UNITED STATED DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 9:22-CV-81542-AMC/BER

JOANNE HARDIN, 

Plaintiff,

v.

WALGREEN CO., and 

WALGREEN PHARMACY SERVICES

MIDWEST, LLC,

Defendants.

_______________________________________/

JOINT DISCOVERY MEMORANDUM AND REQUEST FOR DISCOVERY HEARING

Respectfully submitted,

/s Eric Hernandez

Eric Hernandez

Fla. Bar No. 340730

Hernandez Lee Martinez, LLC

P.O. Box 531029 (mailing address only)

Miami, FL 33153

Tel: (305) 842-2100

eric@hlmlegal.com

Nnamdi S. Jackson

Fla. Bar No. 99804

The Law Office of Nnamdi S. Jackson, P.A.

2645 Executive Park Drive, Suite 340

Weston, FL 33331

Tel: (954) 670-1267

Primary: njackson@nsjlawoffice.com

Secondary: nnamdi@hlmlegal.com

Attorneys for Plaintiff

/s Benjamin Bard

GREGORY A. HEARING

Florida Bar No.: 817790

Gregory.hearing@gray-robinson.com

BENJAMIN W. BARD

Florida Bar No.: 95514

Benjamin.bard@gray-robinson.com

GRAYROBINSON, P.A.

401 East Jackson Street, Suite 2700

Post Office Box 3324 (33601-3324)

Tampa, Florida, 33602

Tel: (813) 273-5000

Fax: (813) 273-5145

Attorneys for Defendants

Case 9:22-cv-81542-AMC Document 24 Entered on FLSD Docket 03/13/2023 Page 1 of 7
Defendants’ Position: 1. Defendants dispute Plaintiff’s objections to Defendant Walgreen 

Co.’s Interrogatories No. 5-16 based on Federal Rule of Civil Procedure 33(a)(1). Plaintiff 

objected to and, for some interrogatories, declined to provide an answer entirely on the basis that 

Defendant exceeded the twenty-five interrogatory limit. Rule 33(a)(1) states that ―a party may 

serve on any other party no more than 25 written interrogatories, including all discrete subparts.‖ 

Fed. R. Civ. P. 33(a)(1) (emphasis added). The instructions or subparts to Defendant’s

interrogatories are not discrete. They are ―logically and factually subsumed within and 

necessarily related to the primary question,‖ which satisfies the ―related question‖ test applied by 

courts within the Eleventh Circuit. See Powell v. The Home Depot USA, Inc., No. 07–80435–

Civ., 2008 WL 2473748, at *2 (S.D. Fla. June 16, 2008); Diehl v. Bank of America Corp., No. 

3:09–cv–1220–J–25MCR, 2010 WL 3340565, at * (M.D. Fla. Aug. 23, 2010) )―What matters . . 

. is that the subparts of a particular interrogatory are related to the primary question.‖).

2. Defendants contend that Plaintiff’s discovery responses violate the Court’s

Standing Discovery Order (Dkt. No. 16; ―SDO‖). In particular, Defendants believe that 

Plaintiff’s responses to Interrogatories No. 10, 12, 13, 14, and 16, as well as responses to 

Requests No. 31, 35, 36, 38, and 46. Defendants contend that, where Plaintiff has objected based 

on relevance, proportionality, or undue burden, Plaintiff has failed to limit the scope and provide 

any information, even where the discovery request encompasses information which is 

undisputedly relevant to this case, in compliance with Section C of the SDO. (See Dkt. No. 16 at 

5-6). Additionally, Defendants contend that where Plaintiff has provided information or agreed 

to produce documents, Plaintiff has waived her formulaic objections followed by such an 

answer. (See Dkt. No. 16 at 6-8). 

