UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
LOCATION DIVISION
CASE NO. XXXXXXXXX-GAYLES/GOODMAN
NAME
Plaintiff,
v.
NAME
Defendant.
_______________________________/
MAGISTRATE JUDGE GOODMAN’S DISCOVERY PROCEDURES ORDER
The following discovery procedures apply to all civil cases in which discovery is
referred to United States Magistrate Judge Jonathan Goodman and where Judge
Goodman is presiding over a case with full consent.
OVERALL STATEMENT
The Court designed these procedures to help the parties and the Court work
together to timely resolve discovery disputes without undue delay and unnecessary
expense. The procedures are designed to: (1) promote the timely internal resolution of
discovery disputes by the parties themselves so that they have no need to seek judicial
intervention; (2) help the parties obtain timely rulings to the extent they cannot on their
own resolve their discovery disputes; (3) streamline the process of resolving discovery
disputes by eliminating unnecessary motion practice; and (4) assist the Court by
prohibiting the submission of motions and memoranda which are unnecessary, overly
long, or both.
MEET AND CONFER
Counsel must actually confer (in person or via telephone) and engage in
reasonable compromise in a genuine effort to resolve their discovery disputes before
filing a notice of a discovery hearing. In other words, there must be an actual
conversation before a discovery hearing notice is filed. If counsel refuses to participate in
a conversation, then the party seeking to set a discovery hearing shall so state in the
required certificate of conference and outline the efforts made to have a conversation.
The Court may impose sanctions, monetary or otherwise, if it determines
discovery is being improperly sought, is being withheld in bad faith, or if a party fails to
confer in good faith. Sending an email or telefax to opposing counsel with a demand that
a discovery response or position be provided on the same day will rarely, if ever, be
deemed a good faith effort to confer before filing a discovery hearing notice.
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DISCOVERY CALENDAR AND NO DISCOVERY MOTIONS
No written discovery motions, including motions to compel, for protective order,
or related motions for sanctions shall be filed unless specifically authorized by the Court.1
Similarly, the parties may not submit legal memoranda concerning a discovery hearing
unless the Undersigned specifically authorizes it. This procedure is intended to minimize
the need for discovery motions. The Court will strike any unauthorized discovery
motions and memoranda.
If, after conferring, the parties are unable to resolve their discovery disputes
without Court intervention, then the Court holds a regular discovery calendar every
Friday afternoon. The party seeking the discovery hearing shall contact Chambers at (305)
523-5720 to place the matter on the next available discovery calendar.
When counsel (or a pro se party) seeking the discovery hearing contacts Chambers,
he or she must disclose whether the attorneys who will be arguing at the hearing are local
(i.e., located in Miami-Dade County, Broward County, or Palm Beach County) or not local
1 Nevertheless, if the parties wish to submit an agreed-upon discovery order, such
as a standard confidentiality-type of protective order, then they shall: (1) file a Motion for
Entry of Stipulated Order, with the proposed order attached to the Motion, and (2) submit
a “Word”-version courtesy copy of the proposed Order to the Undersigned’s CM/ECF
mailbox (
[email protected]). This Order does not prohibit that submission
because there is not a discovery dispute; instead, there is an agreement about a discovery
issue. Thus, the motion is not one to resolve a discovery dispute; it merely facilitates an
agreement.
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(i.e., located in other parts of Florida or out-of-state). The Court permits discovery
hearings to be held via Zoom where at least one attorney arguing the hearing is not local.
In cases where the attorneys arguing the hearing are all local, the Court typically requires
in-person attendance at the hearing, but an exception may occur after the successful filing
of a motion requesting an atypical arrangement.
The Court does not permit hybrid hearings. Thus, if a hearing is set as a Zoom
hearing, then all counsel must participate on Zoom. If a hearing is set as an in-person
hearing, then all counsel must attend in person.
Chambers will provide available dates for the party to confer with opposing
counsel and confirm his or her availability for the discovery calendar. Once opposing
counsel has confirmed availability, the party seeking the hearing will contact Chambers
again to finalize the hearing date. [NOTE: The longer a party waits to contact Chambers
to follow through after being provided with available times, the more likely it is that the
hearing date will no longer be available. Therefore, the Court encourages parties seeking
discovery hearings to follow through on a timely basis and confirm the hearing date.].
