*1 This cause comes before the Court on Defendant United Specialty Insurance Company's Motion to Compel Discovery. DE 93. Plaintiff Sandra Solomon filed a response, DE 94, Defendant has filed a reply, DE 96, and the Court held a hearing on Defendant's Motion on March 12, 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 Defendant's Motion to Compel.

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 was notified of the litigation and 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 as to 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 ongoing discovery in this case, Defendant has filed the present Motion to Compel, asking the Court to: (1) overrule Plaintiff's privilege objections to producing the “closing statement” from a settlement with ACC in 2021; (2) order Plaintiff to produce documents responsive to Defendant's Sixth and Fourth Requests to Produce; and (3) permit Defendant to re-depose Plaintiff and her attorney from the underlying state litigation for the sole purpose of asking questions regarding the documents Defendant seeks to have compelled with this Motion. DE 93 at 4.

*2 Defendant asks the Court to overrule Plaintiff's objections to producing the closing statement that are based on the attorney-client and work product privileges. DE 93-1 at 4. Defendant requested the closing statement as part of its Sixth Request for Production, which asked for:

Id. at 1.

In response to this request, Plaintiff did not raise any objections. See id. at 2. However, Plaintiff simultaneously provided a privilege log with her response, which asserted attorney-client and work product privileges. Id. at 4. Therefore, Plaintiff has waived all objections to Defendant's Sixth Request for Production besides attorney-client and work product privileges. See S.D. Fla. L.R. 26.1(e)(2)(a) (requiring objection to production request to be raised timely and with specificity; otherwise, the objection is waived).

Having raised attorney-client and work product objections, Plaintiff bears the burden of proving these privileges. See Diamond Resorts U.S. Collection Dev., LLC v. US Consumer Att'ys, P.A., 519 F. Supp. 3d 1184, 1197 (S.D. Fla. 2021) (“It is well established that the party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential.” (quotation marks omitted)); Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 689 (S.D. Fla. 2011) (“The proponent of the [work product] privilege has the burden of proving its applicability.”). Regarding her assertion of attorney-client privilege, Plaintiff asserts that the closing statement was a communication between her and her counsel that was created in furtherance of ongoing litigation. DE 94 at 2–3. And concerning her work product privilege assertion, Plaintiff maintains that the closing statement was created as part of ongoing litigation. Id. at 3.

Generally, the closing statement of a settlement agreement delineates the gross settlement amount and the net amount that will go to the party after various costs are deducted, such as attorney's fees and costs. See Tamayo v. Spice Reso-Lounge, Inc., No. 14-62189-CV, 2016 WL 11547579, at *2 (S.D. Fla. Aug. 26, 2016), report and recommendation adopted, No. 14-CV-62189-KAM, 2016 WL 11547580 (S.D. Fla. Sept. 28, 2016); see also Jenkins v. Ramirez, No. 3:20-CV-865-BJD-MCR, 2021 WL 8917975, at *1 (M.D. Fla. Dec. 30, 2021) (noting closing statement detailed plaintiff's total recovery and net recovery after deductions were made). Plaintiff has filed under seal the closing statement at issue here, DE 100, so the Court could conduct an in camera review to evaluate her privilege assertions.

After conducting an in camera review, the Court concludes that not everything contained in the closing statement is protected by attorney client privilege, especially the information Defendant seeks to discover. At the Discovery Hearing, Defendant clarified that it only seeks production of the closing statement for the purpose of learning what medical bills or costs were resolved and deducted from the settlement amount.[1] Since these are purely factual matters, they are not protected by attorney-client privilege. See In re Alexander Grant & Co. Litig., 110 F.R.D. 545, 548 (S.D. Fla. 1986) (“The court reminds the parties that the attorney-client privilege does not protect disclosure of underlying facts; it merely protects the substance of the specific communication.”); McKesson Info. Sols. LLC v. Epic Sys. Corp., 242 F.R.D. 689, 694 (N.D. Ga. 2007) (“[T]he attorney-client privilege protects only the disclosure of communications between an attorney and the client; it does not protect the disclosure of facts.”); Universal City Dev. Partners, Ltd. v. Ride & Show Eng'g, Inc., 230 F.R.D. 688, 690 (M.D. Fla. 2005) (“It is generally recognized that the communication of factual information is not protected by the attorney-client privilege.”).

*3 Furthermore, although Plaintiff contends the closing statement is protected work product because it was created as part of ongoing litigation, pure facts not created or generated by an attorney do not enjoy work product protection. See Stern v. O'Quinn, 253 F.R.D. 663, 685 (S.D. Fla. 2008) (noting that facts which are not generated in the course of litigation do not receive work product protection); Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 699 (N.D. Ga. 2007) (“Pure facts are not subject to attorney-client privilege or work product protection.”). Thus, because the only information that Defendant seeks from the closing statement constitutes pure facts—what amount was paid out to satisfy medical bills and liens from the settlement amount—which provide no insight into Plaintiff's attorney's mental impressions, these facts are not protected by the work product privilege either.

