PART III Discovery CHAPTER 8 Overview of the Discovery Process The Florida Rules of Civil Procedure regulate civil discovery procedures in the state. Florida does not require supplementary responses to discovery. Discovery may also be made in aid of the execution of judgment. THE NATURE OF DISCOVERY Fla. R. Civ. P. 1.280(b)(1), General, provides that parties may discover any matter not covered by a privilege, that is relevant to the subject of the cause of action. It is not grounds for objections to any discovery inquiry that information that is the subject of the question or inquiry would not be admissible at trial. The requirement for allowable discovery inquiries is that they appear to lead reasonably to discovery of admissible evidence. This is a liberal standard. CHOICE OF DISCOVERY METHODS Fla. R. Civ. P. 1.280(a), Discovery Methods, lists the following: 1. depositions upon oral examination 2. depositions upon written questions 3. written interrogatories 4. production of documents or things 5. permission to enter upon land or other property for inspection purposes 6. physical and mental examinations 7. requests for admission. STANDARD FORMS There are many standard forms for the various forms of discovery included in the rules. Some examples are included in the Forms Appendix. THE EXTENT OF ALLOWABLE DISCOVERY LIMITS ON DISCOVERY Fla. R. Civ. P. 1.280(c), Protective Orders, provides that, upon Motion, the court may make an order protecting a party from annoyance, embarrassment, oppression, undue burden, or expense. The court may order the following to protect the party or person: 1. Discovery may be disallowed. 2. Discovery may only be conducted under specified conditions or terms. 15 18429_FL_03_Part3_p015-022.indd 15 7/7/08 10:31:15 AM
16 PART III Discovery 3. Only a specific method of discovery may be used. 4. Only specific persons may be present at discovery. 5. Depositions may be sealed. 6. Trade secrets, confidential research, development, and commercial information may not be disclosed or disclosed in a specified way. 7. Simultaneously filed, sealed documents may only be opened by the court. DISCOVERY IN AID OF EXECUTION Fla. R. Civ. P. 1.560, Discovery in Aid of Execution, states that the rules of discovery apply to after judgment attempts to obtain the subject of interest of the order or decree. COOPERATING WITH DISCOVERY MOTIONS TO COMPEL DISCOVERY Discovery may also be compelled by the court. Fla. R. Civ. P. 1.380, Failure to Make Discovery; Sanctions, provides that reasonable notice is required to all parties for a motion to compel discovery. The appropriate court for such a motion may be the court in the county where the deposition is being taken. Evasive or incomplete answers are treated as failure to answer. A party may be sanctioned for failure to comply with proper discovery requests. WHERE DEPOSITIONS MAY BE HELD Fla. R. Civ. P. 1.410(2), Subpoena, states that a deponent is required to attend a deposition only in the county where the person lives, works, or transacts business, unless by order of court in another place convenient to the deponent. CHAPTER 9 Depositions Depositions may be taken of any person or entity with information reasonably expected to lead to admissible evidence. Depositions may be taken by telephone or videotape. Depositions may be taken of persons who are not parties to the action. Associations, public and private corporations, and government entities may all be deposed through a designated officer or agent. THE NATURE OF THE ORAL DEPOSITION The deposition is a liberal form of discovery. A party may depose parties and non-parties alike. Examination and cross-examination may proceed as permitted at trial. The deponent must be put under oath by the officer before whom the deposition is taken (usually a court reporter). The testimony must be recorded by some means. If the deposition is videotaped, it must be transcribed, unless agreed otherwise by the parties. SUBPOENA REQUIREMENTS Fla. R. Civ. P. 1.410 provides that the clerk of the court or any attorney in the action may issue a subpoena for taking depositions. The subpoena may require the person to be deposed to produce documents, books, papers, or tangible things that are either evidence or lead to evidence within the scope of discovery. 18429_FL_03_Part3_p015-022.indd 16 7/7/08 10:31:16 AM
