*1 This cause comes before the Court on Plaintiff Sandra Solomon's Motion to Overrule Defendant's Objections to Areas of Inquiry for Deposition of Corporate Representative. DE 102; DE 119. Defendant United Specialty Insurance Company filed a response, DE 104, Plaintiff filed a reply, DE 106, and the Court held a hearing on Plaintiff's Motion on April 10, 2024. Having carefully considered the briefing and the arguments made by counsel at the hearing and being otherwise fully advised, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion.

In her capacity as the personal representative of Betty Begas, Plaintiff sued Defendant for breach of contract. DE 7. In support of her claim, Plaintiff alleges the following:

Defendant issued an insurance policy to Always Classic Care LLC (“ACC”), which provided coverage for bodily injury damages and required Defendant to defend ACC in any suit seeking damages for bodily injury. Id. ¶¶ 6–8. Plaintiff contracted with ACC to provide home health services for Betty Begas, her mother, and ACC sent an employee, Nelta Francis, to care for Ms. Begas. Id. ¶¶ 13–14. Unfortunately, while under the care of Ms. Francis, Ms. Begas fell on the floor and was unable to move, but Ms. Francis did not call for emergency services or otherwise provide any assistance to Ms. Begas for over an hour. Id. ¶¶ 16–17. After an hour, Ms. Francis contacted Plaintiff who then called an ambulance for Ms. Begas. Id. ¶ 18. A subsequent medical examination of Ms. Begas revealed that she had broken her leg from the fall. Id. ¶ 20.

In underlying state litigation, Plaintiff filed a counterclaim against ACC, asserting various claims of negligence stemming from the injuries Ms. Begas sustained while under ACC and Ms. Francis’ care. Id. ¶ 21. Defendant agreed to defend ACC under the terms of the insurance policy. Id. ¶ 22. However, after Plaintiff added Ms. Francis as a defendant in the state litigation, Defendant denied coverage for Ms. Francis and refused to defend or indemnify her. Id. ¶¶ 23, 27. Therefore, without any defense, the state court entered a default judgment on liability against Ms. Francis, and the subsequent state trial over damages resulted in a $1,120,411.15 verdict against Ms. Francis. Id. ¶¶ 29–30. Thereafter, as a judgment creditor of Ms. Francis, Plaintiff asserted that she is a beneficiary of the proceeds of the insurance policy and sued Defendant for its failure to defend or indemnify Ms. Francis in the underlying state litigation. Id. ¶¶ 31, 36.

As part of the discovery in this case, Plaintiff served Defendant with a Notice of Taking Remote Video Teleconference Deposition Pursuant to Fed. R. Civ. P. 30(b)(6), and Defendant served objections to numerous areas of inquiry in response. DE 102-3. As a result, Plaintiff has filed the present Motion, asking the Court to overrule Defendant's objections.

On February 12, 2024, Defendant emailed Plaintiff and asked for the areas of inquiry for the deposition of its corporate representative so that Defendant could designate the appropriate individual for the deposition. DE 102-1 at 2. On that same day, Plaintiff replied to Defendant's email with a draft deposition notice, which listed 11 areas of inquiry. Id. at 2, 9–10. After confirming a deposition date of March 13, 2024, for Defendant's corporate representative, Plaintiff asserts that it served Defendant with a Federal Rule of Civil Procedure 30(b)(6) Notice of Taking Remote Video Teleconference Deposition on February 26, 2024, and that the notice included the same 11 areas of inquiry as the draft version. DE 102 at 1. However, one minute after the scheduled start of the deposition on March 13, 2024, Defendant served Plaintiff with its objections to seven entire areas of inquiry and with a partial objection to an eighth area of inquiry. DE 102-4 at 3–6.

*2 In its Motion, Plaintiff first argues that the objections raised by Defendant are untimely and neither substantively nor procedurally proper. DE 102 at 1–2. For its part, Defendant claims that it raised similar objections to Plaintiff's First Request for Production that purportedly overlapped with its objections to the deposition's areas of inquiry, and Defendant and Plaintiff were conferring at the time regarding those objections. DE 104 at 3–4. Therefore, Defendant claims Plaintiff should not have been surprised about its objections to the deposition's areas of inquiry. Id. at 4. Nevertheless, while Defendant acknowledges it should have reached out to confer with Plaintiff regarding the areas of inquiry for the deposition, Defendant asserts Plaintiff should have sought clarification from Defendant about the areas of inquiry if it had any questions. Id.

