FRANK DEMARZO, Plaintiff, v. HEALTHCARE TRUST OF AMERICA, INC., Defendant CASE NO. 20-61693-CIV-DIMITROULEAS/SNOW United States District Court, S.D. Florida Entered on FLSD Docket April 07, 2021 Counsel Marc Philip Lyons, Lyons, Snyder & Collin, Plantation, FL, Philip M. Snyder, Lyons, Snyder & Collin, Ft. Lauderdale, FL, Brandon L. Chase, Law Offices of Brandon L. Chase, P.A., Coral Gables, FL, for Plaintiff. Thomas Walter Paradise, Megan Ann Pariti, Vernis & Bowling of Broward, Hollywood, FL, for Defendant. Snow, Lurana S., United States Magistrate Judge ORDER *1 THIS CAUSE is before the Court on Frank Demarzo's (Plaintiff) Motion to Compel Better Answers and Documents from Healthcare Trust of America, Inc. (Defendant). (ECF No. 1) The Honorable William P. Dimitrouleas referred all pretrial discovery motions to United States Magistrate Judge Lurana S. Snow for appropriate resolution. (ECF No. 15 at 6) BACKGROUND Plaintiff slipped and fell while walking through a parking lot owned by Defendant. (ECF No. 19 at 1) Plaintiff attributes the fall to yellow, high-gloss paint on the asphalt. (ECF No. 19 at 1) Plaintiff subsequently sued, claiming Defendant negligently failed to maintain, inspect, remedy or warn of the dangerous condition. (ECF No. 1-2 at 2–3) Plaintiff served Interrogatories and Requests for Production, to which Defendant responded on February 4, 2021. (ECF No. 20 at 1) According to Plaintiff, Defendant's responses are evasive and replete with boilerplate objections. (ECF No. 19 at 2) As a result, Plaintiff now moves to compel better interrogatory answers and the production of documents. (ECF No. 19) DISCUSSION I. General discovery principles Parties may use interrogatories and requests for production to seek information within the scope of Rule 26(b). Fed. R. Civ. P. 33(a)(2), 34(a). Rule 26(b)(1) allows discovery of any non-privileged matter relevant to a claim or defense and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). The scope of discovery is broad, and information need not be admissible at trial to be discoverable. Id. If a party objects to a discovery request, it must state the objection with specificity. Fed. R. Civ. P. 33(b)(4), 34(b)(2)(C); S.D. Fla. L.R. 26.1(e)(2)(A). Interrogatory objections should be plain and specific so that the Court understands why the request is objectionable. Rivera v. 2K Clevelander, LLC, No. 16-21437-CIV, 2017 WL 5496158, at *3 (S.D. Fla. Feb. 22, 2017). Likewise, objections to the production of documents must state whether any responsive material is being withheld and the specific grounds for the objection. Fed. R. Civ. P. 34(b)(2)(B). II. Interrogatories 11 and 12 and Request for Production 15 In Interrogatory 11, Plaintiff seeks information on prior, similar incidents that occurred in Defendant's parking lot: 11. Please state whether or not you have experienced any other similar incidents, whether or not such incident ultimately resulted in litigation and/or claims made against you on the premises involved in this action within twenty-four (24) months preceding the date of incident (ECF No. 19-1 at 5) Interrogatory 12 seeks the contact information of anyone involved in those incidents: 12. If your answer to question [11] above is yes, please list the name, address, and occupation and telephone number of each and every individual involved in said incidents and describe the status of the individual (i.e. personal [sic] falling, eyewitness, etc.). (ECF No. 19-1 at 5) Request for Production 15 seeks documents related to those incidents: 15. A true and correct copy of any and all litigation logs or litigation lists which identify all substantially similar incidents as alleged by the Plaintiff in the Plaintiff's Complaint. *2 (ECF No. 19-1 at 12) Defendant claims these discovery requests are overly broad. (ECF No. 20 at 4) According to Defendant, previous incidents that occurred in the parking lot are irrelevant unless they were related to the paint on the asphalt. (ECF No. 20 at 4) Plaintiffs may use prior incidents as evidence that a defendant had notice of a dangerous condition. Ree v. Royal Caribbean Cruises Ltd., 315 F.R.D. 682, 685 (S.D. Fla. 2016). However, the admissibility of such evidence is governed by the “substantial similarity doctrine.” Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1396 (11th Cir. 1997). Under that doctrine, evidence is not admissible unless (1) the prior incident was caused by conditions substantially similar to the incident in question, and (2) the prior incident was not too remote in time. Ree, 315 F.R.D. at 686. For purposes of discovery, the doctrine is relaxed; the prior incidents need only be reasonably calculated to lead to substantially similar incidents. Id. Applying this standard, the Court finds that Plaintiff's request is overly broad. Plaintiff alleges that his injuries were caused by yellow, high-gloss paint on the asphalt, and Plaintiff's theory of negligence is entirely premised on the painted asphalt being a dangerous condition. (ECF No. 1-2 at 2–4) (ECF No. 19 at 1) As a result, prior incidents in the parking lot that are unrelated to paint on the asphalt are not reasonably calculated to lead to substantially similar incidents. Gorczyca v. MSC Cruises, S.A., 715 F. App'x 919, 922 (11th Cir. 2017) (rejecting evidence of previous slip and falls that occurred in the same room as plaintiff's fall because they were not caused by the same condition); Stern v. NCL Bahamas Ltd., No. 19-20280-CIV, 2020 WL 6822979, at *2 (S.D. Fla. Sept. 23, 2020) (finding previous falls inadmissible because they were not caused by the same dangerous condition alleged by plaintiff).[1] Accordingly, the Court limits Interrogatories 11 and 12 and Request for Production 15 to similar incidents within the 24 months preceding Plaintiff's fall that were related in some way to paint on the asphalt. III. Interrogatory 15 and Requests for Production 10 and 11 Interrogatory 15 asks about prior work performed on the parking lot: 15. Prior to the incident described in the Complaint that occurred on June 18, 2018, please list any/all improvements and/or maintenance projects, and/or alterations to the parking lot area for the preceding 36 months. Please include the date, scope, cost, and name of person/entity that completed the work. *3 (ECF No. 19-1 at 6–7) Request for Production 10 seeks inspection records: 10. Any and all inspection records or other documents showing who performed inspections of the asphalt parking lot identified in the Complaint for the preceding 5 years to the subject incident. (ECF No. 19-1 at 11) And Request for Production 11 seeks work orders: 11. Any and all work orders and/or any other documents related to request for repairs, alterations, and improvements for the asphalt parking lot identified in the Complaint for 36 months prior to June 18, 2018. (ECF No. 19-1 at 11) Defendant claims the requests are overbroad because they seek any and all prior work done on the parking lot, rather than work related to the painted asphalt. (ECF No. 20 at 5) The Court finds Defendant's objection proper. Interrogatory 15 should be limited to improvements, maintenance projects, and alterations that are in some way related to the paint on the asphalt. Likewise, Requests 10 and 11 should be limited to inspections and work orders that have some relation to the paint on the asphalt. The Court orders Defendant to provide such information no later than April 12, 2021. IV. Interrogatory 14 Interrogatory 14 seeks the following: 14. Please identify the name of the person with the most knowledge concerning HEALTHCARE TRUST'S inspection(s), maintenance, modification, alterations, and/or repairs of the parking lot/curb area at issue. (ECF No. 19-1 at 6) Defendant claims the request is vague because it is unclear what prior work Plaintiff is referencing. (ECF No. 20 at 5) In its response to the interrogatory, however, Defendant did identify the company who maintains the property. (ECF No. 19-1 at 6) The Court finds this response insufficient because it fails to identify any person with knowledge about the parking lot. (ECF No. 19-1 at 6) Defendant shall, no later than April 12, 2021, provide the name of the specific person or persons with the most knowledge as it relates to inspecting, maintaining, or repairing the paint on the parking lot asphalt. If no individual is responsible for issues related to the paint, Defendant shall provide the name of the person with the most knowledge as it relates to inspecting, maintaining and repairing the asphalt in general. V. Requests for Production 12 and 13 Requests 12 and 13 seek agreements that Defendant has with other entities who inspect and maintain the parking lot: 12. A true and correct copy of any contracts or agreements with any entity used by YOU with any responsibilities for inspecting and/or maintaining and/or repairing/altering/improving the asphalt parking lot area identified in the Complaint for 36 months prior to June 18, 2018. 