Turns Out You Need a Subpoena to Depose Somebody.

Sometimes it takes a federal judge to point out the obvious.

Take, for example, the situation where you want to depose a bunch of employees of the opposing party.

How do you do that?

Can you just notice them for deposition?

Turns out the answer is no:

Although these six employees may well be able to provide relevant information (or information likely to lead to admissible evidence), the Court nonetheless cannot compel Plaintiff to produce them for deposition. Only a party to the litigation may be compelled to give deposition testimony pursuant to a notice of deposition. If the party is a corporation, it’s deposition may be noticed pursuant to Federal Rule of Civil Procedure 30(b)(6), in which case the corporation must designate an individual to testify as the corporate representative. Alternatively, the party seeking a corporate deposition may identify a specific officer, director, or managing agent to be deposed and notice that individual under Federal Rule of Civil Procedure 30(b)(1). But, a corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice.

How about that?

You learn something new every day!

Should You Always Get a Stay of Discovery When You File a Motion to Dismiss?

Parties always think their positions have merit, as opposed to that swill being peddled by the other side.

That's why the position that all discovery should be stayed pending disposition of a motion to dismiss is such a slippery slope.

Parties would be encouraged to file a motion to dismiss in every case, and the rules of civil procedure would essentially be abrogated while everyone waits for a ruling.

That doesn't seem to make much sense, as Judge Scola in a well-reasoned opinion points out:

Nor will it grant a wholesale stay of discovery either. Dismissal of the case with prejudice is not a foregone conclusion. Spirit muses that Plaintiffs’ RICO claims are “untested” and “comprised of allegations that have never been sustained against an airline,” and regulation of airline price advertising falls into the exclusive domain of the Department of Transportation. Mot. at 5. The problem is, these arguments do no more than rehash Spirit’s position, made in its motion to dismiss, that it should win. While the Court must conduct a “preliminary peek” at the motion and the Complaint to see whether the Plaintiffs’ claims are likely baseless or dubious, Feldman, 176 F.R.D. at 652-53, the Court is not required to move Spirit’s dismissal motion to the front of the line, ahead of other cases with pending motions, and fully adjudicate it on the spot. Such a requirement would be unfair to other parties, as well as to the Court.

But Judge Scola recognizes that there can be a time and place for such extraordinary relief -- just not in every single case that comes across your desk, especially when there are more targeted ways to deal with the issue:

In the interim, nothing herein should be construed as a blank check for Plaintiffs to burden or harass Spirit with ridiculous discovery requests. Should that come to pass, the multitude of tools provided by the discovery rules remain at Spirit’s disposal. Any appropriate motions seeking protection or relief from discovery may be addressed by the Magistrate Judge, under this Court’s automatic reference of such matters. That will allow particularized discovery issues to be addressed and resolved on a case-by-case basis, which is a more prudent approach than an indiscriminate blanket stay of discovery.

Happy Veteran's Day!

And how was your weekend?

(I Can't Get No) Cooperation!

Here's another fine Magistrate Judge Goodman order, this time on privilege logs.

Apparently you need to ask for responsive documents first before the other side has to list them on a privilege log:

Rule 26(b)(5)(A) requires a party to describe privileged documents “when a party withholds information otherwise discoverable.” A document is not “withheld” unless it was requested. The term “withholds” necessarily incorporates the threshold notion that a request for a document was made – otherwise, the document is not being “withheld.”

Makes sense.

But then why did the SEC offer up boilerplate privilege objections rather than state that there were no responsive documents?

In response to the document production request, the SEC interposed not only a general privilege objection (in the introduction section of its response) seemingly applicable to many of Merkin’s requests [ECF No. 55-2, p. 2, ¶ 4], but it also made privilege and work-product objections to nearly all of Merkin’s individual requests as well. These boilerplate objections suggested that privileged documents responsive to Merkin’s requests did, in fact, exist, and that the SEC was withholding those documents. Therefore, Merkin was certainly justified in concluding that the SEC should have provided a privilege log. After all, why else would a party assert a privilege if no responsive documents exist in the first place?

