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Renowned Trial Lawyer Scott Mager Teaches Expert Techniques in Complex Litigation at a National Seminar, This Time On Proper Objections at Depositions, Discovery and Trial Discovery

Mager Paruas, LLC > Legal Lessons  > Renowned Trial Lawyer Scott Mager Teaches Expert Techniques in Complex Litigation at a National Seminar, This Time On Proper Objections at Depositions, Discovery and Trial Discovery

Renowned Trial Lawyer Scott Mager Teaches Expert Techniques in Complex Litigation at a National Seminar, This Time On Proper Objections at Depositions, Discovery and Trial Discovery

I OBJECT TO THAT OBJECTION: THE SECRET TO UNDERSTANDING OBJECTIONS

By Scott Mager

While many lawyers are quite talented, far less have a full understanding of all objections or how to best assert or respond to them.  Let’s discuss the best (and worst) objections in 1) discovery; 2) depositions; and 3) trial.

“OBJECTIONS” TO DISCOVERY

Since discovery is more broad in nature, there are less valid objections available, assuming you have timely made them. 

Types of Objections

While there are rules-based objections (e.g., exceeds the number of interrogatories, production, admissions requests; subparts being counted in the number allowed, etc.), the principal objections involve those based on privilege (attorney-client, work-product, etc) and those based on other grounds (e.g., privacy related rights; asking for information that is impossibly burdensome or overbroad; palpably irrelevant, etc.) 

Rules-Based Objections

While there are various rules-based objections (some referenced above), the most talked about but most misunderstood is how to know whether a party has exceeded the number of requests, where they have utilized subparts in questions.

I Question Your Questioning: Determining whether a “subpart” to an Interrogatory is to be counted as a separate question

Courts have struggled with devising effective tests to fairly determine whether interrogatories that have subparts should be counted as separate questions.  Indeed, the decisions are quite sparse at the state court level, so looking to federal court decisions is instructive.

“Resolving questions of whether a subpart to an interrogatory is ‘discrete’ under Rule 33 such that it should be counted separately can be a difficult task” and “courts considering this question have applied various tests.” Oliver v. City of Orlando, 606CV-1671-ORL-31DAB, 2007 WL 3232227, at *2 (M.D. Fla. 2007), quoting Williams v. Taser Int’l, Inc., No. Civ. 106–cv–51–RWS, 2007 WL 1630875, *2 (N.D.Ga. Jun. 4, 2007) (determining the actual number of interrogatories and discrete subparts when plaintiffs sought to compel responses from Taser International, Inc.); Banks v. Office of the Senate Sergeant–At–Arms & Doorkeeper, 222 F.R.D. 7, 10 (D.D.C.2004) (recognizing that identifying a “discrete subpart” under Rule 33(a) “has proven difficult”). Some courts have applied a “related question” test, assessing whether the particular subparts are logically or factually subsumed within and necessarily related to the primary question. Williams, 2007 WL 1630875, *2 (quoting Ginn v. Gemini, Inc., 137 F.R.D. 320, 322 (D.Nev.1991)).

Probably the best test of whether subsequent questions, within a single interrogatory, are subsumed and related, is to examine whether the first question is primary and subsequent questions are secondary to the primary question. Or, can the subsequent question stand alone? Is it independent of the first question? Genuine subparts should not be counted as separate interrogatories. However, discrete or separate questions should be counted as separate interrogatories, notwithstanding [that] they are joined by a conjunctive word and may be related.

For example, consider Federal Rule of Civil Procedure 33(a)(1), which permits a party to serve on any other party 25 interrogatories (without leave of court), “including all discrete subparts.” The Rule, however, does not define “discrete subparts.” Resolving questions of whether a subpart to an interrogatory is ‘discrete’ under Rule 33 such that it should be counted separately can be a difficult task and courts considering this question have applied various tests.

For example, as Federal District Courts have observed:

Courts have done their best to formulate tests for when subparts are discrete. Interrogatory subparts are counted as one interrogatory if “they are logically or factually subsumed within and necessarily related to the primary question.” Safeco of America v. Rawstron, 181 F.R.D. 441, 445 (C.D.Cal.1998); see also Trevino v. ACB American, Inc., 232 F.R.D. 612, 614 (N.D.Cal.2006). Subparts relating to a “common theme” should generally be considered a single interrogatory. Safeco, 181 F.R.D. at 444 (quoting 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2168. 1, at 261 (2d ed.1994)). But “if the first question can be answered fully and completely without answering the second question” then the questions are distinct. Estate of Manship v. U.S., 232 F.R.D. 552, 555 (M.D.La.005) (quoting Krawczyk v. City of Dallas, 2004 WL 614842 (N.D.Tex.2004)).

Perez v. Aircom Mgmt. Corp., Inc., 12-60322-CIV, 2012 WL 6811079 (S.D. Fla. 2012), quoting Paananen v. Cellco Partnership, No. CO8–1042 RSM, 2009 WL 3327227, at *2 (W.D.Wash. Oct.8, 2009) (taking “‘pragmatic approach,’ looking to see if an interrogatory threatens the purpose of Rule 33 by combining into one interrogatory several lines of inquiry that should be kept separate”).

The Court in Perez explained the “related question” test: 

District courts in the Eleventh Circuit, like most district courts in other circuits, have adopted and applied ‘the “related question” test to determine whether the subparts are discrete, asking whether the particular subparts are “logically or factually subsumed within and necessarily related to the primary question.’ ” The Mitchell Company, Inc. v. Campus, No. CA 07–0177–KD–C, 2008 WL 2468564, at *14 (S.D.Ala. June 16, 2008) (quoting Forum Architects, LLC v. Candella, No. 1:07CV190–SPM/AK, 2008 WL 217119, at *1 (N.D.Fla. Jan.23, 2008)); see also Powell v. The Home Depot USA, Inc., No. 07–80435–Civ, 2008 WL 2473748, at *2 (S.D.Fla. June 16, 2008) (Hopkins, M.J.) (“Courts within the jurisdiction of the Eleventh Circuit have recently followed what is known as the ‘related question test’ to determine whether a subpart in an interrogatory should be considered discrete.”). “If the subparts are subsumed and necessarily related to the primary question, then the subpart is not ‘discrete’ within the meaning of Rule 33(a).” Oliver, 2007 WL 3232227, at *2. By way of example, the following types of interrogatories have been deemed to be not discrete and, hence, constitute one interrogatory: (1) questions about persons with knowledge and the subject area of their knowledge; (2) questions about prior lawsuits, the nature of the cause of action, the parties, the court in which the lawsuit was filed, and the dates filed; (3) questions about witness statements, by and to whom made, when made, and the substance and context of the statements; (4) questions about persons with documentary evidence in their possession, custody, and control, what documents they have, the location of the documents, and when the documents were prepared; (5) questions about expert witnesses, their addresses, qualifications, subject matter of their testimony, and grounds for their opinions; (6) questions about damages, when the damages occurred, to whom expenses were paid; and (6) questions about lost income, benefits, or earning capacity, the nature of each loss, and how the loss was computed. See Powell, 2008 WL 2473748, at *2; Forum Architects, 2008 WL 217119, at *1–3; see also Fed.R.Civ.P. 33, 1993 Advisory Committee Notes (stating that an interrogatory should be treated as a single question “even though it requests that the time, place, persons present, and contents be stated separately for each such communication.”).

Perez v. Aircom Mgmt. Corp., Inc., 12-60322-CIV, 2012 WL 6811079, at *1 (S.D. Fla. 2012). See also Appendix B to Local Rules. Local Rule 26.1(g)(1) provides that “[i]nterrogatories propounded in the form set forth in Appendix B to these Local Rules shall be deemed to comply with the numerical limitations of Federal Rule of Civil Procedure 33(a).” Forum Architects, LLC v. Candela, 1:07CV190-SPM/AK, 2008 WL 217119, at *1 (N.D. Fla. 2008) (“The ‘related question’ test was deemed to be consistent with the Advisory Committee’s Notes that states ‘a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present and contents be stated separately for each such communication.’”). See also Guarantee Ins. Co. v. Heffernan Ins. Brokers, Inc., 13-23881-CIV, 2014 WL 5319866, at *6 (S.D. Fla. 2014); Ingole v. Certain Underwriters at Lloyd’s of London, 2009 U.S. Dist. LEXIS 41478, 2009 WL 1211359, at *2 (M.D.Fla. May 4, 2009) (citing Powell v. The Home Depot USA, 2008 U.S. Dist. LEXIS 49144, 2008 WL 2473748, at * 2 (S.D.Fla. June 16, 2008)); Oliver v. City of Orlando, 2007 U.S. Dist. LEXIS 80552, 2007 WL 3232227, at * 2 (M.D.Fla. Oct.31, 2007) (Under the “related question” test, courts assess whether the subparts are “logically or factually subsumed within and necessarily related to the primary question.”)  Border Collie Rescue, Inc. v. Ryan, 2005 U.S. Dist. LEXIS 5983, 2005 WL 662724, at * 1 (M.D.Fla. March 15, 2005) (“[A]n interrogatory which contains subparts that inquire into discrete areas should, in most cases, be counted as more than one interrogatory.”) (internal quotations and citations omitted).  Accord 7 James Wm. Moore, Moore’s Federal Practice § 33.30[2] (3d ed. 1997) (“The better view is that subparts may be counted as part of one interrogatory if they are logically and necessarily related to the primary question. This approach is most consistent with the intent of the discovery rules to provide information, not hide information, within reasonable limits.”) (footnote omitted); 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 2168.1, at 261 (2d ed. 1994) (“[A]n interrogatory containing subparts directed at eliciting details concerning the common theme should be considered a single question, although the breadth of the area inquired about may be disputable.”); Federal Trade Commission v. Nationwide Connections, Inc., 2007 WL 2462015 (S.D.Fla.2007) (finding that subparts of interrogatory were logically subsumed within and necessary to the primary question). Accord Cardenas v. Dorel Juvenile Group, Inc., 231 F.R.D. 616, 620 (D.Kan.2005) (citing 8A Wright & Miller, Federal Practice and Procedure § 2168.1 at 261 (2d ed. 1994) (adopting a “common theme” approach, stating that “it would appear that an interrogatory containing subparts directed at eliciting details concerning the common theme should be considered a single question, although the breadth of an area inquired about may be disputable. On the other hand, an interrogatory with subparts inquiring into discrete areas is more likely to be counted as more than one for purposes of the limitation.”); Border Collie Rescue, Inc. v. Ryan, 2005 WL 662724 (M.D.Fla.2005) (interrogatories at issue found to concern a common theme, noting that subparts of interrogatories that relate to a common theme should not be counted as separate interrogatories, but those subparts that inquire into areas apart from the common theme should be counted as separate interrogatories.). 

Courts have provided some examples to appreciate its reasoning. For example, the Court in Perez v. Aircom Mgmt. Corp., Inc., 12-60322-CIV, 2012 WL 6811079 (S.D. Fla. 2012) more recently utilized the following interrogatory as an example:

Please state when Plaintiff began working for Defendant, either as an employee or an independent contractor, her position, titles, rates of pay, method of payment, tasks performed and where she were [sic] performed for the Defendants. Specify the nature of the employment agreement as to the payment of wages to Plaintiff, including the amount and total payment of wages/remuneration, the rate of pay for hours worked under 40 hours per week; the rate of pay for hours worked over 40 hours per week; and deductions taken from Plaintiff’s wages (i.e. for purchasing uniforms) and the date each deduction was taken; the date(s) of any increase/decrease in Plaintiff’s rate of pay and the reason for the change, effective dates(s) of each change, and describe such change.

The Court reasoned that the Interrogatory encompasses four discrete subparts: (1) the nature of Plaintiff’s employment, such as where and when her employment began, her title, and the tasks she performed; (2) the payment of Plaintiffs wages; (3) deductions taken from Plaintiff’s wages and the date(s) of such deductions; and (4) increases/decreases in Plaintiff’s pay. Thus, it found that it should have been counted as four questions.  Id. at *2.   The Count did note that even if the amount was over the 25-question limit, it would have granted leave to permit the additional interrogatories in any event.  Id.  At least one Courts has also held that the request for identification of documents should be counted as a separate interrogatory. Banks v. Office of the Senate Sergeant-At-Arms, 222 F.R.D. 7, 10 (D.D.C.2004) (“[A] demand for information about a certain event and for the documents about it should be counted as two separate interrogatories.”)

To appreciate the application of the test, consider other decisions, such as Forum Architects, LLC v. Candela, 1:07CV190-SPM/AK, 2008 WL 217119, at *1-3 (N.D. Fla. 2008), where the Court found the following questions to be one single question:

No. 1 of the First Set asks related and connected questions about the person answering the interrogatories. [this is one question]

No. 2 is also a standard question about persons with knowledge and the subject area of their knowledge. This is considered one item of the initial disclosure requirements set forth in Rule 26(a) (1)(A) and will be considered one question here as well. 