13. A true and correct copy of any contract(s) or agreement(s) with any entity for the operation and/or day to day management of the parking lot/curb area identified in the Complaint. (ECF No. 19-1 at 11) Defendant states that it will provide the contract it had with the company that maintained the premises on the day of the incident. (ECF No. 20 at 6) Defendant objects, however, to providing contracts that existed prior to the incident. (ECF No. 21 at 3) Plaintiff replies that the contracts in existence prior to the incident are relevant to determining whether any work was done on the painted asphalt. (ECF No. 21 at 3) Plaintiff also states that it is entitled under Florida law to a complete copy of the insurance contract Defendant had at the time of the incident, which Defendant refuses to provide. § 627.4137, Fla. Stat. (ECF No. 21 at 3) *4 The Court finds that Requests 12 and 13 seek relevant information. Contracts in existence prior to Plaintiff's fall could reveal relevant changes made to the painted asphalt. They could also reveal third parties whom Plaintiff may wish to depose. Accordingly, Defendant should produce the requested documents no later than April 12, 2021. Moreover, to the extent that Plaintiff has made a written request for a copy of Defendant's insurance policy in accordance with section 627.4137, Fla. Stat., the Court directs Defendant to provide it. VI. Interrogatory 16 Interrogatory 16 asks about remedial measures Defendant took after Plaintiff's fall: 16. Please list any measures taken by you or your agents to remedy the [sic] after the [sic] incident described in the Complaint, including the person and/or entity that performed the work and the date. (ECF No. 19-1 at 7) Defendant claims that subsequent remedial measures are irrelevant because they cannot be used to prove negligence, culpable conduct, or a need to warn. Fed. R. Evid. 407. (ECF No. 20 at 5) Plaintiff, however, argues that the Federal Rules of Evidence allow subsequent remedial measures as proof that alternative precautionary measures were feasible. Id. (ECF No. 21 at 3) The Court finds that Interrogatory 16 seeks information within the scope of permissible discovery. Remedial measures Defendant took following Plaintiff's fall may be relevant to whether Defendant could have feasibly used alternative precautionary measures. See Azzia v. Royal Caribbean Cruises Ltd., No. 15-24776-CV, 2018 WL 11233847, at *2 (S.D. Fla. Feb. 12, 2018). As Plaintiff points out, the evidence could show that Defendant switched to a different type of paint at little to no extra cost. (ECF No. 20 at 3) Accordingly, the Court orders that Defendant fully respond to Interrogatory 16 no later than April 12, 2021. The Court clarifies that it solely addresses the issue of discoverability, not admissibility. VII. Request for Production 8 Request 8 seeks all documents the Defendant relied upon in answering the interrogatories. (ECF No. 19-1 at 10) Defendant objected, stating: Objection, vague and ambiguous, overly broad in scope and not reasonably calculated to lead to the discovery of admissible evidence. Also encompasses work-product and/or attorney-client privilege. (ECF No. 19-1 at 10) Unlike the objections analyzed above, Defendant did not provide any specific basis for this objection in its Response to Plaintiff's Motion to Compel. (ECF No. 20) Discovery objections must be stated with specify so that the Court can understand how and why the discovery request is objectionable. Azzia, 2018 WL 11233847, at *2. Boilerplate objections are not permitted. Guzman v. Irmadan, Inc., 249 F.R.D. 399, 400 (S.D. Fla. 2008). Objections stating that a discovery request is “vague, overly broad, or unduly burdensome” are meaningless. Id. Likewise, relevancy objections stating that information is “not reasonably calculated to lead to the discovery of admissible evidence” are “borderline frivolous” and “tantamount to no objection being raised at all.” Rivera, 2017 WL 5496158, at *4. A party who lodges a boilerplate objection, and then fails to provide specifics when responding to a motion to compel, waives any applicable objection. Rosenbaum v. Becker & Poliakoff, P.A., No. 08-CV-81004, 2010 WL 11505517, at *6 (S.D. Fla. Apr. 13, 2010); S.D. Fla. L.R. 26.1(e)(2)(A). Local Rule 26.1(2)(B)(ii)(a) also imposes specific requirements when a party objects on the basis of privilege. The rule requires the objecting party to prepare a privilege log. S.D. Fla. L.R. 26.1(2)(C). If the privilege relates to a document, the party must identify the type of document and explain its general subject matter. S.D. Fla. L.R. 26.1(2)(B)(ii)(a). The party should also list the document's date and author, along with any addressees or recipients. Id. A party who fails to provide a privilege log and the required information may waive its privilege. (ECF No. 17 at 3) *5 Here, Defendant provided boilerplate objections, then failed to provide the specific basis for the objections when responding to Plaintiff's Motion to Compel. Defendant has not provided the Court with any information to indicate how or why the request is ambiguous, vague, overbroad, or not reasonably calculated to lead to the discovery of admissible evidence. The Court, therefore, finds any applicable objection, with the exception of privilege, has been waived. E.g., Thermoset Corp. v. Bldg. Materials Corp., No. 14-60268-CIV, 2014 WL 6473232, at *2–3 (S.D. Fla. Nov. 18, 2014); Sream, Inc. v. Hassan Hakim & Sarwar, Inc., No. 16-81600- CIV, 2017 WL 878704, at *2 (S.D. Fla. Mar. 6, 2017).