Because that's just what some litigants do?

Boilerplate boilerplate boilermaker.....

Generalized objections asserting attorney-client privilege or the work product doctrine do not comply with the Local Rules. Local Rule 26.1(g)(3)(B) requires that objections based upon privilege identify the specific nature of the privilege being asserted, as well as identifying details such as the nature and subject matter of the communication at issue, the sender and receiver of the communication and their relationship to each other. Parties must refrain from making vague, blanket objections in the form of: “Objection. This information is protected by attorney/client and/or work product privilege.”
 
Boilerplate objections, such as those made by the SEC, are inadequate, meaningless, and preserve nothing for the party making such objections. See Adelman v. Boy Scouts of Am., 276 F.R.D. 681, 689 (S.D. Fla. 2011); Benfatto v. Wachovia Bank N.A., No. 08-60646, 2008 WL 4938418, at *2 (S.D. Fla. Nov. 19, 2008). Nowhere is the accuracy of this principle more apparent than here.

But they feel so good!

Now comes the part about the aspirational hopes and dreams of the "best-practices litigator":

At a minimum, the SEC seems to have taken a discovery stance which is inconsistent with one of the basic tenets of the Discovery Practices Handbook: “Discovery in this District is normally practiced with a spirit of cooperation and civility.” (emphasis supplied).

To be sure, it was in the SEC’s strategic best interest to remain quiet and to permit the discovery deadline to expire before clearly articulating its position. And, on the other hand, Merkin did not begin his written discovery until late in the game and did not request the documents the SEC has not produced. Moreover, it is unlikely that Merkin would have been able to obtain the privileged documents had he timely and specifically asked for them (assuming the SEC would have then finally listed the privileged documents on a privilege log). Adopting a cooperative attitude would have caused the SEC to simply and timely advise Merkin that it was not providing a privilege log because the documents subject to the privilege claims had never been included on a document request. Or alternatively, the spirit of cooperation would have at least required the SEC to refrain from making confusing and arguably disingenuous objections in the first place.

Question:  is the "spirit of cooperation" alive and well in our District when it comes to discovery?

Magistrate Judge Goodman Advises Parties to Follow Rules!

 I've take the liberty of annotating Magistrate Judge Goodman's notice to the parties that he will be enforcing the rules when it comes to discovery:

All parties are advised that [In the Court of the Crimson King] the Court's practice is to follow [Follow You Follow Me] Federal Rule of Civil Procedure 37(a)(5),  which requires the Court to award attorney's fees to the prevailing party [Party All the Time] on a [ELO's Discovery] motion unless one of the enumerated exceptions is met [You Can't Always Get What You Want]. All parties are further advised that their failure to engage in a reasonable pre-filing conference [Life in the Fast Lane] is grounds for granting or denying the motion by default under Local Rule 7.I(a). [I Guess That's Why They Call It the Blues]

Man the judge really digs this stuff!

You Mean There Are Deadlines in that Mag's Scheduling Order?

When Magistrate Judge Simonton enters a Scheduling Order that has language that is both bolded and underlined, does that mean anyone should really pay any attention to it?

I certainly don't think so:

The Order Setting Trial and Pre-Trial Schedule (DE # 11, the “Scheduling Order”) entered in this case establishes expedited procedures with respect to discovery motions. This requirement is set forth in bold and underlined at page three of the Scheduling Order.

Ok ok, but my office staff screwed it up:

First, defense counsel in the Verified Motion has attributed his failure to comply with the bold and underlined briefing requirements in the Court’s four-page Scheduling Order to his lack of knowledge of its contents, and otherwise points to clerical staff in his office as the responsible parties. The Verified Motion states that the Court’s briefing requirements were “never documented. This resulted in [defense counsel] being unaware that an expedited response to Plaintiff’s discovery motion was required” (DE # 25 at 4-5) (emphasis added). This statement is, at best, discouraging; counsel states that he had no knowledge of the Court’s deadlines because others in his office failed to properly review and summarize the Scheduling Order for him.