As an initial matter, it was not Plaintiff's obligation or duty to check to see if Defendant had any objections to the areas of inquiry for the deposition. The onus was always on Defendant to timely raise any objections it had to the areas of inquiry. Furthermore, by raising its objections for the first time after the scheduled start of the deposition, Defendant's objections were untimely. See Kartagener v. Carnival Corp., 380 F. Supp. 3d 1290, 1296 (S.D. Fla. 2019) (“Where a corporation objects to the designation, it must give advance notice to the requesting party of those objections, so that the requesting party has the opportunity to reconsider its position, narrow the scope of the topic, or otherwise stand on its position and seek to compel additional answers, if necessary, following the deposition.”); see also Fed. R. Civ. P. 30(b)(6) (requiring parties to confer in good faith about the areas of inquiry for a deposition before or shortly thereafter service of the deposition notice). For example, in Kartagener, the defendant, like Defendant here, did not raise objections to the plaintiff's Rule 30(b)(6) notice until the deposition had already begun, which led the court to find the objections to be “untimely and insufficient to give [p]laintiff notice of those objections.” 380 F. Supp. 3d at 1296.

However, although Defendant's objections to the areas of inquiry were untimely, Plaintiff has not provided any authority that would permit the Court to overrule Defendant's objections on this basis. Plaintiff cites to some cases that require a party to move for a protective order prior to a deposition to limit the scope of a Rule 30(b)(6) deposition, but there is no consensus on whether a party needs to, or even can, move for a protective order prior to a deposition. See Florida v. United States, 342 F.R.D. 153, 156 (N.D. Fla. 2022) (collecting cases and noting that some courts allow pre-deposition protective orders whereas other courts do not and require objections to be resolved after a deposition via a motion to compel). Thus, the Court is not persuaded that it has the authority to overrule Defendant's objections on the basis that they were untimely, and the Court will proceed to address the merits of Defendant's objections.

*3 The procedural posture of Plaintiff's Motion makes addressing the merits of Defendant's objections difficult. Normally, while a deposition is ongoing, parties can raise objections to any aspect of the deposition, “but the examination still proceeds; the testimony is taken subject to any objection.” Fed. R. Civ. P. 30(c)(2). A party can only instruct the deponent not to answer a question “when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” Id. And, after the deposition has finished, the deposing party can seek court involvement by moving under Rule 37(a)(3)(B)(i) to compel an answer when the deponent does not answer a question during a deposition.

The alternative way for a court to become involved with a deposition is when the party of the deponent moves for a protective order before the deposition to limit the areas of inquiry of the deposition, although courts have differing views on the permissibility of doing so. See Florida, 342 F.R.D. at 156; see also Fed. R. Civ. P. 26(c)(1)(D) (allowing protective order to prevent “inquiry into certain matters” or to limit “the scope of disclosure or discovery to certain matters”).

Here, there are no specific questions that Defendant objected to based on a privilege, and Defendant has not moved for a protective order. The Court only has Defendant's objections to seven areas of inquiry in their entirety and partially to an eighth area of inquiry. DE 102-3 at 3–6. Therefore, at the outset, the Court acknowledges that it cannot completely resolve the issues presented by this Motion. Nonetheless, with this Order, the Court provides the parties with clarification about what topics Plaintiff is allowed to inquire into at the rescheduled deposition and how to handle any privilege objections during the rescheduled deposition.

In response to Plaintiff's Motion, Defendant first argues that the areas of inquiry in the deposition notice are actually requests for production in disguise. DE 104 at 1. In particular, Defendant claims that five of the areas of inquiry included items Plaintiff has not obtained from discovery, so the “only way for [Defendant's corporate representative] to prepare for questioning in these purported ‘areas’ (without bringing the items) would have been to memorize all correspondence and the entire contents of the claim file, so that she could regurgitate same upon demand.” Id. Claiming that this is an impossibility for its human corporate representative, Defendant contends that the questioning into at least five areas of inquiry should not be allowed.