No. 4 asks about prior lawsuits, when, what was the nature of the cause of action, which party, what court and when. These are related and connected. 

No. 5 asks about witness statements, by whom, when, to whom, the substance and context of the statements. These are related and connected (like the example of inclusive subparts given in the advisory committee notes).

No. 6 asks for persons with documentary evidence in their possession, custody or control, what they have, where they are, and when it was prepared. These are related and connected questions.

 

No. 7 asks for information about every employee of Plaintiff who has quit, been fired, or resigned since January 2000, with their addresses, and the date they terminated their employment. These are related and connected questions.

No. 1 of the Second Set asks for the expert witnesses Plaintiff intends to call at trial and then asks related and connected questions such as their addresses, qualifications, subject matter of their testimony, and grounds for their opinions. 

No. 2 asks for a list of damages, and includes the related and connected questions of when the damage occurred, to whom damages or expenses were paid, and for what. 

No. 3 asks if Plaintiff contends it has lost income, benefits, or earning capacity, and if so, what was the nature of each loss and how was the loss computed. This information is listed as one item in the Rule 26 initial disclosure requirements and will be considered as one question by this Court as well. 

No. 4 asks Plaintiff to identify individuals with knowledge as to ten different business practices. Each practice is related and connected to the overall function of Plaintiff and will be considered as one question. 

No. 9 asks for particulars about what each individual named therein (30) did to interfere with the business relationship between Plaintiff and Izaak Walton Investors. This appears sufficiently related and connected to come within the meaning of Rule 33, and the subparts may be counted as one interrogatory.

Id. at *2-3.

The Court considered the following subparts of interrogatories to be separate questions:

[No.3 of the First Set] asks whether Plaintiff has ever been known by other names, and if so, what names. This is one question. The interrogatory goes on to ask for all addresses used by Plaintiff in the last ten years, and what dates the Plaintiff resided at each address. This is one question. The interrogatory then goes on to ask when Plaintiff was founded. This is one question. Finally, it asks who all the officers and executives have been since January 1, 2000. This is one question. [Thus, the Court found it was three separate interrogatories]. 

Nos. 5 and 6 [of the Second Set] ask Plaintiff to identify individuals that have invested in it and two other companies, and the members or partners of these three companies. Since the Court is not apprised of the connection these three companies share, the subparts of these two interrogatories, as they relate to the other two companies, are deemed to be discrete subparts and must be counted as separate questions.

Nos. 7 and 8 ask for the particulars of several meetings referenced in Plaintiffs amended complaint. Defendants are not specific about the number of meetings or the subject matter of these meetings and as such, their connection is not readily apparent to the Court. Thus, without more information it seems that the meetings should be identified and separated perhaps by date, perhaps by subject matter, with subparts to be included as to the particulars of each meeting.

Id.

In Kimbrough v. City of Cocoa, 6:05-CV-471-ORL-31, 2006 WL 1540256, at *1-2 (M.D. Fla. 2006), the Court considered the following interrogatory subparts to be separate questions:

 

For example, in the interrogatories served on Norgell on March 14, 2006, interrogatory number 3 is composed of five parts and subparts, as follows:

3. [1] Do you contend any person or entity other than you is, or may be liable in whole or part for the claims asserted against you in this lawsuit? [2] If so, state the [full] name and address of each such person or entity, [3] the legal basis for you[r] contention, [4] the facts or evidence upon which your contention is based, and [5] whether or not you have notified each such person or entity of your contention.

Similarly, in the same set of interrogatories, interrogatory number 4 has two parts and subparts, as follows:

4. [1] List the names and address of all person[s] who are believed or known by you, your agents, or your attorneys to have any knowledge concerning any of the issues in this lawsuit; [2] and specify the subject matter about which the witness has knowledge.

In Porto Venezia Condo. Ass’n, Inc. v. WB Fort Lauderdale, LLC, 11-60665-CIV, 2012 WL 7635868 (S.D. Fla. 2012), the Court found the following questions to each be a single question (i.e., the 4 interrogatories total 4 questions, not more):

1. For each person or entity identified as defendants in the state court action, specify the amount of monetary damage you are claiming in this case which you believe was caused, in whole or in part, by such person; specify exactly what portion of the construction you believe they did or did not do that caused or contributed to any damages you are claiming in this action; what you believe they should have done instead of what they did; what action you have already taken to repair or replace the portion of the improvement; the cost of what you have already done to repair or replace the portion of the improvement; the identity of all persons who performed the repairs or replacements; what is recommended that you do to repair or replace the condition, and the estimated cost of the repair or replacement.

2. For each and every part of the improvement which you contend must be repaired or replaced, identify all persons and entities you contend are responsible, in whole or in part, for causing or contributing to the condition which you believe must be repaired or replaced. For each such person and entity identified, specify exactly what you believe they did or did not do that caused or contributed to the condition; what you believe they should have done instead of what they did; what action you have already taken to repair or replace the portion of the improvement; the cost of what you have already done to repair or replace the portion of the improvement; the identity of all persons and entities who performed the repairs or replacements; what is recommended that you do to repair or replace the condition, and the estimated cost of the repair or replacement.

3. For each component of damages which you are seeking in this case, identify all persons you contend are responsible for causing the damage. For each person identified, specify the portion and dollar amount of the damage which you contend they caused.

4. For every item designated within the report of Jeff G. Hooper electronically signed as of March 26, 2012, identify all persons you claim are responsible for the item, the damages which you believe are attributable to each item, and the damages which you believe were caused by each person.

5. For each separate item and corresponding dollar amount contained within the report/price list of Claim Specialists, Inc. which you have produced in this case, identify all persons you believe have caused, in whole or in part, the damage, and the percentage interest of the damage which you believe each person identified caused.

In each case, the subparts in the prior interrogatories propounded by WB were logically related to the primary Question. That is also the case with the five interrogatories contained in the Fourth Set of Interrogatories which are the subject of the instant motion. These seek information concerning the damages Porto Venezia attributes to defendants in the state court action, and the costs it has incurred or will incur to repair such damage (Question 1); the persons or entities responsible for causing the damage to the improvements and how they are responsible, as well as the costs it has already incurred or will incur to repair or replace the damage (Question 2); the identity of the persons responsible for causing the damage specifying the amount of the damage caused by them (Question 3); the identity of the persons responsible for damages designated in Jeff G. Hooper’s report, and the amount caused by each person (Question 4), and the identity of the persons responsible for the damage listed within the report/price list of Claim Specialists, Inc. and the percentage of the damage caused by each person identified (Question 5). Each of these questions seek to elicit details concerning a common theme, and therefore can be counted as single questions for purposes of Rule 33.

Porto Venezia Condo. Ass’n, Inc. v. WB Fort Lauderdale, LLC, 11-60665-CIV, 2012 WL 7635868, at *5 (S.D. Fla. 2012).

The Court in Karakis v. Hallandale Lanes Mgmt., Inc., 0961192CIVUNGAROSIMO, 2010 WL 785810, at *1-4 (S.D. Fla. 2010) found the following interrogatories to be single questions (not multiple questions):

A. Interrogatory 2

Hallandale Lanes asks for specific information concerning Plaintiff’s mobility disability.

 

B. Interrogatory 3

Hallandale Lanes asks for specific information concerning Plaintiff’s medical care for the previous five years. 

C. Interrogatory 4

Hallandale Lanes asks for specific information concerning each visit which Plaintiff has made to the subject property since his original diagnosis, including who accompanied him to the property, how he got there, what he did there, and how much money he spent there.

D. Interrogatory 5

Hallandale Lanes asks Plaintiff to identify every receipt he received showing his purchases at the subject property and for information regarding any credit or debit card he used there.

E. Interrogatory 6

Hallandale Lanes asks for specific facts which support Plaintiff’s allegation in paragraph 11 of the Second Amended Complaint that the Subject Facility has undergone substantial remodeling, repairs or alterations since January 26, 1990. 

F. Interrogatory 7

Hallandale Lanes asks for the name of the experts Plaintiff intends to call at trial, the dates and times that they visited the subject property, the substance of their opinions and identify any reports they have prepared regarding the subject property, including all email correspondence. 

G. Interrogatory 8

Hallandale Lanes asks Plaintiff to describe in detail the remediation he proposes as a readily achievable solution to the barrier named in paragraph 15(v) of the Second Amended Complaint.

 

H. Interrogatory 11

Hallandale Lanes asks Plaintiff to describe in detail each lawsuit he has filed since the inception of the ADA, including the dates of original visits to each location and each subsequent visit to each location, even after the conclusion of the lawsuit.

I. Interrogatory 16

Hallandale Lanes asks Plaintiff to identify with specificity every bowling alley he has visited in the previous five years.

________________________

While these are just some of the many examples to help you appreciate how you draft interrogatories, the “subpart” test is not easy to determine, and there will be continued arguments about what subparts constitute separate questions.  

Boilerplate Objections

While many still use inappropriate broad-based language objections, these kinds of objections (“overbroad,” “vague,” etc.) are despicably insufficient in the absence of explanation accompanying/explaining such objection. For example, case law around the country has held that use of the words such as “overbroad” as blanket objections is improper. See, e.g., First City Developments of Florida, Inc. v. Hallmark of Hollywood Condominium Ass’n, Inc., 545 So.2d 502, 503 (Fla. 4th DCA 1989) (use of words like “overbroad” for blanket objections are improper as “such words of art have little meaning without substantive support.”); Richardson v. Nath, Not Reported in So.2d, 2005 WL 408132 (Fla. Cir. Ct. 2005) (the scope of request limited to medical incidents involving the defendant “is clearly not overbroad in that it is limited to conduct of the Defendant and is not seeking information relating to any and all adverse medical incidents at St. Anthony’s. It is well established that as long as there is a connection between the discovery sought and the injury claimed, the request is likely not over broad”). One example of an explanation in a federal court decision reiterates this obvious and important reality:

The Parties shall not make nonspecific, boilerplate objections. Such objections do not comply with Local Rule 26.1 G.3.(a) which provides, “Where an objection is made to any interrogatory or sub-part thereof or to any document request under Federal Rule of Civil Procedure 34, the objection shall state with specificity all grounds.” Objections that state that a discovery request is “vague, overly broad, or unduly burdensome” are, standing alone, meaningless, and will be found meritless by this Court. A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly broad, or unduly burdensome. See Fed.R.Civ.P. 33(b)(4) and Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir.1982) (“[T]he mere statement by a party that the interrogatory was ‘overly broad, burdensome, oppressive and irrelevant’ is not adequate to voice a successful objection to an interrogatory. On the contrary, the party resisting discovery ‘must show specifically how … each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive.’ ” [citation omitted] ). If a party believes that the request is vague, that party shall attempt to obtain clarification prior to objecting on this ground.

Consumer Elecs. Ass’n v. Compras & Buys Magazine, Inc., 08-21085-CIV, 2008 WL 4327253, at *2 (S.D. Fla. 2008).  

Courts across the country agree that these “[b]road-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.” Harding v. Dana Transport, Inc., 914 F.Supp. 1084, 1102 (D.N.J. 1996). The making of such objections is prohibited, and the “prohibition against general or blanket objections to discovery have to discovery have long been established.” Hall v. La., 2014 U.S. Dist. LEXIS 77180, at *1 (M.D. La. June 6, 2014). This prohibition is concusively settled law in the Eleventh Circuit. See e.g., Panola Land Buyers Association v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (“merely conclusory” assertion that “requests for production of documents and interrogatories are unnecessary, too long, too broad, require too much time, are expensive to complete, are irrelevant, are improperly timed, and entail unreasonable geographic compliance” are not made with “sufficient specificity” required by law); Bank of Mongolia v. M & P Global Financial Servs., Inc., 258 F.R.D. 514, 519 (S.D. Fla. 2009) (“Objections that state that a discovery request is ‘vague, overly broad, or unduly burdensome are, standing alone, meaningless and fail to comply with both the Local Rules and Rule 34’s requirement that objections contain an statement of reasons. A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly broad or unduly burdensome … [and] claims of undue burden should be supported by a statement (generally an affidavit) with specific information demonstrating how the request is overly burdensome.”); Thermoset Corp. v. Building Materials Corp. of America, 2014 U.S. Dist. LEXIS 161343, at *7 (S.D. Fla. Nov. 18, 2014) (citation omitted) (“ ‘Objections that state, without providing any detail that a discovery request is overly broad, unduly burdensome or not relevant … are meaningless.’ Such boilerplate objections, without more, ‘are inadequate and tantamount to not making any objection at all.’ ”); Consumer Electronics Ass’n v. Compras & Buys Magazine, Inc., 2008 U.S. Dist LEXIS 80465, at *5 (S.D. Fla. Sept. 18, 2008) (“Objections that state that a discovery request is ‘vague, overly broad, or unduly burdensome are, standing alone, meaningless, and will be found to be meritless by the court.”); In re Matter of the Application of Galina Weber, 2008 U.S. Dist. LEXIS 31067, at *14-15 (M.D. Fla. Apr. 15, 2008 (party objecting on the basis that discovery is overbroad, unduly burdensome and oppressive must submit detailed affidavit or other evidence the substantiate establishing their claim); St. Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (“[T]he mere statement by a party that the interrogatory was ‘overly broad, burdensome, oppressive and irrelevant’ is not adequate to voice a successful objection to an interrogatory.”); McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990) (rejecting validity of boilerplate objections and holding that the “party resisting discovery must show specifically how . . . each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive” and then stating that “[w]e see no reason to distinguish the standards governing responses to interrogatories from those that govern responses to production requests.”) [citation omitted]; Heller v. City of Dallas, 303 F.R.D. 466, 483 (N.D. Tex. 2014) (“A party resisting discovery must show specifically how each interrogatory or document request is overly broad, unduly burdensome, or oppressive. This requires the party resisting discovery to show how the requested discovery was overly broad, unduly burdensome, or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. Failing to do so … makes such an unsupported objection nothing more than an unsustainable boilerplate.”); Mills v. east Coast Preparation Co., 259 F.R.D. 118, 132 (S.D. W.Va. 2009) (“Objections to [discovery requests] must be stated specifically, and boilerplate objections regurgitating words and phrases from Rule 26 are completely unacceptable.”); Panola Land Buyers Ass’n v. Shuman, 762 F.2d 1550, 1559 (11th Cir. 1985) (reversing a protective order where the objections to requests for production of documents and interrogatories were that they were “unnecessary, too long, too broad, require too much time, are expensive to complete, are irrelevant, are improperly timed, and entail unreasonable geographic compliance”); Henderson, 269 F.R.D. at 686 (rejecting discovery objections that the requests were “overbroad,” “irrelevant,” “vague,” and “ambiguous” in absence of any evidence proving otherwise).

