for
him to work with IT personnel at FDJJ to determine whether videos could be exported from the
-9-
DVRs. Defendant Ex. A16, Doc. No. 176-13. Richard Dean, an Operations Consultant Manager
with FDJJ, prepared an affidavit dated December 1, 2017 stating that he had viewed the videos on
the DVRs and determined that there were some surveillance videos on DVRs A, B, and C. Doc.
No. 79-3.
In response to Judge Dalton’s Order, Muschott directed Dean to copy all the videos from
the DVRs onto DVDs using the instructions in the manuals. See also Doc. No. 81-1. Dean made
three DVDs, one each for DVR A, B and C. Dean told Muschott that there were no videos stored
in DVR D. Dean sent the DVDs to Muschott by overnight delivery on November 20, 2017
without comparing the DVDs to the DVRs’ footage to ensure that the DVDs were complete. 8
When Muschott received the DVDs, he sent them by overnight delivery to Bonderud without
attempting to view the DVDs to see what they contained.
After reviewing the DVDs, Bonderud told Muschott that the discs were incomplete.
Muschott asked for another person at FDJJ to attempt to make copies of the videos, still without
limiting the copying to videos of Sheffield or even to videos of only the locations to which
Sheffield would have had access. However, FDJJ could not export complete copies of the videos
from the DVRs.
On November 13, 2017, Attorneys James O. Williams, Jr. and Jessica R. Butler of the
Williams, Leininger & Cosby, P.A. law firm entered an appearance as co-counsel for all of the
Defendants. Doc. No. 71. There is no evidence that these lawyers assisted Muschott in
attempting to obtain responsive videos to produce in discovery as required by Judge Dalton’s
Order.
8
At the hearing, Muschott testified that the DVRs contained hours and hours of videos and that it
would have been impractical for anyone to view the entire videos and compare them with the DVDs to
determine whether the DVDs were complete.
- 10 -
Renewed Motion for Sanctions.
Bonderud filed the Renewed Motion on November 26, 2018. Doc. No. 75. In the
response to the Renewed Motion, Attorney Williams wrote: “Defendant [FDJJ] has produced to
plaintiff all video surveillance that can be copied/exported . . . from February 12, 2015 to February
19, 2015, using the procedure outlined by the manufacturer of the DVRs. . . . Defendant cannot be
held in contempt or sanctioned for failing to produce something that has never existed or does not
exist in a form that can be exported for production.” Doc. No. 79, at 5-6.
On December 7, 2017, I scheduled a hearing on the Renewed Motion to be held before me
on December 13, 2017. I required FDJJ to bring the DVRs to my courtroom in Orlando and to
be prepared to play the videos responsive to request for production 10 during the hearing. Doc.
No. 92.
About one week before the hearing, counsel for FDJJ contacted Sylint, a digital data
forensics and cyber security firm with experience in e-discovery, to assist in complying with my
notice of hearing. 9 Counsel told John Jorgenson, one of the founders of Sylint, that there was a
problem exporting videos from the DVRs. Sylint began gathering information about how the
videos were made and stored on the DVRs. It determined that surveillance videos would have
been recorded on three hard drives inside each DVR. Sylint employees traveled to Tampa on
December 11, 2017 to make forensic images of the hard drives located in each of the DVRs to use
