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LAW OFFICES OF JIBRAEL S. HINDI, PLLC

110 SE 6th Street, 17th Floor | Ft. Lauderdale, Florida 33301 | Phone (954) 907-1136 | Fax (855) 529-9540 

www.JibraelLaw.com

UNITED STATES DISTRICT COURT

SOTHERN DISTRICT OF FLORIDA

Case No. 20-CV-61297-RKA

BRYON HALL, et al.,

Plaintiffs,

v.

LVNV FUNDING, LLC, et al.,

Defendants.

_____________________________/

PLAINTIFF’S REPLY TO DEFENDANT’S RESPONSE TO

PLAINTIFF’S MOTION TO COMPEL SECOND DEPOSITION

Plaintiffs submit the following Reply to the Response in Opposition [D.E. 69] filed by 

Defendants regarding Plaintiffs’ Motion to Compel Second Deposition [D.E. 67] and state:

DEFENDANTS FAILED TO SATISFY THE BURDEN OF PROVIDING THAT 

ATTORNEY-CLIENT PRIVILEGE AND/OR WORK-PRODUCT PRIVILEGE EXISTS.

As set forth in Plaintiffs’ Motion to Compel [D.E. 67] (the “Motion to Compel”), “[t]he 

party claiming the attorney-client privilege must generally establish the following elements: [1]

the holder of privilege is a client; [2] the person to whom communication was made is a member 

of the bar and that person is acting as a lawyer in connection with the communication; [3] the 

communication relates to a fact of which attorney was informed by the client without the presence 

of strangers for the purpose of securing legal advice; and [4] the privilege is claimed and not 

waived by the client.” Motion to Compel at 4 (citing Wyndham Vacation Ownership, Inc. v. 

Totten, Franqui, Davis & Burk, LLC, No. 18-81055-CIV-ALTMAN/REINHART, 2019 U.S. Dist. 

LEXIS 227264, at *4 (S.D. Fla. May 28, 2019)). 

Both at the underlying deposition, as well as in Defendants’ Response [D.E. 69], 

Defendants’ had the opportunity to satisfy its burden of proving that a proper attorney-client and/or 

work-product privilege exists. Defendants, however, have failed to do so. 

Case 0:20-cv-61297-RKA Document 73 Entered on FLSD Docket 03/19/2021 Page 1 of 5
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LAW OFFICES OF JIBRAEL S. HINDI, PLLC

110 SE 6th Street, 17th Floor | Ft. Lauderdale, Florida 33301 | Phone (954) 907-1136 | Fax (855) 529-9540 

www.JibraelLaw.com

As the transcript reflects, see generally D.E. 67-1 (the “Transcript”), the following question

caused Defendants to raise the “attorney-client privilege” objection: 

So in October 2019, this account was sold -- or I’m sorry -- this 

account was transferred to your office, the amount was, the total amount 

was $2,356.23, the principal portion of it was $1,927.24, and interest of 

$428.99. Now, this is where I’m going to ask for some clarification. 

Instead of filing a proof of claim listing $1,927.24 as the 

principal, the proof of claim lists the current balance [i.e., $2,356.23] as 

a whole. Can you tell me why that number was used, the current balance, 

as opposed to the principal balance?

Transcript at P.13, L.15-25. When pressed, Defendants then provided the following explanation

as to why they (Defendants) raised the “attorney-client privilege” objection:

And, that1 was a decision that was made between Resurgent and its 

internal legal counsel. And, so, it’s our position that the decision as to why 

the amounts were included on the proof of claim were attorney/client 

privilege and/or work product because it was done in anticipation of 

litigation, which is the filing and the proof of claim. So, I’m going to 

instruct her not the answer the question....

Transcript at P.14, L.17-25. Plaintiffs then proceeded to explain to Defendants why such line of 

questioning was critical and necessary, explaining: 

So, the testimony I was provided was that the principal amount 

was the current balance, despite the records clearly indicating that the 

principal balance was $1,927. The question [is] specifically why does the 

proof of claim list[] [an] amount other than the principal balance. So I 

think that’s something fully within the scope of this [deposition] because 

the testimony previously given doesn’t match up with what’s actually in 

front of me. 

So, I agree that this is a strict liability case. And if the principal 

balance is, in fact, different that what’s listed on the proof of claim, we 

have a case. But it seems that the testimony just isn’t following the record. 

So I believe a “why” is quite important in this situation.

Transcript at P.18, L.9-23. 

1

See Transcript at P.14, L.14-16 (Plaintiffs attempted to clarify the inquiry for Defendants, as 

Plaintiffs believed the attorney-client privilege was not applicable, stating “I’m specifically asking 

why the proof of claim was filed with the current balance as opposed to the principal balance.”). 

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LAW OFFICES OF JIBRAEL S. HINDI, PLLC

110 SE 6th Street, 17th Floor | Ft. Lauderdale, Florida 33301 | Phone (954) 907-1136 | Fax (855) 529-9540 

www.JibraelLaw.com

Despite Plaintiffs’ explanation at the deposition, Defendants refused to withdraw the 

“attorney-client privilege” objection. See Transcript at P.19, L.3-5.

Per Defendants’ own words, “the decision as to why the amounts were included on the 

proof of claim were attorney/client privilege and/or work product because it was done in 

anticipation of litigation, which is the filing and the proof of claim.” Transcript at P.18, L.19-23

(emphasis added). Completely devoid from Defendants’ Response [D.E. 69], however, is why

filing a proof of claim constitutes an action done in anticipation of litigation – and more pointedly

– why Defendants’ objection was not that of “work product.” See, e.g., Fid. Nat'l Title Ins. Co. v. 