In fact, not a single modern authority could be located to support the proposition that boilerplate objection are permissible or cognizable.

Such objections can serve as the basis for sanctions awards.  For example, consider the federal court decision in St. Paul Reinsurance Company, Ltd. v. Commercial Financial Corp., 198 F.R.D. 508 (N.D. Iowa 2000), where the district court, upon its own initiative in that case, sanctioned the plaintiff’s for repeatedly serving the following boilerplate discovery response:

St. Paul objects to this request on the ground that this request is oppressive, burdensome and harassing. St. Paul further objects to this request on the ground that it is vague, ambiguous and unintelligible. St. Paul further objects that the request is overbroad and without reasonable limitation in scope or time frame. St. Paul further objects that the request seeks information that is protected from disclosure by the attorney-client privilege, the attorney work product doctrine and/or the joint interest or joint defense privilege. St. Paul further objects to this request on the ground that the request seeks information and documents equally available to the propounding parties from their own records or from records which are equally available to the propounding parties. St. Paul further objects that this request fails to designate the documents to be produced with reasonable particularity.

St. Paul Reinsurance Company, Ltd., 198 F.R.D. at 512. The court opened its discussion of these objections by stating “In every respect these objections are text-book examples of what federal courts have routinely deemed to be improper objections.Id (emphasis added). In sanctioning counsel for serving the above boilerplate objections, the Court noted the following:

The court finds that under an objective standard of reasonableness, counsel’s certification of the objections he asserted on behalf of the plaintiff’s plummet far below any objective standard of reasonableness. Indeed, every single objection is not only obstructionist and frivolous, but, as demonstrated above, is contrary to the Federal Rules of Evidence and well-established federal law. Under an objective standard, therefore, these objections unequivocally demonstrate plaintiffs’ obstructionist attitude towards discovery in this case and further indicate to the court that they were interposed for an improper purpose.

Id. at 516.

You Must Timely Object (Objections Pass the Time Limit are Deemed Waived) 

“It is well established that a failure to [properly] object to discovery requests within the time required constitutes as waiver of any objection.” Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992); In re U.S., 864 F.2d 1153, 1156 (5th Cir. 1989) (“[A]s a general rule, when a party fails to object timely to interrogatories, requests for production, or other discovery efforts, objections thereto are waived.”); Davis v. Romney, 53 F.R.D. 247, 248 (E.D. Pa. 1971) (The failure to object within the requisite time to respond “to the questions set forth in the interrogatories clearly must be considered a waiver by the defendants of any objections they might have had.” “Regardless of how outrageous or how embarrassing the questions may be, defendants have long since lost their opportunity to object to these questions. If they feel that the questions are unfair they have no one to blame but themselves for being required to answer them now.”). 

Consistent with the above dictates, if you lodge insufficiently specific objections, this can also be deemed a waiver of such objections. See Local Rule of Civil Procedure 26.1(g)(3) (“Where an objection is made to any interrogatory or to any request for production, the objection shall state with specificity all grounds … [and any such] ground not stated in an objection within the time provided by the Federal Rules of Civil Procedure, or any extensions, thereof, shall be waived.”); Mancia, 253 F.R.D. at 364 (the making of “boilerplate objections to [p]laintiffs document requests” “waived any legitimate objection [d]efendant … may have had”); Hall v. Sullivan, 231 F.R.D. 468, 473-74 (D. Md. 2005) (failure to object with particularity to document request waives objection); Ritacca v. Abbott Laboratories, 203 F.R.D. 332, 335 n.4 (N.D. Ill. 2001) (“As courts have repeatedly pointed out, blanket objections are patently improper [and are treated] as if they were never made.”); Walker v. Lakewood Condominium Owners Assoc., 186 F.R.D 584, 587 (C.D. Cal. 1999) (“Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all.”); Marens v. Carraba’s Italian Grill, Inc., 196 F.R.D. 35, 38 (D. Md. 2000) (a party that objects to a discovery request in general but fails to particularize the grounds of the objections is deemed to have waived the right to object).

Detail is critical, even when making objections based on language that a discovery request is irrelevant and not reasonably calculated to lead to admissible evidence (i.e.,, must include a specific explanation describing why the request lacks relevance and why the information sought will not reasonably lead to admissible evidence). See Consumer Elecs. Ass’n v. Compras & Buys Magazine, Inc., 08-21085-CIV, 2008 WL 4327253, at *3 (S.D. Fla. 2008), citing to Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 351-52, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978); see also Local Rule 26.1 G.3.(a). Accord Fischer v. Hofmann Wholesale Nurseries, Inc., 487 So.2d 413 (Fla. 4th DCA 1986) (interrogatory asking accountant to break down hours he worked for clients sought relevant information and was not unduly burdensome).

An Objection that You are Not in Possession of the Documents is Not Always Appropriate

Courts around the country agree that you may have to produce documents that are in the possession of third parties. Palm Beach Newspapers, Inc. v. Burk, 471 So.2d 571, 576 (Fla. 4th DCA 1985) (“relevant information in the hands of third parties may be subject to discovery”); XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578, 581 (Fla. 1st DCA 2006) (requiring Defendant to produce discovery in the possession of third parties); Fort Washington Resources, Inc. v. Tannen, 153 F.R.D. 78, 79 (E.D. Pa. 1994) (“It is not bar to discovery of relevant material that same material may be in possession of requesting party or obtainable from another source”).

Not Appropriate to Object on the Basis that Information is “Publicly Available”

Courts around the country have also repeatedly held that parties may not avoid responding to discovery by claiming that the information is “publicly available.”  See e.g., Federal Deposit Ins. Corp. v. Renda, 126 F.R.D. 70, 72 (D. Kan. 1989) (defendant’s refusal to produce documents improper, as plaintiffs are entitled to review those documents which are in defendant’s control regardless of whether plaintiffs are in possession of certain documents which they requested from defendants); Coastal Lumber Co. v. Johnson, 669 So.2d 803, 812 (Ala. 1995) (citing United States v. Procter & Gable Co., 356 U.S. 677 (1958)) (finding impermissible for responding parties to claim the information is publicly available or “equally available to the propounding parties from their own records or from records which are equally available to the propounding parties,” as a justification for not fully answering discovery); NEC America, Inc. v. U.S. 636 F. Supp. 476 (U.S. Ct. Int’l Trade 1986) (the court ruled that even though the requested information was publicly available, it did not render the interrogatories objectionable: “it is likely that plaintiff has a current curriculum vitae and list of published writings for each of its witnesses, or can easily obtain them.  It is a minimal burden for plaintiff to provide the requested information.”); Milner v. Nat’l School of Health Tech., 73 F.R.D. 628 (E.D. Penn. 1977) (“In a suit where the plaintiff moved to compel answers to interrogatories and to produce documents: The judge “considered defendants other objections to certain interrogatories and document requests on the grounds of equal availability, public records, plaintiff’s own knowledge and that the proper discovery device is depositions.  These objections, on the state of this records, are so clearly without merit as not to be worthy of further discussion.”); Westhemeco v. New Hampshire Ins. Co., 82 F.R.D. 702, 710 (S.D.N.Y. 1979) (plaintiff’s possession of requested documents does not preclude plaintiff’s request that defendant identify them, absent a showing of bad faith or harassment).

How Documents Must Be Produced

There is some debate about what it means to produce documents in usable format. For example, there are federal decisions that seem to hold that there is no duty to provide translations for documents in different languages.  See, e.g., See Anazonwu v. Nissan N. Am., Inc., No. 3:05CV147/MCR/EMT, 2006 WL 6035749 (N.D. Fla. June 26, 2006) (denying a plaintiff’s request for an order compelling the responding party to translate documents from Japanese into English).Briese Lichttechnik Vertriebs GmbH v. Langton, 272 F.R.D. 369, 374 n.4 (S.D.N.Y. 2011) (noting that “for discovery purposes plaintiffs have no obligation to provide translations of the German language documents”); Nature’s Plus Nordic A/S v. Natural Organics, Inc., 274 F.R.D. 437, 441 (E.D.N.Y. 2011) (noting that “the courts that have ruled on [this issue] have found that the party responding to document demands are under no obligation under the Federal Rules to translate documents produced,” and holding in kind); Extra Equipamentos E. Exportacao Ltda v. Case Corp., No. 01 C 8591, 2005 WL 1651738, *3 (N.D. Ill. July 1, 2005) (holding that “it would be absurd for this Court to blindly order [the plaintiff] to pay [the defendant] the cost of translating over 15,000 documents, without knowing if such documents are even relevant to this litigation” and “at least during the discovery phase, this Court does not have the authority under the federal rules to even enter such an order”); Contretas v. Isuzu Motors, Ltd. of Japan, No. CIV.SA-98-CA-442-JWP, 1999 WL 33290667, *1 (W.D. Tex. Apr. 2, 1999) (holding that “absent special circumstances, there is no authority for compelling the defendants to translate discovery documents”); Howes v. Med. Components, Inc., 698 F. Supp. 574, 580 (E.D. Pa. 1988) (holding that “[plaintiffs] cannot be compelled to translate foreign language documents for the benefit of their adversary”); In re Korean Air Lines Disaster of Sept. 1, 1983, 103 F.R.D. 357, 358 (D.D.C. 1984) (holding that “the Federal Rules do not confer upon the district court the power to require payment of translation expenses at the pretrial stage”). 

Even Blanket Objections Based on Privilege May not be Sufficient

Be extremely careful before you allow blanket “attorney-client” or other privilege objections. See, e.g., Henderson v. Holiday CVS, L.L.C., 269 F.R.D. 682, 687 (S.D. Fla. 2010) (“[T]he party seeking to assert the attorney-client privilege or the work product doctrine as a bar to discovery has the burden of establishing that either or both is applicable…. A blanket claim of privilege is improper.”); Consumer Electronics Ass’n v. Compras & Buys Magazine, Inc., 2008 U.S. Dist LEXIS 80465, at *5 (S.D. Fla. Sept. 18, 2008) (“Generalized objections asserting attorney-client or work product privilege doctrine do not comply with the Local Rules. Local Rule 26.1(G)(3)(b) requires that objections based on privilege identify the specific nature of the privilege being asserted, as well as … the nature and subject matter of the communication and the sender and receiver of the communication.” “If a general objection of privilege is made without attaching a proper privilege log, it] may be deemed waived.”); Peat, Marwick, Mitchell & Co. v. The Honorable Lee R. West, 748 F.2d 540, 542 (10th Cir. 1984); (“[W]hen asserting the [attorney-client or work product] privilege, it is incumbent upon the proponent to specifically and factually support his claim.”); In re Grand Jury Subpoena (Lipnak), 831 F.2d 225, 227 (11th Cir. 1987) (“The privilege must be asserted with respect to particular documents.”); Martinez v. Provident Life & Acc. Ins., Co., 174 F.R.D. 502 (S.D. Fla. 1997) (privilege log should be provided along with objections); Johnson v. Gross, 2015 U.S. App. LEXIS 7315, at *5 (11th Cir. May 4, 2015) Rule 26(b)(5)(A) requires that seeking to assert the work product privilege must … describe the nature of the items not produced or disclosed in a manner that will enable other parties to assess the claim); Id. at *8 (quoting In re Grand Jury Subpoena, 274 F.3d 563, 576 (1st Cir. 2001)) (“A party that fails to submit a privilege log is deemed to waive the underlying privilege claim.”); Omega Engineering, Inc. v. Omega, S.A., 2001 U.S. Dist. LEXIS 2016, at *6 (Conn. Feb. 6, 2011) (“ ‘Blanket assertions’ of [attorney-client or work product] privilege have been held insufficient to satisfy [the] burden [of the party asserting such privileges]. Instead, a party ‘must supply opposing counsel with sufficient information to assess the applicability of the privilege….’ ”); Obiajulu v. City of Rochester 166 F.R.D. 293, 294 (W.D.N.Y. 1996) (“a general claim of privilege, be it work product or attorney client, is an inadequate response to a discovery request. Federal Rule of Civil Procedure 26(B)(5) requires he party withholding information otherwise discoverable by claiming privilege to ‘describe the nature of documents … in a manner … that will enable other parties to assess the applicability of the privilege or protection’ asserted.”  See Eureka Fin. Corp. v. Hartford Accident & Indem. Co., 136 F.R.D. 179, 182-83 (E.D.Cal.1991) (a “blanket objection” to each document on the ground of attorney-client privilege with no further description is clearly insufficient); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984) (per curiam ), cert. dismissed, 469 U.S. 1199, 105 S.Ct. 983, 83 L.Ed.2d 984 (1985) (attorney-client privilege waived when defendant did not make a timely and sufficient showing that the documents were protected by privilege).

