Are "General Objections" Acceptable?

No. General Objections -- objections that precede substantive written discovery responses and purport to apply to each response -- are meaningless and they purposely obscure substantive written discovery responses.  Those serving discovery should promptly write to to the objecting party and insist that the objecting party withdraw General Objections. If the party does not do so, the propounding party should include this issue in a Motion to Compel.

This unsurprising proposition is recognized by virtually all courts nationwide.  See, e.g., Sagness v. Duplechin, No. 4:16CV3152, 2017 WL 1183988, at *2 (D. Neb. Mar. 29, 2017)[1] (“General blanket objections do not meet [the Federal Rules of Civil Procedure (“FRCP”)’s] specificity requirements and will be disregarded by this court.”); Liguria Foods, Inc. v. Griffith Labs., Inc., 320 F.R.D. 168, 187 (N.D. Iowa 2017) (rejecting general objections argument because such does not satisfy the FRCP’s “specificity” requirement); Fischer v. Forrest, Nos. 14 Civ. 1304, 14 Civ. 1307, 2017 WL 773694, at *3 (S.D.N.Y. Feb. 28, 2017) (“General objections should rarely be used . . . unless each objection applies to each document request.”); Cafaro v. Zois, No. 15-CV-80150, 2016 WL 903307, at *1 (S.D. Fla. Mar. 9, 2016) (“Boilerplate objections may also border on a frivolous response to discovery requests” (citing Steed v. EverHome Mortg. Co., 308 F. App’x 364, 371 (11th Cir. 2009))); Heller v. City of Dallas, 303 F.R.D. 466, 484 (N.D. Tex. 2014) (“Counsel should cease and desist from raising these free-standing and purportedly universally applicable ‘general objections’ in responding to discovery requests.”).  “General Objections,” as Plaintiff propounded, are not permitted under the discovery rules.  See Loudoun Cty. Asphalt, L.L.C. v. Wise Guys Contracting L.L.C., 79 Va. Cir. 605, 605 (Va. Cir. Ct. 2009).

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Are Treating Physicians Entitled to An Expert Fee for Fact Witness Depositions?

 Treating physicians are often critical fact witnesses in litigation.  They are sometimes expert witnesses.   Physicians are busy and have unique skills so it is not unusual for them to ask for and expect expert witness fees even when testifying as a fact witness.   The fees requested can be substantial. Additionally, many physicians tack on mandatory minimum fees and mandatory "pre-deposition conferences" 

The case law is clear, however, that attorneys are not obligated to pay treating physicians "expert witness fees" for offering fact witness testimony.  When deposed as a fact witness, a physician stands in the same position as any other fact witness. They are entitled to mileage and the standard witness fee.

"While physicians certainly have significant overhead costs and a special expertise, so do a myriad of other professions. For instance, should fact witnesses who happen to be engineers, attorneys, accountants or consultants — professions also with special expertise and significant overhead costs —similarly be allowed more than the statutory fee prescribed by § 1821? If the answer is in the affirmative, then does § 1821 merely apply to less prestigious professions? Who decides what professions fall under § 1821 versus the more lucrative "reasonable fee" under [Federal Rule of Civil Procedure] 26(b)(4)(C)? This Court declines to set precedent in this jurisdiction that, essentially, singles out physicians  [**8]   [*132]  for special treatment. Rather, the more prudent course of action is to follow the unambiguous tenets of [Federal Rule of Civil Procedure] 26(b)(4)(C)  [***21] and § 1821, which provide that expert witnesses — independent of their profession — obtain compensation at a "reasonable fee", while fact witnesses —independent of their profession — receive compensation at the statutory fee of $40. If Congress wishes to single out certain professions for higher compensation, that is certainly its prerogative, but this Court declines to enter that arena, which is, essentially, a slippery slope.

Demar v. United States, 199 F.R.D. 617, 619-20 (N.D. Ill. 2001); see also McDermott, 247 F.R.D. at 61 (there is no "logical explanation as to why [a special] . . . rule applies to physicians and no other class of professional or otherwise with 'specialized knowledge' about the testimony to be provided"); Mangla, 168 F.R.D. at 140 (physicians will "suffer no more inconvenience than many other citizens called forward to be deposed or testify as a trial witness in a matter in which they have first hand factual knowledge");

While there are a handful of cases that treat physician fact witnesses as different those cases simply treat physicians as "special" and often justify the distinction on amorphous "public policy" grounds. 

