600 Cleveland, LLC v. Bank of America, N.A.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

600 CLEVELAND, LLC,

Plaintiff,

v. Case No.: 8:24-cv-1652-KKM-AAS

BANK OF AMERICA, N.A.,

Defendant.

_____________________________________/

ORDER

Defendant Bank of America, N.A. (Bank) moves to compel the production

of documents and extend discovery on a limited basis. (Doc. 69). Plaintiff 600

Cleveland, LLC, (Cleveland) responds in opposition. (Doc. 70).

I. The Motion to Compel

This motion to compel arose out of dispute over four items Bank

discovered through the deposition of Mr. Jacob on August 28, 2025. (Doc. 69 at

p.4). The items are: (1) buildings plans; (2) bankers boxes; (3) text messages;

and (4) deposition notes. At the time of Bank’s filing of this motion, Bank

understood the motion to be uncontested as to the building plans and bankers

boxes. (Doc. 69 at p.6). The motion is now uncontested as to three items. First,

Cleveland produced twelve bankers boxes to the Bank’s vendor. (Doc. 70 at

p.4). Second, Cleveland electronically produced the building plans to Bank’s

counsel. (Id.) Lastly, on September 12, 2025, Cleveland electronically produced

all the text messages to Bank’s counsel. The deposition notes are the only

remaining dispute.

Bank requests the court compel the review and production of Mr. Jacob’s

deposition notes (Notes). (Doc. 69 at p.12). Bank contends the notes Mr. Jacob’s

took “of his own volition while attending at least four previous depositions in

this matter are discoverable and responsive to [Bank’s] requests.” (Id.)

Cleveland contends the Notes are not responsive, are protected by the

attorney-client privilege, and are protected by the work product privilege.

Generally, a party is entitled to discover relevant evidence unless the

opposing party can meet its burden of establishing a privilege or the work

product doctrine exempts discovery. See Republic of Ecuador v. Hinchee, 741

F.3d 1185, 1189 (11th Cir. 2013). Federal Rule of Civil Procedure 26(b)(3), sets

forth the work product doctrine and states:

(A) Documents and Tangible Things. Ordinarily, a party may not

discover documents and tangible things that are prepared in

anticipation of litigation or for trial by or for another party or its

representative (including the other party’s attorney, consultant,

surety, indemnitor, insurer, or agent). But, subject to Rule

26(b)(4), those materials may be discovered if:

1. They are otherwise discoverable under Rule 26(b)(1); and

2. The party shows that it has substantial need for the materials

to prepare its case and cannot, without undue hardship, obtain

their substantial equivalent by other means.

Fed. R. Civ. P. 26(b)(3). “[W]ork product may be either fact work product,

which protects information gathered in anticipation of litigation,

or opinion work product, which consists of mental impressions, opinions, or

legal theories.” Gualtieri v. TD Bank, Nat’l Ass’n, No. 8:10-CV-1468-T-27TBM,

2011 WL 13302505 at *2 (M.D. Fla. Mar. 10, 2011). “Fact work product is

subject to qualified protection and may be discoverable upon a showing of

substantial need and an inability to obtain the substantial equivalent of the

materials by other means without undue hardship.” Bingham v. Baycare

Health Sys., No. 8:14-CV-73-T-23JSS, 2016 WL 1546504 at *4 (M.D. Fla. Apr.

15, 2016) (citations omitted). In contrast, “opinion work product enjoys a near

absolute immunity and can be discovered in only very rare and extraordinary

circumstances.” Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th

Cir. 1994) (citation omitted).

“In deciding whether to order production of such privileged materials,

courts have relied on a balancing test, considering three relevant factors: (1)

whether witness ‘coaching’ may have occurred; (2) whether the documents

reviewed constitute ‘factual’ or ‘opinion/core’ work product; or (3) whether the

request constitutes a fishing expedition.” In re Seroquel Products Liab. Litig.,

No. 606MD-1769ORL-22DAB, 2008 WL 215707 at *3 (M.D. Fla. Jan. 24,

2008), aff'd, No. 6:06MD1769 ORL22DAB, 2008 WL 591929 (M.D. Fla. Feb. 28,

2008).

The work product doctrine applies to the Notes because Mr. Jacob, a non-

testifying consultant, prepared the Notes in anticipation of litigation,

specifically “to assist with trial preparation and strategy.” (Doc. 70-3 at ¶ 9).

