UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT LAUDERDALE DIVISION 

SHANA DOTY, individually and on behalf of 

all others similarly situated, 

Plaintiff, 

v. 

ADT, LLC d/b/a ADT SECURITY 

SERVICES, a Delaware limited liability 

company, 

Defendant. 

 Case No. 0:20-cv-60972-AHS 

DEFENDANT ADT LLC’S RESPONSE IN OPPOSITION 

TO PLAINTIFF’S MOTION TO COMPEL 

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Introduction 

Plaintiff brings this class action against Defendant ADT LLC (“ADT”) following ADT’s 

self-reporting of isolated criminal conduct by a now-former ADT technician in Texas. That 

individual, Telesforo Aviles, is being prosecuted criminally for the same conduct at issue in this 

lawsuit, for which Plaintiff seeks to hold both Aviles and ADT liable. 

Almost one year after filing the lawsuit, Plaintiff now complains about the content of 

ADT’s privilege log.1 Putting aside the procedural improprieties that plague Plaintiff’s Motion, 

Plaintiff’s generalized arguments should be rejected by this Court. Plaintiff’s Motion makes clear 

that Plaintiff has engaged in only a surficial review of ADT’s privilege log, simply for the purpose 

of pointing out purported deficiencies, rather than for substantive comprehension. Had Plaintiff 

taken the time to understand ADT’s log, and appropriately confer with ADT’s counsel about any 

concerns, the fallacy underlying Plaintiff’s arguments would be clear and Plaintiff’s Motion would 

have been mooted. As such, and for the reasons set forth herein, Plaintiff’s Motion should be 

denied. 

I. Plaintiff’s Motion is Procedurally Improper 

As a preliminary matter, Plaintiff’s Motion exceeds the page limit set forth in this Court’s 

Discovery Procedures by almost two full pages of argument. Similarly, Plaintiff’s Motion is 

untimely in violation of Local Rule 26.1(g). ADT’s privilege log was served on February 10, 

2021.2 Yet, Plaintiff waited until March 19, 2021 to raise any concerns therewith (including its 

complaint that the privilege log was due earlier, which would only make Plaintiff’s challenge more 

untimely). And despite receiving ADT’s response to its March 19th letter on March 26, Plaintiff 

again waited until May 4, 2021 to serve the instant Motion. 

1

 Not coincidentally, Plaintiff’s deadline to file for class certification is June 11, 2021. 

2

 ADT notes that the privilege log submitted to the Court contains a revised date of April 28, 2021. 

The April 28, 2021 revision added two documents that were inadvertently excluded. That revision 

alone is not the subject of Plaintiff’s Motion. 

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In addition, Plaintiff has not fulfilled her meet-and-confer obligations under Local Rule 

7.1. While Plaintiff attaches two letters she sent to ADT, Plaintiff never conferred further with 

ADT following receipt of ADT’s responses to advise that concerns remained, nor did Plaintiff ever 

attempt an actual conversation with ADT’s counsel about any purported deficiencies. Instead, it 

appears Plaintiff’s letter-writing was simply an attempt to paper the file for this eventual motion 

regardless of ADT’s responses, which responses appear to have been ignored by Plaintiff’s 

counsel. 

Moreover, Plaintiff’s correspondence focused solely on the content of ADT’s privilege log, 

not the merits of ADT’s privilege claims, which Plaintiff’s Motion now addresses (albeit in 

generalized fashion). To the extent that Plaintiff’s Motion seeks to compel the production of 

documents identified on ADT’s privilege log (as opposed to an amended privilege log), Plaintiff 

has wholly failed to confer with ADT regarding the substance of the privilege claims. 

Finally, Plaintiff’s Motion, which categorically argues for wholesale production of all 

documents logged regardless of the nature of the claimed privilege, is improper. Plaintiff’s Motion 

fails to engage in any analysis regarding specific entries on ADT’s log to identify which 

documents, if any, would be subject to production should the Court grant any portion of Plaintiff’s 

Motion. Without identification and argument about specific documents, ADT is prejudiced in its 

ability to respond to Plaintiff’s Motion and this Court is asked to do Plaintiff’s work for her in 

identifying the documents that may be affected by a ruling on any given argument. 