Understanding “Privileges” and How/When They Apply: The General Tendency to Permit Discovery as Buoyed by Privileges

As many cases have noted, parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. United States v. Consol. City of Jacksonville, 3:12-CV-451-J-32MCR, 2015 WL 7076695, at *3 (M.D. Fla. 2015), citing Fed.R.Civ.P. 26(b)(1). See also Grinnell Corp. v. Palms 2100 Ocean Boulevard LTD., 924 So.2d 887 (Fla. 4th DCA 2006) (Party must answer interrogatories requesting information about facts supporting denials and affirmative defenses). The overall purpose of discovery under State and the Federal Rules is to require the disclosure of all relevant information so that the ultimate resolution of disputed issues in any civil action may be based on a full and accurate understanding of the true facts. Courts construe relevancy “broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978).

While there is a liberal right to discovery, this right is subject to restrictions such as those founded on a privilege. While there are a number of “privilege” objections, let’s address the two more common ones: A) the attorney-client privilege; and B) work product privilege.

The Attorney-Client Privilege

The attorney-client privilege “is one of the oldest of the privileges for confidential communications.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 606, 175 L.Ed.2d 458 (2009) (internal marks omitted); see also Cox v. Admin. U.S. Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir.1994), modified on other grounds on reh’g, 30 F.3d 1347 (11th Cir.), and cert. denied 513 U.S. 110 (1995). It is well established that the attorney-client privilege, which serves the purpose of promoting full and frank communications between attorneys and clients, extends to corporations as well as individuals. Commodity Futures Trading Com’n v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985). The Eleventh Circuit recognizes that the attorney-client privilege, despite its value, is “an obstacle to the investigation of truth;” therefore, it is not without exceptions, Cox, 17 F.3d at 1414 (internal marks omitted), and “should be construed as narrowly as consistent with its purpose,” United States v. Suarez, 820 F.2d 1158, 1160 (11th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 505, 98 L.Ed.2d 503 (1987).

The privilege protects only confidential communications. Upjohn Co., 449 U.S. at 395–96. To invoke the privilege, the party claiming it must establish the following:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is [the] member of a bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Pensacola Firefighters’ Relief & Pension Fund Bd. of Directors v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 3:09CV53/MCR/MD, 2010 WL 4683935, at *3 (N.D. Fla. 2010), citing to In re Fed. Grand Jury Proceedings, 89–10(MIA), 938 F.2d 1578, 1581 (11th Cir.1991).  See also United States v. Noriega, 917 F.2d 1543, 1550 (11th Cir.1990). 

One of many Federal Courts (this one in Florida) has equally noted:

Under Florida law, information is protected from disclosure by the attorney-client privilege when it is a communication between a lawyer and client not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of legal services, or those reasonably necessary for the transmission of the communication. Fla. Stat. § 90.502(1)(c). Florida law defines a “lawyer” as one who is authorized, or reasonably believed by the client to be authorized, to practice law. A “client” is defined as any person, public officer, corporation, association, or other organization or entity, either public or private, who consults a lawyer with the purpose of obtaining legal services or who is rendered legal services by a lawyer. Fla. Stat. § 90.502(1)(a)-(b).

Tyne v. Time Warner Entm’t Co., L.P., 212 F.R.D. 596, 598 (M.D. Fla. 2002)

Generally, “[t]he attorney-client privilege attaches only to communications made in confidence to an attorney by that attorney’s client for the purposes of securing legal advice or assistance.” In re Grand Jury Investigation (Schroeder), 842 F.2d 1223, 1224 (11th Cir. 1987).  Additionally noteworthy, “courts have found that communications are not privileged when the lawyer is retained to do tasks that nonlawyers can also do.” Federal Rules of Evidence Manual 501.02(5)(b).

Confidential communications by non-lawyers … for the purpose of assisting the lawyers to provide legal advice are also protected by the attorney-client privilege.” Design Basics LLC v. Campbellsport Bldg. Supply Inc., 13-C-560, 2015 WL 5158676, at *2 (E.D. Wis. 2015), citing to

Schlicksup v. Caterpillar, Inc., No. 09–CV–1208, 2011 WL 4007670, at *2 (C.D.Ill. Sept.9, 2011) (regarding an accounting firm, citing United States v. Kovel, 296 F.2d 918, 922 (2d Cir.1961) (accountant’s assistance was protected by the attorney-client privilege where it enabled “effective consultation between the client and the lawyer”)). See also United States v. McPartlin, 595 F.2d 1321, 1337 (7th Cir.1979) (regarding investigators: “It has never been questioned that the privilege protects communications to the attorney’s … agents … for rendering his services.” (quoting 8 Wigmore, Evidence § 2301, 583 (McNaughton rev.1961).)).

Interesting questions arise when there are multiple parties from a corporation on documents (such as electronic transmissions).  While state and federal courts have varying tests, we will utilize the Florida Supreme Court version (also citing to other federal cases around the country) as an example. Southern Bell Tel. & Tel. v. Deason, 632 So.2d 1377, 1383 (Fla. 1994) established a “subject matter” criteria (rejecting the “control group” criteria) in a five-factor test to judge whether a corporation’s communications are protected by the attorney-client privilege:

(1) the communication would not have been made but for the contemplation of legal services;

(2) the employee making the communication did so at the direction of his or her corporate superior;

(3) the superior made the request of the employee as part of the corporation’s effort to secure legal advice or services;

(4) the content of the communication relates to the legal services being rendered, and the subject matter of the communication is within the scope of the employee’s duties;

(5) the communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Southern Bell Tel. & Tel. v. Deason, 632 So.2d 1377, 1383 (Fla. 1994) (citing Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487 (7th Cir. 1970), aff’d per curiam by an equally divided court, 400 U.S. 348 (1971); Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977)). See also Tomkins Indus., Inc. v. Warren Tech., Inc., 768 So. 2d 1125, 1125-26 (Fla. 3d DCA 2000) (“We hold that the communication in this case satisfies the test enunciated in Southern Bell Tel. & Tel. v. Deason, 632 So.2d 1377 (Fla.1994), for determining whether a communication between corporate employees and corporate counsel is protected by the attorney-client privilege.”) Affordable Bio Feedstock, Inc. v. Darling Intern. Inc., 6:11-CV-1301-ORL-28, 2012 WL 5845007, at *4 (M.D. Fla. 2012) (similarly applying Deason when determining whether the communication between nonlawyers and attorneys). 

Equally true, some Federal Courts have noted that the attorney-client privilege may apply to communications to nonlawyers (who represent the company).  In re Denture Cream Products Liab. Litig., 09-2051-MD, 2012 WL 5057844, at *12-13 (S.D. Fla. 2012), citing to In re Vioxx, 501 F.Supp.2d 789, 796 (E.D.La.2007).  As the Court noted:

The fictitious legal entity is the client that cannot speak, but that entity is personified by the employees who represent its interests and speak on its behalf. Consequently, it protects communications between those employees and corporate legal counsel on matters within the scope of their corporate responsibilities, as well as communications between corporate employees in which prior advice received is being transmitted to those who have a need to know in the scope of their corporate responsibilities.

In re Vioxx, 501 F.Supp.2d 789, 796 (E.D.La.2007).

In addition, as stated in U.S. v. Lockheed Martin Corp., 995 F.Supp. 1460, 1464 (M.D.Fla.1988), “The Supreme Court [has] established that privileged communications are not limited to those in control of the corporation. When executives who will act on legal advice direct lower level employees to provide information to counsel, those communications (though not the underlying information) may qualify for the privilege.”Id., citing Upjohn Co. v. United States, 449 U.S. 383 (1981).

Similarly, simply because a communication is made between two corporate employees, neither of whom are attorneys, that fact is not determinative of whether that communication primarily involves business advice rather than legal advice for purposes of applying the attorney-client privilege to that correspondence. To conclude otherwise would result in a somewhat absurd finding that a document generated for purposes of obtaining and/or assisting in the transmission of legal advice would not only lose its privileged character, but would be artificially viewed as primarily a business communication merely because the author and recipient were not attorneys. Thus, the Plaintiffs’ contention that the absence of an attorney on a particular correspondence or document renders that document discoverable as it cannot satisfy the “legal advice or services” requirement of Florida’s attorney-client privilege law, is without merit.

In re Denture Cream Products Liab. Litig., 09-2051-MD, 2012 WL 5057844, at *12-13 (S.D. Fla. 2012).  Accord Tyne v. Time Warner Entm’t Co., L.P., 212 F.R.D. 596 (M.D.Fla.2002) (applying the Deason subject matter test to determine whether certain correspondence between non-attorneys sought from a corporation during discovery was protected under Florida’s attorney-client privilege; finding protection based on statements of the head of the corporation’s legal department who testified that the non-attorney, who authored the disputed documents, had direct, daily contact with him, and regularly consulted with attorneys on issues before passing the information on to other non-legal employees); Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684, 696 (S.D.Fla.2009) (finding certain emails protected by the Florida attorney-client privilege despite the fact that the emails were sent between two employees). See also Santrade, Ltd., v. General Elec. Co., 150 F.R.D. 539, 545 (E.D.N.C.1993) (“in instances where the client is a corporation, documents subject to the privilege may be transmitted between non-attorneys to relay information requested by attorneys” and “documents subject to the privilege may be transmitted between non-attorneys [especially individuals involved in corporate decision-making] so that the corporation may be properly informed of legal advice and act appropriately.”)

The burden of establishing the attorney-client privilege rests on the party claiming it. Deason, 632 So.2d at 1383. That party “has the burden of establishing the existence of each element of the privilege.” Nelson v. Womble, 657 So. 2d 1221, 1222 n.1 (Fla. 5th DCA 1995) (citing Deason, 632 So. 2d at 1383). See also Gen. Motors Corp. v. McGee, 837 So.2d 1010, 1031 (Fla. 4th DCA 2002) (noting that, to invoke the attorney-client privilege in the corporate context, a party must demonstrate all five Deason elements); Fla. Sheriff’s Self-Ins. Fund v. Escambia Crity., 585 So.2d 461, 463 (Fla. 1st DCA 1991) (noting that a party claiming privilege must “establish the existence of each element of the privilege in question”).  See also MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 592 (S.D. Fla. 2013) (“Plaintiffs have failed to offer evidence that all of these allegedly privileged communications were from an agent of Plaintiffs to or from Akerman Senterfitt attorneys specifically for the primary purpose of seeking legal advice, i.e., the communication would not have been made “but for” the contemplation of legal services. Deason, 632 So.2d at 1383. Plaintiffs bear the burden of establishing, by a preponderance of the evidence that the privilege applies and generally have failed to do so.”); St. Joe Co. v. Liberty Mut. Ins. Co., 305-CV-1266J-25MCR, 2006 WL 3391208, at *5 (M.D. Fla. 2006) enforcement granted in part, denied in part, 3:05CV1266 J25MCR, 2007 WL 141282 (M.D. Fla. 2007) (“Admittedly, some of the withheld documents which are communications between counsel and Defendant’s employees may in fact be communications relating to legal services which should be protected by the attorney-client privilege; however, Defendant has failed to meet its burden of proof. For instance, Defendant has failed to specify or allege that the communications have not been disseminated beyond those persons who because of the corporate structure, need to know its contents. Additionally, with respect to several of the documents, Defendant has failed to provide adequate descriptions of the subject matter in order to show the communication involved legal advice as opposed to business advice or some other matter. Likewise, Defendant has failed to adequately identify the positions of some of the author and/or recipients of the documents.”)

