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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61297-CIV-ALTMAN/Hunt

BYRON HALL, et al.,

Plaintiffs,

v.

LVNV FUNDING, LLC, et al.,

Defendants.

____________________________________/

DEFENDANTS’ RESPONSE IN OPPOSITION 

TO PLAINTIFFS’ MOTION TO COMPEL SECOND DEPOSITION

Defendants Resurgent Capital Services, L.P. et al, responds to Plaintiffs’ Motion to 

Compel Second Deposition (D.E. 67) as follows:

I. BACKGROUND

On December 11, 2020, Plaintiffs unilaterally scheduled ten (10) depositions to occur over 

three (3) consecutive days, including the depositions of Defendants’ corporate representative(s).

D.E. 67. On February 19, 2021, Kimberly Hurley appeared for deposition as Defendants’ omnibus 

corporate representative. Id. During the deposition, Plaintiffs asked questions about a proof of 

claim concerning Joseph Amodio’s account. Id. at 8:14–19. Ms. Hurley answered counsel’s 

questions, providing testimony comparing the balance on the proof of claim to the balances listed 

on the corresponding “data string.” Id. at 9:3–7, 10:6–25. Following these questions, Plaintiffs 

asked why the principal balance listed on the proof of claim was different than the balance listed 

on the corresponding data string. Id. at 13:21–25. Because the response to that question would 

reveal information protected by the attorney-client privilege, Defendants asserted an objection and

did not provide a substantive response. Rather than exercising “reasonable latitude...to establish 

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other relevant information” about Defendants’ privilege assertion as L.R. 26.1(f)(2) specifically 

anticipates, Plaintiffs instead adjourned the deposition, and their Motion followed. Id. at 14:1—7. 

II. ARGUMENT

In their Motion, Plaintiffs argue Defendants should be compelled to testify why any amount 

listed on any of the proofs of claim at issue conflict with their corresponding data strings. Plaintiffs 

offer three arguments. First, they argue that Defendants were on notice of their intention to ask 

why such inconsistencies existed by virtue of the topics identified in their Notice of Deposition. 

Second, they argue Defendants waived the attorney-client privilege by failing to seek an immediate 

protective order following their privilege assertion. Finally, they argue that because Defendants 

placed the attorney-client privileged communication at issue in this case, they waived their 

privilege. All three arguments fail, and their Motion should be denied.

A. Defendants were not on notice Plaintiffs would inquire into Defendants’ privileged 

communications.

Plaintiffs argue Defendants “knew full-well” Plaintiffs would inquire into Defendants’

privileged communications and accuse Defendants of waiting until Plaintiffs were “mere moments 

from obtaining dispositive testimony” before asserting their privilege objection. D.E. 67, p. 5. A 

cursory review of the Notice of Deposition reveals Plaintiffs’ assertion is wrong. 

Federal Rule of Civil Procedure 30(b)(6) required Plaintiff to describe with reasonable 

particularity the matters for which Plaintiffs requested the depositions of Defendants’ corporate 

representative(s). Fed. R. Civ. P. 30(b)(6). Here, according to the Notices, Plaintiffs sought 

testimony about the operative complaint and answer, Defendants’ consumer agency licenses, 

documents maintained by Defendants in accordance with Florida Administrative Code, the 

underlying proofs of claim, Defendants’ policies and procedures governing the proofs of claim, 

and documents Defendants relied upon in determining the balance listed on the proofs of claim. 

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D.E. 55-1. The Notices do not seek testimony regarding Defendants’ legal evaluation of how

proofs of claim should be completed or why they should be completed in a specific way—which 

is exactly the testimony Plaintiffs now ask the Court to compel Defendants to provide. The Notices

made clear Plaintiffs sought testimony about several classes of documents, certain policies and 

procedures, and Defendants’ compliance with certain state-imposed record-keeping requirements. 

Nowhere do the Notices even suggest Plaintiffs planned to obtain the testimony they now seek.

B. Defendants were not required to seek a protective order.

Plaintiffs argue Defendants waived any attorney-client privilege by failing to immediately 

seek a protective order following the deposition, arguing that the Rules of Civil Procedure required 

Defendants to act rather than “forcing” Plaintiffs to bring their Motion. But Fed. R. Civ. P. 30(d)(4) 

was eliminated from Rule 30 long ago1

, and no local rule imposes any such burden on the party 

asserting privilege. Rather, the federal rules provide that counsel may instruct a witness not to 

answer a deposition question “when necessary to preserve a privilege.” Fed. R. Civ. P. 30(c)(2). 

When a deponent is instructed not to answer, Rule 37(a)(3)(C) permits the inquiring party to either 

complete the deposition or adjourn the examination before moving for an order compelling 

disclosure. The objecting party is also entitled, but is not required, to suspend the deposition for 

the time necessary to obtain a ruling on a motion for protective order. Fed. R. Civ. P. 30(d)(3)(A).

Local Rule 26.1(f)(2) harmonizes with its federal counterpart and allows the questioning party to 

probe the borders of a privilege assertion. The purpose of the process, taken as a whole, is to allow 

the questioning party to determine whether to pursue the issue further as the party deems necessary, 

while protecting the objecting party from the need to immediately engage in motions practice that 

1 According to Lexis, Rule 30(d)(4) was last included in the 2006 publication of the Federal Rules 

of Civil Procedure and eliminated as of the 2007 publication.

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may ultimately prove unnecessary should the questioning party decide not to press forward on the 

privileged issue.