For all these reasons, Plaintiff’s Motion should be denied outright. Should the Court 

consider the substance of Plaintiff’s Motion, the outcome is the same. 

II. ADT’s Privilege Log Appropriately Establishes Attorney-Client Privilege 

Plaintiff argues that ADT waived its attorney-client privilege in four ways – by failing to 

timely produce a privilege log; by failing to identify the individuals listed on its log; by using 

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vague descriptions on its log; and by failing to substantiate its claims of allied litigant and common 

interest privilege. Each argument fails, as explained below. 

A. ADT’s Privilege Log Was Not Untimely 

Although Plaintiff’s Motion argues that a privilege log was due within 14 days of 

production, the Confidentiality and Protective Order agreed to by the parties and entered by this 

Court [ECF No. 71] provides that a privilege log must be served within 30 days of the production 

from which documents are being withheld, as already explained by ADT [Mot. Ex. 3-D, ECF No. 

103-3].3 Here, the privileged information was withheld from ADT’s final production wave, 

produced on February 10, 2021 and a privilege log was provided that same day. Indeed, it was 

ADT’s amended responses, served on February 10, 2021, which first set out the allied 

litigant/common interest privilege objection about which Plaintiff’s Motion, in part, complains.4

That being the case and for the reasons further explained in ADT’s letter response [Mot. Ex. 3-D], 

ADT’s privilege log was timely served. Moreover, it is undisputed that Plaintiff has now had 

ADT’s privilege log for three months, which alone moots any argument Plaintiff has regarding 

the timing of its service. 

B. ADT’s Privilege Log is Sufficient – Individuals Are or Will Be Appropriately 

Identified 

First, Plaintiff contends ADT failed to appropriately identify the individuals listed on its 

privilege log. The obligation to provide titles for individuals listed on a privilege log exists only 

when the relationship is not otherwise apparent. S.D. Fla. L. R.. 26.1(e)(2)(B)(ii)(a). Here, 

3

 Plaintiff’s continued misrepresentation in this regard simply highlights the lack of any 

meaningful conferral on the discovery issues raised in Plaintiff’s Motion. 

4

 As ADT explained, it was not Plaintiff’s February 5, 2021 letter that prompted service of a 

privilege log. Rather, ADT was already planning on serving its final production wave and 

privilege log, in satisfaction of its discovery obligations as evidenced by the reference to the 

upcoming production and privilege log in the parties’ Joint Scheduling Report, submitted to the 

Court on February 4, 2021 [ECF No. 88,], at Section L. 

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Plaintiff’s Motion complains that there are over 500 individuals for whom ADT has not identified 

a title. Mot. p.7. However, Plaintiff’s own motion acknowledges that this number does not account 

for name variations and therefore demonstrates that Plaintiff’s counsel has not done any type of 

substantive review to determine whether any information is actually needed from ADT. Mot. fn.2. 

In fact, it appears Plaintiff’s estimate includes ADT’s counsel of record in this litigation (and 

variations of their email addresses), whose relationship with ADT is obviously well-known to 

Plaintiff’s counsel.5 Plaintiff’s Motion has not identified a single individual whose relationship is 

unknown to Plaintiff. As such, Plaintiff has not demonstrated that ADT’s claims of privilege are 

insufficient such that they should be overruled. 

Nonetheless, upon review, the chart ADT previously provided identifying titles for 

individuals listed on its privilege log was inadvertently incomplete. Despite the shortcomings of 

Plaintiff’s Motion and the lack of any conferral by Plaintiff’s counsel about this, 

contemporaneously with this Opposition, ADT will serve a supplemental chart to account for 

additional unidentified individuals whose affiliation may not be readily known to Plaintiff.6

C. ADT’s Privilege Log is Sufficient - Descriptions Are Adequate 

Second, Plaintiff contends that ADT’s descriptions are vague, preventing Plaintiff from 

assessing the validity of ADT’s privilege claims. Again, Plaintiff makes this argument in 

generalities, without engaging in any kind of analysis with regard to the documents claimed within 

each document description. Instead of focusing on specifics, Plaintiff contends that ADT’s 

5

 Counsel of record are listed by name and/or by association, with “SHB” appearing on the log 

following individual names. See e.g., PRIV_DOTY0184; PRIV_DOTY0427; PRIV_DOTY0452;

PRIV_DOTY3283. 