 None of these cases, however, provide any logical explanation as to why physicians and no other class of professional or laborer with "specialized knowledge" should be awarded   a "reasonable fee."  

See, e.g., Wirtz v. Kan. Farm Bureau Servs., Inc., 355 F. Supp.2d 1190, 1211 (D. Kan. 2005) ("[A]  [***14] treating physician responding to discovery requests and testifying at trial is entitled to his or her 'reasonable fee' because such physician's testimony will necessarily involve scientific knowledge and observations that do not inform the testimony of a simple 'fact' or 'occurrence' witness."); Mock v. Johnson, 218 F.R.D. 680, 683 (D. Haw. 2003) ("As opposed to the observations that ordinary fact witnesses provide, the observations and opinions that medical professionals provide derive from their highly specialized training."); Grant v. Otis Elevator Co.,199 F.R.D. 673, 676 (N.D. Okla. 2001) ("[T]reating physicians who testify under Fed. R. Evid. 702 as to their diagnoses, treatment and prognoses are experts within the meaning of [Fed. R. Civ. P.] 26(b)(4)(C) and are entitled to a reasonable fee."); Coleman v. Dydula, 190 F.R.D. 320, 323 (W.D. N.Y. 1999) ("Physicians provide invaluable services to the public and should be remunerated for their time when they cannot deliver medical care." (citation omitted)).

 In sum, an attorney is not obligated to pay a physician fact witness an expert witness fee, only a witness fee.  With that said, an attorney may be wise to provide something more than the nominal fee to insure the cooperation of the attorney.  

 Rule 34 and the Obligation to Organize and Categorize Documents


Sometimes, parties will produce a tremendous volume of uncategorized documents in response to discovery requests. This tactic -- the "document dump" -- can stymie the ability of the discovering party to review and analyze the documents in a meaningful way. Fortunately, courts have seen through this tactic.  Courts have ordered disclosing parties to organize and categorize large volumes of documents and identify the discovery requests to which each document corresponds:

"[Disclosing parties] are incorrect in thinking they can haphazardly produce documents without reference to which request the documents are produced." Glover v. Bd. of Educ. of Rockford Pub. Sch., Dist. 205, No. 02 C 50143, 2004 U.S. Dist. LEXIS 6358, 2004 WL 785270, at *2 (N.D. Ill. Apr. 9, 2004). To ensure a fair and clear record, the Union will be "ordered to Bates Stamp all documents produced to Plaintiff and to indicate which documents correspond to the categories requested." Id.; see also Flentye v. Kathrein, No. 06 C 3492, 2007 U.S. Dist. LEXIS 74260, 2007 WL 2903128, at *2 (N.D. Ill. Oct. 2, 2007) (requiring a party to produce  [*31] Bates-stamped documents comprising the initial disclosures required under Rule 26)".

Gregg v. Local 305 IBEW, 2009 U.S. Dist. LEXIS 40761, *30-31(N.D. Ill. 2009)

Overbroad Fed. R. Civ. Pro. 30(b)(6) Deposition Notices

Corporations are required, under Fed. R. Civ. Pro. 30(b)(6) to produce a witness or witnesses who can testify about specific topics identified in the Deposition Notice. Sometimes, corporations are served with Notices that have 20, 30 or 40 topics. It can be difficult, if not impossible to prepare a witness for all of those topics.  This creates a further risk to corporations because there is case law that provides that a corporation cannot offer evidence on a topic that was covered by a 30(b)(6) notice if the witness was not prepared to testify that topic. [See previous post on this blog]

Courts, however, have shown a willingness to limit overly broad Fed. R. Civ. Pro. 30(b)(6) notices.   The best discussion is by Magistrate Judge Facciola:  - 

"a 30(b)(6) deposition, which by its nature can be time-consuming and inefficient, be productive and not simply an excuse to seek information that is already known. See Banks v. Office of the Senate Sargeant of Arms, 222 F.R.D. 7, 19 (D.D.C. 2004) (ordering the parties to find topics that will "insure that the 30(b)(6) depositions are meaningful exercises in ascertaining information that has not been previously discovered" and ordering the party seeking discovery "not [to] ask questions that duplicate questions previously asked of other witness or seek information that he already has by virtue of responses to other discovery devices")"