in the attempt to recover responsive videos. However, because so much data was stored on the
9
In a hearing before me on December 12, 2017, Williams stated that Sylint was contacted after
the notice of hearing was issued. Doc. No. 117, at 6. At the evidentiary hearing on the Renewed Motion,
Jorgensen testified that Sylint was contacted on December 6, 2017, the day before the notice of hearing was
issued. The date Sylint was first contacted is important only to the extent that it establishes that FDJJ did
not hire a forensic expert to assist in production of the videos until well after the November 22, 2017
deadline for production of the videos.
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hard drives, the imaging could not be completed that day. Jorgensen told counsel for FDJJ that
he was concerned that transporting the DVRs to my courtroom in Orlando and turning the DVRs
on to play videos in Court might result in corrupting whatever data was stored on the DVRs’ hard
drives.
On December 12, 2017, Williams filed an emergency motion to cancel the hearing
scheduled for the next day. I held a telephone conference during which Jorgensen told me about
his concerns that data would be corrupted if the DVRs were transported to Orlando, turned on and
an attempt was made to play the videos in court. Doc. No. 117. I canceled the hearing to give
Sylint time to make forensic copies of the hard drives inside the DVRs and to attempt to recover
responsive videos from these forensic copies. I issued an Order requiring FDJJ to file, on or
before December 19, 2017, a supplement to the response to the Renewed Motion stating the
progress that had been made in recovering responsive videos. I also required counsel for the
parties to confer to provide parameters for the videos Sylint was being asked to recover. Doc.
No. 102, at 2.
Sylint was instructed to attempt to recover videos taken from February 12 through February
19, 2015, when Sheffield was in the Detention Center. Sylint then began extensive efforts to
recover videos from the DVRs. See, e.g., Doc. Nos. 109-5, 135-1.
On December 19, 2017, FDJJ reported that Sylint had not yet determined whether any
responsive videos could be exported from the DVRs for production in discovery. Doc. No. 109,
at 7. It asked for two enlargements of time for Sylint to continue its work. Id.; Doc. No. 135. I
extended the date for production of the videos to February 2, 2018, even though this was after the
discovery deadline and the extended deadline for Plaintiff to supplement her expert reports,
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because Bonderud stated that the videos would be important evidence in his case. Doc. Nos. 113,
138.
Despite Judge Dalton’s statement that Bonderud would not be required to travel to obtain
the discovery FDJJ was ordered to produce, in the amended response to the Renewed Motion filed
on December 19, 2017, Williams argued as follows:
On October 12, 2017, Defendant filed its Response to Plaintiff’s Motion for
Contempt and Sanctions (DE 57). Within the response, Defendant indicated that
the relevant portions of video surveillance had been preserved via the IG cell phone
videos which had been already provided to Plaintiff through discovery and that
Plaintiff was free to independently review all the requested video surveillance at
FDJJ Central Detention Regional Office in Tampa. . . .
Defendant has invited Plaintiff on numerous occasions to view the video

