The Estate of Lily Coombs v. Atlantic Health Care Center, LLC et al
ORDER granting DE 106 Plaintiffs' Amended Motion to Compel and granting in part and denying in part DE 107 Plaintiffs' Amended Motion to Compel. Defendant shall produce documents responsive to Plaintiffs' RFP Nos. 1 through 5 on o r before Friday, June 5, 2021. Defendant shall respond to Plaintiffs' Interrogatory Nos. 2, 5, 7, 8 and 9 on or before Friday, June 25, 2021. DE 107 is denied as to Plaintiffs Interrogatory Nos. 3 and 4. Signed by Magistrate Judge Shaniek M. Maynard on 6/7/2021. See attached document for full details. (ggr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-14420-CV-ROSENBERG/MAYNARD
ATLANTIC HEALTHCARE, LLC, et. al.,
ARGONAUT INSURANCE COMPANY,
ORDER ON PLAINTIFFS’ AMENDED MOTIONS TO
COMPEL (DE 106 & 107)
THIS CAUSE is before the Court upon the above Motions. Upon consideration of the
parties’ arguments and being otherwise fully advised in the premises, the undersigned orders as
This case is a declaratory action regarding the obligation of an insurer, Defendant Argonaut
Insurance Company (“Argonaut” or “Defendant”), to defend its insureds, Plaintiffs, from claims
made against them in an underlying action in Florida state court. On October 15, 2020, the
undersigned issued a Report and Recommendation that Plaintiffs’ Motion for Summary Judgment
be granted as to the sole issue in this case, which was whether Argonaut had a duty to defend
Plaintiffs in the underlying state action. DE 73. On January 27, 2021, the Honorable Robin L.
Rosenberg, the presiding judge in this case, adopted the recommendation over Defendant’s
objections and entered a Final Judgment for Plaintiffs on February 9, 2021. DE 75, 77, and 82.
After the entry of the Final Judgment, Plaintiffs moved for Costs and Attorney Fees. DE
91 and 94. On April 1, 2021, Defendant filed the instant Expedited Motion to Extend Deadline
seeking an extension of the April 2, 2021 deadline to file a Response to Plaintiffs’ Motion for
Attorney Fees. DE 101. The undersigned granted Defendant’s Motion in part, vacating the April
2, 2021 Response deadline, and took the new Response deadline under advisement. DE 102. On
April 12, 2021, the undersigned held a telephonic conference with the parties to discuss the
discovery and briefing schedule for Plaintiffs’ Motion for Attorney Fees. DE 111. Defendant’s
Response deadline was then set for June 25, 2021. DE 115.
During the pendency of Defendant’s Expedited Motion to Extend Deadline, Plaintiffs filed
the instant Motions to Compel requesting the Court order Defendant to provide better responses
to the fee discovery propounded by Plaintiffs. DE 106 and 107. The undersigned considers the
Motions to Compel in turn.
Plaintiffs’ Amended Motion to Compel Responses to Requests for Production (DE
Plaintiffs’ first Motion to Compel concerns Defendant’s responses to five Requests for
Production (“RFP”). The five RFPs seek: (1) copies of all time sheets and bills generated by any
of Defendant’s attorneys for defending this case; (2) all expert reports generated by Defendant’s
fee experts; (3) the resume of Defendant’s fee expert(s); (4) a copy of any retainer agreements by
and between Defendant and Defendant’s fee experts; and (5) a copy of any fee agreements entered
between Defendant and Defendant’s attorney with regard to the hourly rate and how the attorney
can bill Defendant. DE 106-1.
In response to the RFPs, Defendant proffered several pages of general objections and
qualifications as well as specific objections to each request. See id. Pursuant to the undersigned’s
standing Discovery Procedures Order as well as this District’s Local Rules, the general objections
and qualifications are meaningless and without merit.
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DE 7 at 4-5; S.D. Fla. Local. R.
26.1(e)(2)(A) (“Where an objection is made to any integratory or subpart thereof or to any
production request . . . the objection shall state with specificity all grounds.”); also e.g. S.E.C. v.
Merkin, No. 11-23585-CIV, 2012 WL 3203037, at *8 (S.D. Fla. Aug. 3, 2012) (“Generalized
objections asserting attorney-client privilege or the work product doctrine do not comply with the
Local Rules. . . Boilerplate objections . . . are inadequate, meaningless, and preserve nothing for
the party making such objections.”).