The burden of proof rests squarely on the party claiming the attorney-client privilege to show that the primary purpose of the communication in question was for the purpose of obtaining legal advice, not business advice. See In re Denture Cream Products Liab. Litig., 09-2051-MD, 2012 WL 5057844, at *6 (S.D. Fla. 2012), citing to Carpenter v. Mohawk Indus., Inc., No. 4:07–CV–0049–HLM, 2007 WL 5971741, at *9 (N.D.Ga. Oct. 1, 2007) (“When advice given by an attorney relates to both business and legal matters, the legal advice must predominate in order for the attorney-client privilege to apply.”); Hasty v. Lockheed Martin Corp., No. Civ. A. 98–1950, 1999 WL 600322, at *2 (E.D.La. Aug. 6, 1999) (“[T]he business aspects of [a corporate] decision are not protected simply because legal considerations are also involved;” and, “in those cases where the document does not contain sufficient information to indicate whether the material was considered confidential, that material should not be privileged.”).

The presence of that purpose is determined from inspection of the document. Adams v. Gateway, Inc., 2:02-CV-106 TS, 2003 WL 23787856, at *11 (D. Utah 2003). Where “an inspection of the document itself fails to support a finding that the primary purpose of the document was to seek legal advice or services” the privilege will be denied. Id. For a communication between non-attorney employees to be held privileged, it must be “apparent that the communication from one employee to another was for the purpose of the second employee transmitting the information to counsel for advice” or the document itself must “reflect the requests and directions of counsel.” Id.

To satisfy the burden of establishing the privilege, the party asserting the privilege must make an “evidentiary showing based on competent evidence,” rather than “mere conclusory or ipse dixit assertions.” United States v. Consol. City of Jacksonville, 3:12-CV-451-J-32MCR, 2015 WL 7076695, at *4 (M.D. Fla. 2015), quoting CSX Transp., Inc. v. Admiral Ins. Co., 1995 WL 855421, at *1 (M.D. Fla. July 20, 1995) (internal quotations and citations omitted). The party asserting the privilege must provide the court with underlying facts demonstrating the existence of the privilege, which may be accomplished by an affidavit. See Consol. City of Jacksonville, citing United States v. Osborn, 561 F.2d 1334, 1339 (9th Cir. 1977). “Unless the affidavit is precise to bring the document within the rule, the Court has no basis on which to weigh the applicability of the claim of privilege. An improperly asserted claim of privilege is no claim of privilege at all.”  See Consol. City of Jacksonville, citing Int’l Paper Co. v. Fibreboard Corp., 63 F.R.D. 88, 94 (D. Del. 1974).

Accord Prowess, Inc. v. Raysearch Labs. AB, CIV. WDQ-11-1357, 2013 WL 509021, at *2 (D. Md. 2013), citing to Neuberger Berman Real Estate Income Fund, Inc. v. Lola Brown Trust No. 1B, 230 F.R.D. 398, 409–10 (D.Md.2005) (holding that the party asserting the attorney-client privilege must prove that the privilege applies “by way of evidence, not just argument.”).

The Work-Product Privilege

While there are many state and federal cases that explain the privilege, the Court in United States v. Consol. City of Jacksonville, 3:12-CV-451-J-32MCR, 2015 WL 7076695 (M.D. Fla. 2015) neatly set out the work product doctrine (privilege):

“The work product doctrine was created to allow attorneys to make careful and thoughtful preparation for litigation, without fear that their adversaries will unfairly benefit from their efforts.” Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. Fla. 2011) (citing Hickman v. Taylor, 329 U.S. 495, 510-11 (1947)). The doctrine was first recognized by the Supreme Court in Hickman v. Taylor and is now also codified in Fed.R.Civ.P. 26(b)(3). It offers qualified protection for materials that are: (1) documents or tangible things, (2) prepared in anticipation of litigation, (3) by or for a party or its representative.4Bridgewater, 286 F.R.D. at 639. “[L]itigation need not necessarily be imminent,…as long as the primary motivating purpose behind the creation of the document was to aid in possible litigation.” Hancock Bank v. Hill Street, L.L.C., 2013 WL 6815055, *6 (M.D. Fla. Dec. 24, 2013) (citing United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981)). But see In re: Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998) (“The ‘testing question’ for the work-product privilege…is ‘whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ”) (emphasis added).

“Documents created for a concurrent purpose, i.e., not made ‘because of’ the anticipation of litigation but rather for other purposes in addition to the preparation for litigation, are not protected by work-product immunity.” Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 621 (S.D. Fla. 2013). Also, “documents drafted in the ordinary course of business are not protected.” In re Denture Cream Prods. Liab. Litig., 2012 WL 5057844, *7 (S.D. Fla. Oct. 18, 2012); see also AARP v. Kramer Lead Mktg. Grp., 2005 U.S. Dist. LEXIS 36970, *6, 2005 WL 1785199 (M.D. Fla. July 26, 2005) (stating that work product protections “typically apply only to documents prepared principally or exclusively to assist in anticipated or ongoing litigation’ ”). As such, the Court “must determine what purpose was the ‘driving force’ behind the creation of the document.” Tillman, Case No.: 3:13-cv-222-J-34JBT, at 9 (citing United States v. Roxworthy, 457 F.3d 590, 595 (6th Cir. 2006)).

However, these materials may be discovered if they are otherwise discoverable under Rule 26(b)(1), and the party shows that it has substantial need for the materials and cannot obtain them, or their substantial equivalent, by other means without undue hardship. Fed.R.Civ.P. 26(b)(3)(A). Further, “the word product doctrine does not protect facts contained in documents prepared in anticipation of litigation.” In re Denture Cream Prods. Liab. Litig., 2012 WL 5057844, at *7; see also In re: Sealed Case, 146 F.3d at 888 (“With respect to documents the court finds to have been prepared ‘in anticipation of litigation,’ the court should examine them…to determine whether they contain purely factual materials, or instead represent the opinions, judgments, and thought processes of counsel.”).

Id. at *4-5. [internal citations omitted].

The work-product privilege is intended to prevent a litigant from taking a free ride on the research and thinking of his opponent’s lawyer and to avoid the resulting deterrent to a lawyer’s committing his thoughts to paper. United States v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999), citing United States v. Nobles, 422 U.S. 225, 236–39, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Hickman v. Taylor, 329 U.S. 495, 510–11, 67 S.Ct. 385, 91 L.Ed. 451 (1947); id. at 516, 67 S.Ct. 385 (Jackson, J., concurring). See also Millard Mall Services, Inc. v. Bolda, 155 So. 3d 1272, 1274-75 (Fla. 4th DCA 2015) (“The rationale supporting the work product doctrine is that ‘one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’ ”) (citing Deason, 632 So.2d at 1384).

Communications from a client that neither reflect the lawyer’s thinking nor are made for the purpose of eliciting the lawyer’s professional advice or other legal assistance are not privileged.  United States v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999).

Although the work product privilege was developed to protect the work of an attorney prepared in anticipation of litigation, Binks Mfg. Co. v. Nat.’l Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir.1983), its protection has been extended to the work of both lawyers and nonlawyers. See Fed.R.Civ.P. 26(b)(3)’s 1970 advisory committee’s note (“[T]he weight of authority affords protection of the preparatory work of both lawyers and nonlawyers….”). See also Logan v. Commercial Union Ins. Co., 96 F.3d 971, 977 (7th Cir.1996).  Thus, the work-product doctrine can apply to preparatory work performed not only by attorneys, but also, in some circumstances by nonlawyers, United States v. Nobles, 422 U.S. 225, 238–239, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), and “does not distinguish between factual and deliberative material,” Martin v. Office of Special Counsel, 819 F.2d 1181, 1187 (D.C.Cir.1987). 

Indeed, as noted by the Court in In re Denture Cream Products Liab. Litig., 09-2051-MD, 2012 WL 5057844, (S.D. Fla. 2012): 

As stated in Lafarge North America, Inc. v. Matraco–Colorado, Inc., No. 07–80112–CIV, 2008 WL 2474638 at * 5 (S.D. Fla. June 19, 2008), “[I]n addition to the attorney-client privilege, protection is afforded to attorney work product. Materials prepared by a party’s representative, including his or her designated agent, to aid in anticipated or pending litigation will be protected from disclosure unless the party seeking discovery shows substantial need for the materials and cannot acquire a substantial equivalent without undue hardship.” Id. citing Hickman v. Taylor, 329 U.S. 495, 511 (1947); Fed.R.Civ.P. 26(b)(3)(A). Thus, the work product doctrine, as interpreted in case law, and explicitly set forth in Fed.R.Civ.P. 26(b)(3), does not require that the withheld document be prepared by an attorney, or even reviewed by an attorney.

In addition, litigation need not be already initiated in order for the work product doctrine to apply. In Tyne, for example, the Court concluded that to the extent that the undisclosed documents were not protected by the Florida attorney-client privilege, they could be protected by the work product doctrine. In reaching this conclusion, the Court stated,

Finally, even if the documents were not protected from discovery by the attorney-client privilege, they may be protected by the work product doctrine. While many of the documents are created and circulated with the purpose of avoiding litigation, some documents indicate that specific litigation had been overtly threatened. Many, if not all, of the documents are protected by the work product doctrine because they were developed in order to avoid, and eventually to defend against, threatened or anticipated litigation. The production companies accurately anticipate that they may be sued for misuse of certain material in their films. The legal department analyzes the legal risks of including such material in the film, and either obtains what it believes to be adequate clearance, or recommends that the studio not include the material in the film. The work product associated with this process is produced in anticipation of litigation, and is protected from discovery. Plaintiffs have failed to demonstrate need and undue hardship in order to overcome that protection.

Id. at 601. 

It is significant that the Court focused on whether the work performed was in anticipation of litigation, even if no litigation was ultimately commenced on the particular issue.

Id. at *13-14.  

Work-product protection extends to information gathered in anticipation of litigation by corporate non-attorney employees, including employees of a corporation’s risk management department. See, e.g, Metric Eng’g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003); Fla. E. Coast Ry. v. Jones, 847 So.2d 1118, 1118 (Fla. 1st DCA 2003); Royal Caribbean Cruises, Ltd. v. Doe, 964 So.2d 713, 718 (Fla. 3d DCA 2007) (incident reports created by employees and filed with the risk management department to be used to defend against potential litigation are protected as work-product); Snyder v. Value Rent–A–Car, 736 So.2d 780, 781 (Fla. 4th DCA 1999). See also Dist. Bd. of Trs. of Miami–Dade Cmty. Coll. v. Chao, 739 So.2d 105, 107 (Fla. 3d DCA 1999) (even if a specific claim has not been filed, sending documents to a risk management department anticipates litigation); City of Sarasota v. Colbert, 97 So.2d 872, 874 (Fla. 2d DCA 1957). In Chao, the report of a student’s slip and fall in a college hallway did not lose its work product character even though these reports were routed to departments other than the risk management department, such as the security department and the custodial supervisor, in order that remedial measures could be taken. 739 So.2d at 107.

The work-product doctrine gives qualified protection to documents prepared in anticipation of litigation. Am. Family Mut. Ins. Co. v. Electrolux Home Products, Inc., 11-CV-678-SLC, 2014 WL 3513243, at *2 (W.D. Wis. 2014), citing Binks Mfg. Co. v. National Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir.1983). The doctrine is broader in scope than the attorney-client privilege. United States v. Nobles, 422 U.S. 225, 238 n. 11 (1975) (citing Hickman v. Taylor, 329 U.S. 495 (1947)). Although the work product privilege developed to protect the work of an attorney from encroachment by opposing counsel, See Electrolux Home Products, citing Binks, 709 F.2d at 1118, its protection has been extended to the work of both lawyers and nonlawyers. Fed.R.Civ.P. 26(b)(3) advisory committee’s note (“[T]he weight of authority affords protection of the preparatory work of both lawyers and nonlawyers….”). See also Millard Mall Services, Inc. v. Bolda, 155 So. 3d 1272, 1275 (Fla. 4th DCA 2015) (also citing other cases) (Work-product protection extends to information gathered in anticipation of litigation by corporate non-attorney employees, including employees of a corporation’s risk management department); Dist. Bd. of Trs. of Miami–Dade Cmty. Coll. v. Chao, 739 So.2d 105, 107 (Fla. 3d DCA 1999) (even if a specific claim has not been filed, sending documents to a risk management department anticipates litigation; and noting that the report of a student’s slip and fall in a college hallway did not lose its work product character even though these reports were routed to departments other than the risk management department, such as the security department and the custodial supervisor, in order that remedial measures could be taken). See also Metric Eng’g, Inc. v. Small, 861 So.2d 1248, 1250 (Fla. 1st DCA 2003); Fla. E. Coast Ry. v. Jones, 847 So.2d 1118, 1118 (Fla. 1st DCA 2003). See also Design Basics LLC v. Campbellsport Bldg. Supply Inc., 13-C-560, 2015 WL 5158676, at *1 (E.D. Wis. 2015) (same). See also Logan v. Commercial Union Ins. Co., 96 F.3d 971, 977 (7th Cir.1996) (upholding work product protection of investigation report created by insurance company in anticipation of litigation); In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3d Cir.2003) (recognizing that litigation consultants retained to aid in witness preparation may qualify as non-attorneys who are protected by the work product doctrine, including opinion work product doctrine).

