Griffin v. GEICO Gen. Ins. Co.
Griffin v. GEICO Gen. Ins. Co.
2011 WL 13235056 (N.D. Fla. 2011)
October 25, 2011
Sherrill Jr., William C., United States Magistrate Judge
Summary
The court emphasized the importance of timely and specific objections to requests for production and interrogatories, stating that boiler-plate objections are not sufficient. The court also noted that objections made in response to a motion to compel are untimely and have little effect.
William GRIFFIN, Plaintiff,
v.
GEICO GENERAL INSURANCE COMPANY, Defendant
v.
GEICO GENERAL INSURANCE COMPANY, Defendant
Case No. 4:11cv104–RS/WCS
United States District Court, N.D. Florida, Tallahassee Division
Signed October 25, 2011
Counsel
Stephen A. Marino, Jr., Ver Ploeg & Lumpkin PA, Miami, FL, for Plaintiff.Pamela June Nelson, Dore & Associates LLC, Dennis Patrick Dore, Dore & Philipps Chartered, Jacksonville, FL, for Defendant.
Sherrill Jr., William C., United States Magistrate Judge
ORDER ON PLAINTIFF'S MOTION TO COMPEL, DOC. 55
*1 This is a suit for alleged first party bad faith in failing to pay to Plaintiff uninsured coverage with limits of $10,000. Doc. 1. It is a diversity action, and the underlying claim arises pursuant to FLA. STAT. §§ 624.155 and 626.9541. Id. The motor vehicle accident which injured Plaintiff occurred on May 15, 2007. Id. On August 1, 2008, Plaintiff filed and served a “civil remedy notice” of a potential bad faith claim pursuant to FLA. STAT. § 624.155. Id. On July 8, 2009, a jury rendered a verdict in favor of Plaintiff against Defendant in the amount of $335,000, and on October 9, 2009, the judgment was reduced to $10,000, the policy limits. Id.
Plaintiff seeks to compel production of documents sought in his first request for production of documents and responses to his first set of interrogatories, both propounded on August 11, 2011. Doc. 55. Defendant has responded. Doc. 60.
Defendant has also filed a motion for a protective order as to request for production 5, repeating the objections contained in doc. 60.
General principles applicable to this motion
The Federal Rules of Civil Procedure must be “construed and administered to secure the just, speedy, and inexpensive determination of every action.” Rule 1. Discovery in this case ends on December 1, 2011, and time is running out.
The Rules are very simple. Rule 34(b) requires that a “party upon whom the request is served shall serve a written response within 30 days after the service of the request,” and it requires that “[t]he response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for the objection shall be stated.” (Emphasis added.) Rule 26(b)(5) provides:
(5) Claiming Privilege or Protecting Trial–Preparation Materials.
(A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:(i) expressly make the claim; and(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
(Emphasis added.) Likewise, Rule 33 provides that objections to interrogatories must be served within 30 days of service and “[t]he grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.” (Emphasis added.) “Objections and grounds for objections shall be addressed to the specific interrogatory, request for admission, or request for production, and may not be made generally.” Local Rule 26.2(C)(1).
These Rules are remarkably sensible. “Until the claim of privilege has been presented to a district court with appropriate deliberation and precision and the duty of the demanding party to show his or her need for disclosure has thus been triggered, and until that duty has then been discharged by the demanding party, the district court is not equipped to engage in the task of identifying and weighing the competing interests.” Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1342 (D.C. Cir. 1984).
*2 A party seeking to assert the privilege must make a clear showing that it applies. Failure to do so is not excused because the document is later shown to be one which would have been privileged if a timely showing had been made. Even though it does not seem seriously disputed that the privilege would have attached if the objection had been timely and adequately asserted, that such a showing had not been made when the trial court was called upon to make its ruling defeats the privilege. It is not enough that a document would have been privileged if an adequate and timely showing had been made. The applicability of the privilege turns on the adequacy and timeliness of the showing as well as on the nature of the document.
Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984).
Timely means complying with the time limits of Rules 33 and 34. A party served with a discovery request has 30 days to get its act together. Of course, the court might, for good cause, allow discovery disputes to be resolved in stages or grant additional time. But, without the court's permission, a party is not permitted to dribble the responses out in stages, reserving objections for another day.
Untimely objections are waived
As noted above, Rule 33(b)(4) provides that “[a]ny ground [for an objection] not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown.” Rule 34 contains a similar requirement that objections be stated with reasons, and the Advisory Committee Notes to the 1970 Amendment state that this subdivision “is essentially the same as that in Rule 33 ....” Failure to make a proper timely objection, even though a party had one to make, waives the objection. Jaffe v. Grant, 793 F.2d 1182, 1190 n.6 (11th Cir. 1986) (Fifth Amendment privilege); Peat, Marwick, Mitchell & Co. v. West, supra, 748 F.2d at 542.