CHAPTER 9 Depositions 17 DEPOSITION BEFORE ACTION OR PENDING APPEAL TO PERPETUATE TESTIMONY Fla. R. Civ. P. 1.290 provides for depositions to be taken to save and record or perpetuate testimony of persons including themselves. The person interested in perpetuating the testimony may file a verified petition in the circuit court of the county of the residence of any of the expected adverse parties. The petition must include the following: 1. the name of the petitioner 2. a statement that the petitioner expects to be a party to an action that would be recognized in Florida 3. the subject matter of the expected action 4. the party s expected interest in the action 5. the information that the petitioner expects to record and the reasons for the necessity of the information in the anticipated action 6. the names and addresses of all those persons the petitioner expects to be adverse parties 7. the names and addresses of the persons to be deposed, and substance of the testimony which the petitioner expects to elicit from each 8. a request for an order authorizing the deposition. See Fla. R. Civ. P. 1.290(a)(1). PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN Fla. R. Civ. P. 1.300a and d, authorizes the following to take acknowledgment of depositions: 1. notary publics 2. judicial officers 3. if the parties stipulate, any person at any time or place upon any notice and in any manner. Parties before whom deposition may not, unless stipulated to by the parties, be taken are the following: 1. relatives 2. employees 3. attorney or counsel of one of the parties 4. anyone financially interested in the action at issue. DEPOSITION UPON ORAL EXAMINATION Fla. R. Civ. P. 1.310 provides that after the action is begun, any party may take the deposition of any person. The only time leave of court is necessary is when a party wants to take a deposition before 30 days after the initial service of process. Any deposition may be videotaped without permission of the court or stipulation of the parties. A court order is required for a telephone deposition. A deposition may be taken of a corporation, association, or governmental entity, when the matters the deposer desires to ascertain is stated with enough specificity to allow the entity to designate officers or agents to answer the deposition questions posed. The designated person is referred to as the Person with the Most Knowledge within the company of the issue(s) at hand. THE DEPOSITION UPON WRITTEN QUESTIONS Fla. R. Civ. P. 1.320 allows for written deposition questions to be served on any person once the action has commenced. A deposition on written questions may be served on corporations, partnerships, association, or governmental agencies. USE OF DEPOSITION IN COURT PROCEEDINGS Fla. R. Civ. P. 1.330 allows depositions to be used against any party who was present or who had reasonable notice of the deposition, if the testimony to be used is otherwise admissible as evidence. Depositions may be used by any party for the purpose of impeaching or discrediting the testimony of the witness or for any other purpose allowed by the Florida Evidence Code. DEPOSITION OF EXPERT WITNESSES Fla. R. Civ. P. 1.390 defines an expert witness as one who holds a professional degree from a college or university and has professional training and experience, or is regularly engaged in the profession, or has special knowledge and skill about the subject upon which called to testify. 18429_FL_03_Part3_p015-022.indd 17 7/7/08 10:31:16 AM
18 PART III Discovery CHAPTER 10 Interrogatories Interrogatories in Florida are primarily regulated by the Florida Rules of Civil Procedure. Interrogatories may be served upon any party, but not on nonparties. INTERROGATORIES Fla. R. Civ. P. 1.340(a) provides that any party may serve interrogatories on any party. FORMS There are standard interrogatory forms included in the Florida Rules of Civil Procedure Appendix that are as follows: 1. General Personal Injury Negligence: Interrogatories to Plaintiff 2. General Personal Injury Negligence: Interrogatories to Defendant 3. Medical Malpractice: Interrogatories to Plaintiff 4. Medical Malpractice: Interrogatories to Defendant 5. Automobile Negligence: Interrogatories to Plaintiff 6. Automobile Negligence: Interrogatories to Defendant Standard interrogatories are a great place to start, when drafting discovery. Of course, one also wants to examine the facts and issues of a particular case and draft additional questions accordingly. SERVICE OF INTERROGATORIES Fla. R. Civ. P. 1.340(e) requires that interrogatories be served on the party to answer the interrogatories and copies to all other parties. A certificate of service that includes the service date and the name of the party to whom the interrogatories are directed must be filed with the court. DRAFTING INTERROGATORIES FORMAT AND CONTENT OF THE INTERROGATORIES Fla. R. Civ. P. 1.340(a) allows only 30 interrogatories, including all subparts, to be served. The party propounding the first set of interrogatories may motion the court to serve more. Notice and ground for the second set must be filed and served. Interrogatories are required by Fla. R. Civ. P. 1.340(e) to be arranged with a blank space following each separately numbered question. The space must be large enough to reasonably accommodate the anticipated answer. MOTION TO COMPEL If the opposing party fails to timely answer interrogatories or fails to adequately answer, the party propounding the interrogatories may file a Motion to Compel. See Fla. R. Civ. P. 1.340(a). DRAFTING ANSWERS TO INTERROGATORIES TIME LIMITS Fla. R. Civ. P. 1.340(a) states that the time for answering interrogatories is 30 days. ANSWERING INTERROGATORIES Fla. R. Civ. P. 1.340(d) provides that the answers given to interrogatories by one party are not binding on any other parties. Fla. R. Civ. P. 1.340(e) requires that answers to interrogatories be served on the party who propounded them and all other parties. 18429_FL_03_Part3_p015-022.indd 18