surveillance in person in Tampa yet Plaintiff has failed to do so. Consequently,
there is no basis for the Court to sanction Defendant by entering a default judgment
against it. Plaintiff’s refusal to avail herself to defendant’s offer to view the
surveillance, a simple solution to the problem and an easy way to determine if
defendant is hiding evidence, reveals her lack of concern for the substance of the
surveillance videos.
Doc. No. 109, at 4, 5, 15 (original emphasis).
While Sylint continued to work on recovering responsive videos, FDJJ filed a motion to
extend the discovery deadline so that it could take additional discovery. Doc. No. 110. In that
motion, Williams argued that “through no fault of its own, to date, FDJJ has been unable to
comply” with the Court’s Orders to produce videos of Sheffield. Doc. No. 110, at 2. I denied
the motion. In my Order, I reviewed a time line of FDJJ’s failure to produce the videos. I found
that the chronology “establishes that [FDJJ’s] failure to search for, capture and produce the
surveillance videos in response to my order is directly the fault of [FDJJ] and its counsel’s failure
to exercise due diligence,” including failure to promptly retain an outside forensic expert to assist
it in producing the videos in discovery. Doc. No. 113, at 4.
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I scheduled an evidentiary hearing on the Renewed Motion to be conducted on February
7, 2018. Doc. No. 142, 154. At the evidentiary hearing, Bodnar and Muschott testified as
summarized above. FDJJ also introduced and played for the Court portions of videos of Sheffield
that the IG investigators recorded on their cellphones, some of which were not exhibits to the IG
investigative report. Defendant’s Exs. A3a, A3b, A3c, A3d, A3e, A3f, A3g, A4a, A4b, Doc. Nos.
176-3, 176-4. 10
Jorgensen also testified at the evidentiary hearing. He stated that it appeared that the loss
of power from a button battery inside each of the DVRs caused the devices to lose their internal
clock settings. Because the DVRs’ software indexed the videos by date and time, without an
accurate internal clock the DVRs could not find and stitch together video clips 11 for the dates
when Sheffield was in the Detention Center. Sylint purchased specialized forensic software to
attempt to recover the videos, but initially the videos could not be recovered. After working with
the manufacturer of the DVRs and the forensic software company, on February 2, 2018, Sylint
was finally able to begin recovering the videos recorded between February 12 and February 19,
2015, from all four DVRs. It produced the recovered videos to the Williams law firm on a rolling
basis, and the Williams law firm forwarded the recovered videos without modification to Bonderud
over the weekend before the evidentiary hearing.
As of February 5, 2018, Sylint had recovered 64,000 video clips. Only nine video clips
recorded over twenty minutes on February 12, 2015 were not recovered. Jorgensen testified that
10
In his closing remarks, Bonderud stated that he saw one of these videos for the first time during
the hearing. This video, which was not an exhibit to the IG report, was taken on February 19, 2015 and
showed FDJJ personnel responding to Sheffield’s room after he was found to be unresponsive.
11
Jorgensen testified that the DVRs recorded videos in segments. The DVRs’ software would
then use its internal indices to join (stitch together) related segments to create continuous video for a
particular date and time.
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there could be many reasons for the corruption of those nine video clips, but he saw no evidence
that any videos were tampered with or deleted. In response to questions from the Court and
counsel, Jorgensen testified that if Sylint had been retained earlier, it could have performed the
forensic work it recently performed and likely could have produced responsive videos within
approximately six weeks from the date the firm was retained.
In his closing remarks, Bonderud stated that had not had an opportunity to review the
64,000 recovered video clips before the hearing so he could not yet identify with particularity what
new, material evidence was in those videos. Nevertheless, he argued that his client was
prejudiced by the belated disclosure of the videos because he had not been able to provide the
videos to his experts before the extended expert witness disclosure date and he had not been able
to use the videos during depositions of experts, parties and other witnesses.
II. ANALYSIS.
A. Renewed Motion for Sanctions.
FDJJ has violated two Orders of this Court: (1) the August 7, 2017 Order requiring
production of all responsive videos on or before August 11, 2017; and (2) the November 14, 2017