Consequently, Defendant's attorney-client and work product objections are waived.[1] This case cannot wait around for Defendant to prepare a privilege and work product log. That should have been done in the 30 days provided for a response to the discovery requests.
Further, I look to the objections Defendant made in response to the request for production and interrogatories, not the response to the motion to compel. After-the-fact arguments raised in the response to the motion to compel are untimely and, for the most part, without effect. I read the response, to make sure I am not missing something hugely important, but the operative objection is the one served within 30 days after receiving the discovery request.
Boiler-plate objections
“Objections and grounds for objections shall be addressed to the specific interrogatory, request for admission, or request for production, and may not be made generally.” Local Rule 26.2(C)(1). The parties cannot fulfill their duty to confer and settle discovery disputes without the intervention of the court if the objecting party does not articulate the objection with sufficient precision to shift the burden of achieving a compromise back to the party seeking the discovery. “[I]ntoning the ‘overly broad and burdensome’ litany, without more, does not express a valid objection.” Mead Corporation v. Riverwood Natural Resources Corporation, 145 F.R.D. 512, 515 (D. Minn. 1992). “Objections which state that a discovery request is ‘vague, overly broad, or unduly burdensome’ are, by themselves, meaningless ....” Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 695 (S.D. Fla. 2007). A party properly objecting on these bases must explain the specific and particular ways in which a request is vague, overly broad, or unduly burdensome. Such objections are meaningless. Conclusory recitation of “expense and burdensomeness” without specificity provides no basis for the court to order limitations upon the discovery sought pursuant to Rule 26(b)(2). Panola Land Buyers Ass'n v. Shuman, 762 F.2d 1550, 1550 (11th Cir. 1985); McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990).
*3 Broad-based, non-specific objections are almost impossible to assess on their merits, and fall woefully short of the burden that must be borne by a party making an objection to an interrogatory or document request.... An objection to an interrogatory or document request must state with specificity the objection and how it relates to the particular request being opposed, and not merely that it is “overly broad and burdensome” or “oppressive” or “vexatious” or “not reasonably calculated to lead to the discovery of admissible evidence.”
Harding v. Dana Transport, Inc., 914 F.Supp. 1084, 1102 (D. N.J. 1996) (and cases cited, citations omitted). The breadth of a discovery request cannot be determined without examining the issues in the suit. Burden cannot be determined without knowing how the information is organized, how much there is, and where the information is kept. The parties cannot confer in good faith to try to resolve a discovery dispute without an understanding of the nature of the dispute, and the court cannot grant relief in a vacuum. All such objections that Defendant interposed are overruled.
Discovery produced “without waiving any objections”
Disclosure of discovery material “without waiving any objections” has no legal effect. Privileges are waived when a document is knowingly and voluntarily given to an opposing party.[2]
The relevant period
The relevant period ends on the date of the judgment, October 9, 2009, which is the date of “resolution” as intended by Allstate Indemnity Company v. Ruiz, 899 So. 2d 1121, 1130 (Fla. 2005).[3] That was the date of the final judgment in the initial suit. The filing of the “civil remedy notice” did not institute a bad faith suit and it assuredly did not resolve anything.
Analysis of the specific discovery requests
Request 1
The response is nonsensical. Plaintiff asked for a copy of his insurance policy, including riders and so forth. The motion is granted as to request 1.
Request 2
The motion is granted as to request 2, which seeks the entire claim file, but production will be limited to documents created on or before October 9, 2009.
Request 3
The motion is granted as to request 3, but is limited to documents created on or before October 9, 2009.
Request 4
The motion is granted as to request 4. Defendant did not explain why it thought that production of the underwriting file would result in the production of evidence not relevant for discovery.
Request 5
Plaintiff sues Defendant pursuant to the Florida statute for punitive damages for willful, wanton, and malicious, or reckless business practices. This request is limited to the files of people who processed Plaintiff's claim. The period covered by this request does not cover irrelevant years. The relevancy objection is unpersuasive. Further, the privacy objection is not a reason to block discovery since privacy concerns can be satisfied with a protective order. The motion to compel is granted as to request 5.
Request 6, 7, and 8
The motion is granted as to requests 6, 7, and 8, with a cutoff date on or before October 9, 2009.
Requests 9 and 10
Request 9 seeks all documents evidencing Defendant's “gross payments for all lawsuits or claims which alleged or sought punitive damages” against Defendant for the past five years. Request 10 seeks similar documents showing “gross payments” where bad faith was alleged. This gives me some pause.[4] Defendant is a national insurance company. Nonetheless, Defendant has not shown how production of this information would be too burdensome, and I cannot find that these requests are “patently improper.” Surely Defendant has a national accounting department that records such payments. The motion to compel as to requests 9 and 10 is granted.
