1993-07-26 City's Mot/Compel Disc. STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF OKEECHOBEE, )
)
Petitioner, )
)
vs . ) DOAH Case No. 92-4909GM
) DCA Docket No. 92-4701-1
DEPARTMENT OF COMMUNITY AFFAIRS, )
)
Respondent. )
)
and )
)
OKEECHOBEE COUNTY, )
)
Intervenor. )
PETITIONER CITY OF OKEECHOBEE 'S EXPEDITED MOTION TO COMPEL
AND FOR SANCTIONS FOR FAILURE TO MAKE DISCOVERY
Petitioner City of Okeechobee, by and through its undersigned
counsel , and pursuant to Rules 60Q-2 . 018 and 60Q-2 . 019, Florida
Administrative Code ( "F.A.C. " ) , and Rule 1 . 380, Florida Rules of
Civil Procedure, moves for the entry of an order compelling
intervenor Okeechobee County, to immediately give complete,
sufficient and non-evasive answers, responsive to the date on which
the answers are served and accompanied by copies of any documents
referred to in said answers , to the City of Okeechobee ' s First and
Second Sets of Interrogatories, served on Okeechobee County on
November 30, 1992 and January 8, 1993, respectively'. The City
further moves for entry of an order sanctioning Okeechobee County
for its disobedience of the discovery rules and awarding the City
of Okeechobee the reasonable expenses, including attorneys ' fees ,
it has incurred in the preparation and prosecution of this motion.
In support of this expedited motion, the City of Okeechobee states :
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1 . On November 30, 1992 , the City of Okeechobee ( "City" )
hand delivered the following discovery requests to Intervenor
Okeechobee County ( "County" ) in the above-referenced case : The City
of Okeechobee ' s First Set of Interrogatories to Okeechobee County,
numbered 1 through 14 ; The City of Okeechobee ' s Request for
Production of Documents from Okeechobee County, and; Notice of
Taking Deposition Duces Pecum of Okeechobee County' s
representative. Included in the City' s request for production of
documents was a request for all documents referred to in Okeechobee
County's answers to the City' s First Set of Interrogatories to the
County. Under Rule 1 . 340 (a) , Florida Rules of Civil Procedure, the
County's answers and objections to the City' s interrogatories and
the County' s response to the request to produce were due on or
before December 30, 1992 .
2 . The County failed to serve either its answers and
objections to the City's First Set of Interrogatories or its
response to the request for production on or before the December
30, 1992 deadline .
3 . On the evening of January 4, 1993, while counsel for the
City was in transit from Tallahassee to Okeechobee County to
conduct the deposition of the County' s representative on subject
matter which included the County's response to the request for
production and the County' s answers to interrogatories , counsel for
the County informed counsel for the City by telephone that the
County would not serve its answers to interrogatories and would not
produce the requested documents until January 4 , 1993 . After
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learning of the County's continuing failure to answer the
interrogatories and respond to the request to produce, counsel for
the City cancelled his planned discovery trip to Okeechobee County
and returned to Tallahassee. (A copy of counsel for the City' s
January 4 , 1993 letter to counsel for the County confirming the
County's failure to answer and respond is attached to this motion
as Exhibit "A" and is incorporated by reference herein . )
4 . On January 5, 1993, 5 days after the County' s answers and
objections to interrogatories and response to the request for
production were due, the County delivered to the City incomplete,
insufficient and evasive answers and objections to the City' s First
Set of Interrogatories . On the same day the County also delivered
documents which have been purported by the County to be in response
to the request for production.
5 . In response to the City' s First Set of Interrogatories,
the County answered the following interrogatories with incomplete,
insufficient and evasive statements ; Interrogatories 1 . , 1 . (b) ,
1 . (c) , 1 . (d) , 1 . (e) , 1 . ( f) , 1 . (g) , 4 (c) , 4 (d) , 7 , 8, 9 and 13 . The
County also objected to Interrogatory 13 . The interrogatories ,
including the County' s responses, are set forth in paragraph 15
below in accordance with Rule 60Q-2 . 019 ( 3) , F.A.C. The County' s
objection to Interrogatory 13 , however, must be overruled because
the County waived it by failing to timely serve their objection in
accordance with Rule 1 . 340 (a) , Florida Rules of Civil Procedure.
Davis v. Romney, 53 F.R.D. 247 , 248 (E . D. Fa . 1971) ; Turick v.
Yamaha Motor Corp. , USA, 121 F. R.D. 32, 36 ( S .D.N. Y. 1988) .
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Counsel for the City did not give the County an extension of time
to object to the interrogatories , and in any event the County did
not answer within the period as required under the rules.
6 . On January 8 , 1993 , the City hand delivered its Second
Set of Interrogatories to the County, numbered 15 & 16 .
Interrogatory 15 requested that. the County state any change,
addition or deletion to the statements contained in the Answers by
the County to the City' s First Set of Interrogatories since service
of the County' s answers on January 5, 1993 . Interrogatory 16
requested that the County identify each and every person who
prepared, or assisted in the preparation of the County' s answers to
the City' s Second Set of Interrogatories, and state the answers
which each person prepared or assisted in preparing. Under Rule
1 . 340(a) , Florida Rules of Civil Procedure, the County' s answers
and objections to the City's Second Set of Interrogatories were due
on or before February 8, 1993 .