Order requiring production of all responsive videos by 5:00 p.m. on November 22, 2017. The
Court could not have been more clear about the consequences FDJJ faced for violation of the
November 22, 2017 Order: “If that does not happen — Mr. Muschott, I want to make sure your
client hears this — if that does not happen, I’m going to enter a default judgment against the State.”
Doc. No. 85, at 15.
The record reflects that FDJJ has always had the ability to find and produce videos
responsive to request 10. The DVRs were in its Tampa office. As of November 1, 2017,
Muschott and Bodnar were able to view the videos, which were still indexed by date and time.
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Nevertheless, FDJJ took no steps to identify videos of Sheffield in response the request for
production, the August 7, 2011 Order or the November 14, 2017 Order.
Instead, counsel for FDJJ attempted to shift the blame for the failure to discover responsive
videos to Bonderud and to absolve itself of responsibility. On December 19, 2017, after the Court
told counsel for FDJJ that Bonderud would not be required to travel to various locations in Florida
to obtain responsive discovery, Williams had the audacity to argue that FDJJ’s failure to produce
responsive videos occurred because of “Plaintiff’s refusal to avail herself [of] defendant’s offer to
view the surveillance[.]” Doc. No. 109, at 4.
In another document filed on December 19, 2017, Williams wrote on behalf of FDJJ that
the failure to comply with this Court’s Orders was “through no fault of its own[.]” Doc. No. 110,
at 2. This representation was false. Once FDJJ finally hired a forensic expert, Sylint was able to
recover videos from the dates when Sheffield was at the Detention Center. Counsel for FDJJ’s
failure to hire Sylint earlier to assist in production of the videos in response to the Court’s Orders
also ignored their professional responsibilities. Effective January 1, 2017, the comment to Rule
4-1.1 of the Rules Regulating the Florida Bar was amended to provide as follows: “[C]ompetent
representation may also involve association or retention of a non-lawyer advisor of established
technological competence in the field in question.”
Accordingly, the record establishes that FDJJ and its counsel acted willfully and in flagrant
disregard of their responsibilities by failing to produce responsive videos of Sheffield in response
to the request for production, the August 7, 2017 Order and the November 14, 2017 Order.
Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1342 (11th Cir. 1993); Aztec Steel Co. v. Fla. Steel
Corp., 691 F.2d 480, 481 (11th Cir. 1982). This conduct is sanctionable under Federal Rule of
Civil Procedure 37(b)(2)(A).
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Plaintiff asks the Court to impose the most severe sanctions: striking FDJJ’s answer and
entering a default judgment against it. Because discovery has closed, summary judgment motions
have been filed and trial is scheduled to begin in less than three months, there are no lesser
sanctions that could cure the prejudice Plaintiff has suffered by not being able to show the videos
of Sheffield to the experts or to examine parties and witnesses about the videos during discovery.
Additionally, as the Eleventh Circuit explained in Aztec Steel, no lesser sanctions would
uphold the integrity of the Court’s orders and rules.
When a party demonstrates a flagrant disregard for the court and the discovery
process, however, dismissal is not an abuse of discretion. . . . In the instant case the
court found that Aztec knowingly and willfully failed to comply with court ordered
discovery and that sanctions less severe than dismissal would be ineffective. We
are unwilling to conclude that the district court abused its discretion.
Aztec contends the dismissal of its claims against Florida Steel was improper
because Florida Steel did not propound interrogatories. This argument disregards
the institutional values Rule 37 is designed to protect. Rule 37 sanctions are
imposed not only to prevent unfair prejudice to the litigants but also to insure the
integrity of the discovery process. Aztec’s contumacious conduct justified the
district court’s dismissal of the entire action. If we were to hold otherwise, “other
parties to other lawsuits would feel freer than we think Rule 37 contemplates they
should feel to flout other discovery orders of other District Courts.”
691 F.3d at 481.
During the November 14, 2017 hearing, the Court warned counsel for FDJJ that if FDJJ
did not produce the responsive videos by 5:00 p.m. on November 22, 2017, the Court would enter
a default judgment against the State and proceed to trial only on the question of damages. Doc.
No. 85, at 15, 22. Despite this explicit warning, FDJJ and its counsel continued to disobey the