CHAPTER 11 Physical and Mental Examinations 19 USING RECORDS INSTEAD OF A WRITTEN RESPONSE Fla. R. Civ. P. 1.340(c) allows the party answering interrogatories to provide documents responsive to interrogatories in lieu of a written response. The burden of ascertaining the information from the records must be similar for both the propounding and answering parties. OBJECTING TO INTERROGATORIES Fla. R. Civ. P. 1.340(a) states that if a question is objected to, the grounds for the objection must be stated. The attorney making the objection needs to sign the objection. Some common objections are that a given interrogatory is overly broad, unduly burdensome, outside the scope of discovery, vague, or subject to privilege. CHAPTER 11 Physical and Mental Examinations Fla. R. Civ. P. 1.360 regulates the use of mental and physical exams. The party requesting the exam has the burden of showing good cause as to the reasons for the exam. THE PHYSICAL OR MENTAL EXAMINATION In Florida, Fla. R. Civ. P. 1.360, Examination of Persons, regulates the medical and physical exams of discovery. This rule is similar to the federal rule. THE SCOPE (FLA. R. CIV. P. 1.360(A)(1)) A party may request any other party to submit to, or to produce a person in that other person s custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. THE REQUEST FOR PHYSICAL EXAM The requirements for requesting a physical exam of a party whose physical condition is in controversy are as follows: 1. The request must be served on the plaintiff after the action begins and may be served without permission from the court. 2. The request must specify a reasonable place, time, and manner, and the conditions under which the exam will take place. 3. The scope of the exam will also be specified. 4. The persons or person who will make the exam must be specified. THE RESPONSE TO THE REQUEST FOR PHYSICAL EXAM The party of whom the request is required by the rule to: 1. Serve a response within 30 days after service of the response, unless 45 days has not passed since the initial pleading and process were served. 2. The response shall state that the exam is to be permitted. 3. State objections and the reasons for the objections if the exam is objected to. NONPHYSICAL EXAM If the controversial condition of the party to be examined is not a physical one, the same procedures as for physical exams are required by Fla. R. Civ. P. 1.360(a)(1)(B). For example, it is common for a plaintiff with physical injuries to also claim emotional distress resulting from those injuries. This claim puts the plaintiff s mental state at issue. Therefore, the defendant may now conduct discovery as to the plaintiff s past and current mental state, including an examination by a psychologist or other mental health professional. AUTHORIZATION OF THE EXAM Under Fla. R. Civ. P. 1.360(2), the court must find good cause for authorizing the exam. 18429_FL_03_Part3_p015-022.indd 19
20 PART III Discovery BURDEN OF PROOF The party requesting the exam has the burden of showing good cause for the exam at any hearing concerning the exam. PROTECTIVE RULES If the court authorizes the exam, it may set protections and conditions under which the exam may be accomplished. See Fla. R. Civ. P. 1.360(a)(3). THE EXAMINER THE REPORT The report of the examiner shall be delivered to the examined party by the requesting party. The report must include a detailed written report setting out the conclusions, findings, diagnosis, and results of tests. If the examiner refuses or fails to make such a report, the examiner s testimony may be excluded by the court, if offered at trial. See Fla. R. Civ. P. 1.360(3)(b). CHAPTER 12 Request for Documents Fla. R. Civ. P. 1.350 regulates the demand for production of documents and things, and entry upon land for inspection and other purposes. The rule does not preclude an independent action against a person, not a party. Remember, documents can sometimes be discovered through the other discovery devices, as covered in the other chapters. THE REQUEST FOR DOCUMENTS Any party may request any other party to produce and permit the party making the request. The party may have an agent