7 . On February 2, 1993, the City and County filed a Joint
Motion for Continuance in which they requested that the final
hearing scheduled to begin on February 15, 1993 be cancelled and
rescheduled. The Joint Motion for Continuance did not request that
the hearing officer suspend formal discovery during the period of
the continuance. On February 3, 1993, the hearing officer entered
an order granting in part the Joint Motion for Continuance and
cancelling the final hearing. The order did not suspend formal
discovery during the period of cancellation of the final hearing.
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8 . The February 8, 1993 deadline passed and the County did
not serve any answers or objections to the City' s Second Set of
Interrogatories .
9 . On April 19, 1993, the City filed a Motion for Entry of
An Order Rescheduling Final Hearing and Directing Parties to
Conduct a Prehearing Conference and Enter Into A Prehearing
Stipulation. Paragraph 3 of the City' s motion included a request
that discovery be completed 20 days prior to the date for final
hearing.
10 . On May 6, 1993, the hearing officer entered an order
which granted the City' s Motion for Entry of an Order Rescheduling
Final Hearing and Directing Parties to Conduct a Prehearing
Conference and Enter into a Prehearing Stipulation. The order
directed that the parties participate in a pre-hearing conference
and enter into a pre-hearing stipulation as specified in paragraph
3 of the City' s motion, which provided for the discovery completion
deadline. On May 14 , 1993 , the hearing officer entered an order
which scheduled the final hearing to begin in this case on October
4 , 1993 . Therefore, according to the terms of the hearing
officer' s orders of May 6th and May 14th, the deadline for the
completion of discovery in this case is September 14, . 1993 .
11 . On May 10, 1993, counsel for the City corresponded with
counsel for the County in a good faith effort to resolve ny
agreement the City' s concern about the County' s continuing failure
to respond to the City' s Second Set of Interrogatories , which were
then 91 days overdue. (A copy of counsel for the City' s May 10 ,
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1993 letter to counsel for the County is attached as Exhibit "s"
and incorporated by reference herein. ) In addition to requesting
that the County answer the City' s Second Set of Interrogatories ,
the letter of May 10th also requested the County to give better and
more complete answers to certain specific interrogatories included
in the City' s First Set of Interrogatories . These specific
interrogatories have been identified in Paragraph 5, above, and are
quoted verbatim in Paragraph 15 , below, of this motion. The City' s
letter also stated that the specified interrogatories appeared to
have been answered by the County without regard to the definitions
and instructions which prefaced those interrogatories . (Copies of
pages from the City' s interrogatories containing the definitions
and instructions from the City' s First and Second Sets of
Interrogatories , are attached as Exhibit "C" and Exhibit "D" ,
respectively, and are incorporated by reference herein. )
12 . Counsel for the County has not responded to the City' s
letter of May 10 , 1993 in which the City sought, in good faith, to
resolve by agreement obtaining complete and sufficient answers
which it is entitled to under the Florida Rules of Civil Procedure
and the Rules of the Division of Administrative Hearings .
13 . As of the date of the filing of this motion, the County
has failed to provide the City with better and more complete,
answers to those certain specific interrogatories included in the
City' s First Set of Interrogatories First which were due on
December 30, 1992 . The County has further failed to provide the
City with any answers or objections to the City' s Second Set of
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l o.errogatories which were served on the County on January 8, 1993
4' 0' were due no later than February 8, 1993 .
`..x 14 . The County' s complete and sufficient answers to the
First Sets of Interrogatories are now 208 days overdue . The
' 3 answers to the City' s Second Set of Interrogatories are
si,ii►C.y Y g
168 days overdue . Furthermore, the September 14 , 1993 deadline
t} the completion of discovery established by the hearing officer
his orders of May 6th and May 14th is now only 50 days away.
! before, any further delay in the County' s failure to completely
,}4 ;sufficiently answer the City' s First and Second Set of
torrogatories may prejudice the City' s right to conduct discovery
as to be properly and sufficiently prepared for the final
r`° Xing in this case.
15 • The following are the specific interrogatories, the
nty's answers, objections or non-responses to those
errogatories and the grounds for which an order to compel is
jht :
`errogatories 1, 1(b) , 1 (c) , 1 (d) , 1 (e) , 1 (f) and 1(g)
If you intend to call or will call as a witness at hearing in
case any experts regarding the subject of these proceedings ,
. se identify such experts and provide the following information
. each such expert:
(b) the field or fields in which the person is considered an
expert;
(c) the subject matter upon which the expert is expected to
testify;
(d) the substance of the facts and opinions to which the
expert is expect to testify;
(e) a list of published materials by the expert, including
books , pamphlets, articles and collections;
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( f) a resume or curriculum vitae which sets forth the
expert' s qualifications ;
(g) any professional treatises or publications on which the
expert intends to rely upon in this case. For each such
professional treatise or publication, please identify the page
number and specific sections or subsections the expert will be
relying upon. For each section or subsection, please state
why the section or subsection is relevant to the facts or law
in this case.
County's Answer to Interrogatories 1, 1Ib_) , 1 (c) , 1 (d) , 1 (e) , 1 ( f)
and 1(g)
Witnesses :
Bill Royce: Okeechobee County Planning and Development
Director . (See attached for items b thru g. )
Bill Miller: St. Lucie County Planning Director. (See
attached for items b thru g. )
Gene Schriner: Engineer with Craig A. Smith and Associates .
Consulting Engineer to Okeechobee County. (See
attached for items b thru g) .
Attorney with Nabors, Giblin and Nickerson.
(See attached for items b thru g) .