The work-product doctrine protects (1) “documents and tangible things otherwise discoverable” (2) “prepared by or for another party or by or for that other party’s representative” (3) “in anticipation of litigation or for trial.” Fed.R.Civ.P. 26(b)(3). See also Electrolux Home Products, 2014 WL 3513243, at *2 (W.D. Wis. 2014)

The threshold determination in a case involving a claim of work product privilege is whether the material sought to be protected from discovery was prepared in anticipation of litigation. Id., citing Binks, 709 F.2d at 1118. “The mere fact that litigation does eventually ensue does not, by itself, cloak materials prepared by an attorney with the protection of the work product privilege; the privilege is not that broad.” Id. Rather, the test is whether the work was prepared “because of” the prospect of litigation or that “some articulable claim, likely to lead to litigation,” had arisen at the time of its preparation. Id., citing Binks, 709 F.2d at 1120 (citations omitted).  See also Shapiro v. U.S. Dept. of Justice, 969 F. Supp. 2d 18, 28-29 (D.D.C. 2013) appeal dismissed, 13-5345, 2014 WL 1378748 (D.C. Cir. 2014).

A crucial factor in determining whether the work-product doctrine applies to a compilation is whether the attorney’s selection of the contents could reveal or provide insights into the “mental processes of the attorney” in the analysis and preparation of a client’s case. Shapiro v. U.S. Dept. of Justice, 969 F. Supp. 2d 18, 32 (D.D.C. 2013) appeal dismissed, 13-5345, 2014 WL 1378748 (D.C. Cir. 2014), citing Klamath, 532 U.S. at 8, 121 S.Ct. 1060; Nobles, 422 U.S. at 238, 95 S.Ct. 2160 (“[T]he work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.”). 

There are also cases in Florida, including the Deason case cited by the MHM Defendants, supporting that a party seeking to meet its burden must provide additional evidence. See, e.g., S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1385, 1386 (Fla. 1994); Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855 (Fla. 2d DCA 1997) (Department store failed to establish that documents requested by plaintiffs in personal injury action were shielded from discovery by qualified work product privilege, where store did not present evidence to support claim that documents were prepared in anticipation of litigation.); Bankers Ins. Co. v. Florida Dept. of Ins. & Treasurer, 755 So.2d 729 (Fla. 1st DCA 2000) (privilege did not attach to communications between insurance company and its general counsel concerning investigation of an employee of the Department of Insurance, absent any evidence that general counsel undertook investigation in his professional capacity as general counsel, and not in anticipation of litigation in which company would be a party). See also Carnival Corp. v. Romero, 710 So.2d 690, 695 (Fla. 5th DCA 1998) (“We conclude that Carnival in this case failed to carry its burden of establishing that the attorney-client and work-product privileges apply to Harris or Jamerson, and that the trial court departed from the essential requirements of law in denying the blanket, general disqualification.”); Fla. Sheriffs’ Self–Ins. Fund v. Escambia County, 585 So.2d 461, 463 (Fla. 1st DCA 1991) (holding that when objections to discovery requests are based on either the work-product doctrine or the attorney-client privilege, “the burden is upon the party asserting a privilege to establish the existence of each element of the privilege in question”); First City Devs. of Fla., Inc. v. Hallmark of Hollywood Condo. Ass’n, Inc., 545 So.2d 502, 503 (Fla. 4th DCA 1989) (“[O]bjections such as attorney-client privilege or work product are viable objections, although the petitioners have the burden of proving such privileges apply, should it become an issue before the trial court.”). See also Marshalls of MA, Inc. v. Minsal, 932 So.2d 444 (Fla. 3d DCA 2006) (holding that the party asserting the work-product privilege must present substantial, competent evidence in the form of testimony or evidence to establish that the requested incident reports were prepared in anticipation of litigation); Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905, 910 (Fla. 3d DCA 2004) (holding that a party objecting to discovery on the basis of the work-product doctrine “maintains the burden to show that the materials were compiled in response to some event which foreseeably could be made the basis of a claim against the insured”); Fla. Sheriffs’ Self–Ins. Fund v. Escambia County, 585 So.2d 461, 463 (Fla. 1st DCA 1991) (holding that when objections to discovery requests are based on either the work-product doctrine or the attorney-client privilege, “the burden is upon the party asserting a privilege to establish the existence of each element of the privilege in question”); Nationwide Mut. Fire Ins. Co. v. Harmon, 580 So.2d 192, 192 (Fla. 4th DCA 1991) (“While petitioner claims that much of what was requested is work product, there is no showing whether the materials in question were prepared in anticipation of litigation with respondents or were investigations conducted during the normal business of evaluating the claim made by respondents, petitioner’s insured. Furthermore, nothing in the record indicates that any documents are protected by attorney/client privilege.”). See Hartford Acc. & Indem. Co. v. McGann, 402 So.2d 1361, 1362 (Fla. 4th DCA 1981) (“It seems to us that petitioners failed to demonstrate that the statements were privileged and thus they cannot contend in this court that respondents failed to show the necessity required by Rule 1.280(b)(2).”); Charles W. Erhardt, Florida Evidence, § 501.1 at 340 (2007 ed.) (“The burden is upon the party asserting a privilege to establish the existence of each element of the privilege in question.”). Accord McCoo v. Denny’s Inc., 192 F.R.D. 675, 683 (D.Kan.2000) (“It is well settled that the party seeking to invoke work product immunity … has the burden to establish all elements of the immunity … and that this burden ‘can be met only by an evidentiary showing based on competent evidence.’ ”), also quoting/citing Johnson v. Gmeinder, Nos. 98–2556–GTV, 98–2585–GTV, 2000 WL 133434, at *4 (D.Kan. Jan.20, 2000) (quoting Audiotext Communications Network, Inc. v. U.S. Telecom, Inc., No. 94–2395–GTV, 1995 WL 625962, at *7 (D.Kan. Oct.5, 1995)) (emphasis added by Johnson). 

Even if one establishes a work product privilege, the inquiry does not end there. Many states allow certain kinds of so-called “work product” to be obtained.  For example, Florida Rule of Civil Procedure 1.280(b)(4) provides that a party (such as Plaintiffs here) may obtain work product, or materials “prepared in anticipation of litigation,” “only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” See, e.g., S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994). See also Millard Mall Services, Inc. v. Bolda, 155 So.3d 1272, 1274-75 (Fla. 4th DCA 2015) (same, citing Deason). Accord Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla.1970) (“The work product of the litigant, his attorney or agent, cannot be examined, absent rare and exceptional circumstances.”). See Deason, 632 So.2d at 1384 (“one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures”) (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980)); Ruhland v. Gibeault, 495 So.2d 1243, 1244 (Fla. 5th DCA 1986) (“Clearly, the burden is on the party who seeks to overcome a work product objection to show a need for the documents sought and demonstrate that they are unable, without undue hardship, to obtain the equivalent by any other means.”); Intercontinental Props., Inc. v. Samy, 685 So.2d 1035, 1036 (Fla. 3d DCA 1997) (finding the law imposes a heavy burden on a party seeking to obtain work product; party is required to at least attempt to obtain the information contained in an incident report using interrogatories and depositions before the privilege can be breached). Millard Mall Services, Inc. v. Bolda, 155 So.3d 1272, 1275 (Fla. 4th DCA 2015) (“Even if these documents might potentially lead to the discovery of relevant, admissible evidence as claimed by plaintiff’s counsel, their relevance is but one factor among several to be considered. The mere fact that these documents ‘might yield additional information about the incident is not enough, without more, to show ‘undue hardship.’ ”) citing Mt. Sinai Med. Ctr. v. Schulte, 546 So.2d 37, 38 (Fla. 3d DCA 1989); see generally DeBartolo–Aventura, 638 So.2d at 989–90; State Farm Fire & Cas. Co. v. Von Hohenberg, 595 So.2d 303, 304 (Fla. 3d DCA 1992); Dade Cnty. Pub. Health Trust v. Zaidman, 447 So.2d 282, 283 (Fla. 3d DCA 1983); Charles W. Ehrhardt, Florida Evidence § 502.9 (2010 ed.). To demonstrate a ‘need’ sufficient to compel discovery of work-product materials, a party must present testimony or evidence demonstrating that the material requested is critical to the theory of the requestor’s case or to some significant aspect of the case.” Nevin v. Palm Beach County School Board, 958 So.2d 1003, 1006 (Fla. 4th DCA 2007) (citations omitted). 

In determining whether the substantial equivalent of work-product-protected information is available, courts often focus on whether the substantial equivalent of the information contained in the protected documents is available via deposition. Fed. Election Com’n v. Christian Coal., 178 F.R.D. 61, 86 (E.D. Va. 1998) order aff’d in part, modified in part, 178 F.R.D. 456 (E.D. Va. 1998)

The general rule is that if work product information is available to a party via deposition, then that party is denied production of work product containing that information in favor of obtaining the substantial equivalent through a deposition.  Id., citing United States v. Chatham City Corp., 72 F.R.D. 640, 644 (S.D.Ga.1976) (denying discovery of witnesses’ statements because “a substantial equivalent of witnesses’ statements can be obtained by … deposition.”) As exceptions to this general rule, however, lapses of time between the information being recorded in the document and the litigation, forgetfulness of witnesses, or the possibility that witnesses may be hostile can lead a Court to conclude that the substantial equivalent of the work product protected document may not be available through deposition. See, e.g., Southern Railway, Co. v. Lanham, 403 F.2d 119 (5th Cir. 1968). The question of whether the substantial equivalent of the material is available is a fact-specific question.

“The rationale supporting the limitation against securing work product is that ‘one party is not entitled to prepare his case through the investigative work product of his adversary where the same or similar information is available through ordinary investigative techniques and discovery procedures.’ ” Deason, 632 So.2d at 1384 (quoting Dodson v. Persell, 390 So.2d 704, 708 (Fla.1980)). Thus, if the moving/compelling party fails to show that the substantial equivalent of the material cannot be obtained by other means, the discovery will be denied. Id. at 1385.  See Bank of Mong. v. M & P Global Fin. Servs., Inc., 258 F.R.D. 514, 519 (S.D.Fla.2009) (noting that claims of undue burden should be supported by a statement (generally an affidavit) with specific information demonstrating how the request is unduly burdensome). Feise v. N. Broward Hosp. Dist., 14-CV-61556, 2015 WL 2341221, at *4 (S.D. Fla. 2015) (same).

As the Court recently reiterated in Universal City Dev. Partners, Ltd. v. Pupillo, 54 So.3d 612 (Fla. 5th DCA 2011), “[t]estimony in the form of affidavits and depositions showing that the documents were prepared in anticipation of litigation, for example, may be considered substantial, competent evidence and are typically introduced to establish the privilege, but Petitioner presented no evidence of any kind.” Id. at 617 (Sawaya, J., dissenting), citing to the following cases: Orange Park Christian Acad. v. Russell, 899 So.2d 1215, 1215 (Fla. 1st DCA 2005) (“[B]oth the teacher and principal gave deposition testimony indicating that each had contemplated litigation at the time the documents were prepared.”); McRae’s, Inc. v. Moreland, 765 So.2d 196, 197 (Fla. 1st DCA 2000) (“According to the affidavit of Petitioner’s corporate director of loss prevention, statements were taken from employees in preparation for litigation by the terminated employee involved in the incident or by the girl who was changing in the dressing room at the time. These statements were maintained in McRae’s corporate litigation file. Respondents presented no evidence to rebut Petitioner’s affidavit.”); and Nat’l Union Fire Ins. Co. v. Fla. Const., Commerce & Indus. Self Insurers Fund, 720 So.2d 535, 537 (Fla. 2d DCA 1998) (“We find unrefuted evidence in the affidavit by Dwain Darrien, National Union’s claims manager, that the items were prepared in anticipation of litigation, and therefore, a limited privilege attaches to them.”). Cf. Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855, 856 (Fla. 2d DCA 1997) (“Wal–Mart cannot make a blanket statement that these items were prepared in anticipation of litigation and are protected from disclosure without presenting evidence to support its claim.”).  See also Deason and other cases cited above.  The Federal Courts agree. See, e.g., MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 620 (S.D. Fla. 2013) (“Courts have rejected blanket claims of work-product immunity, and have found that the protection was waived when a party failed to provide sufficient detail as to the subject of memoranda or their authors.”); Bridgewater v. Carnival Corp., 286 F.R.D. 636 (S.D.Fla.2011) (party claiming protection must provide underlying facts demonstrating existence of the privilege; citing International Paper Co. v. Fibreboard Corp., 63 F.R.D. 88, 94 (D.Del.1974)). See, e.g., Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199 (N.D.Fla.1990) (insurer filed no affidavits to show that documents were prepared in anticipation of litigation and otherwise failed to show that documents were protected work-product).

