UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:22-CV-62076-DIMITROULEAS/AUGUSTIN-BIRCH

GREGORY TONY, in his official 

capacity as Sheriff of Broward County, 

Plaintiff,

v. 

EVANSTON INSURANCE COMPANY, 

Defendant.

________________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S 

MOTION TO QUASH SUBPOENAS AND/OR ISSUE A PROTECTIVE ORDER

This cause comes before the Court on Plaintiff Sheriff Gregory Tony’s Motion to Quash 

Subpoenas and/or Issue a Protective Order and Discovery Memorandum. DE 61; DE 57. 

Defendant Evanston Insurance Company filed a Response to the Discovery Memorandum, and 

Plaintiff filed a Reply. DE 58; DE 59. The Court held a hearing on the parties’ discovery dispute 

on September 5, 2023, via video teleconference. The Court has carefully considered the parties’ 

briefing, the arguments that counsel made during the hearing, and the record and is otherwise fully 

advised in the premises. For the reasons set forth below, Plaintiff’s Motion is GRANTED IN 

PART AND DENIED IN PART. 

I. BACKGROUND

This is a declaratory judgment action in which Plaintiff seeks clarification as to insurance 

obligations for litigation arising from the February 2018 massacre at Marjory Stoneman Douglas 

High School in Parkland, Florida (the “Parkland Shooting Incident”). DE 20. The Broward 

Sheriff’s Office’s (“BSO”) insurance policy from Defendant that was in effect at the time of the 

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Parkland Shooting Incident had a per occurrence Self-Insured Retention of $500,000. At issue in 

this action is what the word “occurrence” in the insurance policy means. Plaintiff contends that 

the entire Parkland Shooting Incident is a single occurrence, such that the BSO need only satisfy 

the $500,000 Self-Insured Retention once before there is insurance coverage. Defendant contends 

that each victim of the Parkland Shooting Incident constitutes a separate occurrence, such that the 

BSO must satisfy the $500,000 Self-Insured Retention separately for each victim before there is 

insurance coverage.

In an Order ruling on Defendant’s Motion to Dismiss, the Honorable William P. 

Dimitrouleas, United States District Judge, determined that the meaning of the word “occurrence” 

in the insurance policy is ambiguous and that this ambiguity must be construed in Plaintiff’s favor 

as the insured. DE 38. Judge Dimitrouleas therefore denied Defendant’s request to dismiss this 

action for failure to state a claim. In an Order denying Defendant’s subsequent Motion for 

Reconsideration, Judge Dimitrouleas reminded the parties that his ruling was made at the 

motion-to-dismiss stage of this litigation, that the Court had not yet addressed “[a]ny factual and 

legal issues” that Defendant’s affirmative defenses might raise, and that the parties were “certainly 

entitled to develop the factual record in support of their positions.” DE 49 at 3.

Defendant filed an Answer that raised several affirmative defenses. DE 40. Among the 

affirmative defenses, Defendant pled as affirmative defense #14: “To the extent any provisions are 

ambiguous, which Evanston denies, the doctrine of contra proferentum does not apply to BSO 

and/or the policy is not interpreted against Evanston or in favor of BSO.”1

 Id. at 6.

Defendant propounded Subpoenas Duces Tecum for Deposition on the corporate 

representative of the BSO’s insurance broker, Marsh & McLennan Agency, LLC. See DE 57-1. 

1 The doctrine of contra proferentum is “a canon of construction in contract law that counsels in favor of construing 

ambiguities in contract language against the drafter.” Allen v. Thomas, 161 F.3d 667, 671 (11th Cir. 1998).

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Further, Defendant prepared a list of “Areas of Inquiry” for the deposition of the BSO’s corporate 

representative. See DE 57-2. Topics 7 through 9 on that list state:

7. Knowledge of prior litigation involving BSO and its insurance 

carriers, including the State National Litigation and/or the City of Miami Litigation. 

This request specifically seeks information related to the positions taken by BSO 

in the State National Litigation.

8. Knowledge of BSO’s insurance/program prior to the issuance of the 

Evanston Policy, including policies issued by Lexington Insurance Company to 

BSO from 2010 to 2016. This includes, but is not limited to, information regarding 

the definition of “occurrence” (and any requested modifications thereto) in the 

policies.

9. Knowledge of BSO’s application for insurance in 2016 in 

connection with the Evanston Policy, including:

a. Why BSO wanted to switch its insurance program to a new carrier;

b. Discussions with Marsh regarding the application for and 

procurement of the Evanston Policy;

c. Negotiations with Evanston;

d. Requests for specific forms and endorsements to be included in the 

Evanston Policy;

e. Requests for pricing from Evanston for self-insured retentions and 

deductibles at various levels.

Id. at 2-3.