[2] With regard to the privilege objection, Defendant failed to provide a privilege log and failed to provide any information required under Local Rule 26.1(2)(B). Accordingly, the Court orders Defendant, no later than April 12, 2021, to provide Plaintiff (1) an amended response with specific privilege objections that fully explain the underlying reasons for the objection, (2) a privilege log detailing any documents withheld from production or otherwise represent that no responsive documents were withheld, and (3) all non-privileged documents responsive to Interrogatory 8. Rivera, 2017 WL 5496158, at *3. VIII. Interrogatory 5 Interrogatory 5 asks Defendant to state the facts it relied upon for each affirmative defense in its answer. (ECF No. 19-1 at 3) Defendant objected, claiming: Objection; work product and attorney-client privilege to the extent that the objection seeks the mental impressions, legal strategies, and opinions of the Defendant or its counsel. Without waiving said objections, the Defendant would state that its investigation is continuing. However, to that extent that Plaintiff failed to use reasonable care for her own safety, if any, her recovery must be reduced. It is further believed that to the extent Plaintiff has collateral sources which may have reimbursed her claimed damages Defendant is entitled to a set-off. To the extent Plaintiff has suffered an aggravation of pre-existing injury, Defendant is entitled to a set-off from any other tortfeasor who has paid monies in settlement of prior or subsequent claims. (ECF No. 19-1 at 3) The Court finds that Defendant's response to Interrogatory 5 was non-responsive. Rather than provide the facts Plaintiff requested, Defendant restated conclusory legal allegations it made in its answer and claimed that an investigation is continuing. (ECF No. 1-6 at 51–53) (ECF No. 19-1 at 3) The Court directs Defendant to provide a responsive answer to Interrogatory 5 identifying any facts it relied upon for each affirmative defense no later than April 12, 2021. The Court also finds that Defendant's boilerplate privilege objection was improper. Therefore, the Court orders Defendant to provide Plaintiff (1) an amended response with specific privilege objections that fully explain the underlying reasons for the objection no later than April 12, 2021. Rivera, 2017 WL 5496158, at *3. IX. Request for Production 1 *6 Request for Production 1 seeks the following: 1. Color copies of any and all photographs, films, or videos in Defendant's possession which show: (a) the Plaintiff, (b) the occurrence of the incident alleged in the Plaintiff's Complaint, (c) The scene of the incident or accident prior to and after the incident described in the Complaint (d) Any other photographs, films or videos relating to this claim or to the Plaintiff. (ECF No. 19-1 at 9) Defendant objected, stating: Objection, work product. Privilege Log: The Defendant is in possession of photographs depicting the subject property/paint on the asphalt which were taken after receiving notice of Plaintiff's claim. These photographs were taken in anticipation of litigation and are thereby protected by the work product privilege. Defendant is also in possession of photographs depicting the subject parking lot and Plaintiff's injuries which were provided by Plaintiff. (ECF No. 19-1 at 9) Defendant's privilege objection fails to comply with Local Rule 26.1(e)(2)(B)(ii)(a). In particular, Defendant failed to provide the date of the photographs, the identity of the person who took the photograph, and any addressees or recipients of the photograph. Accordingly, the Court directs Defendant to amend its objection in accordance with Local Rule 26.1(e)(2)(B)(ii)(a). X. Interrogatory 10 Interrogatory 10 asks about others who had an ownership interest in the parking lot: 10. Please list the name, address, telephone number and contact information of each and every person(s) or entity(s) which had an ownership interest in the subject property and each and every person(s) or entity(s) that managed and/or operated the subject property on the day of the subject incident. (ECF No. 19-1 at 5) Defendant objected, stating: Objection, vague and ambiguous, overly broad in scope and not reasonably calculated to lead to the discovery of admissible evidence. Without waiving and subject to said objection, Defendant owned the subject property and the Department of Veteran Affairs was a tenant. Cushman & Wakefield provided the maintenance services as it relates to the subject area. (ECF No. 19-1 at 5) Defendant reiterated this objection in its Response to Plaintiff's Motion. (ECF No. 20 at 2) Plaintiff claims the formulaic objection and subsequent answer leaves Plaintiff uncertain as to whether Defendant fully answered the question. (ECF No. 19 at 4) It is improper to assert