Interrogatory 3
*4 The motion to compel is granted as to interrogatory 3, with the limitation that the answer must account for third parties retained or consulted on or before October 9, 2009.
Interrogatory 4
The motion to compel is granted as to interrogatory 4. Plaintiff is entitled to know the history of these experts, and the period limitation imposed by Defendant is unpersuasive.
Interrogatory 5
This seeks information as to communications involving demands and settlement offers from the date of the accident to the present. There is no question of attorney-client privilege or work product objection, and thus no reason to limit the period to the period before the date of judgment. The motion to compel is granted as to interrogatory 5.
Interrogatories 6 and 7
These, like interrogatory 2, could be overbroad, but Defendant has not made the case. The promise of a belated affidavit showing burden was insufficient. And, like interrogatory 2, surely Defendant keeps track of such litigation through a litigation department. The motion to compel is granted as to interrogatories 6 and 7.
Expenses
Paragraph 7 of the initial scheduling order, doc. 19, provides:
Rule 37 Awards of Motion Expenses. The Court will ordinarily award counsel fees for time spent in filing (and arguing) a motion to compel if such a motion is necessary to make the recalcitrant party respond, or for time spent in opposing (and arguing) such a motion that is found to be unnecessary or without basis. Certification of all discovery requests, responses, and objections is required under Rule 26(g), and violations thereof will be subject to sanctions.
FED. R. CIV. P. 37(a)(5)(A) provides:
(5) Payment of Expenses; Protective Orders.(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or(iii) other circumstances make an award of expenses unjust.
FED. R. CIV. P. 37(a)(5)(A).
“A court must impose attorney's fees and expenses when compelling discovery unless the party was substantially justified in resisting discovery. Substantially justified means that reasonable people could differ as to the appropriateness of the contested action.” Maddow v. Proctor & Gamble Co., Inc., 107 F.3d 846, 853 (11th Cir. 1997), citing Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988).
In an effort to avoid collateral litigation, I estimate that Plaintiff incurred the expense of 6 attorney hours in pursuit of this discovery. At $300 per hour, this is an expense of $1,800. If Defendant wishes to be heard as to this calculation, Defendant may file a motion for rehearing and will be given a de novo opportunity to be heard. However, if I need to fine tune this award, attorney's fees will be awarded for pursuit of attorney's fees to the extent that the party who opposes the fee presents defenses that are not substantially justified.
Defendant's motion for a protective order, doc. 59
*5 Defendant's motion for a protective order, doc. 59, is pending, and the time for a response from Plaintiff has not yet elapsed. The issues raised in the motion have been ruled upon above, and there is no need to cause additional expense to either party to wait for a reply from Plaintiff. Defendant's motion as argued is denied. However, to protect the privacy of the persons who will be affected, I will enter a brief protective order on my own motion.
Accordingly, it is ORDERED that:
1. Plaintiff's motion to compel, doc. 55, is GRANTED. On or before November 8, 2011, Defendant shall produce for inspection and copying the documents described above and answer the interrogatories as directed above and shall pay Plaintiff $1,800 as Plaintiff's expenses of this motion.
2. Defendant's motion for a protective order, doc. 59, is DENIED. However, the documents which will be produced for inspection and copying in response to request for production 5 shall be held in confidence by Plaintiff and Plaintiff's lawyer, may be disclosed to legal staff, court reporters, experts, and to witnesses in depositions, shall be used at trial only as permitted by the presiding judge, and shall be returned to Defendant when this litigation is completely concluded.
DONE AND ORDERED on October 25, 2011.
Footnotes
There is no need to decide how to apply Allstate Indemnity Company v. Ruiz, 899 So. 2d 1121, 1130 (Fla. 2005) to this discovery.
There is a procedure for a belated assertion of privilege when the privileged material has been inadvertently disclosed, FED. R. CIV. P. 26(b)(5)(B), but that does not apply when the disclosure is knowing and voluntary.
It is possible that the date of resolution is when the judgment was affirmed on appeal, February 21, 2011, but Plaintiff does not so argue.
Even though objections have been waived, a court may examine the discovery requested and refuse to compel if the discovery has “absolutely no relevance,” “far exceeds the bounds of fair discovery,” or is “patently improper.” Shenker v. Sportelli, 83 F.R.D. 365, 367(E.D. Pa. 1979); Krewson v. City of Quincy, 120 F.R.D. 6, 7 (D. Mass. 1988); Boselli v. Southeastern Pa. Trans. Auth. t/a SEPTA, 108 F.R.D. 723, 726 (E.D. Pa. 1985).