L.C . Fortner: Okeechobee Beach Water Association. (See
attached for items b thru g) .
(b) Bill Royce : Land Use Planning and Okeechobee County
Comprehensive Plan.
Bill Miller: Land Use Planning and Okeechobee County
Comprehensive Plan.
Gene Schriner: Engineering and Utilities .
L.C. Fortner: Utilities .
(c) Not determined at this time .
(d) Bill Royce : Okeechobee County Comprehensive Plan.
Bill Miller: Okeechobee County Comprehensive Plan.
Gene Schriner: Utilities and Engineering aspects of the
Okeechobee County Comprehensive Plan.
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L.C. Fortner: Utilities and City of Okeechobee ' s Water and
Sewer System .
(e) Not determined at this time.
( f) L.C. Fortner ' s is unavailable at this time.
(g) All documents produced in response to the City' s Request to
Produce. Not determined at this time.
Grounds for Order to Com2
This answer is evasive and incomplete within the meaning of Rule
l . 380(a) ( 3) . This question, of course, is taken almost verbatim
from Rule 1 . 280 (b) (4 ) (A) , and seeks basic information about the
County's expert witnesses . Although the County identified some of
its expert witnesses by name, it failed to identify any of its
expert witnesses by present or last known home and business
addresses, the position(s ) of employment and job title held by the
witness at the time to which the interrogatory relates and at the
present time, the names and addresses of his present or last known
employers, and the present or last known home and business
telephone numbers at which the person may be reached. The County
also failed to identify the name of its expert witness which is
referred to only as an attorney with the law firm of Nabors , Giblin
and Nickerson. The County also failed to respond to other portions
of the question. At a minimum, the County ought to . be able to
identify the subject matters about which its experts are expected
to testify, the substance of the facts and opinions to which the
expert is expected to testify, a list of published materials by the
expert, a copy of the expert' s resume and the identification of any
professional treatises or publications on which the expert intends
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to rely in this case.
Interrogatories 4 (c) and 4 (d)
Identify each person the County expects to call as a fact witness
at the hearing in this case, and provide the following information
for each fact witness :
(c) why such testimony is relevant to the case
(d) the substance of the facts to which the witness is
expected to testify.
County'_s Answer to Interrogatories 4 (c) and 4 (d)
See interrogatory #1, together with such rebuttal witnesses as are
necessary.
Grounds for Order to Compel
This answer is evasive and incomplete within the meaning of Rule
1 . 384 (a) ( 3) . This question seeks basic information about the
County's fact witnesses. Although the County identified some of
its fact witnesses by name, it failed to identify, as defined and
required in the instructions accompanying the interrogatories, any
person named by present or last known home and business addresses ,
the position(s) of employment and job title held by the person at
the time to which the interrogatory relates and at the present
time, the names and addresses of the persons present or last known
employer(s ) , and the present or last known home and business
telephone numbers at which the person may be reached. The County
also failed to identify the name of its fact witness which is
referred to only as an attorney with the law firm of Nabors, Giblin
and Nickerson. The County also failed to respond to other portions
of the question and should be compelled to answer each and every
part of the question. The County should also be compelled to
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identify the subject matter of the testimony that its fact
witnesses will provide, the substance of the facts and opinions to
which the witness is expected to testify, and why such testimony is
relevant to the case.
Interrogatory 7
Please identify each person who was involved in the collection of
data, analysis, preparation, drafting, and revising of each version
of the plan.
County' s Answer to Interrogatory 7
September 1990 version:
Donna Kennon, formerly of the CFRPC
Mark Personius, formerly of the CFRPC
Jeff , formerly of the CFRPC
Bill Royce, formerly of the CFRPC
Bill Miller, formerly of the CFRPC
April 1992 Version
Bill Miller
Bill Royce
Frank Marsocci
Dale Malita
Tony Arrant
Board of County Commissioners
April 1992 version - Data and analysis
Bill Miller
Bill Royce
Frank Marsocci
Tom Kelsy
Gene Schriner
May 1992 version - Data and Analysis
Bill Royce
Bill Miller
Frank Marsocci
Grounds for Order to Compel
Although the County identified the full names of some of the
persons who were involved in the collection of data, analysis ,
preparation, drafting, and revising of each version of the plan,
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it failed to identify the last name of a person named only as
"Jeff" who was involved with the September 1990 version of the
plan. The County also failed to identify any person named in this
interrogatory by present or last known home and business addresses,
the position(s) of employment and job title held by the person at
the time to which the interrogatory relates and at the present
time, the names and addresses of the persons present or last known
employer(s) , and the present or last known home and business
telephone numbers at which the person may be reached. The County
should be compelled to provide this information.
Interrogatory 8
Please identify the portions ( i .e. , elements ) of each version of
the plan's Data and Analysis and Goals, Objectives and Policies
documents those persons identified in your response to
interrogatory 7 collected, analyzed, prepared, drafted and revised.
County's Answer to Interrogatory 8
Unknown
Grounds for Order to Compel
This answer is evasive and incomplete within the meaning of Rule
1 . 380 (a) ( 3) . Interrogatories are available to obtain information
within the boundaries of permissible discovery under Rule 1 . 2 . 80(b)
that is "available" to the responding party. Rule 1. 340(a) ,
Florida Rules of Civil Procedure. Information "available" to the
responding party means not only information known to the party but
also information known to the party' s agents and employees . Surf
Drugs, Inc . v. Vermette, 236 So. 2d 108 (Fla. 1970) . The fact that
the information sought is not within the party' s immediate
knowledge is not a basis for failing to provide whatever
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information may be "available" through others under the party' s
control or representing the party' s interests . Trawick, Florida
Practice and Procedure, §16-9 (Harrison Co. 1991) . The City notes
that the County' s representative who answered and signed these
interrogatories , Bill Royce, was disclosed by the County in its
answer to Interrogatory 7 as having been "formerly of the CFRPC" .