Court’s Orders willfully and in blatant disregard of their responsibilities. Specifically, counsel
for FDJJ did not instruct anyone at FDJJ to search the DVRs for videos of Sheffield or even for
videos of the locations where Sheffield would have had access. They did not hire a forensic expert
to attempt to recover responsive videos and to produce them by 5:00 p.m. on November 22, 2017.
- 17 -
Instead, counsel for FDJJ blamed Bonderud for FDJJ’s failure to do what the Court’s Orders and
rules require it to do, and it continued to falsely argue that FDJJ’s failure to comply with the
Court’s Orders was “through no fault of its own.” For these reasons, I recommend that the Court
find that the only effective sanction is to strike FDJJ’s answer and enter a default judgment against
it on liability.
Federal Rule of Civil Procedure 37(b)(2)(C) also provides that, instead of or in addition to
Rule 37(a)(2)(A) sanctions, the Court must order the disobedient party to pay the opposing party’s
reasonable expenses, including attorneys’ fees, caused by the failure, unless the failure was
substantially justified or other circumstances make an award of expenses unjust. Because FDJJ
always had the responsive videos in its possession, custody and control and because the videos
were produced after FDJJ hired Sylint, the failure to comply with the Court’s Orders was not
substantially justified and no circumstances make an award of expenses unjust. Therefore, I
further recommend that the Court Order FDJJ to pay the reasonable expenses, including attorney’s
fees, incurred in Plaintiff’s repeated efforts to obtain discovery from FDJJ.
B. FDJJ Waived Eleventh Amendment Immunity.
FDJJ filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). It argues that it is immune from suit in this Court under the Eleventh
Amendment to the United States Constitution. Plaintiff argues that because FDJJ, through its
attorney, expressly consented to being added as a Defendant in this case, it waived its Eleventh
Amendment immunity. Plaintiff filed a counter-motion for summary judgment supported by
email communications between Bonderud and Muschott in which Muschott agreed in writing to
the filing of the FAC, which added FDJJ as a Defendant.
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“ʻJudgment on the pleadings is proper when no issues of material fact exist, and the moving
party is entitled to judgment as a matter of law and any judicially noticed facts. We accept all
facts in the complaint as true and view them in the light most favorable to the nonmoving party.’”
Barnett v. Baldwin Cty. Bd. of Educ., 60 F. Supp. 3d 1216, 1223-24 (S.D. Ala. 2014)(quoting
Interline Brands, Inc. v. Chartis Spec. Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014)). On a motion
for judgment on the pleadings, the court considers the complaint, answer and any exhibits thereto.
Id.
“The Eleventh Amendment grants a State immunity from suit in federal court by citizens
of other States and by its own citizens.” Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535
U.S. 613, 616 (2002). “A State remains free to waive its Eleventh Amendment immunity from
suit in a federal court.” Id. at 618. In Lapides, the Supreme Court observed as follows:
It would seem anomalous or inconsistent for a State both (1) to invoke federal
jurisdiction, thereby contending that the “Judicial power of the United States”
extends to the case at hand, and (2) to claim Eleventh Amendment immunity,
thereby denying that the “Judicial power of the United States” extends to the case
at hand. And a Constitution that permitted States to follow their litigation interests
by freely asserting both claims in the same case could generate seriously unfair
results. Thus, it is not surprising that more than a century ago this Court indicated
that a State’s voluntary appearance in federal court amounts to waiver of its
Eleventh Amendment immunity.
Id. at 619 (quoting Clark v. Barnard, 108 U.S. 436, 447 (1883)).
Addressing first the motion for judgment on the pleadings, the FAC alleges that “on April
12, 2017, Lee E. Muschott, Esq., Counsel for Defendants, provided the undersigned Counsel with
written consent to the filing of this amended pleading.” Doc. No. 24, at 1 n.1. Muschott, in turn,
appeared as counsel for FDJJ by filing an answer to the FAC on behalf of FDJJ and the other
Defendants. Doc. No. 27. FDJJ did not deny the allegation that Muschott had consented to the
filing of the FAC. It also did not assert an affirmative defense of Eleventh Amendment immunity.
- 19 -
Id. Therefore, considering only the face of the pleadings, Muschott represented FDJJ and, in that
capacity, consented to the filing of the amended complaint adding one of his clients – FDJJ (which