On the same day that Chambers confirms that the matter is being placed on the
discovery calendar, the party seeking the discovery hearing shall provide notice to all
relevant parties by filing a Notice of Hearing and serving a copy on opposing counsel
through the Court’s electronic docketing system. The Notice of Hearing shall briefly and
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succinctly identify the substance of the discovery matter to be heard. (For example, “The
parties dispute the appropriate time frame for Plaintiff’s Interrogatory Nos. 1, 4–7, and
10” or “The parties disagree about whether Defendant produced an adequate Rule
30(b)(6) witness on the topics listed in the notice.”) Ordinarily, no more than thirty (30)
minutes per side will be permitted. The party scheduling the hearing shall include in
this Notice of Hearing a certificate of good faith that complies with Southern District
of Florida Local Rule 7.1(a)(3). The Court will strike hearing notices which do not include
a sufficient local rule certificate.
The party who scheduled the discovery hearing shall provide the Court a copy of
all source materials relevant to the discovery dispute, via hand-delivery or through a
document that is emailed to the CM/ECF mailbox (
[email protected]) on the
date that the Notice of Hearing is filed. (For example, if the dispute concerns
interrogatories, then the interrogatories at issue (and the answers and/or objections) shall
be provided.) Source material is the actual discovery at issue. Source material is not
memoranda or letters to the Court which are, for all intents and purposes, a mini-brief.
The opposing party may submit additional source material to the CM/ECF mailbox, as
well.
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The failure to timely file the Notice of Hearing on CM/ECF and to submit the
source materials by email, may result in an Order cancelling the discovery hearing for
failure to comply with this Order.
Neither the Notice of Hearing nor the source materials should be used as a de facto
strategy to submit a memorandum. For example, sending multi-page, rhetoric-filled
letters to the Court or filing argument-riddled notices are specifically prohibited. The
Court will strike letters, notices, and exhibits which are designed to circumvent the no
motion/no memoranda policy.
If one or more of the parties believe in good faith that the discovery dispute is not
a routine, garden-variety dispute and needs specialized attention, then the parties may
include a to-the-point, no-more-than-one-paragraph explanation in the Notice of
Hearing, to flag the specific issues. In addition, the parties may submit a “notice of
authorities,” which will list only the authorities, but which will not contain argument or
be a disguised memorandum. At most, the list of authorities may contain a one-sentence,
objective summary of the relevant holding of each case or authority. The Court will strike
any non-compliant notice of authorities.
For those discovery disputes which are particularly complex (and there are not
many of those) and which a party believes will require briefing, a motion for leave to file
a discovery motion or memoranda may be filed. The motion should briefly explain the
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extraordinary need, but the actual discovery motion or memorandum should not be
attached or filed unless the Court grants the motion seeking leave. The Court anticipates
that the need for motions and/or memoranda will arise only rarely.
The following topics are illustrations of discovery disputes which are usually not
rare enough to bypass the standard no-motion policy and therefore would not ordinarily
justify a motion for leave to file a discovery motion in a specific case absent extraordinary
circumstances: (1) whether a party may take more than ten depositions in the absence of
consent; (2) whether a deposition may last more than seven hours; (3) how a seven-hour
deposition is allocated among the parties; (4) whether a Rule 30(b)(6) witness was
prepared to provide binding testimony on all the topics listed in the notice; (5) whether a
noticed deposition is an "apex" deposition, and, if so, whether it will be permitted; (6)
whether a party needs to arrange for a treating doctor to provide an expert witness report
or if the party needs to make other written disclosures if the physician is expected to
testify about the cause of an injury; (7) squabbles over the location of a deposition; (8)
whether an attorney improperly instructed a deponent to not answer certain questions;
(9) whether an attorney was improperly coaching a deponent; (10) whether a party or
attorney may pay any money to a deponent or trial witness other than a standard witness
fee, and, if so, under what circumstances and in what amounts; (11) whether a party may
take "early" discovery; (12) whether a party exceeded the number of permissible
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interrogatories (and how should the sub-parts be counted); (13) whether an interrogatory
answer is adequate or whether better answers are required; and (14) whether a party
engaged in a strategically unfair "document dump" which makes it difficult for a party to
know which documents are responsive to a request. These are all routine discovery
disputes which require the submission of only the Notice of Hearing, source material(s),
and, at most, an argument-free list of authorities.