Although the responding party is entitled to protect work product, this does not preclude discovery of the facts obtained by the party.  

Privilege Logs are Required

Most state and federal courts require a “privilege log” to be provided as to every document or set of documents to which you are asserting a privilege.

Plaintiff’s failure to provide a detailed privilege log that contains the complete information required by Rule 45(2)(A), may operate as a waiver of any privileges Plaintiff or her counsel potentially may have had regarding the documents from the underlying file. In Rynd v. Nationwide Mut. Fire Ins. Co. (citing Marx v. Kelly, Hart & Hallman, P.C.,929 F.2d 8, 12 (1st Cir. 1991); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984)) (“[t]he failure to assert the privilege or work-product protection in a timely manner, and in sufficient detail, may result in a waiver of the privilege or work-product claim”). The court also noted that “even assuming that the non-parties’ failure to assert the attorney-client privilege in a timely manner was inadvertent, the prejudicial failure to assert the privilege timely, and without a showing of good cause, constitutes a waiver of the privilege.” Id. at 3 (citing Banks v. Office of Senate Sergeant-at-Arms, 233 F.R.D. 1, 9 (D.D.C. 2005)); Kay Scholer LLP v. Zalis, 878 So.2d 447, 449 (Fla. 3d DCA 2004) (finding waiver of privilege based on an inadequate privilege log and explained, “[t]he purpose of this requirement [of Rule 1.280(b)(5)] is ‘to identify materials which might be subject to a privilege or work product protection so that a court can rule on the ‘applicability of the privilege or protection’ prior to trial.”). Cf. Matlack v. Day, 907 So.2d 577, 581 (Fla. 5th DCA 2005) (“The failure of Matlack to raise the attorney-client privilege or work-product doctrine and submit a privilege log operates as a waiver of privilege and precludes relief from the appellate court on certiorari review.”); TIG Ins. Corp. of America v. Johnson, 799 So.2d 339, 341-42 (Fla. 4th DCA 2001) (similarly finding waiver); Consumer Elecs. Ass’n v. Compras & Buys Magazine, Inc., 08-21085-CIV, 2008 WL 4327253, at *3 (S.D. Fla. 2008) (“If a general objection of privilege is made without attaching a proper privilege log, the objection of privilege may be deemed waived.”) Cf. Pensacola Beach Cmty. United Church, 2007 WL 737499 at *2 (citing Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Ct., Dist. Mont., 408 F.3d 1142, 1149 (9th Cir. 2005)) (“[C]ourts apply a holistic analysis taking into account several factors to determine whether the privilege has been waived.” One of these factors is “the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged.”) (citing Burlington Northern & Santa Fe Ry, 408 F.3d at 1149).

In most cases, when a party intends to assert privilege over a document to avoid production, “the party must . . . describe the nature of the documents [or] communications . . . 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.” See, e.g., Fed. R. Civ. P. 26(b)(5)(A)(ii). See also Covington v. Sailormen Inc., 274 F.R.D. 692, 694 (N.D. Fla. 2011) (“[A] party withholding information under claim of privilege must produce a privilege log [w]hen the party withholds information. That is, the duty to produce the privilege log is immediate and absolute, and does not depend at all upon [the other party] asking for it.” (emphasis added)). Consistent with that reality, you can also see an example in the Discovery Handbook of the Middle District of Florida provides:

A party who responds to or objects to discovery requests and who withholds information otherwise discoverable, asserting that the information is privileged or subject to other protection from discovery, must assert the claim expressly and must describe the nature of the documents, communications, or things not produced or disclosed, such that, without revealing the privileged or protected information itself, the description will enable other parties to assess the applicability of the privilege or protection. See Rule 26(b)(5), Federal Rules of Civil Procedure. Withholding materials without notice is contrary to Rule 26 and may result in sanctions. If a motion to compel is filed, the party asserting a protection generally has the obligation to establish by affidavit or other evidence, all facts essential to the establishment of the privilege or protection relied upon.

M.D. Fla. Discovery Handbook § VI. A. 1. (emphasis added).

When asserting privileges or immunities, the duty to clarify, explain and support objections requires, at a minimum, submission of a privilege log. Fed. R. Civ. P. 26(b)(5)(A) (requiring description of “documents, communications, or things not produced or disclosed” so that other parties can “assess the applicability of the privilege or protection”); Ramirez v. County of Los Angeles, 231 F.R.D. 407, 410 (C.D. Cal. 2005) (“Failure to provide sufficient information may constitute a waiver of the privilege.”); Third Party Verification, Inc. v. SignatureLink, Inc., No. 6:06–cv–415–Orl–22DAB, 2007 WL 1288361, at *2 (M.D. Fla. May 2, 2007).

A Privilege Log is a spreadsheet-like document that contains the following information:

    1. the place, date, and manner of recording or otherwise preparing the document;
    1. the name and title of the sender;
    1. the identity of each person or persons (other than stenographic or clerical assistants) participating in the preparation of the document;
    1. the identity and title with Defendant[s], if any, or the person or persons supplying Defendant’s attorneys with the information requested above;
    1. the identity of each person to whom the contents of the document have heretofore been communicated by copy, exhibition, sketch, reading or substantial summarization, the date of said communication, and the employer and title of said person at the time of said communication;
    1. the type of document;
    1. the general subject matter of the document (without revealing the relevant information for which privilege or statutory authority is claimed); and
    1. the factual and legal basis for claim, privilege or specific statutory or regulatory authority which provides the claimed ground for non-production.

Accord Pitts v. Francis, 2008 WL 2229524 (N.D. Fla. 2008) (citing Universal City Dev. Partners, Ltd. v. Ride & Show Eng‘g, 230 F.R.D. 688, 695 (M.D. Fla. 2005) (emphasis added)) (“the objecting party must provide a log or index of withheld materials that includes for each separate document, the authors, and their capacities, the recipients (including copy recipients) and their capacities, the subject matter of the document, the purpose for its production, and a detailed, specific explanation of why the document is privileged or immune from discovery.”)  The Court in Universal City took a “holistic analysis” to determine whether the privileges have been waived by providing a privilege log that fails to comply with the Rule, the court should consider the following factors:

the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient; the timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard.

Universal City, 230 F.R.D. at 695.

To Swear or Not to Swear: That is the Question – Unverified Interrogatory Answers are Not Answers

Even if you meet various criteria above, you can still be subject to disclosure.  For example, when it comes to answering interrogatories, people are under the delusion that they can comply with interrogatory requests (and avoid possible waiver of objections) by sending “unverified” answers to interrogatories. They are sorely misplaced.  

Here’s just some of the many cases that hold that unverified answers to interrogatories are not answers at all.  See, e.g., Tokarz v. TRG Columbus Development Venture, Ltd., 08–60190, 2008 WL 4533917, at *2 (S.D.Fla. Oct.6, 2008) (holding that by failing to sign interrogatory answers, the party was “deemed to have not responded at all”); Osborne v. Columbia Helicopters, Inc., CIV.A. 1:08-00305, 2009 WL 2215076 (S.D.W. Va. July 20, 2009) (“Unverified answers to interrogatories are not in conformity with the Rules and have no evidentiary value. Incomplete answers or responses ‘must be treated as a failure to … answer, or respond.’) (also citing Fed.R.Civ.P. 37(a)(4)); Saria v. Massachusetts Mut. Life Ins. Co., 228 F.R.D. 536, 538-39 (S.D.W.Va.2005) (granting defendant’s motion to compel complete verified interrogatory responses and noting that since interrogatory responses may be used at trial they are “nothing short of testimony”). “This requirement is critical because ‘interrogatories serve not only as a discovery device but as a means of producing admissible evidence; there is no better example of an admission of a party opponent, which is admissible because it is not hearsay, than an answer to an interrogatory.’” Lewton v. Divingnzzo, 8:09CV2, 2010 WL 1630719 * 2 (D. Neb. 2010), also citing to Walls v. Paulson, 250 F.R.D. 48, 52 (D.D.C.2008). See also In re Asbestos Products Liab. Litig. (No. VI), CIV.A. MDL 875, 2012 WL 5839023 *2 (E.D. Pa. 2012) (“interrogatory responses not verified by the Plaintiff are not valid responses”) McDougall v. Dunn, 468 F.2d 468, 472 (4th Cir.1972) (rejecting the validity of interrogatory answers signed by counsel rather than the party and recognizing that the rule requiring client verification should not “be relaxed merely because of difficulties relating to the availability of the party”); Villareal v. El Chile, Inc., 266 F.R.D. 207 (N.D. Ill. 2010) (“Under the rule of procedure addressing interrogatories, answers to interrogatories must be verified and must be signed by the person answering the interrogatory, not only by the party’s attorney; requiring a party to sign interrogatory responses under oath serves the critical purpose of ensuring that the responding party attests to the truth of the responses.”); Cabales v. U.S., 51 F.R.D. 498, 499 (S.D.N.Y.1970) (finding that unsigned, unverified interrogatory answers did not qualify as answers at all.); Quinones v. Sheriff of Citrus County, 5:11-CV-232-OC-10TBS, 2011 WL 5828468 (M.D. Fla. 2011) (“The Court agrees with defendant that it is imperative that plaintiff provide signed answers, written under oath, to the Sheriff’s initial interrogatories and correct any deficiencies so that the defendant can proceed with depositions and non-party production.”); McDougall v. Dunn, 468 F.2d 468, 472-73, 476 (4th Cir.1972) (finding error in sustaining interrogatory responses signed under oath only by counsel); Unzicker v. A.W. Chesterston Co., 11-CV-66288, 2012 WL 1966028 (E.D. Pa. 2012) (striking unsworn interrogatories and awarding sanctions); Overton v. City of Harvey, 29 F.Supp.2d 894, 901 (N.D.Ill.1998) (striking as a summary judgment exhibit plaintiff’s unverified answers to interrogatories signed only by the attorney); Cabales v. United States, 51 F.R.D. 498, 499 (S.D.N.Y. 1970) aff’d, 447 F.2d 1358 (2d Cir. 1971) (“Rule 33 of the FRCivP requires that interrogatories be answered ‘separately and fully in writing under oath’ and ‘signed by the person making them.’ Neither of these basic requirements was complied with here so that the writing submitted late (on October 10th) does not qualify as an answer.”); Bardwell v. K & R Delivery, Inc., 86 C 5731, 1987 WL 28261 (N.D. Ill. Dec. 14, 1987) (“unsigned and unverified responses do not qualify as answers to interrogatories”); Andrews v. Super Fresh Food Markets, CIV.A. 87-7815, 1988 WL 26496 (E.D. Pa. Mar. 14, 1988) (unverified answers with “an unverified letter from counsel is obviously a far cry from adequate answers to interrogatories.”)

Where a request (such as Interrogatories) require a sworn response, make sure that you send “Verified” (sworn, executed) Responses in a timely fashion.

Objections can be deemed “waived” if you answer after making objection (i.e., “subject to” objections are not objections that preserve anything)

As Chemoil v. MSA V, 2013 WL 944949 (M.D.Fla. 2013) and others say, “[e]ven though the practice has become common here and elsewhere, courts have found that whenever an answer accompanies an objection, the objection is deemed waived, and the answer, if responsive, stands.” Chemoil, citing to Pepperwood of Naples Condo. Ass’n, Inc. v. Nationwide Mut. Fire Ins. Co., 2:10-CV-753-FTM-36, 2011 WL 4382104 at *4-5 (M.D. Fla. Sept. 20, 2011) (“Even though the practice has become common here and elsewhere, courts have found that whenever an answer accompanies an objection, the objection is deemed waived, and the answer, if responsive, stands” also stating that “answering subject to an objection lacks any rational basis. There is either a sustainable objection to a question or request or there is not.”); Martin v. Zale Delaware, Inc., 2008 WL 5255555 *2 (M.D. Fla. 2008); Henns v. Mony Life Ins. Co. of Am., 5:11-CV-55-OC-37TBS, 2011 WL 5358423 *5 (M.D. Fla. 2011) (“Objections which simply state that a discovery request is ‘vague, overly broad, or unduly burdensome’, are, by themselves, meaningless. A party properly objecting on these grounds ‘must explain the specific and particular ways in which a request is vague, overly broad, or unduly burdensome.’”), also quoting Milinazzo v. State Farm Ins. Co., 247 F.R.D. 691, 695 (S.D. Fla. 2007); Mann v. Island Resorts Dev., Inc., 2009 WL 6409113 *2-3 (N.D.Fla. Feb. 21, 2009) (waiving the objection in the case where the party filed an objection then answered the questions); Pepperwood of Naples Condo Ass’n, Inc. v. Nationwide Mut. Fire Ins. Co., 2011 WL 3841557 * 2 (M.D.Fla. 2011) (Court will not tolerate objection when “an objection to discovery request is raised, and then the questions is answered ‘subject to’ or ‘without waiving’ the objection”); Diehl v. Bank of Am. Corp., 3:09-CV-1220-J-25MCR, 2010 WL 3340565 *4, n.4 (M.D.Fla. 2010) (“a party resisting discovery must make some showing as to how each discovery request is not relevant, overly broad, unduly burdensome, and/or otherwise inadmissible.”); Consumer Electronics Association v. Compras and Buys Magazine, Inc., 2008 WL 4327253 * 2 (S.D.Fla. 2008) (holding that formulaic objections followed by an answer preserves nothing and serves only to waste the time and resources of both the Parties and the Court, because such practice leaves the requesting Party uncertain as to whether the question has been fully answered or whether only a portion of the question has been answered).   Accord Meese v. Eaton Manufacturing, Co., 35 F.R.D. 162, 166 (N.D.Ohio 1964) (holding that a party who objects and then answers an interrogatory waives that objection); Wright, Miller & Marcus, Federal Practice and Procedure: Civil §2173 (stating “[a] voluntary answer to an interrogatory is also a waiver of the objection.”). The Court in Chemoil reiterated the warning to lawyers: “The Court sets out the above to caution the Parties as to this practice in the future. Thus, the objections are overruled.”

