S.D. Fla. L.R. 26.1

Discovery and Discovery Material (Civil)

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RULE 26.1 DISCOVERY AND DISCOVERY MATERIAL (CIVIL)
(a) Generally. Parties may stipulate in writing to modify any practice or procedure governing
discovery hereunder unless doing so would violate a Court-ordered deadline, obligation, or
restriction.
(b) Service and Filing of Discovery Material. Initial and expert disclosures and the following
discovery requests, responses, objections, notices or any associated proof of service shall not
be filed until they are used in the proceeding or the court orders their filing: (1) deposition
transcripts; (2) interrogatories; (3) requests for documents, electronically stored information or
things, or to permit entry upon land; (4) requests for admission; (5) notices of taking
depositions or notices of serving subpoenas; and (6) privilege logs.
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(c) Discovery Material to Be Filed at Outset of Trial or at Filing of Pre-trial or Post-trial
Motions. If any written discovery is to be used at trial or is necessary to a pre-trial or post-trial
motion, the portions to be used shall be filed with the Clerk of the Court, and served on all
parties, at the outset of the trial or at the filing and service on all parties of the motion insofar
as their use can be reasonably anticipated by the parties having custody thereof.
(d) Completion of Discovery. Party and non-party depositions must be scheduled to occur, and
written discovery requests and subpoenas seeking the production of documents must be served
in sufficient time that the response is due on or before the discovery cutoff date. Failure by the
party seeking discovery to comply with this paragraph obviates the need to respond or object
to the discovery, appear at the deposition, or move for a protective order.
(e) Interrogatories and Production Requests.
(1) Each interrogatory objection and/or response must immediately follow the quoted
interrogatory, and no part of an interrogatory shall be left unanswered merely
because an objection is interposed to another part of the interrogatory.
(2) Assertion of Privilege:
(A) Where an objection is made to any interrogatory or subpart thereof
or to any production request under Federal Rule of Civil Procedure
34, the objection shall state with specificity all grounds. Any ground
not stated in an objection within the time provided by the Federal
Rules of Civil Procedure, or any extensions thereof, shall be waived.
(B) Where a claim of privilege is asserted in objecting to any
interrogatory or production demand, or sub-part thereof, and a
complete answer is not provided on the basis of such assertion,
within the time provided by subpart (D) below:
(i) The party asserting the privilege shall in the objection to the
interrogatory or document demand, or subpart thereof, identify
the nature of the privilege (including work product) which is
being claimed and if the privilege is being asserted in connection
with a claim or defense governed by state law, indicate the
state’s privilege rule being invoked; and
(ii) The following information shall be provided in the objection,
unless divulgence of such information would cause disclosure of
the allegedly privileged information:
(a) For documents or electronically stored information, to the
extent the information is readily obtainable from the witness
being deposed or otherwise: (1) the type of document (e.g.,
letter or memorandum) and, if electronically stored
information, the software application used to create it (e.g.,
MS Word, MS Excel); (2) general subject matter of the
document or electronically stored information; (3) the date
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such other information as is sufficient to identify the
document or electronically stored information for a
subpoena duces tecum, including, where appropriate, the
author, addressee, and any other recipient of the document
or electronically stored information, and, where not
apparent, the relationship of the author, addressee, and any
other recipient to each other;
(b) For oral communications: (1) the name of the person making
the communication and the names of persons present while
the communication was made and, where not apparent, the
relationship of the persons present to the person making the
communication; (2) the date and the place of
communication; and (3) the general subject matter of the
communication.
(c) For documents, electronically stored information, things, or
oral communications withheld on the basis of a claim of
trade-secret privilege (other than the alleged trade secrets at
issue in any claim for misappropriation of trade secrets
asserted under the Defend Trade Secrets Act, 18 U.S.C.
§1836 et seq., the Uniform Trade Secrets Act as adopted by
any State, or any other law), the party asserting the objection
shall generally describe: (1) the documents, electronically
stored information, things, or oral communications being
withheld; and (2) the general nature of the alleged trade
secret (without revealing the alleged trade secret) contained
therein.
(C) This rule requires preparation of a privilege log with respect to all
documents, electronically stored information, things and oral
communications withheld on the basis of a claim of privilege or
work product protection except the following: written and oral
communications between a party and its counsel after
commencement of the action and work product material created
after commencement of the action.