Defendant objected to Request Nos. 2 through 4—those related to Defendant’s fee
expert(s)—because at that time it did not yet have retainer agreements with, resumes for, or reports
from any fee expert. DE 106-1. Defendant then stated it would comply with the Federal Rules of
Civil Procedure regarding expert disclosures. Id. Plaintiffs argue that Defendant should already
have provided this information because Plaintiffs have been attempting to discuss fees with
Defendant since October 2020 and, thus, Defendant has had “ample opportunity” to obtain an
expert. DE 106 at 4. Defendant further explained at the April 12, 2021 telephonic conference that
it still did not have an expert(s) selected because it did not know the timeframe for fee discovery,
which would effect which potential expert could take on the job. Given the fact that deadlines
have now been set for a deposition of Plaintiffs’ attorney and Defendant’s Response deadline, see
DE 115, Defendant should have no further issue in finalizing its expert(s) for this case, if any. If
Defendant ultimately employs an expert(s) in responding to Plaintiffs’ motion for fees, Plaintiffs
are entitled to the information sought in Request Nos. 2 through 4. Therefore, Defendant shall
produce documents responsive to Request Nos. 2 through 4 for any expert it uses in responding to
Plaintiffs’ fee motion. Defendant shall produce this information to Plaintiffs on or before the date
on which it files its Response to Plaintiffs’ Motion for Fees. Plaintiffs will then have an
opportunity to review and address these materials as needed in their Reply.
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Defendant objected to Request Nos. 1 and 5—which seek copies of Defendant’s attorneys’
time sheets, bill, and fee agreement(s)—based on attorney-client privilege, work product privilege,
and relevance. DE 106-1 at 5, 7. As to the relevance, Defendant contends that its counsel’s fees
are irrelevant because it “is not currently challenging” the reasonableness of the amount of time
spent by Plaintiffs’ counsel, only the hourly rate and multiplier. Id.; see also DE 106-2 (email
from defense counsel stating “Argonaut is not going to contest the amounts of time spent in your
fell bill. We are going to contest the $750 hourly rate and the multiplier.”). However, Local Rule
7.3 specifically provides that “[i]f a party objects to an hourly rate, its counsel must submit an
affidavit giving its firm’s hourly rates for the matter and include any contingency, partial
contingency, or other arrangements that could change the effective hourly rate.” S.D. Fla. Local
R. 7.3(a). Defense counsel was required to provide this affidavit within fourteen days after the
filing and service of Plaintiffs’ Motion for Fees, id., but failed to do so. Thus, the time to provide
the requested information in the form of an affidavit has passed. Because Defendant is challenging
Plaintiffs’ counsel’s billing rate, it must disclose the billing rates of its own attorneys under the
Defense counsel’s time sheets are also relevant to determining whether the time spent by
Plaintiffs’ counsel was reasonable and in evaluating the complexity of the case. As the Florida
Supreme Court recognized in Paton v. GEICO General Insurance Company, “[t]he hours
expended by the attorneys for the insurance company will demonstrate the complexity of the case
along with the time expended, and may belie a claim that the number of hours spent by the plaintiff
was unreasonable, or that the plaintiff is not entitled to a full lodestar computation, including a
multiplying factor.” 190 So. 3d 1047, 1052 (Fla. 2016) (emphasis added). Here, Plaintiffs are
seeking a multiplier so the complexity of the case, including the novelty or difficulty of the issues
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presented, is a factor to be considered. See, e.g., Fla. Patient’s Compensation Fund v. Rowe, 472
So.2d 1145 (Fla. 1985). Thus, Defendant’s time sheets, billing records, and their fee agreements
are relevant and must be disclosed.
As to privilege, Defendant objected to Request Nos. 1 and 5 because “[a]n insurer’s claim
file includes communications with its attorneys and attorney fee bills” which “constitute attorneyclient privilege and work product and will be protected from discovery prior to a
determination of coverage.” DE 106-1 at 5, 7. Defendant seemingly misconstrued the discovery
requests, which seek attorney bills, time sheets, and fee agreements, not insurance claim files. In
producing the responsive documents, Defendant may redact privileged information to the extent
any is contained therein but must provide an appropriate privilege log with the production. See
S.D. Fla. Local R. 26.1(e)(2); Lincoln Nat’l Life Ins. Co. v. Biviano, No. 09-82447-CIV, 2011 WL
13108073, at *4 (S.D. Fla. Apr. 13, 2011) (“[W]hen asserting a claim of privilege in this District
it is incumbent upon the proponent to specifically and factually support his claim and to submit a
privilege log . . . . ‘[G]eneral’ or ‘blanket claims’ of privilege are insufficient to justify protection
on the basis of privilege.”). Accordingly, Defendant’s objections to RFP Nos. 1 and 5 are
Plaintiffs’ Amended Motion to Compel Responses to Interrogatories (DE 107)
Plaintiff also moves the Court to compel Defendant to respond to its Interrogatories Nos.
2 through 5 and 7 through 9. DE 107. Several of the Interrogatories at issue seek information
similar to the RFPs discussed in Section I, supra. Interrogatory Nos. 5 and 7 seek general
information about Defendant’s fee experts and their opinions as to the lodestar amount or request
for a multiplier in this case. DE 107-1 at 6-7. At the time Defendant responded to the discovery
requests it had not yet retained experts. However, as directed above, now that the briefing schedule
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has been set Defendant should have no further issue in finalizing its experts in this case such that
Defendant shall respond to Interrogatory Nos. 5 and 7 on or before June 25, 2021, when its
Response to Plaintiff’s Motion for Fees is due.