3. Defendants dispute Plaintiff’s objections and failure to provide documents 

responsive to Requests No. 31, 35, 36, 38, and 46. Defendants contend that Plaintiff’s objections 

are improper and the documents sought are well within the scope of discovery. In particular, 

Requests No. 31, 35, 36, and 38 seek communications with Defendants’ employees, agents, and 

representatives, Plaintiff’s social media postings, and telephone records for a limited period of 

time, i.e., from September 1, 2020, to the present. Defendants contend that they are entitled to 

review Plaintiff’s communications with its employees and/or representatives, as well as 

Plaintiff’s social media, during this time period, as both may reveal information about whether 

Plaintiff had an intention of retiring from employment with Defendants, as well as whether she 

Case 9:22-cv-81542-AMC Document 24 Entered on FLSD Docket 03/13/2023 Page 2 of 7
actually did so. The communications with Defendants’ employees and/or representatives would 

further reveal information regarding Plaintiff’s requests for leave. Indeed, Defendants have been 

able to obtain such communications with current employee Karen Pase, as well as former 

employee Janet Kulesa, which Plaintiff has not produced. Defendants also contend that they are 

entitled to Plaintiff’s telephone records for this time period to determine when, and with what 

frequency, Plaintiff may have communicated with Defendants’ employees, Defendants’ thirdparty administrator for leave determinations, as well as Defendants’ hotlines or contact points for 

employee relations complaints. Defendants further contend that they are entitled to documents 

being withheld in response to Request No. 46, which seeks documents reflecting Plaintiff’s 

impressions of her employment with Defendants or her conversations with current or former 

employees of Defendants regarding her allegations that Defendants violated the FMLA.

4. With regard to Plaintiff’s contentions regarding the deposition of Defendants’ 

corporate representative, Defendants state that Plaintiff has declined to identify any particular 

topic areas or categories of documents regarding which she seeks additional testimony, despite 

the fact that Defendants’ corporate representative identified responsive documents by bates 

number, testified regarding the location of those documents, as well as the systems/means by 

which those documents may be found. Defendants contend that they followed the procedure for 

objecting to topic areas in corporate representative depositions laid out in the SDO. (See Dkt. 

No. 16 at 10-11); see also SEC v. Complete Business Solutions Group, Inc., Case No. 20-cv81205-RUIZ/REINHART, 2021 WL 4991303, at *4 (S.D. Fla. Oct. 20, 2021). Defendants 

contend that their objections were proper based on the scope of the seven topic areas, when 

combined with forty categories of documents each topic incorporates by reference, as well as the 

specific grounds for those objections asserted in writing and during the course of the deposition.

Plaintiff also mischaracterizes testimony, as well as the nature of the deposition questions asked. 

Plaintiff did not seek information regarding the method in which documents were gathered or 

produced in discovery. Indeed, Plaintiff did not request the production of documents prior to the 

deposition, but rather served a notice asking that a corporate representative identify a broad 

swath of documents without producing them or testifying about their contents. Plaintiff’s 

questions, which did not relate to any topic properly noticed for the deposition, pertained to the 

reasons for the corporate representative’s designation, as well as how Defendants prepared her, 

outside of non-privileged documents she reviewed. Plaintiff’s cited authority does not support 

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the propriety of such questions and ignores relevant case law in this District discussing corporate 

representative depositions. See QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 688-

91 (S.D. Fla. 2012) (noting that a corporate representative need not have personal knowledge or 

personally review documents); Al Ghena v. Int’l Corp. v. Radwan, CASE NO. 13-61557-CIV, 

2016 WL 9526420, at *5 (S.D. Fla. Dec. 13, 2022); ); Chick-Fil-A v. Exxon Mobile Corp., No. 

08-61422-CIV, 2009 WL 3763032, at *13 (S.D. Fla. Nov. 10, 2009). Plaintiff further cites to 

inapposite case law discussing individual depositions, or parties claiming that they need not 

testify as to underlying facts because they were communicated through an attorney, which is not 

the case here. Despite the stated purpose of Plaintiff’s deposition, Plaintiff has since served 105 

duplicative requests for production, rather than ―streamline‖ discovery. Defendants object to 

Plaintiff’s attachment of tables to this memorandum, which exceed the allowed page limit and 

present deposition testimony out of context. Defendants also dispute that Plaintiff is entitled to 

take preliminary and substantive corporate representative depositions without leave of court.

