Ross Dress for Less Va., Inc. v. Castro

• Decision Date: 05 March 2014
• Docket Number: No. 3D13–1425.,3D13–1425.
• Citation: 134 So.3d 511
• Parties: ROSS DRESS FOR LESS VIRGINIA, INC., and U.S. Security Associates, Inc., Petitioners, v. Rodolfo CASTRO, et al., Respondents.
• Court: Florida District Court of Appeals

134 So.3d 511

ROSS DRESS FOR LESS VIRGINIA, INC., and U.S. Security Associates, Inc., Petitioners,

v.Rodolfo CASTRO, et al., Respondents.

No. 3D13–1425.

District Court of Appeal of Florida, Third District.

March 5, 2014.

Cole, Scott & Kissane and Scott A. Cole; Cole, Scott & Kissane, Sally Slaybaugh and Sarah Egan, Tampa, for petitioners.

Sina Negahbani, Miami, for respondents.

Before SHEPHERD, C.J., and WELLS and SALTER, JJ.

WELLS, Judge.

Ross Dress for Less Virginia, Inc., and U.S. Security Associates, Inc., seek certiorari relief from an order holding them in contempt and sanctioning them for discovery violations by imposing a $200 a day fine; striking their pleadings; entering a default against them; and allowing an amendment to the complaint against them to include “by interlineation” a claim for punitive damages.On the analysis outlined below, we grant the petition and quash the order under review in its entirety.Additionally we note what transpired here was a textbook case of the tail wagging the dog.Relying on the solitary uncorroborated comment of a single non-party, Respondents' counsel, employing hyperbole and declared outrage, set out on a quest to collect hundreds of apprehension reports, continuing even when Petitioners swore under oath that they had handed over all such reports in their possession, leaving unanswered the real issues before the court, as counsel chased the non-existent and irrelevant.

The Facts

This case arises from an incident that occurred on July 13, 2006.On that day, Rodolfo Castro and his son were shopping at the Miracle Mile Ross Dress for Less located in Coral Gables, Florida, when they were apprehended by police, after Victor Soca, a U.S. Security employee, alerted authorities that he suspected the two of shoplifting.At the time, U.S. Security had been providing security services to the Miracle Mile store for only forty-five days.After Castro and his son were apprehended, they were transported to the police department where Castro Sr. was charged with retail theft, a charge that was later nolle prossed.The charge against his son also was later dropped.

Thereafter, on March 7, 2007, Castro and his son, claiming that they were wrongfully stopped and accused of stealing merchandise, sued Ross and U.S. Security for false imprisonment, malicious prosecution, and slander ¹:

Although merely shopping around in the store, the Plaintiffs, however, were shockingly accosted by a representative of the Defendant(one “Victor Soca”-U.S. SECURITY's and/or ROSS loss prevention manager and/or an individual authorized to act on behalf of the Defendants)who called them thieves and falsely accused them of allegedly offering some unknown person money and a pair of pliers to facilitate theft of merchandise (allegedly valued at $77.91).At all times material hereto, Victor Sosa[sic] and any other employee, agent or representative of the Defendants were acting in the course and scope of their employment and in furtherance of the Defendant, ROSS' business interests thereby rendering Defendant, ROSS jointly, severally and vicariously liable for all damages caused by, or resulting from, the acts or omissions of U.S. SECURITY, and co-Defendant U.S. SECURITY is independently liable for the acts of its own agents/employees/representatives.

The Castros simultaneously propounded interrogatories and a request for production to Ross seeking, among other things, production of Ross's policy manuals and procedures and guidelines regarding apprehension, detention, treatment and handling of shoplifters.The Castros also sought all documents related to the Castros' arrest and detention and any other lawsuit lodged against Ross for false arrest, defamation, malicious prosecution, assault, and negligent hiring, training, supervision, and retention.No specific request was made for “incident” or “apprehension reports” relating to anyone other than the Castros.

Ross, as authorized by the rules of procedure, filed objections to these requests claiming, among other things that some of the documents sought were protected by the attorney-client privilege while others were in the possession of U.S. Security, the entity that actually handled its security.²The Castros moved to compel the discovery sought and made the first of increasingly shrill accusations of wrongdoing to secure an order striking Ross's pleadings as a sanction for asserting authorized objections:

12.Thus, despite Plaintiff propounding formal discovery upon the Defendant directly relating to the events giving rise to this action, The Defendant remarkably has refused to respond appropriately and has thus interrupted the orderly and proper progression of this proceeding and hindered the truth finding process (to be sure, it is unfathomable and remarkable that the Defendant refuses to even state its version of the events despite the fact that it has raised a number of purported affirmative defenses—one of which is the allegation that it had probable cause for it's [sic] action).