 Ok ok ok, so maybe I should have read the darned thing too.

But what about the fact that CM/ECF spit out a different deadline?

That's gotta mean something!

Moreover, the undersigned rejects out-of-hand Defendant’s secondary explanation that CM/ECF had generated a later due date for the response to Plaintiff’s Expedited Motion to Compel, which Defendant attaches as Exhibit 1 to its Verified Motion. In this respect, the undersigned observes, in the same bold and highlighted paragraph on page three of the Scheduling Order containing the briefing requirements, the immediately concluding sentence, which states, “Any contrary deadlines that may appear on the Court’s docket or the attorneys’ deadline report, generated by CM/ECF, cannot serve to modify this Order” (DE # 11 at 3).

 Oh boy.

Practitioner Discovery Tip: Your Discovery Objection is Meaningless (Shh, Don't Tell the Client).

We all know how it works when you get discovery from an opposing party:  have your secretary pull up some form responses, start loading it up with objection after objection; make sure to object to the definitions and instructions; pretend you have no possible understanding of what is being asked for; parse every word of every request and tease out every available meaning, no matter how absurd, so you can object on vagueness grounds, and basically jerk the other side around, buy some time, and get them to "narrow" the requests so you can go through the whole process all over again.

Oh yeah -- then bill the client 12.2 hours.

Well, apparently Judge Rosenbaum thinks this kind of approach may be problematic:

Objections that state that a discovery request is “vague, overly broad, or unduly burdensome” are, standing alone, meaningless and do not comply with both the Local Rules and Rule 34’s requirement that objections contain a statement of reasons. See Pitts v. Francis, 2008 WL 2229524, *2 (N.D. Fla. May 28, 2008). A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly broad, or unduly burdensome. In addition, claims of undue burden should be supported by a statement (generally an affidavit) with specific information demonstrating how the request is overly burdensome. See Benfatto v. Wachovia Bank, N.A., 2008 WL 4938418, *4 (S.D. Fla. Nov. 19, 2008) (citing Convertino v. U.S. Dep’t of Justice, 565 F. Supp. 2d 10, 14 (D.D.C. 2008)). Since Morgan has not indicated how Request 4 is overly broad or unduly burdensome and because she has further not provided any evidentiary support for her bald assertion of burdensomeness, the Court overrules Morgan’s objection in this regard and grants the Receiver’s Motion to Compel a complete response to Request 4.

Nice job Judge!

(The Force is strong with this one.)

Magistrate Judge Brown Explains How the Local Rules Work.

Apparently you can't just waive the Local Rules by agreement, you sort of need the Court to sign on to your little side deal too:

The Local Rules are not simply guidelines for the litigants. They also exist, in some instances, for the Court's benefit as well. The rule at issue (Local Rule 26.1(h)(1)) was created to prevent exactly what is happening in this case . . . a flurry of last minute motions to prepare the case for trial. Here we are, after the discovery deadline has passed, on the issue of plaintiff retaining an expert on a matter that could have - and should have - been resolved long before now. Perhaps defendant would like to retain its own expert? Perhaps the next step would be an evidentiary hearing? This is why the rule exists.

No 1aw has been cited that gives the parties the right to summarily decide they won't be bound by a Local Rule. Were that the case, perhaps the parties could also agree to disregard the prefiling conference requirement (Local Rule 7.1(a)(3))? Perhaps the parties could agree not to be bound by the page limitations as well? A party could file a 45 page motion and as long as the opposition doesn't raise the page limits issue the Court should or must accept same?

Five very good questions -- is it Passover (plus one) yet?

Also, if I'm not mistaken, the Local Rule at issue (you have to file discovery motions thirty days after grounds exist) -- wasn't that Magistrate Judge Brown's idea in the first place?

Oops!

Judge Cohn Refuses to Stay Discovery Pending MDL Transfer.

 In light of the fact that the MDL Panel is meeting in Miami today, it seems timely to note this interesting opinion from Judge Cohn refusing to stay written discovery in a case that has been designated by the defendant for possible MDL transfer.