The Court expects all parties to engage in reasonable compromise to facilitate the
resolution of their discovery disputes. The Court may impose sanctions, monetary or
otherwise, if the Court determines discovery is being improperly sought or is being
withheld in bad faith.
These procedures do not relieve parties from the requirements of any Federal
Rules of Civil Procedure or Local Rules, except as noted above.
REQUESTS FOR RELIEF
Any and all requests for relief (including changing the format of a hearing) shall
abide by the Local Rules. Local Rule 7.7 (entitled “correspondence to the Court”)
prohibits an attorney from presenting to the Court a “letter or the like” which “request[s]
relief in any form.” The rule has an exception: a letter or similar communication (such as
an email note) may be submitted if the presiding judge “invite[s] or direct[s]” the attorney
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to do so. Therefore, the parties are not allowed to directly email Chambers requesting any
sort of relief unless permitted to do so by the Undersigned.
As previously stated, no discovery motions are allowed. If there is a discovery
dispute, then the parties must contact Chambers to request hearing dates and follow the
procedure set forth above. Once the hearing is scheduled, the parties may file motions to
amend the hearing itself or the subject matter discussed.
A request to change the hearing format must be made in the form of a motion.
Local Rule 7.1 requires the movant to confer with opposing counsel and to include a
certificate of conferral, indicating that the conferral has occurred (or that it has not
happened, and to explain why). Any request for relief that does not meet this criteria will
be stricken. And any continued failure to adhere to this rule may result in sanctions.
PROPOSED ORDERS
If a party submits a proposed order to the Undersigned, then it must be in
Microsoft Word format in 12-point Palatino Linotype font. The proposed order must be
double spaced, justified, and the case style must mirror the case style used in this Order.
If the proposed order is more than one page, then it must include page numbers,
beginning on the second page.
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PRO SE LITIGANTS
Section 2C of the Southern District of Florida CM/ECF Administrative Procedures
requires pro se litigants to file their documents in a conventional manner, which means in
person or by U.S. mail. There are no exceptions. Pro se litigants interested in receiving
notices must file the form “Consent by Pro Se Litigants (Non-Prisoner) to Receive Notice
of Electronic Filing” which can be found on the Court’s website
(http://www.flsd.uscourts.gov/forms/consent-pro-se-litigant-non-prisoner-receive-nefs).
After filing the consent, pro se litigants will receive case orders, notices and other
documents filed via email. Paper copies of filings will then no longer be sent by the Court
or opposing counsel in that particular case. If a pro se litigant files the consent form
mentioned above, then he or she is responsible for maintaining a current email address
with the Court. The pro se litigant shall not email Chambers requesting any form of relief,
including emailing a copy of their filings in violation of both Local Rule 7.7 and Section
2C of the CM/ECF Administrative Procedures mentioned above. If a pro se litigant has a
discovery dispute, then he or she may call Chambers to schedule a discovery hearing per
this Order. Any other requests for relief must abide by the mentioned procedures and
Local Rules.
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PRE-HEARING DISCUSSIONS/CANCELLING HEARINGS
The mere fact that the Court has scheduled a discovery hearing/conference does
not mean that the parties should no longer try to resolve the dispute. To the contrary,
the parties are encouraged to continually pursue settlement of disputed discovery
matters. If those efforts are successful, then counsel should contact Chambers as soon as
practicable to inform the Undersigned that the hearing will be timely cancelled. After
contacting Chambers, the party who scheduled the hearing must file a notice on CM/ECF
indicating that all issues were resolved and that the hearing is cancelled. Alternatively, if
the parties resolve some, but not all, of their issues before the hearing, then counsel shall
also timely contact Chambers and then also provide a pre-hearing written notice on
CM/ECF (with as much lead time as possible) about those issues which are no longer in
dispute (so that the Court and its staff do not unnecessarily work on matters no longer in
dispute).
RULE 30(b)(6) DEPOSITIONS
The party seeking to take the deposition shall include only a reasonable number
of topics to be covered in a 7-hour deposition. Listing 40 or 50 (or more topics) is
presumptively unreasonable. If the corporation or entity has any objections to the topics
listed in the Rule 30(b)(6) notice, then its counsel shall first confer and try to resolve the
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dispute. But, if a complete resolution is not reached, then the party seeking to take the
deposition shall notice the dispute for a hearing before the Undersigned (following the
same procedures outlined above) and obtain a ruling on the disputed topics before the
Rule 30(b)(6) deposition occurs.
