13 Fla. L. Weekly Supp. 736b
Insurance — Personal injury protection — Discovery — Failure to comply — Where insurer did not timely raise any objections to interrogatories or requests for production, objections are deemed waived and insurer is ordered to provide complete verified answers to interrogatories and produce documents responsive to request for production — Documents claimed to be privileged may be filed under seal, and court will conduct hearing to determine if privilege objection should not also be waived
B&T MEDICAL CENTER, LLC, assignee of Zoraida Viruet, #4, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 03-SC-5797. December 14, 2004. J.R. Sloop, Judge. Counsel: Peter A. Shapiro, The Law Offices of Peter A. Shapiro, Orlando. Angela Stewart, Orlando.
ORDER ON PLAINTIFF’S MOTION TO COMPEL AND FIND DEFENDANT’S OBJECTIONS WAIVED
Following the hearing of September 14, 2004, IT IS ORDERED:
1. Plaintiff’s Motion to Compel and Find Defendant’s Objections Waived is GRANTED.
2. Plaintiff served interrogatories and request for production on Defendant with process on or about December 30, 2003. Defendant did not timely raise any objections to either the interrogatories and request for production.
3. Defendant served unverified answers to interrogatories to Plaintiff on May 10, 2004 and a response to the request for production. Defendant provided a privilege log on August 31, 2004.
4. To this date Defendant has still not provided verified answers to the interrogatories.
5. The Court finds that Defendant has waived its objections. Defendant shall provide, no later than October 14, 2004, 5PM, complete, verified answers to each and every interrogatory question and produce documents responsive to each and every single request for production. Defendant may not raise any objections with one exception.
6. Defendant shall file any documents that it contends are work product or attorney client privileged under seal in the Court file no later than October 14, 2004, 5PM. The Court will then conduct another hearing to determine if Defendant can show the Court that the privilege objections should not also be waived.
7. Should Defendant fail to convince the Court that privilege objections should not also be waived (as contended by the Plaintiff), the documents filed under seal shall be given to Plaintiff at the hearing and this Court will award Plaintiff additional attorneys fees.
8. At this time, the Court awards the Plaintiff $850.00 in attorneys’ fees, payable to Peter A. Shapiro, P.A. no later than October 14, 2004, 5PM, pursuant to Rule 1.380, Fla.R.Civ.P as a sanction against Defendant for its failure to comply with the discovery rules applicable to this case. This award applies to case #03-SC-5388 and #04-SC-163 as well ($850.00 is a total amount paid for all three cases — 03-SC-5797, 04-SC-163 and 03-SC-5388).
9. The Court further comments: I would say of these types of hearings that we have, in PIP cases with Defendants, corporate Defendants not complying with discovery or dragging their feet in discovery or impeding discovery or a multiplicity of changing law firms to where Attorney A says, well, Attorney B didn’t pass this on and Attorney C didn’t pass it on to B and you’ve got corporate Defendants that keep changing law firms, if I had a score card like a Cardinal/Yankee game at the world series this year, in every box I would be putting the word “P” for Progressive. I have in the past and I will again take judicial notice that I have never in my life — I’ve been on the bench 12 and a half years — seen a corporate litigant impede, delay, obfuscate, and try in every way, shape, manner, or form to not comply with the rules of discovery and, worse yet, discovery orders issued by judges. And insurance defense lawyers have either — I’m, going to say indicated by body language, the rolling of eyes, or the fact that various Progressive entities seem to change law firms so many times, it’s my belief that it’s not the lawyers who are doing this.
10. It’s my belief that the lawyers are telling their corporate client, one of the various Progressive entities, look, this is what the rules are, this is what we must do, you got to get it to me because I got to get it to the Plaintiff. Or, okay, we had that hearing. The judge ruled against us. We got to give up the ghost. Yet the corporate nonlawyer defendant is making the decision not to comply with the court’s order. And over the past decade, there have been enumerable articles in the Florida Bar Journal, especially involving civil discovery and defendants, whether they be corporate defendants or individual defendants, conducting this type of, you know, we don’t care what the rules say. We don’t care what the judge orders.
11. I know you’re telling us as our lawyer we got to do this or we got to do that. You know, they’re giving you the bum’s rush. And this is yet another example, in my opinion, of those types of activities. Lawyers have a dual obligation. They have an obligation to vigorously represent their client. But as the ABA and the Florida Bar and the Florida Bar Journal keeps telling us, they have a higher obligation. And they have a higher obligation to follow the rules and comply with the rules, not proceed with frivolous lawsuits they know are frivolous. They can be held responsible for attorneys’ fees under 57.105 just like their client can in equal shares.
12. There are so many articles out there where the non-lawyer client and the lawyer disagree on what the rules are, and how if you don’t like a judge’s order you just don’t not comply with it like Ellis Rubin and get held in contempt. You appeal it. Yet none of the discovery orders I’ve issued that Progressive in the past has either declined or refused or fear no evil, see no evil, smell, you know, haven’t complied with, none of them has been appealed. I certainly don’t know this, but, you know, it’s the old thing about circumstantial evidence versus direct evidence. One of the best examples that I heard lawyers argue is that if you live up in Massachusetts and you’re looking out your window and you see it’s snowing, you know, you know it snowed. If you look out your window before you go to bed and the grass is kind of brownish-green and you wake up in the morning and there are three inches of snow, you know it snowed. But that is circumstantial evidence. It’s not direct evidence. I don’t have any direct evidence that Progressive is ignoring its lawyer’s advice, changing lawyers to keep delaying and dragging their feet in discovery.
13. But the circumstantial evidence, every time we have one of these hearings, it just becomes taller and taller and taller and taller and taller. And I think, you know, lawyers can risk their careers by not following the rules, rather than following the dictates of their corporate client. It would be like if a lawyer was giving — well, a criminal law analogy might be better, you know. A guy is charged with a serious crime. He goes to his lawyer. Obviously what they say is privileged. The question comes up, well, what happens if I don’t show for trial? The lawyer says, they’ll issue a bench warrant for your arrest. And, you know, what happens if I leave the state? Well, if they find you, they’ll extradite you. What if I leave the country? They’ll find you and they’ll try to extradite you with the help of the state department. The next question: Mr. Lawyer, do you know of any countries that don’t have extradition treaties with the United States? Now you start getting in a gray area if the lawyer says, yes, I do. But then when the client says, well, could you tell me a little bit more about Belize or North Korea and do you have any contacts there where you could help me get a plane ride there? Well, yeah, here, call my friend Joe in Miami. At that point the lawyer has stepped over the line. And I’m not even sure if that’s an accurate analogy to the kind of offenses we’re talking about, but it’s probably not accurate. But what I’m pointing out is there are rules of conduct and rules of discovery and many, many appellate decisions about the kinds of things that we’re talking about here today.
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