Plaintiff’s Position: ¶-1: Plaintiff objected to answering Defendants’ interrogatories 5-16 

because they exceeded the limit in Rule 33(a)(1). The subparts are distinct and not subsumed by 

the initial questions. Rather, the initial questions can be answered independently from the 

subsequent subparts. The questions also cover several separate allegations/topics in the 

numbered pleadings. Thus, each question is distinct/independent and counted separately. Sprint 

v. Calabrese, 2019 WL 9598506, *2-3 (S.D. Fla. 2019)(counting subparts); Trebor v. JL Gory, 

2010 WL 11549691, *1-2 (S.D. Fla. 2010). For example, interrogatory 5 asks the (a) identity of

9 different professions/business entities she has consulted or sought treatment from, (b) identity 

of 9 different professions/business entities she contacted because of physical/mental malady, 

infirmity, condition, or harm, (c) identity of 9 different professions/business entities she

discussed her physical, emotional, or mental condition with, and (d) identity of each 

individual/entity, the name/business address, the date of each contact, and the reason for contact.

¶¶-2-3: The interrogatory objections were not waived, as they were not answered. Plaintiff 

stands on her objections to the requests. And, in accordance with her objections and the SDO at 2 

and 7, Plaintiff produced the limited relevant/proportional material and identified withheld 

material. For instance, on requests 31, 38, and 46, Plaintiff objected, produced limited responsive 

materials in accordance with such objections, and accordingly stated she withheld material. On 

requests 35 and 36, there are no responsive relevant documents proportional to the case.

Case 9:22-cv-81542-AMC Document 24 Entered on FLSD Docket 03/13/2023 Page 4 of 7
¶-4: Plaintiff disputes Defendants’ (a) responses/objections to her 4th amended corporate 

deposition notice and (b) responses/objections at the deposition. Despite multiple warnings as to 

its impropriety, Defendants objected and responded that their Rule 30(b)(6) witness would only 

respond to their unilaterally redefined/limited topics. Such improper objections include: 

―overbroad, vaguely-defined categories of documents,‖ ―fails to provide notice to Defendants,‖ 

―unduly burdensome,‖ ―irrelevant,‖ ―fails to impose any reasonable temporal, geographic, or 

subject matter limitation,‖ ―discovery to discovery,‖ and ―privilege.‖ At the deposition 

Defendants repeatedly instructed the Rule 30(b)(6) witness to not answer questions, made 

suggestive objections/comments, and improperly conferred with the witness during breaks (i.e., 

Dep. Tr. 20:15-23, 31:2-11, 32:13-33:16, 48:13-21, 71:5-72:8, 71:21-22, 72:10-13, 73:3, 73:11-

22, 139:13-25, 166:8-20, 185:19-186:4, 190:20-191:4, 206:18-207:4, 218:6-14, 264:2-10, 315:9-

17, 316:20-317:3; Tables C-D). Defendants read their entire written responses/objections—

including paragraphs-long instructions to not answer (id.). When allowed to respond, the witness 

did not know, or only could respond in her personal capacity, to which counsel also objected 

(i.e., id. 34:10-13, 35:13-21, 57:12-20, 59:11-14, 59:16-19, 67:9-18, 67:20-68:8, 101:13-21, 

101:23-102:6, 105:14-24, 180:18-181:16, 181:17-25, 251:2-16, 253:10-254:1, 254:2-25, 255:1-

13, 288:22-289:9, 293:4-13, 297:19-298:3). Rule 30(b)(6) explicitly requires a corporation to 

―review all matters known or reasonably available to it‖ to testify on listed matters. Spicer v. 

Universal Forest, 2008 WL 4455854, *2 (W.D. Va. 2008). The broad discovery rules expressly 

permit discovery about the existence, description, nature, custody, condition, location, retention, 

availability/dissemination, filing system, and search methods of documents. Rule 26 2015 

Comm. Notes (―Discovery of such matters is . . . deeply entrenched in practice‖; ―[f]raming 

intelligent requests ... may require detailed information about another party’s information 

systems[/resources]‖, and examples include ―other incidents of the same type‖, ―information 

about organizational arrangements or filing systems[,] and information that could be used to 

impeach a likely witness.‖); In re Takata Airbag, 2017 WL 8812734, *5 (S.D. Fla. 2017), 

adopted 2018 WL 1859338 (S.D. Fla. 2018)(such discovery is permitted to evaluate universe of 

documents, document production, identify missing documents, and craft future requests); Danco

v. Lavelle, 2017 WL 10154231, *3 (E.D. Tex. 2017)(privilege is not applicable to facts, ―counsel 

can prepare a fact witness designee to testify ... as to the facts of the existence, location, 

retention, organization, searching, and production of such documents that pertain to those claims 