See U.S. ex rel. Civil Const. Techs., Inc. v. Hanover Ins. Co., No. 6:13-MC-42-

ORL-18TBS, 2013 WL 1810817 at *3 (M.D. Fla. Apr. 29, 2013) (supporting that

the work product rule protects against the disclosure of information created or

learned by a non-testifying consultant made in preparation for litigation). The

Notes are a mixture of fact and opinion work product because they contain Mr.

Jacob’s “mental impressions, conclusions, opinions and legal theories,”

summary of testimony he though relevant, and “questions and comments [Mr.

Jacob] intended to address with Shutts.” (Docs. 70 at p. 14–15; 70-3 at ¶¶

16– 17).

The opinion work product includes Mr. Jacob’s “mental impressions,

conclusions, opinions and legal theories” and “questions and comments [Mr.

Jacob] intended to address with Shutts.” No rare and extraordinary

circumstances are present to justify the discovery of the opinion work product.

Cf. Cozort v. State Farm Mut. Auto. Ins. Co., 233 F.R.D. 674, 676 (M.D. Fla.

2005) (stating “[f]ederal courts have found the existence of such circumstances

in the bad faith lawsuit context, where the information sought is directly at

issue and the need for its production is compelling”); U.S. ex rel. Westrick v.

Second Chance Body Armor, Inc., 288 F.R.D. 222 (D.D.C. 2012) (commenting

“[e]xceptional circumstances “‘may exist when a non-testifying expert's report

is used by a testifying expert as the basis for an expert opinion, or where there

is evidence of substantial collaborative work between a testifying expert and a

non-testifying expert.’” (citation omitted).

The fact work product includes Mr. Jacob’s summary of what he believed

to be the relevant deposition testimony. Bank does not have substantial need

or inability to obtain the substantial equivalent of the fact work product

without undue hardship. As a party in the action, Bank could create its own

factual summaries of the relevant testimony without undue hardship.

Further the record does not indicate any “witness coaching” occurred

that would weigh in favor of disclosure. Therefore, the Notes are protected

under the work product doctrine. Because the notes qualify under work

product protection a review of relevancy and the attorney client privilege

related to the Notes is unnecessary. Accordingly, the motion to compel the

Notes is DENIED.

II. The Motion to Extend the Discovery Period

Bank moves the court, “[t]o the extent the Court orders . . . additional

document production,” to briefly extend the discovery period to allow Bank to

conduct an additional deposition “to the extent the newly produced documents

warrant such a deposition.” (doc. 69 at p. 13). The current discovery deadline

is August 29, 2025. The current dispositive and Daubert motion deadline is

September 30, 2025.

Federal Rule of Civil Procedure 16(b)(4) provides that once the court

enters a scheduling order, the “schedule may be modified only for good cause

and with the judge’s consent.” The “good cause standard precludes modification

[of the scheduling order] unless the schedule cannot ‘be met despite the

diligence of the party seeking the extension.’” Sosa v. Airprint Sys., Inc., 133

F.3d 1417, 1418 (11th Cir. 1998) (quoting Fed. R. Civ. P. 16(b) advisory

committee’s note). “A finding of lack of diligence on the part of the party

seeking modification ends the good cause inquiry.” Lord v. Fairway Elec.

Corp., 223 F. Supp. 2d 1270, 1277 (M.D. Fla. July 1, 2002); see also Barnette v.

Fed. Express Corp., No. 2:10-cv-471-FtM-36SPC, 2011 WL 2413437, at * 1

(M.D. Fla. June 14, 2001).

Bank fails to establish the requisite diligence or good cause to modify the

CMSO and extend the discovery deadline. See Middle District Civil Discovery

Handbook § (I)(F) (“The Court follows the rule that the completion date means

that all discovery must be completed by that date. . . . Counsel . . . should not

expect the Court to resolve discovery disputes arising after the discovery

completion date”); Zurich Am. Ins. Co. v. European Tile & Floors, Inc., No. 8:16-

CV-729-T-33AAS, 2017 WL 638640 at *2 (M.D. Fla. Feb. 16, 2017) (declining

to extend the discovery date because counsel should have been diligent in

anticipation of the summary judgment deadline).

Accordingly, Bank’s Motion to Extend Discovery on a Limited Basis (Doc.

69) is DENIED.

ORDERED in Tampa, Florida on September 19, 2025.

Aranda Are he Savane.

AMANDA ARNOLD SANSONE

United States Magistrate Judge