6

 Contrary to Plaintiff’s count of “more than 500 individuals” who remain to be identified, ADT 

identified less than half that number, including counsel of record. 

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“vague” descriptions are proof that “ADT is simply casting the net of ‘privilege’ over everything 

it did after it discovered the security defect in the Pulse system.” [Mot. p. 7]. 

Upon review, ADT’s log reflects 1,422 differing descriptions for the 3,686 documents 

listed. While there is some consistency among the descriptions across documents with the same 

privilege claims, the descriptions are appropriately tailored to the content of the document 

described, without revealing privileged information. See e.g. In re Denture Cream Prod. Liab. 

Litig., No. 09-2051-MD, 2012 WL 5057844, at *10 (S.D. Fla. Oct. 18, 2012) (explaining that 

“requiring a fully detailed description of the withheld document would, in essence, eviscerate the 

purpose of the privilege rule.”). Thus, this is not a situation where generic descriptions were 

applied in a boilerplate fashion. See id. (finding pre-supplemental description sufficient where 

description read “[c]orrespondence from P & G employee to P & G employee regarding searches 

for Fixodent information and data and compiling same at the request of counsel for purposes of 

litigation”).

D. Plaintiff Has Not Demonstrated Waiver As To “Allied Litigant” and “Common 

Interest” Documents 

Finally, Plaintiff contends that ADT asserted the “allied litigant and common interest 

doctrine on most of the withheld documents” and challenges those claims. Yet again, the 

generalities in which Plaintiff’s Motion speaks belie the truth. In fact, ADT has only asserted the 

allied litigant or common interest doctrine on 213 of the 3,686 documents identified on its log as 

attorney-client privileged, or less than 6% of the attorney-client privileged documents. Whether 

or not these privileges appropriately apply serves as no basis for this Court to compel production 

of all attorney-client communications on ADT’s log, as Plaintiff’s Motion requests. 

As ADT’s privilege log reflects, all instances in which the common interest and allied 

litigant privilege are claimed constitute the sharing of otherwise privileged information with law 

enforcement for purposes of assisting law enforcement’s investigation into Aviles. Thus, even if 

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the documents do not squarely fall within the allied litigant or common interest privilege, the 

appropriate analysis is whether such a disclosure constitutes a waiver of privilege. Each of 213 

attorney-client privileged documents that Plaintiff challenges on this ground are also identified as 

work product on ADT’s log. Plaintiff’s Motion does not challenge the work production protection 

claimed on these documents on the basis of disclosure to third parties. 

Unlike attorney client communications, work product protection is not 

automatically waived by disclosure to a third party who does not share a common 

legal interest. Instead, disclosure of work product results in waiver of work-product 

protection only if work-product is disclosed to adversaries or treated in a manner 

that substantially increases the likelihood that an adversary will come into 

possession of the material. 

See Ferko v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 218 F.R.D. 125, 136 (E.D. Tex. 2003) 

(citations omitted). Moreover, “[u]nlike the attorney-client privilege, the burden of proving waiver 

of work-production protection falls on the party asserting the waiver.” Id. Here, Plaintiff has not 

undertaken to establish waiver of work product and therefore, the relief requested by Plaintiff (the 

production of the documents) cannot be granted. 

III. ADT Has Adequately Established Its Claims of Work Product 

Plaintiff attempts to overcome ADT’s work product claims by arguing that 1) ADT’s 

investigation into Aviles’ conduct was done in the ordinary course or business and 2) that fact 

work product generated as a result of the investigation is not protected. As with its arguments about 

attorney-client privilege, both arguments miss the mark. 

A. ADT Appropriately Distinguished Between An Investigation Conducted in the 

Ordinary Course of Business and the Investigation Led by Legal Counsel Here 

Plaintiff first argues that ADT necessarily would have conducted an investigation into Mr. 

Aviles’ conduct, regardless of the risk of litigation, and therefore work product protection does not 

exist and all of ADT’s investigation must be deemed discoverable. [Mot. p. 9-10] Again, Plaintiff 

argues in generalities without reference to any specific documents on ADT’s privilege log. 