Case 9:22-cv-81542-AMC Document 24 Entered on FLSD Docket 03/13/2023 Page 5 of 7
and defenses‖, and a party ―should not have to take‖ another party ―at its word‖). Such discovery 

is especially appropriate here, where deponent testified that Defendants provided all records 

referenced in their initial disclosures, but also admitted that she only reviewed a retirement 

policy in preparation and was repeatedly instructed to not answer questions testing how she 

knows all responsive documents have been produced. Dep. Tr. 72:10-13, 73:3, 74:18-75:10, 

237:20-238:3, 339:7-17; Spicer, 2008 WL 4455854, *2; Sprint v. Theglobe.com, Inc., 236 F.R.D. 

524, 529 (D. Kan. 2006)(review of privileged documents waives privilege); Wilson v. Lakner, 

228 F.R.D. 524, 529 (D. Md. 2005)(counsel’s preparation of Rule 30(b)(6) deponent does not 

create privilege regarding the facts); Upjohn Co. v. U.S., 449 U.S. 383, 395-96 (1981) (attorneyclient privilege does not protect facts communicated by the corporation). And once a deposition 

begins, the preparation period is over, and the witness is on her own. In re Alexander Grant, 110 

F.R.D. 545, 547 (S.D. Fla. 1986); Medline Ind. v. Wypetech, 2020 WL 6343089, *3-4 (N.D. Ill. 

2020). Additionally, the deposition was never intended to seek ―discovery on discovery‖, but 

rather sought information expressly permitted by the rules and germane to the investigation of 

the materials relevant to the case. Defendants’ conduct was so egregious/prejudicial that it 

prevented the (a) discovery of facts for the purposes of trial or settlement, (b) deponent 

(Defendants) from answering questions an in lieu provided counsel’s views, and (c) gathering of 

information to execute/streamline the discovery plan/requests, avoid Defendants’ future 

objections, and streamline/resolve disputed issues of fact/law. Mitnor Corp. v. The Club Condos., 

339 F.R.D. 312, 315-16 (N.D. Fla. 2021)(setting out importance and many purposes of 

depositions); Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993)(lawyer cannot be 

―intermediary, interpreting questions, deciding which questions the witness should answer, and 

helping the witness to formulate answers‖). The conduct was especially prejudicial given 

Plaintiff’s intent to proceed with subsequent substantive Rule 30(b)(6) depositions, which are 

now on hold pending this dispute. Plaintiff requests that she be allowed to conduct the 

initial/preliminary deposition again, Defendants be required to pay for these depositions, and 

counsel be forbidden from obstructing subsequent depositions.

Defendants’ cited cases are distinguishable on multiple grounds. For instance, in SEC, the 

movant did not request a ruling on the scope of the topics/questions or that the entity be redeposed. Also, the respondent produced prepared substitute witnesses and paid for the initial and 

subsequent depositions. QBE Ins. Corp. v. Jorda Enters., Inc., 277 F.R.D. 676 (S.D. Fla. 2012).

Case 9:22-cv-81542-AMC Document 24 Entered on FLSD Docket 03/13/2023 Page 6 of 7
Copies of the relevant discovery requests and related pleadings are attached, as follows:

1. Defendant Walgreen Co.’s First Set of Interrogatories

2. Defendants’ First Request for Production

3. Plaintiff’s Answers and Objections to Defendant Walgreen Co.’s First Set of Interrogatories

4. Plaintiff’s Second Amended Responses and Objections to Defendants’ First Request for 

Production

5. Plaintiff’s Fourth Amended Notice of Taking Video-Taped Deposition 

6. Defendants’ Responses and Objections to Plaintiff’s Fourth Amended Notice of Taking 

Video-Taped Deposition

7. Tables of Defendants’ objections during deposition.

8. Transcript of Deposition of Defendants’ Corporate Representative

MEET AND CONFER CERTIFICATION

The parties certify that they have complied with the requirements for pre-hearing 

consultation and despite good faith efforts to resolve their differences, the foregoing issues 

require resolution by the Court.

DATED: March 13, 2023. 

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