22 Fla. L. Weekly Supp. 656a
Online Reference: FLWSUPP 2205GONZInsurance — Personal injury protection — Discovery — Depositions — There is no legal basis for court to order sequence of depositions
CLEVELAND RADIOLOGY CENTER, A/A/O Orlanda Gonzalez, Plaintiff, vs. STATE FARM AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Lee County, Civil Action. Case No. 14-CC-1146. November 25, 2014. Josephine Gagliardi, Judge. Counsel: Nelson A. Guerra, Law Office of Gonzalez & Associates, Brandon, for Plaintiff. Julie C. Ireland, Cole, Scott & Kissane, P.A., Bonita Springs, for Defendant.
ORDER ON MOTION TO COMPELSEQUENCE OF DEPOSITIONS
THIS CAUSE comes before the Court on Defendant’s “Motion For Protective Order And Objections To Plaintiff’s Notice Of Taking Deposition Duces Tecum, And Motion To Compel Sequence Of Depositions And Incorporated Memorandum Of Law,” filed October 28, 2014, and Plaintiff’s response filed October 30, 2014. Having reviewed the pleadings, the case file, and the applicable law, and having heard argument by the parties on October 31, 2014, the Court finds as follows:
HISTORY:
1. On May 17, 2012, Orlanda Gonzalez sustained personal injuries when she was involved in minor motor vehicle accident. Ms. Gonzalez sought treatment and remedial care for bodily injuries from May 25, 2012 to June 27, 2012. On July 19, 2012, Ms. Gonzalez assigned her benefits to Plaintiff, Cleveland Radiology Center, Inc. Plaintiff gave notice of covered losses and made demand for No-Fault benefits for necessary and related medical, rehabilitative, and remedial treatment on July 19, 2012. Defendant processed Plaintiff’s medical bills pursuant to the terms of the applicable policy and made payments, but Plaintiff alleges it was an underpayment. Plaintiff filed suit on March 5, 2014.
PROCEDURAL HISTORY:
2. With the service of the initial complaint on April 7, 2014, the Plaintiff served discovery requests, as well as correspondence dated March 20, 2014, requesting available dates in which to coordinate the deposition of the litigation adjuster in this matter. The letter indicated that it was a formal request to depose the “litigation adjuster” and to provide available dates for the same. The letter stated “We will only accept responses by email.” The letter indicated that if there was a disagreement on this, a call must be made to the attorney’s assistant. Then, the letter stated “If for any reason you believe that I am not entitled to depose your corporate representative please contact my assistant directly at ###-#### so we may discuss your objections. If you have any questions, please feel free to contact me at ###-####.”
3. No action was taken by either party between March 20, 2014 and May 20, 2014.
4. On May 20, 2014, Defendant contacted Plaintiff by email in order to coordinate the deposition of the corporate representative with the most knowledge. The email from the paralegal stated “Please allow this correspondence to serve as our first request to schedule the deposition of the corporate representative with the most knowledge of billing and coding . . . Our office is available on the following dates and times: * 6/25/14 * 6/30/14 * 7/13/14. Please advise of the availability of corporate representative. . . by end of business Tuesday, May 27, 2014 at 4:00 pm. If we do not hear from you, we will proceed to set same deposition/ hearing unilaterally.”
5. On May 21, 2014, the Plaintiff contacted the Defendant by email stating they were not available on the dates provided, and they were scheduling for August and September. The Plaintiff renews the March 20, 2014 request for the deposition of the adjuster.
6. No action was taken by either party from May 21, 2014 until July 24, 2014.
7. On July 24, 2014, the Defendant sent an email with nine dates for the month of September and indicates that the deposition of the corporate representative for the Plaintiff can be first, followed by the deposition of the adjuster for the Defendant. The Plaintiff further states that any of the nine dates listed “09/08/2014 – All Day; 09/10/2014 -All Day; 09/11/2014-All Day; 09/15/2014 All Day; 09/17/2014- All Day; 09/18/2014-All Day; 09/19/2014-All Day”, can be used for the deposition of both.
8. No action was taken by either party from July 24, 2014 until September 5, 2014.
9. On September 5, 2014, the Defendant unilaterally set the deposition of the corporate representative on November 11, 2014.