Accordingly, the Court overrules Plaintiff's objections to producing the closing statement that are based on the attorney-client and work product privilege assertions as to the following portions of the closing statement: (1) the “Gross Amount” line, (2) the “NET TO YOU” line, (3) the “LIENS” line, (4) the “Less Amount Held in Escrow for Payment of Medicare Liens” line, and (5) the “FINAL TAKE HOME TODAY” line. Plaintiff may only redact the “Attorney Fees” and “Expenses” lines in addition to the five paragraphs on the first page that follow the “FINAL TAKE HOME TODAY” line,[2] and Plaintiff shall produce a copy of the closing statement to Defendant by March 15, 2024, at 5:00 p.m.

Defendant contends that while Plaintiff timely responded to its Sixth Request for Production and agreed to produce responsive documents within 10 days, Plaintiff failed to provide all of the requested documents. DE 93 at 3. Additionally, Defendant asserts that although Plaintiff agreed to withdraw her relevancy objection to its Fourth Request for Production, Plaintiff did not produce those documents in time for her March 5th deposition, despite Defendant noticing the deposition as “duces tecum” and directing her to bring responsive documents to that deposition. Id. Therefore, Defendant requests that the Court order Plaintiff to immediately produce documents responsive to its Sixth and Fourth Requests for Production and permit Defendant to depose her again for the purpose of asking about the documents produced, should Defendant deem it necessary to do so. Id.

Plaintiff responds that she previously agreed to produce all documents by March 8, 2024, for Defendant's Sixth Request for Production and that she has produced all documents for Defendant's Fourth Request for Production.[3] DE 94 at 2. At the Discovery Hearing, Plaintiff advised the Court that she has produced everything requested by both Requests for Production, but Defendant questioned whether Plaintiff had produced everything within her control.

To be clear, Federal Rule of Civil Procedure 34(a)(1) permits a party to request to inspect any documents within the “responding party's possession, custody, or control.” Seeing as Plaintiff raised no objections to the Sixth or Fourth Requests for Production, Plaintiff is required to produce everything requested therein that is in her possession, custody, or control. “Whether documents are in a [party's] control under Rule 34 is broadly construed.” Costa v. Kerzner Int'l Resorts, Inc., 277 F.R.D. 468, 470 (S.D. Fla. 2011). “ ‘Control,’ therefore, does not require that a party have legal ownership or actual physical possession of the documents at issue; indeed, documents have been considered to be under a party's control (for discovery purposes) when that party has the right, authority, or practical ability to obtain the materials sought on demand.” Id. (quotation omitted). Accordingly, to prevent any confusion, Plaintiff shall supplement her responses to Defendant's Sixth and Fourth Requests for Production, within one week from the date of this Order, to the extent she has not already produced everything that is in her possession, custody, or control.

*4 Furthermore, the Court reminds the parties of Federal Rule of Civil Procedure 26(e)(1)(A)’s duty for the responding party to supplement discovery responses in a timely manner upon the party learning that a response is incomplete, unless the additional or corrective information has been made known to the other party during the discovery process or in writing. Failure to abide by Rule 26(e) can result in sanctions. Fed. R. Civ. P. 37(c)(1)(A)–(C).

Under Federal Rule of Civil Procedure 30(a)(2)(A)(ii), a party must request leave of the court to depose an individual if that individual has already been deposed in the case. In its Motion, Defendant requested leave to allow it to re-depose Plaintiff and her attorney “solely for the purpose of asking targeted questions about the ‘Closing Statement’ and the documents responsive to [Defendant's] Sixth and Fourth Requests to Produce.” DE 93 at 4. However, at the Discovery Hearing, Defendant informed the Court that it no longer wished to re-depose Plaintiff and that Plaintiff's attorney has not been deposed yet. Thus, by withdrawing its request to re-depose Plaintiff, Defendant has resolved this issue.

Based on the foregoing, the Court GRANTS IN PART Defendant's Motion to Compel [DE 93] insofar as Plaintiff shall provide Defendant with the portions of the closing statement, as delineated herein, by March 15, 2024, at 5:00 p.m., and Plaintiff shall also supplement her responses to Defendant's Sixth and Fourth Requests for Production, as explained above, within one week of the date of this Order. The Court otherwise DENIES Defendant's Motion to Compel [DE 93].

DONE AND SUBMITTED in Chambers at Fort Lauderdale, Florida, this 14th day of March, 2024.