Tri-State Hosp. Supply Corp. v. United States, 226 F.R.D. 118, 126 (D.D.C 2005)

See also Accord Crocs, Inc. v. Effervescent, Inc., 2017 U.S. Dist. LEXIS 27082 (D. Colo. 2017) (affirming Magistrate Judge's ruling narrowing seventeen 30(b)(6) topics  to one topic. Magistrate Judge ruled that the notice was not proportional and covered topics better suited to less onerous discovery)

When a Fed. R. Civ. Pro. 30(b)(6) "Does Not Know" about a Topic

The Federal Rules of Civil Procedure do not allow a party to disclaim knowledge in a Fed. R. Civ. Pro. 30(b)(6) deposition and, later, offer testimony about that topic.

Courts have ruled that because a Rule 30(b)(6) designee testifies on behalf of the entity, the entity is not allowed to defeat a motion for summary judgment based on an affidavit that conflicts with its Rule 30(b)(6) deposition or contains information that the Rule 30(b)(6) deponent professed not to know

 

7-30 Moore's Federal Practice - Civil § 30.25 (2016)(emphasis added)

 

Federal courts apply this principle to preclude evidence a corporate witness “did not know”.

“[D]epending on the nature and extent of the obfuscation, the testimony given by the non-responsive deponent (e.g. "I don't know") may be deemed "binding on the corporation" so as to prohibit it from offering contrary evidence at trial.”

Wilson v. Lakner, 228 F.R.D. 524, 530 (D. Md. 2005) citing Rainey v. American Forest & Paper Ass'n, 26 F. Supp. 2d 82, 94-95 (D.D.C. 1998);

 

            Courts impose this proscription because the  Fed. R. Civ. Pro. 30(b)(6) deposition is intended to ease the burden on corporations and, conversely, corporations have an obligation to present well-prepared witnesses:

“By commissioning the designee as the voice of the corporation, the Rule obligates a corporate party "to prepare its designee to be able to give binding answers" in its behalf. Unless it can prove that the information was not known or was inaccessible, a corporation cannot later proffer new or different allegations that could have been made at the time of the 30(b)(6) deposition”

Id. at , 94 quoting Ierardi v. Lorillard, Inc., 1991 U.S. Dist. LEXIS 11320, 1991 WL 158911, at *3 (E.D. Pa. Aug. 13,    1991); United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996)(emphasis added)

 

 

The Western District of North Carolina excluded evidence on “the central issue” because the Fed. R. Civ. Pro. 30(b)(6) witness was unprepared.

 

“[Movant] could not first take the position  that it had no information on that subject and then later, after the close of discovery and the filing of the Defendant's dispositive motion, completely reverse itself”

Caraustar Indus. v. N. Ga. Converting, Inc., No. 3:04CV187-H, 2006 U.S. Dist. LEXIS 91829, at *21-22 (W.D.N.C. Dec. 19, 2006)

Changes to Depositions Under Fed. R. Civ. Pro. 30(e)

Fed. R. Civ. Pro. 30(e) allows a witness to make changes to "form and substance" if the changes are made within 30 days of submission to the witness.  

There is some dispute as to whether a witness can make wholesale changes to the deposition transcript . One view is that the Rule allows changes to "form or substance" so a witness can make wholesale changes 

Another view is that a deposition is not a "take home exam" that can be revised by the lawyers after the witness has testified.  

Her, both views are discussed and the District of Maryland expresses a preference for the "no take home exam" perspective: 

