RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY | Cox Law, PLLC (2022)

(a) Discovery Methods. Parties 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. Unless the court orders otherwise and under subdivision (c) of this rule, the frequency of use of these methods is not limited, except as provided in rules 1.200, 1.340, and 1.370.

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whetherit 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 ground for objection that the information sought will be inadmissible at thetrial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(Video) Virtual Meetings and Ephemeral Messages

(2) Indemnity Agreements. A party may obtain discovery of the existence and contents of any agreement under which any person may be liable to satisfy part or all of a judgment that may be entered in the action or to indemnify or to reimburse a party for payments made to satisfy the judgment. Information concerning the agreement is not admissible in evidence at trial by reason of disclosure.

(3) Electronically Stored Information. A party may obtain discovery of electronically stored information in accordance with these rules.

(4) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(5) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Inordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party. Upon request without the required showing a person not a party may obtain a copy of a statement concerning the action or its subject matter previously madeby that person. If the request is refused, the person may move for an order to obtain a copy. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred as a result of making the motion. For purposes of this paragraph, a statementpreviously made is a written statement signed or otherwise adopted or approved by the person making it, or a stenographic, mechanical, electrical, or other recordingor transcription of it that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(Video) PAF 2021 Seminar Eight Session

(A)(i) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(ii) Any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial may be deposed in accordance with rule 1.390 without motion or order of court.

(iii) A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:

  1. 1. The scope of employment in the pending case and the compensation for such service.
  1. 2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendant
  1. 3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at tria
  1. 4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other serviceAn expert may be required to produce financial and business records only under the most un-usual or compelling circumstances and may not be compelled to compile or produce nonexistent documents. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and other provisions pursuant to subdivision (b)(5)(C) of this rule concerning fees and expenses as the court may deem appropriate.

(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party inanticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.360(b) or upon a showing ofexceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(Video) SC19-1118 Brent A. Dodgen v. Kaitlyn P. Grijalva

(C) Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(5)(A) and (b)(5)(B) of this rule; and concerning discovery from an expert obtained under subdivision (b)(5)(A) of this rule the court may require, and concerning discovery obtainedunder subdivision (b)(5)(B) of this rule shall require, the party seeking discovery topay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

(D) As used in these rules an expert shall be an expert witness as defined in rule 1.390(a).

(6) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosedin a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

(c) Protective Orders. 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 presentexcept 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, thecourt may, on such terms and conditions as are just, order that any party or personprovide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.

(Video) How to Get Your Divorce Documents When The Other Side Refuses

(d) Limitations on Discovery of Electronically Stored Information.

(1) A person may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of burden or cost. On motion to compel discovery or for a protective order, the person from whom discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order the discovery from such sources or in such formats if the requesting party shows good cause. The court may specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom discovery is sought be paid by the party seeking the discovery.

(2) In determining any motion involving discovery of electronically stored information, the court must limit the frequency or extent of discovery otherwise allowed by these rules if it determines that (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from another source orin another manner that is more convenient, less burdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

(e) Sequence and Timing of Discovery. Except as provided in subdivision (b)(5) or unless the court upon motion for the convenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay any other party’s discovery.

(Video) 18-3337 Oral Argument

(f) Supplementing of Responses. 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.

(g) Court Filing of Documents and Discovery. Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. All filings of discovery documents shall comply with Florida Rule of Judicial Administration 2.425. The court shall have authority to impose sanctions for violation of this rule.