is a State agency) – as a Defendant. Accordingly, FDJJ waived its Eleventh Amendment
immunity by voluntarily appearing in this Court. Cf. Lapides, 535 U.S. at 624 (finding that
removal of a case by a State defendant to federal court “is a form of voluntary invocation of a
federal court’s jurisdiction sufficient to waive the State’s otherwise valid objection to litigation of
a matter (here of state law) in a federal forum.”). Therefore, the motion for judgment on the
pleadings is not meritorious.
Nevertheless, Williams argues that Muschott did not have authority to agree to the filing
of the FAC naming FDJJ as a Defendant because Muschott had not been authorized to represent
FDJJ at the time he consented to filing the FAC. Doc. No. 104. This argument rests on facts not
presented on the face of the pleadings. Because Plaintiff filed a counter-motion for summary
judgment, the Court may consider the record as a whole in determining whether Muschott had the
authority to consent to filing claims against FDJJ in this Court. The record overwhelmingly
establishes that he did.
During the evidentiary hearing on the Renewed Motion, Muschott testified that he was
authorized by Risk Management to represent FDJJ in this case. Muschott also testified that if the
record showed that he provided written consent to filing the FAC, which named FDJJ as a
Defendant, the record was accurate. The record contains email communications between
Bonderud and Muschott in which Muschott reviewed drafts of the FAC and suggested
modifications he deemed necessary for Risk Management to consent to naming FDJJ as a
Defendant. Muschott expressly stated that he would have to obtain permission from Risk
Management, a division of the State of Florida Department of Financial Services, to consent to
- 20 -
filing the FAC. On April 12, 2017, Muschott wrote to Bonderud, “I have the okay from Risk to
proceed on the latest version of the FAC. Go ahead and proceed.” Doc. No. 83-1, at 27
(emphasis added). 12 This establishes that Muschott was expressly authorized by the Florida
Department of Financial Services, Division of Risk Management, to consent to FDJJ’s voluntary
appearance in this Court as a Defendant named in the FAC. Based on this evidence, the counter-
motion for summary judgment finding that FDJJ waived its Eleventh Amendment immunity is due
to be granted.
IV. RECOMMENDATIONS.
For the reasons discussed above, I RESPECTFULLY RECOMMEND that the Court
proceed as follows:
A. DENY Defendant, Christina Daly’s Motion For Judgment On The Pleadings (Doc.
No. 78) and GRANT Plaintiff’s Counter-Motion For Partial Summary Judgment
(Doc. No. 83);
B. GRANT in part the Plaintiff’s Renewed Motion For Contempt And Sanctions
Against Defendant Christina Daly, In Her Official Capacity As Secretary Of The State
Of Florida Department Of Juvenile Justice (Doc. No. 75);
C. STRIKE the answer of Christina Daly, in her Official Capacity as Secretary of the
Florida Department of Juvenile Justice (Doc. No. 27) and ENTER a default judgment
12
FDJJ did not object to reliance on the email communications in its response to the counter-
motion for summary judgment. Doc. No. 104. Because the email communications show that Muschott
was acting as counsel for the State in his negotiations regarding the wording of the claims against FDJJ, the
email communications can be considered to be statement of a party opponent under Fed. R. Civ. P. 801
(a)(2)(C), (D). Additionally, the evidence that the State, through the Division of Risk Management,
authorized Muschott to consent to filing the FAC naming FDJJ as a Defendant in federal court can be
considered in resolving the motion for summary judgment because it could be reduced to admissible
evidence at trial. See, e.g., Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012)(citing
Macuba v. DeBoer, 193 F.3d 1316, 1322 (11th Cir. 1999)).
- 21 -
finding Christina Daly, in her Official Capacity as Secretary of the Florida Department
of Juvenile Justice, liable for the claims asserted in Counts III and IV of the First
Amended Complaint; and,
D. ORDER Christina Daly, in her Official Capacity as Secretary of the Florida
Department of Juvenile Justice, to pay Plaintiff the reasonable expenses, including
attorneys’ fees, incurred in the efforts to obtain discovery from her in an amount to be
subsequently determined by the Court.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and
Recommendation’s factual findings and legal conclusions. A party’s failure to file written
objections waives that party’s right to challenge on appeal any unobjected-to factual finding or
legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R.
3-1.
Recommended in Orlando, Florida on February 16, 2018.
Karla R. Spaulding
KARLA R. SPAULDING
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Presiding District Judge