Here is Judge Cohn's reasoning:

Plaintiffs contend that whether or not this case is transferred to an MDL court, discovery will commence either way. Under the particular facts surrounding this action, this Court agrees that there is no reason to delay discovery. Defendant has been litigating similar cases for several years. In reviewing Grace and Morgan, it appears that the particular facts regarding duties and supervision of store managers may differ from state to state, meaning that discovery of the duties of Florida managers is likely relevant regardless of transfer. Given these appellate decisions, it is not clear that this action will be transferred. In addition, a hearing on the pending transfer motion may not occur for 60 days, given the Panel’s schedule. These facts make this case different from many other actions that this Court has completely stayed pending MDL transfer.

Therefore, the Court concludes that while it will grant a continuance of the scheduling conference and a limited stay of this action, this stay does not include written discovery requests. The Court is not compelling production of any documents – the Court is merely exercising its discretion not to stay written discovery. The Court reaches this decision even though a scheduling conference has not taken place.

 Welcome back to Miami, visiting judges!

Bank of New York Ordered to pay Sanctions

Shuster & Saben obtains sanctions against Bank of New York & Litton

Every lawyer who defends foreclosures quickly learns that lawyers for the bank often stonewall discovery requests from homeowners' counsel. First the banks ask for more time, then they often object to answering questions and producing documents. As experienced civil litigators, the lawyers at Shuster & Saben, meet such tactics with motions to compel and when orders to compel are not complied with the firm files motions for sanctions and for motions to show cause.



After Bank of New York failed to comply with a Court Order directing that interrogatories ( written questions under oath) be answered, Florida foreclosure attorney Richard Shuster, filed a Motion for Sanctions and Rule to Show Cuase against Bank of New York. The motion was granted and Brevard County Circuit Judge Jeffrey Mahl ordered Bank of New York to pay sanctions of $600.00 and to furnish verified answers to the interrogatories within seven days. The firm ultimately received a check from Litton, the loan servicer, for the sanctions. Litton, who is not a party to the litigation, appears to be running this case behind the scenes for Bank of New York Mellon, the trustee of a securitized trust that alleges to own the mortgage on our client’s home.


In defending foreclosure cases, homeowner's counsel must be persistent in order to obtain every scrap of evidence that might help save a client’s home. Homeowners or lawyers with questions about motions to compel discovery can E-mail their questions to foreclosuredefenselaw@gmail.com.

To review a redacted copy of the Order granting Defendant’s Motion to Show Cause please click the link below.

Order Granting Motion for Sanctions

About Shuster & Saben: Shuster & Saben a team of experienced civil litigators, give each file and client individual attention. We will go to Court as many times as necessary to leave no stone unturned in our efforts to defend our clients' homes. Our lawyers have won foreclosure cases both at trial and on summary judgment and are passionate about defending foreclosures. We are selective about the clients and cases we take on. To arrange a free interview with the firm to see if your case is one where we can help, please call any of our three offices in Miami, Fort Lauderdale or Melbourne or E-mail foreclosuredefenselaw@gmail.com.

New Rule -- No Dumb Discovery Objections!

Dumb Objections Order

Wouldn't it be great to live in a world where you didn't have to see boilerplate, utterly meaningless discovery objections, devoid of content and existing in some suspended state of phantom word jumble, where you know they're there and yet they are also not there?

Well Magistrate Judge Simonton wants to put a stop to such verbal detritus, and her general discovery order outlines a vision for a better, more substantive discovery world, where people answer interrogatories in good faith and no one interposes "vague" or "overbroad" objections unless there's a really good reason.

Take a gander and you may have a tear in your eye by the time you're finished:

The parties shall not make nonspecific, boilerplate objections....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.....

If there is an objection based upon an unduly broad scope, such as time frame or geographic location, discovery should be provided as to those matters within the scope which is not disputed.....

