UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-61650-CIV-RUIZ/STRAUSS 

CYNTHIA LAREMORE, 

Plaintiff,

v. 

HOLIDAY CVS, LLC, et al.,

 Defendants. 

 / 

ORDER 

THIS CAUSE came before me upon Defendant Target Corporation’s (“Defendant’s”) ore 

tenus motion to compel (“Motion to Compel”) better responses to interrogatories and requests for 

production (“Discovery Requests”). United States District Judge Rodolfo A. Ruiz has referred the 

case to me for all discovery matters. (DE 18). Pursuant to the Motion to Compel, the parties 

submitted a joint discovery status report (“JSR”) identifying the specific Discovery Requests at 

issue. (DE 40; DE 42).1 Further, a discovery hearing (“Discovery Hearing”) was held on March 

12, 2021, at which time the Court heard oral argument from the parties. (DE 43). 

This case arises from an alleged slip and fall incident at Defendant’s store on January 21, 

2019 in which Defendant alleges she slipped and fell on berries near the produce section, followed 

by a separate slip and fall incident at Co-Defendant Holiday CVS’s store about two weeks later. 

(DE 1-2 at ¶¶7-9, 16-18). The issues raised in the JSR arise out of answers that Plaintiff gave 

during her deposition which Defendant asserts either conflict with her prior responses to 

1 Plaintiff acknowledged at the hearing held on March 12, 2021 that the “revised” JSR she filed 

did not materially differ from the earlier JSR that Defendant filed.

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interrogatories and a request for production or suggest that those prior responses were incomplete. 

As to the motion to compel better answers to the interrogatories referenced in the JSR, the motion 

is GRANTED for the reasons described at the Discovery Hearing and as more fully detailed 

below.

Defendant’s motion relative to its Request for Production No. 10 requires more discussion. 

Defendant’s Request for Production No. 10 sought “Any and all photographs and videos taken by 

on or on behalf of the Plaintiffs and their respective agents, servants, employees and investigators 

regarding any facts and issue in this cause.” Plaintiff’s response asserted work product privilege 

and referred to a privilege log. (DE 40; DE 42). The parties agreed that the privilege log stated

the following:

Document: 1 photograph; date: 6/1/2015; Description: Photograph of Plaintiff’s 

shoes taken by Plaintiff’s representative. Privilege Asserted: Work-product; in 

anticipation of litigation.

(DE 40 at 4; DE 42 at 4) (emphasis added). In the JSR, Defendant asserts that Plaintiff testified, 

at her deposition, that following the incident at Target a co-worker took a photograph of her shoes 

depicting the berry juice that Plaintiff allegedly slipped on. Defendant argues that it is entitled to 

the photograph because it was not taken in anticipation of litigation and, even if it was, Target 

cannot obtain substantially equivalent evidence. Id. at 4-5.

“First enacted in 1970, Rule 26(b)(3)(A) incorporates the attorney work-product doctrine 

discussed in the Supreme Court’s seminal decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 

385, 91 L.Ed. 451 (1947).” Republic of Ecuador v. Hinchee, 741 F.3d 1185, 1189 (11th Cir. 2013). 

Federal Rule of Civil Procedure 26(b)(3)(A) states:

Ordinarily, a party may not discover documents and tangible things that are 

prepared in anticipation of litigation or for trial by or for another party or its 

representative (including the other party’s attorney, consultant, surety, indemnitor, 

insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered 

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if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its 

case and cannot, without undue hardship, obtain their substantial equivalent 

by other means.

Fed. R. Civ. P. 26(b)(3)(A). In addition, Local Rule 26.1(e)(2)(B)(ii)(a) provides that the 

following information shall be provided in the objection of a party asserting a privilege unless 

divulgence of such information would cause disclosure of allegedly privileged information:

For documents . . .: (1) the type of document . . . ; (2) general subject matter of the 

document . . . ; (3) the date of the document . . . ; (4) such other information as is 

sufficient to identify the document . . . for a subpoena duces tecum, including, 

where appropriate, the author, addressee, and any other recipient of the document . 

. ., and, where not apparent, the relationship of the author, addressee, and any other

recipient to each other[.] 

S.D. Fla. L.R. 26.1 (e)(2)(B)(ii)(a),

Plaintiff’s privilege log fails to comply with the above requirements for the following 

reasons. Plaintiff testified at her deposition that she returned to work following the incident at 

Target, and a co-worker of Plaintiff took a photograph of Plaintiff’s shoes (“Shoes Photograph”). 