Counsel of Record
Unrepresented Party
Courtroom Deputy
- 22 -

2018.02.16 - Report and Recommendation

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2018.02.16 - Report and Recommendation

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Case 6:17-cv-00273-RBD-KRS Document 177 Filed 02/16/18 Page 1 of 22 PageID 3465

UNITED STATES DISTRICT COURT

BERLENA SHEFFIELD, as Personal

RODRIGUEZ GREENE, KAREN

REPORT AND RECOMMENDATION

these motions are ripe for review.

Andre Sheffield’s Death.

bacterial infection which rapidly progressed to bacterial meningitis or meningococcemia resulting

Inspector General Investigation.

to investigate the circumstances leading to Sheffield’s death. On March 3, 2015, IG investigators

the final report of the investigation was published.

capacity as Personal Representative of the Estate of Andre D. Sheffield (“Plaintiff”), served a

for federal constitutional rights to federal court. Doc. No. 1.

of Eleventh Amendment immunity. Doc. No. 27.

4, 2018 trial term. Id. at 3.

First Motion to Compel Production of Videos. 5

the IG’s report. Doc. No. 48, at 3.

will be accomplished shortly[.]” Doc. No. 49, at 1-2.

respond to the discovery requests.

Rule 30(b)(6) Deposition.

Later, Bonderud asked to take a Rule 30(b)(6) deposition of a representative of FDJJ.

during the Rule 30(b)(6) deposition.

First Motion for Sanctions.

Defendant’s Ex. A5, Doc. No 176-5.

recorded identified or exported for production in discovery.

my August 7, 2017 Order and Muschott responded as follows:

THE COURT: Well, Judge Spaulding issued an order requiring you to

MR. MUSCHOTT: I contacted Margie McKinney, who’s the

amended expert witness disclosures to December 22, 2017. Id. at 19.

Failed Attempt to Export Videos to DVDs.

attempting to view the DVDs to see what they contained.

from the DVRs.

attempting to obtain responsive videos to produce in discovery as required by Judge Dalton’s

Renewed Motion for Sanctions.

On December 7, 2017, I scheduled a hearing on the Renewed Motion to be held before me

on December 19, 2017, Williams argued as follows:

Defendant has invited Plaintiff on numerous occasions to view the video

Doc. No. 109, at 4, 5, 15 (original emphasis).

it in producing the videos in discovery. Doc. No. 113, at 4.

I scheduled an evidentiary hearing on the Renewed Motion to be conducted on February

over the weekend before the evidentiary hearing.

A. Renewed Motion for Sanctions.

Doc. No. 85, at 15.

view the surveillance[.]” Doc. No. 109, at 4.

representation may also involve association or retention of a non-lawyer advisor of established

technological competence in the field in question.”

disregard of their responsibilities by failing to produce responsive videos of Sheffield in response

Civil Procedure 37(b)(2)(A).

uphold the integrity of the Court’s orders and rules.

691 F.3d at 481.

substantially justified and no circumstances make an award of expenses unjust. Therefore, I

fees, incurred in Plaintiff’s repeated efforts to obtain discovery from FDJJ.

B. FDJJ Waived Eleventh Amendment Immunity.

Amendment immunity. Plaintiff filed a counter-motion for summary judgment supported by

the filing of the FAC, which added FDJJ as a Defendant.

is a State agency) – as a Defendant. Accordingly, FDJJ waived its Eleventh Amendment

pleadings is not meritorious.

establishes that he did.

modifications he deemed necessary for Risk Management to consent to naming FDJJ as a

Management, a division of the State of Florida Department of Financial Services, to consent to

Department of Financial Services, Division of Risk Management, to consent to FDJJ’s voluntary

(Doc. No. 83);

Of Florida Department Of Juvenile Justice (Doc. No. 75);

Amended Complaint; and,