Donna Kennon, Mark Personius, "Jeff" and Bill Miller were also
disclosed in Interrogatory 7 as having been "formerly of the
CFRPC" . Therefore, having evasively and incompletely answered this
interrogatory "unknown" , the County would have the City believe
that its authorized representative who swore to the answers does
not even know which elements of the 4 versions of the County' s plan
he himself, or his fellow employees at the CFRPC, were involved in
collecting, analyzing, preparing, drafting and revising. The
County should be compelled to fully and completely respond to this
interrogatory and should further be compelled to seek out, obtain
and disclose the knowledge of its agents, including but not limited
to the employees and former employees of the CFRPC mentioned in the
County's answers elsewhere.
Interrogatory 9
9 . Please identify each report or recommendation, prepared by
any employee or agent of the County on the plan, and identify
the agent of employee who prepared the report or
recommendation.
County's Answer to Interrogatory 9
Tom Kelsey of Craig A. Smith and Associates conducted
preliminary review of the Comprehensive Plan.
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s ,
Grounds for Order to Compel
This answer is evasive and incomplete within the meaning of Rule
1 . 380(a) ( 3) . Although the County identified the name Tom Kelsey,
it failed to identify his present or last known home and business
addresses , the position of employment and job title held by Kelsey
at the time to which the interrogatory relates and at the present
time, and the present or last known home and business telephone
numbers at which the person may be reached. The County also failed
to identify, or produce, any correspondence, documents, reports or
recommendations prepared by Mr. Kelsey' s in conducting his
preliminary review of the plan. The County should be compelled to
provide this information.
Interrogatory 13
13 . Please describe in detail, with supporting relevant data
and analysis, the current status of Okeechobee County' s
attempt(s) to coordinate and cooperate with the City of
Okeechobee regarding the extension and expansion of the City' s
existing sanitary sewer and potable water system to serve
residents in the unincorporated areas of Okeechobee County.
County' s Answer to Interrogatory 13
Objection to the question. Answer would by necessity post
date the adoption of the Comprehensive Plan .
Grounds for Order to Compel
The County' s imprecisely worded objection to this interrogatory
fails to recognize that by necessity all answers to the City' s
First and Second Sets of Interrogatories must post-date the
adoption of the County's plan as it was the adoption of that plan
which gave rise to this litigation. The City is at a loss to
understand what is the County' s "true" objection to answering this
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straightforward question. The City notes that counsel for the
County has failed to sign the County' s objection to Interrogatory
13 although Rule 1 . 340 (a) requires that each interrogatory objected
to be signed by the attorney making it. The absence of counsel for
the County' s signature on the objection is even more curious when
coupled with the simplicity of the question which merely asks
Okeechobee County to describe what it has done to implement those
policies contained in its plan by which the County has stated that
it will coordinate and cooperation with the City of Okeechobee
regarding the extension and expansion of the City' s existing
sanitary sewer and potable water system. To the extent that
Okeechobee County' s unsigned-by-counsel objection to answering
Interrogatory 13 could be interpreted to reflect a negative view on
behalf of the County towards intergovernmental coordination and
cooperation with the City as opposed to the view expressed in the
County' s plan, the City will refrain from so interpreting the
objection at least until counsel for the County is given the
opportunity to properly sign the objection thereby attesting that
he has made it on behalf of his client. Assuming, although not
concluding, that counsel for the County does sign the objection and
that the objection may truly reflect a negative view on behalf of
Okeechobee County towards intergovernmental coordination and
cooperation with the City, the City strenuously disagrees with such
a view and reasserts its right made in its petition to challenge
the County' s plan on grounds which include its failure to satisfy
the intergovernmental coordination and cooperation provisions
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required by the Growth Management Act and DCA' s Minimum Criteria
Rule 9J-5, F.A.C . Interrogatory 13 is highly relevant to the issue
in this proceeding as to whether the County's plan is in compliance
with basic tenets of intergovernmental coordination and water and
sewer infrastructure planning under Florida' s Growth Management Act
and DCA's rules . In paragraph 29 of its petition, the City has
challenged provisions of the Intergovernmental Coordination Element
of the County' s Comprehensive Plan which purport to coordinate the
extension and expansion of capacity of sewer and potable water
facilities with the City. The City has also challenged the
Infrastructure Element of the County' s plan which is required to
identify the wastewater and potable water geographic service areas
served by the City of Okeechobee . The City also contends that
because the Infrastructure Element of the County' s plan fails to
accurately identify the City' s wastewater and potable water
geographic service area, the plan is not in compliance on grounds
which include, but are not limited to, internal inconsistency
between with the goals, objectives and policies of the
Intergovernmental Coordination and Infrastructure Elements .
Interrogatory 13 goes directly to the heart of this issue and
therefore is clearly relevant and within the permissible scope of
discovery in these proceedings . The County should be compelled to
answer.
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Interrogatory 15
15 . State any change, addition or deletion to the statements
contained in the Answers by the County to Interrogatories, 1-
14, inclusive, to the City' s First Set of Interrogatories to
the County since service of the County' s answers on January 5,
1993 . (For each change, addition or deletion stated in the
Answer, please specify the number of the interrogatory in the
City' s First Set of Interrogatories to Okeechobee County.