OBJECTIONS AT DEPOSITIONS

Depositions are a whole different beast.  There are very limited objections that can be made in depositions, and it varies by jurisdiction.  There is one exception: where the parties agree that the deposition is being taken for use at trial.  In those situations, you must lodge all objections, like those referenced in the below-referenced “Trial” section of this piece.  Here, we will address the typical discovery depositions.

Generally proper objections

Objection to Procedures.  If there are some problems with process (e.g., the manner of recording or the person taking the deposition, improper/additional people attending the deposition, etc.), you will need to lodge your objections at that time, and detail the solution you suggest (citing rules/law where you can).

  

Objections based on Privilege.  If the question calls for information subject to a “privilege,” it may be appropriate to object (and even instruct your client not to answer).  For example, if the question is “what did your lawyer say to you about ________?” – it may be appropriate to lodge an attorney-client objection.  

Objections to “Form.”  These kinds of objections are based on the form of the question, and must be raised at the time of the objection – or they may be deemed waived forever.  For example, questions which are “compound” – have multiple questions in them – can be objected to on the basis that they are compound (i.e., they call for multiple answers or one clear answer cannot be achieved based on the form of the question, etc.).  If the deponent is asked “When you executed the contract, did you have knowledge of the inability of the company to deliver the goods and did you call them or investigate before you entered the contract.” If the deponent answers “yes” – what is he/she answering “yes” to?  It is proper to have the lawyer ask a single question, and every great lawyer will welcome asking separate questions because they don’t want confusion either.  Sometimes, questions that are vague or otherwise unintelligible, or which provide an incomplete hypothetical or other similar kinds of objections may be proper, but you are well-served to explain (particularly in response to inquiry by the deposer) why the question is “vague” so that the questioner has the option of rephrasing it more clearly.  Indeed, many jurisdictions find that objections that just say “form” preserve nothing. See, e.g., Henderson v. B & B Precast & Pipe, LLC, No. 4:13-CV-528 CDL, 2014 WL 4063673, at *1 (M.D. Ga. Aug. 14, 2014). “[I]f a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question. Failure to do so waives the objection.”); Wise v. Washington County, No. 101677 (W.D. Pa., March 7, 2014) (“Objections to form must sufficiently explain the objection so that the interrogator is able to revise the question and avoid the problem.”); Sec. Nat. Bank of Sioux City, Iowa v. Abbott Labs., 299 F.R.D. 595, 601 (N.D. Iowa 2014) (“Objecting to ‘form’ is like objecting to ‘improper’ — it does no more than vaguely suggest that the objector takes issue with the question. It is not itself a ground for objection, nor does it preserve any objection.”).  You have to balance the rule which states that you only say “I object to the form” with the need to have a clear question and answer in the transcript.

When it is absolutely clear that the deposer has asked the identical question many times over, you may be able to object to a question if it has clearly been “asked and answered,” but very careful to make sure you are sure that is the case.  Usually, this kind of objection should only be made when the exact question is being asked many times over and over. 

On rare occasions, form-based objections can also include if the question truly/actually mischaracterizes prior testimony.  For example, if a question says “when you agreed earlier that you breached the contract, did you …” – you may lodge an objection that this form of the question mischaracterizes the testimony.  Sometimes an objection is proper where a question is unduly argumentative (such as too loud or verbally harassing or other clearly antagonistic manner), but be careful not to object just because you don’t like the question or it may state a position or ask a question you don’t like.  If the questioning become unduly argumentative or truly harassing, you may need to terminate the deposition and seek protection from the court.  

You can also lodge what is commonly referred to as a “continuing objection” if the entire line of questions will be objectionable.  

Again, when you make objections based on the form of the question, you would be well-served to stand ready to explain objections in an antiseptic manner that simply allow the deposer to understand your objection and how to rephrase it.  As noted below, however, you CANNOT use objections to coach the witness, or to make speaking objections or to influence testimony. 

Speaking Objections (and/or coaching witnesses through objections)

It is improper to make speaking objections or those which have the effect of coaching a witness (such as the examples found in the Florida Handbook on Discovery):  

“I object. This witness could not possibly know the answer to that. He

wasn’t there.”

The typical witness response after hearing that: “I don’t know. I wasn’t there.”

“I object. You can answer if you remember.”

The typical witness response after hearing that: “I don’t remember.”

“I object. This case involves a totally different set of circumstances, with

different vehicles, different speeds, different times of day, etc.”

The typical witness response after hearing that: “I don’t know. There are too

many variables to compare the two.”

Many states have warned against such practices.  Florida, for example, clarified Rule 1.310(c) to now say that “[a]ny objection during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.”  Rule 1.310(d) was also amended to provide certain circumstances under which a “motion to terminate or limit examination” may be based on conduct in violation of the amendment to Rule 1.310(c) requiring objections to be stated concisely and in a nonsuggestive manner.

There are ethical rules barring such conduct.  Rule 4-3.4 (prohibiting a lawyer from “unlawfully obstruct[ing] another party’s access to evidence,” “fabricat[ing] evidence” or “counsel[ling] or assist[ing] a witness to testify falsely.”); Rule 3-4.3 and 3-4.4 (misconduct may constitute a ground for discipline); Rule 4-3.5 (Disruption of a Tribunal); Rule 4-4.4 (Respect for Rights of Third Persons); Rule 4-8 (Maintaining the Integrity of the Profession).

The Florida Bar’s “Guidelines for Professional Conduct,” promulgated jointly by the Conference of Circuit Court Judges, the Conference of County Court Judges, and the Trial Lawyers Section of The Florida Bar, specifically address deposition conduct and make it clear that coaching the deponent or suggesting answers through objections or otherwise should not occur. There are a number of decisions disciplining lawyers for violating these rules. See also 5500 North Corp. v. Willis, 729 So. 2d 508, 514 (Fla. 5th DCA 1999), where the Appellate Court approved the trial court’s referral of deposition conduct issues to The Florida Bar, noting that in terms of counsel’s deposition behavior, “[w]e would expect more civility from Beavis and Butthead.”  See also In re Neurontin Antitrust Litig., 2011-2 Trade Cases P 77587 (D.N.J. 2011), aff’d, 2011-2 Trade Cases P 77595 (D.N.J. 2011) (It is improper and worthy of sanctions to make speaking objections such as “if you remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the question”; or (5) state that counsel does not understand the question.”, also citing Mazzeo v. Gibbons, Civ. No. 08–1387, 2010 WL 3020021, at *2 (D.Nev. July 27, 2010) and Hall, 150 F.R.D. at 530–31.

Rule 30(d)(2) also permits the imposition of “sanctions – including the reasonable expenses and attorney’s fees incurred by any party – on a person who impedes, delays, or frustrates the fair examination of the deponent.” In re Neurontin Antitrust Litig., 2011-2 Trade Cases P 77587 (D.N.J. 2011), aff’d, 2011-2 Trade Cases P 77595 (D.N.J. 2011), citing to Fed.R.Civ.P. 30(d)(2). In addition, because a Rule 30(b)(6) witness’s testimony is binding on a corporation, some courts have prevented the corporation from presenting evidence contrary to the Rule 30(b) (6)’s witness’ testimony at trial. Id. also citing Wilson v. Lakner, 228 F.R.D. 524, 530 (D.Md.2005) (citing Rainey v. Am. Forest & Paper Assoc., 26 F.Supp.2d 82, 94–95 (D.D.C.1998) and Taylor, 166 F.R.D. 356, 363)).

Case after case finds it improper to engage in such tactics. See, O’Brien v. Amtrak, 163 F.R.D. 232, 236 (E.D. Pa. 1995); Wilson v. Sundstrand Corp., 2003 WL 21961359 (N.D.Ill. 2003) (“The Federal Rules of Civil Procedure unambiguously prohibit ‘speaking’ objections by counsel at a deposition.”). See Advisory Committee’s note to 1993 amendments to Rule 30(d), Fed.R.Civ.Pr. and Damaj v. Farmers Ins. Co. 164 F.R.D. 559, 561 (N.D. Okla. 1995). (This rule was adopted “to curtail lengthy objections and colloquy which often suggested how deponents should answer.” And under Rule 30(d)(1), “counsel’s statements when making objections should be succinct and verbally economical, stating the basis of the objection and nothing more.”); M.D.Local R. 5.03. Local Rule 5.03(12) (“In making objections counsel should state only the legal grounds for the objection and should withhold all further comment or argument unless elaboration is required by the Court.”); Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 700 (S.D.Fla. 1999) (The purpose of this is to ensure that the witness must be allowed to provide an answer to the best of his ability, free from any influence by his counsel.); Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 59 (E.D. Pa., 1993) (“a deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and the witness to formulate answers.”); Collins v. International Dairy Queen. Inc., 1998 WL 293314 (M.D.Ga. 1998) (“a lawyer should not object to a question on the assumption that the witness cannot or does not understand the question, unless the lawyer reasonably believes that the witness may be misled or the witness indicates confusion by the question.”); Quinones v. State, 766 So. 2d 1165, 1168 (Fla. 3d DCA 2000) (speaking trial objections containing improper editorials); Owens-Corning Fiberglass Corp. v. Crane, 683 So. 2d 552, 554 (Fla. 3d DCA 1996) (examples of speaking objections); Heller v. Wofsey, 1989 U.S. Dist. Lexis 7765 (S.D.N.Y. 1989); Uniform Administrative Policies & Procedures, Section XIV, Deposition Guidelines,” 3 Fla. L. Weekly Supp. 164 (Fla. 9th Jud. Cir. 1995) (“Speaking objections and other tactics and recesses for coaching a deponent during a deposition are improper and may also be cause for sanctions.”) 

Most other objections are wholly improper (e.g., hearsay, assumes facts not in evidence, foundation, irrelevant, etc.).

Objections at Trial

A. VOIR DIRE

1. Attempting to commit jurors to a specific verdict

2. Asking about votes in prior cases

3. Unnecessary probing in juror’s background

4. Questions not going to ascertaining juror qualifications

B. OPENING STATEMENT

1. Arguing the law

2. Discussing inadmissible facts

3. Misstatements of the law

4. Expressing personal belief on the merits

C.  WITNESS QUALIFICATIONS

1. Competency to Testify (prior to swearing in witness)

2. Privilege

3. Non-qualified expert

D.  OBJECTIONS DURING DIRECT EXAMINATION

1. Leading

2. Not relevant

3. Hearsay

4. Calls for Speculation

5. Calls for a narrative answer

6. Asked and answered

7. Cumulative

8. Prejudicial effect outweighs probative value

9. Assumes facts not in evidence

10. Lack of personal knowledge (no foundation)

11. Misstatement of the record (misquoting the witness)

12. No proper foundation (specify missing elements)

E.  OBJECTIONS DURING CROSS-EXAMINATION

1. Beyond the scope of direct

2. Hearsay

3. Asked and answered

4. Assumes facts not in evidence

5. Compound question

6. Misstatement of the record (misquoting the witness)

7. Argumentative

8. Improper impeachment

F.  DOCUMENTS

1. Identification

2. Authentication

3. Relevancy

4. Best Evidence

5. Hearsay

6. Privilege

G.  CLOSING ARGUMENT

1. Improper argument – facts not in evidence

2. Improper argument – Misstatement of the facts

3. Improper argument – Misstatement of the law

4. Stating personal belief in the merits of the case

5. Asking jurors to place themselves in the party’s position

6. Improper content (settlement discussions, insurance, right to remain silent, etc.)

7. Unduly prejudicial/inflammatory

H.  JURY INSTRUCTIONS

1. Misstating the facts of the case

2. Misstatement of the law

3. Unduly placing weight on certain legal issues or evidence

4. Failing to give instructions consistent with theory of the case

5. Failing to give requested instructions

6. Confusing/ambiguous