In the discovery dispute now before the Court, Plaintiff seeks to quash the Subpoenas on 

the BSO’s insurance broker and seeks a protective order precluding Defendant from inquiring into 

topics 7 through 9 during the deposition of the BSO’s corporate representative. The parties are in 

agreement that a deposition of the insurance broker and topics 7 through 9 seek to obtain 

information concerning the BSO’s level of understanding of, negotiations of, and general 

sophistication in dealing with insurance policies. Plaintiff argues that such information is 

irrelevant because the only issue in this action is the definition of the word “occurrence” in the 

relevant insurance policy; that word, if ambiguous, must be construed in his favor under the 

doctrine of contra proferentum, without resort to consideration of extrinsic evidence; and there is 

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no exception to that doctrine under Florida law if the insured is considered sophisticated. DE 57; 

DE 59. Defendant contends that Florida courts have recognized exceptions to the doctrine of 

contra proferentum where the insured “is a large entity like BSO with purchasing and negotiating 

power, and represented by a powerful broker like Marsh” and that Defendant is entitled to conduct 

discovery to support its affirmative defenses, such as affirmative defense #14.2

 DE 58. 

II. ANALYSIS

Parties may obtain discovery regarding any nonprivileged matter that is relevant to 

any party’s claim or defense and proportional to the needs of the case, considering 

the importance of the issues at stake in the action, the amount in controversy, the 

parties’ relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the burden or 

expense of the proposed discovery outweighs its likely benefit. Information within 

this scope of discovery need not be admissible in evidence to be discoverable. 

Fed. R. Civ. P. 26(b)(1). Evidence is relevant if “it has any tendency to make a fact more or less 

probable than it would be without the evidence” and “the fact is of consequence in determining 

the action.” Fed. R. Evid. 401. 

The parties’ arguments in briefing their discovery dispute center on whether there is an 

exception to the doctrine of contra proferentum under Florida law for insureds who possess some 

level of sophistication in dealing with insurance policies. In short, the parties dispute whether 

affirmative defense #14 is a meritorious affirmative defense as a matter of law. Whether an 

affirmative defense is meritorious is not a matter to be resolved as part of a discovery dispute. 

See, e.g., Props. of the Vills., Inc. v. Kranz, No. 5:19-cv-647-Oc-30PRL, 2020 WL 6393834, at *3 

(M.D. Fla. Nov. 2, 2020) (“[D]uring discovery the court is not required to examine the likelihood 

2 Defendant also asserts that Plaintiff’s objections to the Subpoenas were untimely and therefore waived. DE 58 at 2. 

However, Plaintiff did timely object to the Subpoenas within 14 days of their service and before the date on which the 

insurance broker’s deposition was scheduled to occur. See DE 59-1; Fed. R. Civ. P. 45(d)(2)(B) (requiring an 

objection to a subpoena to “be served before the earlier of the time specified for compliance or 14 days after the 

subpoena is served”). Plaintiff’s objections were not waived.

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of success or the merits of any claims or defenses, rather, the court must consider whether the 

information is relevant to the claims and defenses in the action, and then ask whether the proposed 

discovery is proportional to the needs of the case.” (quotation marks omitted)); Wachovia Fin. 

Servs., Inc. v. Birdman, No. 09-81252-CIV, 2010 WL 11506642, at *2 (S.D. Fla. Oct. 25, 2010) 

(“Federal Rule of Civil Procedure 26(b)(1) allows discovery on any party’s claims or defenses; 

there is no requirement that a party obtain a threshold determination of the merits of those claims 

before proceeding with discovery.”). 

The parties have briefed the issue of whether affirmative defense #14 is meritorious as part 

of a Motion for Judgment on the Pleadings. See DE 52 at 1-2, 5-11 (“Judgment on the pleadings 

is also not proper in this case as Evanston has asserted viable defenses to the Amended Complaint, 

including that BSO is not entitled to the automatic benefit of ambiguous terms. This is because 

BSO is a sophisticated insured with the ability to negotiate policy provisions on equal footing with 

the insurer. And BSO conducted such policy negotiations by itself and through its agent, Marsh, 

with respect to the Evanston Policy.”); DE 53 at 2, 4-6 (“Evanston next argues that the doctrine of 

contra proferentum does not apply, notwithstanding this Court’s prior—and correct—

determination that it was required to interpret the ambiguous policy term in BSO’s favor. 

Evanston’s argument ignores well-settled Florida law holding that any ambiguity in insurance 

policy language must be liberally construed in favor of coverage and strictly against the insurer. 

Evanston’s argument that the Court must consider extrinsic evidence before interpreting the Policy 

is simply contrary to binding Florida law.” (emphasis, citation, and quotation marks omitted)). 

The Motion for Judgment on the Pleadings is currently pending before Judge Dimitrouleas. Until 

such time as Judge Dimitrouleas rules to the contrary, affirmative defense #14 remains an

affirmative defense in this action. Defendant is entitled to conduct proportional discovery of

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information relevant to that affirmative defense. See Fed. R. Civ. P. 26(b)(1) (“Parties may obtain 

discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and 

proportional to the needs of the case . . . .”). 

