United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE.
case comes before the Court without a hearing on
Defendant/Counterclaim-Plaintiff Orange Lake Country Club,
Inc.'s Motion to Compel Against
Plaintiff/Counterclaim-Defendant Lawrence McGhiey and Motion
to Strike His Discovery Responses (Doc. 57). Mr. McGhiey has
filed a response in opposition to the motion (Doc. 70).
Lawrence and Norene McGhiey are 80 years old and have been
married for almost 60 years (Doc. 70 at 2). They purchased a
timeshare from Defendant Orange Lake Country Club, Inc. in
2016 (Doc. 1, ¶ 34). As part of the transaction,
Plaintiffs executed a promissory note and mortgage (Doc. 1-1
at 24-26). They failed to make the note payment due July 15,
2018 and all subsequent payments, and Defendant sent multiple
collection letters (Doc. 17, ¶ 42; Doc. 1-1 at 4, 6, 9,
12, 15, 29, 35). Plaintiffs engaged DC Capital Law, LLP to
respond to those collection letters (Id.). In
December 2018 Plaintiffs caused DC Capital Law to file this
lawsuit alleging that Defendant's attempts to collect the
note violated the Fair Debt Collection Practices Act and the
Florida Consumer Collection Practices Act (Doc. 1). Defendant
has answered and counterclaimed on the note, and to recover
damages from DC Capital Law and Newton Group Transfers, LLC
for tortious interference with contract and civil conspiracy
(Doc. 60). Plaintiffs hired the Bush Ross, P.A. law firm to
represent them on the counterclaim (Doc. 67). As a result,
Plaintiffs are now represented by two law firms, each
handling a different piece of this case.
Plaintiffs made their Fed.R.Civ.P. 26(f) disclosures both law
firms listed Lawrence McGhiey as a fact witness (Doc. 57 at
4-5) and at least one of the firms listed his treating doctor
as a witness who will provide testimony concerning Mr.
McGhiey's “mental and physical condition”
(Doc. 70 at 4).
March 29, 2019 Defendant served identical requests for
production and interrogatories on both Plaintiffs (Doc. 69 at
3). This discovery concerns the complaint and counterclaim.
One of Plaintiffs' lawyers says this created a challenge
for counsel in deciding who should handle which of the
requests and interrogatories (Doc. 70 at 8). This may have
been why Defendant agreed that Plaintiffs could have through
May 9, 2019 to respond to the discovery (Doc. 57 at 2).
served their responses, without certificates of service, and
without the signature of their lawyers on May 13, 2019
(Id.). Plaintiffs explain that their initial
discovery responses “were not signed by counsel given
the hybrid nature of the request.” (Doc. 70 at 4). Mrs.
McGhiey produced approximately 60 pages of information with
her responses (Id.). The Court is under the
impression that Mr. McGhiey did not produce anything. Counsel
conferred on May 21 and on May 27, Mrs. McGhiey produced more
than 150 additional pages (Id.). On June 6 she
provided a privilege log (Id., at 5).
McGhiey responded to each request and all but three of the
interrogatories as follows:
Objection. Mr. McGhiey lacks the capacity to answer this
request for production [or interrogatory]. As stated in the
Doctor's Note attached hereto as Exhibit “A,
” Mr. McGhiey has been diagnosed with “dementia
in Alzheimer's disease with early onset from minimum
since 2009.” Therefore, Mr. McGhiey is unable to
respond to this request [or interrogatory]. The information
responsive to this request [or interrogatory] can be found in
Norene McGhiey's Responses to OLCC's First Request
for Production [or Answers to OLCC's First Set of
Interrogatories], which has been contemporaneously filed with
(Doc. 57 at 2). Due to confidentiality concerns, the full
doctor's note has not been produced but Defendant
represents that the relevant part says: “This letter is
to state that is [sic] under my name. He has diagnosis of
dementia in Alzheimer's disease with early onset from
minimum since 2009. If you have any questions or concerns
please call my office 217-xxx-xxxx. Thank you for your help
and concern.” (Id.). At Defendant's
request, Mr. McGhiey signed and delivered an Authorization
for Release of Protected Health Information (Doc. 57-8). The
authorization is for his “[e]ntire medical record with
no date restrictions.” (Id., at 3).
Apparently, Defendant's lawyers have not yet received
this information from the doctor(s).
McGhiey's responses to Defendant's discovery begin
with the word “Objection” but that by itself, is
insufficient to satisfy the requirements of Fed.R.Civ.P.
