Archive for September 27th, 2012

Untimely Objections are Waived

I had two hearings this morning where the Plaintiff moved for an extension of time to respond to my client’s interrogatories.  In each hearing, the issue became whether the plaintiff could “respond” to interrogatories, as opposed to “answer” them, several months after those interrogatories were served.

What’s the difference, you ask?  By seeking the ability to “respond,” as opposed to “answer” the interrogatories, the plaintiffs wanted to preserve the right to object.  In other words, having gone several months without serving any discovery responses at all, the plaintiffs wanted to avoid giving me substantive “answers” to my interrogatories by interposing blanket objections.  If permitted, that would force me to file a motion to compel answers, without objection, and set that motion for another hearing.

Florida law has a very simple rule on objections.  If you have objections to discovery, you have to serve those objections within 30 days.  Sometimes, candidly, this rule is not rigidly enforced at the trial court level.  However, given the existence of the Rule, it is easy to argue that plaintiffs should not get to wait 5 or 6 months to “respond,” then, when they do respond, serve blanket objections without any substantive “answers”.  In other words, judges may be lenient about the 30-day requirement, but they typically wont’ allow any party to wait 5-6 months before objecting to discovery.

Imagine the roles were reversed.  If defendants were trying to get away with waiting several months to “respond” to discovery, plaintiffs would be standing on the table screaming about how we are delaying the foreclosure case.  The standard should be no different for plaintiffs.  This is particularly so since plaintiffs love to ask for summary judgment or trial, even with discovery outstanding, and assert the defendants were dilatory in pursuing discovery.

I won both hearings based on this argument.  Both times, the judge gave the plaintiff more time to answer my discovery, but the judge required “answers” to my interrogatories, without objection.

Anyone faced with this situation, I strongly recommend you adopt this approach.  “More time to respond to discovery is fine, judge.  But at this point, the plaintiff should be providing substantive answers, without objection.”  I’m confident, more often than not, this argument will prevail.

Mark Stopa

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