Defendant is correct that Plaintiff did not designate the deposition notice as duces tecum, see DE 102-1 at 7–10; therefore, Defendant is not required to bring any documents to the deposition. However, Rule 30(b)(6)’s requirement for the deposing party to provide the areas of inquiry is to ensure that the corporation presents a representative for the deposition who can answer questions regarding the areas of inquiry listed in the deposition notice. See New World Network Ltd. v. M/V NORWEGIAN SEA, No. 05-22916 CIV, 2007 WL 1068124, at *3 (S.D. Fla. Apr. 6, 2007) (“The corporation has an affirmative duty to produce a representative who can answer questions that are both within the scope of the matters described in the notice and are ‘known or reasonably available’ to the corporation.’ ” (quoting King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995))). Accordingly, while Defendant is not required to bring any documents to the deposition, Defendant still has the duty to produce a corporate representative who can answer questions regarding the areas of inquiry listed in Plaintiff's deposition notice.

*4 Although Defendant did not raise any relevancy objections within its objections to Plaintiff's deposition notice, see DE 102-3 at 3–6, Defendant argues in its response to Plaintiff's Motion that some or all of the objected-to areas of inquiry are irrelevant to this case. DE 104 at 3. However, the Court declines to address these relevancy objections for two reasons. First, as just mentioned, Defendant did not raise any relevancy objections within its objections to the deposition notice. See DE 102-3. And Second, Rule 30(c)(2) requires a deposition to continue even after an objection is raised, and the testimony is taken subject to the objection. The only situations where a party can instruct the deponent not to answer a question are to either (1) preserve a privilege, (2) enforce a limitation ordered by the court, or (3) to present a motion under Rule 30(d)(3).[1] Therefore, if Defendant were to have raised its relevancy objections during the deposition, Defendant's corporate representative would still have been required to answer, and the answer would be taken subject to Defendant's relevancy objection. Accordingly, Defendant may raise relevancy objections during the rescheduled deposition, but Defendant shall not instruct its corporate representative to not answer a question based on those relevancy objections. See Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 700 (S.D. Fla. 1999) (“[I]t is improper to instruct a witness not to answer a question based on form and relevancy objections.”).

Moreover, to the extent Defendant raises any additional non-privilege objections, such as the insurance policy's “No Action clause” and “Florida's Non-Joinder Statute,” DE 102-3 at 3–5, Defendant likewise cannot instruct its corporate representative not to answer a question on these bases. See Fed. R. Civ. P. 30(c)(2) (delineating the instances where a party can instruct deponent not to answer a question). Nevertheless, Defendant can raise these objections during the rescheduled deposition, “but the examination still proceeds; the testimony is taken subject to any objection.” Id.

In response to Plaintiff's Rule 30(b)(6) Notice, Defendant objected on the basis of privilege to the entirety of the following areas of inquiry: (1) all correspondence between Defendant and Francis relating to the underlying claim, (3) all correspondence between Defendant and ACC relating to Francis’ status as an employee and/or the claims made against her in the underlying action,[2] (5) the facts regarding Defendant's investigation of coverage under the policy for claims against Francis related to the underlying claim, (6) the facts regarding Defendant's investigation of a defense for Francis under the policy related to the underlying claim, (8) Defendant's entire claims file relating to the underlying claim, (9) Defendant's claims notes relating to the underlying claim, and (10) the facts related to Defendant's participation in the underlying action. DE 102-3 at 3–6. Defendant also partially objected to the fourth area of inquiry, which asked for the facts regarding the negotiation and execution of the settlement and release between Plaintiff and ACC in the underlying action. Id. at 5.

To overcome Defendant's assertions of privilege, Plaintiff contends that no privilege applies because of the “at issue” waiver. The “at issue” waiver applies to both the attorney-client and work product privilege, and it holds that if the party claiming a privilege puts privileged material at issue in a litigation, the privilege is waived. See Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So. 2d 504, 508 (Fla. 2d DCA 2006) (noting that waiver of attorney-client privilege is disfavored under Florida law, but a party can waive attorney-client privilege by raising a claim that “will necessarily require proof by way of a privileged communication” (quotation marks omitted)); MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 624 (S.D. Fla. 2013) (“ ‘At-issue’ waiver applies when a party injects the work-product directly into the litigation, as necessary to prove an element of a claim or defense.”).[3] However, the at-issue waiver only applies to fact work product, not opinion work product. MapleWood Partners, L.P., 295 F.R.D. at 624.