(D) Timing for Party Discovery: Unless the parties agree on a different
time frame or the Court orders otherwise, the privilege log required
under subpart (C) above shall be served no later than fourteen (14)
days following service of: (i) any interrogatory response or
document production from which some information or documents
are withheld on the basis of such privilege or protection; or (ii) the
response to the request for production if all responsive documents
are being withheld on the basis of such privilege or protection.
(E) Timing for Non-Party Discovery: Unless the party propounding a
non-party subpoena under Federal Rule of Civil Procedure
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45(e)(2)(A) and the recipient of such a subpoena agree on a different
time frame or the Court orders otherwise, the information required
to be provided under Federal Rule of Civil Procedure 45(e)(2)(A)(ii)
shall be served no later than (14) days following service of: (i) any
document production provided in response to such a subpoena from
which some documents are withheld on the basis of a claim of
privilege or work product protection; or (ii) any claim of privilege
or work product protection in response to the subpoena if all
responsive documents are being withheld on the basis of such
privilege or protection.
(3) Whenever a party answers any interrogatory by reference to records or materials
from which the answer may be derived or ascertained, as permitted in Federal Rule
of Civil Procedure 33(d), the answering party shall make available:
(A) any electronically stored information or summaries thereof that it
either has or can adduce by a relatively simple procedure, unless
those materials are privileged or otherwise immune from discovery.
(B) any relevant compilations, abstracts or summaries in its custody or
readily obtainable by it, unless those materials are privileged or
otherwise immune from discovery.
(C) the records and materials for inspection and copying within fourteen
(14) days after service of the answers to interrogatories or at a date
agreed upon by the parties.
(4) A party need not provide discovery of electronically stored information from
sources that the party identifies as not reasonably accessible because of undue
burden or cost. On motion to compel discovery or for a protective order, the party
from whom discovery is sought must show that the information is not reasonably
accessible because of undue burden or cost. If that showing is made, the Court may
nonetheless order discovery from such sources if the requesting party shows good
cause, considering the limitations of Federal Rule of Civil Procedure 26(b)(2)(C).
The Court may specify conditions for the discovery. Absent exceptional
circumstances, the Court may not impose sanctions under these Local Rules on a
party for failing to provide electronically stored information lost as a result of the
routine, good-faith operation of an electronic information system.
(5) The documents, electronically stored information, or things should be referenced
to specific paragraphs of a request for production where practicable, unless the
producing party exercises its option under Federal Rule of Civil Procedure 34(b) to
produce documents as they are kept in the usual course of business. The party
producing documents in response to a request for production has an obligation to
explain the general scheme of record-keeping to the inspecting party. The objective
is to acquaint the inspecting party generally with how and where the documents,
electronically stored information, or things are maintained.
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(6) Each page of any document produced in a non-electronic format must be
individually identified by a sequential number that will allow the document to be
identified but that does not impair review of the document.
(7) A party responding to a request for production of documents or materials shall serve
a Notice of Completion of Production at the time that party produces (or otherwise
makes available) the last of the documents or other materials that are responsive to
the request that are not being withheld pursuant to an objection.
(f) Invocation of Privilege during Depositions.
(1) Where a claim of privilege is asserted during a deposition and information is not
provided on the basis of such assertion, upon request the attorney or deponent
asserting the privilege shall state the specific nature of the privilege being claimed
unless divulgence of such information would cause disclosure of privileged
information.
(2) After a claim of privilege has been asserted, unless divulgence of requested
information would cause disclosure of privileged information, the attorney or party
seeking disclosure shall have reasonable latitude during the deposition to question
the witness to establish other relevant information concerning the assertion of the
privilege, including questions about the topics set forth in Local Rule
26.1(e)(2)(B)(ii) above.
(g) Discovery Motions.
(1) Discovery Motions and Other Procedures for Resolving Discovery Disputes. Many
judges have established specific discovery procedures, which practitioners and pro
se parties should review carefully. Some of those procedures are available at
https://www.flsd.uscourts.gov/judges-info. The following rules shall govern
discovery disputes unless they conflict with the assigned judge’s procedures, in
which case such procedures shall control.
(2) Requirements and Deadlines for Seeking Court Intervention Concerning Discovery
Disputes.