As for relevancy, the information sought through the Subpoenas and topics 7 through 9 is 

relevant to affirmative defense #14. Plaintiff’s argument to the contrary concerns topic 7, which 

asks about prior litigation including “the State National Litigation and/or the City of Miami 

Litigation.” DE 57-1 at 2. Plaintiff asserts that Judge Dimitrouleas “already considered the State 

National Litigation in [his] Order denying Evanston’s motion to dismiss and found it 

distinguishable.” DE 57 at 4; see also DE 59 at 3 & n.1. Judge Dimitrouleas did determine that 

one case, State National Insurance Co. v. Lamberti, was factually distinguishable. DE 38 at 12-13 

(“Lamberti, with various civil rights plaintiffs, each with their own separate interactions with 

separate law enforcement officers, is thus totally distinct on its facts from the case presented 

here.”); see State Nat’l Ins. Co. v. Lamberti, 362 F. App’x 76 (11th Cir. 2010). Judge Dimitrouleas 

also questioned a ruling in a second case, State National Insurance Co. v. City of Miami. DE 38 

at 13-14 (“However, in making this determination, the district court overlooked the Florida 

Supreme Court’s determination and application of ambiguity in its Koikos opinion, where it had 

found the term ‘occurrence’ ambiguous as applied to the multiple shooting facts of that case and 

thus construed the term in favor of the insured.”); see State Nat’l Ins. Co. v. City of Mia., 

No. 08-22861-CIV, 2010 WL 11506250 (S.D. Fla. May 11, 2010), aff’d, 403 F. App’x 478 (11th 

Cir. 2010). Judge Dimitrouleas did not rule on the relevancy of either of these cases to the BSO’s 

level of sophistication in dealing with insurance policies. Defendant had not yet pled any 

affirmative defenses at the time Judge Dimitrouleas issued his ruling on the Motion to Dismiss. 

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The information that Defendant is seeking is relevant to an affirmative defense that remains at 

issue in this case.

As for proportionality, Plaintiff’s arguments that discovery of the information Defendant 

is seeking is disproportionate relate to topics 7 through 9. First, Plaintiff asserts that preparing a 

witness to testify as to topics 7 through 9 will be costly and time consuming. DE 57 at 4. 

Considering the importance of the information sought in topics 7 through 9 to the merits of 

affirmative defense #14, the amount in controversy in this action,3 and the parties’ relative access 

to the information, discovery of the information is proportional to the needs of this case. However, 

the Court will narrow the scope of topics 7 and 8 somewhat. The Court narrows topic 7 to 

knowledge of prior litigation from calendar year 2008 forward involving the BSO and its insurance 

carriers. The Court narrows topic 8 to knowledge of the BSO’s insurance/program from calendar 

year 2008 forward. The Court concludes that inquiry into the BSO’s knowledge of events prior to 

the year 2008 is disproportionate to the needs of this case. 

Second, Plaintiff contends that the information sought through topic 7 about positions the 

BSO took in prior litigation is a matter of public record. Id. However, “the fact that the 

information sought . . . [is] obtainable from another source is not a bar to discovery of relevant 

information.” Jones v. Alta Colls., Inc., No. 1:08-CV-1027-CAM-RGV, 2009 WL 10665816, at 

*6 (N.D. Ga. Aug. 25, 2009) (quotation marks omitted). Considering the parties’ relative access 

to the information, inquiry into topic 7 during the deposition of the BSO’s corporate representative 

is proportional to the needs of this case. Having considered the factors in Rule 26(b)(1), discovery 

of the information that Defendant is seeking through the Subpoenas on the BSO’s insurance broker 

3 Judge Dimitrouleas explained that, if Defendant’s position on the meaning of the word “occurrence” were accepted, 

then the “BSO must incur tens of millions of dollars before being entitled to any coverage under the Policy.” DE 38 

at 3.

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and through topics 7 through 9, as narrowed in the prior paragraph, is proportional to the needs of 

this case.

III. CONCLUSION

For the foregoing reasons, Plaintiff Sheriff Gregory Tony’s Motion to Quash Subpoenas 

and/or Issue a Protective Order and Plaintiff’s Discovery Memorandum [DE 61] is GRANTED 

IN PART AND DENIED IN PART. The Court narrows the scope of topics 7 and 8 as explained 

in this Order but otherwise denies Plaintiff’s request to quash Subpoenas and/or issue a protective 

order.

DONE AND ORDERED in Chambers at Fort Lauderdale, Florida, this 7th day of

September, 2023. 

 ___________________________________ 

 PANAYOTTA AUGUSTIN-BIRCH

 UNITED STATES MAGISTRATE JUDGE

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