examine, inspect, and copy designated documents, writings, drawings, graphs, charts, photographs, and any other data compilations. The general scope of discovery is applicable to this rule, which is that any information reasonably calculated to lead to admissible evidence may be discovered. REQUESTING THE PRODUCTION OF DOCUMENTS The party making a demand of an adverse party to produce documents or things, or to enter upon land shall serve the request on the adverse party. This may be done without the permission of the court. The request shall set forth the items to be inspected. This may be accomplished either by naming the item or describing, by category, and with specificity, the types of documents or things to be produced. RESPONDING TO A REQUEST FOR DOCUMENTS The party to which the request was made has 30 days to respond to the request. In the response, each separate item will be specifically stated to be permitted or objected to, and each objection must have supporting reasons. The notice of the discovery request and notice of serving the response must be filed with the court when they are served. However, the discovery itself is not filed with the court. 18429_FL_03_Part3_p015-022.indd 20
CHAPTER 13 Request for Admission 21 PERSONS NOT PARTIES Discovery sought from persons or businesses that are not party to the lawsuit should be obtained by deposition or a subpoena duces tecum. See Fla. R. Civ. P. 1.911 and 1.912. FORM 1.921, NOTICE OF PRODUCTION FROM NONPARTY The form shown in Exhibit 12-1 is to be used with Fla. R. Civ. P. 1.351, Production of Documents and Things Without Deposition. This rule is to be used when the request is of a nonparty and when a deposition is not sought. This is commonly used when parties seek documents, such as medical records or insurance policies, from third parties. Exhibit 12-1 Notice of Production Notice of Production To YOU ARE NOTIFIED that after 10 days from the date of service of this notice, if service is by delivery, or 15 days from the date of service, if service is by mail, and if no objection is received from any party, the undersigned will issue or apply to the clerk of this court for issuance of the attached subpoena directed to, who is not a party and whose address is to produce the items listed at the time and place specified in the subpoena. DATED on,2 Attorney for Florida Bar No. CHAPTER 13 Request for Admission Matters admitted are deemed proven for trial. Fla. R. Civ. P. 1.370 regulates requests for admission. The Florida Rule was originally patterned after the federal rule governing requests for admission. THE REQUEST FOR ADMISSION Written requests for admission may be served by any party on any other party to an action. The admission made under this rule is for the pending action only, and is not an admission for any other purpose. The responses to admissions also may not be used against the responder in any other proceeding. TIME AND SERVICE Service by any party on any other party may be made without leave of court, after the commencement of the action. USE OF THE REQUEST FOR ADMISSIONS The purpose of requests for admissions is to narrow the issues of fact and law for trial. The genuineness of documents may also be ascertained for trial. FAILURE TO ADMIT OR DENY Any matter included in the request for admission is deemed to be admitted unless the party to whom the request was served responds, and serves the requesting party with answers that object or deny the truthfulness of the matter. 18429_FL_03_Part3_p015-022.indd 21
22 PART III Discovery DRAFTING THE REQUEST FOR ADMISSION FORM AND CONTENT OF THE REQUEST FOR ADMISSION Each request must specifically and particularly state a fact or issue to be admitted or denied. RESPONDING TO THE REQUEST FOR ADMISSION The responding party must answer or object to the requests within 30 days of service of the requests for admission. The responding party may have at least 45 days from the date of initial service and process. OBJECTIONS TO THE REQUEST FOR ADMISSION If objections are made, the reasons must be stated. If denials are made, the answer must specifically deny the matter. If the party cannot truthfully admit or deny a request, that party must explain, in detail, the reasons this is so. The responding party must, in good faith, answer what is true in each request, and deny what is false. The responding party must make a reasonable effort to inquire about the truth or falsity of the request. The responding party must admit, deny, or describe reasons as to their inability to truthfully deny or admit a request for admission. AMENDMENT OF ADMISSION A motion may be filed with the court seeking to withdraw or amend an answer. The court may permit the withdrawal or amendment of an answer when the merits of the action will be served by such an order. 18429_FL_03_Part3_p015-022.indd 22