33(b)(4) and 34(b)(2)(C). The question is, on what ground has
he objected? He argues in his memorandum, without citation to
any legal authority, that “[a]n objection based on
capacity or a medical diagnosis is based on a claim of
privilege and is not waived.” (Doc. 70 at 11). The
Court is not persuaded. The two reasons the Court can think
of to make an objection here would be in response to
questions and requests that are improper and to preserve a
right or privilege. Mr. McGhiey has not alleged that there is
anything improper about Defendant's requests for
production and interrogatories. And, he has failed to claim
that the discovery seeks to invade any right or privilege he
possesses. In fact, insofar as his medical condition is
concerned, he has already given defense counsel a full
authorization to obtain his medical records. Now, the Court
finds that Mr. McGhiey failed to assert any cognizable
objection to the discovery.
Mr. McGhiey had successfully interposed an objection, his
responses were untimely and as a result, he waived whatever
objections he may have had. Caldwell v. Compass
Entertainment Group, LLC, No. 6:14-cv-1703-Orl-41TBS,
2014 WL 7067270 at *1 (M.D. Fla. Dec. 12, 2014); Molina
v. Hentech, LLC, No. 6:13-cv-1111-Orl-22KRS, 2014 WL
12625948, at *1 (M.D. Fla. Oct. 15, 2014). “'Any
other result would … completely frustrate the time
limits contained in the Federal Rules and give license to
litigants to ignore the time limits for discovery without any
adverse consequences.'” Krewson v. City of
Quincy, 120 F.R.D. 6, 7 (D. Mass. 1988) (quoting
Slauenwhite v. Bekum Maschinenfabriken, GMBH, 35
F.R. Serv.2d 975 (D. Mass. 1983).
McGhiey cites Johnson v. New Destiny Christian Center
Church, Inc., No. 6:15-cv-1698-Orl-37GJK, 2016 WL
11187163 at *1 (M.D. Fla. Aug. 19, 2016), for the proposition
that his untimely answers and responses to interrogatories
and requests for production did not waive his objections
based on recognized privileges (Doc. 70 at 11). There are two
problems with this argument. First, he has not claimed a
recognized privilege. Second, the Court disagrees with this
statement in Johnson because the two reported cases
on which it relies do not support the conclusion the court
reached. In Bailey v. City of Daytona Beach Shores,
No. 6:12-cv-71-Orl-18TBS, 286 F.R.D. 625, 627 (M.D. Fla. Oct.
23, 2012) this Court found that the defendant had waived the
protection afforded by the work product doctrine by failing
to timely respond to written discovery. Id. at 628.
In Reliance Ins. Co. v. Core Carriers, Inc., No.
3:06-cv-585-J-20MCR, 2008 WL 2414041 at *2 (M.D. Fla. June
11, 2008), the court held that the plaintiff had waived all
objections by failing to timely object to the defendant's
discovery. In arriving at this conclusion, the
Reliance court cited Third Party Verification,
Inc. v. SignatureLink, Inc., 2007 WL 1288361 at *3 (M.D.
Fla. 2007) (“A party who fails to file timely
objections waives all objections, including those based on
privilege or work product.”). Even if Mr. McGhiey's
response was found to be a proper objection, it was waived.
anticipating this result, Mr. McGhiey now argues that there
is good cause to allow his untimely objections (Doc. 70 at
7). But he has not filed a motion for relief from his
untimely responses and, even if he had, it would be pointless
because he did not assert a valid objection to the discovery.
If Mr. McGhiey's health precludes him from participating
in discovery, then he should have filed a motion for
protective order, supported by the type of evidence discussed
in cases including Smith v. Yeager, No. 16-554
(RBW), 322 F.R.D. 96, at 99(D.D.C. Sept. 15, 2017); Maier
v. The American Ins. Co., No. 1:14-cv-3906-ODE, 2015 WL
12592108 at *3 (N.D.Ga. July 15, 2017); and Jennings v.
Family Management, No. CIV.A.00-434 (LFO/JMF), 201
F.R.D. 272, 275 (D.D.C. July 16, 2001).
Mr. McGhiey argues that discovery on his claims is
unnecessary and moot because Defendant has asserted as an
affirmative defense that: “Contemporaneous with the
filing of this Answer, Orange Lake has tendered funds in
excess of the damages that Plaintiffs can recover on their
claims and has agreed to payment of reasonable attorneys'
fees and costs incurred in this action as to be determined by
the Court.” (Id., at 3). Plaintiffs'
claims may ultimately be ...