County's Failure to Respond to Interrogatory 15
The County has failed to respond, answer or object to
Interrogatory 15 . The County' s answer to Interrogatory 15 is now
168 days overdue.
Grounds for Order to Compel
The County should be compelled to immediately answer Interrogatory
15 completely and sufficiently because the City is entitled to said
answer under the Rules of Florida Civil Procedure and the Rules of
the Division of Administrative Hearings .
Interrogatory 16
16 . Identify each and every person who prepared, or assisted
in the preparation of the Answers to these interrogatories ,
and state the answers which each person prepared or assisted
in preparing.
County's Failure to Respond to Interrogatory 16
The County has failed to respond, answer or object to Interrogatory
16 . The County' s answer to Interrogatory 16 is now 168 days
overdue.
Grounds for Order to Compel
The County should be compelled to immediately answer Interrogatory
15 completely and sufficiently because the City is entitled to said
answer under the Rules of Florida Civil Procedure and the Rules of
the Division of Administrative Hearings .
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16 . Because the County has failed to make discovery, the City
requests that the order compelling discovery also sanction the
County in accordance with Rule 1 . 380 (d) . In addition to the
attorney' s fees and expenses to which it is entitled under Rule
1 . 380(a) (4 ) and (d) , the City submits that, depending on further
documents and witnesses which may be identified by the County in
answering the interrogatories, an order prohibiting the County from
introducing designated matters in accordance with Rule
1 .380(b) (2) (B) , or an order prohibiting the admission of the
testimony of certain County witnesses, may also be appropriate in
this case in the future. Furthermore, depending on the date on
which the County does comply with discovery, an order continuing
the hearing as provided in Rule 1 . 380 (b) (2) (c) also may be
necessary due to the delay caused by the County' s intransigence.
The City reserves the right to pray for such further additional
relief by motion, if necessary.
17 . Counsel for the City certifies that it has conferred with
counsel for the County in a good faith effort to resolve by
agreement the issues raised in this motion to compel as evidenced
by counsel for the City' s May 10, 1993 letter to counsel for the
County. Counsel for the City was unable to resolve by agreement
the issues raised in this motion because Counsel for the County has
failed to respond to the letter of May 10, 1993 and has continued
to fail to answer the interrogatories which are the subject of this
motion.
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18 . The City requests expedited consideration of this written
•
motion, together with any written responsive submissions which may
be filed by the parties, and the entry of an order on this motion
at the Hearing Officer' s earliest convenience .
rit
WHEREFORE, the Petitioner City of Okeechobee respectfully
requests that the Hearing Officer expedite the consideration of
y :; this motion to compel and for sanctions for failure to make
'' discovery, and, after considering the written submissions of the
parties , enter an order compelling Intervenor Okeechobee County to
immediately give complete, sufficient and non-evasive answers,
responsive to the date on which the answers are served and
accompanied by copies of any documents referred to in said answers ,
to the City of Okeechobee' s First and Second Sets of
• Interrogatories, served on Okeechobee County on November 30, 1992
and January 8, 1993, and awarding attorneys ' fees and costs
incurred in the preparation and prosecution of this motion, as set
forth with particularity above.
•
• Respectfully submitted on this
26th day of July, 1993 by:
61.J-6A tam •4X..g(
Michael Wm. Morell
Attorney at Law
310 West College Avenue
Tallahassee, FL 32301-1406
(904)425-8300
and
John R. Cook
City Attorney
City of Okeechobee
202 N.W. 5th Avenue
Okeechobee, FL 34972
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.
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CERTIFICATE OF SERVICE
1 I HEREBY CERTIFY that an original and one copy of the
foregoing Petitioner City of Okeechobee' s Expedited Motion to
Compel and For Sanctions for Failure to Make Discovery has been
filed this 26th day of July, 1993 with the Office of the Clerk,
i Division of Administrative Hearings, The Desoto Building, 1230
Apalachee Parkway, Tallahassee, FL 32399-1550 and one copy has been
i furnished by hand delivery on this 26th day of July, 1993 to;
John Cassels
Laura Ann McCall
Okeechobee County Attorney
,' • Law Offices of Cassels and McCall
:.4,;-:,,,
400 N.W. Second Street
-, ' P.O. Box 968
4 Okeechobee, FL 34973
,f Karen Brodeen
' : Assistant General Counsel
Department of Community Affairs
;, !• 2740 Centerview Drive
1.. Tallahassee, FL 32399-2100
WIAbu. neQ,Q .
t
Michael Wm. Morell
I
•
•
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MICHAEL WM, MORELL
ATTORNEY AT LAW
114 WEST COLLEGE AVeNUE
AGMm;1gATIVE ANO v0 [RNMENYAL LAW TALLAHASSEE, FLORIDA 323Q1•14445 ALSO ADM,TTEO a r■,E
ENV SJ•i✓LN'AL ANC, L•NO USE Ow p•ST15 ,T Or CQL s,A
(30,) d23 e300
(s04) dZ -a:aoi 7AC5IMIL[
January 4, 1993
9 : 50 p.m.