a formulaic objection, then follow it with an answer. Alhassid v. Bank of Am., N.A., No. 14-20484, 2015 WL 1120273, at *2 (S.D. Fla. Mar. 12, 2015). A party preserves nothing when they respond to a discovery request “subject to” a previous, formulaic objection. Guzman, 249 F.R.D. at 400. As the Court explained, this type of objection “serves only to waste the time and resources of the parties” and “leaves the requesting party uncertain as to whether the question actually has been fully answered or whether only a portion of the question has been answered.” Id. (ECF No. 17 at 3) Here, the Court finds that Defendant's objection to Interrogatory 10 is improper because the formulaic objection leaves Plaintiff uncertain as to whether the request has been fully answered. Thermoset, 2014 WL 6473232, at *4. Moreover, Defendant inexplicably failed to provide contact information for either entity that it identified, despite Plaintiff's request. The Court orders Defendant to amend its response to Interrogatory 10 no later than April 12, 2021 and provide the contact information for every entity that owned, managed or operated the property on the day of Plaintiff's fall. CONCLUSION *7 Having carefully reviewed the Motion, the Response and Reply thereto, the court file and applicable law, it is hereby ORDERED AND ADJUDGED as follows: (1) Plaintiff's Motion to Compel Better Answers and Documents from Healthcare Trust of America, Inc. is GRANTED IN PART. Defendant shall supplement its discovery by responding to the Interrogatories and producing responsive documents to the Requests for Production as outlined above. Specifically, Defendant, no later than April 12, 2021, shall: (a) answer Interrogatories 11 and 12 and produce the documents sought in Request 15, limited to similar incidents within the 24 months preceding Plaintiff's fall that were related in some way to the paint on the asphalt; (ECF No. 19-1 at 5, 12) (b) answer Interrogatory 15, limited to improvements, maintenance projects, and alterations that are in some way related to the paint on the asphalt; (ECF No. 19-1 at 6–7) (c) produce the documents sought in Requests 10 and 11, limited to inspections and work orders that had some relation to the paint on the asphalt; (ECF No. 19-1 at 11) (d) fully answer Interrogatory 14 by providing the specific person or persons with the most knowledge as it relates to inspecting, maintaining, or repairing the paint on the parking lot asphalt or the parking lot asphalt in general; (ECF No. 19-1 at 6) (e) produce the documents sought in Requests 12 and 13 and provide a complete copy of any insurance policy in accordance with section 627.4137, Fla. Stat.; (ECF No. 19-1 at 11) (f) fully answer Interrogatory 16; (ECF No. 19-1 at 7) (g) produce the documents sought in Request 8, amend the response with specific privilege objections that fully explain the underlying reasons for the privilege objection, and provide a privilege log detailing any documents withheld from production or otherwise represent that no responsive documents were withheld; (ECF No. 19-1 at 10) (h) fully answer Interrogatory 5, amend the response with specific privilege objections that fully explain the underlying reasons for the privilege objection; (ECF No. 19-1 at 3) (i) amend the objection to Request for Production 1 in accordance with Local Rule 26.1(e)(2)(B)(ii)(a); (ECF No. 19-1 at 9) (j) fully answer Interrogatory 10 by providing the contact information for every entity that owned, managed or operated the property on the day of Plaintiff's fall. (ECF No. 19-1 at 5) DONE AND ORDERED in Ft. Lauderdale, Florida, Broward County this 7th day of April, 2021. Footnotes [1] Defendant also claims that it should not be required to disclose the personal information of those involved in prior incidents because of “privacy concerns.” (ECF No. 20 at 4) Defendant, however, fails to explain how disclosure of the particular information requested would invade the privacy interests of any third party. Nor does Defendant allege that it would violate any privacy law. The Court, therefore, finds this argument without merit. See Hubbard v. Bankatlantic Bancorp, Inc., No. 07–61542, 2009 WL 3856458, at *5 (S.D. Fla. Nov. 17, 2009) (granting motion to compel and requiring production of discovery disclosing the identities of “confidential witnesses”). [2] The Court notes that Defendant provided boilerplate objections to many other discovery requests at issue in Plaintiff's Motion to Compel. (ECF No 19-1 at 5–7, 10–12) The Court, however, chose to address those objections on the merits because Defendant provided specific explanations in its Response to Plaintiff's Motion. See Rosenbaum, 2010 WL 11505517, at *6. Nonetheless, the Court warns that similar boilerplate objections in the future may result in waiver. See Sream, 2017 WL 878704, at *2.