During litigation, a party generally engages in discovery. In fact, Florida Rule of Civil Procedure 1.280 provides, “[p]arties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission.” Fla. R. Civ. Pro. 1.280(a).
In general, “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Parties may also be entitled to receipt of indemnity agreements so as to establish (full or partial) liability. Fla. R. Civ. Pro. 1.280(b)(1) and (b)(2).
Florida Rule of Civil Procedure 1.280(b)(3) is an ever-evolving caveat to this Rule involving electronically stored information. It states, “[a] party may obtain discovery of electronically stored information in accordance with these rules.” While that may seem like a blanket instruction on its face, that is far from the case. Today, many people and businesses store information on their desktops, laptops, cell phones, tablets, watches, and everything in between. In many cases, this information can be quite voluminous. In the event one party requests (via a Motion to Compel) and thereafter persuades a Judge to grant its request, the Court may order the other party to produce said electronically stored information. But, that may not be the end of things. Instead, the other party may file a Motion for Protective Order (discussed in greater detail below) arguing that the production of the documents is too burdensome or costly. Think about this: are you prepared to pay hundreds, if not thousands, of dollars in what it would cost to print hard copies of everything in your email or on your phone? Most would say, of course not. Here, these important legal arguments (and Motion practice) are critical in mitigating costs so that the requesting party pays the tab on production costs, or perhaps the Court may limit the sheer amount of documents needed to be produced in the first place. So while this particular rule is stated in one simple sentence, the practice of this rule is no simple task!
In preparation of trial, both sides want to be prepared. Sounds reasonable, right? Well, there are rules governing discovery in this posture as well. Often times, experts might be used in a case. Opinions held by these experts is something both sides want to know, but can they? Florida Rule of Civil Procedure 1.280(b)(5) states that opinions held by experts are discoverable and may be obtained by Interrogatories; Answers to such Interrogatories should generally contain the expert’s name, subject matter on which the expert is expected to testify, and to state the substance of the facts pertaining to said opinion. In addition to Interrogatories, experts may be subject to deposition so that they may be asked, under oath, to explain their opinions. Depositions of Expert Witnesses are further discussed in Florida Rule of Civil Procedure 1.390.
While the goal of discovery is mutual exchange of information so that both parties can efficiently hammer out the facts and otherwise assess liability and damages, each side often possess “privileged” material. In the event a party makes a claim of privilege, they are essentially withholding otherwise discoverable information. Florida Rule of Civil Procedure 1.280(b)(6) states that “the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” We call this a “Privilege Log.” In a Privilege Log, we list basic, but clear, information such as date of document, general type of document, and the type of privilege being asserted so that the other party is on notice to the asserted privilege.
As briefly mentioned above, Protective Orders can be a useful discovery tool. Florida Rule of Civil Procedure 1.280(c) governs this area.
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.
It is important to note that discovery rules contemplate being fair and timely. To that end, Florida Rule of Civil Procedure 1.280(e) mandates that discovery had by either side shall not delay any other party’s discovery. Finally, Florida Rule of Civil Procedure 1.280(f) notes that “[a] party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired.”
While this article is aimed at being both informative and comprehensive, the Florida Rules of Civil Procedure that govern the area of Discovery are vast and case law pertaining to the same are innumerable. For complete reference, refer to the full rule(s) as enumerated in Florida Rule of Civil Procedure 1.280.