(A) A party must submit any discovery dispute to the Court by service
of a motion (or, if the assigned judge prohibits discovery motions,
in accordance with the assigned judge’s discovery procedures)
within the time periods set forth in (i)-(iv), as applicable:
(i) for a discovery dispute relating to a written response or objection
to a discovery request or to a privilege log, a party shall submit
the dispute within twenty-eight (28) days of service of the
written response or objection that is the subject of the dispute;
(ii) for a discovery dispute relating to a deposition that has been
completed, a party shall submit the dispute within twenty-eight
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(28) days of the last day of testimony in the deposition giving
rise to the dispute;
(iii) for a discovery dispute relating to the sufficiency of a
production of documents or other materials, a party shall submit
the dispute within twenty-eight (28) days of the producing
party’s service of the Notice of Completion of Production as
required by S.D. Fla. L.R. 26.1(e)(7); and
(iv) for any other discovery dispute, a party shall submit the dispute
within twenty-eight (28) days of the date when the issue was first
raised with the opposing party.
(B) Failure to submit a discovery dispute to the Court within the time
periods set forth in (A)(i)-(iv), absent a showing of good cause, may,
in the Court’s discretion, constitute grounds for denial of the
requested relief.
(C) The deadlines set forth in (A)(i)-(iv) may be extended once for up
to seven (7) days by an unfiled, written stipulation between the
parties, provided that the stipulation does not conflict with any Court
order.
(D) The duty to conduct a pre-filing conference pursuant to S.D. Fla.
L.R. 7.1(a)(3) shall not toll the deadlines set forth in (A)(i)-(iv) or
any deadline provided by the assigned judge’s discovery procedures
unless those discovery procedures specifically provide otherwise.
(3) Unless an assigned judge’s discovery procedures provide otherwise, a discovery
motion and the memorandum in opposition are each limited to ten (10) pages, and
the reply memorandum is limited to five (5) pages. If applicable, the moving party
must attach to the motion the disputed discovery item and any objection and
response thereto.
(h) Reasonable Notice of Taking Depositions. Unless otherwise stipulated by all interested
parties, pursuant to Federal Rule of Civil Procedure 29, and excepting the circumstances
governed by Federal Rule of Civil Procedure 30(a), a party desiring to take the deposition
within the State of Florida of any person upon oral examination shall give at least seven (7)
days’ notice in writing to every other party to the action and to the deponent (if the deposition
is not of a party), and a party desiring to take the deposition in another State of any person
upon oral examination shall give at least fourteen (14) days’ notice in writing to every other
party to the action and the deponent (if the deposition is not of a party).
Failure to comply with this rule obviates the need for protective order.
Notwithstanding the foregoing, in accordance with Federal Rule of Civil Procedure
32(a)(5)(A), no deposition shall be used against a party who, having received less than eleven
(11) calendar days’ notice of a deposition as computed under Federal Rule of Civil Procedure
6(a), has promptly upon receiving such notice filed and served a motion for protective order
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-- 52 of 130 -under Federal Rule of Civil Procedure 26(c)(1)(B) requesting that the deposition not be held
or be held at a different time or place and such motion is pending at the time the deposition is
held.
(i) Subpoenas; Cooperation. Whenever a party, before trial, receives objections, documents,
electronically stored information, or other things from a non-party in response to a subpoena,
the party receiving same shall promptly notify all other parties of such receipt, and shall, upon
request, make the materials available for inspection to all other parties in the same form or
format as received from the non-party. The other parties may request copies of objections,
documents, electronically stored information, or other things, but the expense associated with
providing such copies shall be borne by the party requesting the copies, except by order of the
Court for good cause shown. Nothing in this subdivision is intended to create, eliminate,
enlarge, or reduce any post-judgment notice, disclosure, production, or inspection obligations.
Effective December 1, 1994. Amended effective April 15, 1996; April 15, 1998; April 15, 2001;
paragraph G.3 amended effective April 15, 2003; April 15, 2004; April 15, 2005; April 15, 2007;
April 15, 2009; April 15, 2010; April 15, 2011; December 1, 2011; December 1, 2014; December
1, 2015; December 1, 2016; December 3, 2018; December 2, 2019; December 1, 2021; December
1, 2022.
Authority
(1993) Former Local Rule 10I. New portions of Section E [1994, now Subsections G.2-8] are
based on S.D.N.Y. local rule.

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