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Plaintiff’s Motion as framed must be denied. Indeed, the Southern District of Texas has explained 

that “such a sweeping argument is fatally flawed from its inception, as it presupposes that a 

business investigation and a legal investigation are mutually exclusive.” See Fisher v. Haliburton, 

Case No. CV H-05-1731, 2009 WL 10694752, at *5 (S.D. Tex. June 9, 2009). As the Haliburton 

court further explained, “a business investigation may multi-task when its goal and the goal of the 

legal department to prepare for litigation run in tandem.” Id. Thus, Plaintiff’s broadbrush 

argument must be rejected outright. 

Moreover, a review of ADT’s privilege log shows ADT’s privilege claims carefully 

acknowledge the distinction between a routine business operation and an investigation for 

purposes of litigation. As set forth in ADT’s interrogatory answers, ADT was first alerted to 

Aviles’ conduct on March 25, 2020, during a telephone conversation between a now-former ADT 

customer and ADT customer service representative LaToya Dassie. See ADT Answer to Interrog. 

No. 7. At that time, ADT conducted an investigation in the ordinary course of business. 

Responsive documents related to the investigation at that point in time were collected and 

produced. See ADT-343677-10912-13, 11546-48, 11559-62, 11566-68, 11575-578. 11585-87, 

11594-96, 11602-04. 

It was during the course of that investigation that ADT recognized the need to secure legal 

advice as to the continued course of the investigation and potential litigation. ADT’s log 

appropriately identifies that evolution with privilege claims starting on March 30, 2020, which 

reflect that ADT’s in-house counsel became involved in the investigation, and shows that outside 

counsel (counsel of record in this lawsuit) was retained by April 3, 2020, with litigation pending 

as early as April 5, 2020.7See e.g., Zenith Ins. Co. v. Texas Spine Institute for Surgery, L.L.P., 

7

 These facts are clear from the face of ADT’s privilege log. Moreover, to the extent that Plaintiff 

identifies specific documents which it believes do not qualify as work product, rather than 

categorically arguing that there is no work product protection, ADT will respond with appropriate 

declarations supporting its work product claim as may be necessary. 

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328 F.R.D. 153, 162 (N.D. Tex. 2018) (recognizing that a document is work product if “the 

primary motivating purpose behind the creation of the document was to aid in possible future 

litigation” and recognizing that factors relevant to that determination are “the retention of counsel 

and his involvement in the generation of the document and whether it was a routine practice to 

prepare that type of document or whether the document was instead prepared in response to a 

particular circumstance”). 

Thus, this is not a situation where a defendant seeks to cloak with privilege an investigation 

into a routine event conducted during the ordinary course of business. Here, Aviles’ criminal 

conduct was an isolated course of conduct which, upon discovery, gave rise to a clear litigation 

risk and led to retention of outside counsel and actual litigation very soon thereafter. The 

occurrence was not routine, nor was the resulting investigation. Rather, when ADT’s routine 

investigation revealed that a now-former ADT technician had engaged in criminal conduct such 

that ADT anticipated litigation, ADT rightly sought legal counsel to guide its investigation and 

advise on legal implications. See Heckman v. TransCanada USA Servs. Inc., Case No. 3:18-cv00375, 2020 WL 211037, *2 (S.D. Tex. Jan. 13, 2020) (where company departed from ordinary 

business operations and instead had counsel direct investigation due to litigation risk, investigative 

materials were protected work product). ADT appropriately claims privilege as to the documents 

which reflect counsel’s mental impressions, legal advice, and information which was gathered at 

the direction of counsel for purposes of facilitating legal strategy. See e.g., Castillo v. Hexion 

Specialty Chemicals, Inc., Civ No. SA-08-CA-258, 2009 WL 10669322 at *2-3 (W.D. Tex. May 

26, 2009) (finding investigation materials prepared by production superintendent were protected 

work product). Plaintiff’s generalized assertions that no work product protection can exist because 

ADT would have necessarily conducted an investigation into Mr. Aviles’ conduct fail as a matter 

of both law and fact. 