Committee Notes
1972 Amendment. The rule is derived from Federal Rule of Civil Procedure 26 as amended in 1970. Subdivisions (a), (b)(2), and (b)(3) are new. Subdivision (c) contains material from former rule 1.310(b). Subdivisions (d) and (e) are new, but the latter is similar to former rule 1.340(d). Significant changes are made in discovery from experts. The general rearrangement of the discovery rule is more logical and is the result of 35 years of experience under the federal rules.
1988 Amendment. Subdivision (b)(2) has been added to enable discovery of the existence and contents of indemnity agreements and is the result of the enactment of sections 627.7262 and 627.7264, Florida Statutes, proscribing the joinder of insurers but providing for disclosure. This rule is derived from Federal Rule of Civil Procedure 26(b)(2). Subdivisions (b)(2) and (b)(3) have been redesignated as (b)(3) and (b)(4) respectively.
The purpose of the amendment to subdivision (b)(3)(A) (renumbered (b)(4)(A)) is to allow, without leave of court, the depositions of experts who have been disclosed as expected to be used at trial. The purpose of subdivision (b)(4)(D) is to define the term “expert” as used in these rules.
1996 Amendment. The amendments to subdivision (b)(4)(A) are derived from the Supreme Court’s decision in Elkins v. Syken, 672 So. 2d 517 (Fla. 1996). They are intended to avoid annoyance, embarrassment, and undue expense while still permitting the adverse party to obtain relevant information regarding the potential bias or interest of the expert witness.
Subdivision (b)(5) is added and is derived from Federal Rule of Civil Procedure 26(b)(5) (1993).
2011 Amendment. Subdivision (f) is added to ensure that information obtained during discovery is not filed with the court unless there is good cause for the documents to be filed, and that information obtained during discovery that includes certain private information shall not be filed with the court unless the private information is redacted as required by Florida Rule of Judicial Administration 2.425.
2012 Amendment. Subdivisions (b)(3) and (d) are added to address discovery of electronically stored information.
The parties should consider conferring with one another at the earliest practical opportunity to discuss the reasonable scope of preservation and production of electronically stored information. These issues may also be addressed by means of a rule 1.200 or rule 1.201 case management conference.
Under the good cause test in subdivision (d)(1), the court should balance the costs and burden of the requested discovery, including the potential for disruption of operations or corruption of the electronic devices or systems from which discovery is sought, against the relevance of the information and the requesting party’s need for that information. Under the proportionality and reasonableness factors set out in subdivision (d)(2), the court must limit the frequency or extent of discovery if it determines that the discovery sought is excessive in relation to the factors listed.
In evaluating the good cause or proportionality tests, the court may find its task complicated if the parties know little about what information the sources at issue contain, whether the information sought is relevant, or how valuable it may be to the litigation. If appropriate, the court may direct the parties to develop the record further by engaging in focused discovery, including sampling of the sources, to learn more about what electronically stored information may be contained in those sources, what costs and burdens are involved in retrieving, reviewing, and producing the information, and how valuable the information sought may be to the litigation in light of the availability of information from other sources or methods of discovery, and in light of the parties’ resources and the issues at stake in the litigation.
Court Commentary
2000 Amendment. Allstate Insurance Co. v. Boecher, 733 So. 2d 993, 999 (Fla. 1999), clarifies that subdivision (b)(4)(A)(iii) is not intended “to place a blanket bar on discovery from parties about information they have in their possession about an expert, including the party’s financial relationship with the expert.”

Click Here to read more or browse blog articles related FRCP Rule 1.280

FAQs

Do you have to file discovery responses in Florida state court? ›

Discovery responses are not filed with the court. Information obtained during discovery is not filed until such time as it is filed for good cause. This means that the requirement of good cause is satisfied only where the filing is allowed or required by another rule or court order.

What is discovery in Florida law? ›

Discovery in a civil lawsuit is the process of obtaining and exchanging evidence. It is structured by rules of procedure. It is also punctuated by disputes over who can or should get what.

Does a motion for protective order stay discovery Florida? ›

Upon receipt of a motion for a protective order, the Court may issue a temporary stay of discovery pending resolution of the motion.

Are expert reports discoverable in Florida? ›

The upshot of the Florida and Federal Rules of Civil procedure is if an expert considered and/or relied on a document or communication in forming his or her opinion, that document or communication is likely discoverable, regardless of whether it would otherwise be privileged.

What are the three forms of discovery? ›

That disclosure is accomplished through a methodical process called "discovery." Discovery takes three basic forms: written discovery, document production and depositions.

How long is discovery period in Florida? ›

In a family law case, the first form of discovery is known as mandatory disclosures or discovery. These disclosures are required by the court in every case and are to be presented to the opposing party within 45 days of service of the initial petition or within 45 days of filing the petition.

What is boecher discovery? ›

After acknowledging that the Florida Supreme Court's decision in Boecher generally allows a party broad discovery, the court noted that when the defense makes a preliminary showing that the plaintiff was referred to a doctor by the plaintiff's lawyer, either directly or through a third party, the defendant is then ...

How many interrogatories does Florida have? ›

The Florida Rules of Civil Procedure limit the parties to 30 interrogatories. Counsel may only serve additional interrogatories by stipulation with opposing counsel or order of the court.

What is a Richardson hearing Florida? ›

2d 1174 (Fla. 2000). The purpose of a Richardson hearing is to determine "whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party's trial preparation." Id.

What happens if the defendant does not give me responses to my discovery requests? ›

Failure to discover may result in judgement being given against the defaulting party in the main action. Documents, which may harm a litigant's case, must be ascertained as soon as possible to limit any damage that may be caused.

What does motion to stay discovery mean? ›

The party trying to avoid discovery will file a motion for a “discovery stay.” (When you file a motion, it means you're asking the court to do something. In this case, you're asking the court to issue a discovery stay.) Discovery stays are quite common.

Are letters of protection discoverable in Florida? ›

Even when the defendants reasoned that the need for the information was based on necessity, the Florida Supreme Court upheld that the relationship was protected by the attorney-client privilege and therefore, was not discoverable.