An objection that a discovery request is irrelevant and not reasonably calculated to lead to admissible evidence must include a specific explanation describing why the request lacks relevance and why the information sought will not reasonably lead to admissible evidence.....

The parties shall not recite a formulaic objection followed by an answer to the request. It has become common practice for a Party to object on the basis of any of the above reasons, and then state that "notwithstanding the above," the Party will respond to the discovery request, subject to or without waiving such objection. Such an objection and answer preserves nothing and serves only to waste the time and resources of both the Parties and the Court. Further, such practice leaves the requesting Party uncertain as to whether the question has actually been fully answered or whether only a portion of the question has been answered.

In other words, welcome to Discovery Shangri-La.

(Feels good, doesn't it?)

Have You Ever Experienced "Premature Discovery Dispute" Syndrome?

I'm not ashamed to admit that I have.

What can I say, sometimes a person gets excited!

(It's not where you start, it's where you end.)

The first step, however, is to acknowledge you may have a problem, like our friend the witty Magistrate Judge Goodman does here:

Some discovery motions are brought to the Court too early. The discovery disputes at issue here fit into that category. As musically noted by well-known singer-songwriter Tom Petty, “the waiting is the hardest part.”2

I really love footnote 2, this is why Judge Goodman's orders are such fun:

The lyric is from the song “The Waiting,” the lead single from Tom Petty and the Heartbreakers’ album Hard Promises, released in 1981. Although now 30 years old, the song is still used in popular culture. It was featured in at least one promotional spot for the fifth season of the television situation comedy “The Office” and is used at Philadelphia Flyers home games (when officials are reviewing a play). http://en.wikipedia.org/wiki/The_ Waiting_(song) (last visited 5/16/2011). See also http://www.lyricstime.com/tom-petty-the-waiting-lyrics (last visited 5/16/2011).

Can you imagine being Judge Goodman's clerk on this matter:

"Quick, I need you to research recent cultural references to an old Tom Petty song.  What?  Ok, Tom Petty was a singer a long time ago.  You mean they didn't teach you this in law school?  Welcome to my world."

Judge, you are welcome to guest blog here anytime.

3d DCA Watch -- Let's Do the Time Warp Again -- Apex Depos, Economic Loss Rule and Venetian Salami!

I have a quick question -- can you convert a simple breach of contract action into a tort claim for damages?

Has anyone researched this?

Oh well, let's suck in a deep whiff  -- and hold it -- from this week's written utterances, freshly baked from the dank, dark, desultory, Desilu Studios'-like concrete wonderland that is our very own JusticeBunker™:

Walker v. Figarola:

It appears we have finally found something truly apodictic:

Similarly, their complaint failed to state a cause of action for civil theft. As this Court explained in Ginsberg, 645 So. 2d at 494, “Where damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.” The Walkers seek to recast their simple breach of contract claim into a tort claim to avoid the reality that the statute of limitations has run on their contract claim. But the allegations are for a simple breach of an oral contract—Figarola borrowed $25,000 from the Walkers which he promised to repay within three weeks, and the loan remains unpaid.

Hmm, you don't say -- is there a rule that governs all this?

Rocomonde v. Marshalls:

Judge Emas in the house, reversing an sj for a lady who tripped on a mobile clothing rack at Marshalls:

In the instant case, the trial court found, as a matter of law, that Marshalls was not negligent, because Rocamonde saw the mobile rack in the aisle, had the ability to look at the base of the rack, and failed to do so. However, “it is the dangerous condition of an object which must be open and obvious, not simply the object itself.” Kloster Cruise Ltd. v. Grubbs, 762 So. 2d 552, 555 (Fla. 3d DCA 2000). Although the cart itself was open and obvious, a primary issue here is whether the protruding bottom portion of the rack – the condition which is alleged to have caused her to trip and fall – was open and obvious. Viewing the record in a light most favorable to Rocamonde, there is evidence that she tripped over the protruding base of the rack which was hidden or obscured from her view. It cannot be said as a matter of law that Rocamonde was aware of this condition.