10. On September 9, 2014, the Plaintiff sent an email notifying the Defendant that Attorney Guerra is already scheduled for a deposition on that day. The email further stated: “I would like to first apologize for not responding sooner to your email in regards to coordinating all pending depositions. At this time we kindly ask for you to please review the provided dates below and advise if we can move forward in scheduling all depositions mutually without having to set any unilaterally. 11/6/14 at 10 am – Litigation Adjuster; 11/7/14 at 1 pm – Corp Rep (Mario Fonseca) 11/14/14 at 10am PWMK of setting rates- Gemaine Rodriguez (subpoena).”
11. On September 10, 2014, the Defendant responded with unavailability on the offered dates. The Defendant offered: “if you would like to reschedule the depositions we are available November 10th all day, November 11th all day, November 19th all day, and November24, 25, and 26th all day. When scheduling the three below depositions, we would kindly ask that our deposition of the Plaintiff’s Corporate Representative and PWMK of setting rates are scheduled to be held first and then we can schedule the deposition of our Litigation Adjuster to be held after the other two depositions. Please let me know, from the above dates, when you are available at your earliest convenience.”
12. On September 10, 2014, the Plaintiff responded by email that they need to check with the Attorney.
13. On September 15, 2014, the Defendant sent an email asking about the status of scheduling.
14. No action was taken by either party from September 15, 2014 until October 16, 2014.
15. On October 16, 2014, the Plaintiff unilaterally set the deposition of the Defendant’s litigation adjuster.
16. On October 28, 2014, the Defendant filed the emergency motion for protective order.
17. On October 31, 2014, both the Plaintiff and the Defendant appeared before this Court to argue their respective positions. Prior to the hearing, the Counsel were able to each agree that they would cancel the unilaterally set depositions.
ANALYSIS:
18. Plaintiff argued that, since the Florida rules of civil procedure are modeled after the federal rules of civil procedure, we should look to federal law to interpret Florida’s rules. Plaintiff cites federal case law from New York indicating that, under federal rules, depositions should be taken in the order they are noticed by the parties. Plaintiff argues there is no priority of discovery to either party. Defendant argued that the Plaintiff’s depositions should be taken prior to the deposition of the Defendant’s litigation adjuster, so that the adjuster would be adequately prepared to testify at the deposition.
19. Defendant cites to orders from courts in other circuits which directed that depositions in similar PIP cases be sequenced such that plaintiffs’ depositions be taken prior to the taking of the deposition of the Defendant’s litigation adjuster. See Natural Healing Arts Medical Ctr., Inc. v. State Farm Mutual Automobile Insurance Co., Case. No. 502011CC1708XXXXSB (Palm Beach County Ct. July 31, 2012); Florida Spine & Injury v. State Farm Mutual Automobile Insurance Co., Case No. 5032011SC017830XXXXSB (Palm Beach County Ct. October 31, 2012); Universal X-Ray Corp. v. State Farm Mutual Automobile Insurance Company, Case No. 14-0856 (Miami-Dade County Ct. May 29, 2014); Kadosh Medical Services, Inc. v. State Farm Mutual Automobile Insurance Company, Case. No. 14-2011 (Miami-Dade County Ct. June 12, 2014). However, the cases cited provided no reasoning, and are merely persuasive authority. As acknowledged by the parties, there is no legal authority and no controlling precedent requiring a specific sequence to the taking of depositions.
20. The Court notes that in all of the correspondence and documents filed with the Court that there may be a lack of professionalism and actions in good faith, but the Court shall not make that conclusion at this time.
21. The Court attaches to this order a copy of the Standards of Professional Courtesy and Conduct.
22. Accordingly, the Court declines to order the sequence of discovery because there is no legal basis for such an order.
Therefore, it is
ORDERED AND ADJUDGED that Defendant’s motion is DENIED. The parties shall be present for a case management plan on December 8, 2014 at 4p.m., by telephonic conference call initiated by the Court, which will call the parties. Counsel are ordered to have the authority of their clients to set depositions, make discovery cut off dates, and set a date for trial in the year 2015. This is not a complex case, and the Court orders that this case be completed within the next twelve months. The parties should be mindful that the dates to be set will be Court-ordered, and they shall be adhered to or there will be consequences.
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