Attorney Fees as Sanction for Untimely Discovery Responses

In a recent JCC case out of Ft. Lauderdale, OJCC 17-025338, the Employer/Carrier failed to comply with a JCC’s order compelling discovery, and as a result the Claimant filed a motion for sanctions under the provisions of Rule 60Q-6.125(4).The Employer/Carrier neglected to respond to the motion for sanctions, and the JCC noted in his order that followed on July 24, 2018 that the Employer/Carrier did not dispute that sanctions in the form of attorney fees were warranted and the dispute at that point only concerned the fee amount.

While this order pertained, in part, to attorney fees resulting from failures to comply with a JCC order, employer/carriers and defense counsel should be aware that the same rule, 60Q-6.125, provides for attorney fees and costs as a sanction not just for disobeying JCC orders but for failure to provide timely discovery responses. The rules state:

"Failure to comply with the provisions of these rules or any order of the judge may subject a party or attorney to one or more of the following sanctions: striking of claims, petitions, defenses, or pleadings; imposition of costs or attorney's fees; or such other sanctions as the judge may deem appropriate."

Fla. Admin. Code Ann. R. 60Q-6.125(1)

Claimant attorneys are using this provision as a mechanism to generate additional attorney fees when requests for production are not responded to timely or completely. The practical difficulty is that often the materials requested, though not necessarily privileged, are difficult to obtain. A common response to a request for employment materials is that the items have been requested from the Employer and will be furnished upon receipt. However, if the items are not provided, the employer/carrier may have to contend with a motion to compel and eventually an order requiring payment of the claimant’s attorney fees. Therefore, employer/carriers and defense counsel should work diligently to respond to discovery requests in order to head off any claim for attorney fees.

Contact partner Blake Hood if you have any questions about these rulings. Blake is Board Certified by The Florida Bar in Workers’ Compensation, a designation he earned in 2013. He devotes his practice to the defense of employers and insurance carriers in claims and appeals arising under the Florida Workers’ Compensation Act as well as claims brought under the federal Longshore and Harbor Workers’ Compensation Act.