I don't know, but the last time I was at the downtown Marshalls I would have been thrilled to just have a mobile clothing rack blocking my aisle.

If I recall correctly, I had immediately in front of me the following:

1.  scattered children's books;
2.  part of a gourmet macaroni box that someone noshed from and was now on the floor;
3.  an LSU Tigers golf club cover;
4.  a homeless person; and
5.  Herman Russomanno.

See what I mean?

Reynolds v. Gero:

Venetian Salami.

Yes, you heard me.

Deal with it.

General Star v. Atlantic Hospitality:

Apex depos -- what is this, the 90s?

Listen closely, kids:

Discovery is intended to be part of the “just, speedy, and inexpensive" determination of disputes—not a device to get greater attention at an adversary’s headquarters.

Ok then, I suppose I should send out a cancellation notice for that three-day Kim Rothstein depo I just scheduled in Aruba.

Bill For Document Production: $2+ Million.

Simon Ton Order on Production

It's interesting to see that prominent lawyers and judges don't read fine print just like regular folks don't, but I sometimes wonder whether lawyers read rules and statutes anymore either.

Here's a pretty amusing order from Magistrate Judge Simonton, in which she denies a request by a defendant bank to compel the plaintiff to pay over $2 million for producing documents in discovery.

The alleged basis for the defendant's request is a Florida statute applicable to financial institutions only in the subpoena context, not when they are defendants producing documents pursuant to Rules 26(g) and 34.

All I can say is the Magistrate Judge is way more patient in addressing this than I would have been:

Plaintiffs obtained the documents in question from Defendant Bankatlantic through discovery. Thus, the plain language of Fla. Stat. § 655.059 states that it only applies when a financial institution provides documents pursuant to a subpoena. Therefore, it appears that § 655.059(1)(e) does not apply here, where Bankatlantic is a party to this litigation, and provided the documents at issue pursuant to discovery requests, and did not provide Plaintiffs with the documents as a non-party, pursuant to subpoena. Bankatlantic has not provided any caselaw which supports its argument that § 655.059(1)(e) applies when the financial institution is a party providing discovery.

Come on people, at least make an effort.

Start Your Monday With Heavy Rain And a Sanctions Order!

Judge Brown Sanctions Order

Oh boy, here we go:

This matter is before this Court as a result of the issuance of an Order Granting Motion to Compel Discovery (D.E. 37) wherein (paragraph 2) plaintiffs were allowed to show good cause, in writing, why sanctions should not be imposed for the necessity of the filing of the motion to compel. Plaintiffs responded (D.E. 42). The Court finds the response without merit and notes that it completely fails to address the issue at hand, andlor evinces a lack of knowledge ofthe Federal Rules of Civil Procedure.

The first four (4) plus pages of the response extol the merits of plaintiffs' case ... wonderful except that this has nothing, whatsoever, to do with the issue of the necessity of the filing of themotion to compel. Then plaintiffs explain that their failure to respond in a timely matter (sic) "was not intentional" and that defendant "suffered no prejudice".

It is never explained just exactly how the failure to respond was not intentional. Nowhere in this response is it suggested that a clerical error was made, that a date was overlooked, that a paper was misplaced, or anything else "unintentional". What is explained is that: (1) the plaintiffs "are two elderly individuals, and a widow"; (2) that they "all live in a remote region of Venezuela"; (3) they "do not have e-mails or faxes"; (4) "the various documents need to be translated into Spanish" and (5) "[Clonditions in Venezuela are not ideal for the rapid transmission of information". The Court has looked far and wide for the special laws of discovery that apply in these instances and has discovered none... and none has been cited by plaintiffs. Conspicuously missing from this motion - and from the Court file - is anything related to why plaintiffs did not attempt to seek some relief from the Court BEFORE the filing of the motion to compel due to these alleged exceptional and extraordinary circumstances.

There really should be a handbook for all the "special laws of discovery" that seem to crop up in pleadings nowadays.

Feel free to use this space to list some of your favorites!

Defendant's Discovery Responses

From a friend.

You can see the rest of the courtoons here.