Wells Fargo Bank, N.A., No. 12-22437, 2013 U.S. Dist. LEXIS 199702, 2013 WL 12138558, at 

*2 (S.D. Fla. July 19, 2013), aff'd, No. 1:12-CV-22437-UU, 2013 U.S. Dist. LEXIS 198661, 2013 

WL 12138559 (S.D. Fla. July 29, 2013) (noting that plaintiff submitted an affidavit but finding it 

“wholly conclusory and [with] few details to substantiate her claim that ‘Notes’ were created ‘in 

anticipation of litigation’”); see also Bridgewater v. Carnival Corp., 286 F.R.D. 636, 639 (S.D. 

Fla. 2011) (explaining that “[u]nless the affidavit is precise to bring the document within the rule, 

the Court has no basis on which to weigh the applicability of the privilege at all”); Abby v. Paige, 

No. 10-23589-CIV, 2011 U.S. Dist. LEXIS 165575, 2011 WL 13223681, at *2 (S.D. Fla. Nov. 

30, 2011) (explaining party “typically” meets burden by affidavit but cannot “discharge that 

burden with conclusory allegations” and noting that declaration was “minimally useful”; provided 

“mostly . . . conclusory assertions”; was “not enough to establish the privilege claimed”; and, “to 

the contrary, it raises more questions than it answers”); Place St. Michel, Inc. v. Travelers Prop. 

Cas. Co. of Am., No. 06-21817-CIV, 2007 WL 1059561, at *3 (S.D. Fla. Apr. 4, 2007 (“The mere 

conclusory assertion that material sought is covered by . . . [the] work product privilege is not 

sufficient to render such material undiscoverable.”). 

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LAW OFFICES OF JIBRAEL S. HINDI, PLLC

110 SE 6th Street, 17th Floor | Ft. Lauderdale, Florida 33301 | Phone (954) 907-1136 | Fax (855) 529-9540 

www.JibraelLaw.com

As Magistrate Judge Jonathan Goodman explained in Empire Indem, Ins. Co., “the party 

claiming a privilege must provide the Court with underlying facts demonstrating the existence 

of the privilege, which may be accomplished by affidavit. (citation omitted). In other words, ‘the 

onus is on the party claiming immunity to provide competent evidence that the materials in 

question were created in anticipation of litigation.’” 2019 U.S. Dist. LEXIS 47919, at *16-17

(emphasis added) (quoting Place St. Michel, 2007 WL 1059561 at *3). 

Here, just as with Gables in Empire Indem. Ins. Co., Defendants have failed to supply or 

present any evidence for the “attorney-client privilege” objection – or more accurately, the “work 

product privilege” objection – raised. See Empire Indem. Ins. Co., 2019 U.S. Dist. LEXIS 47919

at *16 (“the burden to demonstrate that a privilege applies is ‘not, of course, discharged by mere 

conclusory or ipse dixit assertions, for any such rule would foreclose meaningful inquiry into the 

existence of the relationship, and any spurious claims could never be exposed.’”). As Magistrate 

Judge Goodman succinctly put: 

[A]ny assessment of Gables's work product claim must begin with the 

critical observation about the absence of any actual evidence to support its 

primary or fallback positions. Its counsel may well be a highly reputable 

attorney and a skilled trial lawyer and oral advocate, but that alone does not 

convert rhetoric (in a memorandum or at a discovery hearing) into 

competent evidence upon which the Undersigned can rely. The mere 

assertion of argument --e.g., “my client anticipated litigation from the very 

day the hurricane hit” -- is inadequate to meet the burden. See, e.g.,

Bridgewater, 286 F.R.D. at 638-39 (noting that federal courts have 

consistently recognized that the party invoking the immunity has the burden 

to establish “all of its essential elements” and emphasizing that “[a] failure 

of proof as to any element causes the claim of privilege to fail”).

Empire Indem. Ins. Co., 2019 U.S. Dist. LEXIS 47919 at *20-21.

WHEREFORE, given the complete lack of justification and/or evidence proffered by 

Defendants with respect to the “attorney-client privilege” and/or “work-product privilege” 

objection Defendants maintain, this Court should grant Plaintiffs’ Motion to Compel [D.E. 67].

Case 0:20-cv-61297-RKA Document 73 Entered on FLSD Docket 03/19/2021 Page 4 of 5
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LAW OFFICES OF JIBRAEL S. HINDI, PLLC

110 SE 6th Street, 17th Floor | Ft. Lauderdale, Florida 33301 | Phone (954) 907-1136 | Fax (855) 529-9540 

www.JibraelLaw.com

Dated: March 19, 2021

Respectfully Submitted,

 /s/ Thomas J. Patti .

JIBRAEL S. HINDI, ESQ.

Florida Bar No.: 118259

E-mail: jibrael@jibraellaw.com

THOMAS J. PATTI, ESQ.

Florida Bar No.: 118377

E-mail: tom@jibraellaw.com

The Law Offices of Jibrael S. Hindi

110 SE 6th Street, Suite 1744

Fort Lauderdale, Florida 33301

Phone: 954-907-1136

Fax: 855-529-9540

COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on March 19, 2021, the foregoing was electronically 

filed with the Clerk of the Court using the CM/ECF system which will send a notice of electronic 

filing to all counsel of record.

 /s/ Thomas J. Patti .

THOMAS J. PATTI, ESQ.

Florida Bar No.: 118377

Case 0:20-cv-61297-RKA Document 73 Entered on FLSD Docket 03/19/2021 Page 5 of 5