Counsel for the corporation or entity is not required to identify the designee or
designees before the deposition begins, but he or she is certainly free to volunteer the
information as a courtesy.
It is permissible for a party to take the deposition of a person in his/her
representative capacity as a corporate designee and also take a separate deposition of that
person in his/her role as a fact witness. The attorney scheduling the depositions has the
discretion to determine the order in which the two depositions occur. The attorney taking
the depositions may take the fact witness deposition and the Rule 30(b)(6) deposition at
the same time but shall clearly announce on the record when the deposition is changing
into a different type of deposition.
EXPENSES, INCLUDING ATTORNEY’S FEES
The Court reminds the parties and counsel that Federal Rule of Civil Procedure
37(a)(5) requires the Court to award expenses, including fees, unless an exception (such
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as the existence of a substantially justified, albeit losing, discovery position) applies to the
discovery dispute and ruling.
NO BOILERPLATE DISCOVERY OBJECTIONS
“Vague, Overly Broad and Unduly Burdensome”
The parties shall not make conclusory boilerplate objections. Such objections do
not comply with Local Rule 26.1(e)(2)(A), which provides that, “[w]here an objection is
made to any interrogatory or sub-part thereof or to any production request under Federal
Rule of Civil Procedure 34, the objection shall state with specificity all grounds.” Blanket,
unsupported objections that a discovery request is “vague, overly broad, or unduly
burdensome” are, by themselves, meaningless, and the Court will disregard such
objections. A party objecting on these bases must explain the specific and particular ways
in which a request is vague, overly broad, or unduly burdensome. See Fed. R. Civ. P.
33(b)(4) (the ground for objecting to an interrogatory “must be stated with specificity”);
Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (“[T]he mere statement by a party
that the interrogatory was ‘overly broad, burdensome, oppressive and irrelevant’ is not
adequate to voice a successful objection to an interrogatory.”). Testimony or evidence
may be necessary to show that a particular request is in fact burdensome.
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“Irrelevant or Not Reasonably Calculated to Lead to Admissible Evidence”
An objection that a discovery request is irrelevant or “not reasonably calculated to
lead to admissible evidence” is an outdated type of objection, as that language no longer
defines the scope of discovery under Federal Rule of Civil Procedure 26(b)(1). The current
version defines the scope of discovery as being “nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case” -- and then lists
several factors to analyze. The Court reminds the parties that the Federal Rules provide
that information within this scope of discovery “need not be admissible in evidence” to
be discoverable. See Fed. R. Civ. P. 26(b)(1); S.D. Fla. L.R. 26.1(g)(3)(A); Oppenheimer Fund,
Inc. v. Sanders, 437 U.S. 340, 351-52 (1978).
No Formulaic Objections
The parties should avoid reciting 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 a boilerplate
objection and answer preserves nothing, and constitutes only a waste of effort and the
resources of both the parties and the Court. Further, such practice leaves the requesting
party uncertain as to whether the responding party fully answered. Moreover, the
Federal Rules of Civil Procedure now specifically prohibit that practice (which was
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deemed inappropriate by many judges and commentators). For example, Federal Rule of
Civil Procedure 34(b)(2)(C) now provides that an objection to a request for documents
“must state whether any responsive materials are being withheld on the basis of that
objection.” In addition, it also says that “an objection to part of a request must specify the
part and permit inspection of the rest.” Therefore, counsel should specifically state
whether the responding party is fully answering or responding to a request and, if not,
specifically identify the categories of information that have been withheld on an
objection-by-objection basis.
Objections Based upon Privilege
Generalized objections asserting attorney-client privilege or the work product
doctrine also do not comply with the Local Rules. S.D. Fla. L.R. 26.1(e)(2)(B) requires that
objections based upon privilege identify the specific nature of the privilege being
asserted, as well as identify 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. The parties must review this Local Rule carefully, and refrain
from objections in the form of: “Objection. This information is protected by
attorney/client and/or work product privilege.” The Local Rule also requires the
preparation of a privilege log except for “communications between a party and its
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counsel after commencement of the action and work product material created after
commencement of the action.”
DONE AND ORDERED in Chambers, in Miami, Florida, on March 10, 2024.
Copies furnished to:
The Honorable Darrin P. Gayles
All Counsel of Record
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