13.Under the circumstances, the Plaintiffs are entitled to an order compelling Defendant to fully and accurately respond to the outstanding and overdue discovery request and/or striking of Defendant's pleading/affirmative defenses as it appears as same cannot be supported by the Defendant and/or their [sic] were raised without any good faith bases.Cf.,Section 57.105, Fla. Stat.

On August 28, 2007, Judge Maria Espinosa Dennis, the first of four judges assigned to date to this case, ordered Ross to produce its policy and procedures manuals as well as a number of other documents.The court did not, however, either order production of any incident or apprehension reports or sanction Ross in any way.

Over a year later, in October of 2008, Victor Soca, the U.S. Security employee actually involved in the Castros' apprehensionwas deposed.During that deposition, Soca testified that he had been a part-time employee at U.S. Security from 2002 to 2007, working only two days a week at different businesses for which U.S. Security provided services.Soca also testified as to his observations of the Castro family on the day in question and produced the documents in his possession relating to their apprehension.Those documents were comprised of three apprehension reports consisting of six pages each detailing his observations and listing the items that he concluded the Castros were attempting to steal.

While producing these documents, Soca, who at the time had been employed by U.S. Security for approximately four years, represented that he kept copies of incident reports relating to all of the apprehensions in which he was involved:

No, no, I always keep copies.Oh, I got files going back in Sear[s], Publix.You know, like I've got a library that you walk in.It's like a loss library.I've got them alphabetically, you know.You tell me—I have them categories [sic] by Publix, Wal–Mart, Sears, Ross....So I go back and research it.

Soca also testified that during the time he worked at the Miracle Mile Ross store,³he was aware that “sometimes” as many as “ten, twelve, twenty people a day” were being apprehended.

Five months after Soca's deposition was taken, in March of 2009, the Castros served a subpoena duces tecum on Soca—a non-party—seeking production of all incident reports in Soca's“control or possession generated, created or written by [Soca], in regards to any arrest, detention, apprehension or incidents relating to theft that took place while [Soca was] employed by U.S. Security.”No similar request was made of either U.S. Security or Ross.

When Soca did not comply with the subpoena, the Castros moved to compel production and sought sanctions in the form of a fee award against him.U.S. Security, Soca's employer, claiming to be the rightful owner of the requested documents, moved for a protective order on the grounds that the requested documents were protected by the work product privilege.On July 8, 2009, Judge Maxine Cohen Lando, the second judge assigned to this matter, ordered both Ross and U.S. Security, within ten days, to gather all documents responsive to the subpoena served on Soca and to submit a detailed privilege log referencing any item claimed to be work product.Although no motion for sanctions had been asserted against U.S. Security or Ross, the court below reserved ruling on the imposition of sanctions “against the Defendants and Victor Soca” and set a follow-up hearing for July 14, to determine whether Ross and U.S. Security had complied with her order and whether any of the documents gathered constituted work product materials.

Within two days, U.S. Security and Ross served their privilege log.That privilege log spanned a period of time from 2003 to 2008—the period during which Soca had been employed by U.S. Security—and listed by date, seventy six different incident/apprehension reports in which Soca was involved.Of those seventy six incidents, all but two occurred at grocery stores at which Soca worked.This amounted to approximately fifteen apprehensions a year, barely more than one a month, and did not come close to supporting a conclusion that Soca ever made anything close to ten, twelve or twenty apprehensions a day.

In a memorandum of law accompanying this privilege log, U.S. Security and Ross re-asserted their claim that all of these documents were protected by the work product privilege and supported that contention with the affidavit of Kirk Gatchell, U.S. Security's the regional manager, who attested that the listed incident/apprehension reports were prepared by U.S. Security employees “in anticipation of litigation.”Gatchell further attested that such documentation was retained by U.S. Security for only five years absent pending litigation.

On July 14, the court below revisited the Castros' motion to compel and for sanctions and U.S. Security's and Ross's motion for protective order.This time, the court orally ordered ⁴...