(DE 40 at 4-5; DE 42 at 4-5). The parties agreed at the Discovery Hearing that the Shoes 

Photograph is addressed by the aforementioned entry in Plaintiff’s privilege log. The description 

of Plaintiff’s co-worker as her “representative” does not comport with the definition of 

“representative” contemplated by the work product doctrine nor would the disclosure of the coworker relationship divulge privileged information. See Fed. R. Civ. P. 26(b)(3)(A) (defining 

representative to include “the other party’s attorney, consultant, surety, indemnitor, insurer, or 

agent”). In addition, Plaintiff’s privilege log identified the date pertaining to the photograph as 

June 15, 2015; however, the incident in question took place on January 19, 2019. Thus, I find that 

the privilege log is insufficient to support Plaintiff’s claim of work product privilege with respect 

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to the Shoes Photograph. However, as of yet, I do not find that this failure automatically requires 

disclosure of the Shoes Photograph. See LeBlanc v. Coastal Mech. Servs., LLC, No. 04-80611-

CIV, 2005 WL 8156080, at *6–7 (S.D. Fla. Mar. 22, 2005) (finding privilege log insufficient but 

declining to order “draconian course” of wholesale disclosure). Nor do I find that Defendants have 

sufficiently demonstrated a “substantial need for the materials to prepare its case” or that it 

“cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. 

P. 26(b)(3)(A)(ii) (emphasis added). 

Accordingly, it is hereby ORDERED AND ADJUDGED that the Motion to Compel is 

GRANTED for the reasons stated at the Discovery Hearing and as further detailed below. 

1. As to Interrogatory Request Nos. 11 and 12, Plaintiff shall clarify in Interrogatory 

Request No. 11 all of the injuries she is claiming and shall clarify in Interrogatory 

Request No. 12 the medical expenses that she is claiming apply to those injuries, even 

if merely confirming that all expenses have been provided in the previous response to 

Interrogatory Request No. 12;2 

2. As to Interrogatory Request Nos. 15 and 16, Plaintiff shall amend and correct her 

responses to provide, to the best of her ability, the names, locations and dates of medical 

care providers pertaining to incidents that were disclosed in her deposition and for any 

other incidents that Plaintiff is able to recall; 

3. As to Interrogatory Request Nos. 17 and 20, Plaintiff shall amend and correct her 

responses to provide the names and contact information, including telephone numbers, 

that are responsive to these interrogatories; 

2 Plaintiff clarified at the Discovery Hearing that the expenses are indivisible as pled in her 

Complaint.

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4. As to Request for Production (“RFP”) No. 10, Defendant’s Motion to Compel is 

GRANTED to the extent that Plaintiff’s privilege log is insufficient. Rather than 

disclose, however, Plaintiff may amend her privilege log within the same timeframe 

that revised responses to interrogatories are due to more accurately describe the 

photograph and to clarify, if necessary, the basis for asserting work product privilege. 

Defendant may, within seven (7) days following Plaintiff serving a revised privileged 

log as to RFP No. 10, file a motion challenging the asserted privilege and/or identifying 

why an exception exists warranting the disclosure of the photograph at issue.

5. As to Interrogatory Request Nos. 22, 24, and 25, Plaintiff shall make a good faith effort 

to amend and correct her responses to provide a more specific listing of injuries in prior 

incidents and/or accidents, court case numbers and dates and locations of court cases 

corresponding to those injuries, and medical provider information pertaining to those 

incidents and/or accidents.

In addition, it is further ORDERED that:

6. Defendant’s ore tenus motion for sanctions is DENIED; Defendant acknowledged that 

Plaintiff was forthcoming in her deposition, which is itself an indication of no bad faith 

on the part of Plaintiff’s counsel who is presumed to prepare a client for a deposition, 

and I do not find that Plaintiff’s counsel acted in bad faith to withhold information from 

Defendant;

7. Plaintiff shall serve amended responses to the Discovery Requests by March 17, 2021;

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8. The parties may confer for the purpose of Defendant identifying specific information 

of interest to Defendant to which Plaintiff should make a good faith effort to respond 

to the extent that Plaintiff can recall the information or otherwise reasonably determine 

it.

DONE AND ORDERED in Fort Lauderdale, Florida, this 12th day of March 2021. 

Copies furnished to all Counsel of Record

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