"Some courts hold that if the procedural requirements of Rule 30(e) are met, a deponent may, by the literal language of the rule, change any and all of the "substance" of the deposition testimony. See, e.g., Foutz v. Town of Vinton, Virginia, 211 F.R.D. 293, 295 (W.D. Va. 2002). Other courts interpret the rule as foreclosing changes that materially alter the testimony or contradict the testimony. See, e.g., Rios v. Bigler, 847 F. Supp. 1538, 1546-47 (D. Kan. 1994). The Court agrees with the latter line of cases. Quoting the opt-cited decision Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992) the district court in Kansas described the types of corrections that are intended to be remedied by Rule 30(e).The court recognizes that Fed. R. Civ. P. 30(e) allows a deponent to make changes to deposition testimony in form or substance. Nevertheless, the court finds that [the deponent's] errata sheets exceed the scope of the type of revisions contemplated by the Rule and serve only to improperly alter  [*297]  what was  [**7] testified under oath. As has been aptly acknowledged by the Tenth Circuit, a deposition is not a take home exam. See Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 (10th Cir. 2002) (quoting Greenway v. Int'l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992)). The errata sheet "clarifications" in this case are akin to a student who takes her in-class examination home, but submits new answers only after realizing a month later that the import of her original answers could possibly result in a failing grade.
Id.; see also Paul Harris Stores, Inc. v. PricewaterhouseCoopers, LLP, 2006 U.S. Dist. LEXIS 65840, 2006 WL 2644935, at *3 (S.D. Ind. Sept. 14, 2006) (stating that HN2 where it is "apparent to the Court that [a party] seeks to 'undo' the testimony of its 30(b)(6)witnesses by adding errata," the errata should be stricken as "really no more than 'lawyers' statements,' attempting to deflect potentially detrimental testimony"); Eckert v. Kemper Fin. Servs., Inc., 1998 U.S. Dist. LEXIS 15788, 1998 WL 699656 at *5 (N.D. Ill. Sept. 30, 1998) (precluding "wholesale changes to previous sworn testimony" that was, in fact, a "damaging [party] admission").
Wyeth v. Lupin LTD, 252 F.R.D. 295, 296-97 (D. Md. 2008)
                  

However, even if a Court allows wholesale changes to a deposition, the original, unedited, transcript is still admissible:

The Court in Blackthorne v. Posner, 883 F. Supp. 1443, 1454 (D. Ore. 1995) ruled that plaintiff made handwritten corrections to his deposition transcript after the 30 day limitation and, therefore, found plaintiff to have waived his privilege to read, review and amend. See Barlow v. Esselte Pendaflex Corp., 111 F.R.D. 404, 406 (M.D. N.C. 1986) (holding that where plaintiff made so many changes to his deposition testimony that it became impossible for the reporter to enter the alterations and deeming "plaintiff to have refused to have signed, or to have waived signing of . . . the transcript as set out in Rule 30(e)"). The Blackthorne court subsequently allowed plaintiff to admit his deposition testimony into evidence without the untimely corrections. The court held: "[plaintiff's] opportunity to amend changes to the deposition had lapsed, and plaintiff's errata [**23]  sheet will not be received as part of the deposition testimony." Blackthorne, 883 F. Supp. at 1454 n.16.
The Second Circuit ruled similarly in Podell v. Citicorp Diners Club, 112 F.3d 98 (2nd Cir. 1997). The Podell court held that notwithstanding any errata modifications, Rule 30(e) allows the original deposition to be admitted at trial. Id. at 103. The court in Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981) reached an analogous result, holding that  where a deponent amends his deposition, his original deposition testimony shall remain admissible at trial. The Lugtig court stated that "nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made . . . ," implying that the original deposition is admissible [**24]  at trial, regardless of deponent's decision to amend his deposition or waive that privilege. Id. at 641-42.

Parker v. Grant (In re Grant), 237 B.R. 97, 108 (Bankr. E.D. Va. 1999)              

    

28 U.S.C. § 1446: Removal Jurisdiction and the Amount in Controversy

Although not strictly a discovery issue, defense lawyers are often faced with the issue of whether a case meets the jurisdictional amount for removal to federal court.   Plaintiffs often intentionally understate the value of their claim in order to avoid federal jurisdiction. In many states, Plaintiffs do not or cannot state the amount in controversy in the Complaint.  Federal courts have developed a body of law addressing this issue. 

The removal statute allows a removing party to state the amount in controversy in the Notice of Removal if state practice does not permit a demand for a specific sum or permits recovery of damages in excess of the amount demanded.  28 U.S.C. § 1446(c)(2)(A)(ii). 

The amount in controversy is determined at the time of removal and subsequent events, including a plaintiff’s reduction of damages, do not deprive the federal court of jurisdiction. The United States Supreme Court established this principle nearly eighty years ago.