Are emails to experts discoverable? ›

Under the federal rules, then, email communications between the expert and attorney are no longer discoverable, provided the email communication does not fit within one of the three exceptions (compensation, facts or data considered, or relied-upon assumptions).

Are emails between lawyers discoverable? ›

Emails are discoverable, unless they are subject to the Attorney Client or Work Product Privilege. It is important to note that forwarding a privileged email to a party outside of the attorney client relationship will likely result in the waiver of the privilege.

Are emails between attorney and expert privileged? ›

The attorney-client privilege applies to communications “to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” Cal. Evid. Code § 952. This includes communications to an expert consultant.

What are the 4 types of discovery? ›

As a rule, four types of discovery are identified. These include deposition, interrogatories, production of documents, and physical or mental examinations (Crain et al. 138).

What are the five major methods of discovery? ›

There are basically six types of discovery in family court: 1) interrogatories; 2) requests for production of documents and inspection 3) requests for admissions; 4) depositions; 5) subpoenas duces tecum; 6) physical and mental examinations.

What are the two key elements of discovery? ›

The Discovery phase consists of two key elements: Planning for collection to ensure that information is collected, managed, and shared in a systematic and deliberate manner. Collecting data using a variety of methods.

What is a notice to discover? ›

Discovery is made on oath by way of an affidavit to which is attached a schedule of the documents and/or tape recordings; Within 20 days of receiving such notice, the party called upon to make discovery ("the discoveror"), shall deliver an affidavit specifying any documents or tape recordings in his possession.

Are depositions public record in Florida? ›

Deposition transcripts and other discovery materials are generally not considered part of the public record, but they become so when filed with the court. When a deposition becomes part of a public court record, it may be accessed for a long time after the case is over.

Does the defense have to disclose evidence to prosecution? ›

Like the Crown, the defence is required to disclose at the investigative, pretrial and trial stages. Although defence disclosure appears to run contrary to the accused's right to silence and the right to make full answer and defence, ii is emphasized that these rights are not absolute.

How Long Does defendant have to respond to discovery in Florida? ›

5. Discovery Served with the Statement of Claim / Complaint If a written discovery request is served upon a Defendant contemporaneously with Plaintiff's complaint, Defendant must serve its responses to the discovery within 45 days of the date of service of Plaintiff's Complaint.

Do interrogatories have to be verified in Florida? ›

Each interrogatory must be answered fully in writing and separately. The answers must be verified (made under oath) unless the interrogatory request is objected to. If the responding party objects to the interrogatory, the objection must be stated and signed by the attorney making the objection.

Do interrogatories have to be notarized Florida? ›

An interrogatory is a request for information, in the form of standard questions, that must be answered in writing and then notarized. In Florida, there are two types of interrogatories used in family law proceedings.

What is a Richardson motion? ›

A Richardson hearing is a hearing to conduct an inquiry into the surrounding facts and circumstances of an alleged discovery violation. For example, a Richardson hearing might be requested because the opposing party attempts to call a witness not included on their witness list.

Is failure to state a cause of action an affirmative defense in Florida? ›

Failure to state a claim (officially called failure to state a cause of action) is an affirmative defense under Florida law that allows defendants to question the legal basis for the lawsuit. This defense is most likely to succeed when the plaintiff doesn't follow the state's pleading requirements.

Can a party ever refuse to produce certain documents for discovery? ›

If they produce documents which prove not to be producible under R. 7-1(1), they may be guilty of breaching their client's confidence; yet if they decline to produce they may breach their duty as officer of the court.

What does compel discovery mean? ›

A motion to compel discovery responses is filed when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient.

What happens if someone doesn't respond to discovery? ›

Failing To Respond To Discovery Can Lead To A Dismissal Of Your Case With Prejudice. In the practice of law, the discovery phase can be your best friend or your worst nightmare. Interrogatories, requests for documents, and depositions can make or break your case.

What is an unopposed motion? ›

Unopposed Motions

An unopposed motion in the law is one where the other party or parties to the lawsuit do not fight against or counter your request.

What does stay in motion mean? ›

An object at rest stays at rest and an object in motion stays in motion with the same speed and in the same direction unless acted upon by an unbalanced force.

Does motion to dismiss stay discovery California? ›

The Federal Rules of Civil Procedure do not provide for stays of discovery simply because a motion to dismiss is pending.

What is considered privileged information in a deposition? ›

Privileged information is information that is protected by a confidential relationship recognized by law, such as attorney-client, doctor-patient, etc. Therefore, CA's attorneys would not be able to seek information pertaining to Marty's discussions with his attorney Larry.

Are communications between client and expert privileged? ›

In the legal world, communications between attorney and client are protected from disclosure. Communications between the client and non-attorneys are not deemed privileged and hence not protected from disclosure. When a client communicates directly with an expert that communication is not protected from disclosure.