Interrogatory Nos. 8 and 9 seek information regarding defense counsel’s time, hourly rate,
and fee agreement in this case. DE 107-1 at 8-9. Defendant asserts the same objections as those
proffered in response to Plaintiffs’ RFP—that the information is irrelevant and protected by
attorney-client and work product privileges. Id. As stated above, the requested information is
relevant and could help determine whether Plaintiffs are entitled to a full lodestar computation
and/or a multiplier. See Paton, 190 So. 3d at 1052; S.D. Fla. Local R. 7.3. Further, describing the
time spent on this matter and generally describing each entry does not require divulging
“conclusions, opinions, or theories,” as Defendant argues in its objection. DE 107-1 at 8.
Defendant need not disclose any privileged information in answering the discovery requests, and
to the extent it chooses to answer the Interrogatories by providing copies of attorney time sheets
or fee agreements, Defendant may redact privileged information.
Interrogatory No. 2 seeks Defendant’s “position” as to five topics related to the issues in
this case, including “the likelihood that the acceptance of this bad faith case precluded other
employment by Mr. Stewart,” and “the fee, or rate of fee, customarily charged in the locality for
legal services of a comparable or similar nature.” DE 107-1 at 4-5. Defendant objects to the
Request because the Requests asks for Defendant’s “position” rather than facts, and Defendant’s
conclusions, opinions, or theories are protected by work product privilege. Id. Plaintiffs contend
that the request simply “seeks to streamline discovery on the central issues.” DE 107 at 4. Federal
Rule of Civil Procedure 33 provides that “[a]n interrogatory is not objectionable merely because
it asks for an opinion or contention that relates to fact or the application of law to fact.” Fed. R.
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Civ. P. 33(a)(2). “Requests for opinions or contentions that call for the application of law to fact,
can be most useful in narrowing and sharpening the issues.” Fed. R. Civ. P. 33(c) advisory
committee’s note. Thus, requests for opinions or contentions that call for the application of law to
fact are proper. In re Reliance Fin. & Inv. Grp., Inc., No. 05-80625-CIV, 2006 WL 8435541, at
*3 (S.D. Fla. Feb. 14, 2006); see also Suncast Technologies, L.L.C. v. Patrician Products, Inc.,
No. 07-80414-CIV, 2008 WL 179648, at *10 (S.D. Fla. Jan. 17, 2008) (“[C]ontention
interrogatories constitute a valid and constructive discovery tool when used correctly.”).
Interrogatory No. 2 does not seek the Defendant’s legal conclusions, rather, it asks Defendant to
explain its basis for making certain contentions in the case. Defendant can provide these answers
without providing privileged information. Therefore, Defendant’s objection to Interrogatory No.
2 is overruled.
Finally, Interrogatory Nos. 3 and 4 ask Defendant to list the number of coverage action
cases filed against it in Florida for the past five years and list those actions in which Defendant
DE 107-1 at 5.
Defendant objects to these requests as overly broad, unduly
burdensome, irrelevant, and not proportional to the needs of the case because “[w]hether or not
AIC has filed or prevailed in any coverage action in the last five years has no bearing on the
reasonableness of Plaintiffs’ attorneys’ fee request.”
Id. at 6.
Plaintiffs respond that the
information is relevant to the complexity of the case, the rarity of the issues, and whether litigating
with this Defendant would preclude its attorneys from other employment. DE 107 at 5. The
undersigned agrees with Defendant. The request is overbroad because it does not ask for duty to
defend cases, cases relating to D&O policies, or provide any other limiting information from which
the Court could ascertain how those cases compare to the matter at hand. It is also irrelevant in
that knowing how many times Defendant was sued and whether Defendant prevailed does not shed
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light on the arguments made in those cases and the comparative rarity or complexity of the specific
issues raised in this case. Consequently, Plaintiffs’ request to compel responses to Interrogatory
Nos. 3 and 4 is denied.
It is therefore, ORDERED AND ADJUDGED that Plaintiffs’ Motion to Compel (DE
106) is GRANTED. Defendant shall produce documents responsive to Plaintiffs’ RFP Nos. 1
through 5 on or before Friday, June 5, 2021. It is further
ORDERED AND ADJUDGED that Plaintiffs’ Motion to Compel (DE 107) is
GRANTED IN PART and DENIED IN PART.
Defendant shall respond to Plaintiffs’
Interrogatory Nos. 2, 5, 7, 8 and 9 on or before Friday, June 25, 2021. The Motion is denied as to
Plaintiffs’ Interrogatory Nos. 3 and 4.
DONE AND ORDERED in Chambers at Fort Pierce, Florida, this 7th day of June, 2021.
SHANIEK M. MAYNARD
UNITED STATES MAGISTRATE JUDGE
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