VIA FACSIMILE TRANSMISSION 813/763-1031
John D. Cassels
Okeechobee County Attorney
Cassels and McCall
400 N.W. Second Street
P.O, Box 968
Okeechobee, Florida 34973
RE: City of Okeechobee vs . Department of Community Affairs,
Respondent and Okeechobee County, Intervenor, DOAH Case
No. 92-4909GM
Dear John:
This is to confirm the details of our telephone conversation
this evening at approximately 5 ;00 p.m. while I was in route to
Okeechobee although only 35 miles east of Tallahassee . During our
conversation we agreed to postpone the City of Okeechobee' s
deposition duces tecum of Okeechobee County' s representative which
was previously noticed and scheduled to begin in Okeechobee on
Wednesday, January 6, 1993 at 9 ; 00 a.m.
We agreed to reschedule the deposition, without notice, after
the County serves answers to the City ' s First Set of
Interrogatories and responds to the City' s Request for Production
of Documents from Okeechobee County, both of which were served on
the County on November 30 , 1992 and were due to be served on
December 30, 1992 .
We further agreed that the County would serve by hand delivery
to City Attorney John Cook' s office no later than 4 : 00 p.m. on
Tuesday, January 5, 1993, Okeechobee County' s answers to the City
of Okeechobee' s First Set of Interrogatories and copies of
documents produced in response to the City' s Request for Production
of Documents from Okeechobee County.
Finally, we agreed that it did not make sense for me to travel
to Okeechobee to review the discovery, prepare for and conduct the
deposition cf the County' s representative until the County served
its answers and produced the documents . Hopefully, the deposition
can be rescheduled for a mutually convenient time perhaps as early
as this Thursday or Friday.
Exhibit "A" . ... ... __.�_...
John D. Cassels
January 4 , 1993
Page Two
Therefore, by copy :J. this letter to City Attorney John Cook
and DCA Assistant Ganera1 Cc)Insel Yaren Brodeen , I am notifying
them of the change in our discovery schedule and requesting that
John Cook's office telephone me in Tallahassee as soon as the
County' s answers to interrogatories and documents arrive .
If I have misunderstood or misstated the substance of our
telephone conversation, please contact me immediately.
John, thank you for talking to me before I proceeded too far
south and for reinforcing what I know is our mutual respect for
each other and our rutual preference as practicing attorneys for
the handling of discovery and other matt.grq ry cooperation among
professionals .
With best personal retards, I am
Sincerely,
(1/G ttt,Q .6K0
Michael Wm. Morell
MWM:mm
Enclosures
cc. John Cook, City Attorney for City of Okeechobee
Karen Brodeen, DCA Assistant General Counsel
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MICHAEL WM. MORELL
ATTr]RNEY AT LAW
310 WEST COLLEGE AVENUE
•G. .I5J LTivE AND GOvERNMCNTAL LAW TA LLA1-IASSEE. FLORIDA 32301'1410e ALSO •C'A.'TED N tNE
CNv RDNHt N•AL AND LAND USE LAW DI$TAICT e- .:OLyNO.A
(90A) AZD 9300
(904) 425•83131 FACSIMILE
May 10, 1993
VIA FACSIMILE TRANSMISSION 913/763-1031 and U.S . Mail
John D. Cassels , Jr.
Okeechobee County Attorney
Cassels and McCall
400 N .W. Second Street
P. O. Box 968
Okeechobee, Florida 34973
Re : City of Okeechobee vs . Department of Communit
Affairs , Respondent and Okeechobee County, Intervenor,
DOAH Case No. 92-4909GM
Dear John:
The purpose of 'his letter is to attempt to communicate in a
good faith effort to resolve my concern about Okeechobee County' s
continuing failure to respond to interrogatories served on the
county in the above-refenred case.
On January 8 , 1993, y .. were served at your office by hand
delivery with the original and one copy of the City of Okeechobee ' s
Second Set of Interrogatories to Okeechobee County, numbered 15-16 . _
Okeechobee County' s answers to the City's Second Interrogatories
were due to be served by hand delivery on February 8, 1993 .
Interrogatory 15 of the City' s Second Set of Interrogatories
requested that Okeechobee County state any change, addition or
deletion to the statements contained in the Answers by Okeechobee
County to Interrootories 1-14 , inclusive, to the City of
Okeechobee' s First bet of Interrogatories to Okeechobee since
service of the County's Answers on January 5, 1993 .
Interrogatory 16 requested that the County identify each and
every person who prepared, ;•r assisted in the preparation of the
County' s answers to the City s Second Set of Interrogatories , and
state the answers which each person prepared or assisted in
preparing .
The County ' s answers to the City' s Second Set of
Interrogatories are now 91 days overdue. Therefore, I must request
that Okeechobee County immediately comply with the Florida Rules of
Civil Procedure and provide complete answers to these
interrogatories which are rese, msive to the date on which the
County serves its any Ors .
ExhaAt «13„
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John D. Cassels, Jr.
May 10 , 1993
Page Two
I must also request that in addition to immediately answering
the City' s Second Set of Interrogatories, the County should also
give better and more complete answers to certain specific
interrogatories included the City' s First Set of Interrogatories .
The County appears to have attempted to answer some of these
interrogatories without regard to the definitions and instructions
which prefaced those interrogatories . The following specific
interrogatories were incompletely and insufficiently answered by
the County on January 5 , 1993 : Interrogatories 1 . , 1 . (b) , 1 . (c) ,
1 . (d) , 1 . (e) , 1 . ( f ) , 1 . (g) , 4 (b) , 4 (c) , 4 (d) , 7, 8 , 9 , and 13 .