Here, Defendants raised an appropriate privilege objection2

. Plaintiffs could have 

proceeded with the deposition, either by moving on to other topics or by asking more probing 

questions about the privilege assertion. Instead, Plaintiffs chose to stop the deposition and seek an 

order compelling testimony—and the rules allow them to do so. But Plaintiffs cannot successfully 

compel Defendants to give attorney-client privileged testimony by pointing to Defendants’ failure 

to adhere to a procedural requirement that no longer applies.

C. Defendants did not place the privileged communications at issue.

Plaintiffs argue Defendants placed the attorney-client privileged communications at issue

because the balances listed in the proofs of claim and the corresponding data strings are 

inconsistent. This, Plaintiffs argue, entitles them to learn why the inconsistency exists.

The attorney-client privilege protects confidential communications to facilitate the free 

exchange of information between attorneys and their clients. Upjohn Co. v. United States, 449 

U.S. 383, 389 (1981). The privilege may be waived when a party affirmatively interjects a 

privileged communication directly into the litigation, as necessary to prove an element of a claim 

or defense. Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D 550, 614-15 (S.D. 

Fla. 2013) (citing GAB Bus. Servs., Inc. v. Syndicate 627, 809 F.2d 755, 762 (11th Cir. 1987)). An 

“at issue” waiver of the attorney-client privilege requires an affirmative act by the invoking party

arising from the asserted privilege; relevance between the affirmative act and a claim or issue in 

the case; and prejudice to the opposing party flowing from the non-disclosure of information vital 

2 Plaintiffs do not dispute the testimony they seek is not privileged—they simply argue they are

entitled to the testimony notwithstanding the fact that it is privileged.

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to their claims. Sow v. James River Ins. Co., 2020 U.S. Dist. 48852, *7 (S.D. Fla. 2020) (internal 

citations omitted). “The inquiry focuses on whether a party affirmatively interjected a privileged 

communication directly into the litigation, as necessary to prove an element of a claim or defense.” 

Id. (internal quotations omitted). “It is the articulation of a claim or defense explicitly relying on 

the litigant’s subjective thinking, as potentially influenced by advice from legal counsel that 

activate the doctrine of implied waiver.” Maar v. Beall’s Inc., 237 F. Supp. 1336, 1340 (S.D. Fla. 

2017).

Here, Plaintiffs allege the proofs of claim violated 15 U.S.C. § 1692e(2)(A) by falsely 

representing the amount of the underlying debts as principal only.3 See D.E. 44. The balances 

listed in the proofs of claim and the balances listed in the corresponding data strings say what they 

say, and they are either accurate or not. The legal advice which led Defendants to include or 

exclude certain balance information on the proofs of claim will not change what the proofs of 

claim say. Moreover, Plaintiffs cannot credibly argue that Defendants put the legal rationale 

behind their proofs of claim at issue in this case—Defendants have neither asserted a bona fide

error defense nor cited their reliance upon the advice of counsel as justification for the conduct 

giving rise to the claims pled. Defendants have taken no position that could reasonably be read to 

“interject” their privileged communications with counsel into this case.4 The legal advice 

culminating in the preparation of the proofs of claim is irrelevant to whether the balance listed on 

the proofs of claim are true or false, and thus cannot be “necessary” to prove any element of 

Plaintiff’s claims. 

3 Plaintiffs do not dispute they owe the balances listed on each proof of claim, and no Plaintiff 

objected to any of the proofs of claim during their respective bankruptcies.

4 And even had they, because this case turns on the accuracy of the proofs of claim themselves, 

Defendants’ privileged communications with their counsel are not sufficiently material to justify 

waiver. See Richter v. Wells Fargo Bank, N.A., 2014 U.S. Dist. LEXIS 203684 (M.D. Fla. 2014).

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III. CONCLUSION

For the foregoing reasons, this Honorable Court should deny Plaintiff’s Motion to Compel 

Second Deposition.

Respectfully submitted,

MESSER STRICKLER, LTD.

By: /s/ John M. Marees, II

LAUREN M. BURNETTE, ESQUIRE

FL Bar No. 0120079

JOHN M. MAREES, II, ESQUIRE

FL Bar No. 0069879

12276 San Jose Blvd.

Suite 718

Jacksonville, FL 32223

(904) 527-1172

(904) 683-7353 (fax)

lburnette@messerstrickler.com

jmarees@messerstrickler.com

Counsel for Defendants

Dated: March 5, 2021

CERTIFICATE OF SERVICE

I certify that on March 5, 2021, a true copy of the foregoing document was served as 

follows:

Via CM/ECF

Jibrael Hindi, Esq.

Thomas Patti, Esq.

The Law Offices of Jibrael S. Hindi

110 SE 6th Street, 17th Floor

Ft. Lauderdale, FL 33301

jibrael@jibraellaw.com

tom@jibraellaw.com

Attorneys for Plaintiffs

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MESSER STRICKLER, LTD.

By: /s/ John M. Marees, II

LAUREN M. BURNETTE, ESQUIRE

FL Bar No. 0120079

JOHN M. MAREES, II, ESQUIRE

FL Bar No. 0069879

12276 San Jose Blvd.

Suite 718

Jacksonville, FL 32223

(904) 527-1172

(904) 683-7353 (fax)

lburnette@messerstrickler.com

jmarees@messerstrickler.com

Counsel for Defendants

Dated: March 5, 2021

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