Is a privilege log required in Florida? ›

While Rule 1.280(b)(6) does not explicitly use the term "privilege log," Florida courts have construed the rule to require service of a privilege log to preserve privilege or protection claims (see Kaye Scholer LLP v. Zalis, 878 So. 2d 447, 449 (Fla. 3d DCA 2004)).

What happens if the defendant does not give me responses to my discovery requests? ›

Failure to discover may result in judgement being given against the defaulting party in the main action. Documents, which may harm a litigant's case, must be ascertained as soon as possible to limit any damage that may be caused.

Do interrogatories need to be verified Florida? ›

Each interrogatory must be answered fully in writing and separately. The answers must be verified (made under oath) unless the interrogatory request is objected to. If the responding party objects to the interrogatory, the objection must be stated and signed by the attorney making the objection.

How do you conduct discovery? ›

Discovery is conducted by sending written requests in a prescribed form to the opposing party specifically listing the type of discovery sought, the manner in which it will be obtained, and the time for complying with the request. Check your state and local rules for the required form of these requests.

Do you file a request for production in Florida? ›

Do Not File. Requests for production and responses are not be filed with the court. If the court needs to consider a document or item produced in a matter pending before it, the document or item may be filed in compliance with Florida Rule of Judicial Administration 2.425 or 1.280(g). Fla.

Can a party ever refuse to produce certain documents for discovery? ›

If they produce documents which prove not to be producible under R. 7-1(1), they may be guilty of breaching their client's confidence; yet if they decline to produce they may breach their duty as officer of the court.

What does compel discovery mean? ›

A motion to compel discovery responses is filed when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient.

What happens if someone doesn't respond to discovery? ›

Failing To Respond To Discovery Can Lead To A Dismissal Of Your Case With Prejudice. In the practice of law, the discovery phase can be your best friend or your worst nightmare. Interrogatories, requests for documents, and depositions can make or break your case.

What is the limit on interrogatories in Florida? ›

The interrogatories must not exceed 30, including all subparts, unless the court permits a larger number on motion and notice and for good cause.

What Florida Rule of Civil Procedure governs interrogatories? ›

The Florida Rules of Civil Procedure, particularly Rule 1.340, govern a party's obligation to respond to interrogatories, even if the interrogating party does not specifically identify those rules in the instructions.

Do interrogatories have to be notarized Florida? ›

An interrogatory is a request for information, in the form of standard questions, that must be answered in writing and then notarized. In Florida, there are two types of interrogatories used in family law proceedings.

What are the five major methods of discovery? ›

There are basically six types of discovery in family court: 1) interrogatories; 2) requests for production of documents and inspection 3) requests for admissions; 4) depositions; 5) subpoenas duces tecum; 6) physical and mental examinations.

What are the two key elements of discovery? ›

The Discovery phase consists of two key elements: Planning for collection to ensure that information is collected, managed, and shared in a systematic and deliberate manner. Collecting data using a variety of methods.

What are the most common discovery techniques? ›

The most commonly used discovery devices are depositions, interrogatories, requests for admissions, requests for production of documents, requests for inspection and e-discovery.

How Long Does defendant have to respond to discovery in Florida? ›

5. Discovery Served with the Statement of Claim / Complaint If a written discovery request is served upon a Defendant contemporaneously with Plaintiff's complaint, Defendant must serve its responses to the discovery within 45 days of the date of service of Plaintiff's Complaint.

How many requests for production are allowed in Florida? ›

The request for admission shall not exceed 30 requests, including all subparts, unless the court permits a larger number on motion and notice and for good cause, or the parties propounding and responding to the requests stipulate to a larger number.

How long do you have to respond to a request for production in Florida? ›

Responses to requests for production are due within 30 days after service, except that a defendant may serve a response within 45 days after service of the initial pleading and process on that defendant.

1. BMGT443 Sept 10 2014 - EIC
(Joe Perfetti)

Top Articles

You might also like

Latest Posts

Article information

Author: The Hon. Margery Christiansen

Last Updated: 11/10/2022

Views: 5725

Rating: 5 / 5 (50 voted)

Reviews: 89% of readers found this page helpful

Author information

Name: The Hon. Margery Christiansen

Birthday: 2000-07-07

Address: 5050 Breitenberg Knoll, New Robert, MI 45409

Phone: +2556892639372

Job: Investor Mining Engineer

Hobby: Sketching, Cosplaying, Glassblowing, Genealogy, Crocheting, Archery, Skateboarding

Introduction: My name is The Hon. Margery Christiansen, I am a bright, adorable, precious, inexpensive, gorgeous, comfortable, happy person who loves writing and wants to share my knowledge and understanding with you.