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B. Plaintiff Has Not Made A Sufficient Showing To Entitle Her to Fact Work 

Product 

Finally, Plaintiff seeks to compel the production of fact work product, contending that the 

results of ADT’s work product investigation are “central to the case”, that “Plaintiff cannot 

reconstruct ADT’s investigation on the same issue using the normal discovery process”, and that, 

even if she could, it would be an “undue hardship in doing it all over again.” [Mot. at p. 12] As 

with her other arguments, Plaintiff fails to identify the documents on ADT’s log that she contends 

are fact work product. And, other than simply saying it, Plaintiff fails to explain how any of her 

assertions are true. On this basis alone, Plaintiff’s Motion should be denied. See Castillo, 2009 

WL 10669322 at *4 (finding conclusory assertions insufficient to demonstrate substantial need). 

Even if this Court were to entertain Plaintiff’s argument, it should easily find Plaintiff fails 

to meet her burden. The issues in this case are hardly as complex as Plaintiff’s counsel presents 

and Plaintiff has been afforded discovery into the facts necessary to prove (or not) her claims. 

First, there is no dispute with regard to the number of potentially affected customers or the scope 

of conduct at issue. See e.g., ADT Privacy Notice, available at https://www.adt.com/adt-privacynotice, last accessed May 11, 2021.8

 Second, this case does not involve a complex technical cyberbreach, but rather the addition of Aviles’ personal email address to customer accounts during 

service appointments. See id. Moreover, Plaintiff knows that Mr. Aviles’ was an isolated course 

of conduct. See id.; see also Mot. Ex. 3-B (citing ADT Ans. to Interrog. No. 2; ADT Am. Resp. 

to RFP Nos. 40, 41, 44, 45)]. 

Plaintiff has received discovery regarding ADT’s first notice of Aviles’ conduct, as 

discussed above. And ADT has produced documents which demonstrate the frequency and nature 

8

 “ADT has learned that a Dallas, Texas-area ADT service employee abused his system access 

during service appointments by adding his personal email to 220 ADT customer accounts.” 

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of access in which Aviles engaged, with respect to each class member that Plaintiff’s counsel 

represents. See ADT Resp. to RFP No. 4-5, [ADT-343677-000093-104; 10818-28]. Moreover, 

ADT has produced relevant policies and procedures regarding installation and cybersecurity. See 

ADT Resp. to RFP Nos. 10-20, 25 [ADT-343677-0000108-9459; 10248-10816]. And ADT has 

produced its entire personnel file for Aviles. See ADT Resp. to RFP Nos. 1, 2, 22 [ADT-34367-

000001-92]. 

To date, Plaintiff has deposed two of Aviles’ former managers, and ADT is subpoenaing 

Aviles himself for deposition.9 To the extent she needs additional information, Plaintiff will be 

free to question Aviles as to the mechanisms by which he gained access to customer accounts. 

As the foregoing demonstrates, there is ample opportunity for Plaintiff to learn in discovery 

whatever facts she deems critical to this case, without access to ADT’s work product protected 

investigative materials. See e.g., Siegmund v. Xuelian Bian, Case No. 16-cv-62506, 2018 WL 

3725775, at *10 (S.D. Fla. Aug. 1, 2018) (document does not lose work product protection simply 

because it contains facts and recognizing other discovery mechanisms available to discover 

underlying facts). That being the case, even if she had tried, Plaintiff simply cannot meet her 

burden in establishing a substantial need for ADT’s work product and an inability to obtain the 

same without undue hardship. 

Conclusion 

For the foregoing reasons, Plaintiff’s Motion to Compel should be denied. 

Dated May 11, 2021. Respectfully submitted, 

Jennifer A. McLoone_______________________ 

Alfred J. Saikali (Florida Bar No. 178195) 

E-Mail: asaikali@shb.com

Jennifer A. McLoone (Florida Bar No. 029234) 

E-Mail: jmcloone@shb.com 

9

 Though named as a defendant, Plaintiff has not served Mr. Aviles and he must be subpoenaed. 

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SHOOK, HARDY & BACON L.L.P.

201 South Biscayne Blvd., Suite 3200

Miami, Florida 33131 

T: (305) 358-5171 

-andCharles C. Eblen (admitted pro hac vice) 

E-Mail: ceblen@shb.com 

Jason R. Scott (admitted pro hac vice)

E-Mail: jscott@shb.com 

SHOOK, HARDY & BACON L.L.P. 

2555 Grand Boulevard 

Kansas City, MO 64108 

T: (816) 474-6550 

Counsel for ADT LLC 

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