John, as I first represented to you in my letter of January 4 ,
1993, I prefer to handle discovery matters by agreement among
counsel and are happy to cooperate in the discovery process in any
way that will not substantially prejudice my client. I hope that
you also prefer to handle discovery and other administrative
matters in this case by cooperation among professionals . It is
more cost efficient for our clients that way.
Therefore, I trust that you will see that your client responds
immediately and completely to the City's Second Set of
Interrogatories so that it will be unnecessary for the City to file
a motion with the hearing officer to compel answers from Okeechobee
County and for sanctions for failure to make discovery.
Sincerely,
klikAA1.4119
Michael Wm . Morell
MWM:mm
Enclosures
cc. John Cook, City Attorney for City of Okeechobee
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PETITIONER CITY OF OKEECHOBEE' S
FIRST SET OF INTERROGATORIES
TO OKEECHOBEE COUNTY
Pursuant to Rule 60Q--2 . 019, Florida Administrative Code
(F.A.C. ) , and Rules 1 . 280 and 1 . 340, Florida Rules of Civil
Procedure (F. R.C.P. ) , Petitioner City of Okeechobee, by and through
its undersigned attorneys, hereby propounds the attached
interrogatories , numbered 1-14, to Okeechobee County, to be
answered under oath and in writing within the time and manner
prescribed by law.
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1DEFINITIONS
A. The term "person" means any natural person, individual ,
partnership, public or private corporation, state, regional or
local governmental agency or body, joint venture or association or
any other legal entity.
B. The term "document" means all written, graphic and audio
or visually recorded matter of every kind and description, however
produced or reproduced, whether draft or final, original or
reproduction, and in the actual or constructive possession, custody
or control of Okeechobee County, including but not limited to:
plans , plats, drawings , maps, graphs , charts, deeds, title
policies, commitments or abstracts, writings, letters,
correspondence, memoranda, notes, pleadings , films, photographs,
audio recordings, transcripts, contracts, agreements , covenants,
microfilm, microfiche, telegrams, books, magazines, advertisements,
periodicals , bulletins , circulars, pamphlets, notices , reports,
rules, regulations , directives , telecopy or teletype messages,
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Exhibit "C"
communications , minutes or notices of meetings, interoffice
communications , reports, bills, financial statements , ledgers ,
books of account, proposals, prospectuses , offers , orders,
receipts , working papers, desk calendars , appointment books,
diaries, time sheets, logs, movies, tapes for visual and audio
reproduction, recordings, or material similar to any of the
foregoing, however, denominated by Okeechobee County. The term
"document" shall also include all copies of each document if the
copies contain any additional matter or are not identical copies of
the original, and all attachments, enclosures or documents affixed
or referred to in any documents identified in response to these
interrogatories .
C . The terms "you" , "your" or "yours" mean intervenor
Okeechobee County including its agents , employees , attorneys ,
assigns , representatives , and all other persons acting on the
County' s behalf.
D. As used herein, the words "his," "him, " and "he" are used
as gender-neutral pronouns and may denote a male, female or
corporate or political entity.
E . The term "Okeechobee County" or "County" means Intervenor
Okeechobee County.
F. The term "City of Okeechobee" or "City" means Petitioner
City of Okeechobee .
G. The term "City' s Petition" means the Petition for
Administrative Hearing filed by the City on August 3 , 1992 .
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A
H. The term "identify" or "identification" :
( 1) When used in reference to a natural person, means
to state his full name, present or last known home and business
addresses, the position(s ) of employment and job title held by the
person at the time to which the interrogatory relates and at the
present time, the names and addresses of his present or last known
employer(s) , and the present or last known home and business
telephone numbers at which the person may be reached;
(2 ) When used in reference to and erson other than a
> natural person, means to state its full name and all of the names
by which it is known or referred to, its form or organization
( i . e . , partnership) , the state under whose law it is organized, the
present or last known address of its principal place of business or
office, and a description of the nature of its business ;
( 3) When used in reference to a document, means to state
the type of document ( i .e. , letter, report, memorandum, chart,
photograph, map, etc . ) ; its subject matter or substance; its title
or caption and any identifying file labels or numbers; the date, if
any, it bears ; the date the document was prepared; the names,
employees and positions of the person responsible for its
preparation (excluding clerical personnel ) ; recipients of all
copies; the document ' s location, and the name and address of all
known custodians . If any such document was at any time in your
possession, but is no longer, state whether such document is
missing, lost, destroyed or has been transferred, voluntarily or
involuntarily, to any other person, or otherwise disposed of, and
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the circumstances surrounding it, and authorization given, if any,
for such disposition, the approximate date of such disposition, and
the identity of the person or persons to whom such document was
transferred, if any. In lieu of identifying a document, a copy may
be furnished.
I . As used herein, the terms "comprehensive plan" , "plan" ,
or "plans" refer to the local government comprehensive plan adopted
by Okeechobee County on April 2, 1992 by Ordinance No . 92-5 and all
earlier and subsequent drafts or versions of the plan including the
revised version of the 1980 plan which Okeechobee County
transmitted to the Department of Community Affairs on October 12,
1990 . As used herein, the terms also include the Goals, Objectives
and Policies documents and the Data and Analysis documents .
J. "And" as well as "or" shall be construed either
disjunctively or conjunctively as necessary to bring within the
scope of these interrogatories any information which might
otherwise be construed to be outside their scope.