  “Events occurring subsequent to removal which reduce the amount recoverable, whether beyond the plaintiff's control or the result of his volition, do not oust the district court's jurisdiction   once it has attached”

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293, 58 S. Ct. 586, 592 (1938)(emphasis added)

 

And:

 

“And though, as here, the plaintiff after removal, by stipulation, by affidavit, or by amendment of his pleadings, reduces the claim below the requisite amount, this does not deprive the district court of jurisdiction.”

  Id.  at 292, 58 S. Ct.  at 592.(emphasis added)

 

This principle is applied today by federal district courts. Here is one example, from the Ninth Circuit:,

“However, defendant is correct that plaintiff's newly "stipulated-to" amount in controversy is not the operative amount in controversy.  The operative amount in controversy is that claimed by plaintiff in the Complaint.   … "[E]vents occurring subsequent to removal which reduce the amount recoverable, whether beyond the plaintiff's control or the result of his volition, do not oust the district court's jurisdiction once it has attached." [St. Paul Mercury Indem. Co. v. Red Cab Co.] 303 U.S. at 293.

 

. . . IPlaintiff's complaint will not now be remanded to state court based on his unilateral designation of a lesser amount.

Hill v. Hill-Love, No. CIV S-09-2713 KJM-DAD, 2011 U.S. Dist. LEXIS 55895, at *5-7 (E.D. Cal. May 20, 2011)(citations omitted)(emphasis added)

 

The Ninth Circuit affirmed the district court in Hill v. Hill-Love:

 

“There was no error in denying Hill's motion to remand to state court. The district court properly ignored Hill's belated attempt to avoid federal jurisdiction and adhered to this circuit's longstanding rule that the ‘propriety of removal is determined solely on the basis of the pleadings filed in state court,’” Williams v. Costco Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006)

Hill v. Hill-Love, 509 F. App'x 605, 606 (9th Cir. 2013)(emphasis added)

 

          Other cases support this principle.

          In DeAquilar v. Boeing Co. 47 F. 3d 1404 (5^th Cir. 1995)[1], the Fifth Circuit made clear that a Plaintiff must establish that the amount in controversy is below the jurisdictional amount in the original Complaint; post-removal filings are not considered:

“In light of St. Paul Mercury, plaintiff must make all information known at the time he files the complaint. . .

 

Plaintiff's state complaint might cite, for example, to a state law that prohibits recovery of damages that exceed those requested in the ad damnum clause and that prohibits the initial ad damnum to be increased by amendment. Absent such a statute, "litigants who want to prevent removal must file a binding stipulation or affidavit with their complaints;   once a defendant has removed the case, St. Paul makes later filings irrelevant." In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992) (per curiam)

 

De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995)(emphasis added)

See also Rollwitz v. Burlington N. Railroad, 507 F. Supp. 582 (D. Mont. 1981)( District court based its remand analysis on the Complaint at the time of removal); Engstrom v. L-3 Communs. Gov't Servs., No. 04-2971, 2004 U.S. Dist. LEXIS 25786 (E.D. La. Dec. 23, 2004)(same) Porter v. Merck & Co., No. 04-2572-GTV, 2004 U.S. Dist. LEXIS 29232 (D. Kan. Dec. 28, 2004)(same)(Plaintiffs’ Remand Brief, p. 2)

Sometimes, plaintiffs cite Davidson v. Lefever, No. CA 13-00157-N, 2013 U.S. Dist. LEXIS 109311 (S.D. Ala. July 18, 2013) but neglect to mention that, in Davidson, the Defendant agreed to remand. 

Omni filed a response to the remand motion in which it

consents to this case being remanded to the Circuit Court of Mobile County, Alabama on the grounds stated by Plaintiffs in their Motion to Remand and supporting affidavit

Davidson v. Lefever, No. CA 13-00157-N, 2013 U.S. Dist. LEXIS 109311, at *6 (S.D. Ala. July 18, 2013)(emphasis added)

In sum,  the Amount in Controversy is established by the Complaint or by the Notice of Removal. If a defendant establishes a prima facie case that the amount in controversy is above the jurisdictional amount, the burden then shifts to the plaintiffs to establish that the amount in controversy is below the jurisdictional amount. However, the plaintiff cannot rely on post-removal affidavits to establish that the amount in controversy is below $ 75,000.

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