*5 To demonstrate the applicability of the “at issue” waiver, Plaintiff first contends that Defendant has put allegedly privilege material at issue by including documents from its purportedly privileged litigation file in its briefing. DE 102 at 3. By voluntarily disclosing any documents or communications as part of its briefing, Defendant has waived any privilege regarding those specific documents or communications. See Visual Scene, Inc. v. Pilkington Bros., PLC, 508 So. 2d 437, 440 (Fla. 3d DCA 1987) (“In most cases, a voluntary disclosure to a third party of the privileged material, being inconsistent with the confidential relationship, waives the [attorney-client] privilege.”); Guarantee Ins. Co., 300 F.R.D. at 598–99 (“With work product protected materials, disclosure operates only to waive the protection for the actual material disclosed, not other materials.”). Therefore, Plaintiff can ask Defendant's corporate representative questions regarding any documents or communications that Defendant has filed as part of this litigation.

Plaintiff also argues that the “at issue” waiver applies based on affirmative defenses raised by Defendant, id., such as Defendant's third, fourth, and tenth affirmative defenses. DE 106 at 1. For reference, as part of its “Third Defense,” Defendant claims that Plaintiff never served Francis with the Second Amended Complaint, thus violating her due process rights, and that Plaintiff introduced “falsely high ‘bills’ into evidence” during the damages trial against Francis. DE 107 at 6–7. For its “Fourth Defense,” Defendant asserts that if Francis qualified as an insured under ACC's insurance policy, Francis failed to satisfy the policy's post-loss obligations and conditions precedent to coverage. Id. at 7. Lastly, in its “Tenth Defense,” Defendant maintains that Plaintiff entered into an unenforceable Coblentz[4] Agreement because Plaintiff and Francis did not act in good faith. Id. at 14.

Although the Court agrees that Defendant has made most, if not all, of the underlying litigation relevant in this case with its defenses, the Court cannot, based on what is before it, determine whether Defendant has placed specific privileged material at issue so as to waive the privilege. For example, while Defendant argues that Francis did not comply with her post-loss obligations, the Court cannot know whether Defendant necessarily will need to use material privileged under the attorney-client or work product privilege to prove this assertion. Thus, at this juncture, the Court cannot determine whether the at-issue waiver applies, especially to the broad extent Plaintiff seeks. Accordingly, the Court will not overrule Defendant's privilege assertions at this time.

As previously mentioned, the Court cannot fully resolve the issues presented by this Motion based on what is currently before the Court. Nevertheless, when the rescheduled deposition of Defendant's corporate representative occurs, the parties shall abide by the following. First, as required by Rule 30(c)(2), Defendant may raise objections during the deposition, “but the examination still proceeds; the testimony is taken subject to any objection.” Defendant may only instruct its corporate representative to not answer a question when “necessary to preserve a privilege ... or to present a motion under Rule 30(d)(3).”[5] Fed. R. Civ. P. 30(c)(2). Second, should Defendant raise a privilege objection during the deposition, the parties shall follow Local Rule 26.1(f). Lastly, the Court instructs the parties to take into consideration the limitations on the attorney-client and work product privileges when crafting questions and raising objections. See, e.g., Henderson v. Holiday CVS, L.L.C., 269 F.R.D. 682, 687 (S.D. Fla. 2010) (noting work product doctrine “applies only to documents a party has assembled and not to facts learned from those documents,” which means the work product privilege cannot “be used as a shield against discovery of the facts that have been learned, the identity of the persons who learned such facts, or the existence or non-existence of documents”); S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1387 (Fla. 1994) (“[T]he communication between the attorney and client is privileged, but the underlying facts are discoverable.”).

*6 For the foregoing reasons, Plaintiff's Motion [DE 119] is GRANTED IN PART AND DENIED IN PART.

DONE AND SUBMITTED in Chambers at Fort Lauderdale, Florida, this 12th day of April, 2024.