INSTRUCTIONS
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K. In accordance with Rule 60Q-2 . 019, F.A.C. , and Rules
1 . 280 and 1 . 340, F.R.C .P. , you are required to serve answers to the
attached interrogatories under oath and in writing, no later than
30 days from service, unless an earlier response date is ordered .
L. You are required to answer all interrogatories
separately, in the space provided after each interrogatory. If
additional space is needed, attach extra sheets .
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M. Answers to the interrogatories shall be responsive to the
date on which the answers are served.
N. At the end of each interrogatory, state the name and
position of each of the persons or agents answering it.
0. At the end of each interrogatory, state whether the
information furnished is within the personal knowledge of each
person stated as answering it and, if not, identify the persons ( if
known) who have such personal knowledge.
P. At the end of each interrogatory, describe the sources of
information used by you in answering the following interrogatories :
( 1 ) To the extent that the source of your information is
a person(s ) , identify such person(s ) .
(2 ) To the extent that the source of your information is
a document(s) , identify such document(s) .
Q. If the person answering the interrogatory does not know
the answer to an interrogatory, identify the person who does know
the answer.
R. For any document produced in response to an
interrogatory, indicate on the document in some reasonable fashion
the number(s) and subpart(s) of the interrogatory(s ) to which it
responds .
S. If, with respect to any interrogatory, or part or sub-
part thereof, you exercise your options under the F. R.C.P . to
produce business records in lieu of otherwise answering such
interrogatory, the following information must be provided and the
following procedures employed:
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( 1 ) Specify all documents for which the answer to such
interrogatory may be devised or ascertained.
(2 ) Produce such documents separately and designate the
interrogatory for which each such document relates .
T. With respect to any document that Okeechobee County
withholds on a claim of privilege, the County should provide in its
response to this request a statement signed by an attorney
representing the County that states the following as to each such
document :
( 1) A brief description of the nature and subject. matter
of the document;
( 2 ) The name of the sender(s ) of the document;
( 3) The name of the author(s) of the document if not the
sender;
(4 ) The names(s) of the recipient(s ) of the document;
(5) Job description of every person named in (2) , ( 3)
and (4) above;
( 6 ) Date of document;
( 7 ) The ground(s) for the claim of privilege, with
particular explanation of why the document is not a public record
pursuant to Chapter 119, Florida Statutes .
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PETITIONER CITY OF OKEECHOBEE ' S
SECOND SET OF INTERROGATORIES
TO OKEECHOBEE COUNTY
Pursuant to Rule 60Q-2 . 019, Florida Administrative Code
(F.A.C. ) , and Rules 1 .280 and 1. 340, Florida Rules of Civil
Procedure (F.R.C.P. ) , Petitioner City of Okeechobee, by and through
its undersigned attorneys, hereby propounds the attached Second Set
of Interrogatories, numbered 15-16, to Okeechobee County, to be
answered under oath and in writing within the time and manner
prescribed by law.
DEFINITIONS
A. The term "document" means all written, graphic and audio
or visually recorded matter of every kind and description, however
produced or reproduced, whether draft or final, original or
reproduction, and in the actual or constructive possession, custody
or control of Okeechobee County, including but not limited to:
plans, plats, drawings, maps, graphs, charts, deeds, title
policies, commitments or abstracts, writings, letters,
correspondence, memoranda, notes, pleadings, films, photographs,
audio recordings, transcripts, contracts, agreements, covenants,
microfilm, microfiche, telegrams, books, magazines , advertisements,
periodicals, bulletins, circulars, pamphlets, notices; reports,
rules, regulations, directives , telecopy or teletype messages,
communications, minutes or notices of meetings, interoffice
communications, reports, bills, financial statements, ledgers,
books of account, proposals , prospectuses, offers, orders,
receipts, working papers, desk calendars, appointment books,
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Exhibit "D"
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diaries, time sheets, logs, movies, tapes for visual and audio
reproduction, recordings, or material similar to any of the
foregoing, however, denominated by Okeechobee County. The term
"document" shall also include all copies of each document if the
copies contain any additional matter or are not identical copies of
the original, and all attachments, enclosures or documents affixed
or referred to in any documents identified }n response to these
interrogatories .
B. The term "identify" or "identification" ;
( 1 ) When used in reference to a natural person, - means
to state his full name, present or last known home and business
addresses, the position(s) of employment and job title held by the
person at the time to which the interrogatory relates and at the
present time, the names and addresses of his present or last known
employer(s) , and the present or last known home and business
telephone numbers at which the person may be reached;
( 2 ) When used in reference to any person other than a
natural person, means to state its full name and all of the names
by which it is known or referred to, its form or organization
(i.e. , partnership) , the state under whose law it is organized, the
present or last known address of its principal place of business or
office, and a description of the nature of its business;
( 3 ) When used in reference to a document, means to state
the type of document (i.e. , letter, report, memorandum, chart,
photograph, map, etc. ) ; its subject matter or substance; its title
or caption and any identifying file labels or numbers; the date, if
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any, it bears; the date the document was prepared; the names,
employees and positions of the person responsible for its
preparation (excluding clerical personnel) ; recipients of all
copies; the document ' s location, and the name and address of all
known custodians . If any such document was at any time in your
possession, but is no longer, state whether such document is
missing, lost, destroyed or has been transferred, voluntarily or
involuntarily, to any other person, or otherwise disposed of, and
the circumstances surrounding it, and authorization given, if any,
for such disposition, the approximate date of such disposition, and
the identity of the person or persons to whom such document was
transferred, if any. In lieu of identifying a document, a copy may
be furnished.
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